Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd [No 3]
[2015] WADC 37
•2 APRIL 2015
ARGOSY STRATA PLAN SP 21513 -v- CHU UNDERWRITING AGENCIES PTY LTD [No 3] [2015] WADC 37
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 37 | |
| Case No: | CIV:1051/2001 | 16 JUNE 2014 | |
| Coram: | SWEENEY DCJ | 2/04/15 | |
| PERTH | |||
| 47 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out dismissed Leave given to amend statement of claim, except for loss of rent claim | ||
| PDF Version |
| Parties: | ARGOSY STRATA PLAN SP 21513 DOUGLAS RANKIN WISE CAROL JANETTE MCKEOWN DOROTHY MARGARET WISE CHU UNDERWRITING AGENCIES PTY LTD |
Catchwords: | Practice and procedure Strike out for want of prosecution Action on foot for 14 years Leave to amend statement of claim |
Legislation: | District Court Rules 2005 Rules of the District Court 2005 Rules of the Supreme Court 1971 |
Case References: | Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413 Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd [No 2] [2011] WADC 115 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Central Queensland Cement Pty Ltd v Hardie [1989] 2 Qd R 509 Chu Underwriting Agencies Pty Ltd v Wise [2012] WASCA 123 Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563 Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 Nationwide News Ptd Ltd v Wiese (1990) 4 WAR 263 Smith v Bank of Western Australia Limited [2010] WASCA 15 The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission [2004] WASC 23 Tyler v Custom Credit Corp [2000] QCA 178 Wise v Chu Underwriting Agencies Pty Ltd [2010] WADC 14 Wise v Owners of Argosy Court Strata Plan 21513 [2011] WASC 307 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
DOUGLAS RANKIN WISE
Second Plaintiff
CAROL JANETTE MCKEOWN
Third Plaintiff
DOROTHY MARGARET WISE
Fourth Plaintiff
AND
CHU UNDERWRITING AGENCIES PTY LTD
Defendant
Catchwords:
Practice and procedure - Strike out for want of prosecution - Action on foot for 14 years - Leave to amend statement of claim
Legislation:
District Court Rules 2005
Rules of the District Court 2005
Rules of the Supreme Court 1971
Result:
Application to strike out dismissed
Leave given to amend statement of claim, except for loss of rent claim
Representation:
Counsel:
First Plaintiff : (Settled in 2002)
Second Plaintiff : Mr G J Pynt
Third Plaintiff : Mr G J Pynt
Fourth Plaintiff : Mr G J Pynt
Defendant : Mr M J Feutrill
Solicitors:
First Plaintiff : Not applicable
Second Plaintiff : Momentum Legal
Third Plaintiff : Momentum Legal
Fourth Plaintiff : Momentum Legal
Defendant : Moray & Agnew
Case(s) referred to in judgment(s):
Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413
Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd [No 2] [2011] WADC 115
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Central Queensland Cement Pty Ltd v Hardie [1989] 2 Qd R 509
Chu Underwriting Agencies Pty Ltd v Wise [2012] WASCA 123
Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563
Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388
Nationwide News Ptd Ltd v Wiese (1990) 4 WAR 263
Smith v Bank of Western Australia Limited [2010] WASCA 15
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission [2004] WASC 23
Tyler v Custom Credit Corp [2000] QCA 178
Wise v Chu Underwriting Agencies Pty Ltd [2010] WADC 14
Wise v Owners of Argosy Court Strata Plan 21513 [2011] WASC 307
- SWEENEY DCJ:
Introduction
1 Cyclone Vance struck Exmouth on 22 March 1999. A number of dongas located in Murat Road Exmouth and part of Strata Plan 21513 were damaged. They were insured with the defendant, which did make payment of $87,600.45 less an excess of $1,000, but declined to pay more. On 26 April 2001, the 'Owners of Argosy Court Strata Plan 21513' (the strata company) as first plaintiff and Mr Douglas Wise as second plaintiff commenced proceedings against the defendant for 'damages arising out of the defendant's breach of its insurance contract with the plaintiffs in failing to indemnify and remedy the plaintiffs for damage caused to the plaintiffs' property …'.
2 Two applications were heard before me at the same time: the plaintiffs' application for leave to amend their statement of claim and the defendant's application to strike out that claim for want of prosecution. I will deal firstly with the defendant's application, but firstly a preliminary issue arose about which District Court rules governed the matter.
District Court Rules 2005 to apply
3 During discussions with counsel it emerged that, given that this matter was commenced in 2001, the District Court Rules 1996 would apply unless an order was made bringing the matter under the 2005 rules. It appeared from a reading of the court file that the 2005 rules have been applied to the matter for a number of years. It may be that somewhere in the history of this matter the court ordered that the 2005 rules were to apply, but I was unable to find such an order recorded. After discussions and with the consent of the parties, I made an order that this matter is governed by the District Court Rules 2005.
The defendant's application to strike out the claim for want of prosecution
(a) Failure to confer
4 Order 59 r 9 of the Rules of the Supreme Court 1971 (SCR) provides:
(1) No order shall be made on an application in chambers unless the application was filed with a memorandum stating –
(a) that the parties have conferred to try to resolve the matters giving rise to the application; and
(b) the matters that remain in issue between the parties.
(2) The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
5 The section is not complied with unless the parties have orally conferred by telephone, or face to face (see Civil Practice Western Australia vol 1 Kendall & Curthoys ed; LexisNexis Butterworths (the Red Book) [59.9.1]). If a party seeks that the requirement be waived by the court, it should file an application together with a memorandum containing a brief statement of the facts relied upon to support the waiver.
6 The Rules of the District Court 2005 (DCR) also provide for conferral by r 22 which provides:
(1) Before filing a summons to be dealt with in chambers the parties to the summons must, in good faith, attempt to resolve as many of the issues giving rise to the summons as possible.
(2) A person filing a summons to be dealt with in chamber must include in the summons or file with the summons –
(a) a certificate that the parties to the summons have conferred about the issues giving rise to the summons and have not resolved them; or
(b) a certificate that the parties to the summons have not conferred about the issues giving rise to the summons and the reasons why they have not conferred.
8 On the other hand, the court should not insist upon compliance where, to do so, would only result in the same application being filed again following conferral between the parties, incurring further delay and unnecessary cost.
9 In this case the defendant neither conferred, nor filed an application in the proper form asking the court to waive the requirement for conferral. The closest it came to conferral was to warn the plaintiffs' solicitors that, should they make application for leave to amend their statement of claim yet again, it would likely be met with an application to strike the claim out for want of prosecution.
10 After a deal of prompting by the court, the defendant's counsel did eventually make an oral application that the court both waive the requirement for conferral and waive the requirement for such an application to be made in writing accompanied by a memorandum.
