Ahmed v Hoffmans (a firm) - [2020] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AHMED -v- HOFFMANS (a firm) [2020] WADC 82
CORAM:   TROY DCJ
HEARD:   8 MAY 2020
DELIVERED          :   12 JUNE 2020
PUBLISHED           :   12 JUNE 2020
FILE NO/S:   CIV 1278 of 2019
BETWEEN:   FAYSAL YUSUF AHMED
Plaintiff
AND
HOFFMANS (a firm)
Defendant

Catchwords:

Indorsement of writ - Application to amend writ - Set aside or amend deficient writ - New cause of action - Limitation period - Appeal from decision of deputy registrar refusing application

Legislation:

Rules of the Supreme Court 1971 (WA), O 6 r 1, O 20 r 19, O 21 r 1 - r 5

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff	:	Mr A J Stewart
Defendant	:	Mr S F Popperwell

Solicitors:

Plaintiff	:	Premier Compensation Lawyers
Defendant	:	Popperwell & Co

Case(s) referred to in decision(s):

ABB Services Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
Ahmed v Hoffmans (a firm) [2019] WADC 163
Ahmed v Hoffmans (a firm) [2019] WADC 96
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Glendinning v Cuzens [2009] WASCA 21
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Morgan v Banning (1999) 20 WAR 474
Pontin v Wood [1962] 1 QB 594
Renowden v McMullin (1970) 123 CLR 584
Rossen v Airey [2012] WASCA 26
Simonsen v Legge [2010] WASCA 238
Sims v Jooste QC [2013] WASCA 245
TLJ v Lai [2018] WASCA 201
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51

TROY DCJ:

Statement of Issue

Where a writ issues immediately before a limitation period expires, with an indorsement that lacks any facts thereby infringing Rules of the Supreme Court 1971 (WA) (RSC) O 6 r 1(1), and when the indorsement on that writ is then amended after the limitation period expires to supply the necessary facts, is such an amendment permissible in the exercise of the court's discretion or does it inevitably introduce a new, time-barred, cause of action?

Background

The plaintiff, Mr Faysal Yusuf Ahmed appeals against two decisions of Deputy Registrar Hewitt, respectively Ahmed v Hoffmans(a firm) [2019] WADC 96 and Ahmed v Hoffmans (a firm) [2019] WADC 163, each arising out of the same proposed litigation.
Mr Ahmed's claim against Hoffmans, his previous lawyers, is for professional negligence, although I note that the original indorsement and both attempted amended indorsements all refer to negligence, and/or breach of contract, and/or breach of statutory duty, without identifying either the contract or the statutory duty.
The claim for professional negligence arises from Hoffmans' failure to take necessary action prior to Mr Ahmed's common law termination date. Mr Ahmed claims he suffered an injury in an accident at work on 11 October 2011. He was required to make an election as to whether he would commence common law proceedings against his employers, Swan Transit, on or before 13 October 2012. He did not do so.
On 10 April 2013, Hoffmans wrote to Mr Ahmed to advise that they had not arranged for him to be medically reviewed prior to the expiry of his termination date. They suggested that he seek another solicitor to represent him in his workers' compensation claim. In the course of counsel's submissions on appeal it was conceded by the defendant that if the plaintiff's argument on s 47 of the Limitation Act succeeded, any claim that Mr Ahmed would have against Hoffmans, arising out of that omission, would have run from 10 April 2013. So the six year limitation period would expire on 9 April 2019.

The indorsement on the original writ

Mr Ahmed engaged his current lawyers, Premier Compensation Lawyers, on or before 12 March 2019, less than a month before the limitation period expired.
Six days before the limitation period expired, on 4 April 2019, Mr Ahmed filed a writ of summons against Hoffmans indorsed as follows:
THE PLAINTIFF'S CLAIM is for damages for losses caused to the Plaintiff in the form of a loss of opportunity and/or loss of chance as a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents on or about 10 April 2013.'
It is now accepted that this writ was within the limitation period.
On 2 May 2019 Hoffmans filed a chambers summons seeking orders that:
Pursuant to O 6 r 1(2) of the Rules of the Supreme Court 1971 (WA), the writ of summons dated 4 April 2019 be struck out.
On the same date, counsel for Mr Ahmed advised those acting for Hoffmans that the plaintiff did not accept that the writ of summons was deficient.[1]
[1] Certificate of conferral 2 May 2019.
Order 6 r 1 is in the following terms:
1.Nature of claim etc. to be indorsed on writ
(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In case of non-compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.

