Gove v Black
[2001] WASC 223
GOVE -v- BLACK & ORS [2001] WASC 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 223 | |
| Case No: | CIV:2375/1997 | 2 AUGUST 2001 | |
| Coram: | MASTER SANDERSON | 21/08/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| B | |||
| PDF Version |
| Parties: | SHARON LEE GOVE RICHARD ASH BLACK ASH INVESTMENTS PTY LTD (ACN 007 949 395) THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175) CITY OF FREMANTLE DREXEL LONDON (A FIRM) HALPERN GLICK PTY LTD (ACN 008 729 204) BRIAN HARDACRE |
Catchwords: | Practice and procedure Application for leave to amend statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Gove v Black [2001] WASC 80 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, 176 ALR 411 Perre v Arpand Pty Ltd [1999] HCA 36, (1999) 198 CLR 180 State of Western Australia v McFarlane, unreported; FCt SCt of WA; Library No 980248; 20 April 1998 Voli v Inglewood Shire Council (1963) 110 CLR 74 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant (Third Party)
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant (First Fourth Party)
BRIAN HARDACRE
Second Fourth Party
(Page 2)
Catchwords:
Practice and procedure - Application for leave to amend statement of claim - Turns on own facts
Legislation:
Nil
Result:
Leave refused
Category: B
Representation:
Counsel:
Plaintiff : Mr D R Clyne
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant (Third Party) : Mr M J Buss QC &
Mr M T Spillane
Sixth Defendant (First Fourth Party) : No appearance
Second Fourth Party : No appearance
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant (Third Party) : Mullins Handcock
Sixth Defendant (First Fourth Party) : No appearance
Second Fourth Party : No appearance
(Page 4)
Case(s) referred to in judgment(s):
Gove v Black [2001] WASC 80
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, 176 ALR 411
Case(s) also cited:
Perre v Arpand Pty Ltd [1999] HCA 36, (1999) 198 CLR 180
State of Western Australia v McFarlane, unreported; FCt SCt of WA; Library No 980248; 20 April 1998
Voli v Inglewood Shire Council (1963) 110 CLR 74
(Page 5)
1 MASTER SANDERSON: This is the return of the plaintiff's application for leave to amend the statement of claim in terms of a minute of amended substituted statement of claim ("the Minute") filed 26 April 2001. This matter has something of a history. On 20 March 2001 I heard an application by the plaintiff for leave to amend in terms of an earlier minute. Leave to amend was refused but the plaintiff was permitted to replead: see Gove v Black [2001] WASC 80. The fifth defendant maintains that the latest minute of the statement of claim is still inadequate and that leave to amend in terms of the minute should not be granted.
2 In my earlier decision on the plaintiff's application I gave a brief outline of the facts of the case. I do not propose to repeat what I said in the earlier decision. I would adopt the summary of facts contained in the earlier decision into these reasons.
3 Complaint is made as to the new par 46(b) of the Minute. The plaintiff alleges that a certain agreement was "partly oral and partly written". It is pleaded by par 46(b) that:
"Insofar as it was made in writing, the agreement was contained in or is to be inferred from the following documents or some or one of them".
4 There are then specified three documents, one of which comprises 12 "fee notes". It is said on behalf of the fifth defendant that the plea lacks specificity - the fifth defendant does know which of the 14 documents referred to the plaintiff relies upon.
5 In answer the plaintiff says that the form of the pleading is taken from Bullen, Leake & Jacobs: "Precedents of Pleading", 13th ed, Form 187 at 273 - 274. It is said that the form of the pleading based upon this authoritative text can be regarded as satisfactory.
6 I have some difficulty understanding why it is that the plaintiff cannot simply refer to the particular documents it says embody the written part of the contract entered into between the parties. At some stage the pleader must have turned his or her mind to this question so as to allow the material fact to be pleaded. If that is so, and it could hardly be otherwise, there should be no difficulty in the pleader being precise. Having said that, I am loath to reject a plea which accords with the form adopted by a leading text such as Bullen, Leake & Jacobs. On that basis and with some hesitation, I will allow the plea in par 46(b) to stand.
(Page 6)
7 Complaint is then made of par 47. That paragraph is in the following terms:
"In carrying out the Work the fifth defendant was under a duty of care to act with all due professional skill, care and diligence in the performance of same so as to ensure the Building was constructed in a manner that would not cause injury to a person or persons who could reasonably have been expected to use the Building in the ordinary way associated with the purpose for which it was constructed, namely residential apartments".
8 The definition of "Work" is to be found in par 46 of the Minute. Relevantly that paragraph reads as follows:
"By an agreement made in or about October 1980 between Lavender Bay Pty Ltd ('Lavender Bay') and the fifth defendant ('the Agreement') the fifth defendant agreed to provide services to and carry out work for Lavender Bay ('the Work') in relation to the conversion of the Building from the Old Soap Factory into apartments, which conversion included the construction of the Balcony ('the Construction Work'), in consideration of the payment of a fee ('the Fee') to the Fifth Defendant by Lavender Bay".
9 It seems then that the duty of care which is under consideration was a duty of care in relation to the carrying out of work and presumably that definition of "work" includes the "construction work". There is an element of confusion in all of this and it renders par 47 somewhat difficult to follow. Nonetheless I think the plea is in a proper form.
