| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KURGAN -v- C.E.C.K PTY LTD [2011] WADC 101 CORAM : BRADDOCK DCJ HEARD : 8 & 10 JUNE 2011 DELIVERED : 10 JUNE 2011 PUBLISHED : 24 JUNE 2011 FILE NO/S : CIV 2375 of 2008 BETWEEN : MICHAEL JAMES KURGAN Plaintiff
AND
C.E.C.K PTY LTD
First Defendant
BP REFINERY (KWINANA) PROPRIETARY LIMITED
Second Defendant
SAUNDERS INTERNATIONAL LIMITED
Third Party
Catchwords: Pleadings - Late amendment - Limitation period expired - Failure adequately to explain - Interests of justice
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Legislation: District Court Rules 2005, r 48B(3) Result: Application dismissed Representation: Counsel:
Plaintiff : Mr M Ley
First Defendant : Mr T Lampropolous
Second Defendant : Mr J Mirando
Third Party : No appearance
Solicitors:
Plaintiff : Vertannes Georgiou
First Defendant : DLA Piper Australia
Second Defendant : Jackson McDonald
Third Party : Not applicable
Case(s) referred to in judgment(s):
Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212
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(This judgment has been delivered extemporaneously on 10 June 2011 and has been edited from the transcript). 1 This is the first defendant's chamber summons for leave to further re-amend its defence and for leave to amend its defence in the contribution proceedings. 2 The chamber summons was filed on 31 May, and the proposed amended defence had previously been filed on 19 May 2011, although the first defendant accepts that leave for filing is required as sought for the minute of proposed amended defence in the contribution proceedings. 3 The proposed amendment is a significant one. In support of that application the first defendant relies upon the affidavit of Mr Timothy Daniel Creighton, sworn on 27 May 2011. The action is listed for trial to commence on 18 July 2011, in approximately six weeks' time. It is listed for trial for some 10 days. 4 The proposed amendment significantly concerns the status of the first defendant's employee or agent who is alleged to have caused the accident in which the plaintiff suffered his injuries. 5 The deponent, Mr Creighton, is a gentleman employed by the first defendant as a commercial manager and subsequently contracts manger, specifically contracts manager at the relevant period. The accident occurred on 31 May 2007. In his capacity as contracts manager at that time, he deposes to the fact he had overall responsibility for the civil construction work which the first defendant carried out for the BP Refinery (Kwinana) Pty Ltd. That company is the second defendant of this action. 6 Mr Creighton became aware that the plaintiff intended to claim damages against the first defendant for injuries which he had allegedly suffered in an accident involving a temporary limestone ramp which, for various reasons, he stumbled off. The ramp had been built a short time prior to the accident for access to a particular part of the site where the plaintiff was working. The ramp itself was built at the request of a third party by a Peter William Earl, who was a bobcat operator. 7 Mr Creighton deposes to the fact that he knew Mr Earl well, he knew he had worked for the first defendant as a bobcat operator and truck driver for many years, in fact prior to the time that he joined the company (Page 4)
himself. After notice of an intention to claim was received, Mr Creighton liaised with the defendant's insurance brokers and subsequently gave instructions in relation to the action. 8 He deposes to the fact that he was under the belief that Mr Earl was an employee of the first defendant and had been working for the first defendant predominantly at the refinery for many years. Accordingly, on that basis, Mr Creighton gave instructions which led to the matter being pleaded as it was by the first defendant. 9 Mr Creighton goes on to say that at all times prior to late March of 2011 he had instructed the first defendant's solicitors on the basis that Earl had built the ramp and on the basis that Earl had been an employee of the first defendant at the time he did so. 10 At about late March 2011, Mr Creighton says he was 'reviewing the matter generally' and began to doubt his understanding of the capacity in which Mr Earl worked for the first defendant. He then made certain inquiries, as a result of which he formed the view that Mr Earl, was an independent contractor and had been contracting under the name of an entity called Jayden Bobcats. In 2002 Mr Earl entered into a subcontractor agreement in the name of Jaycynnat Holdings Pty Ltd trading as Jayden Bobcats. That document is attached to Mr Creighton's affidavit. 11 The proposed amendment seeks to withdraw the admission that has been made to date by the first defendants as to their responsibility, as employer of Earl, for the building of that ramp. The defence has been amended on a number of times previous to the minute being filed on 19 May 2011. There are a number of new amendments, but the significant one appears at par 5 where it is proposed to plead that the first defendant denies that it built the ramp and says that Earl, as an employee of Jaycynnat Holdings Pty Ltd, built the ramp and at all material times he was an independent contractor, providing bobcat and trucking services to the first defendant. 12 Furthermore, consistent with that change, the amending minute seeks to withdraw the admission of duty owed to the plaintiff in those circumstances. In relation to other matters, there are some minor amendments which are not opposed. 13 This proposed change is carried through into the first defendant's minute of proposed amendment to the contribution proceedings defence which, at par 2A, admits that the plaintiff stepped onto a limestone ramp (Page 5)
whilst working at the refinery but denies the allegations in relation to the third party claim and further goes on to plead that Earl was a subcontractor, who built the ramp. 14 From that it can be seen that the amendments go to the heart of the issue between the plaintiff and first defendant and indeed the first defendant and the second defendant in this action. 15 The proposed amendment is strenuously opposed both by the plaintiff and the second defendant. The chronology of the pleadings history bears repetition. The proceedings were issued in 2008. The amended defence, filed 15 April 2009, contained the admission by the first defendant to building the ramp and the admission of the duty that was owed. Those matters were therefore no longer to be an issue in the proceedings brought by the plaintiff. The plaintiff's view is that that is a fundamental part of his claim. 16 On 29 July 2010, the first defendant filed and served a re-amended defence in which, the same admission was made to the effect that the first defendant had built the ramp. On 15 November 2010, the first defendant served a further re-amended defence in which, again, it was accepted that Earl had built the ramp and at the time had been an employee. 