Italiano v Macmahon Contractors (WA) Pty Ltd - [2005] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ITALIANO -v- MACMAHON CONTRACTORS (WA) PTY LTD & ANOR [2005] WADC 120

CORAM: COMMISSIONER SCHOOMBEE

HEARD: 17 JUNE 2005

DELIVERED : 21 JUNE 2005

FILE NO/S: CIV 1016 of 2002

BETWEEN: ANDREW JAMES ITALIANO
Plaintiff
AND
MACMAHON CONTRACTORS (WA) PTY LTD (ACN 008 715 697)
First Defendant
TAMBAC HOLDINGS PTY LTD (ACN 050 494 267)
Second Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party

Catchwords:

Practice and procedure - Adjournment of trial - Shortly before trial - Expert report - Case management - Prejudice - Justice - Turns on own facts

Legislation:

Nil

Result:

Application to adjourn trial granted

Representation:

Counsel:

Plaintiff:     Mr B E S Lauri
First Defendant              :     Mr D Clyne
Second Defendant         :     Mr D Clyne
Third Party  :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First Defendant              :     Srdarov Richards Burton
Second Defendant         :     Hammond King Touyz
Third Party  :     Not applicable

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

Boyes v Colins (2000) 23 WAR 123
Brambles Holdings Ltd v Apex Pallet Hire Pty Ltd, unreported; FCt SCt of VIC; BC8800750; 8 April 1988
Cropper v Smith (1884) 26 Ch D 700
Krygger v Commonwealth of Australia, unreported; FCt SCt of WA; BC 9401481
State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA, Library No 8814, 27 September 1990
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd & Ors [2005] WASCA 106

Case(s) also cited:

