Huynh v Public Transport Authority of Western Australia
[2016] WADC 65
•11 MAY 2016
HUYNH -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2016] WADC 65
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 65 | |
| Case No: | CIV:3323/2013 | 9 MAY 2016 | |
| Coram: | BOWDEN DCJ | 11/05/16 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend writ of summons granted | ||
| PDF Version |
| Parties: | BAO SAN HUYNH PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA OTIS ELEVATOR COMPANY PTY LTD |
Catchwords: | Appeal from deputy registrar Application to amend writ of summons Order 21 r 5 Rules of the Supreme Court 1971 (WA) Original indorsement of writ claims negligence and occupies liability Application to amend to include applied warranty in a contract |
Legislation: | Fair Trading Act 1987 (WA) District Court Rules 2005 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | ABB Service Pty Ltd v Hetherington [2001] WASCA 417 Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 3] [2015] WASC 442 Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Morgan v Banning (1999) 20 WAR 474 Papadoulis v Pappas and Associates (a Firm) [2009] WADC 22 Rayney v The State of Western Australia [No 3] [2010] WASC 83 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
First Defendant
OTIS ELEVATOR COMPANY PTY LTD
Second Defendant
Catchwords:
Appeal from deputy registrar - Application to amend writ of summons - Order 21 r 5 Rules of the Supreme Court 1971 (WA) - Original indorsement of writ claims negligence and occupies liability - Application to amend to include applied warranty in a contract
Legislation:
Fair Trading Act 1987 (WA)
District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Leave to amend writ of summons granted
Representation:
Counsel:
Plaintiff : Mr K Tang
First Defendant : Ms H Osbourne
Second Defendant : No appearance
Solicitors:
Plaintiff : GV Lawyers
First Defendant : Jarman McKenna
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 3] [2015] WASC 442
Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Morgan v Banning (1999) 20 WAR 474
Papadoulis v Pappas and Associates (a Firm) [2009] WADC 22
Rayney v The State of Western Australia [No 3] [2010] WASC 83
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168
- BOWDEN DCJ:
The application
1 The plaintiff seeks to amend its writ of summons dated 14 October 2013 (the original writ). The application was dismissed by a deputy registrar on 17 December 2015. This appeal is a review of the matter de novo: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
2 The original writ contained the following indorsement of claim.
The plaintiff's claim is for damages arising from personal injuries sustained by the plaintiff on 15 October 2010 in the course of using an escalator at the Bullcreek Train Station, Bullcreek in the State of Western Australia. The plaintiff's injuries were caused by the negligence on the part of the First Defendant, as occupier of the premises, and/or on the Second Defendant, as a contractor engaged by the First Defendant to install and maintain the said escalator.
3 The proposed amendment pleads an additional cause of action under s 40 of the Fair Trading Act 1987 (WA) (FTA (WA)) as a result of an alleged breach of an implied contractual term. The proposed amendments of 6 October 2015 are as follows:
The plaintiff's injuries were caused by:
1. The first defendant's breach of contract entered into between the plaintiff and the first defendant, where:
(a) the said contract relates to the provision by the first defendant to the plaintiff of public passenger transportation services for a prescribed fee;
(b) it was an implied term of the said contract by virtue of s 40 of the Fair Trading Act 1987 (WA) that the said escalator, being 'materials' supplied in connection with the supply of services under the said contract, would be fit for its intended purpose of safely conveying the plaintiff from the train platform level to the upper level of the said train station;
(c) the first defendant breached the implied term of the said contract as the said escalator was unfit for its intended purposes in that:
(i) the right sided hand rail of the said escalator had malfunctioned;
(ii) the said escalator was unsafe for use; and
(iii) the said escalator continued to operation notwithstanding the malfunction of the right sided hand rail;
4 As at 6 October 2015, the date of the application for the proposed amendments, a claim under s 40 of the FTA (WA)would be statute barred under s 79 of the FTA(WA).
