May v Thomas - [2008] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAY -v- THOMAS [2008] WADC 74

CORAM: STEVENSON DCJ

HEARD: 2 MAY 2008

DELIVERED : Delivered Extemporaneously on 2 MAY 2008 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2394 of 2004

BETWEEN: MARK CHRISTOPHER MAY
Plaintiff
AND
ANTHONY TREVOR THOMAS
Defendant

Catchwords:

Application for leave to amend defence - Delay - Adequacy of pleading - Turns on own facts

Legislation:

Nil

Result:

Application for leave to amend defence granted
Defendant to pay plaintiff's cost of the application and any costs thrown away

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Mr T H Offer

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: Lawton Gillon

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

Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221

STEVENSON DCJ: This is an application by the defendant for leave to amend his defence. In addition to the usual principles which apply to such an application, in this case the defendant is required to obtain the leave of the Court from a Judge as a result of a case management order made by Principal Registrar Gething.
The application for leave to amend is dated 17 September 2007. The minute of proposed amended defence filed at that time sought to raise two positive grounds of defence. The first is a plea by the defendant that, at the relevant time, any use of force attributed to him was as a result of reasonable defensive actions taken by him in the circumstances and, secondly, an allegation that the plaintiff's injuries were in fact caused by a novus actus interveniens (an intervening act).
This application has been listed on more than one occasion but in my view, for the reasons which I mentioned earlier today, it should be determined now. I note that the matter is listed for a listing hearing on 12 May 2008 and, as already indicated, I am not prepared to allow any further time to be spent on interlocutory matters. This is because the plaintiff's claim is based on events which allegedly occurred on 3 March 2001, over seven years ago, and I say that notwithstanding the fact that this action was not commenced by the plaintiff until October 2004 and, for whatever reason, a statement of claim was not filed until 14 May 2005.
The circumstances of the plaintiff's claim involve an allegation that he was assaulted by the defendant at an engagement party on 3 March 2001. The affidavit of Mr Savas sworn 28 April 2008 sets out the basis of the application. The relevant delay, which is relied upon by the defendant as the reason for this application, is a delay caused by the defendant which, it appears prevented both parties from obtaining, pursuant to a subpoena, copies of various witness statements obtained by the police for the Director of Public Prosecutions. The witness statements had been taken for the purpose of enabling the DPP to decide whether to commence criminal proceedings against anybody, including possibly the defendant.
This course of inquiry arose because of the discovery by the plaintiff of a letter dated 9 July 2003 written by the DPP to the plaintiff's mother. The letter was discovered in these proceedings by the plaintiff to the defendant in an affidavit of George Georgio sworn 16 August 2006. I understand that the affidavit was prepared in relation to an application concerning leave to administer interrogatories by the plaintiff against the defendant for the purpose of drawing out with precision the basis of any defence that the defendant would seek to rely upon at the trial of the action.
The letter refers to various matters which are now sought to be expressly relied upon and pleaded by the defendant. I am told that the letter from the DPP was not immediately in the possession of the plaintiff for the purpose of these proceedings until shortly before it was produced to the defendant in the way I have just mentioned. The defendant says the justice of the case requires the Court to exercise its discretion to allow leave to amend his defence. In particular, the defendant says that there is no contumelious conduct on the part of the defendant which would justify a refusal.
Various programming orders have been made by the Registrars during the case management phase of this action, and I will refer to those in detail in a moment. The defendant also says that the affidavit of Mr Savas, albeit generally expressed, is sufficient to set out the necessary background to justify the application. The defendant, insofar as the issue of delay is concerned, points to the plaintiff's own failure to meet certain case management milestones.
In the course of submissions, I indicated to counsel that this matter is one which has been dogged by delay for a very long period of time. This was in part because of the time taken by the plaintiff to actually institute the proceedings against the defendant, but also for various other reasons. The delay in this regard, pointed to by the defendant, is in my view not determinative of anything. However, it is an underlying factor when one comes to consider the plaintiff's submission that the delay in respect of this application is the final or extra, delay which does cause irreparable prejudice in the timeframe, due to the inability of witnesses to recall the fine detail of the events, as opposed to the generality recorded in their various witness statements obtained by the police.
