Hoffmans (a firm) v Ahmed - [2021] WASCA 210

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASCA 210
Decision Date

CaseChat Overview and Summary

Hoffmans, a firm of solicitors, appeals against a decision of the primary judge in the District Court of Western Australia that refused to strike out an amended writ of summons filed by Mr Ahmed. Hoffmans contends that the indorsement on the original writ was defective, and that the amendment to cure that defect must have added or substituted a new cause of action outside the relevant limitation period. The court was required to decide whether the amendment to the writ of summons involved the addition or substitution of a new cause of action. The Court of Appeal found that the amendment did not add or substitute a new cause of action. The court held that the amendment merely particularised, clarified or expanded the cause of action identified in the original indorsement. The Court of Appeal refused leave to appeal and dismissed the appeal.

Orders