11 It is fair to say that, had the defendant complied with its obligation to confer, the plaintiffs would not have consented to the action being struck out. It is equally plain that there is no concession that the plaintiffs could have made that would have satisfied the defendant. No amount of conferral could have narrowed down the issue to be determined.
12 The only prejudice claimed by the plaintiffs' counsel is that, had the defendant conferred, the plaintiffs may have arranged to have their application to amend their statement of claim heard first.
13 The matter of listing is of course a matter entirely for the court and, provided the defendant actually filed its application in time, the likelihood is that the two applications would have been heard together in any event. Indeed there was some behind the scenes scrapping between the parties with the registry as to which application should be heard first. It matters not in which order they are heard, in that, in any event, the court is being asked to determine the defendant's application in the knowledge that the plaintiffs seek to amend their statement of claim, and vice versa.
14 I see no practical purpose in insisting upon compliance with the rules by way of conferral between the parties. Were I to dismiss the defendant's application on that basis, there would be nothing to stop it simply complying with the rules and then filing an identical application. In those circumstances, the court waives compliance with the requirement for conferral and the requirement to file a written application to that effect.
(b) Legal principles
15 In Tyler v Custom Credit Corp [2000] QCA 178, Atkinson J of the Queensland Court of Appeal listed the factors the court should take into account in considering whether a matter should be struck out for want of prosecution, including:
(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2) how long ago the litigation was commenced or causes of action were added;
(3) what prospects the plaintiff has of success in the action;
(4) whether or not there has been disobedience of Court orders or directions;
(5) whether or not the litigation has been characterised by periods of delay;
(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
(9) how far the litigation has progressed;
(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
(11) whether there is a satisfactory explanation for the delay; and
(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
16 Following Tyler in Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2012] QSC 413, the court stated at [48]:
The court's discretion is not fettered by rigid rules and it should take into account all the relevant circumstances of the particular case. These were said by the court in Tyler to include
'the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.'
18 The court also quoted the Full Court of the Federal Court in Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 [36], in which the court said:
Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
19 The approach in this State is the same. In Smith v Bank of Western Australia Limited [2010] WASCA 15, Owen JA, having referred to The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398, summarised the principles in relation to a dismissal of an action for want of prosecution as follows [4]:
The discretion is not fettered by any absolute or inflexible rules. There are, however, five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
(a) the length of the delay;
(b) the explanation for the delay;
(c) the hardship to the plaintiff if the action is dismissed and the cause of the action left statute-barred;
(d) the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
(e) the conduct of the defendant in the litigation.
20 There is no requirement of misconduct or oppressive conduct on the part of the plaintiffs before it can be said that the interests of justice require a matter to be struck out for want of prosecution, if the effect of delay upon the defendant, whether there was misconduct or not, is so serious that to allow the case to proceed would inflict unnecessary injustice on him, for example because he cannot get a fair trial: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [69] - [70], [138] - [141]. But if there is misconduct on the part of the plaintiff of an intentional and contumelious kind, that will be a relevant factor in the exercise of the court's discretion: Smith [18] (Pullin JA).
(c) The history of the proceedings to date
21 I have gleaned the history from the multiple affidavits of Mr Wise, his de facto partner Carol McKeown, the third plaintiff, and their current solicitor Mr Marando as well as multiple affidavits from one of the defendant's solicitors Ms Bennett. I have also had regard to decisions of this court in Wise & Ors v Chu Underwriting Agencies Pty Ltd [2010] WADC 14 (Wager DCJ); Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd[No 2] [2011] WADC 115 (Yeats DCJ); the subsequent appeal in Chu Underwriting Agencies Pty Ltd v Wise [2012] WASCA 123; and Wise v Owners of Argosy Court Strata Plan 21513 [2011] WASC 307 (Hall J).
22 No objection was taken to my determining the matter on the affidavits, subject to the defendant objecting to statements in the affidavits, filed by the plaintiffs, which draw conclusions without providing the factual foundation for the conclusions stated. The defendant has no objection to my regarding such statements as assertions of the case the plaintiffs intend to put and that is how I have regarded those statements.
23 The case concerns cyclone damage to several demountables, or dongas, which were erected on lots which were part of a strata-titled complex in Murat Road, Exmouth. The property consists of 12 lots, owned by individual owners, and common property, owned by the individual owners of all the lots collectively as tenants in common. The actual structure of each donga forms part of the common property, the boundary of the individual lots being defined by the inner surfaces of the dongas.
24 The strata company has duties in relation to the management of the common property, including an obligation to insure it. The defendant is the insurance company with which the strata company had taken out an insurance policy.
25 Mr Wise and Ms McKeown owned units 2, 3, 4 and 4M (which is contained within unit 4). Mr Wise has deposed that he and Ms McKeown lived in unit 4M and the other units were rented out and they received income from them. Mr Wise's mother Dorothy Wise owned unit 1.
26 Cyclone Vance struck Exmouth on 22 March 1999 and caused damage to the complex generally and to the dongas and their contents. Mr Wise has deposed that the units were in good repair prior to the cyclone.
27 During the period of the cyclone itself Mr Wise was the manager or caretaker of the complex. He has deposed that he was present during and after the cyclone, that the damage was substantial and many of the units were full of water, with leaking roofs, smashed windows, disjointed door and window frames, water damaged carpets, damaged floors and tiles and damaged showers, basins and air-conditioners.
28 Mr Wise has also deposed that, in the days following the cyclone, the defendant first sent a loss adjuster, Blair Richards of Robertson & Co, to assess the damage, and then engaged John Carroll's Building Maintenance to undertake repairs to the complex. Mr Wise has deposed that he was present when Mr Carroll attended the complex in April 1999 and did some repair work, which Mr Wise criticises as insufficient. He alleges Mr Carroll failed to seal the roofs and ceilings, repair the window frames and weatherproof the window seals, amongst other things.
29 Mr Wise deposes that he requested the defendant to arrange for further remedial work, which was refused through the loss adjusters and, due to that refusal, he engaged other contractors in 1999 to complete the more urgent work to units 1, 2, 3, 4 and 4M, including repairing and re-sealing the roofs, replacing broken windows, fitting new screen doors, repairing flywire screens and repainting walls and ceilings but not, he says, re-sealing the windows and doors or repairing the frames. He deposes that he paid for all of that work and received some reimbursement from the defendant in January 2001 but that there was further work required. He says he obtained quotations for that further work but, due to the failure of the defendant to settle the claim or make the repairs itself, the work was not done and the units have gradually deteriorated. Presumably that would be his evidence at trial.
30 A claim having been made on the insurance policy, between March 1999 and January 2001 the defendant paid a total sum of $87,600.45 (less $1,000 for excess) by way of payments to third parties who carried out repair work and lump sum payments to the strata company and individual owners.
