| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CLAYTON -v- J M OGILVIE PTY LTD & ANOR [2005] WADC 184 CORAM : MULLER DCJ HEARD : 29 SEPTEMBER 2005 DELIVERED : 3 OCTOBER 2005 FILE NO/S : CIV 2763 of 2001 BETWEEN : JOHN EDWARD CLAYTON Plaintiff
AND
J M OGILVIE PTY LTD
First Defendant
VGM CONSTRUCTIONS PTY LTD
Second Defendant
BORAL FORMWORK AND SCAFFOLDING PTY LTD
Third Party
Catchwords: Amendment of pleadings - Appeal from decision of Deputy Registrar refusing first defendant's application to amend defence - Whether plaintiff would be prejudice by proposed amendments
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Legislation:
Occupiers Liability Act 1985
Workers' Compensation and Injury Management Act 1981
Workers' Compensation and Rehabilitation Act 1981
Result: Appeal allowed Representation:
Counsel:
Plaintiff : Mr C J Castley
First Defendant : Mr J R Ludlow
Second Defendant : No appearance
Third Party : No appearance
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Dibbs Abbott Stillman
Second Defendant : Not applicable
Third Party : Not applicable
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
BHP Billiton Ltd v Schultz (2004) 211 ALR 523
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
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1 MULLER DCJ: This is an appeal against a decision of the Deputy Registrar refusing an application by the first defendant to amend its defence. By a writ of summons and statement of claim dated 16 October 2001 and filed on 24 October 2001 the plaintiff brought a claim for damages against the first and second defendants. The statement of claim was subsequently amended and a third party was joined in the action. In the amended statement of claim it was alleged that the first defendant was the main contractor responsible for the construction of a medical centre in Bicton and was at all material times an occupier of those premises within the meaning of the Occupiers Liability Act1985. It was alleged that the second defendant was a company engaged by the first defendant to erect formwork on the premises. The second defendant engaged the services of a steel fixing company to install the formwork and the plaintiff worked on the site as an employee of the steel fixing company. On 28 February 2001 it was alleged that the plaintiff was injured in an accident caused by a breach of the first defendant of the provisions of the Occupiers Liability Act. The particulars of breach were pleaded in the statement of claim. It was also alleged in the alternative that the accident was caused by the negligence of the second defendant. Both the first and second defendants filed their defences to the writ of summons and statement of claim. The first defendant's defence was very brief in its terms. Apart from making certain formal admissions the first defendant pleaded that it did not admit the plaintiff's allegations that it was liable for the plaintiff's injuries as a consequence of any failure to comply with the Occupiers Liability Act. The defence also alleged that if the accident occurred at all it was a result of the negligence of the second defendant.
2 I should pause at this stage to emphasis that, in my view, the defence fails specifically to answer each allegation in the plaintiff's statement of claim. As it stands it fails to apprise the plaintiff of the exact nature of the defence and what is to be alleged in support of it. 3 Paragraph 2 of the defence, in particular, is nothing more than a non-admission of the particulars repeated in the statement of claim and does not begin to address those particulars or set out what the first defendant's answers to those allegations are said to be. 4 The defence was filed by a firm of solicitors other than the firm that is presently acting for the first defendant. It is significant that after the defence was filed the solicitors then acting for the first defendant prepared a proposed amended defence which raised a new defence under s 175 of the Workers' Compensation and Rehabilitation Act 1981. When the first defendant's current solicitors took over the conduct of the action they
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wrote to the plaintiff's solicitors asking whether they would consent to the proposed amendments. The initial request was made on or about 23 May 2003. After an exchange of correspondence between that date and 19 December 2003 a stalemate was reached and no agreement on the proposed amendments was ever arrived at. 5 In the meantime certain ancillary proceedings took place. In December 2003 the plaintiff applied for a determination of his degree of disability by the Conciliation and Review Directorate. In the meantime the Court file shows that the second defendant successfully applied for leave to amend its defence to incorporate a pleading under s 175 of the Workers' Compensation legislation. 6 In the meantime the first defendant's proposed amended defence remained in limbo. Nothing was done to finalise the situation. The proposed amended defence was later expanded to include particulars of defence relating to the plaintiff's claim against the first defendant under the Occupiers Liability Act. I have already pointed out that the original defence was completely lacking in particulars in relation to this aspect of the plaintiff's claim and it was defective in that respect. The proposed amended defence addressed this omission and contained particulars purporting to establish that the first defendant had a complete defence under s 6 of the Occupiers Liability Act. 7 The proposed amended defence which the first defendant has sought this Court's leave to introduce raises the two defences I have already mentioned under s 6 of the Occupiers Liability Act and s 175 of what is now the Workers' Compensation and Injury Management Act 1981. 8 The plaintiff has objected to the proposed amendments. In an affidavit filed with the Court the grounds of that objection have been set out and have been developed by counsel in his submissions. I proposed to deal with those objections. 9 In the Minute of Proposed Amended Defence the first defendant has sought to substitute the non-admission it made in its original defence with express denials of the allegations made in the statement of claim. I have already drawn attention to par 2 of the first defendant's defence in which it was pleaded that it did not admit the particulars relied upon by the plaintiff in his statement of claim to establish a breach of the Occupiers Liability Act. The Minute of Proposed Amended Defence purports to substitute that non-admission with an express denial. I do not believe much turns on that. The non-admission by the first defendant would
