Howells v Murray River North

[2004] WASCA 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   HOWELLS & ANOR -v- MURRAY RIVER NORTH & ORS [2004] WASCA 89

CORAM:   MILLER J

EM HEENAN J

HEARD:   22 APRIL 2004

DELIVERED          :   22 APRIL 2004

FILE NO/S:   FUL 52 of 2003

FUL 53 of 2003
FUL 66 of 2003

BETWEEN:   SY HOWELLS

First Appellant (Plaintiff)

MANUFACTURERS MUTUAL INSURANCE LTD
Second Appellant (Second Third Party)

AND

MURRAY RIVER NORTH
First Respondent (First Defendant)

GAUCHO PTY LTD
Second Respondent (Second Defendant)

ZURICH AUSTRALIAN INSURANCE LTD
Third Respondent (First Third Party)

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram   :FENBURY DCJ

Citation Number       : [2002] WADC 222

File Number             :  CIV 4955 of 1993

Catchwords:

Appeal - Procedure - Notice of contention - Application for leave to amend

Legislation:

Nil

Result:

Leave to amend granted

Category:    B

Representation:

Counsel:

First Appellant (Plaintiff)               :        Mr J R Criddle

Second Appellant (Second Third Party)    :        Mr J R Criddle

First Respondent (First Defendant)         :        Mr R J L McCormack

Second Respondent (Second Defendant)  :        Mr R J L McCormack

Third Respondent (First Third Party)       :        No appearance

Solicitors:

First Appellant (Plaintiff)               :        J R Criddle

Second Appellant (Second Third Party)    :        J R Criddle

First Respondent (First Defendant)         :        Blake Dawson Waldron

Second Respondent (Second Defendant)  :        Blake Dawson Waldron

Third Respondent (First Third Party)       :        No appearance

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

Nil

Case(s) also cited:

Container Handlers Pty Ltd v Insurance Commission of Western Australia (2001) 25 WAR 42

Coulton v Holcombe (1986) 162 CLR 1

Geelong Building Society (in liq) v Encel [1996] 1 VR 594

Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32

Metwally v University of Wollongong (1985) 60 ALR 68

Moltoni Corporation Pty Ltd v QBE Insurance Ltd (2001) 205 CLR 149

Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631

Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 120 ALR 12

1. MILLER J:  I will ask Heenan J to give reasons in this matter.

2. EM HEENAN J:  This is an application by the respondent who, in a series of appeals presently listed for hearing before the court in May, is seeking leave to amend notices of contention which have already been filed in the proceedings.  The applications to amend the notice of contention have been agreed by some, but not by all, of the appellants and this appellant objects to the proposed amendment in part.  The objection is confined to one of the grounds of the proposed amendment which, it is said, introduces a point which was not raised originally in the proceedings nor dealt with at trial. 

3. Implicit in the objection is the contention that if the point had been raised earlier, the appellant would have been able to adduce evidence which could have dealt with that issue and that for it to be raised at this time would result in prejudice to that appellant by being deprived of an opportunity to deal with the matter as it might have been dealt with at trial.

4. If that is, in fact, the case those are powerful reasons to prevent this respondent from being permitted to agitate this particular ground of appeal, if it is still the subject of objection, when the appeals come on for hearing.  Whether or not it is of that character depends upon a close analysis of the issues of fact and law between the parties, a scrutiny of the conduct of the trial and the significance of the issues which are ultimately raised for decision on the appeal.  That would require a detailed assessment of all the history of the litigation which will, in any event, be required of the Full Court hearing the appeal.  These issues frequently arises in the ordinary conduct of appeals and it is my view that it would be preferable, more efficient and more reliable if this exercise were to be performed when all the issues are being comprehensively addressed by the appeal court.

5. Such a course would involve no prejudice to this appellant because this appellant will retain the right to make all just objections to any reliance upon that proposed issue at the hearing of the appeal.  For that reason, therefore, and in the interests of the more efficient disposition of these proceedings, I would be disposed to grant leave to amend the notice of contention as sought and to reserve for the hearing of the Full Court the question of whether or not, indeed, it can ultimately be relied upon.

6. MILLER J:   I agree with Heenan J.