31 These proceedings were commenced promptly enough by writ of 26 April 2001. The indorsement of claim read:
The first and second plaintiffs' claim against the defendant, damages arising out of the defendant's breach of its insurance contract with the plaintiffs in failing to indemnify and remedy the plaintiffs for damage caused to the plaintiffs' property located in Exmouth arising out of Cyclone Vance on or about 22 and 23 March 1999.
32 In fact the strata company did not have any proprietary interest in the common property: The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission & Ors [2004] WASC 23 [36]. Prior to that decision, and at the time the proceedings in this matter were commenced, the common view was that the strata company was the owner of the common property. That, and the fact that it was the insured under the policy, no doubt explains why it was a party to the action.
33 Both plaintiffs were then legally represented by Messrs Bradley & Bayly. The defendant entered an appearance on 2 May 2001 and the plaintiffs filed their statement of claim on 11 June 2001. Paragraphs 8 to 10 pleaded that the defendant had engaged certain contractors to effect repairs to the property, it being an implied term of the insurance contract that such repairs or reinstatement would be performed within a reasonable period of time, that the contractors either did not do the repairs or did them in an unworkmanlike manner and, despite demand, the defendant had not reinstated the property or effected repairs in a workmanlike manner.
34 The particulars of damage related to every individual unit at the complex as well as air-conditioning, site works, telecom, a retaining wall, a bituminised area and a sign.
35 The statement of claim, by par 12, also pleaded loss of rental income by reason of the damaged units 'not being fit for human habitation or being in a state that is totally unacceptable to the reasonable requirements of holidaymakers'.
36 The defendant filed its defence on 27 June 2001. It admitted that contractors were engaged to do repairs to the property, said that any repairs and reinstatement works were undertaken within a reasonable period of time, given the conditions prevailing at the time, and otherwise denied the allegation that the contractors had failed to do the repairs or had attempted to repair the property in an unworkmanlike manner.
37 In October 2001, the plaintiffs changed solicitors, engaging Messrs Kott Gunning. A formal notice of change of solicitors was filed in January 2002.
38 By further and better particulars of statement of claim filed 12 April 2002 Kott Gunning, in answer to a request for particulars of the claim for lost rent, responded 'The Plaintiffs abandon paragraph 12 of their statement of claim and will not pursue any further their alleged loss of rental'.
39 On 13 June 2002 the strata company's claim was compromised. The settlement agreement consisted of a letter from Kott Gunning dated 13 May 2002 to the defendant's then solicitors and a response from them dated 13 June 2002. That settlement resulted in a consent order made 28 June 2002 whereby judgment was entered for the strata company in the sum of $16,800 and par 12 (being the claim for loss of rent) was struck out.
40 Much later, in a trial of certain preliminary issues, the defendants contended that such settlement prevented Mr Wise and the other plaintiffs who were later joined from pursuing their actions against it. That submission was rejected by Yeats DCJ, the trial judge at first instance, in 2011, and by the Court of Appeal in 2012. The Court of Appeal found (at [75]) that the objectively determined common intention of the parties was that Mr Wise, the only remaining plaintiff in 2002, would be free to pursue the balance of the claims in the proceedings, with the exception of the rent claim, which was abandoned, and the general works claim, which was the subject of the settlement, and that the settlement was not in full discharge of all claims for the loss and damage suffered.
41 Mr Wise was fully aware that his claim for loss of rent was abandoned and then struck out. In an affidavit sworn 25 June 2004, he deposed that, at the time that settlement was being discussed between the defendant and the strata company, various discussions took place regarding settling his claims as well and
as a result of those discussions, I believed that all matters would be sorted out in a relatively short period of time after those negotiations commenced and the owners of Argosy Court Strata Plan SP21513 settled their claim. Because of this belief I agreed that par 12 of the statement of claim, which did not fully plead details of the second, third and fourth defendants' losses, be struck out.
42 That puts paid to his suggestions in subsequent affidavits that he had not given instructions to Kott Gunning to abandon the claim for lost rent. Mr Wise is clearly bound by the actions of his then solicitors.
43 On 12 September 2002, Mr Wise was ordered to enter the matter for trial by 31 March 2003. He failed to do so. Kott Gunning ceased representing him on 2 May 2003. A first pre-trial listing conference took place in September 2003.
44 In January 2004, Messrs Talbot & Olivier began representing him. In the meantime Mr Wise had served on the defendant a minute of proposed amended statement of claim. He did not seek leave to amend his statement of claim but obviously the defendant's solicitors will have been required to consider the proposed amendments. Given that, in the application before me, the plaintiffs made a half-hearted submission that they did not require leave to amend their pleadings, the fact that Mr Wise did not, back in July 2003, seek leave to amend would not have meant the defendant could simply ignore the amendments. No doubt some costs were incurred each time he purported to amend, which he did multiple times.
45 In March 2004, Ms McKeown, Mr Wise's de facto partner, and his mother, Dorothy Wise, were joined in the action as the third and fourth plaintiffs respectively. During the time Talbot & Olivier represented the plaintiffs, six different minutes of proposed amendments to the statement of claim were served upon the defendant. In that regard, three special appointments were listed and adjourned, due to an expressed desire to file yet another minute of proposed amendments.
46 In February 2005, Talbot & Olivier got off the record. In June 2005, the plaintiffs served a new statement of claim. A hearing listed for 11 August 2005 was adjourned because, in the meantime, they had filed but not served another version of their statement of claim.
47 In September 2005 another version was served. Mr Wise, on behalf of the plaintiffs, and the defendant's solicitor appeared before Registrar Kingsley on 3 November 2005, who gave leave to the plaintiffs to amend their statement of claim in terms of parts of their 'new amended statement of claim', but not others.
48 One of the proposed amendments included reinstating the loss of rent claim which had been abandoned by Mr Wise back in 2002. The registrar informed Mr Wise: 'there is a loss of rent claim but I'm taking the view that as between you and CGU there's been an abandonment of that claim'. Mr Wise objected that he had never abandoned the claim but, not surprisingly, Registrar Kingsley ruled that it had been abandoned. Registrar Kingsley informed Mr Wise: 'it doesn't mean that the third and fourth plaintiffs can't make a claim but that will have to be individually particularised'.
49 The registrar made various orders, striking out Mr Wise's claim for lost rent (the order being expressly limited to Mr Wise's claim), giving leave to the plaintiffs to file and serve an amended statement of claim and ordering them to file and serve a new minute of amended statement of claim by 9 December 2005. He also ordered the plaintiffs to file brief submissions on a matter of law relating to the roofs.
50 On 15 November 2005 Messrs Unmack & Unmack filed a notice of appointment as the plaintiffs' new solicitors. The same day they served a new minute of proposed substitute statement of claim and, shortly thereafter, a notice accepting the defendant's brief submissions on the matter of law. Clearly Unmack & Unmack were apprised of the registrar's orders.