17 Following the effective closure of those pleadings, the matter has been through the course of pre-trail conferences, directions hearings, and a listing conference to the point that it is now about to be tried in six weeks. 18 As a consequence, if these amendments were to be permitted, the trial would be vacated, which is a matter that the first defendant has conceded. It would appear that the plaintiff will have to reframe his case to a substantial extent and that potentially other parties would become involved. Furthermore, the period of limitation in relation to this accident has now expired. There will be significant cost implications, further disclosure implications, not to mention the personal effects upon the plaintiff and others involved in the litigation by the deferral of the resolution of the matter. 19 Upon an application of this kind there is a wide discretion vested in the court and I refer to the decision of the Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212, particularly to the summary of the principles at [19] of that decision where it was said: (Page 6)
The general principles to be applied on application to withdraw an admission of pleading can for present purposes sufficiently be stated as follows: 1) The court has a broad discretion to permit or refuse an amendment which has the effect of withdrawing an admission. The ultimate question must always be what is in the interests of justice in the circumstances of the case. 2) But it is a serious matter to make an admission in a pleading and ordinarily a party should not be permitted to withdraw an admission in a pleading without good cause. 3) In determining whether or not to permit an amendment of that kind consideration is generally include a) the circumstances in which the admission was made; the reason it is sought to be withdrawn; c) the significance of the admission; d) the time for which it has stood; and e) any prejudice that is likely to be suffered by the other side that cannot appropriately be compensated for by an order for costs. 20 Further, at [21], the court said: As with any other application to amend a pleading where an application is made late in the day and requires that dates set down for trial be vacated, the applicant bears a heavy burden to show why leave should be granted. In such a case the public interest in the timely and efficient resolution of legal proceedings and the effective use of court resources is also a relevant consideration,: Aon Risk Services. 21 In the District Court of Western Australia, the District Court Rules 2005 r 48B(3) provide that unless justice otherwise requires, the court will not grant an interlocutory application filed after a case is listed for trial if, to do so, would necessitate adjourning a trial. 22 In this case the proposed amendment would necessitate a complete change to the nature in the manner in which the case is likely to be conducted. The limitation of actions would require, if the plaintiff wished to join Jaycynnat, the third party entity which has now been disclosed as the subcontractor to the action, he would have to make an application for leave to extend time, out of time. 23 Whilst such an application can now be made, there is no guarantee that leave would be necessarily granted. Even if it were to be granted, there would be further costs and time and personal stress involved to the plaintiff. It is a fundamental change that is proposed to be made with wide-reaching consequences and the changes proposed are very late indeed. The plaintiff argues that significant prejudice will ensue, not all of which is capable of being remedied by an order for costs, if the amendment is permitted. 24 What is astounding in this case is that Mr Creighton did not investigate and make his inquiries at the proper time. In my view, the (Page 7)
manner in which the circumstances are set out in his affidavit do not provide in-depth reasoning as to how this situation has come about. One might infer from the timing that Mr Creighton was caused to turn his mind to the matter in recent times because of the imminent trial dates. But other than that, my finding is that Mr Creighton was the person who, at all material times, was best placed to know or find out what the true situation was. 25 The plaintiff in his affidavit in opposition to the amendments deposes to the fact he knew nothing about the situation and neither should he be expected to know. The second defendant in his voluminous affidavit opposing the application annexes many documents which show that, at the very least, the first defendant arguably represented that Mr Earl was an employee at all material times and points to the contractual arrangements between the first and second defendants which would indicate that the first defendant had no consent from the second defendant to employ Mr Earl as a subcontractor. 26 In my view, the interests of justice in this case point very heavily to the necessity of this action being tried when it has been listed to be tried. It is obvious that there is more to the issue as to whether a person is an independent contractor or an employee than one document or the method of payment. That is not an issue that I have to decide. 27 It does appear very much that in this particular circumstance not only is the change of position inadequately explained in my view, but that prior to March of 2011 the matter that should have been checked. Any doubt arising about it should have been resolved much sooner, and in this respect Mr Creighton was the person best placed, as contracts manager, to have knowledge either of his own direct knowledge or by virtue of his responsibilities as contracts manager. It is clearly a matter that should have been significant from the outset. 28 In this sense, it can only be that the first defendant has to be regarded as master of its own misfortune. The prejudice to the other parties is very significant in my view and the first defendant should not be able to abort a trial at this time given the effect on others involved in the action. Moreover, it simply is not sufficient to consider the interests of the parties to the litigation but the wider interests of litigants in general, in terms of the effect upon the court lists, the effect upon the court time and the public perception of the conduct of litigation in this court. Whilst those are not necessarily the predominant characteristics or predominant reasons it is certainly a factor significant in these circumstances. (Page 8)
29 I am not persuaded that the interests of justice can be adequately be met if this trial is adjourned, re-pleaded as proposed with all that that will entail, particularly for the plaintiff in relation to the limitation difficulties, further discovery and the personal costs to the parties, the witnesses beyond those that can adequately be met by monetary recompense. 30 Accordingly, the application is refused.
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