Gray v Newhill

[2000] WADC 46

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GRAY -v- NEWHILL & ORS [2000] WADC 46

CORAM:   COMMISSIONER CHANEY

HEARD:   21 JANUARY 2000

DELIVERED          :   18 FEBRUARY 2000

FILE NO/S:   CIV 972 of 1999

BETWEEN:   SHANE ALLEN GRAY

Plaintiff

AND

ANTHONY JOHN and ROMA NEWHILL
First Defendant

SUPERB CEILINGS NOMINEES PTY LTD
Second Defendant

HAVENDALE PTY LTD
Third Defendant

Catchwords:

Practice and Procedure - Defective Indorsement of Claim on writ as against one defendant - Writ irregular - Expiry of limitation period - Subsequent amendment of writ - Whether addition of a new cause of action - Whether addition of new party - Effect of unconditional appearance

Legislation:

(Rules of Supreme Court 1971), O6 r1, O20 r2, O21 rules 1 and 5

Result:

Leave to amend granted

Representation:

Counsel:

Plaintiff:     Mr P D Martino

First Defendant             :     No Appearance

Second Defendant         :     No Appearance

Third Defendant           :     Ms Rani Aria-Retnam

Solicitors:

Plaintiff:     Taylor Smart

First Defendant             :     Not Applicable

Second Defendant         :     Not Applicable

Third Defendant           :     Jackson McDonald

Case(s) referred to in judgment(s):

Bill Discount Services Pty Ltd (in liquidation) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987

Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529

Greenhill Associates (WA) Pty Ltd the Directories (Australia) Pty Ltd, unreported; SCt of WA; Library No 5493, 4 September 1984

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Hill v Luton Corporation [1951] 2 KB 387

Morgan v Banning (1999) 20 WAR 474

Pontin and Another v Wood [1962] 1 QB 594

Sterman v E W and W J Moore (1970) 2 WLR 386

Case(s) also cited:

Western National Bank v Perez [1891] 1 QB 304

Trustek Australia Pty Ltd v Burke, unreported; SCt of WA; Library No 980121; 16 March 1998

Liff v Peasley [1980] 1 WLR 781

Weldon v Neal [1887] 19 QBD 394

Ketteman v Hansel Properties Ltd [1887] AC 189

Healey v Ballarat East Bowling Club [1961] VR 206

1. COMMISSIONER CHANEY:  These reasons concern appeals by each of the plaintiff and the third defendant against the orders made by a Deputy Registrar in Chambers on 3 August 1999.  Appeals from a Registrar to a Judge of this Court are hearings of the original application de novo.  Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28.

2. The applications before me are best understood against the background of the action to date.

3. On 11 March 1999 the writ was issued.  The heading of the action made reference to the plaintiff and the first, second and third defendants.  The command of the Crown requiring the entry of an appearance to the writ was directed to each of the first, second and third defendants by name and address.  The indorsement of claim made no reference to the third defendant, and was in the following terms:

   "The plaintiffs claim is for damages for personal injuries sustained by the plaintiff on or about 15 March 1993 which injury was caused by the negligence of and/or breach of contract by the first defendant's, their servants or agents and/or in the alternative by the negligence of and/or breach of contract by the second defendant, its servants or agents.

   AND THE PLAINTIFF CLAIMS:

   a.Damages

   b.Interest

   c.Costs."

4. The writ was served on the third defendant on 12 March 1999. It is common ground that the limitation period whether in relation to contract, tort or breach of statutory duty, expired on 15 March 1999. On 19 March 1999 an amended writ of summons was filed and served on the third defendant. The face sheet of the writ recited that it was "amended pursuant to Order 21 r1". The substance of the amendment was to add to the indorsement the following words:

   "And/or in the alternative by the negligence of and/or breach by the third defendant, its servants or agents of its duty pursuant to the Occupiers Liability Act, 1985 as occupier of premises where the plaintiff sustained injury."

5. The circumstances of the amendment to the writ were explained in an affidavit made by a solicitor with the conduct of the action on behalf of the plaintiff.  She said that the omission of a reference to the third defendant in the indorsement of claim in the original writ was by reason of an oversight on her part, and as soon as she became aware of that oversight, she prepared and filed the amended writ of summons.

6. On 31 March 1999, Anthony Torre & Monaco, solicitors for the third defendant, entered an unconditional appearance for the third defendant.

