May v Thomas
[2008] WASCA 215
•29 OCTOBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAY -v- THOMAS [2008] WASCA 215
CORAM: BUSS JA
NEWNES AJA
HEARD: 2 OCTOBER 2008
DELIVERED : 29 OCTOBER 2008
FILE NO/S: CACV 56 of 2008
BETWEEN: MARK CHRISTOPHER MAY
Appellant
AND
ANTHONY TREVOR THOMAS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
Citation :MAY -v- THOMAS [2008] WADC 74
File No :CIV 2394 of 2004
Catchwords:
Practice and procedure - Claim by appellant for personal injury - Defence pleaded bare denials - Delay by respondent in applying to amend defence - Leave granted to amend defence to plead third parties responsible for appellant's injuries - Limitation period for claim by appellant against third parties expired before amendment to defence sought - Whether delay by respondent reasonable - Whether appellant acted unreasonably in not bringing action against third parties as defendants - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant: Mr T H Offer
Respondent: Mr R R Cywicki
Solicitors:
Appellant: Vertannes Georgiou
Respondent: Lawton Lawyers
Case(s) referred to in judgment(s):
Burk v Commonwealth of Australia (No 3) [2004] VSC 210
Clough v Frog (1974) 4 ALR 615
Cropper v Smith (1884) 26 Ch D 700
Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025
May v Thomas [2008] WADC 74
McKenzie v Commonwealth of Australia [2001] VSC 361
Shannon v Lee Chun (1912) 15 CLR 257
Steward v North Metropolitan Tramways Co (1886) 16 QBD 556
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Wilson v Grimwade [1995] 2 VR 628
BUSS JA: I agree with Newnes AJA.
NEWNES AJA: This is an application for leave to appeal against a decision of Stevenson DCJ in the District Court granting the respondent (defendant) leave to amend his defence in an action for personal injury: May v Thomas [2008] WADC 74. On 28 July 2008, Pullin JA ordered that the application for leave to appeal be heard together with the appeal. The appellant (plaintiff) also seeks an extension of time within which to apply for leave to appeal, the application having been filed some three weeks out of time.
The facts
In October 2004, the appellant commenced proceedings in the District Court against the respondent for damages for personal injury. On 14 April 2005, the appellant filed his statement of claim. In the statement of claim, the appellant alleges that, on or about 3 March 2001, at about 12.20 am, the respondent assaulted the appellant by punching him in the mouth causing the appellant to fall backwards and strike his head on the concrete driveway on which they were then standing. The appellant says that as a result of the assault he suffered serious head injuries which have left him with substantial permanent disabilities and totally and permanently incapacitated for work.
The respondent filed his defence on 2 May 2005. In his defence, the respondent admitted that he was present at the time and place alleged, but otherwise simply denied each of the allegations contained in the statement of claim.
On 8 August 2006, the appellant applied for leave to administer interrogatories to the respondent. In support of the application, on 16 August 2006, an affidavit was sworn by the appellant's solicitor. Annexed to the affidavit (relevantly) was a letter (the DPP's letter) to the appellant's mother (Ms May) from the Office of the Director of Public Prosecutions for Western Australia. The DPP's letter was dated 9 July 2003. It was apparently written in response to enquiries made by Ms May as to whether the respondent would be charged with any offence in connection with the injuries to the appellant.
In the DPP's letter, Mr Dempster, a consultant Crown prosecutor, informed Ms May that he did not recommend that the police proceed with any charge against the respondent. Mr Dempster said he considered that no prima facie case could be established against the respondent. He explained that that was because he considered the prosecution would not
be able to establish beyond a reasonable doubt, first, that the respondent was not acting in self‑defence; secondly, that the appellant's injuries were not caused by accident; and thirdly, that the punch or push by the respondent caused the grievous bodily harm suffered by the appellant.
The reasons that Mr Dempster expressed for his conclusion on the third point - that is, whether the respondent caused the appellant's injuries - are significant for the purposes of the appeal and it is appropriate to set them out:
There is evidence from more than one source that after the initial assault [the appellant] attempted to get up several times but kept falling back on to the driveway, hitting his head again twice. More significantly, there is evidence again from a number of sources that, as your son was being carried towards a car he was unfortunately dropped from a height which may have been as great as a metre or as little as 12 inches, when the back of his head hit the concrete with a loud thud and loss of consciousness. Expert medical opinion suggests that there was an 80% likelihood that the grievous bodily harm arose from the initial punch together with the falling backward rather than at a later point when either [the appellant] fell backwards on his own or was dropped. An 80% likelihood is simply not proof beyond reasonable doubt. The prosecution must exclude the reasonable possibility that the grievous bodily harm arose other than by way of the initial assault.
