Cortese v Avanova Pty Ltd
[2022] WADC 34
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CORTESE -v- AVANOVA PTY LTD [2022] WADC 34
CORAM: REGISTRAR HOGAN
HEARD: 23 MARCH 2022
DELIVERED : 13 APRIL 2022
FILE NO/S: CIV 2321 of 2021
BETWEEN: CHELSEA ROSE CORTESE
Plaintiff
AND
AVANOVA PTY LTD
First Defendant
HORIZONTAL FALLS PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Discovery - Further and better particulars of defence - Strike out parts of statement of claim - Springing order - Turns on own facts
Legislation:
District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Discovery application dismissed
Application for further and better particulars of defence dismissed
Application to strike out parts of statement of claim and for a springing order - partially successful
Representation:
Counsel:
| Plaintiff | : | Mr N F Morrissey |
| First Defendant | : | Ms J L W Henderson and Mr G B Rogers |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Maureen O'Connell |
| First Defendant | : | Jackson McDonald |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
MTQ Holdings Pty Ltd v Lynch [No 3] [2007] WASC 49
REGISTRAR HOGAN:
The plaintiff filed a writ and statement of claim (SOC) on 29 June 2021 claiming damages for personal injuries sustained whilst a passenger in a helicopter owned by Avanova Pty Ltd.
The writ initially named two defendants, Avanova Pty Ltd and Horizontal Falls Pty Ltd. The action against Horizontal Falls Pty Ltd was dismissed by consent on 23 November 2021.
Plaintiff's claim
Essentially the plaintiff pleads that:
(a)she suffered injury whilst a passenger in a helicopter owned by the defendant;
(b)the helicopter was situated on top of High Calibre, a boat owned by the pilot;
(c)as the helicopter began to take off a holding strap was still attached on the underside of the helicopter which pulled the helicopter down and as the helicopter was manoeuvred to the right it began to tilt and sliced the right‑hand side of High Calibre, shattering the glass windows before nose‑diving into the water; and
(d)the defendant was negligent in attempting to take off and climb the helicopter while it was still strapped to High Calibre causing a loss of control and the defendant failed to perform adequate pre‑flight checks to ensure that the helicopter was not strapped to High Calibre before taking off and failed to exercise sufficient care and skill in the operation of the helicopter to prevent the accident.
The applications
Chambers applications have been filed on 11 January 2022, 24 January 2022, and 3 February 2022.
Chamber summons dated 11 January 2022
By an application dated 11 January 2022 (Discovery Application) the plaintiff sought orders that:
1.The time for hearing of Chamber Summons be abridged.
2.The First Defendant file and serve upon the Plaintiff, its Affidavit of Discovery within 14 days from the date of this Order.
3.The First Defendant provide copies of the documents contained in the Affidavit of Discovery, to the Plaintiff, within 14 days from the date of this Order.
4.The First Defendant pay the costs of this application in any event.
Chamber summons dated 24 January 2022
By application dated 24 January 2022 (Particulars Application) the plaintiff sought orders that:
1.The First Defendant file and serve upon the Plaintiff, its substantive answer to the Plaintiff's Request for Further and Better Particulars of the First Defendant's Defence within 7 days from the date of this Order.
2.The First Defendant pay the costs of this application in any event.
Chamber summons dated 3 February 2022
By application dated 3 February 2022 (Strike‑out Application) the defendant sought orders that:
1.The first defendant have leave to apply pursuant to Order 20 Rule 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC) to strike out those paragraphs, or parts thereof, of the plaintiff's statement of claim filed 29 June 2021 (SOC) identified in paragraph 2 of these orders.
2.Pursuant to Order 20 Rule 19(1) of the RSC, the following paragraphs, or parts thereof, be struck out on the following grounds:
(a)The entirety of paragraph 1 of the SOC, on the grounds that the paragraph may prejudice, embarrass or delay the fair trial of the action (Order 20 Rule 19(1)(c)).
(b)The entirety of paragraphs 2(e), 2(f) and 2(g) of the SOC on the grounds that those paragraphs are an abuse of process (Order 20 Rule 19(1)(d) of the RSC).
(c)The entirety of paragraph 2(h) of the SOC, on the grounds that the paragraph may prejudice, embarrass or delay the fair trial of the action (Order 20 Rule 19(1)(c)).