Spencer v VMD Packaging Pty Ltd [2001] NSWCA 118

COMMISSIONER SCHOOMBEE: This matter concerns an application by the plaintiff to have the trial of this action adjourned sine die. The application is brought essentially on the ground that the plaintiff has not as yet been able to locate the water cart, which is relevant to this action, and that the expert employed by the plaintiff is unable to provide a suitable expert report without having inspected the water cart. The plaintiff offers to pay the costs of the first defendant, the second defendant and the third party thrown away by the adjournment of the trial in any event.
The application to adjourn the trial was filed on 13 June and heard on 17 June 2005. The trial has been listed for 27 June 2005 to 1 July 2005. The application was therefore made two weeks before the start of the trial.
The plaintiff's case against the first and second defendants relates to personal injuries received by the plaintiff on 6 December 2000 when he fell off a water cart on which a water cannon had been mounted. It appears from the Amended Statement of Claim that the plaintiff was employed as a truck driver by a company which is not involved in these proceedings, but was working for the first defendant at the time. The plaintiff pleads that he was directed by the first defendant to assist the second defendant in putting out a fire that had started on premises owned by the first defendant and to use the water cart for this purpose. The plaintiff says that he climbed onto the rear section of the water cart and attempted to adjust the aim of the water cannon. Whilst he was doing this a mechanical component in the water cannon assembly suddenly gave way, causing the water cannon to dislodge from its mounting and also causing the plaintiff to lose his balance, as a result of which he fell onto the carriageway.
The plaintiff alleges that the first defendant was negligent in that, inter alia, it failed to instruct or train the plaintiff as to the use of the water cart and/or the water cannon, it failed to regularly inspect and maintain the water cart and water cannon and also failed to ensure that the "swizzle section" was regularly and adequately inspected. As regards the second defendant, the plaintiff pleads that it was the owner of the water cart which had been hired or bailed by the second defendant to the first defendant. The plaintiff pleads that the second defendant was negligent and provides particulars of negligence which are similar to those alleged with regard to the first defendant. No allegations have been made that the second defendant designed the water cart and the assembly of the water cannon and was responsible to the plaintiff by reason of its defective design. The particulars of negligence only deal with the second defendant's failure to inspect, maintain and repair the water cart and the water cannon.
I have been advised from the Bar Table by counsel for the first defendant that he will also act for the second defendant at the trial and that the second defendant's third party claim against the third party is to be discontinued.
This matter came before a Registrar at a pre‑trial conference on 1 November 2004. At the pre‑trial conference orders were made that the parties have leave to adduce expert evidence at the trial of this action and that the plaintiff serve on the other parties a copy of the report of any expert witness, the substance of which he intended to rely at the trial, not less than 60 days prior to the trial. Accordingly, since at least 1 November 2004 the plaintiff has presumably known that he wished to rely on an expert report at the trial. The matter was referred to a listing conference on 24 January 2005, on which date the above trial dates were allocated. A status conference was held on 18 May 2005 and I have been advised from the Bar Table by counsel acting for the defendants that at that hearing no matters were raised by the plaintiff which prevented the trial from proceeding on the allocated dates.
The application to adjourn the trial sine die is made on the basis that the plaintiff's expert is not able to prepare a suitable expert report without having been able to inspect the water cart and water cannon, or at least to view photographs of the water cart and water cannon. The plaintiff has filed four affidavits by Mr Darnell Gant, an employee of his solicitors, in which it is explained that the plaintiff's solicitors have to date not been able to find out who presently owns the water cart with water cannon or where it may be inspected.
The affidavit sworn by Mr Gant, dated 13 June 2005, says that his firm has engaged Dr Steven Chew of Westralian Technical Consultants Pty Ltd to provide an engineering expert's report and that Dr Chew has advised him that:
"(a)it is essential to determine whether the circlip was designed to retain the water cannon;
(b)it is essential to determine whether the platform of the water cart could have been better designed;
(c)it is essential to ascertain the condition of the circlip at the time of its alleged failure;
(d)it would be advantageous to establish the diameter of the water cannon nozzle, the water pressure and the rate of water discharge from the water cannon."
It is not clear whether the circlip referred to by Dr Chew is the mechanical component in the assembly of the water cannon which gave way, as pleaded in par 11 of the Amended Statement of Claim. The particulars of negligence do not refer to a circlip but allege that the "swizzle section" was not regularly and adequately inspected, maintained and repaired. However, for purposes of this application, I am prepared to assume that the circlip is either the same as the "swizzle section" or that it is in some other way relevant to the plaintiff's allegation in par 11 of the Amended Statement of Claim that a mechanical component in the assembly of the water cannon gave way.