… One tragic feature is that those around did not realise the seriousness of [the appellant's] injuries in that he was left in a car for seven hours.
The appellant's application for leave to administer interrogatories came on for hearing before the principal registrar of the District Court on 24 November 2006. Counsel for the appellant made it clear on the hearing of the application that a substantial purpose - if not the real purpose - of the application was to ascertain from the respondent whether there was anything more to his defence. Counsel for the appellant referred to the DPP's letter, and argued that the case 'would be pregnant with difficulty' if the respondent were permitted to maintain his pleading through to trial. The appellant's counsel pointed out that the defence did not allege that the respondent acted in self‑defence, but simply denied that there was ever any kind of blow administered by the respondent. The material part of the respondent's defence consisted simply of bare denials.
The appellant's counsel said that one of the purposes of the application to administer interrogatories was to avoid the appellant being taken by surprise at the trial by a late application by the respondent to amend his defence to make positive assertions of fact. He said that he had spoken to counsel for the respondent on a couple of occasions about the possibility of the respondent giving an undertaking that he would not amend his defence in that way, but the respondent's counsel had no instructions to give such an undertaking and declined to give it.
In the course of argument, counsel for the respondent said that the respondent's lawyers had 'looked at [the DPP's letter] quite extensively' and referred to the possible alternative explanations for the appellant's injuries mentioned in it, leading the principal registrar to respond:
But that sort of exacerbates the problem because the plaintiff now doesn't know whether the defendant's case - or part of the uncertainty is, is the defendant's case that the injuries were actually caused by the fall from the 12 inch height. Is it the defendant's case that the injuries were caused by being left in a car for a number of hours, or is it the defendant's case that the injuries were caused by a combination of all those things?
The principal registrar declined the application for leave to administer interrogatories but considered that the interests of justice clearly required that the appellant have a greater understanding of the respondent's case. He concluded that there should be an order to 'flush out the actual nature of the defence that is going to be made out' by the respondent. The principal registrar went on to say:
In this case the existence of the letter from the DPP probably takes it out of the ordinary course in terms of whether it's permissible for a case to proceed to trial on what is effectively a bare denial. It is clear that there are a number of different versions, or a number of different ways the defence may be pleaded. So in my view, in terms of the efficient and just determination of the case, an order requiring the [respondent] to make any application for leave to amend his defence within a certain period of time is one that ought to be made in this case.
The principal registrar dismissed the application to administer interrogatories and made a number of orders for the further conduct of the action including orders that:
…
6.by 30 January 2007, the [respondent] do file and serve any application for leave to amend his defence;
7.if the [respondent] does not file and serve an application pursuant to paragraph 6, then the [respondent] shall not have leave to apply to amend his defence save with the leave of a judge of this court supported by an affidavit by the [respondent] deposing as to why the application was not brought in accordance with the terms of this order.
No application was made for leave to amend the defence pursuant to par 6 of those orders.
On 17 April 2007, the appellant caused a subpoena to be issued to the Commissioner of Police, returnable on 4 May 2007. In answer to that subpoena, a bundle of documents was delivered to the District Court on or about 4 May 2007. It appears that the respondent's solicitors inspected and obtained copies of the documents, including the statements witnesses had made to police, in May 2007.
A pre‑trial conference took place on 23 August 2007. In an affidavit sworn on 28 April 2008 in support of the application for leave to amend the defence, the respondent's solicitor said at that conference the respondent 'raised the issue of amending his defence' and an order was made that 'any party wishing to make any further interlocutory application file and serve the application by 17 September 2007'. What was actually said in relation to the defence was not explained in the affidavit. I should, however, say that on the hearing of this appeal the respondent did not dispute that at the pre‑trial conference no notice was given that the respondent intended to make amendments to his defence of the nature that he subsequently sought.
On 17 September 2007, the respondent applied for leave to amend his defence. As a result of the order made at the pre‑trial conference, the respondent required the leave of a judge to amend the defence.
The relevant amendments were to add the following pleas to the defence:
5.In further answer to the [appellant's] Statement of Claim, if the [appellant] suffered severe injuries as alleged in paragraph 3 of the Statement of Claim, which is denied, such injuries were solely caused through the actions of the [appellant] as hereinafter pleaded;
5.1Prior to the [appellant's] encounter with the [respondent] the [appellant] had consumed alcohol and was acting in an aggressive manner.
5.2The [appellant] thereupon rushed at the [respondent] with his fists raised and collided with the [respondent].
5.3The [respondent] in order to protect himself and using no more force than was reasonably necessary fended off the [appellant].
5.4Following the ensuing collision with the [respondent] the [appellant] fell to the ground striking his head on the driveway.