51 That substituted statement of claim simplified the plaintiffs' claim somewhat. It reduced the claim to one for reimbursement of the money Mr Wise had spent engaging other contractors to do repair work, together with a claim for the cost of replacing the carpet which, it was alleged, had not been properly installed. The claim was for a modest $12,737.92 and the cost of new carpet, together with interest.
52 Significantly, the statement of claim did not claim lost rent on behalf of any plaintiff. The original statement of claim (which, despite the many proposed amendments, still stood prior to this substituted statement of claim) had claimed damages for failure to make good and satisfactory repairs to the units. The substituted statement of claim merely claimed a liquidated sum for the work Mr Wise says he paid for and the cost of new carpet.
53 The defendant (unsurprisingly) did not take issue with that pleading and filed a substituted defence on 10 February 2006. Mediation was scheduled in April 2006, and was adjourned to enable the plaintiffs to obtain a building inspection report. Mediation was rescheduled for May 2006. The plaintiffs did not personally appear and their solicitor did not wish to proceed in their absence. In mid-2006 the plaintiffs' solicitor had advised the defendant's solicitors that communications had broken down between him and his clients. By January 2007, the plaintiffs had terminated his services.
54 At a listing conference on 12 March 2007, the plaintiffs foreshadowed a further application for leave to amend their statement of claim. The court ordered that any such application be made by 3 April 2007. It was not.
55 In June 2007, the plaintiffs engaged Messrs Butcher Paull & Calder. On 13 November 2007 they were ordered to file any application for leave to amend the statement of claim by 7 December. That timeframe was twice extended. They did ultimately file an application on 22 February 2008. On 30 March 2008, Registrar Kingsley ordered that a fresh minute be filed by 30 April. At the adjourned hearing of 12 May 2008 the registrar then required an affidavit in support to be filed. The matter was listed before a judge on 17 September 2008, but had to be adjourned because the plaintiffs' solicitor foreshadowed a further minute of amendments. The amendments substantially increased the claim by including a sum for further remedial work quoted at a cost of $150,513 plus GST based, Mr Wise deposed, on expert reports, particularly one from Robin Salter & Associates dated 11 February 2008, that were not available at the time the previous pleadings were drafted. The defendant challenged the weight to be given to the expert reports and invited the court to disregard them.
56 The matter was finally heard on 15 October 2008. Wager DCJ reserved her decision but subsequently, on 22 October, required the plaintiffs to file an affidavit within 21 days explaining the significant delay and why the plaintiffs were seeking to particularise damage which had not been included in previous pleadings.
57 On 25 November 2008, Mr Wise swore such an affidavit, deposing that 'the present application to substitute the Statement of Claim is the last amendment necessary to close the pleadings and put the parties in a position to test their contentions at trial'. Mr Wise subsequently swore an affidavit of 9 June 2009, expressed to be in substitution for the first, asking that it be disregarded. Plainly, short of some extraordinary matter going to the provenance of the earlier affidavit or the deponent's state of mind, the deponent cannot simply will an affidavit into non-existence. On 18 September 2009, Registrar Kingsley extended the time by which the defendant could file an affidavit in response to 20 October 2009. Ultimately the defendant chose not to file any affidavit.
58 On 10 February 2010 Wager DCJ granted leave to the plaintiffs to amend in terms of their substituted statement of claim (Wise & Ors v Chu Underwriting Agencies Pty Ltd). Her Honour did not accept the defendant's submission that the plaintiffs' expert reports should be disregarded.
59 In granting leave, her Honour made express reference to the fact that the statement of claim filed by Unmack & Unmack back in 2005 had omitted the claim for loss of rent and quantified the case in such a way that the plaintiffs considered the loss claimed to be too low and the pleadings too narrow.
60 In his affidavit of 25 November 2008, Mr Wise had deposed:
The present application to substitute the Statement of Claim is the last amendment necessary to close the pleadings and put the parties in a position to test their contentions at trial.
61 He gave a less emphatic assurance in his 'substitute' affidavit of 9 June 2009, but her Honour still placed some trust in, and put some emphasis on, that assurance. Her Honour concluded [22]:
Although the plaintiffs should be able to properly plead their case, this matter has now been delayed for long enough. The second plaintiff states at par 114 of his affidavit, 'I do not contemplate any further amendment to the pleadings'. In my view this view must be taken by the second plaintiff and will be taken by the Court (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175). If there is any further application for amendment then it would be argued that it would not be in the public interest. This matter should now proceed consistent with the principles of case flow management.
62 On 5 March 2010 the plaintiffs filed their amended statement of claim in accordance with the orders made by Wager DCJ. It contained no claim for loss of rent to any of the plaintiffs. That is the current statement of claim.
63 On 21 June 2010 the defendant filed its substituted defence.
64 On 13 July 2010 Ms Wise passed away. Her son inherited her estate and her rights in the action were ultimately assigned to him in February 2011. The court was advised of her passing, and the need for probate to be granted, at a hearing on 24 September 2010. The court was informed by the plaintiffs' solicitors that the matter was otherwise ready for trial.
65 On 14 September 2010, however, the Shire of Exmouth issued a notice to the plaintiffs requiring them to remove the units as dilapidated buildings.
66 Mr Wise deposes that, while the notice was challenged in the State Administrative Tribunal (SAT), the strata corporation settled with the Shire of Exmouth on 5 May 2011 on the basis that the units would be removed. Mr Wise says he attempted to challenge the settlement, but was unsuccessful in both the SAT on 23 September 2011 and then in the Supreme Court on 4 November 2010 [sic]. Actually all three plaintiffs were unsuccessful in the Supreme Court on 10 November 2011: Wise v Owners of Argosy Court Strata Plan 21513 [2011] WASC 307.
67 He says he was subsequently evicted from the units and had to leave Exmouth and understands the units have since been removed.
68 Meanwhile, in these proceedings, on 24 November 2010 the plaintiffs were ordered to file an updated index of expert reports by 3 December 2010. It was filed 10 days late on 13 December. At a directions hearing on 15 December 2010 Principal Registrar Gething scheduled a listing conference for 16 February 2011 and advised the parties a trial date would be set at that listing conference.
69 On 31 January 2011, the defendant's solicitors wrote to the plaintiffs' solicitors complaining of the inadequacy of the plaintiffs' expert reports, indicating an intention to object to their use at trial while also, however, objecting to any attempts by the plaintiffs to introduce new reports.
70 The parties were ordered to file certificates pursuant to DCR r43(3a) (certifying the adequacy of the pleadings) by 11 February 2011. The day before, the defendant amended its defence (amending a single paragraph) without opposition and the court ordered that the amended defence stand as the defence. It then filed its certificate as required, on time.