The indorsement on the first amended writ

Mr Ahmed filed an amended writ of summons dated 16 May 2019. That date is outside the limitation period. The effect of that amendment was, firstly, to change the date for the proposed cause of action from 10 April 2013 (the date of the Hoffmans' letter) to 13 October 2012 (the common law termination date). Secondly, to add the following:
The claim relates to the defendant failing to properly advise and/or protect the plaintiff's common law termination day as required under the Workers' Compensation and Injury Management Act 1981 acknowledged for the purposes of s 47 of the Limitation Act 2005 in a letter from the defendant to the plaintiff dated 10 April 2013.

The hearing on Hoffmans' 2 May 2019 application

The deputy registrar ruled on Hoffmans' application in Ahmed v Hoffmans(a firm) [2019] WADC 96 on 25 July 2019. He considered that the indorsement on the writ as originally filed (4 April 2019) completely failed to achieve any of the objectives identified by McLure J in ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington.[2]
[2] ABB Services Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235 [7] - [11].
Counsel for Mr Ahmed, relying on Watch Tower Bible Society and Tract Society of Australia v Sahas,[3] had submitted that the writ did comply with the RSC and did disclose a clear cause of action.[4] That position is not maintained on appeal.
[3] Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51.
[4] Submissions 8 July 2019, par 8.
The deputy registrar was plainly correct in his assessment of the original indorsement. It was woefully inadequate. It was, by some considerable margin, a more egregious failure to comply with the requirements of O 6 r 1 than many others considered by the authorities in this area, for example in Glendinning v Cuzens.[5]
[5] Glendinning v Cuzens [2009] WASCA 21.
It is not possible from that indorsement to determine the nature of the claims made and how they related to the relief sought. It is not possible to determine whether the claims fell within a relevant limitation period. It is not possible to determine the metes and bounds within which any statement of claim must be framed.
Where, on an application by a defendant, it is established that an indorsement is defective, there are four courses that may (depending upon the nature of the application) be open to the court. The court may:
•set aside the writ (O 6 r 1(2));
•strike out the indorsement in whole or in part (O 20 r 19(1));
•grant leave to the plaintiff to amend the indorsement (O 6 r 1(2), O 20 r 19(1)); or
•order the plaintiff to provide further particulars of the indorsement (O 6 r 1(2)).[6]
[6] Glendenning v Cuzens [31].
The deputy registrar held at [14]:
It is in my opinion not enough to file an inadequate endorsement of claim which says next to nothing useful, attempt to patch that up with an amended writ of summons, which arguably introduces fresh causes of action, and in any event fails to comply with the mandatory requirements concerning amendments without leave … All that is required is to set out the facts upon which the plaintiff intends to rely and the cause of action he intends to pursue. Those are adequately expressed in what is presented as an amended writ of summons but arguably required the leave of the court before it could have been accepted and additionally was not in proper form and for that reason arguably a nullity.
I understand the deputy registrar to be, firstly, expressing a concluded, obviously correct, view that the indorsement of claim was deficient. Secondly, that the requirements identified by McLure J in ABB Service Pty Ltd v Hetherington had, on the face of it at least, been complied with in the amended writ of summons. Thirdly, noting a controversy concerning whether that amended writ of summons introduced a fresh cause of action. Fourthly, expressing a provisional view that leave was required to amend the writ. Fifthly, that for a reason not definitively expressed, the amended writ of summons was arguably a nullity because it was not in a proper form.
Order 21 r 1 provides as follows:
1.Amending writ without leave
(1)Subject to subrule (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed by filing its amended writ before the closure.
…
(3)This rule shall not apply in relation to an amendment which consists of -
(a)the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or
(b)the addition or substitution of a new cause of action; or
(c)without prejudice to rule 3, an amendment of the statement of claim, if any, indorsed on the writ.
So, the deputy registrar's third and fourth points relate to the question of whether the amendment introduces a new action requiring leave (and which would be outside of the limitation period).
The deputy registrar concluded, at [14], as follows:
For these reasons I think the appropriate disposition of this application is to strike out the endorsement of claim and to provide to the plaintiff an opportunity to bring an application to introduce an amended endorsement of claim which may satisfy the requirements of the rules. Whether that can be undertaken by the present solicitors representing the plaintiff, or whether there may be a conflict of interest is something which they will need to resolve but in view of the potential for such a problem I propose to give a generous allowance of time for the process to take place.

