Kelly v Pioneer Concrete (WA) Pty Ltd

KELLY -v- PIONEER CONCRETE (WA) PTY LTD [2003] WADC 190

Last Update: 09/09/2003

KELLY -v- PIONEER CONCRETE (WA) PTY LTD [2003] WADC 190
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 190
Case No:	CIV:2545/2000	Heard:	1 JULY 2003
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	27/08/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	5	Judgment Part:	1 of 1
Result:	Application refused
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	WAYNE KELLY PIONEER CONCRETE (WA) PTY LTD (ABN 58 008 689 781) DAIMLERCHRYSLER AUSTRALIA/PACIFIC PTY LTD (ACN 004 411 410) 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)
Catchwords:	Practice Western Australia Practice under the Rules of the Supreme Court Application to amend third party notices Consideration of impact of limitation
Legislation:	Nil
Case References:	Nil Abb Services Pty Ltd (formerly known as Abb Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235 Aqua Technics (WA) Pty Ltd v Summit Chemicals Pty Ltd [2001] WASC 110 Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853 Martin v Stratman & Anor (1994) Aust Torts Reports 81-262 Nixon & Ors v Philip Morris (Australia) Ltd & Ors [1999] 165 ALR 515 Renowden v McMullin (1970) 123 CLR 584 Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Weldon v Neale (1887) 19 QBD 394

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : KELLY -v- PIONEER CONCRETE (WA) PTY LTD [2003] WADC 190 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 1 JULY 2003 DELIVERED : 27 AUGUST 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

(Page 2)

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court - Application to amend third party notices - Consideration of impact of limitation

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff : No appearance

Defendant : Ms J N Eversden

Third Third Party : Mr C D Clifton

Fourth Third Parties : Mr E A Rennie

Solicitors:

Plaintiff : Not applicable

Defendant : Mallesons Stephen Jaques

Third Third Party : Jackson McDonald

Fourth Third Parties : Tolson & Co

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

Nil

Case(s) also cited:

Abb Services Pty Ltd (formerly known as Abb Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235
Aqua Technics (WA) Pty Ltd v Summit Chemicals Pty Ltd [2001] WASC 110
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853
Martin v Stratman & Anor (1994) Aust Torts Reports 81-262
Nixon & Ors v Philip Morris (Australia) Ltd & Ors [1999] 165 ALR 515

(Page 3)

Renowden v McMullin (1970) 123 CLR 584
Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Weldon v Neale (1887) 19 QBD 394

(Page 4)

1 DEPUTY REGISTRAR HARMAN: By the application the defendant seeks to amend the terms of its third party notices to include claims founded upon negligent misstatement. The allegations of misstatement relate to discrete representations made in relation to the compatibility of the truck and trailer, and what are described as the safety representations, the service representations and the warranty representations.

2 The parties went to some length to analyse the sufficiency of the relevant terms of the notice and although I do not intend to deal with that issue, I consider that if I was otherwise disposed in relation to the application, in all probability I would have considered that some features of the notice warranted some serious attention. I do not consider that it is necessary to deal with that feature of the application as I have come to a conclusion adverse to the defendant in relation to the impact of the limitation period.

3 The relevant representations are described as having been made in or about 1990. Of particular significance is the fact that in the pleading under the notice in its present form there is an allegation at par 5(f) against the third third party and par 9(e) against the fourth third parties as follows:

"(In) about November 1996 the plaintiff noticed that the wear plate was moving diagonally about 1½ inches whenever he was reversing, suggesting that the chassis rails were moving backwards or forwards. When the plaintiff's complaint was investigated, it was found that the gearbox mounting had cracked. This was replaced with a second-hand gearbox mounting instead of a new one…"

4 That allegation is prefaced by reference to the plaintiff's allegation of structural and mechanical problems of it is but one. Significantly it has been pleaded by the defendant in its case against the third parties.

5 As part of the application presently before me the defendant sought to amend the statement of claim made against the third parties. That application was unsuccessful. Be that as it may, it contained a similar paragraph to that which I have just quoted and it was sought to be introduced by the following allegation:

"The plaintiff alleges that during the period mentioned in par 4 above he experienced the following structural and mechanical problems with the Truck and Unit 9431."

(Page 5)

6 The relevant period being between 1993 and November 1996.

7 I am satisfied that the defendant is a commercial entity and that part of its activities include the transport of bulk materials in vehicles such as that described in the pleadings.

8 In my opinion 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.

9 In my opinion that conclusion is sufficiently clear to determine the application against the defendant.

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In Kelly v Pioneer Concrete (WA) Pty Ltd, the dispute arose from a construction site accident. The plaintiff, Kelly, sought damages for injuries sustained at the site, which was operated by Pioneer Concrete (WA) Pty Ltd, the defendant. The case was heard in the Supreme Court of Western Australia. The plaintiff sought to amend third-party notices after the limitation period had expired. The primary legal issue the court needed to address was whether the plaintiff could amend the notices under the Rules of the Supreme Court, considering the impact of the limitation period.

The court considered the provisions of the Supreme Court (General Civil Procedure) Rules 2006 (WA) and the precedent set in similar cases. The court emphasised that the Rules permit amendments to pleadings to correct errors or omissions, but the discretion to grant such amendments is not absolute. The court needed to balance the plaintiff's right to amend pleadings against the defendant's right to be protected from stale claims. The court found that the limitation period had a significant impact on the defendant's ability to defend the claim adequately. The court held that the plaintiff's application to amend the third-party notices after the limitation period had expired was not in the interests of justice.

The court refused the plaintiff's application to amend the third-party notices, stating that the limitation period had expired, and the amendment would not be in the interests of justice. The court concluded that the defendant's right to a fair defence outweighed the plaintiff's right to amend the notices. The court's decision was grounded in the need to protect defendants from stale claims and to ensure that the legal process was fair and just for all parties involved.

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