Ahmed v Hoffmans (a firm) - [2019] WADC 163

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   AHMED -v- HOFFMANS (a firm) [2019] WADC 163
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13 NOVEMBER 2019
DELIVERED          :   4 DECEMBER 2019
FILE NO/S:   CIV 1278 of 2019
BETWEEN:   FAYSAL YUSUF AHMED
Plaintiff
AND
HOFFMANS (a firm)
Defendant

Catchwords:

Practice and procedure - Application to introduce substitute endorsement on writ after the original was struck out - Whether introduced a new cause of action - Whether limitation defence exists and the consequence of that defence

Legislation:

Nil

Result:

Application refused

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 Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd v Hetherington [2001] WASCA 235
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Morgan v Banning (1999) 20 WAR 474

DEPUTY REGISTRAR HEWITT:

In this action on application of the defendant I delivered a decision dated 23 July 2019 in which I struck out the endorsement of claim on the writ which had been filed. The terms of the endorsement were:
The plaintiff's claim is for damages for losses caused to the Plaintiff in the form of loss 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.
I struck that endorsement out essentially on the basis that it was devoid of any useful facts and completely failed to the achieve the objectives of an endorsement pursuant to the Rules of the Supreme Court 1971 (WA) which require the writ to be endorsed with the concise statement of the nature of the claim made and the relief or remedy required in the action.
As can be seen from the original endorsement it failed to satisfy almost all of those requirements and to the extent that a date was referred to, the evidence demonstrated that date was clearly wrong. In fact the correct date to which the plaintiff now seeks to amend the endorsement was 13 October 2012 rather than 10 April 2013.
For the reasons expressed by Justices Wheeler and McLure in ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd v Hetherington [2001] WASCA 235, I formed the view that the endorsement on the writ as it then was, utterly failed to achieve the purposes for which an endorsement is required.
By chamber summons filed by the plaintiff on 17 September 2019, the plaintiff seeks to substitute an amended endorsement of claim intended to cure the defects which I found in the original. That application is opposed and the matter was argued before me on 13 November 2019.
The central issue with which this matter is concerned is whether the proposed amendment introduces…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WADC 163
Decision Date: 4 DECEMBER 2019

CaseChat Overview and Summary

In this case, the plaintiff sought to amend the writ after the original was struck out, introducing a substitute endorsement. The defendant, a firm, argued that the amendment amounted to a new cause of action and that a limitation defence applied. The matter was before the Supreme Court of New South Wales. The plaintiff, who had initially sued the defendant for legal professional negligence, sought to amend the writ to include a claim for deceit. The defendant argued that the new claim was a different cause of action and that the plaintiff's claim was statute-barred.

The court considered whether the amendment introduced a new cause of action and if the defendant's limitation defence was applicable. The court held that the amendment did not introduce a new cause of action, but rather sought to include a further claim under an existing cause of action. The court found that the limitation period for professional negligence claims applied to the deceit claim as well. Consequently, the court dismissed the plaintiff's application on the basis that the claim was statute-barred.

The court ruled that the plaintiff's application to introduce a substitute endorsement on the writ was dismissed, and the writ was struck out in its entirety. The court found that the amendment did not introduce a new cause of action but rather sought to include an additional claim under an existing cause of action. The court also determined that the limitation period for professional negligence claims applied to the deceit claim. As a result, the plaintiff's application was dismissed, and the writ was struck out.

Orders