LODGE -v- DIPPIE & ANOR [2007] WADC 121

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 121
Case No:	CIV:1200/2004	Heard:	12 JUNE 2007
Coram:	REGISTRAR KINGSLEY	Delivered:	30/07/07
Location:	PERTH
No of pages:	5	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	JULIE LODGE JOHN MALCOLM DIPPIE BILL RUSSELL
Catchwords:	Practice Application to amend defence to withdraw an admission Turns on own facts
Legislation:	Nil
Case References:	Celestino v Celestino; unreported, Fed Ct of Aust FC, G7 of 1990, 16 August 1990 Hutton v Meston [2004] WASCA 178 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : LODGE -v- DIPPIE & ANOR [2007] WADC 121 CORAM : REGISTRAR KINGSLEY HEARD : 12 JUNE 2007 DELIVERED : 30 JULY 2007 FILE NO/S : CIV 1200 of 2004 BETWEEN : JULIE LODGE

Plaintiff

JOHN MALCOLM DIPPIE

Second Defendant

AND

BILL RUSSELL

First Defendant

Catchwords:

Practice - Application to amend defence to withdraw an admission - Turns on own facts

Legislation:

Nil

Result:

Application allowed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr R Lewis

Second Defendant : No appearance

First Defendant : Mr T Lethbridge

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo

Second Defendant : Not applicable

First Defendant : Kott Gunning

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

Celestino v Celestino; unreported, Fed Ct of Aust FC, G7 of 1990, 16 August 1990
Hutton v Meston [2004] WASCA 178
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

(Page 3)

1 REGISTRAR KINGSLEY: The first defendant seeks leave to amend his defence in terms of a minute of proposed amended defence dated 7 June 2007.

2 In her statement of claim, the plaintiff pleads that the first defendant was a chiropractor and was either practising as an independent contractor with a firm Chiropractic 2000, or alternatively was the servant of Chiropractic 2000, the second defendant.

3 The plaintiff pleads at par 4.6 that by reason of back symptoms the plaintiff contacted Chiropractic 2000 on 4 September 1999 and made an appointment to attend the first defendant at 10.15 am on that day. The plaintiff pleads that the first defendant performed manipulative therapy on her, but that her condition deteriorated. The plaintiff pleads at par 4.6 that she and the first defendant had a series of conversations. At par 4.8 the plaintiff pleads a further conversation with the first plaintiff on 5 September 199. On 6 September 1999 the plaintiff underwent an x-ray and CT scan, and was informed by her general practitioner that she had a herniated disc. Thereafter, the defendant underwent a series of procedures including a microdiscectomy and decompression of the L5 nerve at Joondalup Health Campus. The plaintiff claims the first defendant was negligent, and if the first defendant was a servant of the second defendant, the second defendant is vicariously liable for the negligence.

4 The first defendant filed a defence on…

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.

Continue reading Lodge v DIPPIE

Details

AGLC: Lodge v DIPPIE [2007] WADC 121
Case: [2007] WADC 121
Decision Date: 30 JULY 2007

CaseChat Overview and Summary

The applicant, Lodge, sought leave to amend a defence in an action for damages for breach of contract against the defendant, DIPPIE. The dispute arose from a property sale where Lodge alleged misrepresentation and DIPPIE denied the claims. The matter was before the Supreme Court of Queensland. The central legal issue was whether Lodge was entitled to amend the defence to withdraw an admission made in the original defence. This required the court to determine the appropriate exercise of discretion under the rules of court concerning amendments to pleadings.

The court considered the principles governing amendments to pleadings and the discretion of the court to allow such amendments. It examined the circumstances in which an amendment might be refused, such as where there has been an undue delay or where the amendment would cause prejudice to the other party. The court noted that the decision to allow an amendment turns on the specific facts of each case and the potential prejudice to the opposing party. Here, the court found that there was no significant prejudice to DIPPIE, and the amendment was sought to correct a genuine error in the pleadings. Accordingly, the court exercised its discretion in favour of allowing the amendment.

The court allowed the application, enabling Lodge to amend the defence to withdraw the admission. This decision underscores the importance of correcting errors in pleadings where there is minimal prejudice to the opposing party. The court's reasoning emphasises the need for flexibility in applying the rules of court to ensure just outcomes in individual cases.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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