Cornell v Knezevic
[2002] WADC 104
•5 JUNE 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: CORNELL -v- KNEZEVIC & ORS [2002] WADC 104
CORAM: COMMISSIONER GREAVES
HEARD: 18 MARCH 2002
DELIVERED : 5 JUNE 2002
FILE NO/S: CIV 2162 of 1996
BETWEEN: JEANNENE MERSHELL CORNELL
Plaintiff (Appellant)
AND
WALLY KNEZEVIC
First Defendant (First Respondent)RICHARD ANDREW CLUGSTON
Second Defendant (Second Respondent)ST JOHN OF GOD HEALTH CARE SYSTEM INC (ARBN 051 960 911)
Third Defendant (Third Respondent)KEITH VICTOR WOOLLARD
Fourth Defendant (Fourth Respondent)
Catchwords:
Practice and procedure - Statement of Claim - Leave to amend - Appeal from refusal of leave - Leave granted to add further and better particulars - Undue weight given by Registrar to prejudice to third defendant - Appeal allowed
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
Plaintiff (Appellant) : Mr P S Bates
First Defendant (First Respondent) : No appearance
Second Defendant (Second Respondent) : No appearance
Third Defendant (Third Respondent) : Ms J A Thornton
Fourth Defendant (Fourth Respondent) : No appearance
Solicitors:
Plaintiff (Appellant) : D'Angelo & Partners
First Defendant (First Respondent) : No appearance
Second Defendant (Second Respondent) : No appearance
Third Defendant (Third Respondent) : Allens Arthur Robinson
Fourth Defendant (Fourth Respondent) : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Edwards and Anor v The Queen, unreported; SCt of WA; Library No 970030; 6 February 1997
Hughes v Gales (1995) 14 WAR 434
Queensland v J L Holdings (1997) 189 CLR 146
Shtun v Zalejska [1996] 1 WLR 1270
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1995) 13 WAR 323
West Coast Clothing Co Pty Ltd v Sale America Foundation for International Understanding, unreported; SCt of WA; Library No 940482; 7 September 1994
COMMISSIONER GREAVES: This is an appeal from the decision of the learned Registrar whereby he refused the plaintiff's application for leave to file the substituted statement of claim in accordance with the minute filed on 12 March 2001, insofar as the following paragraphs of the minute of substituted statement of claim relate to the third defendant: pars 17, 20, 22, 45.2 – 45.12 inclusive, 83.1 (insofar as it refers to pars 45.2 – 45.12 inclusive), 83.7 – 83.9 inclusive, and 83.12.
In his reasons for decision, the learned Registrar outlined the course of the action and the principles to be applied to an application of this nature. The learned Registrar accepted the submission on behalf of the third defendant that par 45 of the substituted statement of claim raised new allegations against the third defendant relating to failure by staff of the third defendant in the exercise of their professional responsibility. He accepted that after an elapse of four years since the writ was served on the third defendant, and almost six years since the events the subject of the claim, the third defendant has experienced difficulty locating relevant staff members, whose recall of events is likely to be significantly poorer than it would have been had the allegations been made in the original statement of claim. The learned Registrar concluded the substituted statement of claim against the third defendant raised fresh allegations against the third defendant and inferred the loss of recollection by former staff members of the third defendant would result in serious prejudice to the third defendant in the conduct of a fair trial.
The reasons for delay on the part of the plaintiff in the prosecution and pleading of her claim are outlined in pars 6 ‑ 15 of the submissions of counsel for the plaintiff and I do not repeat them here.
In considering whether leave to amend should be granted in this case, it is necessary to consider the initial question whether the particulars contained in par 45.2 ‑ par 45.12 inclusive raise fresh allegations against the third defendant. It is common ground the particulars were not previously pleaded against the third defendant. In par 25 of her outline of submissions on behalf of the third defendant, counsel said the particulars in pars 45.2 – 45.12 have not been previously pleaded. She further submitted that if leave to amend is granted, the third defendant may need to seek further and better particulars of pars 45.2 – 45.12. However this may be, I do not accept the submission that pars 45.2 – 45.12 raise fresh allegations against the third defendant. As counsel for the plaintiff submitted, the cause of action against the third defendant is in negligence and the material objected to is no more than particulars of that allegation. Counsel for the plaintiff also submitted the plaintiff raised the allegations contained in par 45 of the substituted statement of claim with the third defendant immediately following the death of the deceased in 1995, as a result of which the third defendant conducted an internal inquiry, the substance of which has been discovered by the third defendant.
It is unsatisfactory that the course of this action has been delayed. I accept the delay may cause additional difficulty in locating witnesses and in their recalling the events. In my opinion, the learned Registrar placed too much weight upon the consideration that the witnesses for the third defendant will not be able to give evidence as complete as the evidence they would have been in a position to give had the allegations been pleaded much earlier. In my view, given the nature of the allegations as I have explained them, leave to amend should be granted.
Accordingly, the appeal will be allowed, the decision of the learned Registrar quashed and the application for leave to amend granted. I will hear counsel on the question of costs.
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