Gove v Black
[2001] WASC 80
GOVE -v- BLACK & ORS [2001] WASC 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 80 | |
| Case No: | CIV:2375/1997 | 20 MARCH 2001 | |
| Coram: | MASTER SANDERSON | 28/03/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| 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) |
Catchwords: | Practice and procedure Application for leave to amend statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Redden v Wilks [1979] WAR 161 Jones v Bartlett [2000] 176 ALR 137 Perre v Apand Pty Ltd [1999] HCA 36 |
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)
(Page 2)
Catchwords:
Practice and procedure - Application for leave to amend statement of claim - Turns on own facts
Legislation:
Nil
Result:
Leave refused
Representation:
Counsel:
Plaintiff : Mr J P T Olivier
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 I Handcock
Sixth Defendant (First 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
Case(s) referred to in judgment(s):
Redden v Wilks [1979] WAR 161
(Page 3)
Case(s) also cited:
Jones v Bartlett [2000] 176 ALR 137
Perre v Apand Pty Ltd [1999] HCA 36
(Page 4)
1 MASTER SANDERSON: This is the plaintiff's application for leave to amend its statement of claim in terms of a minute of substituted statement of claim undated but filed 9 January 2001. The fifth defendant objects to certain paragraphs of the minute. In my view, two of the objections carry sufficient weight to refuse leave to amend in terms of the minute. A number of the other objections taken by the fifth defendant, while properly made, would not by themselves have justified a refusal of leave to amend. During the course of these reasons I will deal with all of the fifth defendant's objections with a view to the plaintiff preparing a further minute addressing all objections, both major and minor.
2 For the purposes of this application a brief summary of the facts is all that is required. The plaintiff was injured on 31 December 1996 when a balcony on which he was standing at a property known as "the Old Soap Factory" collapsed. The fifth defendant is, and was at all material times a firm of architects. It is alleged that the collapse of the balcony and the consequent injury to the plaintiff was occasioned by the negligence inter alia of the fifth defendant. In general terms it is alleged that the fifth defendant was engaged to design and supervise the conversion of the premises into apartments. It is alleged that the fifth defendant designed the balcony and had other duties, both in tort and contract, during the construction of the balcony. It is worthy of note that the construction of the balcony took place some 20 years ago and that the contractual agreement pursuant to which the fifth defendant provided its services was between the fifth defendant and a company known as Lavender Bay Pty Ltd, a company which is not party to these proceedings.
3 The claim made against the fifth defendant is to be found in par 46 through to par 52 of the minute. In par 46 the plaintiff pleads the agreement between Lavender Bay Pty Ltd and the fifth defendant. It is said that the agreement was partly oral and partly in writing. The fifth defendant says that the plaintiff does not provide adequate material facts to support the oral agreement and that the particulars provided are not sufficient.
4 In my view par 46 is in a form which is sometimes described as a rolled-up plea. If sound pleading practice were followed the plaintiff would plead as a separate paragraph the fact of the agreement and its terms. It would then plead the fact that the agreement was partly oral and partly in writing. Again, this would comprise a separate paragraph. It would then be pleaded that the oral agreement was made between certain persons on certain dates at certain places. In a subsequent paragraph the written part of the agreement should be identified with specific documents
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- included as material facts rather than particulars. This follows the form of pleading to be found in Bullen & Leake and Jacobs "Precedents of Pleading", 13th ed, Form 187 at page 273 - 274.
5 It is not always the case that this approach is adopted. Agreements which are said to be partly oral and partly in writing are frequently pleaded with particulars showing what part was oral and how it arose and what part is in writing and what documents are relied upon: see Seaman "Civil Procedure Western Australia", par 20.13.9 and the authorities referred to therein. Frequently this causes no difficulty. But in my view it is better to plead as material facts, in the case of oral contracts, who held the discussions and when and where they were held and in the case of the written part of the contract, what documents comprise the contract. It is then open to a defendant responding to these pleas to admit or deny those material facts. If these matters are confined to particulars proper pleading practice would require that the defendant not respond directly to the particulars. The result will be a general denial of the terms of the agreement and the precise nature of the issue joined between the plaintiff and the defendant remains obscure.
6 In line with the above, I am not satisfied that par 46 is a proper plea. Largely, however, the deficiencies are of form rather than substance. But there is one significant difficulty with par 46 which I regard as the first of the two main failings of the plea. With respect to the written part of the contract which is dealt with by subpar (b) of the particulars, the phrase used is "the written part consists of or is evidenced by". The fifth defendant complains that there is a difference between a written agreement and an agreement which is evidenced in writing. In my view that point is well made. An agreement may be in writing and if it is, it is embodied in the written document. Alternatively, an agreement can be inferred from written documents. But it is a different thing if there is an agreement which is evidenced in writing. Then the written document itself does not embody the contract but simply is evidence of the contract. The distinction is most often of importance in contracts concerning the sale of land when the contract itself must be in writing and written evidence of the contract is not always sufficient: see Redden v Wilks [1979] WAR 161. While the distinction may not be of great importance in this case, I do think the plaintiff is entitled to know precisely the case it has to meet. That is to say, it is entitled to know whether the written part of the contract consists of the documents or whether it is to be inferred from those documents. Alternatively, if agreement has been reached orally or in some other way and the documents are evidence of that agreement, then that too should be pleaded.