5 The first defendant opposes the amendments as they say the new cause of action does not arise out of the same facts or substantially the same facts as the existing cause of action and, alternatively, if they do, say the court should exercise its discretion and refuse leave.
The law
6 This court has the discretionary power to grant leave to a plaintiff to amend his writ at any stage in the proceedings. Section 48A of the District Court Rules 2005 (WA) (DCR) essentially provides that the Rules of the Supreme Court 1971 (WA) (RSC)apply to matters in the District Court unless otherwise specified. The relevant RSC is O 21.
7 Order 21 RSC provides:
1. Amending writ without leave
(1) Subject to subrule (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed by filing its amended writ before the closure.
[(2) deleted]
(3) This rule shall not apply in relation to an amendment which consists of —
(a) the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or
(b) the addition or substitution of a new cause of action; or
(c) without prejudice to rule 3, an amendment of the statement of claim, if any, indorsed on the writ.
…
5. Amending writ or pleading with leave
(1) Subject to —
(a) Order 18 rules 6, 7 and 8; and
(b) Order 20 rule 19(2) to (5); and
(c) the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2) Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.
…
(5) An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
8 In Papadoulis v Pappas and Associates (a Firm) [2009] WADC 22 Sleight DCJ considered Morgan v Banning (1999) 20 WAR 474 and ABB Service Pty Ltd v Hetherington [2001] WASCA 417. The latter case dealt with the relationship between O 21 r 5(5) and the time limitation contained in s 79(2) of theFTA (WA). His Honour summarised the law in this regard [27]. I adopt that summary, which I have abridged, to the following:
1. The limitation provisions concern questions of whether the statutory limitation period had expired at the time of the issue of the writ rather than any subsequent proceeding (Morgan v Banning).
2. A 'cause of action' is simply a factual situation, the existence of which entitles one party to obtain from the court a remedy against another party (see Morgan v Banning, Hetherington).
3. … An amendment which seeks grounds of relief which would be statute barred if subject to fresh proceedings, may be allowed by way of amendment to a writ issued within the statutory limitation period, if the facts pleaded in the writ substantially coincide with the facts upon which the amended relief is sought. As stated by Wheeler J in at p 485 in Morgan v Banning (supra), this coincides with the principal purpose of statutory limitation periods that a defendant knows with finality what fact or facts are said to give rise to the action against him, rather than what label may be conveniently applied to these facts.
4. Accordingly, an amendment seeking an additional basis for relief may be allowed if the factual basis for the relief sufficiently coincides with the facts pleaded in the writ within time (Morgan v Banning supra, Owen J at p 476). If, however, the amendment seeks to raise a new basis for relief on a different set of facts, then no amendment is permitted (Morgan v Banning supra, Wheeler J at pp 486-487).
5. The purpose of O 21 r 5(5) is to avoid an overly technical and rigid investigation as to the degree of coincidence between the facts pleaded in the writ and those in any proposed amendment (see Morgan v Banning; Hetherington). It is no objection to a proposed amendment that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can be said to arise out of substantially the same facts as the old cause of action Hetherington [21]; Dye v Griffin Coal Mining Co (1998) 19 WAR 431 per Owen J at 434).
6. An amendment allowed does not preclude the other party from pleading in its defence and arguing at trial that the relief sought by the amendment raises a new cause of action and is statute barred. This recognises that the idea of "relation back" of an amendment cannot be used to defeat a limitations argument (Morgan v Banning supra, Wheeler J at 482; Hetherington's case supra, McLure JA at [9]).
7. The exercise of the court of the power to amend under O 21 r 5 is discretionary. When considering whether to exercise a discretion to allow an amendment under O 21 r 5(5) the court can take into account:
(i) that to disallow the amendment will prevent the plaintiff from bringing the issue to court at all;
(ii) the question of justice to the plaintiff, delay, reasons for delay, prejudice to the defendant or other persons, and possible abuse of process (Morgan v Banning (supra), Wheeler J at p 486).