7. It is apparent that at some point the third defendant's insurers were notified of the issue of the writ.  An affidavit of Peter Christopher Wall, an articled clerk employed by Jackson McDonald, deposes to the fact that Jackson McDonald received advice on 26 March 1999 from their client, H I H Insurance Ltd that there was an outstanding writ against the third defendant, and the firm was instructed to make inquiries about the writ and to ascertain whether the policy issued by H I H Insurance Ltd to the third defendant responded to the plaintiff's claim.  Mr Wall telephoned the plaintiff's solicitors to advise that his firm had received instructions from H I H Insurance Ltd and he inquired as to whether the third defendant had filed a memorandum of appearance.  He was told (obviously mistakenly) that there was no appearance entered at that time and he obtained an extension of time within which to enter an appearance in order to enable him to take instructions.

8. On 4 May 1999, Jackson McDonald, apparently still believing that no appearance had been entered for the third defendant, entered a conditional memorandum of appearance together with a chamber summons seeking the following orders:

   "1.The third defendant have leave to bring this application.

   2.The plaintiff's claim against the third defendant be struck out for being statute barred.

   3.The plaintiff do pay the costs of the third defendant of this application of the action generally, to be fixed."

9. That summons is one of those before me on this appeal.

10. On 6 May 1999, Jackson McDonald were informed by Anthony Torre & Monaco that the latter had filed an appearance on behalf of the third defendant on 31 March 1999. 

11. On 25 May 1999 the plaintiff's solicitors issued a summons, being the other summons before me on this appeal, which sought orders in the following terms:

    1.The time for service of this summons be abridged.

    2.The memorandum of conditional appearance filed on 4 May 1999 on behalf of the third defendant be struck out.

    3.Application of the third defendant to strike out the plaintiff's claim filed 4 May 1999 be struck out.

    4.The plaintiff be granted leave nunc pro tunc to amend the endorsement of claim in terms of the amended writ of summons filed on 19 March 1999;

    5.Costs in the cause.

12. On 1 June 1999, Anthony Torre & Monaco filed a notice of ceasing to act.

13. At the hearing of the appeal, counsel for the plaintiff submitted that the appropriate orders be made in respect of the two summonses were that:

    "1.The plaintiff have leave to amend his indorsement of claim in accordance with the amended writ of summons dated 19 March 1999 and for the filing and service thereof to be dispensed with.

    2.The third defendant's application be dismissed and paragraph 5 of its defence be struck out.

    3.The third defendant pay the plaintiff's costs of the application and the appeals to be taxed in any event."

14. The reference to paragraph 5 of the defence is a reference to a plea of limitation defence which was pleaded in the third defendant's defence which was filed subsequent to the decision of the Deputy Registrar against which this appeal has been made.

The validity of the original writ

1. To determine these applications it is necessary first to determine the effect of the absence of any reference to the third defendant in the original indorsement of claim.

2. Order 6 r1 of the Rules of the Supreme Court provides:

   "(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.

   (2)In case of non-compliance with paragraph (1) the defendant may apply before appearance to set aside or amend the writ or for particulars."

3. It is common ground between the plaintiff and the third defendant that the original writ was not indorsed with "a concise statement of the nature of the claim made" although the indorsement does set out the relief or remedy required in the action, namely "damages for personal injuries sustained by the plaintiff on or about 15 March 1993". The defect in the new writ does not render the writ a nullity. It is an irregularity in respect of which a defendant has a right under O6 r1(2) to apply for relief including the setting aside of the writ. The requirements of O6 r1(2) are that such an application be made prior to appearance. The provisions of O6 r1 need to be read in conjunction with O12 r6 which permits the entry of a conditional appearance reserving the right to apply to the Court to set aside the originating process on the ground of any informality or irregularity which renders the originating process invalid. The entry of a conditional appearance does not amount to a submission to jurisdiction.

4. There is much authority for the proposition that an irregularity in a writ is waived when the defendants enter an unconditional appearance to that writ: Sterman v E W and W J Moore (1970) 2 WLR 386 at 390; Greenhill Associates (WA) Pty Ltd the Directories (Australia) Pty Ltd, unreported; SCt of WA; Library No 5493, 4 September 1984, Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529 at 539. The fact that an unconditional appearance operates as a waiver underlies the requirement for an application to set aside the writ being made prior to appearance or in conjunction with a conditional appearance.