71 At the listing conference of 16 February 2011, the plaintiffs' solicitor indicated that, while their certificate had not been filed, they did not intend to make any further amendments. That was five months after the Shire of Exmouth had served its notice to remove the dongas as dilapidated buildings. The plaintiffs' solicitor also indicated they were still waiting on service of the defendant's expert report and the substitution of Mr Wise for his mother as fourth plaintiff.
72 Finally, the matter was set down for trial on 13 June 2011 for five days, with a directions hearing set for 15 March 2011. At the directions hearing, the defendant's views on the plaintiffs' expert reports were raised, together with the issues raised previously including inspection of the defendant's expert report.
73 By letter of 8 April 2011 the defendant requested discovery of all documents relating to the order by the Shire of Exmouth to remove the dilapidated dongas. That request was two months pre-trial and should not have been too onerous.
74 At a directions hearing of 16 May 2011 the plaintiffs' solicitor foreshadowed an application to adjourn the trial. He also raised the prospect of further amendment to the statement of claim to include the cost of the demolition of the dongas. He was ordered to file and serve any application to adjourn the trial by 20 May 2011.
75 On 2 June 2011 the plaintiffs filed their late application to adjourn the trial, based on a number of reasons. The plaintiffs' counsel of choice was unavailable for trial and, while alternative counsel had been found, that counsel required advance payment and the plaintiffs were also 'significantly in breach of the firm's retainer to pay legal fees'. Mr Wise expected to receive his inheritance shortly and the plaintiffs had a pending application to substitute Mr Wise for his late mother as the fourth plaintiff. That was opposed by the defendant, but only on the basis that it was concerned that its costs would not ultimately be paid by Mr Wise if he was substituted, as against the deceased estate. The plaintiffs also had a pending application to file a reply to the defence. Mention was also made in the submissions to the possibility of the plaintiffs incurring the cost of removal of the dongas. Mr Wise was still fighting the removal of the dongas at that stage.
76 The defendant opposed the application essentially on the basis of undue delay on the part of the plaintiffs. It submitted that, if the plaintiffs were unable to present their case for trial, then their claim should be dismissed for want of prosecution, although there was no formal application to that effect. The application to adjourn the trial was refused.
77 Shortly afterwards, on 9 June 2011, the plaintiffs filed an application seeking that the trial be confined to certain specific legal issues, namely whether the plaintiffs were covered by the insurance policy entered into between the strata company and the defendant and, if so, whether the settlement between the strata company and the defendant barred the remaining plaintiffs' claims and whether, if not, the damages were confined to the costs of repairs had those repairs been carried out with reasonable dispatch.
78 The defendant consented to that course of action, because those issues were a significant part of its defence and, if it were successful on those issues, the claim would be wholly defeated or very substantially limited in quantum. The trial went against the defendant on all four preliminary points: Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Ptd Ltd[No 2] (Yeats DCJ, delivered 27 July 2011). On 15 June 2012, the Court of Appeal upheld that decision in Chu Underwriting Agencies Ptd Ltd v Wise, except to the extent that the answer to the last preliminary point was set aside on the basis that the factual assumptions in the questions presented to the court were insufficient to enable the issue of contractual construction to be answered.
79 By 15 June 2012, then, the plaintiffs knew both that their fight to challenge the removal of the dongas had failed and their right to proceed against the defendant under the insurance policy, notwithstanding the settlement between the strata company and the defendant, had been upheld.
80 A directions hearing was listed in August 2012, but adjourned by consent to enable the parties to consider the prospects of settlement. Another was listed on 3 October 2012, but not attended by the solicitor for Mr Wise and Ms McKeown. The parties did however attend a directions hearing on 5 November 2010. A pre-trial conference was listed for 3 December 2012, but no-one attended on the plaintiffs' side. The same occurred on 6 February 2013.
81 As to that, Mr Wise has deposed (in his affidavit of 13 June 2014) that neither he nor his partner Ms McKeown were informed by his solicitors that the court had listed pre-trial conferences for 3 December 2012 and 6 February 2013 and says, had he been informed of the pre-trial conferences, he would have attended them.
82 He also deposed, however (in his affidavit of 29 April 2014), that, having been evicted from his units and having moved out on 4 November 2011, he and Ms McKeown then lived at a friend's house in Exmouth until May 2012, then in remote camps until March 2013, then at a remote camp south of Dongara, using the address of a local caravan park for the purpose of receiving mail and having a residential address. He appears to be implying then that, since May 2012 up until late April 2013 at least, his and Ms McKeown's ability to receive and make telephone calls and to send and receive mail has been impaired.
83 At a pre-trial conference on 13 March 2013, the plaintiffs, still represented by Butcher Paull & Calder, raised their intention to seek to amend the statement of claim to include a claim for the cost of replacing the dongas.
84 Mr Wise has deposed (in his affidavit of 29 April 2014) that, between the trial of the preliminary issues and the Court of Appeal handing down its decision in June 2012, it would have been unreasonable for him or Ms McKeown to seek leave to amend their statements of claim because, had the appeal gone against them, they would not have been permitted to continue with the action in any event. Notice was not given, however, until nine months after the decision of the Court of Appeal.
85 They were ordered to file any application for leave to further amend the statement of claim by 10 May 2013. It was filed a week late on 17 May 2013.
86 The proposed amendments increase the plaintiffs' claim from around $162,000, which had been based on the estimated cost of repairs, to now $1.1 million, based on the total loss of the dongas and the cost of demolishing and re-building them. That figure does not derive from the pleadings themselves but is mentioned in Ms Bennett's affidavit of 11 March 2014.
87 At a further directions hearing of 27 May 2013, Registrar Kingsley made orders substituting Mr Wise for Ms Wise as the fourth plaintiff. He also ordered the plaintiffs to file affidavits in support of their application generally, and in support of an extension of time, by 21 June 2013. The affidavit was filed a week late, on 28 June 2013. He also ordered that the application for leave to amend be adjourned to a judge for hearing.
88 Due to a discrepancy between the registrar's notes and the orders actually made in relation to the significant issue of the substitution of Mr Wise as fourth plaintiff, that order was not extracted until January 2014. That issue involved some emails going back and forth between the court and the plaintiffs' new solicitors.
89 Mr Wise has deposed (in his affidavit of 29 April 2014) that, around August 2013, he and Butcher Paull & Calder disagreed over the issue of costs and, while he had asked them to progress his and Ms McKeown's application for leave to amend their statement of claim, he believes they did not take any positive steps to progress that application. The issue with Butcher Paull & Calder could not be resolved.
90 That accords with the court file. Between 28 June 2013 and 10 December 2013, it appears nothing was done to facilitate listing the plaintiffs' application for leave to amend. Meanwhile, the defendant's solicitor had written to Butcher Paull & Calder on 31 July and 7 August 2013 and also spoken to Mr Butcher on 15 August and 28 August 2013 and left additional messages, all with a view to pushing the plaintiffs to get their application listed for hearing.
