Grant v Chapmans (A Firm)
[2006] WADC 128
•22 AUGUST 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GRANT -v- CHAPMANS (A FIRM) [2006] WADC 128
CORAM: FENBURY DCJ
HEARD: 7 AUGUST 2006
DELIVERED : 22 AUGUST 2006
FILE NO/S: CIV 1375 of 2004
BETWEEN: ROBERT CARY GRANT
Plaintiff
AND
CHAPMANS (A FIRM)
Defendant
Catchwords:
Appeal from Deputy Registrar's decision granting certain amendments to a statement of claim and refusing to grant others - Turns on own facts
Legislation:
Nil
Result:
Appeal by plaintiff allowed
Appeal by defendant dismissed
Defendant to pay the plaintiff's costs
Representation:
Counsel:
Plaintiff: Mr A J Castley
Defendant: Mr L Gandini
Solicitors:
Plaintiff: Bradford & Co
Defendant: Chapmans
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
FENBURY DCJ: The cause of action pleaded in the plaintiff's original statement of claim was in professional negligence. He has sued the solicitors whom were acting on his behalf in respect of personal injuries he suffered in the workplace. He was pursuing a claim for workers compensation and for damages at common law.
The pleaded duties allegedly breached in the statement of claim focus on various aspects of the advice given, and omitted to be given, concerning the settlement negotiations that culminated in the plaintiff settling all his claims. In short, it is alleged that as a result of the defendant's negligent advice, the plaintiff settled his claim for too modest a sum.
The writ of summons, endorsed with the statement of claim, was served on the defendant on about 14 July 2004. Mutual informal lists of documents were exchanged by early February 2005. The matter was entered for trial on 23 September 2005, and a pre‑trial conference was set for 24 October 2005 before the Principal Registrar.
At the conclusion of the pre‑trial conference the matter was adjourned for a listing conference which was set for 16 December 2005.
On 16 December 2005 the listing conference was adjourned sine die on the plaintiff's application so as to enable him to file and serve an application seeking leave to amend the statement of claim.
On 4 January 2006, the plaintiff filed a chamber summons seeking leave to amend the statement of claim in accordance with a minute of proposed amended statement of claim. The chamber summons was listed for a special appointment and came on for hearing before a Deputy Registrar on 21 March 2006. In the minute it is obvious the plaintiff sought a number of amendments to the statement of claim. The learned Deputy Registrar allowed the plaintiff to amend in accordance with some of the proposed amendments, but refused leave in respect of others.
Both parties have appealed the Deputy Registrar's decision.
The amendments sought in proposed pars 7A, 7B, 8.1A, 8A, 17.2A and 18.2A raise an issue relating to the alleged failure of the defendant to pursue or lodge a particular type of application, called a Form 22 application, made under the Workers' Compensation and Rehabilitation Act 1981.
This allegation amounts to a negligent failure to do an act in the nature of pursuing a right or remedy available to the plaintiff at the time.
It is different to an allegation of negligently advising the plaintiff to compromise his legal rights.
It does seem to me that such an alleged negligent failure to do an act is a different cause of action to an alleged negligent giving of advice.
However, given the defendant is a firm of solicitors retained by the plaintiff to legally represent him in respect of his legal entitlements following his accident at work, and that the new cause of action simply relates to a discrete aspect of the legal framework faced by the plaintiff in his claim in respect of which the defendant was to provide legal assistance, then I think it can fairly be said that the new cause of action arises out of substantially the same facts.
If that view is thought unduly to strain the language of O 21 r 5 of the Supreme Court Rules, then I would also comment that, in my view, the degree of potential prejudice to the plaintiff in not allowing the amendments that relate to the Form 22 far outweigh the prejudice to the defendant in allowing the amendment. The issue is quite discrete and narrow, and I do not think its late revelation is significant.
I would allow the abovenamed amendments.
Turning now to the proposed amendments 10A, 10B, 17.2B and 18.2B these allegations relate to the obtaining of certain medical reports prepared by Dr Lawson Smith at the behest of the insurer in the claim.
The plaintiff wishes to allege that the defendant firm of solicitors failed to obtain copies of these two reports and provide them to the plaintiff.
These allegations again relate to alleged less than professional legal representation and although their connection with whatever loss is alleged to have been suffered by the plaintiff is a bit difficult to see, they do not seem to me to be particularly controversial and I would allow the amendments sought.
It follows therefore that in my view the plaintiff can amend the statement of claim in accordance with the proposed minute of amendments to the statement of claim as filed. The effect of that is that I would allow the appeal by the plaintiff and dismiss the appeal by the defendant. The defendant should pay the plaintiff's costs to be taxed if not agreed.
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