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Chandler v Water Corporation

Chandler v Water Corporation

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CHANDLER & ORS -v- WATER CORPORATION [2001] WASC 166

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 166
Case No:	CIV:2321/2000	Heard:	5 JUNE 2001
Coram:	HASLUCK J	Delivered:	26/06/01
No of pages:	30	Judgment Part:	1 of 1
Result:	Application for leave to amend refused
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Parties:	RUSSELL VINCENT CHANDLER LYNETTE PAMELA CHANDLER ALAN DOUGLAS TINK MAY KATHLEEN TINK WESTDEK PTY LTD BRIAN SYDNEY ATKINS PETER WILLIAM VEERSMA ROZALYN KONSTEK BEVAN ROBERT FOSTER ROBYN JEANETTE FOSTER VINCENT ILLARDA TANIA IRIS ILLARDA PHIL GARDINER ENGINEERING PTY LTD PHILIP ANDREW GARDINER TERRENCE MALCOLM ROGERS SHR HOLDINGS PTY LTD DANIEL GRENVILLE ROGERS MICHAEL SCOTT ROGERS JOYMOR NOMINEES PTY LTD DONALD EDWARD MITCHELL GARY DONALD MITCHELL FOUR STAR ENGINEERS (WA) PTY LTD VINCENT MORAN RIVEREDEN PTY LTD RAYMOND JOHN HUMPHRIES OWNERS OF 33 FELSPAR STREET: STRATA PLAN NO 9423 WATER CORPORATION
Catchwords:	Pleadings Application for leave to amend claim in negligence Failure to plead material facts in summary form and other matters of embarrassment Turns on own facts
Legislation:	Supreme Court Rules, O 18 r 4, O 19 r 1, O 20 r 19, O 20 r 2(2), O 20 r 8 Water Agencies (Powers) Act 1984 , s 62, s 63, s 82 Water Corporations Act 1995, s 4, s 27
Case References:	Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Benning v Wong (1969) 122 CLR 249 Bruce v Odhams Press Ltd [1936] 1 KB 697 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Chappel v Hart (1998) 195 CLR 232 Cox Bros v Commissioner of Waterworks (1933) 50 CLR 108 Dare v Pulham (1982) 148 CLR 658 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Elston v Dore (1982) 149 CLR 480 Esanda Finance v Peat Marwick Hungerfords (1997) 188 CLR 241 Essendon Corporation v McSweeney (1914) 17 CLR 524 Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 Mako Investments Pty Ltd & Ors v Quindo Pty Ltd & Ors, unreported; SCt of WA; Library No 6838; 28 July 1987 Perre v Apand Pty Ltd (1999) 198 CLR 180 Pyrenees Shire Council v Day (1998) 192 CLR 330 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Williams v Milotin (1957) 97 CLR 465 Alec Finlayson Pty Ltd v Armidale City Council, unreported; FCA; No 29/1992; 31 December 1997 Anns v Merton LBC [1978] AC 728 Australian Competition and Consumer Commission v Golden West Network Pty Ltd & Ors, unreported; FCA; 19 August 1997 Avenhouse & Anor v Hornsby Shire Council (1998) 44 NSWLR 1 Campbelltown CC v Mackay (1989) 15 NSWLR 501 Coloca v BP Australia Ltd & Anor [1992] 2 VR 441 Dames & Moore Pty Ltd v Jovista Pty Ltd, unreported; SCt of WA; Library No 980285; 26 May 1998 Fry (also known as Dianne Roslyn Caton) v White, unreported; SCt of QLD; No 76/1995; 13 December 1995 Goeke v Nominal Defendant, unreported; SCt of NSW; 28 May 1991 Hill v Van Erp (1997) 142 ALR…

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: [2001] WASC 166
Decision Date

CaseChat Overview and Summary

Chandler and others sued the Water Corporation for damages they claimed to have suffered as a result of the Corporation's construction of sewerage works in and around Felspar Street, Welshpool, between May 1997 and December 1998. The plaintiffs applied for leave to amend the statement of claim in terms of a lengthy minute of amended statement of claim dated 15 May 2001. The Court refused leave to amend in terms of the May minute of proposed claim and allowed the plaintiffs liberty to replead. The Court found that the May minute of proposed claim did not comply with the rules of pleading and was overly long, overly broad and contained narrative and evidence. The Court found that the plaintiffs were unable to plead the facts and matters relied upon with sufficient precision and that the pleading was, in many respects, embarrassing. The Court struck out certain paragraphs and found that the plaintiffs should be allowed liberty to replead by submitting a fresh minute of proposed claim. The plaintiffs were ordered to submit a further minute of proposed claim within a time prescribed by the Court.

Orders