The plaintiff submits that the application, if granted, would preclude the plaintiff from having an opportunity to pursue other defendants, by reason of limitation periods having expired. The defendant counters that this issue is one which should not take the plaintiff by surprise, in part because the plaintiff has had the benefit of the DPP letter for some years.
I now turn to the plaintiff's submissions, and I will deal with those in turn and in further detail because the plaintiff opposes the application. The plaintiff says that there has been no adequate explanation by the defendant for the delays since August 2006, for the making of the application. The Principal Registrar, by orders dated 24 November 2006, ordered that by 30 January 2007 the defendant file and serve an application for leave to amend his defence and, if he did not file such an application to obtain the leave of a Judge of the Court, supported by an affidavit, deposing as to why the application was not brought in accordance with the terms of that order.
In my view, the affidavit is sufficient in its terms to discern the relevant facts in respect of the delay which has occurred in the progress of this application. In my view, it is reasonable for the defendant to wait to see the witness statements of the witnesses, which were the subject of the subpoena and made available to both parties in May 2007, notwithstanding the defendant's knowledge of the content of the DPP letter since August 2006.
Obviously, the witness statements would indicate the extent of the evidence available and, perhaps, the value which could be attributed to the statements. It is not, in my opinion, unreasonable for the defendant to seek to see that material before formulating the terms of the proposed amended defence. In fact, it would be prudent for the defendant to have done so, in my opinion.
The plaintiff says, as I have already mentioned, that the delay of about 1½ years is inordinate, in the sense that it is a delay which perhaps causes irreparable prejudice by reason of the fact that it will be even more difficult for witnesses to recall the finer detail of the events the subject of the action. As mentioned by myself in the course of submissions (in this case at least), those witnesses have prepared signed statements. Notwithstanding that they were produced for a different purpose by the police, they might be, in some respects, more general than would have been the case if they had been proofed by solicitors for the purposes of civil proceedings.
However, I would have expected the solicitors for both parties, on the basis that they were acting in accordance with their duties and with prudence, to have proofed at least those witnesses "in their camp", if I can put it that way. For example, I would expect the plaintiff to have obtained a detailed witness statement from his de facto father-in-law in respect of the events of the evening and possibly other witnesses.
So, true as it is that there has been a further period of delay, the fact remains that both parties have effectively been on notice and aware of the issues sought to be raised by the defendant since late 2006, in particular since the discovery of the witness statements and since the application was made in September 2007.
The plaintiff also says that it has lost the opportunity to join, or at least potentially the opportunity to join, other parties as defendants to the claim by reason of the statute of limitations. Again, I would expect the plaintiff's solicitors, acting prudently, to have fully investigated all the circumstances relevant to the unfortunate injury suffered by the plaintiff on the occasion in 2001. This would ensure that all positive claims would be made against any potential defendant party. It would ensure also that he, the plaintiff, was properly prepared to meet any defensive claims by the defendant or any other potential defendant in respect of the circumstances of the incident.
It is not unreasonable, in my view, for the Court to assume that the plaintiff would have commenced such proceedings against any other potential party. Neither is it unreasonable for the Court to assume that, for whatever reason, whether based on advice or otherwise, the plaintiff deliberately elected not to pursue other potential defendants. That, of course, is a matter for the plaintiff.
I also note that the DPP letter, dated 9 July 2003, was in the possession of the plaintiff's mother before these proceedings were instituted. So, in my view, any lost opportunity is properly a matter for the plaintiff and his advisers.
However, it is of course necessary to balance this issue, notwithstanding what I have said, against the fact that to refuse the application to amend would shut the defendant out of possible defences, including proof of the possibility that the plaintiff's injuries were the result of actions and events unrelated to anything attributable to the defendant.
