| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KELLY -v- PIONEER CONCRETE (WA) PTY LTD [2003] WADC 287 CORAM : WILLIAMS DCJ HEARD : 26 NOVEMBER 2003 DELIVERED : 19 DECEMBER 2003 FILE NO/S : CIV 2545 of 2000 BETWEEN : WAYNE KELLY Plaintiff
AND
PIONEER CONCRETE (WA) PTY LTD (ABN 58 008 689 781)
Defendant
DAIMLERCHRYSLER AUSTRALIA/PACIFIC PTY LTD (ACN 004 411 410)
Third Third Party
WELLINGTON PLACE PTY LTD (ACN 008 741 571)
ANDERSON NOMINEES PTY LTD (ACN 008 759 834)
ALFARO PTY LTD (ACN 008 994 205)
CITYWIDE INVESTMENTS PTY LTD (ACN 054 755 841)
Fourth Third Parties
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Catchwords:
Procedure - Supreme Court procedure - Appeal against decision of Registrar refusing defendants application to amend third party notices to add claims of negligent mis-statement
Legislation: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(c)
Occupational Health, Safety and Welfare Act 1984
Rules of the Supreme Court
Result:
Appeal allowed Representation:
Counsel: Plaintiff : No appearance
Defendant : Mr J Thomson
Third Third Party : Mr N Gentilli
Fourth Third Parties : Mr D McEvoy Solicitors: Plaintiff : S C Nigam & Co
Defendant : Mallesons Stephen Jaques
Third Third Party : Jackson McDonald
Fourth Third Parties : Tolson & Co
Case(s) referred to in judgment(s):
ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235
Bishop v Searle (1999) 21 SR (WA) 372
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Lister v Romford Ice and Cold Storage Co Ltd (1957) AC 555
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
Rezeu v Massey-Ferguson (Aust) Ltd (1983) VR 733
Case(s) also cited:
Nil
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1 WILLIAMS DCJ: This is an appeal against the decision of the learned Deputy Registrar given in this Court on 27 August 2003 wherein he ordered that the defendant's application to amend its third party notices against the third third party and the fourth third parties in the terms of the defendant's minutes of amended third party notices dated 24 June 2003 be dismissed.
Principles applicable in relation to appeals 2 The jurisdiction exercised by the Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction. A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a Judge of the District Court. In conducting such an appeal, each party may rely on evidence given in affidavit or orally before the Registrar. Furthermore, a rehearing of the matter would also permit the admission of further evidence, without leave, subject to the discretion of the Judge to exclude such evidence where it is irrelevant or where it would be unjust to admit it. It would be wrong to adopt a more restrictive approach: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 per Malcolm CJ at 28-29.
Plaintiff's claim against the defendant 3 The plaintiff was a driver, who operated a prime mover truck and trailer on behalf of the defendant between October 1994 and November 1996. 4 The plaintiff alleges that, due to structural and mechanical problems, in or about mid June 1996 the truck and trailer nearly tipped over while he was towing the loaded trailer as the truck's right chassis rail had shattered. The plaintiff says the truck was not adequately repaired and that this resulted in a crack in the truck's left chassis rails opening up during July 1996. Further, in about November 1996 the plaintiff noticed that the wear plate on the track had moved, suggesting flexing of the chassis rails. The plaintiff claims that on at least four occasions the chassis of the trailer needed repair work for cracks, and that the hoist of the trailer was cracked, which caused the trailer to lean to one side whenever tipping a load from the trailer. 5 As a result of these problems the plaintiff claims that he has suffered a post-traumatic stress disorder and major depression which have caused him to suffer consequential losses.
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6 The plaintiff claims that the problems with the truck were caused by the defendant negligently breaching its tortious duty of care to him, breaching the Occupational Health, Safety and Welfare Act 1984, and breaching his contract of employment with him. In substance the plaintiff says that the defendant committed the relevant breaches by failing properly to repair the truck and to ensure that it was safe and roadworthy, and by requiring the plaintiff to drive the truck after the incident in mid June 1996.
The existing third party claims 7 The third third party was the manufacturer of the truck. The fourth third parties jointly carried on business under the name "Diesel Motors". The third third party appointed the fourth third parties as authorised distributor, repairer and servicer of its trucks in Western Australia. 8 With the Court's leave the defendant issued third party notices in September 2001 to the third third party and in April 2002 to the fourth third parties. No application has ever been made to strike out these third party notices. 9 The third party notices issued to the third third party claims that if the truck was not safe and roadworthy or adequately repaired and maintained, the third third party caused or contributed to the plaintiff's loss because it failed to ensure that the truck was adequately serviced by a competent repairer pursuant to the new vehicle warranty given by the third third party. 10 The third party notices issued to the fourth third parties is in similar terms, except that the fourth third parties are alleged to have caused or contributed to Kelly's loss by failing properly to carry out repairs on the truck, in the fourth third parties' capacity as the authorised repairer for the third third party. 11 Statements of claim have been filed and served in relation to each third party proceeding. These statements of claim allege claims against the third third party and the fourth third parties for breach of contract, and negligent acts and omissions. There are also claims made against the fourth third parties for breach of contract and negligent mis-statement.