5. In this case, although a conditional appearance was entered on 4 May 1999, there had already been an unconditional appearance entered for the third defendant on 31 March 1999. No application has been made for leave to withdraw the unconditional appearance as is possible under O 23 r1. The only basis put forward by the third defendant for resisting the application to strike out the conditional appearance was that its entry was effected by the insurers solicitors reasonably and honestly relying on information provided by the plaintiffs solicitors as to whether or not an appearance had been entered, and that the time of the filing of the conditional appearance, the solicitors were not aware of a memorandum of appearance having been filed on 31 March 1999. All of that is undoubtedly true, but it provides no basis for ignoring the entry of the unconditional appearance or depriving it of its effect.

6. It follows that the third defendant is precluded from an attack on the validity of the writ by reason of the defect in the indorsement of claim.  That does not, however, finally resolve the matter, because consideration needs to be given to the application to amend the indorsement which raises questions of amendment following the expiration of a limitation period.

The amendment of the writ

1. As indicated above, when the plaintiff filed the amended writ on 19 March 1999, it bore on its cover sheet an indorsement that the amendment had been made pursuant to O21 r1. That rule deals with amendment of a writ without leave, and provides:

   "(1)Subject to paragraph (3), the plaintiff may, without leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed.

   (2)A writ amended under this rule after service must, unless the Court otherwise directs on application, made ex parte, be served as amended on each defendant to the action.

   (3)This rule shall not apply in relation to an amendment which consists of –

   (a)the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or

   (b)the addition or substitution of a new cause of action;

   (c)without prejudice to r3(1) an amendment of the statement of claim, if any, indorsed on the writ."

2. Pursuant to O6 r3, a plaintiff has an option to indorse a statement of claim on the writ instead of the indorsement of claim provided for in Order 6 r1. In Pontin and Another v Wood [1962] 1 QB 594, a case involving a defective indorsement on the writ very similar to the indorsement (as against the third defendant) in the original writ in this action, it was considered (following Hill v Luton Corporation [1951] 2 KB 387), that it was unnecessary to amend the writ because the defect could be cured by delivering a good statement of claim. Those cases were, however, decided prior to the introduction of O18 r15(2) of the English Rules of the Supreme Court which is the equivalent of O20 r2(2) which provides:

   "A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned."

3. The introduction of that rule gave rise to the prospect that where a writ is defective for want of a concise statement of the nature of the claim against a defendant, although the writ is valid notwithstanding its irregularity, no statement of claim complying with O20 r2 could be filed.  It was that situation which confronted the Court of Appeal in Sterman v E W and W J Moore (above), the facts of which are remarkably similar to the facts of this case.  The Court of Appeal unanimously agreed that the application for leave to amend the indorsement to the writ should be granted, notwithstanding that the limitation period applicable to the cause of action had expired after the issue of the writ but before the application for leave to amend.  The application was brought under O20 r5(1) of the English Rules, which is the equivalent of O21 r5 of the Western Australian Supreme Court Rules.  There is considerable attraction in the words of Lord Denning MR in Stermanwhere he said (at page 391):

   "I think we should give full effect to the wide words of Order 20 R 5(1). We should not cut them down by reference to sub- rules 2, 3 and 4. I adhere to the view I expressed in Chatsworth Investments Ltd v Cussins (Contractors) Ltd (1969) 1 WLR 1:

   'Since the new rules, I think we should discard the strict rules of practice in Weldon v Neal (1887) 19 QBD 394.  The Courts should give Order 20 r5(1) its full width.  They should allow an amendment whenever it is just to do so, even though it may deprive the defendant of a defence under the Statute of Limitations.'

   I withdraw not one whit of those words: and I think that we should apply them here.  Here is a plaintiff who issued his writ and served it on the defendants well within the period of limitation.  They knew perfectly well what the plaintiff was claiming damages for his fall from the trestle because it was their fault.  Yet they seek to bar him on the most technical consideration – just because he omitted the words 'for breach of negligence and breach of statutory duty.'  I do not think we should allow this technical objection to prevail.  We should apply the wise words of Holroyd Pearce L J in Pontin v Wood… when he said that the Court would give its aid 'to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects.'  Applying those words, we should allow the plaintiff to amend the writ so as to state in terms that his claim is for damages 'for negligence and breach of statutory duty.' "

4. It is clear, however, that no rules of practice or procedure can enable a Court to defeat the application of the Limitation Act.  The operation of the Limitation Act and its effect in relation to amendments to indorsements of claim and statements of claim was discussed by Wheeler J, with whom the other members of the Full Court agreed, in Morgan v Banning (1999) 20 WAR 474 at 483, where, after referring to a passage from the judgment of Lord Devlin in Hill v Luton Corporation where his Lordship expressed the view that the Limitation Act is not at all concerned with good or bad indorsements, Her Honour said (at page 483):