10 In considering whether there is a new cause of action fairly arising out of substantially the same facts, one fact to consider is whether there is a necessity to canvas a greater range of facts and circumstances if the amendment were permitted: Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431, 432, 436. It is essentially a matter of impression based on the degree of overlap as to whether a new cause of action can be said to be arising out of the same or substantially the same facts as an existing cause of action.
11 The first defendant argued that in considering the original cause of action regard should only be had to the original writ and not to subsequent documents including the statement of claim of 13 April 2015.
12 I do not agree with this restrictive approach. In making an assessment of whether a cause of action arises out of the same facts or substantially the same facts as an existing cause of action, it is permissible to have regard to the facts which have been pleaded in support of the existing cause of action and any facts pleaded or proposed to be pleaded in support of the new cause of action: Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 3] [2015] WASC 442 (Tottle J). I also note that in Morgan v Banning (488) Wheeler J when considering this issue referred to discussions of some type that had taken place between the appellant and the respondent and the draft writ seen by the respondent and earlier proceedings taken by the applicant which would have alerted the respondent to the existence of the claim.
13 An indorsement on a writ is not a pleading and it should not be read narrowly, but generously: Rayney v The State of Western Australia [No 3] [2010] WASC 83 [36] (Martin CJ). An indorsement will cover a narrower factual field and be of a greater level of generality than a statement of claim.
The new cause of action
14 The first defendant says there are some common facts between the original cause and the proposed cause of action. However, they say there are significant differences as to the nature of the relationship alleged between the parties, the dispute between the parties and the cause of the alleged injuries and those differences go further than clarifying, expanding or particularising the claim and amount to allegations of an entirely different relationship between the parties and place an entirely different burden on the first defendant.
15 I agree with the plaintiff's submission that the proposed claim in contract overlaps with the existing claim in negligence. The facts behind the plaintiff's original claim for personal injuries sustained on 15 October 2010 are that in the course of using an escalator at a train station occupied by the first defendant the plaintiff was injured as a result of the first defendant breaching the duty of care it owed the plaintiff.
16 The claim in contract is based upon the plaintiff being a passenger in a train who disembarked at the Bullcreek Train Station, rode an escalator in that station and was injured whilst using the hand rail of the escalator. It alleges the first defendant supplied the escalator for use of train passengers and breached its contract with the plaintiff as the hand rail of the escalator had malfunctioned or was defective or unsafe.
17 In my opinion the plaintiff's proposed claim for breach of contract arises out of the same facts or substantially the same facts as the existing claim in negligence, both claims involve the same date, time, place and injuries. The same physical act was being performed by the plaintiff and there is no inconsistency in the factual situation. Both actions allege the plaintiff was injured whilst using the escalator at the train station under the control of the first defendant.
18 The amendments plead that the FTA(WA) s 40 applies and that is peculiar to the claim for breach of contract and not relevant to the negligence claim. Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd deals specifically with that point and that is no reason itself to disallow the amendment.
19 Accordingly, I am satisfied that I do have the discretion to allow the proposed amendment under O 21 r 5(5).
The discretion
20 Once the discretion is enlivened the court can, if it is just to do so, allow the amendment even though the proposed amendment is made outside of any relevant period of limitation current at the date of the issue of the writ: Morgan v Banning.
21 The plaintiff says it is in the interest of justice for the amendment to be allowed as it will mean all claims arising out of the plaintiff's accident of 15 October 2010 can be heard and determined on their merits. The plaintiff say the defendant has not established any specific injustice or prejudice particularly in light of the fact that the proceedings are not at a stage where the amendment would delay or prejudice a trial of the action.
22 Insofar as the question of delay is concerned, the plaintiff says that it first raised its intention to pursue the claim for breach of contract on 13 April 2015. On that date the plaintiff filed a statement of claim pleading the contract, the implied term pursuant to s 74(1) of the then Trade Practices Act 1974 (Cth) (TPA) and the breach of that term.
