Berg v Hamersley Iron Pty Ltd

[2002] WADC 239

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BERG -v- HAMERSLEY IRON PTY LTD [2002] WADC 239

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   29 OCTOBER 2002

DELIVERED          :   18 NOVEMBER 2002

FILE NO/S:   CIV 2390 of 2001

BETWEEN:   ALLAN LEONARD BERG

Plaintiff

AND

HAMERSLEY IRON PTY LTD
Defendant

AND

ROCHE MINING PTY LTD
First Third Party

AND

CSR LTD
Second Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application by defendant for leave to amend prior to entry for trial - Defendant seeks to rely upon s 175 of the Workers' Compensation and Rehabilitation Act

Legislation:

Workers' Compensation and Rehabilitation Act

Result:

Application refused

Representation:

Counsel:

Plaintiff:     Mr S Melville

Defendant:     Ms C A Elphick

First Third Party           :     Mr J K Bennett

Second Third Party       :     No appearance

Solicitors:

Plaintiff:     Chapmans

Defendant:     Phillips Fox

First Third Party           :     Minter Ellison

Second Third Party       :     No appearance

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

Nil

Case(s) also cited:

Baume v The Commonwealth (1906) 4 CLR 97

Dare v Pulham (1982) 148 CLR 658

The State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146

Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

1. DEPUTY REGISTRAR HARMAN:  The plaintiff's claim is for damages for personal injuries sustained in October 1995.

2. According to the statement of claim the plaintiff was injured at the defendant's work site during the course of the plaintiff's employment with a third party.  By its defence filed on 20 December 2001 the plaintiff is put to proof of his case.

3. On 19 September 2002 the defendant made the application presently before me to amend its defence.  By the amendment the defendant raises a number of new allegations however at the hearing the only part disputed related to the proposed par 11 which is as follows:

   "By virtue of the matters pleaded in paragraphs 5, 6, 7 and 8 above the defendant is a principal for the purposes of s175 of the Workers' Compensation & Rehabilitation Act ("the Act") and deemed by that section to be the plaintiff's employer for the purposes of the Act."

4. The jurisdiction provided to the Court to allow for amendment of a pleading calls for the exercise of discretion.  It is appropriate to consider that the onus is upon the applicant.

5. In support of the application the applicant relies upon the affidavit of Catherine Anne Elphick and in particular, par 26 which is in the following terms:

   "On 19 June 2002, the Full Court of the Supreme Court of Western Australia delivered its reasons for decision in Koljibabic v WMC Resources Ltd; Hewitt v Benale Pty Ltd [2002] WASCA regarding the application of the restrictions contained in Part IV Division 2 of the Workers' Compensation & Rehabilitation Act to principal contractors who are deemed employers under s175 of the Act."

6. In its submissions the defendant canvasses the impact of what are described as "case flow management principles and objects stated in Order 1 Rules 4A and 4".  For myself I have some difficulty with the proposition that there are any principles that support case management.  It is simply a strategy adopted by the Court by which parties are encouraged to bring on an action for trial at a relatively early stage after the commencement of the action.  In my opinion case flow management has little, if any, bearing on the application.

7. In my opinion it is more appropriate to focus upon the considerations that engage with the terms of the amendment including the evidence of the applicant and the impact on the parties of the proposed amendment on the success or failure of the application.

8. The effect of the proposed amendment is to plead an allegation which would provide a complete defence to the defendant.  The proposed allegation, although it raises only a single allegation, is properly considered to be significant.

9. In the event that the application is not successful the action will simply continue along the path mapped out by the pleadings.

10. In the event that the amendment is allowed it is appropriate to consider that had the allegation been raised at an earlier time, the plaintiff might not have proceeded with the action to the extent that he has.  Although the action has not been entered for trial, it has reached the point where it is due to be entered for trial.  Conceivably the plaintiff would have largely got up the case for trial.

11. In evaluating the plaintiff's position in the event leave is granted, it may be appropriate to hear submissions in relation to the matter of costs generated by the plaintiff since the defence was filed.

12. As to the defendant's position, its submissions focus on the defendant being substantially prejudiced if leave is not given to amend in the terms proposed.  It was my appreciation that the defendant's view was that the law had recently changed and that it now sought to obtain the benefit of that change.

13. At the hearing I expressed the view that it was difficult to see the determination in the case described by Ms Elphick in her evidence as representing a change in the law.  It is my understanding that although a provision may be interpreted from time to time, the provision speaks from the date of its enactment.

14. There is no explanation put forward by the defendant as to how it is that it would be prejudiced by a failure to allow for amendment.  The defendant's evidence does not directly deal with the issue as to why it was the case that a defence was pleaded which did not rely upon that provision.  The best I could do in support of the defendant's case is to infer that had the defendant turned its mind to the provision at the time of drafting the defence, it would have pleaded that provision.

15. In my opinion, in any case where the onus is wholly on the applicant and where it is difficult to see that the applicant would have any difficulty in bringing evidence in support of its application, it is inappropriate for the Court to be drawing any inferences whatsoever to assist the applicant.

16. I am not in a position to determine whether the defendant would be prejudiced if leave was not given to allow it to amend its defence in the terms proposed because there is no useful evidence to allow me to determine whether it is prejudiced at all.  For all I know, the defendant may have chosen not to plead as it now seeks to do.

17. It follows that the defendant has failed to satisfy me that it is appropriate to allow for leave to amend the defence in the terms proposed.