Boral Contracting Pty Ltd v Moore - [2009] WASCA 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BORAL CONTRACTING PTY LTD -v- MOORE [2009] WASCA 64

CORAM: OWEN JA
PULLIN JA

HEARD: 3 MARCH 2009

DELIVERED : 20 MARCH 2009

FILE NO/S: CACV 87 of 2008

BETWEEN: BORAL CONTRACTING PTY LTD
Appellant
AND
KERRIN AYMAN MOORE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
Citation  :MOORE -v- COMMISSIONER OF MAIN ROADS & ANOR [2008] WADC 122
File No  :CIV 434 of 2003, CIV 1369 of 2006

Catchwords:

Appeal - Interlocutory appeal concerning pleadings - Pleadings not settled - Whether substantial injustice if leave to appeal refused

Costs - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Leave to crossappeal granted
Crossappeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G McGowan
Respondent: Mr B L Nugawela

Solicitors:

Appellant: DLA Phillips Fox
Respondent: Friedman Lurie Singh & D'Angelo

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

Allmark v Mossensons (a firm) [2006] WASCA 127
Moore v Commissioner of Main Roads [2007] WADC 203
Moore v Commissioner of Main Roads [2008] WADC 122
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

JUDGMENT OF THE COURT: The appellant seeks leave to appeal against orders of Scott DCJ made on 2 September 2008. The orders concern the respondent's proposed statement of claim. The appellant (Boral) was the second defendant in a District Court action 434 of 2003, in which the Commissioner of Main Roads was the other defendant. The respondent also seeks leave to appeal against the order for costs made against him in favour of Boral.
In relation to Boral's appeal, there is no dispute that the appeal is against orders which do not constitute a final judgment within the meaning of s 79(1) of the District Court of Western Australia Act 1969 (WA). As a result, leave to appeal is necessary. Leave to appeal will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave and if, in addition, substantial injustice would be done by leaving the decision unreversed (Allmark v Mossensons (a firm) [2006] WASCA 127 [26]).
Action 434 of 2003 has been consolidated with action 1369 of 2006 in which the respondent is the plaintiff and Champions Corporation Pty Ltd and Robin Tripe and Vivian Tripe are the second defendants.
The notice of appeal asserts that the orders made and which were appealed against, were orders that:
1The Plaintiff (Respondent) have leave to amend his statement of claim against the Second Defendant (Appellant) in terms of the Court's reasons for decision.
2.The Plaintiff (Respondent) pay the Second Defendant's (Appellant's) costs of the application including any reserved costs and costs thrown away, in any event.
They were not in fact the orders made by the judge. The orders dealt with the proposed amended statement of claim in…

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: [2009] WASCA 64
Decision Date: 20 MARCH 2009

CaseChat Overview and Summary

In the matter of Boral Contracting Pty Ltd v Moore, the appellant sought leave to appeal against orders made by Scott DCJ on 2 September 2008. These orders concerned the respondent's proposed statement of claim in a consolidated proceeding involving multiple defendants. Boral, one of the defendants, was the second defendant in the District Court action. The respondent also sought leave to appeal against the order for costs made in favour of Boral. The appeal's necessity for leave was due to the interlocutory nature of the orders, which did not constitute a final judgment under s 79(1) of the District Court of Western Australia Act 1969 (WA). The legal issue before the court was whether leave to appeal should be granted given that the decision below was wrong or attended with sufficient doubt to justify the granting of leave, and if substantial injustice would result from leaving the decision unreversed.

The court found that the orders appealed against were not as asserted in the notice of appeal. Instead, the orders dealt with the proposed amended statement of claim in the consolidated proceedings, specifying which parts of the proposed amended consolidated statement of claim were allowed or not allowed, and granting limited leave to replead. The court considered the significant time and effort expended in the District Court on the pleading issues, noting the Chief Justice's observations in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd that interlocutory disputes concerning pleadings 'must be actively discouraged'. The court also examined the merits of the pleadings, which involved a claim for serious personal injuries due to an accident on a road where the Main Roads had arranged for work, carried out by either Boral or the other defendants.

The court ultimately refused leave to appeal on the grounds that the appeal did not meet the criteria for granting leave. The pleadings had been the subject of considerable time and decision-making, and the respondent's proposed statement of claim had been sufficiently addressed by the District Court's orders. Additionally, the court did not find that substantial injustice would be done by leaving the decision unreversed. The respondent's cross-appeal was also dismissed, and leave to cross-appeal was granted but the cross-appeal was dismissed. The final orders of the court were that leave to appeal was refused, leave to cross-appeal was granted, and the cross-appeal was dismissed.

Orders

Orders of the court

Leave to appeal refused

Leave to cross?appeal granted

Cross?appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant seeks leave to appeal against orders of Scott DCJ made on 2 September 2008. The orders concern the respondent's proposed statement of claim. The appellant (Boral) was the second defendant in a District Court action 434 of 2003, in which the Commissioner of Main Roads was the other defendant. The respondent also seeks leave to appeal against the order for costs made against him in favour of Boral. In relation to Boral's appeal, there is no dispute that the appeal is against orders which do not constitute a final judgment within the meaning of s 79(1) of the District Court of Western Australia Act 1969 (WA). As a result, leave to appeal is necessary. Leave to appeal will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave and if, in addition, substantial injustice would be done by leaving the decision unreversed (Allmark v Mossensons (a firm) [2006] WASCA 127 [26]). Action 434 of 2003 has been consolidated with action 1369 of 2006 in which the respondent is the plaintiff and Champions Corporation Pty Ltd and Robin Tripe and Vivian Tripe are the second defendants. The notice of appeal asserts that the orders made and which were appealed against, were orders that:1The Plaintiff (Respondent) have leave to amend his statement of claim against the Second Defendant (Appellant) in terms of the Court's reasons for decision.2.The Plaintiff (Respondent) pay the Second Defendant's (Appellant's) costs of the application including any reserved costs and costs thrown away, in any event. They were not in fact the orders made by the judge. The orders dealt with the proposed amended statement of claim in the consolidated proceedings by stating that certain parts of a minute of proposed amended consolidated statement of claim be 'allowed' or 'not allowed' and then granted limited leave to replead. So far as Boral is concerned, those orders were:1.The amendments in paragraphs … 5.1.1, 5.1.2, 5.1.3 and 5.2 of the Minute of Proposed Amended Consolidated Statement of Claim ('Minute') are allowed.…4.The amendments in paragraphs 10.2(h), (i), (j) and (k) of the Minute are not allowed.…6(a)The plaintiff have leave to file and serve within 28 days any Minute of Proposed Amendments to paragraph 5.2 and 10.2 of the Statement of Claim against the second defendant;6(b)The Minute of Proposed Amended Statement of Claim do stand as the Amended Statement of Claim and service dispensed unless the second defendant, within 7 days of service of the Minute gives notice of objection;6(c)In the event the second defendant gives notice of objection, the plaintiff to bring an application for leave to amend within 7 days of the date of the notice given by the second defendant. The pleading issues appear to have involved an unreasonable amount of time and decision making in the District Court. The parties appear not to have been discouraged by the Chief Justice's observations in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 that interlocutory disputes concerning pleadings 'must be actively discouraged'. The case concerns a claim by the respondent for serious personal injuries suffered by him as a result of an accident on a road which the Main Roads had arranged to carry out work and which had been carried out either by Boral or Champions or the Tripes.

Ratio Decidendi

Legal Principle Established

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