It makes sense that Dr Chew would like to inspect the water cart and cannon in order to see how the water cannon was assembled and to investigate the design and operation of the circlip in order to establish the importance of maintaining this piece of equipment and its role in causing the water cannon to dislodge from its mounting. An incident report apparently signed by the project engineer of the first defendant on 11 December 2000 has been annexed to the affidavit sworn by Mr Gant on 16 June 2005. This incident report states:
"A closer inspection of the water cannon revealed that the detachment of the water cannon had been caused by the failure of a rusted circlip."
Accordingly, it appears that the function and condition of the circlip is likely to be a major issue in the plaintiff's case against the defendants.
Dr Chew's second requirement, namely to determine whether the platform of the water cart could have been better designed, is in my view not relevant to the case as pleaded by the plaintiff. The plaintiff has not pleaded that the first or second defendant defectively designed the water cart. However, the plaintiff has pleaded that the first and second defendants were negligent in failing to instruct or otherwise train him as to the use of the water cart and/or water cannon. Further, the incident report apparently signed by the first defendant's project engineer states as follows:
"The narrow platform at the rear of the Battersby water cart offers very little protection against potential falls. Consequently, equipment should not be operated from this platform."
Accordingly, it would be helpful to the plaintiff's case to have photographs of the size and layout of the platform. It may be that the size and layout of the platform is also relevant to expert evidence to be provided by Dr Chew in respect of the plaintiff's allegation that the first defendant was negligent by failing to comply with s 19 of the Occupational Safety and Health Act 1984.
The third reason provided as to why Dr Chew needs to inspect the water cart and water cannon is not persuasive. It is unlikely that an inspection of the water cart and water cannon at the present time, which is almost four and a half years after the date of the accident, will indicate "the condition of the circlip at the time of its alleged failure". It has also not been explained in the affidavits filed on behalf of the plaintiff why it would be "advantageous to establish the diameter of the water cannon nozzle, the water pressure and the rate of water discharged from the water cannon."
The affidavits filed on behalf of the plaintiff do not say when Dr Chew was first instructed by the plaintiff and when he advised that it was necessary for him to inspect the water cart and water cannon in order to see how the circlip was designed and operated.
It is also not clear from the affidavits filed on behalf of the plaintiff when the plaintiff first became aware that the water cart and water cannon was no longer owned or in the possession of the second defendant. The affidavit sworn by Mr Gant on 14 June 2005 attaches a letter from the plaintiff's solicitors to the first defendant's solicitors, dated 11 February 2004, enquiring with regard to the whereabouts of the water cart. A supplementary affidavit by Mr Gant states that no response was received from the first defendant's solicitors to this letter. There is a later letter by the second defendant's solicitors, dated 26 July 2004, which refers to another facsimile sent by the plaintiff's solicitors and which advises that the "swizzle section" had been put into a mini‑skip and presumably had been destroyed. As this letter does not deal with the whereabouts of the water cart, it appears that by July 2004 the plaintiff knew that the water cart was no longer in the possession of the second defendant.
The affidavits sworn by Mr Gant attach various items of correspondence in which the plaintiff asked the first and second defendant's solicitors for maintenance and repair records of the water cart, the water cannon and the "swizzle section", but they do not deal with the whereabouts of the water cart. The affidavit sworn by Mr Gant, dated 13 June 2005, does not say when it came to the plaintiff's knowledge that the water cart was no longer in the possession of the second defendant. This affidavit simply states as follows:
"My firm has been informed by the Second Defendant's solicitors that the water cannon and water cart were sold by the Second Defendant on or about 23 September 2002, but the Second Defendant's solicitors have not informed my firm of the identity of the purchaser."
Mr Gant says in his affidavit, dated 16 June 2005, that since "late last year" he has made numerous telephone enquiries in an endeavour to locate the water cart or a similar water cart, but has had no success. He further states that he has been informed by the plaintiff and by Dr Chew that they have also made numerous telephone enquiries and searches in an endeavour to locate the water cart. However, the affidavit does not make clear when these enquiries by the plaintiff and Dr Chew were commenced.
Mr Gant says in his supplementary affidavit, dated 16 June 2005, that the plaintiff's solicitors made an application to the Department of Planning and Infrastructure pursuant to the Freedom of Information Act 1992 by letter, dated 24 March 2005, to supply them with the registration and ownership details of motor vehicle registration number KBC-673, which presumably is the water cart in question. On 13 April 2005, the Department provided detail of the registration and ownership of a motor vehicle, but it was the incorrect vehicle. The plaintiff's solicitor again requested the information pertaining to the motor vehicle in question per letter, dated 22 April 2005. It is not clear from the affidavits when a response to this letter was received.
The affidavit sworn by Mr Gant on 14 June 2005 states that as at the date of swearing the affidavit the Department of Planning and Infrastructure had declined to provide him with information, on the ground that the purchaser would not consent to that information being released. It appears that after the Department declined to provide the requisite information the plaintiff's solicitors applied to the Department to have their request referred to an internal review. Again it is not clear when this request was made. Mr Gant indicates in one of the affidavits that it is unlikely that the Department will complete its internal review prior to the date of the trial.
