Hurley v SALMERI - [2002] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HURLEY -v- SALMERI & ANOR [2002] WADC 114

CORAM: REGISTRAR KINGSLEY

HEARD: 10 APRIL 2002

DELIVERED : 23 MAY 2002

PUBLISHED : 11 JUNE 2002

FILE NO/S: CIV 2866 of 2000

BETWEEN: MICHAEL HURLEY
Plaintiff
AND
STEVE SALMERI
First Defendant
MAKAIRA II PTY LTD
Second Defendant

Catchwords:

Practice - Application to amend Statement of Claim - Turns on own facts

Legislation:

Trade Practices Act

Result:

Application refused

Representation:

Counsel:

Plaintiff:     Mr C P Shanahan
First Defendant             :     Mr N A Egan
Second Defendant         :     Mr N A Egan

Solicitors:

Plaintiff:     Butcher Paull & Calder
First Defendant             :     Mullins Handcock
Second Defendant         :     Mullins Handcock

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

Nil

Case(s) also cited:

Nil

REGISTRAR KINGSLEY: The plaintiff seeks leave to amend his Statement of Claim in terms of a Minute filed in court. The defendant has raised certain objections to the Minute. The plaintiff's counsel has indicated a willingness to accommodate the defendant in some of the objections, but not all.
The claim, as pleaded, relates to a contract to refloat and tow a damaged yacht. The yacht was refloated but, during the course of towing, sunk. The plaintiff alleges breach of contract, breach of statutory warranty, breach of bailment, and there is a plea in negligence.
The defendants press certain objections as stated in par 6 of their submissions and, at par 7, they take the opportunity to raise further objections. I will deal with the paragraphs of the Statement of Claim as objected.
In par 5A of the Statement of Claim, the defendants seek the plaintiff to particularise, with precision, the telephone conversation. All the defendants are entitled to is the substance and effect of the conversation. In my opinion, that has been given in the pleading. I understand that the plaintiff is prepared to take into account some of the defendants' criticisms as mentioned in par 10 of the plaintiff's submissions, but I do not consider that par 5A is embarrassing to the defendants.
Paragraph 6.7(A) is objected to as it appears - it is inconsistent with the particulars already delivered. Those particulars are not on the file but the authorities are clear: A pleading which is inconsistent with the particulars ought not be allowed in until the particulars have been amended. If there is that inconsistency, then par 6.7(A) ought not be allowed in, and I will deal with that at the conclusion.
Paragraph 6.7(B) is objected to on the basis there is insufficient particularising of the conversation of 29 September. I agree with that submission. The substance and effect of the conversation of 29 September ought be stated.
Paragraph 7.3(A), par 7.3(B) and par 7.3(D) are objected to. The plaintiff submits that the offending words were added to appease the defendants. The words objected to "pursuant to the telephone conversation" are redundant. As the plaintiff will need to re‑amend the Statement of Claim in light of concessions made and these reasons, the words, in my opinion can be deleted. But redundancy in itself is not necessarily embarrassment. I am not of the opinion that all other things being equal, par 7.3(A), par 7.3(B) and par 7.3(D) ought to have been struck out or the Minute refused simply because those paragraphs are embarrassing.
There is an issue in relation to the defining of the contract. The contract has been defined twice. In par 1.4 and par 6, there is embarrassment and one definition ought be removed.
Paragraph 7.3(D) is objected to on the basis that bailment is alleged when not appearing in the indorsement. The plea of bailment arises on the contract and the indorsement states the ambit of the claim as breach of contract. In my opinion, the indorsement is sufficiently wide to encompass the bailment claim.
The defendants then argue that the plaintiff must plead, as a constituent element, the contract of bailment. I am of the opinion that the pleading at par 7(D) and at par 9.1 sufficiently puts the matter into issue. As I read the pleading, the plaintiff pleads not a contract of bailment, but a contract where one of the indices is a bailment. There is a difference.
Paragraph 8 refers to the inclusion of statutory warranties under s 74(1) of the Trade Practices Act. The defendant objects to this paragraph on the basis there was no relief sought under the Trade Practices Act. The pleading clearly states the warranties are implied into the contract and, accordingly, there is no cause under the Trade Practices Act for which relief may be sought.
In par 9.1, the plaintiff pleads the vessel came under the exclusive possession of the second defendant. To descend further into particulars of how the possession came about would, in my opinion, go into evidence.
Paragraph 10 has the potential to raise an interesting legal issue but, on the pleadings, no issue arises. There is no evidence of any fact before me. I have only a claim for damages and, as pleaded, the claim is unobjectionable. If the defendants suggest there is more to the pleading, then it is for the defendants to bring an application with supporting evidence but on the pleading, there is no factual basis upon which I can say that that pleading is objectionable.
As of par 11, I agree the contract must be clearly defined which, at present, it is not. Paragraph 11, in that case, ought not be allowed. The other objection to par 11 is in relation to bailment. Again, in my opinion, there is no contract of bailment and the pleading can stand as proper in relation to that issue.
As to par 15.2, the defendants say insufficient particulars are given as to the allegation the first defendant held himself out as a person with skill. There is a merit in that contention. In par 5(A), par 6, par 7 and par 8, there is no express pleading of the holding out as pleaded in par 15.2. Paragraph 15.2 is, therefore, embarrassing.
As to par 15.3, I am of the opinion that, again, there is sufficient particularisation when one reads par 9.
As to par 16.2, for the same reasons as in relation to par 15.2, I am of the opinion that this pleading is embarrassing.
In the end, I would not allow par 6.7(b), par 11, par 15.2 and par 16.2 on the basis that they are embarrassing. Paragraph 1.4 and par 6 have the definitional difficulty of "contract" being defined twice.
The end result, in my opinion, is that the further Minute of Amended Statement of Claim dated 10 April 2002 is not a Minute that ought to be allowed in. For the plaintiff, if there are particulars which are inconsistent with par 6.7(A), then if the plaintiff wishes to pursue par 6.7(A), then those particulars will need to be dealt with, and, presumably, prior to any application to bring in a further - prior to any further Minute, Amended Statement of Claim being brought in. So, on the plaintiff's application, leave refused.