91 Mr Wise deposes that in October 2013 he and Ms McKeown engaged DG Price & Co to brief counsel for advice and hence Mr Pynt, current counsel, was engaged. Because DG Price & Co did not have the time to represent the plaintiffs, it recommended the plaintiffs' current solicitors Momentum Legal Pty Ltd.
92 On 10 December 2013, Momentum Legal Pty Ltd began acting for the plaintiffs. Mr Morando, the plaintiffs' current solicitor, has deposed that, several days prior to that, he telephoned the defendant's solicitors to foreshadow that he would be taking over the conduct of the matter and would be filing an amended minute of amended statement of claim. December 2013 to March 2014 were then spent obtaining documents from the plaintiffs' previous solicitors, reviewing them and drafting proposed amendments to the statement of claim and an amended chamber summons. Those documents were sent to the defendant's solicitors on 11 March 2014 for the purpose of conferral.
93 On 18 March 2014 Mr Marando was served with the defendant's application to strike out the claim. The day after, he filed and served the plaintiffs' amended minute of proposed amended statement of claim.
94 The court file indicates much emailing to the court by the parties about the listing of the two applications, and complaining of non-conferral by the defendant, which it is unnecessary to detail. It was June 2014 before the plaintiffs' application filed 17 May 2013 was actually heard, together with the application to strike out. Since June then the matter has been with the court for decision.
(d) Use of the defendant's expert report
95 Expert reports have been exchanged between the parties. The defendant objects to pars 117 and 118 of the affidavit of Mr Wise of 28 June 2013 in which he makes reference to an expert report disclosed by the defendant. The paragraphs complained of state:
The defendant obtained a report from another engineer, Peter Bruechle in January 2011, and I refer to his substance of evidence filed in these proceedings. The engineers differ in their conclusions as to the cause of the deterioration of the units but both agree that they should be replaced.
96 Similarly, the defendant objects to reference in the plaintiffs' solicitor Mr Marando's affidavit of 26 March 2014 in which he refers to the expert report of Mr Bruechle to assert that Mr Bruechle inspected the units on 1 October 2010, provided a report to the defendant's solicitors on 31 January 2011 and 'opined that "the Units were unsafe for human habitation"'.
97 The defendant objects to the use of its expert's report for any purpose other than the plaintiffs being appraised of the case they need to meet at trial and, submits that, while it may be uncontroversial to assert that the dongas deteriorated and have been removed, the plaintiffs cannot rely upon the defendant's expert report to establish that fact before the court when the defendant may or may not lead that evidence at trial.
98 That proposition is based upon the decision of Seaman J in Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563, 585. Seaman J summarised the issue and ruled as follows:
In the course of the trial two questions arose under O 36A of the Rules of the Supreme Court 1971. First, counsel for the plaintiff sought to produce the expert report of a valuer which had come into his possession as a result of an order for the exchange of expert evidence pursuant to O 36A. The defendant's counsel made it plain that he did not intend to call the witness.
Counsel for the plaintiff proposed to put the report to [his own witness] so as to found a comment in his final address that the defendant had in its possession an expert report which favoured the plaintiff's case, was able to call the evidence of that expert and did not do so.
That course was objected to and I upheld the objection for reasons which I did not fully articulate then but which I think it important to articulate now.
When the court orders the exchange of expert evidence pursuant to O 36A it derogates from a party's legal professional privilege by authority of s 32A of the Evidence Act 1906, and once the exchange has been made, the privilege is lost by virtue of O 36A, r 7.
The court has ample inherent power to protect its process from abuse, and in my opinion it is an abuse to use expert evidence exchanged O 36A for any purpose other than preparation of and conduct of the case to meet it.
In my view to permit Mr Spencer to comment on the report so as to reveal the valuation which it contained would have resulted in an abuse of the process of the court.
99 The issue was also considered in Central Queensland Cement Pty Ltd v Hardie [1989] 2 Qd R 509, where McPherson J granted an injunction against a defendant by itself, its servants and agents, from using or permitting or causing the use of a witness report exchanged pre-trial 'for the purpose of furthering a public debate, or for any purpose except for the proper conduct of the litigation'.
100 In that case, persons connected with the defendant had clearly provided a witness statement disclosed by the plaintiff for the purposes of litigation to members of the media, so that the witness statement was then being used in the course of a continuing public debate over the rights and wrongs of the matter that was the subject of litigation. McPherson J applied, by analogy, the use of a document produced on discovery in an action:
As to such a document, it is well settled that a party who inspects a document so discovered and produced does so under an implied undertaking or obligation that he will not use it for a collateral or ulterior purpose: see Nicol v Brisbane City Council [1969] Qd R 371, 377; Harman v Home Office [1983] 1 AC 280, at 304, and authorities there cited.
… The underlying principle is in my view plain enough. It is that a document furnished for use for one purpose may not legitimately be used for another. That is, I conceive, what was meant by Lucas J when, in Nicol v Brisbane City Council, he spoke of not using the document for any 'collateral or ulterior purpose'. I take that to mean any purpose collateral or ulterior to the purpose which the document or its production or delivery is intended to serve. In this case there can be no doubt that that purpose is the proper conduct of the litigation.
I am therefore in no doubt that the undertaking applies equally to the witness statement by Mr Town as it would to any other document produced by one side to the other for the purpose of litigation.
101 I accept the defendant's submission that the plaintiff cannot rely upon the defendant's expert report to establish facts before me, given that that expert witness may ultimately not be a witness in the case. Quite apart from any issues of abuse of process, to do so could easily lead the court into error if such a report were to be the basis of the factual finding upon which some decision is made as to the merits of the case, when that evidence may ultimately be unavailable for the purpose of determining the merits of the case.
102 There is another issue here, however, to be considered. Part of the defendant's argument that the case should be struck out for want of prosecution is that it is impossible for there to be a fair trial, given the extensive delay between the events in question and the likely giving of evidence by any witness. The defendant concedes that it commissioned an expert to inspect the units in October 2010 and that he has prepared a report, but objects to the content of that report being used. In her affidavit of 4 June 2014, Ms Bennett of the defendant's solicitors has deposed
… the plaintiffs seek to introduce new allegations concerning structural damage to the rooves, walls and floors of the units. At the time at which the demountable structures that comprised the units were inspected by the defendant's expert these allegations had not been made and the expert was not specifically requested to investigate the extent to which there was evidence that such damage had been caused during the cyclone. It is not now possible to obtain evidence of that nature given that the demountable structures have been demolished.
103 The plaintiffs submit that the amendments they seek to make insofar as they relate to pleading damage to roofs, walls and floors cannot take the defendant by surprise when those issues are covered by the defendant's expert report. The plaintiffs argue that the court ought to consider the content of the expert report to assess the substance of the claim being made by the defendant that it is unable now to get a fair trial given that, the dongas having been destroyed, its expert cannot give evidence of these various issues.
