JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOFFMANS (A FIRM) -v- AHMED [2021] WASCA 210
CORAM: QUINLAN CJ
MITCHELL JA
ALLANSON J
HEARD: 21 SEPTEMBER 2021
DELIVERED : 9 DECEMBER 2021
FILE NO/S: CACV 73 of 2020
BETWEEN: HOFFMANS (A FIRM)
Appellant
AND
FAYSAL YUSUF AHMED
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
Citation: AHMED -v- HOFFMANS (a firm) [2020] WADC 82
File Number : CIV 1278 of 2019
Catchwords:
Practice and procedure - Appeal from a decision of the primary judge refusing to strike out an amended writ of summons - Where indorsement on original writ was defective - Whether amendment added or substituted a new cause of action which was statute‑barred
Legislation:
Limitation Act 2005 (WA), s 14(1), s 46, s 47
Rules of the Supreme Court 1971 (WA), O 2 r 2, O 6 r 1, O 21 r 1
Workers' Compensation and Injury Management Act 1981 (WA), s 93K, s 93L, s 93M
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M D Cuerden SC |
| Respondent | : | B W Ashdown |
Solicitors:
| Appellant | : | Popperwell & Co |
| Respondent | : | Premier Compensation Lawyers |
Case(s) referred to in decision(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Glendinning v Cuzens [2009] WASCA 21
Morgan v Banning (1999) 20 WAR 474
Rossen v Airey [2012] WASCA 26
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234
JUDGMENT OF THE COURT:
Summary
The appellant (Hoffmans) seeks leave to appeal against the primary judge's decision refusing to strike out a writ of summons issued by the respondent (Mr Ahmed) in the District Court of Western Australia. Hoffmans contends that the indorsement of claim on the writ was defective, and any amendment to cure that deficiency must involve the addition of a new cause of action outside the relevant limitation period.
For the following reasons, leave to appeal should be refused and the appeal should be dismissed. While the original indorsement was deficient, the deficiency was cured by an amended writ of summons filed on 16 May 2019. While that amendment was clearly made outside the relevant limitation period, it did not involve the addition or substitution of a new cause of action. The amendment was authorised by O 21 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules).
Background
On 20 October 2011, Mr Ahmed lodged a workers' compensation claim with Swan Transit Services Pty Ltd (Swan Transit) in respect of an injury sustained in his work…
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- [2021] WASCA 210
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