(d)The entirety of paragraph 7 of the SOC, on the grounds that the paragraph may prejudice, embarrass or delay the fair trial of the action (Order 20 Rule 19(1)(c)).
(e)The words 'Second Defendant' in paragraphs 3, 5 and 8 of the SOC, on the grounds that those words are an abuse of process (Order 20 Rule 19(1)(d) of the RSC).
(f)The entirety of paragraph 8 of the SOC, on the grounds that the paragraph:
(i)does not disclose any reasonable cause of action (Order 20 Rule 19(1)(a));
and/or
(ii)may prejudice, embarrass or delay the fair trial of the action (Order 20 Rule 19(1)(c)).
(g)The entirety of paragraph 9 of the SOC, on the grounds that the paragraph does not disclose any reasonable cause of action (Order 20 Rule 19(1)(a)).
3.Within 14 days of the date of these orders, the plaintiff file and serve upon the first defendant, answers to the following paragraphs of the first defendant's request for further and better particulars of statement of claim filed 9 December 2021:
(a)Paragraph 7.
(b)Paragraph 11.
4.Unless the plaintiff files and serves her particulars of damage on the first defendant as required by Rule 45C of the District Court Rules 2005 (WA) within 14 days of the date of this order, the plaintiff's action against the first defendant shall be dismissed and judgment be entered for the first defendant with costs, to be taxed if not agreed.
5.The plaintiff pay the first defendant's costs of and incidental to this summons forthwith, to be taxed if not agreed.
6.Such further or other orders as the Court deems fit.
The plaintiff filed submissions dated 9 March 2022 and the following affidavits in support of the plaintiff's application:
1.Affidavit of Maureen Bijou O'Connell sworn 11 January 2022.
2.Affidavit of Maureen Bijou O'Connell sworn 24 January 2022.
The defendant filed submissions dated 9 March 2022 and an affidavit of Gregory Brewster Rogers sworn 3 February 2022.
The plaintiff filed an amended statement of claim on 10 March 2022 (ASOC).
The effect of the ASOC was to substantially alter the defendant's response to the Discovery Application and the orders sought by the defendant in the Strike‑Out Application.
On 22 March 2022 the defendant advised the court by letter dated 22 March 2022 that:
3.The effect of the ASOC is that the defendant:
(a)No longer presses for orders in terms of paragraphs 1 to 3 of the Strike Out Application.
(b)Continues to press for the orders in paragraphs 4 and 5 of the Strike Out Application, albeit in different terms.
(c)No longer opposes the orders sought in paragraphs 2 and 3 of the Discovery Application, but does press for a period longer than 14 days.
(d)Maintains its opposition to the Particulars Application and to all orders regarding costs sought by the plaintiff in the Particulars and Discovery Applications.
4.The defendant now moves that the Discovery Application, the Particulars Application and the Strike Out Application be disposed of in terms of the proposed minute of orders filed with the Court on 22 March 2022 … .
Strike-out Application
Pursuant to O 20 r 19(3) of the Rules of the Supreme Court 1971 (WA) (RSC) an application must be made within 21 days of the service of any pleading or amended pleading to which the application refers. The SOC was filed on 29 June 2021.
Whilst the Strike-out Application was not issued until 3 February 2022, in considering the application I am mindful that the parties had been engaged in ongoing conferral regarding the pleadings.
The ASOC was filed and served on 10 March 2022, after considerable correspondence between the parties.
The time between the filing of the initial SOC and the filing of the ASOC included a period when the plaintiff did not have capacity to instruct her solicitor.
Consent orders were filed in the District Court regarding extending the time within which to file and serve a defence and Strike‑out Application and for the extension of the entry for trial milestone.
In considering whether leave should be granted to bring a Strike‑out Application, I have considered the history of consent orders filed and correspondence between the parties produced before me.
Taking that into account it does not appear that the defendant acted unreasonably in delaying the action and leave is granted for bringing that application.
The effect of the plaintiff's filing of the ASOC and the defendant's letter dated 22 March 2022 is that it is no longer necessary to decide the application to strike out the pleadings however the question of whether the application was properly brought is relevant to the question of the costs of the application.