If the application is refused, in my opinion, there is a real risk of liability being visited upon the defendant in its entirety, or at least without the defendant having the opportunity to prove otherwise. The defendant is to some extent "hoisted on his own petard" by reason of the fact that the defence, as it presently stands, is a bare denial. This has been discussed during oral submissions, and could cause some difficulty if the defendant sought to lead evidence or give evidence asserting a positive defence at the trial.
In the course of submissions I was referred to the Full Court of the Supreme Court decision in Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221, delivered on 19 September 2003. That case, in my view is, with respect, an example of the exceptional circumstance where an application for leave to amend should have been refused. It arose in circumstances which are in part similar, because there was again a simple defence of non-admission or denial filed. However, there is a substantive distinction, in that it appears from the reasons that the party seeking to oppose the application to amend sat on the relevant document, which should have been discovered at an earlier stage in the proceedings. However, it was not, thereby shutting the applicant out of what was described by his Honour McKechnie JA as an opportunity:
"The plaintiff has lost a real chance to reconsider his position in the light of the contractual arrangement, and to consider the possible effect of the relevant legislation."
And in par 27:
"In these circumstances the plaintiff has been materially prejudiced by the defendant's failure to discover the contract in time. Nor, with respect, does the explanation proffered by Mr Astill satisfactorily explain the failure to discover the contract."
That is what his Honour referred to as the unusual feature in that case. In the view of the Supreme Court it tipped the balancing of the competing interests and prejudice scale, as one is required to consider in applications of this type against the circumstance expressed in par 24, being that the Court normally would allow an amendment to a pleading in effect to ensure that justice is done between the parties.
In my opinion, for those reasons, although regrettably there has been a delay, there is some basis by way of explanation from the defendant for the delay. It is, when one considers the usual principles and when one approaches the discretion that has to be exercised, necessary in my opinion that the application for leave to amend the defence be granted. The circumstances of this case and justice, in my view, require that outcome.
The second basis of opposition to the application is put on the ground that the pleading itself is deficient from a pleading viewpoint. Today is the first occasion that Mr Cywicki has appeared in respect of this matter as counsel for the defendant as far as I am aware. I understand from submissions that he is now engaged as counsel by the defendant for the trial. Based on submissions from both counsel to the extent that any amendment is required in the form of a minute of proposed amended defence, that can be the subject of conferral and discussion by counsel. If agreement is reached in this regard, I would propose that the orders made today would allow a further minute of proposed amended defence to be filed, but that it must be filed by close of business on 10 May 2008 so that the position is clear for the purpose of the listing hearing on 12 May 2008.
In the event that no agreement is reached by counsel about the need to further amend the current minute, then I am content with the pleading being allowed to stand as the defendant's defence. The order will provide that the minute of proposed amended defence dated 1 May 2007 shall be permitted to stand as the defendant's defence for the purpose of trial. By saying that, I am not obviously shutting out any future application by the defendant in respect of the pleadings (that would not be appropriate) and, in approaching the issue of the substance of the pleading in the way that I have just indicated, it is to take account of the fact that the latest version of the proposed amended defence was only proffered by facsimile yesterday, 1 May 2008. Therefore Mr Offer has not had an opportunity to inform his client of the existence of this material. However, I would observe that there appears to be little, if any, substantive difference from a pleading viewpoint between the two minutes of proposed defence.
There seems to be some merit in allowing the opportunity for the parties' counsel to confer in respect of any defects.
Therefore, the application for leave to amend the defence will be granted and the following orders made:
1.The time for service of this summons be abridged.
2.The defendant have leave to amend his defence in terms of the minute of proposed amended defence dated 1 May 2008 or any further amended minute of proposed defence following any conferral by counsel for both parties in respect of the terms of the pleading, and such further pleading be filed by 10 May 2008.
3.The minute of proposed amended defence dated 1 May 2008 or filed subsequently in accordance with order 2 above do stand as the amended defence and service thereof on the plaintiff be dispensed with.
4.The defence pays the plaintiff's costs of this application, including any reserved costs and any costs thrown away by reason of the amended defence.