Orders made on Hoffmans' 2 May 2019 application

The deputy registrar made orders striking out the indorsement of claim on the writ of 4 April 2019 and also the amended writ filed 16 May 2019. He also ordered that Mr Ahmed bring any application to substitute a new indorsement by 20 September 2019. The deputy registrar did not set aside the original writ in its entirety.
RSC O 20 r 19(1) provides that:
(1)The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
The deputy registrar seemingly decided to exercise his discretion to strike out (rather than set aside) the 4 April indorsement, because by failing to comply with O6 r 1(1) it disclosed no reasonable cause of action. His decision to strike out and not allow the 16 May amendment would seem to flow from his concerns about the amendment being a fresh cause of action, potentially requiring leave to amend and not being in a proper form. It would seem that he concluded that the amendment was an abuse of the process of the court, rather than it disclosed no reasonable cause of action.
At the appeal before me, counsel for Mr Ahmed contended that the cause of action commenced with the original writ of 4 April 2019. He submitted that the amended writ on 16 May 2019 cured the acknowledged deficiencies in the original writ, but did not introduce a new cause of action. Before I move to the merits of the appeal I must note Mr Ahmed's response to the deputy registrar's 25 July 2019 decision.

The indorsement on the second amended writ

Mr Ahmed did not appeal that decision. Instead, by a chamber summons filed on 17 September 2019, he sought to substitute an amended indorsement of claim. Obviously, 17 September 2019 is also outside the limitation period. The proposed amended indorsement of claim is as follows:
THE PLAINTIFFS CLAIM is for damages for losses caused to the Plaintiff in the form of loss of opportunity and/or loss of chance as a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents in the period leading up to and on or about 13 October 2012.
The Plaintiff's claim is in relation to the legal advice and representation that the Defendant, its servants and/or agents provided the Plaintiff, and the Defendant's failure to properly advise the Plaintiff of his common law rights against his former employer. Swan Transit, and/or the Defendant's failure to properly protect the Plaintiff's common law rights against his former employer, Swan Transit.
As a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents, the Plaintiff has lost the opportunity and/or chance to commence a common law claim in damages against his former employer, Swan Transit, and has incurred loss and damages given such a claim had reasonable prospects of success.
AND THE PLAINTIFF CLAIMS damages and interest on the whole or part of the damages awarded to the Plaintiff at such rate and for such period as this Honourable Court shall think fit under Section 32 of the Supreme Court Act, 1935.

