| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JOHNSTON -v- PACIFIC DUNLOP LIMITED [2003] WADC 279 CORAM : COMMISSIONER GREAVES HEARD : 19 NOVEMBER 2003 DELIVERED : 17 DECEMBER 2003 FILE NO/S : CIV 1464 of 1998 BETWEEN : MICHAEL JOHNSTON Plaintiff
AND
PACIFIC DUNLOP LIMITED (ACN 004 085 330)
Defendant
Catchwords: Procedure - Appeal from Deputy Registrar - Defendant's application for summary judgment opposed by application for leave to amend statement of claim - Amendment within ambit of writ - Whether plaintiff deemed to have abandoned cause of action - Whether amendment arises out of same basket of facts
Legislation: Trade Practices Act 1974
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Result:
Appeal allowed Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Ms F C E Davis
Solicitors:
Plaintiff : Vertannes Georgiou
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 COMMISSIONER GREAVES: The plaintiff commenced these proceedings on 1 May 1998. It is alleged in the statement of claim and is not in dispute that the first defendant supplied a bicycle to the second defendant who sold it to the plaintiff in September 1991. The plaintiff alleges that on 5 May 1995 he sustained personal injuries when he fell from the bicycle after the front stem of the bicycle snapped.
2 The endorsement of claim on the writ reads: "The plaintiff's claim is against the First Defendant and the Second Defendant (both Defendants being corporations as defined in the Trade Practices Act (Cth) ('the Act') for personal injuries suffered by the Plaintiff on or about 5 May 1995 as a result of: 1. a bicycle ('the product'), which was manufactured and supplied in trade or commerce by the First Defendant, having a defect as contemplated in Part VA of the Act; 2. the product, which was supplied by the Second Defendant to the Plaintiff (pursuant to a contact) in the course of the Second Defendant's business, not being of merchantable quality in breach of the implied undertakings defined in Section 71 of the Act." 3 Part VA of the Trade Practices Act 1974 commenced on 9 July 1992. Counsel for the plaintiff submitted it is open for the court to find that Part VA applies retrospectively to the sale. It is not necessary for me to determine that issue in this appeal. The learned Deputy Registrar granted the defendant's application for summary judgment pursuant to O 16 r 1. In support of this appeal, counsel for the plaintiff opposed the application for summary judgment afresh by providing a draft minute of proposed further amended statement of claim which should be read in conjunction with this judgment. He submitted the endorsement of claim is of wide purport sufficient to allow the proposed amendment to the statement of claim without amendment to the writ; or alternatively, the writ is capable of amendment pursuant to O 21 r 5(5) so that such amendment would arise "… out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed …" 4 Counsel for the first defendant submitted the claim against the first defendant was limited to Part VA of the Trade Practices Act 1974. She said, although a claim for breach of merchantable quality (s 71 of the
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Trade Practices Act) was made, this was against the second defendant only. 5 Counsel for the plaintiff submitted this interpretation of the endorsement is unsound. He submitted that while par 1 of the endorsement makes reference to the manufacture of the bicycle by the first defendant and par 2 refers to the supply by the second defendant to the plaintiff, the endorsement does not limit the action to one of manufacture against one party and supply against the other. The endorsement discloses a chain of events linking the two defendants with the plaintiff. Counsel submitted the endorsement should be read generously. I accept that submission. In my opinion, the minute of proposed amended statement of claim falls within the ambit of the writ. 6 Counsel for the defendant submitted the proposed amendment should not be taken into account on an application for summary judgment. The issues are before the Court and it seems to me expedient and cost effective to hear the application for leave to amend. Counsel for the defendant then submitted the plaintiff must be taken to have abandoned all but the Part VA claim against the first defendant. I do not accept that submission, but if it is correct, I would allow the plaintiff's application pursuant to O 21 r 5 because it is clear the new cause of action arises out of the same facts or substantially the same facts as the 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. 7 I am therefore prepared to grant the plaintiff leave to amend in accordance with the minute of proposed further amended statement of claim. Counsel were agreed that there be a trial of the preliminary question of law whether Part VA of the Trade Practices Act 1974 applies to the plaintiff's claim. I am prepared to direct accordingly. I will also grant leave to the defendant to amend its statement of defence within 21 days. The appeal should therefore be allowed, the decision of the learned Deputy Registrar quashed and I will hear counsel on the orders to be made.
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