104 The defendant having asserted this by Ms Bennett's affidavit, it cannot now complain of the court looking to the expert report to examine the extent to which, if any, the defendant's expert has addressed the issue of damage to the roofs, walls and floors. The report is partly the basis upon which Ms Bennett has made the assertion.
105 To that extent, quite apart from the loss of privilege which attends the exchange of the report pursuant to O 36A r 7 SCR, privilege has been waived for this narrow purpose, and the court is entitled to consider the basis of the assertion made.
106 It is no abuse of process for the plaintiffs to ask the court to consider the defendant's expert report for this narrow basis. This is a situation quite unlike that considered in either Doubikin Holdings Pty Ltd v Grail Pty Ltd, in which the plaintiff appeared to be either trying to tender hearsay expert evidence by a backdoor method, or unfairly casting aspersions on the other party, or Central Queensland Cement Pty Ltd v Hardie, in which the report was being used for a purpose irrelevant to the court.
(e) Should the plaintiffs' claim be struck out for want of prosecution?
107 It is obvious there has been significant delay in prosecuting the claim. Cyclone Vance struck in 1999 and it is now 2015. Allowing that the plaintiffs' previous solicitors filed an application to amend the statement of claim on 17 May 2013, that was 11 years after the event and there was delay in then pursuing that application, before the current solicitors amended the proposed amendments. Although the proceedings were instituted promptly enough, the proceedings overall have been characterised by lengthy delays when the plaintiffs have been unrepresented, multiple attempts to finalise the statement of claim even when they have been represented, and modest and not so modest delays in attending to the filing of documents ordered by the court.
108 The delay in both filing the application to amend the statement of claim on 17 May 2013 and delay in then pursuing that application is barely explained, by periods of the plaintiffs being unrepresented, by difficulties arising between the plaintiffs and their solicitors over their perception of their claim, over mounting costs and the instability of the plaintiffs' accommodation, these factors causing a breakdown in communication between the plaintiffs and their solicitors and also, I infer, a lack of motivation on the part of the solicitors to incur further costs.
109 Although Mr Wise has not bluntly claimed impecuniosity, it is implicit in his affidavits that he is not a man of means, both in his claims that he could not afford to fully attend to any repairs needed to the units and from the nature of his and Ms McKeown's accommodation, staying at remote camps with friends for extended periods. That situation, the plaintiffs at least would argue, arose because their own accommodation fell into a dilapidated state and could neither be rented out nor inhabited by them.
110 The delay is explained, though not very convincingly. I am satisfied it was not contumelious. That is of no great comfort to the defendant.
111 There is and will continue to be prejudice to the defendant occasioned by the length of the proceedings to date. That impact is to be considered not just in relation to the more recent delay, but the delay over the history of the proceedings.
112 Any potential witness from the loss adjuster, Robertson & Co, engaged by the defendant after the cyclone, will be required to cast his mind back at least 16 years. Memories fade, particularly over such an extended period, and so the defendant's case at trial, apart from its expert witness, is likely to be heavily reliant on business records. That difficulty will not be shared equally with the plaintiffs, who lived in the units until 2011, and are not involved in multiple such matters, unlike, presumably, the loss adjusters. The impact of time is more likely to adversely affect the memories of the defendant's witnesses, but it may also have impacted on the objectivity of the plaintiffs. Numerous criminal trials conducted in this court involve witnesses giving evidence many years after the events in question, however with similar issues of credibility to contend with. While the impact of delay on the witnesses' memories and reliability may be a significant factor for the trial judge to consider, I consider it is still possible for the trial to be a fair one.
113 It appears from Ms Bennett's affidavit of 11 March 2014 that the loss adjuster may have destroyed its file, although not before a number of documents were provided in discovery. Given that all relevant documents that are not privileged ought to have been discovered, that may not occasion much disadvantage to the defendant but, in any event, that is plainly not the fault of the plaintiffs. In addition, Mr Carroll, the man who did repairs to the units, has passed away. He died before the writ was even issued, however, and so the defendant has always had to deal with that disadvantage, which does not worsen with time.
114 There is the insidious prejudice that arises from the delay. The defendant has had these proceedings on its books, as it were, for 14 years, not knowing whether it is ultimately to pay nothing further, or a modest sum, or a considerable sum in damages. As the plaintiffs attempt to finalise their statement of claim, the defendant's potential liability grows. It is entitled to have the matter brought to some sort of conclusion. The interests of justice require that there be finality in litigation.
115 I consider the case to be a borderline one. There is much to recommend the defendant's application. There are, however several factors, each of which weigh against granting the defendant's application, and the combined effect of which persuade me that I should not grant it at this time.
116 The first and most significant is that the matter has gone to a trial of preliminary issues and a significant plank of the defendant's case has been rejected by not just the first instance judge, but the Court of Appeal. There has been no appeal from that decision. It has therefore been finally determined that the plaintiffs are persons to whom the insurance policy extends cover, they are entitled to make the claim against the defendant and their claim (aside from Mr Wise's loss of rent claim) has not been extinguished by the settlement reached in 2002. Of course there are other significant issues yet to be determined.
117 Second, the defendant consented to the trial of the preliminary issues in lieu of a trial of all of the issues. There is no transcript before me but, according to the affidavit of Ms Bennett sworn 22 July 2013, the plaintiffs' application for an adjournment of the scheduled trial was dismissed. According to the judgment of Yeats DCJ both parties then consented to the trial of the preliminary issues.
118 As mentioned earlier, there was potentially significant benefit to the defendant in that course of action because, had it been successful in its arguments, the plaintiffs' claim would have been wholly defeated without the need to inconvenience witnesses nor incur costs which might not have been fully recovered. It was not an unreasonable course to take, but it does mean that the trial of this matter might have been concluded in 2011, but was not. The defendant then appealed, causing some further delay of a year.
119 Third, granting the defendant's application will shut the plaintiffs out from litigating their claim, when it is uncontroversial that Cyclone Vance struck the complex and that some damage was occasioned, given that the defendant paid out some $86,000 for repairs, and it is settled that the plaintiffs are covered by the insurance policy. A reading of the plaintiffs' reports, both expert and not, suggests the case is not doomed to failure, although any assessment of their chances is impossible without actually hearing the evidence.
213 That inference must have been cemented when the plaintiffs' solicitors in 2008, Butcher Paull & Calder, sought amendments to the statement of claim, substantially increasing the claim, supported by the affidavit of Mr Wise sworn 25 November 2008 deposing that 'the present application to substitute the Statement of Claim is the last amendment necessary to close the pleadings and put the parties in a position to test their contentions at trial'. There was no claim for loss of rent.
214 It was not until March 2014, well over five years after that affidavit, and more than eight years after Registrar Kingsley announced that Ms McKeown and Ms Wise could plead a loss of rent claim, that the plaintiffs sought to include such a claim.