The hearing on Mr Ahmed's 17 September 2019 application

Prior to the second hearing before the deputy registrar, counsel for Hoffmans submitted that the plaintiff's application should not be treated as an application to amend. Rather, it was an application to substitute a new indorsement. If it were just a question of amendment, it should be rejected, because by the substitute indorsement the plaintiff pleads a new cause of action, which is clearly statute barred.[7]
[7] Submissions 11 November 2019, par 3.
At the appeal before me, counsel for Mr Ahmed's primary position was that the amended writ on 16 May 2019 adequately amended the original writ but, alternatively, even if it did not, the 17 September 2019 amendment certainly did.
The deputy registrar considered that the central issue was whether the proposed amendment (of 17 September) introduced a new cause of action. The deputy registrar had previously noted that the 16 May amended writ of summons arguably introduced fresh causes of action.
The deputy registrar referred to O 21 r 5(2) of the RSC concerning amending a writ or pleading with leave and specifically had regard to Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[8]
[8] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341.
The deputy registrar considered that the matter distilled down to one simple proposition, namely if the proposed amendment to the indorsement is properly characterised as introducing a new cause of action and, if the limitation period in which such an action may be commenced has expired (which it obviously had by 17 September 2019), the court should not grant the amendment.
The deputy registrar made this observation at [18]:
It seems to me that if I rule against the respondent/defendant I am effectively saying that a party who files a hopelessly inadequate endorsement of claim is thereby advantaged because he or she may then put together any cause of action which they choose to follow without having to concern themselves about whether a limitation period may or may not have expired because the inadequacies of the endorsement should be interpreted as the breadth of the endorsement enabling a whole range of possibilities by way of amendment.
In effect, the deputy registrar focused on the injustice caused to a defendant if a plaintiff, faced with the imminent expiration of a limitation period, is permitted to file a 'holding indorsement'. By so doing, the concise statement of the nature of the claim made and of the relief or remedy required, which should have been indorsed at the outset, can then be slotted in at some subsequent stage at the plaintiff's leisure.
This concern echoes the observation of McLure J in ABB Service Pty Ltd v Hetherington:[9]
An open ended or otherwise defective indorsement may be relied on to the advantage of a plaintiff who seeks to amend its writ and then its statement of claim after the expiry of the limitation provided.
[9] ABB v Hetherington [9].
That is precisely what has occurred here, as the deputy registrar noted at [20]. I bear in mind, however, that in ABB Service Pty Ltd v Hetherington although the indorsement of claim and the writ were struck out, McLure J held that the appropriate course was for the Full Court to consider and, if appropriate, accede to any application which the respondents might wish to make to amend the indorsement to comply with O 6 r 1(1) and O 20 r 19(1) of the SCR.[10]
[10] ABB v Hetherington [23].
Ultimately the deputy registrar concluded at [21]:
The original endorsement was so deficient that what is now proposed cannot in my view be characterised as anything other than a new action.
Obviously the original indorsement was no more deficient in December 2019 then it had been in July 2019. In July 2019 the deputy registrar had permitted Mr Ahmed to bring an application to substitute a new indorsement by 20 September 2019. The deputy registrar must have allowed for the possibility that if there was a permissible 'new' indorsement it could be treated as an amended indorsement, otherwise his orders of 25 July 2019 would be pointless.

Orders made on Mr Ahmed's 17 September 2019 application

On 4 December 2019 the deputy registrar ordered that Mr Ahmed's application was dismissed, the writ was struck out and the action dismissed.

The appeal to this court

By notice of appeal dated 23 December 2019, Mr Ahmed now appeals against both judgments. Mr Ahmed is very significantly out of time in seeking to appeal against the first decision.
An appeal from a registrar to a judge is to be by way of a new hearing of the matter that was before the registrar.[11] The judge hearing the appeal is to treat the application as if it is before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal.[12] There is no requirement on the applicant to show that the registrar made an error in the decision under appeal.[13] I will deal with the need for an extension of time a little later.
[11] District Court Rules 2005 (WA) r 15(6).
[12] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 [4].
[13] Hazart Pty Ltd v Rademaker [28].
On appeal, Hoffmans do not quibble with the adequacy of the particulars provided in the May (and the subsequent September) amended writ. Rather, their position is that the original indorsement was so deficient that any amendment must necessarily bring in a new cause of action which (a) required leave and (b) is time barred.

