Ahmed v Hoffmans (A Firm)
[2019] WADC 96
•25 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: AHMED -v- HOFFMANS (A FIRM) [2019] WADC 96
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 11 JULY 2019
DELIVERED : 25 JULY 2019
FILE NO/S: CIV 1278 of 2019
BETWEEN: FAYSAL YUSUF AHMED
Plaintiff
AND
HOFFMANS (A FIRM)
Defendant
Catchwords:
Practice and procedure - Adequacy of indorsement on writ - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 21 r 10(3)
Result:
Indorsement struck out
Representation:
Counsel:
| Plaintiff | : | Mr A Stewart |
| Defendant | : | Mr S 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 Kenneth Sydney Hetherington and Julie Ann Hetherington [2001] WASCA 235
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51
DEPUTY REGISTRAR HEWITT:
On 4 April 2019 the plaintiff to this action filed a writ of summons against the defendant endorsed 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.
On 23 April 2019 the defendant filed a conditional appearance and on 2 May 2019 filed a chambers summons seeking orders that:
1.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 and service be set aside.
2.The plaintiff pay the defendant's costs of the application to be taxed if not agreed.
Order 6 r 1 Rules of the Supreme Court 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.
It is no doubt for that reason that a conditional appearance was filed on behalf of the defendant in order to allow the issue raised by the chamber summons to be aired and determined. Subsequently, the defendant filed an amended writ of summons dated 14 May 2019. The effect of that amendment was to delete the date 10 April 2013 and substitute 13 October 2012 and 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.
Although not expressed to be so presumably the plaintiff relied on the provisions of O 21 to authorise the amendments sought to be introduced. Rule 10(3) of O 21 is in the following terms:
A writ, pleading or other document which has been amended under this Order must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge or master by whom the order (if any) authorising the amendment was made, and the date thereof, or if no such order was made, the number of the rule of this Order in pursuance of which the amendment was made.
The terms of the rule are mandatory. It is a requirement that the writ be endorsed in a manner prescribed. It was not. In those circumstances it is arguable that the purported amendment is a nullity.
The argument advanced by the defendant to support the chambers summons is that the endorsement on the writ as it was filed satisfies none of the requirement of the rules and is completely inscrutable as to the nature of the claim being pursued other than whatever gave rise to the claim is said to be as a result of negligence and/or breach of contract and/or breach of statutory duty. The endorsement is completely devoid of fact. It also refers to all of these breaches occurring on 10 April 2013 and now seeks to change that to 13 October 2012. Given the date upon which the writ was filed there are clearly some limitation issues which are relevant to this action. In course of argument counsel representing the defendant referred me to the decision of the Full Court in the matter ABB Service Pty Ltd (Formerly known as ABB Engineering Construction Pty Ltd) v Kenneth Sydney Hetherington and Julie Ann Hetherington [2001] WASCA 235. That case was decided by Wheeler J and McLure J the principal judgment being delivered by Justice McLure with which Wheeler J concurred. The relevant paragraphs within the decision are pars 7 – 11 which I reproduce below:
7This application raises for consideration the information which must be included in an indorsement to satisfy the requirements of O 6 r 1 and O 20 r 19 of the SCR. The minimum requirement has to be assessed in the context of the functions of an indorsement of claim in a writ. It has three functions two of which are related. Firstly, it marks out the perimeter within which a plaintiff may frame the statement of claim. Pursuant to O 20 r 2(2) of the SCR:
A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, the facts giving rise to a cause of action so mentioned.
8If a statement of claim or a proposed amendment exceeds the indorsement, the statement of claim should be struck out or the amendment refused unless the indorsement is amended: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 238.
9 Secondly, an indorsement in a writ has important limitation ramifications. The Limitation Act 1935 is concerned with the date of issue of the writ. 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: Morgan v Banning (1999) 20 WAR 474; O 21 r 5(5) SCR. 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.
10 Thirdly, an indorsement also provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action. However, it is not intended to be in the nature of a pleading but only a summary of the nature of the claim: Renowden v McMullin (1970) 123 CLR 584 at 595.
11 The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.
In my opinion the endorsement on the writ as originally filed completely failed to achieve any of the objectives which her Honour identifies in the paragraphs I have quoted.
Obvious omissions are any reference to the relationship between the plaintiff and the defendant said to impose upon the defendant a duty of care or a contractual obligation or a statutory duty, details of the opportunity or chance is said to have been lost and how that opportunity or chance arose and the actions and failures of the defendant which led to the alleged loss of opportunity or chance.
The defendant has placed much store on Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51. In that case the indorsement on the writ was:
INDORSEMENT OF CLAIM
The Plaintiff's claim is for damages and loss resulting from injury she sustained in a fall on the 26th of July 1999 at the Jehovah's Witness Kingdom Hall, Nollamara corner Flinders and Quadea Street Nollamara at a meeting conducted by the First Defendant on premises owned by the Second Defendant which damages occurred as a result of the negligence of the Defendants and the Plaintiff also claims interest on damages pursuant to Section 32 of the Supreme Court Act 1935 as amended.
The issues upon which the court was required to find were:
(a)whether the Occupiers' Liability Act 1985 (WA) introduced a statutory cause of action distinct from liability at common law;
(b)whether the cause of action in negligence was extinguished by the statutory cause of action;
(c)whether the indorsement was capable of supporting a cause of action under the Act.
The court held it was not necessary to decide the matters referred to in (a) and (b) because the indorsement was sufficient to support either or both.
When one contrasts the indorsement in the Watch Tower case and the present case it is notable that the former :
(a)identifies (correctly) the date the plaintiff sustained injury;
(b)the manner in which she sustained injury (a fall);
(c)the place where she fell and the fact that the plaintiff attended a meeting conducted by the first defendant and the premises were owned by the second defendant;
(d)that the plaintiff claimed damages on the basis that the defendants were negligent.
The contrast with the indorsement on the plaintiff's writ is stark.
On the 3 July 2019 the plaintiff filed a statement of claim. That statement of claim contains the details which is so sorely lacking in the endorsement of claim. Also filed was the affidavit of Mr Jardine, a lawyer and the employee of the plaintiff's solicitors, the general gist of which is to inform the court that in the opinion of the plaintiff's lawyers the defendant was well aware of the cause of action being pursued by plaintiff and any deficiencies in the endorsement of claim should not count against the plaintiff. That proposition ignores the fundamental reason why an endorsement of claim is required in an action and the potential impact that the details contained in the endorsement of claim can have in regard to Limitation Act defences and matters of that kind. 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 and then advance the proposition that none of this should really matter because the defendant should be taken to fully understand the cause of action being pursued. The process of preparing an endorsement is not onerous nor is it difficult. 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. 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.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer23 JULY 2019
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