| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BRAUN -v- OWNERS OF MELVISTA STRATA PLAN NO.10 & ANOR [2003] WADC 255 CORAM : WILLIAMS DCJ HEARD : 17 NOVEMBER 2003 DELIVERED : 21 NOVEMBER 2003 FILE NO/S : CIV 1018 of 2001 BETWEEN : KYLIE JANE BRAUN Plaintiff
AND
OWNERS OF MELVISTA STRATA PLAN NO.10
First Defendant
JOBURNE PTY LTD t/as BLACKBURNE REAL ESTATE (ACN 008 820 988)
Second Defendant
Catchwords: Practice and procedure - Amendment to pleadings after entry for trial - "Special circumstances" to be shown by affidavit
Legislation: Rules of the Supreme Court 1971, O 21 r 5(1)
District Court Rules 1996, O 1 r 3(b), O 5 r 10
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Result:
Application dismissed Representation:
Counsel:
Plaintiff : Mr A Kay
First Defendant : Mr R E Keen
First Defendant (by its own solicitors) : Mr C Edmonds SC
Second Defendant : Mr P V Lansell
Solicitors:
Plaintiff : Edwards Lawyers
First Defendant : Greenland Brooksby
First Defendant (by its own solicitors) : Julian Johnson
Second Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Abela v Giew (1964) 81 WM (Pt 1) (NSW) 344
Commonwealth v Verwayen (1990) 170 CLR 394
Dare v Pulham (1982) 148 CLR 658
Howarth v Adey (1996) 2 VR 535
Irvine v State of Western Australia [2000] WASCA 56
Jackamarra v Krakouer (1998) 195 CLR 516
The State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146
Tindle v Ansett Transport Industries (Operations) Pty Ltd (1990) 21 NSWL 492
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1 WILLIAMS DCJ: The second defendant by its chamber summons dated 27 June 2003 as amended on 5 November 2003 seeks relevantly to amend:
in the Contribution Proceedings to rely upon the indemnity clause in the agency contract by which the first defendant engaged the second defendant as its agent and manager. 2 The plaintiff alleges that on 3 December 1997 she was injured when she slipped and fell whilst descending a set of stairs on the first defendant's premises. The plaintiff's claim against the first and second defendant is founded in negligence and breach of statutory duty. 3 The second defendant seeks leave to re-amend its amended defence to the first defendant's amended statement of claim in the first defendant's Contribution Proceedings to plead that it was an express term of the contact that the first defendant will indemnify the second defendant against any actions, suits, claims, costs or other expenses brought against or made upon or incurred by the second defendant arising out of the actions or omissions of the second defendant. 4 The second defendant also seeks leave to re-amend its statement of claim against the first defendant in the second defendant's Contribution Proceedings to plead the contractual indemnity. 5 The second defendant says that the proposed amendments are necessary to enable the second defendant to raise real and important issues, namely, that the first defendant agreed to indemnify the second defendant against any actions, suits, claims or costs other expenses brought against or made upon or incurred by the second defendant arising out of the actions or omissions of the second defendant. 6 The second defendant says the propose amendments will clarify and narrow the real issues between the plaintiff, the first defendant and the second defendant. 7 The second defendant says that although its application for leave to re-amend its pleadings was made after the pre-trial conference that the first defendant was given leave to amend after the pre-trial conference; the second defendant's original application for leave to amend was filed on 27 June 2003 and that on the 3 October 2003 the plaintiff's action and the Contribution Proceedings were listed for trial on 18 February 2004 on the
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understanding that the trial dates maybe vacated if the second defendant's application to re-amend its pleadings in the Contribution Proceedings were successful. 8 The first defendant says that if the amendments are allowed a conflict of interest will arise between the first defendant and its insurer. It would therefore become necessary for the first defendant to brief new solicitors and counsel which will almost inevitably result in an adjournment of the trial. 9 A party may apply for leave to amend pleadings at any stage of the proceedings: Order 21 r 5(1) of the Rules of the Supreme Court 1971. 10 Unless the justice of the case otherwise requires, the court will refuse an application made subsequent to the pre-trial conference for leave to amend pleadings which if granted would necessitate an adjournment of the trial: Order 1 r 3(b) of the District Court Rules 1996. 11 An interlocutory application that may result in adjournment of a trial will only be granted upon special circumstances and shown by affidavit: Order 5 r 10 of the District Court Rules1996. 12 It follows in my view that the second defendant's application is governed by O 5 r 10 of the District Court Rules 1996 and the second defendant must establish by affidavit that its application ought to be allowed having regard to the "special circumstances". 13 The second defendant relies upon Mr Marando's affidavit of 25 June 2003. The reasons given for delay in making the application are: 1. Jackson McDonald were not appointed (by HIH) as solicitors for the second defendant until the 23 January 2003. However, par 33(a) of their submissions suggested that they attended a pre-trial conference on 18 December 2002; 2. On 12 March 2003 an attempt was first made to contact the former strata manager of the seconded defendant; there was a meeting on 29 April 2003 and a signed proof provided on 12 June 2003; 3. On 13 March 2003 first attempt was made to contact the former supervisor of the second defendant who contacted the solicitors on 1 April 2003 and a proof was obtained on the 18 June 2003;
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4. Jackson McDonald was required to review four boxes of records not initially discovered. 14 The first defendant pleaded express and implied terms of the agency contract in par 4 and following of its statement of claim dated 26 August 2002. The second defendant in its defence to that statement of claim pleaded the agency contract and by par 5 and par 6 relied upon its express terms. In its statement of claim against the first defendant the second defendant pleaded the agency contract and by par 5 and par 6 pleaded certain express written terms. 15 In my view the omission of any reference to cl 6 being the indemnity clause must be taken or may reasonably be inferred to have been, a deliberate decision not to rely upon the clause. 16 In my view nothing in Mr Marando's affidavit goes to why or how it is the second defendant now intends to rely upon the indemnity clause. Nothing in the proofing of the second defendant's former employees or examining the second defendant's documents appears to be relevant to the decision to rely upon the indemnity clause. 17 In the circumstances where: 1. the plaintiff succeeds against the second defendant; 2. the second defendant is found to be entitled to an indemnity against the first defendant in respect to the plaintiff's claim; 3. CHU declines to meet the latter liability under the terms of its policy; the persons who will actually be liable to meets the plaintiffs or the second defendants judgment would be the individual owners of the strata company. They are elderly persons who engaged the second defendant to act as their agent and manager (for the purpose of looking after their interests) including to effect appropriate insurance – sch 3 of the agency agreement. 18 Furthermore if the application is successful the individual owners will need to fund solicitors and counsel to defend the plaintiff's claim and to run and defend the Contribution Proceedings. All of the costs of engaging a new legal team and all of the efforts and costs paid to the present solicitors will be wasted. Moreover the individual owners know almost nothing about the proceedings, having left the conduct of the
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matter to their insurer and to some extent to the second defendant as their managing agent (see Ms Shannon's affidavit 14 November 2003 par 8-10). 19 In my view the second defendant has completely failed to show the special circumstances as required by O 5 r 10 of the District Court Rules 1996. The application should be dismissed. 20 This in my view should not be seen as ruling that the second defendant is not able to bring a further application for leave to amend and setting out what the second defendant says would amount to special circumstances.
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