Hoffmans submit that Mr Ahmed's decision not to pursue an appeal from the first decision was seemingly based upon his erroneous view that the indorsement in the 4 April writ was capable of being rectified. That belief is assertively stated as 'plainly wrong'. Of course, this being a de novo hearing, I approach the original 16 May 2019 application afresh, and consider whether the 4 April 2019 indorsement is capable of being rectified in light of settled authority. Further, I accept Mr Ahmed's argument that it is implicit in the orders made on 25 July 2019 that the deputy registrar considered the writ was capable of being rectified.
I make the same observation on the submission that there must be an error in Mr Ahmed's argument that RSC O 21 r 5 needed to be dealt with first, given that the deputy registrar had struck out the indorsement because it did not disclose a cause of action. Hoffmans say this must be an error, because there being no other cause of action articulated in the writ, any substituted indorsement would necessarily introduce a new cause of action. So, in order to be successful in his application to amend the writ, the plaintiff required a court to find that the indorsement did disclose a cause of action. Without that finding, the plaintiff's application to amend was (and is) hopeless.
The flaw in that argument is that it is predicated on the indorsement on the 4 April writ being, and remaining, struck out, so that it cannot be amended. But whether the indorsement on that writ should be struck out, as opposed to an order that it be amended, is for me to determine on appeal on a de novo basis.
Mr Ahmed's primary submission, in the event I grant leave to appeal out of time, is that I should resolve the 16 May 2019 application by, in the exercise of my discretion, granting him leave to amend the indorsement, rather than striking out the indorsement in whole. In the alternative Mr Ahmed submits that I should grant him leave to amend the indorsement in the terms of the proposed September 2019 amendment.
In arguing for an extension, counsel for Mr Ahmed submits that the deputy registrar gave the plaintiff the opportunity to do something. But either at that time or at some subsequent stage, he formed a view that the opportunity that had been extended was in fact impossible to be achieved. Because the indorsement was so defective it could never be adequately amended, even though time had been allowed for that very thing to occur. Up until then, there was good reason for the plaintiff not to appeal the decision in the first instance but simply to try to comply with the orders made on 25 July.
The principles in this regard are stated in Simonsen v Legge.[14] That case identified[15] four significant, though not exhaustive, factors to consider in granting an extension of time, namely:
1.the length of the delay;
2.the reasons for the delay;
3.the prospects of the applicant succeeding in the appeal; and
4.the extent of any prejudice to the respondent(s).
[14] Simonsen v Legge [2010] WASCA 238 [8].
[15] Simonsen v Legge [8](d).
The nature and extent of the prejudice to a defendant flowing from delay must be evaluated in the context of the issues arising in the particular case.[16] If I consider that Mr Ahmed has strong prospects of success in the appeal against the deputy registrar's decision to strike out the amended writ filed 16 May 2019, then the interests of justice favour the grant of an extension of time to appeal. I turn, then, to the merits of the appeal.
[16] TLJ v Lai [2018] WASCA 201 [77].

The principles in determining the appropriate response to a deficient indorsement

The fact that the indorsement on the original writ was grossly deficient does not render the writ a nullity.[17]
[17] Pontin v Wood [1962] 1 QB 594, applied in Renowden v McMullin (1970) 123 CLR 584, 595 - 596 and in Morgan v Banning (1999) 20 WAR 474, 482 (Wheeler J).
Provided a writ is not a nullity, amendments can be made to a defective indorsement on the writ if the terms of the writ are wide enough to encompass the proposed amendments as they particularise, clarify or expand a cause of action already instituted.[18]
[18] ABB Service Pty Ltd v Hetherington [9].
Here, leaving aside the suggested breach of contract and/or statutory duty, the cause of action instituted on 4 April 2019 is in negligence. That has never changed. Mr Ahmed submits that the 16 May amendment, 'failing to properly advise and/or protect the plaintiff's common law termination day as required under the Workers' Compensation and Injury Management Act 1981 acknowledged for the purposes of s 47 of the Limitation Act 2005 in a letter from the defendant to the plaintiff dated 10 April 2013' particularises that cause of action.
There can be no inflexible rule as to the exercise of the discretion under O 6 r 1(2). The lodestar must always be what the interests of justice require in the particular circumstances of the case. To set aside (or to strike out) a writ may have significant consequences, particularly in relation to the plaintiff's position in relation to a limitation period. It is therefore a step to be taken only where it is necessary in the interests of justice.[19] Where (as is the case here) the relevant limitation period has expired after the writ was issued, the consequence that the plaintiff will be left without a remedy if the writ is set aside, is an important factor to be weighed in the balance in determining where the interests of justice lie.[20]
[19] Glendenning v Cuzens [33].
[20] Glendenning v Cuzens [15] and [35].
If I was to dismiss the appeal then Mr Ahmed's claim cannot be renewed because it would be out of time. Given that this is a de novo hearing, I must treat Hoffmans' 2 May 2019 application as if it is before the court for the first time. I should only dismiss this appeal if I conclude it is necessary to do so in the interests of justice.
Where an indorsement of claim is deficient the plaintiff should ordinarily be allowed a reasonable opportunity to put it into a proper form, so long as that can be done without irremediable prejudice to the defendant (my emphasis).[21]
[21] Glendenning v Cuzens [34].
Mr Ahmed submits that the deficient indorsement of claim had been put it into a proper form by 16 May 2019, two weeks after Hoffmans had properly challenged the original writ. He submits that there is no irremediable prejudice to Hoffmans. The amendment to the date now correctly pleads the date when the cause of action is said to have arisen, as opposed to the date when Mr Ahmed became aware that a cause of action may have arisen. Hoffmans do not dispute that the details added by this amended indorsement amount to a concise statement of the nature of the claim made, and of the relief or remedy required.
I bear in mind that the power to set aside a writ does not exist to punish parties for failing to comply with the rules of court; it exists to enable the court to do justice between the parties.[22] I have to consider what is the injustice caused to Hoffmans by this proposed amendment, coming as it does some six weeks after the original indorsement, in circumstances where the amended indorsement, on its face, provides the details required by O 6 r 1.
[22] Glendenning v Cuzens [54].
Justice requires a disclosure of the legal basis for a claim put in a form that a defendant and the court can understand in order to adjudicate fairly between the parties.[23] This is not a case like Sims v Jooste QC [2013] WASCA 245, where there was an absence of a proposed amendment, coupled with the disclosure that the (unrepresented) plaintiff stood by the indorsement he had drafted, so that the prospect was that the defendant would be vexed and therefore prejudiced by a regurgitation of the same deficient material.[24]
[23] Sims v Jooste QC [2013] WASCA 245.
[24] Sims v Jooste QC [18].
Where the indorsement on a writ identifies a cause of action but nothing else, I find it difficult to conclude that the deficiencies in the indorsement are 'obviously incapable of being cured by appropriate amendments'. Any question of a defendant's rights in respect of limitation issues, which might be raised by amendments to the indorsement, could be dealt with by expressly reserving the defendant's rights in that regard.[25]
[25] ABB Services Pty Ltd v Hetherington [23].
Against that, as I noted at [36], this is precisely the type of scenario envisaged by McLure J in ABB Services Pty Ltd v Hetherington. Whilst the passage of her Honour's judgment obviously assists in identifying if an indorsement is deficient, it is less clear whether the consequence should generally be that such a writ is set aside or struck out or that it can be amended. The problem being the latter course rewards the very vice identified by her Honour, subject to the question of costs.
I do bear in mind that on the plaintiff's argument as noted earlier at [5], the limitation period commenced on 10 April 2013. Mr Ahmed first alerted Hoffmans to the prospects that he would sue upon their acknowledged omission as late as 16 December 2018.[26] He then did not attempt to formally commence litigation until 4 April 2019, five days before, on the plaintiff's contention, the limitation expired.
[26] Annexure 'TSJ2' to the affidavit of Timothy Jardine sworn on 9 July 2019.
I bear in mind the rationale for limitation periods. As explained by McHugh J in Brisbane South Regional Health Authority v Taylor:[27]
For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates.' Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
[27] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552 - 553.

