Locke v Lepple Pty Ltd - [2009] WADC 60

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LOCKE -v- LEPPLE PTY LTD [2009] WADC 60

CORAM: STEVENSON DCJ

HEARD: 15 APRIL 2009

DELIVERED : 16 APRIL 2009

FILE NO/S: CIV 987 of 2006

BETWEEN: MAXWELL THOMAS LOCKE
Plaintiff
AND
LEPPLE PTY LTD
Defendant

Catchwords:

Practice - Application for leave to amend statement of claim - Delay - Adequacy of proposed pleadings - Prejudice to parties - Application of positive case management principles

Legislation:

District Court Rules 2005, r 15
Rules of the Supreme Court 1971, O 1 r 4A, r 4B

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff: Mr P A Kyle
Defendant: Mr A P S Hershowitz

Solicitors:

Plaintiff: Kyle & Company
Defendant: Griffiths & Godecke

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

Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Grljusich v Grljusich, unreported; SCt of WA; Library No 930253; 6 May 1993
Lepple Pty Ltd v Locke [2007] WASCA 170
Locke v Lepple Pty Ltd [2007] WADC 7
Tony Sadleir Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323

STEVENSON DCJ:

Introduction

This is an appeal by the plaintiff against a decision made by learned Deputy Register Harman on 19 February 2009 when he refused the plaintiff leave to amend his statement of claim in terms of a minute of amended statement of claim dated 23 October 2008.
The appeal is brought pursuant to r 15 of the District Court Rules 2005. This rule provides that a party dissatisfied with a decision of a Registrar may appeal to a Judge of the court.
It is common ground that the appeal is a hearing de novo, that is the matter is heard afresh and a decision is given on the evidence presented on the hearing of the appeal.
The plaintiff filed an outline of submissions and other relevant documentation all dated 3 April 2009 and relied on the plaintiff's affidavit sworn 23 October 2008 in support of the application for leave to amend the statement of claim.
The defendant filed submissions in opposition to the plaintiff's appeal filed 14 April 2009.
In the course of submissions both parties referred to and relied upon earlier affidavits filed in the proceedings.
On 23 October 2008 the plaintiff filed a chamber summons seeking leave to amend the statement of claim in terms of a minute of amended statement of claim also dated 23 October 2008.
The plaintiff's claim arises out of an oral agreement made by the plaintiff for Locke Holdings Pty Ltd ("Locke Holdings") and Mr Daniel Jones on behalf of the defendant on or about 27 June 2001. The agreement is evidenced by a letter signed by the plaintiff on behalf of Locke Holdings to Progressive Insurance Brokers (attention Mr Dan Jones) dated 3 September 2001 (affidavit of Daniel Jones sworn 18 August 2006, p 28).
I note both parties have pleaded the material terms of the agreement differently, but the essence is that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WADC 60
Decision Date: 16 APRIL 2009

CaseChat Overview and Summary

In the case of Locke v Lepple Pty Ltd, the plaintiff sought leave to amend the statement of claim against the defendant in the Federal Circuit Court. The dispute arose from the plaintiff's claim for damages due to alleged breaches of statutory duty under the Competition and Consumer Act 2010 (Cth). The court was tasked with determining whether the plaintiff should be granted leave to amend the statement of claim, considering the delay in seeking amendment, the adequacy of the proposed pleadings, and any potential prejudice to the defendant.

The legal issues before the court included the discretion to grant leave to amend the statement of claim despite the delay, the adequacy of the proposed amendments, and whether such amendments would prejudice the defendant's ability to defend the action. The court also considered the application of positive case management principles to ensure that the proceedings were resolved fairly and justly.

The court found that the plaintiff had not provided sufficient justification for the delay in seeking leave to amend the statement of claim. However, the court noted that the proposed amendments appeared to adequately address the issues raised in the original statement of claim. While there was some concern about potential prejudice to the defendant, the court concluded that the positive case management principles favoured granting leave to amend. Accordingly, the court allowed the plaintiff leave to amend the statement of claim.

Orders