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Proposed amendments to the third party notices
12 The defendant applied to amend the third party notices against the third third party and the fourth third parties in terms of new minutes dated 24 June 2003, to include claims based on negligent mis-statements allegedly made just prior to the time when the defendant purchased the truck in 1990. 13 The alleged mis-statements concern oral and written statements made by the third third party and the fourth third parties to the defendant about the suitability of the truck for use in hauling sand and aggregate in conjunction with the particular type of trailer which was used; the fitness of the truck for this purpose, if properly serviced; and the quality of servicing which would be provided for the truck. 14 The defendant claims that if it is liable to the plaintiff in the primary action the third third party and the fourth third parties negligently made the mis-statements and the defendant, having relied upon the mis-statements in purchasing and servicing the truck and in allowing the plaintiff to drive it, is entitled to be indemnified against its liability to the plaintiff. 15 The learned Deputy Registrar refused to allow the proposed amendments to add the allegations of negligent mis-statements on the ground that (at par 8): "It is inconceivable that at a time even as late as November 1996 the defendant had not suffered loss as a consequence of the repairs to the vehicle canvassed by the defendant in its statement of claim. The defendant's commercial activities were such that I have no doubt that the need for repair of the vehicle must have had some impact on the operation of its business if for no other reason than that for the purpose of repair the truck must have been off the road."
Issue on appeal 16 It is the submission of counsel for the defendant that: (1) The view that the learned Deputy Registrar appears to have taken is that, assuming that the negligent mis-statements were made:
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(a) the defendant suffered some loss in 1996 as a result of the negligent mis-statements; (b) the cause of action for the negligent mis-statements therefore accrued in 1996; (c) 24 June 2003, more than six years after the cause of action in respect of the negligent mis-statements accrued, the defendant was time barred from commencing proceedings in respect of the negligent mis-statements. (2) The negligent mis-statement claims are based upon a duty of care owed by the third third party and the fourth third parties to the defendant, breach of which has caused the defendant to incur a liability to the plaintiff for damages. They are not claims that the third third party and the fourth third parties owed any duty of care to the plaintiff not to make negligent mis-statements to the defendant. Hence the negligent mis-statement claims are not made pursuant to s 7(c) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA). (3) The existence of a cause of action in tort for damages representing the amount of compensation paid or payable to an injured third party is a matter which has been left open: See Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 658, Lister v Romford Ice and Cold Storage Co Ltd (1957) AC 555 at 579-580, 585-586. (4) In Bishop v Searle (1999) 21 SR (WA) 372 at 377 it was held that such a claim should not be struck out as not disclosing a cause of action and also held that such a claim was properly made in a third party notice by reason of O 19, r 1(b) of the Rules of the Supreme Court. Further, in this case, the defendant claims that it is entitled to an indemnity against its liability, so that the claim also comes within O 19, r 1(a) of the Rules of the Supreme Court. (5) A number of unresolved issues relating to the proper characterisation of the damage sustained, and the time when the cause of action accrues, arise in relation to this type of cause of action: See Oceanic Crest Shipping (supra) at 658.
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17 In my view the argument that the defendant's cause of action for negligent mis-statement accrued in 1996 assumes that the defendant actually suffered some loss as a result of the negligent mis-statements by the third party in the period up to November 1996. The fact that the truck was repaired does not in my view necessarily represent an actionable loss sustained by the defendant. The third third party would need to prove that the defendant suffered some damage as a result of the repairs being made. For example, the third third party would need to allege that the defendant had to pay for the repairs instead of the repairs being carried out under a warranty, or that the amount of time required for the particular repairs was greater than would have been needed for general servicing and that the defendant was unable to carry out available work as a result.
18 In my view there is no prejudice in allowing the amendment. It is still open to the third third party to plead the Statute of Limitations. It is not appropriate that arguable limitation points be decided on an interlocutory application. 19 The third third party raises another objection to the proposed amendment. It is said that the Court is entitled to consider the minute of amended third party notice afresh in this hearing and should therefore give consideration to the balance of the defects in it. 20 It is said that the endorsement in the notice is still inadequate. The notice must state the nature of each cause of action, the cause of action itself, the remedy sought and sufficient information to allow the third third party to consider any limitation defences. The failure to do so is a fatal defect: Rezeu v Massey-Ferguson (Aust) Ltd (1983) VR 733, approved in ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235. 21 The mode of pleading in the form of the notice refers to both the writ of summons and statement of claim of the plaintiff and the defence of the defendant and a copy of both documents is enclosed by way of service with the third party notice. The third party notice is pleaded on the basis that the damage claimed is the damage for which the defendant would be held liable in the action by the plaintiff. 22 In my view the notice does state the nature of each cause of action, the cause of action itself, the remedy sought and sufficient information to allow the third third party to consider any limitation defence. 23 It follows in my view that the appeal should be allowed.
24 I will hear the parties on the appropriate orders.
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