   "It appears to me that two consequences follow from the proposition of the Limitation Act is concerned with the writ and not with 'good or bad indorsements', let alone with statements of claim.  First, if the writ when issued, although defective, is not a nullity, and its terms are wide enough to encompass the amendments sought to be made to clarify or particularise or 'cure' it, then it seems that no question of the limitation arises.  Such an action is within time and subsequent steps (even those directed to defects in the original indorsement) are merely steps taken in a validly instituted action with respect to which it is not necessary to consider limitation questions.  However, if it is so irregular that, subsequent to the expiry of the limitation period, the defendant is successful in having it wholly set aside, then it will be too late for the plaintiff to bring a further action.

   The second proposition which seems to me to follow is that if the defective indorsement appearing on the writ when issued, is not of a type of which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments 'add' an additional and time barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether the leave to amend is granted or not, the new action remains time barred.  Whatever the rules of Court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the Court has no power to override, whether by a procedural rule of 'relation back' or otherwise."

5. The essential question becomes, therefore, are the terms of the writ wide enough to encompass the amendments sought, or is the defective indorsement of a type not capable of encompassing the amendments sought?

6. In Bill Discount Services Pty Ltd (in liquidation) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987 (in which the passage from Lord Denning MR in Stermanset out above was expressly adopted by Brinsden J) Burt C J concluded that the expression "cause of action" should be understood in the context of the application of Weldon v Neal in the sense of "a new claim made on a new basis".  In this case, all that can be extracted from the original indorsement of claim, so far as the third defendant is concerned, is that there is a claim for damages for personal injuries arising from an accident on the nominated date.  Although the concise nature of the claim is not disclosed as against the third defendant, in my view the addition of the words contained in the amended indorsement do not provide "a new claim on a new basis", but rather serve to clarify the cause of action encompassed in the broad claim for damages for personal injuries.

7. It follows that, on a strict analysis, the plaintiff was entitled to amend the writ pursuant to O21 r1 as he purported to do on 19 March 1999, and that, strictly speaking, leave is not necessary. Notwithstanding that, however, by O21 r5 the power is given to the Court "at any stage of the proceedings" to allow an amendment to the writ, and for the avoidance of doubt, the plaintiff's counsel suggested that leave should be granted. In the circumstances of this case, that is an appropriate course of action, and in my view an order for leave to amend the writ in terms of the amended writ filed 19 March 1999 should be granted.

1. Much of the defendant's submissions both in writing and orally turned upon the proposition that no action had ever validly commenced against the third defendant, and thus it was not a party to the action.  Thus, it was argued, leave to amend the indorsement was necessary because the amendment consisted of the addition of a party to the action.  I do not accept that submission.  The third defendant was a party to the writ from the time it was issued on 12 March 1999.  Although there was no express mention of the third defendant in the indorsement of claim, the operative part of the writ is the command of the Crown to the defendants to appear to the writ.  The third defendant's name and address was duly set out in that portion of the writ.  The defendant appeared in the heading of the writ as a third defendant.  There was an action commenced against the third defendant on 12 March 1999, albeit that the writ as against the third defendant was irregular.  To the extent that the defendants position was predicated upon the proposition that, up until the valid amendment of the writ, the third defendant was not a party to the action, that position is untenable.

2. Once leave to amend the writ is granted, there is no basis, whether under O6 r1(2) or O20 r19(1), upon which the third defendant's application to strike out the plaintiffs claim could be made. It was suggested, in argument, by the third defendants counsel that, if leave to amend the writ is granted then the amendment should be expressed to operate only from the date of the order granting leave. Given the basis upon which I have reached the conclusion that leave should be granted, there is no reason why the ordinary rules as to relation back of the amendments to the date of the writ should not apply. Essentially, an action was commenced against the third defendant within time, and that action should not be defeated by the Limitation Act "which is not concerned with good or bad indorsements".

3. It follows that in my view the third defendant's chamber summons filed on 4 May 1999 should be dismissed with an order that the third defendant pay the plaintiff's costs of that application.  On the plaintiff's summons filed on 23 May 1999, there should be an order that the plaintiff have leave to amend the indorsement of claim in accordance with the amended writ of summons dated 19 March 1999, that the filing and service thereof be dispensed with, and I will hear the parties in relation to the appropriate order for costs on that application.  I will also hear the parties in relation to the submission made at the hearing by counsel for the plaintiff that there should be an order that paragraph 5 of the third defendants defence be struck out.