BURRIDGE -v- HADLEY HOLDINGS PTY LTD - [2013] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BURRIDGE -v- HADLEY HOLDINGS PTY LTD [2013] WASC 18

CORAM: MASTER SANDERSON

HEARD: 16 JANUARY 2013

DELIVERED : 30 JANUARY 2013

FILE NO/S: CIV 2343 of 2008

BETWEEN: TERRY ANN BURRIDGE as Executor of the Estate of John Clifford Burridge
Plaintiff
AND
HADLEY HOLDINGS PTY LTD
First Defendant
BRIAN HADLEY ANDERSON
Second Defendant

Catchwords:

Practice and procedure - Application to add defendant, amend writ and file amended statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr P C S van Hattem SC
First Defendant             :     Mr M H Zilko
Second Defendant         :     Mr M H Zilko

Solicitors:

Plaintiff:     Fiocco's Lawyers
First Defendant             :     HFM Legal
Second Defendant         :     HFM Legal

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

Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179

MASTER SANDERSON: This is the plaintiff's application for leave to join a further defendant to the proceedings and for leave to amend the writ of summons and the statement of claim in terms of minutes which have been provided. The present defendants object to the orders sought. Initially the defendants raised a broad suite of objections against the proposed orders. However as at the date of hearing only two points were pursued.
Before dealing with the issues a short summary of the relevant facts is required. At all material times Mr John Burridge was the registered proprietor of certain property in Dalkeith. An adjoining property was owned by the first and second defendants. The defendants' wished to build on their property. This required construction of a retaining wall within the defendants' property but on the boundary with Mr Burridge's property. There were two ways of undertaking construction of the retaining wall. Either it could be braced from the defendants' property or ground anchors could be used which would intrude on Mr Burridge's property. The defendants approached Mr Burridge but he refused permission to install the ground anchors. It is alleged by the plaintiff the defendants went ahead and put the ground anchors in without Mr Burridge's consent. Furthermore, when asked, the defendants denied they had used ground anchors. Once the house on the defendants' property was finished the ground anchors were abandoned. They remained on Mr Burridge's property. The plaintiff alleges the defendants committed a trespass and as a consequence the plaintiff has suffered loss and damage.
In their amended defence the defendants admit they used ground anchors which intruded on to Mr Burridge's property. They say this was not a trespass but if it was it was 'trifling'. In the course of their submissions counsel for the defendants pointed out if the plaintiff succeeded damages would be nominal. Prima facie that would seem to be correct.
When the claim was originally pleaded it included claims for aggravated and exemplary damages. With the death of Mr Burridge these claims could not be maintained by his estate. All parties agree on that point. But the plaintiff says a claim for loss of opportunity to claim aggravated and exemplary damages is available to the estate. The defendants say it is not. This is the first point of difference between the parties.
By par 42 of the minute of proposed substituted statement of claim the plaintiff alleges Mr Burridge was entitled to claim exemplary damages. By par 43 it is alleged Mr Burridge was entitled to claim aggravated damages. Paragraph 44 is then in the following terms:
On 30 September 2010 Mr Burridge died and thereupon the plaintiff lost the opportunity to use, in the administration and distribution of Mr Burridge's estate, any exemplary and aggravated damages which might have been awarded to Mr Burridge.
It is the plaintiff's position the proposed par 44 is a plea of loss of opportunity. It is said that opportunity crystallised prior to the death of Mr Burridge and accordingly the action can be maintained. Properly considered, so the plaintiff submits, the claim is not one for exemplary or aggravated damages. On behalf of the plaintiff it was submitted par 44 was simply a claim for aggravated and exemplary damages and should not be permitted because with the death of Mr Burridge the right to such a claim was lost.
The plaintiff's submissions relied heavily on the decision of the Court of Appeal in Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179. The facts of the case as summarised in the head note were as follows:
Mr and Mrs Witcombe were involved in a car accident in November 1994. Both were injured, but Mr Witcombe's injuries were severe. In September 1997, Mr and Mrs Witcombe engaged Talbot & Olivier to conduct proceedings to recover damages caused by the accident. A writ was issued on Mr Witcombe's behalf by Talbot & Olivier in July 2000. In April 2001 Talbot & Olivier's retainer was terminated. A statement of claim was filed by Mr Witcombe's new solicitors in June 2001. Mr Witcombe died in March 2002 before the matter was brought to trial. On Mr Witcombe's death, damages for some type of loss could not be pursued by the executrix of his estate. The action was settled for $825,000 plus costs in November 2002.
Mrs Witcombe then brought proceedings against Talbot & Olivier alleging that Talbot & Olivier acted negligently, in breach of their duty to conduct Mr Witcombe's proceedings with reasonable skill, care and diligence, and without competence or diligence. The proceedings were brought by Mrs Witcombe in her capacity as executrix of Mr Witcombe's estate. Mrs Witcombe claimed that if Mr Witcombe's action had been conducted diligently he would have recovered $5,236,570 prior to his death. Following an application by Talbot & Olivier to strike out Mrs Witcombe's statement of claim the statement of claim was struck out in part by the Master, with leave to file and serve an amended statement of claim. Talbot & Olivier appealed, seeking that the statement of claim should be permanently struck out, with judgment entered in its favour.
In the course of his judgment President Steytler referred to s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA), which his Honour said
was designed to overcome, subject to a number of limitations, the old common law rules that an action for damages for personal injuries, which has not been brought to a verdict before the death of the plaintiff abates on the plaintiff's death.
His Honour went on to say it was clear under the legislation the estate could not maintain any claim for damages for pain and suffering and for any curtailment of expectation of life. But his Honour was of the view a claim by the estate against the solicitors was possible. His Honour put the position this way:
The statement of claim against the appellant does not identify what is comprehended in the amount of '$5,236,570.00 and other damages' which the deceased would have expected to recover (other than by mentioning in par 12(vi) that, on 30 January 2002, the deceased's solicitors had 'filed schedules of damages for the deceased claiming $5,236,570.00 excluding damages for management of Trust monies and pain and suffering and loss of enjoyment of life'). However, the claim presumably comprehends damages for loss of earning capacity over the lost years. While that claim, as with claims for pain and suffering and curtailment of expectation of life, could not now be brought against the tortfeasor, the claim presently under consideration is of a different kind. As will be apparent, it is one which is said to have vested in the deceased man against his solicitors for damages for failure to prosecute his proceedings against the tortfeasor diligently, thereby depriving him, amongst other things, of a chance to succeed during his lifetime in recovering damages for losses of that kind: cfJohnson v Perez (1988) 166 CLR 351; and Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394. The questions consequently arise whether a claim of this kind is arguably capable of being brought against the appellant by Mrs Witcombe in her capacity as executrix and, if so, whether it has adequately been pleaded and, indeed, raised in written submissions which were lodged on behalf of the respondents.
As to the first of those questions, it seems to me that a claim of this kind may be open, depending upon the facts to be proved at the trial, and that such a claim is arguably able to survive for the benefit of the estate. So far as the claim is brought in tort, it must, of course, be established that damage was suffered during the lifetime of the deceased as a consequence of the appellant's breach of duty, damage being said to be the 'gist' of an action for negligence: Williams v Milotin (1957) 97 CLR 465 at 474. However, it seems to me to be arguable, depending upon the facts (which are, as yet, unascertained), that the damage, here the loss of the chance to recover damages of the kind to which I have referred, was suffered during the lifetime of the deceased. So, for example, if it should turn out that, before his death, it had become apparent that the deceased had only a short time to live and could not hope to finalise his claim against the tortfeasor during that period, the chance to recover the damages would, by then, already have been lost. Moreover, if a claim is brought in contract, the appellant, if shown to have breached it, is liable to pay nominal damages, even if no loss has been caused: Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286. There might also be a contractual claim in respect of wasted legal costs. Consequently, a cause of action of each kind arguably vested in the deceased during his lifetime (see, as to the owing of concurrent duties in contract and in tort, in a case of this kind, Hawkins v Clayton, above; and Astley v Austrust Ltd (1999) 197 CLR 1 at 20 - 23).
Furthermore, as I read s 4(2)(d) and s 4(2)(e) of the Miscellaneous Provisions Act, those sections are at least arguably designed to operate only in a case in which damages of the kind there referred to are claimed against the tortfeasor who caused the plaintiff's injuries. I can see nothing in the language of the sections which should lead me to read them as restricting the right to bring a claim, on behalf of an estate, against a lawyer whose negligence is said to have caused the deceased person, during his or her lifetime, to lose the chance of recovering damages of the kind referred to. A claim of that kind is not one for damages for pain or suffering, for the curtailment of expectation of life or for the loss of earning capacity. It is one for damages for negligence, or breach of contract, arising out of a failure to prosecute a claim for damages of those kinds [36] ‑ [38].
In my view there is nothing in the facts of this case which are in any way comparable with the Witcombe decision. Mr Burridge had only one cause of action and that was against the defendants as tortfeasors. It is possible if Mr Burridge's solicitors had not pursued the action against the defendants with due diligence a claim against them might have survived Mr Burridge's death. But there is no separate cause of action other than the claims originally made by Mr Burridge against the defendants. Accordingly what the plaintiff is seeking to do is maintain a claim for damages which is not permitted under s 4 of the Law Reform (Miscellaneous Provisions) Act.
Accordingly I would not allow the claim in its present form to stand.
The second question is whether Mr Christopher Courtney ought be joined as a third defendant to these proceedings. Mr Courtney was the architect who supervised construction of the house on the defendants' premises. Certain allegations are made against him - in particular that he mislead Mr Burridge as to the use of the ground anchors. It is said Mr Courtney is a necessary party to these proceedings particularly in relation to claims made under the Trade Practices Act 1974 (Cth). Furthermore the plaintiff says it would be possible to issue proceedings against Mr Courtney independent of the present action. If that was done then it would be necessary to consolidate the two sets of proceedings or at least to ensure the two matters were heard together. On behalf of the plaintiff it was submitted proper case management required the addition of Mr Courtney as a party.
On behalf of the defendants it was said if Mr Courtney was joined to the proceedings there would be further delay. The first defendant is elderly and is anxious to have this matter concluded. It has been running for five years and in the view of the defendants the plaintiff's claim is insignificant. The defendants do not want the further delay which is inevitable if Mr Courtney is joined as a party. They want to get on and have the matter heard.
In my view it would be inappropriate to join Mr Courtney as a party. It is difficult to see from a reading of the pleadings and the file generally how the damages in this case could be significant. Of course not all of the evidence is presently available but the way the matter is pleaded does not suggest the plaintiff, if successful, will be entitled to a significant amount by way of damages. Enormous resources have been devoted to the action. On this summons both parties engaged senior counsel. In my view the best course is simply to list this matter for trial and have it disposed of. Mediation has been tried and has not been successful. There is no suggestion if the plaintiff succeeds the defendants will not be in a position to meet any damages claim. They would get nothing more if Mr Courtney was joined and the action against him was successful. In my view joining Mr Courtney would be an exercise in futility.
Accordingly, I would not permit amendment of the writ or amendment of the statement of claim in the form of the present minute. I would refuse leave to join Mr Courtney. The plaintiff should pay the costs on this summons. I will hear the plaintiff further on whether a further amended statement of claim will be filed.