On 13 June 2005 the plaintiff filed an application for leave to issue and serve a writ of subpoena duces tecum on the Minister for Planning and Infrastructure to produce all records pertaining to the registration of motor vehicle registration No KBC‑673, the transfer of ownership of this vehicle and the current ownership of this vehicle. This application was granted on 14 June 2005 and is returnable prior to trial. Counsel for the defendants indicated from the Bar Table that he thought that the subpoena was returnable on Tuesday, 21 June 2005 and submitted that this application should be adjourned to that date. However, this does not appear from the order which refers to "no later than 4.00 Tuesday 14 June 2005". In any event it may not be immediately apparent from the information provided by the Department of Planning and Infrastructure whether the plaintiff can locate the water cart and whether he can get access to it.
What is clear from the affidavits filed on behalf of the plaintiff is that the plaintiff's solicitors only made an application to issue a subpoena duces tecum to the Minister of Planning and Infrastructure on 13 June 2005, whereas this should have been done as soon as it became apparent that it was important to the plaintiff's case that the water cart and water cannon be located and inspected or photographed and that it was no longer in the possession of the second defendant. This must have been apparent to the plaintiff's solicitors from mid 2004 and, at the very latest, when Dr Chew was instructed. As I have said earlier, the affidavits do not make it clear when Dr Chew was instructed.
Counsel appearing for the defendants at the hearing of this application conceded that there would be no prejudice to the defendants if the trial was adjourned sine die other than wasted costs, which the plaintiff has offered to pay. However, there are also considerations of case management to be taken into account. If an application to adjourn a trial and vacate the trial dates is only made two weeks prior to the listed starting date for the trial it may result in the waste or inefficient use of court resources, and this is prejudicial to the interests of other litigants waiting to be heard.
The principles to be applied by a court in exercising the court's discretion to allow an adjournment of a trial are well documented. Counsel for the plaintiff relied on the well‑known passage in State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146, in which the High Court, per Dawson, Gaudron and McHugh JJ, held as follows at p 154:
"Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."
On the other hand, in Boyes v Colins (2000) 23 WAR 123, Ipp J, with whom Pidgeon and Walwork JJ concurred, pointed out that in The State of Queensland & Anor v JL Holdings Pty Ltd (supra) the findings made by the High Court in respect of case management principles were made in the context where there was no waste of court time, no witnesses were inconvenienced and costs were an adequate remedy. This case concerned an application for leave to amend which was made before a date was fixed for the hearing and the date subsequently fixed was six months ahead. In light of this Ipp J held as follows at p 145:
"But there are instances when principles of case management are highly relevant to the attainment of justice and I do not think, with respect, that their Honours intended by their remarks in The State of Queensland v JL Holdings Pty Ltd to indicate that in those circumstances case management principles were to be ignored."
A similar view was expressed in Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd & Ors [2005] WASCA 106 by McLure J. Her Honour referred to the particular facts in The State of Queensland v JL Holdings, particularly that the application for leave was made before a date was fixed for the trial, when the date was fixed, it was six or so months ahead, and that the trial might still have proceeded notwithstanding the grant of leave to amend. Her Honour then held as follows at p 93:
"JL Holdings is not authority for the proposition that a late grant of leave to amend is invariably in the interests of the justice of the case."
In Krygger v Commonwealth of Australia, unreported; FCt SCt of WA; BC 9401481; 1 February 1994, the plaintiff had applied to the District Court on the first day of the trial for an adjournment of the trial on the ground that the plaintiff was in Victoria and was unable to attend the trial by reason of a lack of funds and because the plaintiff's solicitors had expected the matter to be settled. No affidavit was filed in support of the application; the grounds were merely explained from the Bar Table. His Honour, the Chief Judge of the District Court refused the application to adjourn and described the plaintiff's conduct as "appalling". At the hearing of the application counsel for the plaintiff conceded that he knew a month before trial that the action probably would not be able to be brought on the fixed trial dates and knew "in the last weeks" that the plaintiff was not in a position to come to Perth for the trial. The plaintiff appealed against the dismissal of the application to adjourn on the basis, essentially, that the refusal to grant the adjournment would result in serious injustice to the plaintiff, but the granting of it would not result in serious injustice to the defendant. The Full Court unanimously dismissed the appeal. Malcolm CJ held as follows at p 9:
"The system of pre‑trial conferences, callovers and listing of civil trials in the District Court is dependant upon the co‑operation of counsel, solicitors and their clients. The Court is entitled to expect that when an action has been entered for trial it is in all respects ready to proceed to trial on the date fixed, unless it has been informed of any existing or anticipated difficulty. In this particular case as soon as counsel for the appellant had any reason to believe that the appellant may not come to Perth for the trial, for whatever reason, he was under a duty to inform the Court."