23 The plaintiff accepts they were in error by relying on theTPA. The plaintiff, upon discovery of that error, filed this application seeking to amend the original writ and at the same time filed an amended statement of claim pleading the contract, the implied term pursuant to s 40 of the FTA (WA),and the breach. They agree this is somewhat unusual but the point they make is that the respondent had notice that they were relying on the breach of contract based on an implied statutory warranty of some sort since April 2015. The plaintiff says it is a novel claim which has only, to their knowledge, featured in some three personal injury cases throughout Australia.
24 The first defendant says it was not until the October 2015 application and amended statement of claim that a breach of contract claim based on an implied statutory warranty under s 40 of the FTA (WA) was raised. They point out there has not been any reason given for the delay. They referred to Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14; Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 as highlighting the need for case-flow management and the efficient disposition of the court's business, efficient use of the judicial resources, timely disposal of business and proportionality.
25 They say that the plaintiff's assertion that the granting of the leave to amend the writ of summons will result in the writ being read as always including an allegation pursuant to s 40(1) of the FTA (WA) and thereby circumventing the 3 year statute limit imposed by s 79 of the FTA (WA) is not correct. The first defendant says that this is not the effect of the 'relation back' amendments to the indorsement of the writ.
26 I disagree. The effect of allowing the amendment is that the writ of summons is taken to be amended as at the date of its issue. The first defendant is of course free to argue at the trial, or at any time, the FTA (WA) claims are statue barred as giving leave to amend and the relation back rule cannot override the limitations in the FTA (WA). The first defendant is free to argue that as at the date of the original writ and indorsement, the amended cause of action was statue barred.
27 However, the whole effect of O 21 r 5(5) is that it gives the court a discretion, in limited circumstances, to amend the writ to add a cause of action that is statute barred at the time of the amendment application: Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168 [34] (McLure P).
28 The first defendant says the discretion should not be exercised because the amendment would serve no useful purpose because they are entitled to plead that the plaintiff cannot receive an award of damages as they seek.
29 In addition the first defendant says there has been a significant unexplained delay in identifying the cause of action, that is, almost 2 years after the expiration of the limitation period.
30 If I disallow the amendment the plaintiff will be prevented from bringing the issue of the breach of contract to the court. The effects on the first defendant of allowing the amended have been discussed above.
31 The delay has not resulted in a trial being adjourned as the case is nowhere near the trial stage. I accept any delay causes the first defendant added expense. The continued pressure and stress of litigation is less on corporations and public authorities but is still a factor to be considered. The reasons for the delay are essentially that it is a novel point only discovered by the plaintiff's solicitors some time before the application. The first defendant has not pointed to any other specific prejudice such as witnesses being unavailable or documents lost.
32 The first defendant intends to plead that the plaintiff cannot obtain an award of damages in relation to any breach of implied terms of the contract in its defence and at trial (respondent's submissions par 24). Granting leave to amend cannot affect a defendant's right pursuant to a statutory limitation period: ABB Service Pty Ltd v Hetherington [12], [19] (McLure J); Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 [36].
33 The new cause of action is substantially the same facts as the old cause of action.
34 Balancing the risk of injustice between the parties, the delay and the reasons for it, and the communities interests the interest of justice are best served by all claims arising out of the plaintiff's action being heard and determined on their merits and the grant of leave to amend cannot affect a defendant's right pursuant to a statutory limitation period: ABB Service Pty Ltd v Hetherington [12], [19] (McLure J); Cigna Insurance Asia Pacific Ltd v Packer [36].
35 I order:
1. the plaintiff have leave to amend the writ of summons filed on 14 October 2013 in terms of the minute of proposed amended writ of summons dated 6 October 2015;
2. the plaintiff do file the amended writ of summons within 7 days from the date of these orders;
3. the plaintiff pay any of the first defendant's and second defendant's costs thrown away and incurred by reason of the amendment; and
4. the costs of the application and appeal be in the cause as against the first defendant.
0
11
3