Howells v Murray River North
[2004] WASCA 89
•22 APRIL 2004
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
MILLER J: I will ask Heenan J to give reasons in this matter.
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.
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.
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.
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.
MILLER J: I agree with Heenan J.
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