His Honour further said the following at p 12:
"In the present case, had the Court been fully and properly informed of the circumstances in due time, it may have been possible to take the case out of the list and list some other case or cases. In the result, because the Court was not fully informed but, on the contrary, led to believe that the case would go on, when it was evident to counsel for the appellant that it would not, other litigants waiting for a hearing were needlessly prejudiced. This is contrary to the public interest: Brambles Holdings Ltd v Apex Pallet Hire Pty Ltd, unreported; SCt of Vic; 8 April 1988; Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA; Library No 8514; 27 September 1990; and Grljusich v Grljusich, unreported; SCt of WA; Library No 930253; 6 May 1993."
Ipp J in Krygger v Commonwealth of Australia referred to Brambles Holdings Ltd v Apex Pallet Hire Pty Ltd, unreported; FCt SCt of VIC; BC8800750; 8 April 1988, in which McGarvie J (with whom Marks J concurred) said:
"In looking at the rights of the defendant which are the subject of submissions in this application, it is worth remembering that the right of a party to litigation is the right to have a reasonable opportunity to present its case, or its defence. It is not accurate to regard the law as being that if one party, through neglect, is in a position where it is not able properly to present its case, it is automatically entitled to an adjournment."
Ipp J noted that these remarks of McGarvie J were adopted by Seaman J (with whom Pidgeon J agreed) in Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA, Library No 8814, 27 September 1990.
In this case the plaintiff's solicitors should have issued a subpoena duces tecum to the Department of Planning and Infrastructure at a much earlier stage than two weeks before the trial. As indicated above, it should have been apparent to the plaintiff's solicitors that it was important to obtain at least photographs of the water cart and water cannon in question, and presumably Dr Chew raised this requirement as soon as he was instructed. The affidavits filed in support of the application do not make it clear when Dr Chew was instructed and when he informed the plaintiff's solicitors that he needed to inspect the water cart and water cannon in order to provide a meaningful report. It may be that the plaintiff's solicitors were still hopeful that their telephone enquiries (in respect of which no detail is provided in the affidavits) might be successful or that their application to the Department of Planning and Infrastructure pursuant to the Freedom of Information Act 1992 would bear fruit. The affidavits do not explain when the Department of Infrastructure and Planning refused to comply with this application. At least at that time it should have been apparent to the plaintiff's solicitors that they would not be able to locate the water cart and cannon in question in time and that an adjournment of the trial was required.
The last item of correspondence attached to the affidavits by Mr Gant is the letter from the plaintiff's solicitors to the Department of Planning and Infrastructure, dated 22 April 2005, pointing out the mistaken identity of the vehicle and renewing the request in respect of the vehicle with registration number KBC-673. Presumably the Department would have replied soon after receiving this letter. The application to issue a subpoena duces tecum against the Department of Infrastructure and Planning was only made on 13 June 2005. Although the affidavits do not deal with the crucial dates, it appears that the plaintiff could have applied at a much earlier time to have the trial adjourned; at a time when it may still have been possible for the Court to make use of the vacated trial dates. Although this case is clearly not on par with the facts in Krygger v Commonwealth of Australia (supra), it seems clear that steps should have been taken much earlier to issue a subpoena against the Department of Infrastructure and Planning or to bring an application to have the trial adjourned.
The demands of case management principles are one factor to be taken into account in the exercise of the Court's discretion. The other factors are the prejudice suffered by the defendants if the trial was to be adjourned, as well as the question of justice. In State of Queensland & Anor v JL Holdings Pty Ltd, Dawson, Gaudron and McHugh JJ, held as follows at p 155:
"Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."
Their Honours also referred (at p 152) to the well‑known passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 where his Lordship said at p 712:
"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights."
Counsel for the defendants conceded during the hearing of this application that there was no prejudice for the defendants that could not be cured by an order as to costs. The defendants in this case are companies and the strain that the litigation imposes upon personal litigants (see State of Queensland v JL Holdings, at p 155) does not apply in this case.
Having weighed the conduct of the plaintiff, the lack of information contained in the affidavits, the requirements of case management principles and the absence of prejudice other than as to costs by the defendants, I have reluctantly come to the conclusion that the application should be granted. It is important to the plaintiff's case to have photographs of the water cart and cannon in question and to give its expert the opportunity of inspecting the water cart and cannon. It is, of course, not even certain that information provided by the Department of Infrastructure and Planning in response to the subpoena will provide this opportunity to the plaintiff. However, in my view, the demands of justice require that the plaintiff not be deprived of this opportunity in light of the fact that the defendants will not suffer any prejudice other than as to costs.
Accordingly, I make the following orders;
1.The application to adjourn the trial sine die be granted.
2.The trial dates on 27 June to 1 July 2005 be vacated.
3.The plaintiff to pay the first defendant's, the second defendant's and the third party's costs of this application and the first defendant's, the second defendant's, and the third party's costs thrown away by the adjournment of the trial in any event.