(Page 6)
7 As to par 47, the fifth defendant complains there has not been adequate pleading of material facts giving rise to a duty of care. That is clearly correct. The existence of a duty of care will ultimately depend on the facts of each case. The only material fact given in par 47 is that the plaintiff was said to be of an ascertainable class of persons who might in the future use the building and the balcony. As counsel for the fifth defendant submitted, that style of plea is most often associated with claims for purely economic loss. In my view par 47 in its present form does not adequately plead material facts upon which it could be concluded that there is a duty of care as between the plaintiff and the fifth defendant. It is not difficult to see what those material facts might be and there is no reason why they could not be included in any amended statement of claim.
8 During the course of his submissions counsel for the plaintiff sought leave to amend further par 49. Counsel sought to insert the words "and the plans" after the words "to be used" found in line 2 of par 49. The application proceeded on the basis that those extra words would be included in the pleading.
9 Even allowing for the inclusion of the extra words in par 49 the fifth defendant said that the pleading in par 50 was inadequate. First it was said that the inclusion of the words inter alia in the first line of par 50 was improper. It was submitted that the impression given was that the six aspects of the Specifications referred to in subpar (a) through to subpar (e) were not the only aspects of the Specifications which would be referred to at trial. It was submitted that the fifth defendant was entitled to know whether or not it was only the six subparagraphs which were to be referred to or whether there were other matters which would be raised. In response counsel for the plaintiff indicated that the use of the words inter alia indicated nothing more than that the Specifications included the six matters referred to among many others. No other matters than those pleaded would form part of the plaintiff's case.
10 This is a minor matter which even in the context of this application does not require lengthy attention. However, it is a matter which is now quite frequently the subject of complaint. On balance, I am of the view that it would be better if rather than the phrase "inter alia" the pleader used an expression such as "relevantly" or "in particular". Neither of these expressions leave any room for doubt. Having said that the point is a minor one and would not in other circumstances justify a refusal of leave to amend.
(Page 7)
11 The fifth defendant's main complaints about par 50 are that subpar 50(b), subpar 50(c), subpar 50(d) and subpar 50(e) are "wrong". That is to say, it is the fifth defendant's position that when reference is made to "the Specifications" as that expression is defined in par 49, the matters alleged in the particular subparagraphs of par 50 which I have mentioned are not to be found. By way of example, it is said by the fifth defendant that the Specifications do not contain the detail of the design of the half-housing interface between the joists and the face and wall plates as alleged in subpar 50(d). However, when reference is made to the plans now referred to in par 49 and by definition forming part of the Specifications, there appears the following entry: "Bulk wall plates to brick work with TS-12-7SS steel trubolts placed centrally between joists (rafters) alternately 50 from top and bottom".
12 In my view, with respect to subpar 50(c) and subpar 50(d), a reference to the plans makes it plain that the pleas are not wrong and they can stand. During the course of his submissions counsel for the plaintiff acknowledged that the plans did not appear to contain anything as pleaded in subpar 50(e). If that is so then that paragraph ought be omitted. The complaint in relation to subpar 50(b) is slightly different. As pleaded, it is said that the Specifications required "that the fifth defendant was to inspect the said timber" to be used in the balcony. In fact, reference to cl J1.04(a) and (f) of the written Specifications made it plain that the timber was to be inspected on notice. To that extent the present plea in subpar 50(b) is misleading and incomplete and should not be permitted to stand.
13 By par 51 it is pleaded that during the carrying out of the construction work the fifth defendant "was obliged" to do certain things which are set out in subpar (a) through to subpar (h). The fifth defendant complains that no material facts are pleaded which it is said give rise to the obligation. Clearly the obligations must arise either in contract or pursuant to the alleged duty of care owed by the fifth defendant to the plaintiff. In my view it would be proper for the plaintiff to identify the material facts which give rise to the pleaded obligations.
14 Finally, complaint is made of par 52. By this paragraph the plaintiff alleges that the collapse of the balcony and her subsequent injuries "were caused and/or contributed to by the negligence and/or breach of Duty of Care of the fifth defendant". The fifth defendant complains that if there is a difference between "negligence" and the "breach of duty of care" then the difference ought be specified and the way it is pleaded at present is embarrassing. In my view there is nothing embarrassing in the way the
(Page 8)
- matter is pleaded at the moment and by phrasing the basis of the claim in the alternative, the plaintiff is doing nothing more than adopting common pleading practice.
15 However, there is, in my view, a significant difficulty with par 52. It is the second significant flaw in the pleading. Within the paragraph particulars of negligence are provided. It is difficult to correlate the particulars of negligence with any of the obligations said to arise consequent upon the fifth defendant's duty of care to the plaintiff as set out in par 51. For instance, subpar 52(b) alleges that the fifth defendant "Failed to take any, or any sufficient, steps to ensure that oregon/douglas fir was not substituted for jarrah in the construction of the Balcony". That is not an obligation which is referred to directly in par 51. It may be covered by subpar 51(b) and/or subpar 51(d), but in my view the position ought be made explicit. As it presently stands, par 52 is in that sense defective. A further complaint is made by the fifth defendant about par 52. By subpar 52(a) it is said that the fifth defendant was negligent, "Became aware or knew, or ought to have known, that oregon/douglas fir was substituted for jarrah in the construction of the Balcony …". The fifth defendant complains that particulars of this knowledge are not provided. They ought be provided. It may be that it is open to the fifth defendant to request the particulars of knowledge pursuant to O 20 r 13(4) of the Rules of the Supreme Court 1971. However, in the interests of efficiently disposing of this case it would be preferable if particulars of knowledge were provided within the pleading.
16 For these reasons I would refuse leave to amend in terms of the present minute of substituted statement of claim. However, I would allow the plaintiff to replead. I will hear the parties as to the precise form of order and as to costs.