10 In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, 176 ALR 411 the High Court considered the way in which a duty of care was to be expressed. Hayne J put the position as follows (at par 104 - par 106 at 437):
"In Sutherland Shire Council v Heyman, Brennan J pointed out that 'a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member'. Ordinarily it may be expected that it will be sufficient to state the duty of care by reference to these two matters: the kind of damage suffered and the class of which the plaintiff is a member. Even that, however, may not suffice in some cases.
(Page 7)
- In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff has suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend.
The complaint made by the respondents in this case was that the first respondent suffered personal injury because the appellant did not leave the car park lights on when he was leaving the shop where he worked. The complaint was not that the appellant should have, but did not, control access by the assailants to the premises it occupied. It is important, then, to appreciate that the allegation of breach (and, by necessary implication, the scope of the duty alleged) concerned the state of the premises. It was not about third parties coming on to, or remaining on, the premises. The allegation therefore invites attention to the connection between the state of the premises and the assault by those third parties."
11 Justice Hayne then refers to three elements of a case pleaded in tort. First, the kind of damage suffered, second, the class of which the plaintiff is a member and the particular want of care which is alleged against the defendant. In my view all three elements are to be found in par 47 and, even allowing for the confusion caused by the reference to "work", the fifth defendant knows the case that it has to meet. I am satisfied that par 47 is in proper form.
12 The fifth defendant complains of the plea in par 50(b). This paragraph refers to certain "Specifications" which are a written document and which are defined elsewhere in the pleadings (see par 49). Paragraph 50(b) pleads that the specifications provided "that the fifth defendant was to inspect the said timber, after delivery and before being built in." In fact the specifications do not do that at all. The specifications are to be found as annexure "SFM2" to the affidavit of Sean Finbarr Mullins sworn 1 March 2001. Clause J 1.04(f) does allow for inspection of timber immediately after delivery and before being built in, but upon giving three days' notice: see cl J 1.04(a). The clause is not happily formulated. Nonetheless it is clear that cl J 1.04(f) is conditioned by cl J 1.04(a). That is clear both from a full reading of the clause and the
(Page 8)
- positioning of the colon at the end of cl J 1.04(a). With respect, the pleader appears not to have read the clause.
13 This is a small point but it is one which the fifth defendant is entitled to have corrected. As par 50(b) stands at the moment it gives rise to a false issue. There is no reason why the real issue between the parties should not be defined by the pleadings and I would not allow par 50(b) in its present form to stand.
14 Paragraph 51 pleads a duty of care and is in the following terms:
"During the carrying out of the Work the fifth defendant was as supervising architect of the Construction Work under a duty to exercise all due professional skill, care and diligence in the performance of its services which duty reasonably required the fifth defendant to: …"
15 In my view this paragraph is confusing. Presumably what is pleaded is a different duty of care to that pleaded in par 47. If that is not the case then one or other of the two paragraph is superfluous. Further, the reference in par 51 is to the fifth defendant in its capacity "as supervising architect". That term is nowhere defined. Presumably what is meant is that the duty arises because the architect was to supervise the "construction work". In par 46 it is said that pursuant to the contract the fifth defendant agreed "to provide services and to carry out work for Lavender Bay". No mention is made of supervision. Further, supervision is of the "construction work" which relates just to the construction of the balcony and is a subset of the wider definition of "work".
16 The position is unsatisfactory. The relationship between par 46, par 47 and par 51 is by no means clear. The fifth defendant is entitled to know what duty is said to arise and why. I would not allow the amendment as proposed to par 51 and in reworking that paragraph, further attention ought be paid to par 46 and par 47.
17 Finally, complaint is made of par 52. In my earlier judgment I highlighted the difficulty of correlating the particulars of negligence to be found in par 52 with any of the obligations said to arise consequent upon the fifth defendant's duty of care as pleaded in par 51. The same problem still exists. By par 52(b) it is said that the fifth defendant "Failed to take any, or any significant, steps to ensure that oregon/douglas fir was not substituted for jarrah in the construction of the Balcony". As I pointed out in my earlier decision, this alleged breach of duty does not sit happily with any of the pleaded duties to be found either in par 51 or par 47. In
other words, par 52 of the present minute does not cure the significant defects in the earlier pleading. It is difficult to see why not.
18 Complaint is also made of par 52(a). It is said that the paragraph is embarrassing because it does not identify what inspection and supervision work should have been carried out by the fifth defendant. The complaint is well made but it can be cured by the provision of particulars. As par 52 requires amendment it would be appropriate for those particulars to be included in any further minute.
19 Counsel for the fifth defendant made the point that this is the fifth or sixth attempt to plead its case against the fifth defendant. Still the pleading is not in a proper form. Nonetheless it is clear that the plaintiff can, if careful attention if paid to the pleading, formulate a statement of claim which can stand as against the fifth defendant. It should not now be difficult for the plaintiff to put the pleading into a proper form. On that basis I will give leave to the plaintiff to bring in a fresh minute.
20 I will hear the parties as to the precise form of orders. As to costs, these should be paid by the plaintiff.
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