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

DEPUTY REGISTRAR HARMAN: The plaintiff's claim is for damages for personal injuries sustained in October 1995.
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.
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."
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.
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."
In its submissions the defendant canvasses the impact of what are…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] WADC 239
Decision Date: 18 NOVEMBER 2002

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Berg v Hamersley Iron Pty Ltd involved an application by the defendant for leave to amend their defence prior to the entry for trial. The plaintiff, Berg, alleged personal injury caused by the defendant's negligence. The defendant sought to amend their defence to incorporate a reliance on section 175 of the Workers' Compensation and Rehabilitation Act, which would potentially limit their liability. The central issue before the court was whether the defendant was permitted to amend their defence under the circumstances, particularly in light of the time elapsed and the proximity to the trial date.

The court examined the principles governing amendments to pleadings and the factors relevant to granting leave to amend. It noted that while leave to amend pleadings should be granted freely to ensure that cases are decided on their merits, such leave is not absolute. The court had to balance the principle of fairness to both parties against the need to prevent delay and ensure that the trial proceeds efficiently. The defendant's application for leave to amend was considered against the backdrop of the established practice and rules governing amendments, particularly in relation to the timing and impact of the proposed amendment on the plaintiff.

The court ultimately determined that the defendant was not entitled to amend their defence. The proposed amendment, which would have invoked section 175 of the Workers' Compensation and Rehabilitation Act, was considered to be an attempt to introduce a new defence that was not previously contemplated. The court found that the amendment would result in significant prejudice to the plaintiff, given the late stage of the proceedings and the preparation required to address the new defence. Consequently, the application for leave to amend was dismissed, and the defendant's defence remained as initially pleaded.

Orders