| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KLEIN -v- MINISTER OF EDUCATION [2003] WADC 172 CORAM : WILLIAMS DCJ HEARD : 20 JUNE 2003 DELIVERED : 8 AUGUST 2003 FILE NO/S : CIV 2647 of 2000 BETWEEN : ALAN DAVID KLEIN Plaintiff
AND
MINISTER OF EDUCATION
Defendant
Catchwords: Procedure - Application for leave to amend defence
Legislation: Occupiers Liability Act 1985
Workers' Compensation and Rehabilitation Act 1981
Result: Application granted
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Representation:
Counsel:
Plaintiff : Mr R J Butcher
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Butcher Paull & Calder
Defendant : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Baume v Commonwealth (1906) 4 CLR 97
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hewitt v Benale Pty Ltd [2002] WASCA 163
Krygger v Commonwealth of Australia, unreported; FCt SCt of WA; Library No 940070; 1 February 1994
Sinclair v James [1894] 3 Ch 554
The State of Queensland & Anor v J L Holdings Pty Limited (1997) 189 CLR 146
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd & Ors (1994) 13 WAR 323
Case(s) also cited:
Matheson v Commission for Main Roads (2001) 25 WAR 269
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1 WILLIAMS DCJ: This is an appeal against the decision of the learned Registrar made in chambers on 15 April 2003 wherein the defendant's application to amend its defence in terms of the chamber summons and minute of proposed amended defence filed 11 March 2003 was 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.
The facts 3 In this action the plaintiff alleges that on or about 1 November 1999 the defendant occupied and controlled premises known as Ocean Reef Primary School. On that date the plaintiff was chasing an offender when he tripped and fell on a large piece of concrete. The plaintiff says the accident was caused by breach of the statutory duty of the defendant who failed to ensure that the plaintiff did not suffer injury or damage by reason of any danger due to the state of the premises or anything done or omitted to be done on the premises as contemplated by s 5 of the Occupiers Liability Act 1985. 4 By the order of Registrar Kingsley made on 24 February 2003, leave was granted to bring an application to amend the defence in this action within 14 days. 5 The defendant says that it would be prejudiced if not permitted to amend the defence and plead relevant issues which correctly reflect the case which it wishes to present at trial. 6 The defence in this action was filed on 16 November 2001. Since its filing, the decision of Hewitt v Benale Pty Ltd [2002] WASCA 163 was handed down by the Full Court of the Supreme Court of Western Australia. That decision held that a deemed employer pursuant to s 175 of
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the Workers' Compensation and Rehabilitation Act 1981 (as amended) ("the Act") was entitled to the protection afforded by s 93E(3) of the Act. Namely, that a disability of 16 per cent or greater or alternatively, 30 per cent or greater must be established before damages can be awarded to a plaintiff. 7 It is a submission of counsel for the defendant that decision is clearly applicable to the facts of the present case. Namely, Falcon Investigations and Security (FIS), contracted with the defendant in this action for the provision of security services. The plaintiff was employed by FIS in the execution of this work. It is the defendant's submission that the work performed by FIS (providing security services) was "directly a part or process in the trade or business of the defendant" as is required by s 175(3) of the Act. Whilst the main trade and business of the defendant was providing teaching services to students, the security, safety and protection of school property formed an integral part of that trade and business. 8 It is the submission of counsel for the defendant that the issues raised disclose an important part of the defence and one which was not available to the defendant at the time of filing its defence. In the circumstances it is appropriate to allow the proposed amendments: Sinclair v James [1894]3 Ch 554 at 557. Failure to allow the amendment would cause substantial prejudice to the defendant which could not otherwise be remedied. Conversely, it is submitted that the plaintiff could be remedied in the present instance by an order for costs of the application, and costs thrown away by reason of the amendment. 9 It is further submitted that the decision whether to grant or refuse the proposed amendments to the defence is a matter of discretion: Baume v Commonwealth (1906) 4 CLR 97. While the Court must have regard to the principals of caseflow management, and cannot base its decision solely on the general presumption that an award for costs will cure prejudice (Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd & Ors (1994) 13 WAR 323 at 335), it is bound by the principals established in the High Court decision of The State ofQueensland & Anor v J L Holdings Pty Limited (1997) 189 CLR 146 at 154 ("the Queensland case"). In that case it was held that the ultimate aim of the Court is the attainment of justice and that no principal of caseflow management could dislodge that aim in preventing that party from litigating an issue which was fairly arguable, except in extreme circumstances. It was further held that a party should be permitted to raise an arguable defence provided any prejudice to other parties could be remedied by costs.
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10 It is submitted that it is open to this Court to find that there is nothing on the present facts to suggest that there are extreme circumstances which would form the basis for an order disallowing the proposed amendment.
11 It is the submission of counsel for the defendant that the amendments will not require any, or any significant, further discovery and the listing conference is scheduled before and after the hearing of this application. A significant factor which the Court is to have regard is that leave to amend would not necessitate and adjournment of the trial; Krygger v Commonwealthof Australia,unreported; FCt SCt of WA; Library No 940070; 1 February 1994; Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (supra). In addition no witnesses would be inconvenienced, the plaintiff would not be prejudiced by reason of the amendments in gathering evidence, factual information, addressing the issues raised or making amendments to the statement of claim, all of which could be adequately remedied by a costs order. 12 It is the further submission of counsel for the defendant that considerations of caseflow management are not prejudiced if the amendments are permitted yet the objective of attainment of justice in the present case, the paramount consideration of which the Court is to have regard, would be if the amendments were not permitted. 13 It is the submission of counsel for the plaintiff that the plaintiff would be prejudiced if the defendant amends the defence at such a late stage in the action. The action has been entered for trial and accordingly most of the getting up has been done. The decision in Hewitt v Benale was handed down by the Supreme Court of Western Australia on 19 June 2002. Since this time the plaintiff has incurred considerable costs in the case. The defendant did not apply to amend its defence at the time of the decision and in fact waited until seven months after the decision was handed down to make its application to amend. 14 The defendant answers that in an affidavit of Elizabeth Pirozzi sworn on 12 June 2003 wherein it is stated that following the Hewitt v Benale decision the defendant investigated the possibility of the s 175 defence applying prior to bringing the appropriate application, by considering the various relationships of the parties in any contracts in relation thereto. In addition to awaiting the Hewitt v Benale decision the defendant considered it prudent to await the outcome of the pre-trial conference held on 9 January 2003 to see whether there was any possibility of settling the matter between the parties. The parties attended a pre-trail conference at the District Court involving the plaintiff's new solicitors on the record and
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when it became apparent that a satisfactory settlement could not be reached the plaintiff's solicitors were put on notice that an application would be made to amend the defence to plead the s 175 defence. The pre-trial conference was then adjourned to allow the defendant to consider the application and to allow the plaintiff's solicitors to put various issues raised at the pre-trail conference to the plaintiff who was absent from the conference having re-located to Queensland. A further pre-trial conference was held on 24 February 2003 wherein the defendant was granted leave to amend its defence in terms of the orders stated earlier. 15 In my view in those circumstances and having regard to the principles enunciated above in the defendant's submissions it is appropriate that the defendant be given leave to amend its defence in terms of the chambers summons and minute of proposed amended defence filed 11 March 2003. 16 In my view the plaintiff can be adequately compensated by way of costs orders in relation to this matter. 17 I will hear the parties as to the orders that should be made. |