Kirika v Separovic
[1999] WADC 151
•30 SEPTEMBER 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KIRIKA -v- SEPAROVIC [1999] WADC 151
CORAM: KENNEDY DCJ
HEARD: 30 SEPTEMBER 1999
DELIVERED : Delivered Extemporaneously on 30 SEPTEMBER 1999 typed from tape and edited by Trial Judge.
FILE NO/S: CIV 1184 of 1997
BETWEEN: PAUL ERIC KIRIKA
Plaintiff
AND
TONY SEPAROVIC
Respondent
Catchwords:
Practice & procedure - Application to amend - Turns on its own facts.
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
Plaintiff: B L Nugawela
Respondent: Mr J R Criddle
Solicitors:
Plaintiff: D'Angelo & Partners
Respondent: J R Criddle
Case(s) referred to in judgment(s):
State of Queensland v J L Holdings Pty Ltd (1996-97) 189 CLR 146
Case(s) also cited:
Nil
KENNEDY DCJ : In this matter I have before me a Chamber Summons, by the plaintiff, for various orders, including that the plaintiff seeks leave to bring the application, that the time for bringing it and service be abridged and that leave be granted to the plaintiff to re-amend the substituted statement of claim in terms of the minute of proposed re-amended substitute statement of claim herein.
This matter has a most sorry history. The first statement of claim was filed on 9 April 1997 and basically alleged negligence against a practitioner and mainly on the basis of a loss of common law right of action. The defendants eventually made certain applications. The matter came on before Judge Yeats and on 30 January 1998 she made an order that paragraphs 11.1, 3, 4 and 6 be struck out, but she granted leave to amend.
That was not availed of and this small section of this file is just quite extraordinary. On 9 July 1998 the first set of papers for the judge were filed and they include the struck-out passages. It is impossible to say from this file, but I presume that somehow or other at the pre-trial conference that was drawn to the attention of the solicitors for the plaintiff. Subsequently they obtained leave to amend. They amended, but the common law action was deleted and it became an action in relation to workers compensation.
Six weeks before trial what the plaintiff really wants to do, and I think Mr Nugawela described this as a 180° turn - I think this is a 360° turn - they want to go back to where they were in the first place. However, as Mr Nugawela says they do not have to prove that they will be successful. What they have to do is prove that it is arguable on the merits and I have had reason to re-read the authority referred to me by the defence, that is, State of Queensland v J L Holdings Pty Ltd (1996-97) 189 CLR 146.
At 154 their Honours say, and they are talking about management principles:
"… 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."
The other matter of course that concerns me and that I mentioned on the last occasion is that this is a layperson seeking to take action against a legal practitioner and we must always be vigilant to make sure that not only is justice done, but it is seen to be done and that people are not left with the impression that the legal profession is seeking to protect its own. On occasions that leads to what many lawyers might well argue is an injustice to them, but it is one of the matters that simply has to be put up with to have the benefits of being regarded as a profession.
In all the circumstances I do propose to allow this amendment, but paragraph 18 has not been properly amended. It is necessary to plead the state of the plaintiff's health, his stabilised state of health, and what it is said the defendant would have discovered, had he done all the things that it is alleged he should have done. What I propose is to allow this amendment, but there will have to be extra paragraphs added in to cover the matters referred to by Judge Yeats and to cover what I have just talked about.
In relation to paragraph 6, I do not propose to force the plaintiff to strike out 6(a) and (b). I understand what Mr Criddle is saying and that they are in fact agreeing with 6(a), but that is not the allegation that the plaintiff is making. The plaintiff is saying that he was not properly advised either way and that he either should have received ongoing workers compensation or a substantial award of damages to make up for it and that what he received, given his state of health, was neither here nor there. It was not, in a sense, worth having because all it would do is interfere with any social security he might be entitled to without giving him the ability to look after himself. These alternatives can be put as an alternative basis to the trial judge. It is not a matter of anyone putting alternative evidence in the circumstances.
I think I should record that the opposition of the defence to this matter has been absolutely strenuous and I am not without sympathy for the defendant personally in relation to this matter. So far as legal prejudice is concerned, nothing has been put before me which would indicate that it would make it in any way difficult for the defendant to defend this matter. The prejudice is in the nature of, firstly, costs and, secondly, prejudice in relation to the strain that this is putting on the defendant and I accept that. As I say, I am not without sympathy for him, but that in all the circumstances cannot be allowed to prevent the plaintiff from litigating this matter.
The order is the plaintiff may amend the statement of claim, but what has been put before me is not sufficient. Further amendment to paragraph 18 will be needed.
So far as the matter of costs are concerned, I will hear the parties in relation to that.
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