Amber v Flemington Fields Pty Ltd - [2002] WADC 209

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: AMBER -v- FLEMINGTON FIELDS PTY LTD [2002] WADC 209

CORAM: LA JACKSON DCJ

HEARD: 2 OCTOBER 2002

DELIVERED : 9 OCTOBER 2002

FILE NO/S: CIV 3755 of 1999

BETWEEN: GEOFFREY AMBER
Plaintiff
AND
FLEMINGTON FIELDS PTY LTD (ACN 009 240 635)
Defendant

Catchwords:

Practice and procedure - Amendment of pleadings - Turns on own facts

Legislation:

Limitation Act 1935

Result:

Pleadings amended

Representation:

Counsel:

Plaintiff: Mr S Singh
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: John G Staude

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

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397
Commonwealth v Verwayen (1990) 170 CLR 394
Cropper v Smith (1884) 26 Ch D 700
J C Decaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd [2002] FCA 562
Ketteman v Hensel Properties Ltd [1987] AC 189
Ketter v Hensel Properties Ltd [1987] AC 189
Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Mehta v CBA (1990) ATPR paras 41-026
Rowan v Cornwall & Ors (No 4) No SCCIA-90-1481 [2001] SASC 348
Tildesley v Harper (1878) 10 Ch D 393

LA JACKSON DCJ:

This is an appeal from a decision of a Deputy Registrar who dismissed an application by the plaintiff to amend his statement of claim. It is a hearing de novo.
Although there are no written reasons given, I was advised that the reason given by the Deputy Registrar was due to a lack of particularity in the proposed additions to the statement of claim. In an endeavour to overcome that difficulty a further minute of proposed reamended statement of claim was filed on 6 August 2002 and the plaintiff sought to argue the appeal on the basis of this fresh document. The defendant agreed that was a reasonable course. Accordingly, in substance, this is simply an application by the plaintiff to amend his statement of claim in accordance of the minute dated 6 August 2002.
The factual background to this case is fairly straightforward. The plaintiff's claim is that he was employed by the defendant as a truck driver. On 9 February 1996, in the course of his employment, he was at the road train assembly area at Northam. As I understand it, he was driving a prime mover to which a road train was to be attached and was endeavouring to link up to one of the trailers. The trailers were loaded with bales of wool. The plaintiff drove the prime mover and at least one of the trailers around the assembly area in order to enable him to link up when the truck rolled over. The plaintiff claimed it did so because either the trailer was overloaded or because the load was not properly secured. As I understand it, the defendant denied such negligence but claimed the truck rolled because the plaintiff drove too fast.
The plaintiff now seeks to amend his statement of claim to allege that he was fatigued due to having driven excessive distances and that his fatigue reduced his capacity to concentrate which caused or contributed to the trailer rolling over.
The application before the Deputy Registrar was made more than six years after the date upon which the cause of action arose. The defendant did not seek to argue the application of O 21, r 5(5) and to seek to avoid the amendment on the basis it was beyond the limitation period pursuant to s 38 of the Limitation Act 1935.
The plaintiff in an affidavit sworn 26 June 2002 set out the details of what he described as being excessive work and claimed he was fatigued. He did not in the affidavit specifically say that the fatigue caused a lack of concentration or the way in which that caused or contributed to the rolling of the trailer. Counsel for the defendant complained about that lack of specificity but in the end I think it not to be a matter of great moment.
The plaintiff explained that the delay in putting forward the allegation related to fatigue by saying that it did not occur to him that his own fatigue and associated matters may have been a cause of the accident. He said that he had moved house on numerous occasions and from time to time lost touch with his solicitors. He said the partner handling the matter resigned in February 2002 and it was not until a detailed discussion occurred between himself and the solicitor who took over the conduct of the matter that the importance of fatigue dawned on him.
The principles upon which the Court should act are fairly straightforward. They have been usefully summarised by Kirby J in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, 167 to 172.
In summary the paramount consideration continues to be justice as between the parties. The parties are entitled to have the true issues and the real merits of the case determined. Case flow management principles are a factor in the consideration of such applications but they will not be permitted to prevent a party in an appropriate case from being able to frame its pleading as it thinks proper for its case.
In this case the defendant strongly argued that the new case based on fatigue was inherently weak. It argued that in such a case it is necessary for the plaintiff to in effect mount a case to demonstrate the strength of its case because unless it was as strong case there was no injustice in failing to allow the amendment. I can see no such principles in the decision of Kirby J. Perhaps if the proposed amendment is to plead a case which is plainly frivolous such a comment could be made. In this case the plaintiff has not produced any material which would suggest that fatigue could have been a factor in the rolling over of the trailer. This is not a case of a long distance lorry driver losing concentration or falling asleep and running off the road. Whilst the plaintiff has not sought to mount a case at this stage, neither has the defendant brought any material to show that the plaintiff's case cannot succeed.
In the circumstances it seems to me the basic principles would allow the plaintiff to argue the case he seeks to make out.
The plaintiff is a truck driver. His contact with his solicitors has obviously been intermittent. I consider his explanation as to the delay in raising the matter to be reasonable. This does not appear to be a case in which the plaintiff is attempting to use the processes of the Court in any way to abuse them.
The defendant in general terms complained that the new pleading would require additional enquiries to be made. That may well be so. The defendant's records of the journeys are still in the possession of the defendant so there is no prejudice in that regard. No material has been put forward by the defendant as to the death or disappearance of any vital witness with respect to this aspect. It does not seem to me to be an issue that would add greatly to the length of the trial or with respect to which any extensive interlocutory proceedings are likely.
The case management principles are of significance. However, in this case trial dates have not been set and accordingly public interest issues such as the loss of judicial time do not arise.
The plaintiff concedes he is liable to pay any costs thrown away by reason of the amendment.
For these reasons I consider the application should be allowed to amend the statement of claim in accordance with the minute dated 6 August 2002.
The minute with which I was dealing and the minute with which the Deputy Registrar was dealing are different and it may be that if the application has been in its current form the Deputy Registrar would have permitted it. I will hear the parties as to the proper form of the order and as to costs.