Black v S P Etheridge Pty Ltd - [2019] WADC 67

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BLACK -v- S P ETHERIDGE PTY LTD [2019] WADC 67
CORAM:   REGISTRAR KUBACZ
HEARD:   9 MAY 2019
DELIVERED          :   21 MAY 2019
FILE NO/S:   CIV 4071 of 2017
BETWEEN:   ANNMARIE BLACK
Plaintiff
AND
S P ETHERIDGE PTY LTD
Defendant

Catchwords:

Practice and procedure - Leave to amend writ - Application of amended O 21 r 5 Rules of the Supreme Court 1971

Legislation:

Occupiers' Liability Act 1985 (WA)
Rules of the Supreme Court 1971 (WA)

Representation:

Counsel:

Plaintiff	:	Mr A Nolan
Defendant	:	Mr A Basile

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	SRB Legal

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

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Dye v Griffin Coal Mining Co Pty Ltd [1998] WASCA 184

REGISTRAR KUBACZ:

This is the plaintiff's application to amend the Writ of Summons to substitute Scentre Shopping centre Management (WA) Pty Ltd (Scentre) as the defendant to this action in place of the current defendant SP Etheridge Pty Ltd, pursuant to O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (O 21 r 5).
The application is supported by the affidavit of Simon Myer Walters sworn 8 February 2019 (Walters Affidavit). Scentre opposed the application and, by order of Deputy Registrar Harman on 20 March 2019, was granted leave to be heard.
Scentre opposes the application on the grounds that the plaintiff is seeking to circumvent the provisions of the Limitations Act 2005 (WA) as the amendment gives rise to a new cause of action and therefore does not comply with the criteria for amendment pursuant to O 21 r 5. Further Scentre submits that it intends to plead a limitation defence to the proposed cause of action and therefore leave should not be granted to amend the writ.
Unfortunately, the submissions made by Scentre are a little misconceived in that it is still relying on the old provisions of O 21 r 5 to support its argument. Notwithstanding this and relevantly, it was overwhelmingly clear in both oral and written submissions that Scentre's opposition to the plaintiff's application is that the proposed amendment gives rise to a new cause of action against a new defendant to which a limitations defence is relevant.
I will therefore proceed to determine this application on the basis of those submissions and within the context of the amended O 21 r 5.
Order 21 r 5 was amended with effect from 1 March 2018 to delete a number of sub-rules upon which the Scentre seeks to rely in order to oppose the application as outlined in its submissions.
Order 21 r 5 now reads:
Amending writ or pleading with leave
(1)This rule is subject to –
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5)
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
Previously, where a relevant period of limitation had expired, or arguably expired, amendments to correct the name of a party or substitute a new cause of action required consideration of issues such as whether the corrections sought were caused by a 'genuine mistake' and whether a new cause of action arose out of the same facts as those set out in the writ.
The amendments have now disposed of the need to consider these issues in determining whether to exercise the discretion to allow the amendment. The primary consideration for the court in the exercise of the discretion is to pay heed to positive case flow management and the elimination of delay.
The amendment arose from the Court of Appeal's findings in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 as a recognition of the fact that the doctrine of 'relation back' does not apply in Western Australia. His Honours at [46] set out the principles which are to be taken to be established when considering applications pursuant to O 21r 5:
(a)limitation legislation and the defences provided by limitation legislation, operate by reference to the commencement of proceedings in relation to a cause of action, and not by reference to subsequent steps in the course of proceedings, unless that subsequent step is seen as the 'commencement' of a proceeding by the addition of a new cause of action;
(b)if an amendment does not involve the addition of a new cause of action, no question of limitation arises;
(c)in assessing, as a matter of impression and degree, whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly;
(d)if the amendment does involve the addition of a new cause of action after the time for the commencement of proceedings in respect of that cause of action has expired, no doctrine of 'relation back' or rule of court can prevent a defendant from invoking and relying upon a limitation defence;
(e)a statutory limitation bars the remedy rather than right, must be pleaded to be invoked, and can be waived; and
(f)however, in a case in which a defendant indicates an intuition to plead a limitation defence to a cause of action barred by statute at the time it is proposed to be added by amendment, the court will disallow the amendment if there is no doubt that such a defence would defeat the claim.
The Court of Appeal further stated at [47], limitation issues are best decided at trial, with the consequence that an amendment will only be disallowed in the clearest case such as when a new injury or a new date of injury is alleged as in the matter of Dye v Griffin Coal Mining Co Pty Ltd [1998] WASCA 184.
As the basis of Scentre opposition to the application is that the proposed amendments give rise to new cause of action against a new defendant, it is firstly necessary, pursuant to the principles outlined in Belgravia NomineesPty Ltd v Lowe Pty Ltd, to determine whether the plaintiff is in fact trying to 'commence' a proceeding by the addition of a new cause of action.
The plaintiff's claim is one for personal injuries sustained following an alleged fall on 7 May 2015 on a paved area outside a KFC store at the Whitford City Shopping Centre. The plaintiff submits that action is one in negligence and breach of statutory duty brought against the occupier of the paved area on which she tripped and fell and that the amendment to substitute Scentre does not in any way alter or add a new cause of action.
In oral submissions, Scentre argued that the plaintiff is in fact seeking to add a new cause of action against a new defendant as the plaintiff's intention is to sue the franchisee of the KFC outside which the accident occurred not the occupier of the area upon which she fell.
The plaintiff's writ was filed on 7 November 2017 indorsed as follows:
The plaintiff's claim against the defendant is for damages for personal injuries from an accident at the defendant's premises of KFC Whitfords which occurred on 7 May 2014 which accident was caused by negligence of the defendant in breach of section 5 of the Occupiers Liability Act (WA) 1985.
Having regard to the principle outlined by the Court of Appeal in Belgravia Nominees, that 'in assessing whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly, I am of the opinion that:
(a)it is clear from the indorsement that the plaintiff was at all times intending of making a claim under the Occupiers Liability Act 1985 (WA), in negligence for injuries she sustained in a fall on 7 May 2014;
(b)under the Occupiers Liability Act, the only relevant defendant is the occupier of the premises;
(c)the usual defendants in claims made under the Occupiers Liability Act are the occupiers of the area where the accident occurred, whomever they may be; and
(d)nothing in the proposed amendment changes the nature of the plaintiff's claim being for personal injuries sustained in an accident on 7 May 2014 pursuant to the Occupiers Liability Act.
It is therefore erroneous for Scentre to allege that the plaintiff intended only to sue the franchisee and not the occupier of the area where she fell. To make this finding simply because 'KFC Whitfords premises' is mentioned in the indorsement would be to take a very narrow view of the indorsement indeed.
For the reasons outlined about, I find that there is no addition of a new cause of action and that the amendment to substitute Scentre as the correct defendant should be allowed.
If I was to agree with Scentre that there was a new cause of action, this would not prevent Scentre from invoking and relying upon a limitation defence in any event pursuant to the principals in Belgravia Nominees. I would not have disallowed the amendment to the writ even if I had found there was a new cause of action, as I am not satisfied that Scentre's limitation defence falls into the clearest of cases that would defeat the claim. This issue is best left to the trial.
I therefore allow the plaintiff's application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ET
Court Officer
14 MAY 2019