215 As the claim itself, Mr Wise has deposed (in his affidavit of 12 June 2014) that from April 1997 (in the case of units 3 and 4) and May 1998 (in the case of units 1 and 2) he and Ms McKeown were renting out their units to members of the public. He deposes that the records of those rentals were kept in a single book recording the names of the guests, dates, amounts paid etc. Payments were received by cash or credit card and, if paid by card, deposited into a Bankwest account. He further deposes that he and Ms McKeown used that book to prepare their lost rent claim in their amended statement of claim dated September 2005. He deposes that the record book was at the units when he was evicted by police at short notice in late 2011. He was only able to take limited possessions and the record book was left at the units. The locks were then changed and he says he does not know what has occurred to the book.
216 One gathers then that the plaintiffs propose to use the September 2005 pleading as secondary evidence of the rent book. He deposes that, if the plaintiffs are permitted to plead their lost rent claim, he will ask Bankwest to provide him with the bank statements for the account.
217 The 'Plaintiffs New Amendment Statement Of Claim' prepared in September 2005 contains a schedule said to be current to 31 May 2005 of the rent earned from units 1, 2, 3 and 4 for the years 1998, the year prior to Cyclone Vance, through to 2005.
218 Taking 1998 as a guide for the rent earned prior to the damage to the units, the figures claimed in the schedule do provide some logical basis for why Butcher Paull & Calder may have made a forensic decision not to pursue the loss of rent claim.
219 Unit 1 produced rental income equal to or above that earned in 1998 every year from 1999 - 2003. In 2004, the unit produced rental income of $4,350.00, less than the $5,334.84 earned in 1998, but over only 69 nights, as opposed to the 143 nights it was rented out in 1998, suggesting it was being rented out for almost twice the price per night. It was only in 2005 that there was a noticeable drop not reasonably accounted for by the fact that the 2005 figures only span five months.
220 Unit 2 produced rental income equal to or above that earned in 1998 in 1999 - 2003. In 2004, it produced $5,615.00, less than the $8870.00 earned in 1998, but again over 69 nights as opposed to 143 nights in 1998, again suggesting it was being rented out at a higher rate. Again, the rent dropped off in 2005.
221 Unit 3 produced rental income equal to or above that earned in 1998 in 1999 and 2000, and earned substantial rent in 2001 and 2003. It produced noticeably less income in 2002 and 2004, although those figures still compared very favourably to the rent produced on unit 1 and were similar to that produced on unit 2. They also indicate the unit was being rented out at a higher average rate than in 1998. Again, the rent dropped off considerably in 2005.
222 Unit 4 produced rental equal to or above that earned in 1998 in 1999 and 2000, produced substantial income in 2002 and 2003 and produced less income in 2001 and 2004, but again reflecting it was being rented out at a higher average rate than in 1998. The rent dropped off considerably in 2005.
223 Even allowing that the extent of the impact on the rental may not have been felt until 2005 and that it may not have seemed worth pursuing until then, the plaintiffs have waited a further eight years to seek this amendment.
224 Any figures post-2005 must, it seems, be derived entirely from a bank statement which is unlikely to provide information sufficient to enable any analysis of the rates charged or the total income earned, given that it excludes any cash payments.
225 A deal of emphasis has been put on the comments by Registrar Kingsley in 2005 and the claim by Ms McKeown that she was unaware he had commented that she could claim for loss of rent. No information can be put before the court as to what Ms Wise may or may not have understood. But that is reversing where the responsibility lies for the choices a party makes. It is not for the court to advise a party as to what claims he or she may make, or encourage a party to make a particular claim. The plaintiffs have been legally represented for much of the history of this matter. A simple search of the court file, if necessary, would have revealed that the order Registrar Kingsley made was limited to Mr Wise's claim for loss of rent. There is no satisfactory explanation offered for the failure to make the claim for loss of rent between November 2005 and March 2014.
226 The loss of rent claim raises issues about the market for holiday accommodation over the entire time span of 1999 to 2011 for the region, and prior to that for comparison purposes. It raises the issue of whether the accommodation was competitively priced, given that the schedule suggests the average nightly rate increased quite noticeably. It raises the issue of what standard of accommodation the holidaymaker expected in donga-style accommodation, what other accommodation there was in the region during the period claimed, and whether these units were competitive in other ways such as location, cleanliness, amenities, advertising and ease of booking. It raises the issue of whether other donga owners in the same complex suffered loss of rent and to what extent and for what reasons. It also raises the issue of why the post-cyclone rental income actually increased in some years. It is likely to require the discovery of financial records such as taxation returns.
227 To expect the defendant to now meet such a claim by investigating the above issues, or simply take on trust the secondary evidence from a book now lost, is utterly unreasonable, particularly in circumstances where the defendant had been entitled to trust that no such claim would be made by Mr Wise after he consented to the claim being struck out in 2002, and that any such claim on the part of Ms Wise and Ms McKeown would have been incorporated into the pleadings many years ago, particularly after it was raised in the 2005 attempt to amend the statement of claim and then apparently abandoned after that.
228 The prejudice to the defendant is not curable by confining the amendment to the loss of rent after the removal of the units, which occurred obviously more recently, in that the extent of the loss of rental is influenced by the rental that could be earned in the years prior to that removal, raising exactly the same issues for investigation. Nor is it curable by any order for costs.
229 Nor is it curable by the defendant taking extra time and delaying any trial of this matter further in order to fully investigate the issues raised. The likelihood is that the ability to investigate most of these issues is seriously compromised or made impossible by the delay in seeking to add this amendment. It is unlikely at this stage that there will be any ability to speak to any individual regular guests. The ability to investigate the state of the accommodation market in the region all these years later is likely to be poor.
230 There is no suggestion that the plaintiffs have delayed in seeking this amendment for tactical reasons, and there is no pending trial which has been upset by the application, but that is of no comfort to the defendant. This is not an amendment required to cure some defect in the pleadings as they currently stand. Refusal to allow the amendment may well result in the plaintiffs being deprived of a claim of some value, should they be successful overall in the case, and the claim will be statute-barred but, as against that, the defendant is placed in a position where it must either struggle to meet this claim, years after the opportunity to both properly and efficiently investigate the issue has passed, or it must simply fall back on an argument at trial that the evidence is unsatisfactory. Justice to one party may well mean some injustice to the other, but the burden is upon the plaintiffs to persuade this court to allow the amendment and the delay here is inordinate, unexplained, and will occasion prejudice to the defendant which cannot be cured.
231 While the plaintiffs have been given leave to make most of the amendments they seek, and so a degree of delay is inevitable, that does not provide sufficient basis for allowing this amendment where the prejudice to the defendant goes well beyond occasioning further delay.
232 I refuse leave to amend to add the claim for lost rent.
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