Were it still necessary to make a decision regarding the application to strike out various paragraphs of the SOC, I find the defendant would have been successful and the application was properly brought.
Particulars Application
In its application the defendant seeks orders that:
Unless the plaintiff files and serves her particulars of damages upon the first defendant as required by r 45(c) of the District Court Rules 2005 within 14 days of the date of this order the plaintiff's action against the defendant should be dismissed and judgment entered against the defendant with costs to be taxed if not agreed.
The plaintiff accepted that r 45(c)(1) of the District Court Rules 2005 (WA) (DCR) establishes that a party claiming damages is to file and serve particulars of damages within 60 days after the defence is filed. In the present case the defendant filed its defence on 3 December 2021 and a period of 60 days expired on 3 February 2022, the day the defendant filed its chambers summons application.
The plaintiff filed an ASOC on 10 March 2022.
The defendant has not filed an amended defence.
It is the plaintiff's case that significant delays have been incurred because of the claimed failure of the defendant to provide discovery and its delay in bringing its Strike Out Applications; that it would have been inappropriate for the plaintiff's particulars of damages to have been finalised and filed on or before 3 February 2022 and in such circumstances, it is inappropriate for the defendant to seek such a springing order.
Reliance was placed on the decision MTQ Holdings Pty Ltd v Lynch [No 3] [2007] WASC 49 [54]:
A springing order is intended to be the last opportunity offered to the party to put its case in order.
The plaintiff argued that in this case the plaintiff had been actively taking steps to progress a claim and has been frustrated in doing so by the defendant.
The plaintiff argued that in these circumstances the interests of justice would not be served in making a springing order against the plaintiff and the defendant's application should be dismissed.
I refer to O 1 r 4A of the RSC which is expressed in the following terms:
The practice procedure and interlocutory processes of the court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case of a trial.
This does not appear to be a case where the delays could be regarded as extreme and I consider that the use of a springing order would bring a harsh result to the plaintiff.
I am reluctant to exercise a discretion to make a springing order where that party is not in clear breach of an order of the court.
I do not consider that it is in the interests of justice to make a springing order against the plaintiff and the defendant's application in this regard is dismissed.
The Discovery Application
Following the filing of the ASOC and by letter dated 22 March 2022 the defendant conceded that it is now able to provide discovery and did not continue to oppose the orders sought by the plaintiff though sought a period of longer than 14 days and opposed costs orders sought by the plaintiff in relation to the Discovery Application.
The ASOC removed reference to a party against whom the plaintiff was known not to be proceeding, the action against the second named defendant having been dismissed in November 2021. Pleadings founded in breach of contract and statutory duty under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) and Civil Aviation (Carriers' Liability) Act 1961 (WA) were also removed. Particulars of negligence were added though in this regard, no material difference to the case was pleaded.
On balance I consider it was not unreasonable for the defendant to have delayed the provision of discovery and I therefore dismiss the plaintiff's application.
The Particulars Application
The plaintiff seeks further and better particulars at par 2.8 of the defence. In this paragraph the defendant denies owing a duty of care as pleaded in par 2(h) of the SOC.
The plaintiff argued that in circumstances where the first defendant, through its defence has admitted:
(a)at the material times the Robinson 44 helicopter was owned and operated by it;
(b)High Calibre was owned by it;
(c)the late Troy Thomas was a director of the defendant; and
(d)the late Troy Thomas was piloting the helicopter at the material date.
the plaintiff is unable to understand the basis for the defendant denying it owed the plaintiff a duty of care as pleaded.
The defendant denies that it owed a duty of care to the plaintiff at all material times. The defendant says it is unable to provide any particulars of the denial because of what it regards as the plaintiff's inadequate pleading. Material time is not defined, and the defendant maintains it is not readily inferable from pleadings that failed to particularise the precise events said to have occurred or the mechanism by which they are said to have caused injury to the plaintiff.
The defendant maintains that there is no authority for the proposition that an operator must ensure that a passenger does not sustain injuries. The defendant maintains it is not a recognised duty of care.
The defendant says the duty as pleaded by the plaintiff is too general for the defendant to respond to other than with a denial.
I agree with the defendant and dismiss the plaintiff's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MK
Associate
13 APRIL 2022
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