Conclusion

Balancing all relevant factors, I conclude that the deficiencies in the indorsement are capable of being cured by appropriate amendments and were so cured by the 16 May 2019 amended writ. Further, that the balance of justice favours permitting an amendment, unless to do demonstrably amounts to adding a new time-barred cause of action.
If an amendment does not involve the addition of a new cause of action, no question of limitation arises.[28]
[28] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [46](b).
In assessing, as a matter of impression and degree, whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly.[29] What must be identified in an indorsement are critical events which give rise to the relief claimed, without, of course, descending to the factual particularity appropriate to a statement of claim. The ambit of the action commenced by the writ is determined by reference to the facts asserted, and not by reference to any legal labels or categories which may or may not have been used in the indorsement.[30]
[29] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [46](c).
[30] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [10].
I do not consider that the indorsement adds a new cause of action. It particularises a cause that was already there, namely negligence. It is not a case like Rossen v Airey[31] where the amendment would introduce a new cause of action, by alleging a different tort to that alleged on the original indorsement, at a time when that cause of action was clearly statute-barred.
[31] Rossen v Airey [2012] WASCA 26.

Orders

I grant leave to appeal the decision of 23 July 2019, uphold the appeal, set aside the deputy register's orders of 23 July 2019 and 4 December 2019, and order that there be an extension of time to appeal. Subject to the parties' final submissions I will make orders that the defendant file and serve its defence within a specified period.
I will hear from the parties as to costs, but my approach to that question will be governed by my conclusion that at the very least the first hearing before the deputy registrar on 11 July 2019 was occasioned by the plaintiff's shortcomings in failing to comply with O 6 r 1(1) on 4 April 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
12 JUNE 2020