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require the plaintiff to prove the particulars asserted in the statement of claim and an amendment allowing the introduction of an express denial in substitution of the non-admission does not change the situation at all. 10 The plaintiff objects to pars 6 and 7 of the proposed amended defence which purport to particularise the first defendant's allegation that it has a complete defence to the plaintiff's claim under s 6 of the Occupiers Liability Act. I believe the objection to the proposed amendment is groundless. The original defence put the plaintiff to the proof of the particulars pleaded in the statement of claim on this issue. As I have already said the defence was probably defective because it went nowhere near satisfying the basic pleading principle that the facts of the defence should be pleaded. The original defence simply constituted a non-admission of the plaintiff's allegation that there had been a breach by the first defendant of the Occupiers Liability Act; it did not begin to plead the facts upon which the defence was based and, in that respect, was materially defective. While I agree that the delay in pleading these particulars of defence is really inexcusable, and that this matter should have been finalised at a much earlier point in the proceedings, a refusal to allow the amendment would leave in place what I consider to be a materially defective defence that fails to comply with the basic principles of pleading. The amendment must be allowed. It must be allowed because both the plaintiff and the other parties to the action are entitled to know the basis upon which the first defendant claims that it is not liable for the accident as an occupier of the premises where the accident occurred, and even more significantly, a refusal to allow the amendment would deprive the first defendant of a substantive defence to the plaintiff's claim. 11 The plaintiff objects to the proposed amendments in pars 8-12 in the Minute of the Proposed Amended Defence because the proposed amendments introduce a defence under s 93E of the Workers' Compensation and Rehabilitation Act by establishing that the first defendant was a deemed employer pursuant to s 175 of the Act and accordingly has a complete defence at common law because of the plaintiff's failure up to this point in time to obtain a determination as to his degree of disability in the Workers' Compensation and Review Directorate. The point that I would like to make in relation to this objection is simply this. While the delay by the first defendant in amending its defence is really inexcusable the fact remains that as early as May 2003 the plaintiff was given notice by the first defendant of its intention to amend its defence to incorporate this particular defence. I understand the second defendant has already been given leave to amend
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its defence to incorporate the deemed employer defence under the appropriate legislation. It is also clear from the affidavit sworn by Elizabeth Hardwick on 26 July 2005 in support of the second defendant's application for leave to amend its defence that the plaintiff has begun proceedings in the Conciliation and Review Directorate presumably with the view of obtaining the appropriate determination. I do not believe the plaintiff will be materially prejudice by the proposed amendment because, although it will mean his having to obtain the necessary determination in the Workers' Compensation jurisdiction, he already has to obtain such a direction in respect of the second defendant. 12 I believe the overriding consideration is that none of the proposed amendments could be said to have taken the plaintiff by surprise. The plaintiff was given early notice of the first defendant's intention to amend its defence and raise the issues that it now seeks to rely upon. I agree that the first defendant has been particularly tardy in finalising this issue. As against that the action has been a somewhat complex and prolonged one and the plaintiff himself has been responsible for some of the delays that have taken place. 13 Given the fact that the original defence was materially defective, and probably would not have been allowed to stand, I believe the amendments sought to be made by the first defendant should be allowed and that leave should be given. To refuse leave would be to deprive the first defendant of two substantive defences that may be available to it. Such a decision would have dire consequences for the first defendant and could only be justified in extreme circumstances where the prejudice to the plaintiff was deemed to be so great as to justify such an exceptional course of action. 14 That is not the case here. I do not believe there has been considerable prejudice to the plaintiff because the plaintiff has always known of the first defendant's intentions to plead these issues and, to a large extent, has already had to address similar issues raised by the second defendant in its defence. 15 I would allow the appeal and permit the first defendant to make the amendments sought in the Minute of the Proposed Amended Defence. 16 The plaintiff is entitled to be compensated by an award of costs both in respect of this appeal and the proceedings before the learned Deputy Registrar.
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