6.Further and in the alternative, if the [appellant] suffered severe injuries as alleged in paragraph 3 of the Statement of Claim, which is denied, such injuries were solely caused through the actions of the [appellant] as hereinafter pleaded;
6.1Following the [appellant's] encounter with the [respondent], the [appellant] in endeavouring to get to his feet fell backwards on two occasions, on each occasion striking his head on the driveway.
7.Further and in the alternative, if the [appellant] suffered severe injuries as alleged in paragraph 3, of the Statement of Claim, which is denied, such injuries were solely caused through the actions of third parties who whilst carrying the [appellant] to a car dropped the [appellant] causing his head to strike the driveway.
8.Further and in the alternative, if the [appellant] suffered severe injuries as alleged in paragraph 3, of the Statement of Claim, which is denied, such injuries were solely caused through the failure of third parties who took charge of the [appellant], to take the [appellant] for immediate medical treatment.
9.Further and in the alternative, if the [appellant] suffered severe injuries as alleged in paragraph 3 of the Statement of Claim, which is denied, such injuries were materially contributed by each of the incidents as pleaded in paragraphs 6, 7 and 8 herein.
In his affidavit of 28 April 2008 in support of the application, the respondent's solicitor said that the respondent did not file and serve an amended defence by 15 February 2007 'as there was no necessity, nor any new evidence, at that time to warrant such an amendment'. (The reference to 15 February 2007 - rather than 30 January 2007 - was the result of an erroneous belief on the part of the respondent's solicitor that an extension of time to 15 February 2007 granted in respect of certain other orders made on 24 November 2006 also applied to the application to amend the defence.) He went on to say that, on or about February 2007, the appellant's and the respondent's solicitors 'were actively seeking copies of the police witness statements' in order, at least so far as the respondent was concerned, to 'clarify the matters referred to in the DPP letter'. In that connection, there is annexed to the affidavit a letter of 30 January 2007 from the respondent's solicitors to the police service requesting a copy of the respondent's record of interview.
The respondent's solicitor said in the affidavit that, in or about May 2007, he received a telephone call from the District Court advising him that records were available for inspection pursuant to the appellant's subpoena. He says that shortly afterwards he attended at the District Court to obtain copies of the subpoenaed documents, including statements made to the police by eight witnesses.
According to the respondent's solicitor, considering that material and obtaining instructions on it was so time‑consuming that at the pre‑trial conference held on 23 August 2007, some three months later, the respondent was still not in a position to decide whether or not to amend his defence. As I have said, the application to amend the defence was made on 17 September 2007, more than three weeks after the pre‑trial conference.
The respondent's application for leave to amend his defence came on for hearing before Stevenson DCJ on 2 May 2008. The application was opposed by the appellant on two grounds. The appellant contended there had been excessive delay for which there was no adequate explanation by the respondent. In addition, the appellant said that if the amendments were allowed he would be prejudiced because he would no longer have the opportunity to commence proceedings against the persons whom the respondent alleges caused the injuries, the limitation period for such an action having expired in March 2007.
The findings of the primary judge
The learned primary judge considered that it was reasonable and prudent for the respondent to wait to see the witness statements which were the subject of the appellant's subpoena before formulating the terms of the proposed amended defence; that those witness statements would indicate the extent of the evidence available and possibly the value which could be attributed to the statements.
In relation to the appellant's contention that he had lost the opportunity to join other parties as defendants to the action, his Honour said:
Again, I would expect the [appellant's] solicitors, acting prudently, to have fully investigated all the circumstances relevant to the unfortunate injury suffered by the [appellant] 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 [appellant], was properly prepared to meet any defensive claims by the [respondent] 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 [appellant] 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 [appellant] deliberately elected not to pursue other potential defendants. That, of course, is a matter for the [appellant].
I also note that the DPP letter, dated 9 July 2003, was in the possession of the [appellant's] mother before these proceedings were instituted. So, in my view, any lost opportunity is properly a matter for the [appellant] and his advisers [16] ‑ [18].
His Honour considered that, in the circumstances, the justice of the case required that the respondent be granted leave to amend his defence in terms of the minute of proposed defence and he so ordered.
The grounds of appeal
The appellant relied on the following grounds of appeal:
1.The learned Judge at first instance erred in finding that the Respondent had adequately explained:
(a)His delay in bringing an application for leave to amend his defence generally; and
(b)Why such application was not made in accordance with an order made by Principal Registrar Gething on 24 November 2006 that such application be brought by 30 January 2007.
2.The learned Judge at first instance erred in directing himself that an application to amend ought not be refused in the absence of exceptional circumstances.
3.In weighing the competing prejudices that might be sustained by the parties, the learned Judge at first instance erred in:
(a)Failing to address the [respondent's] opportunity to investigate the circumstances of the Applicant's injury and to plead all positive defences prior to the expiration of the limitation period on 3 March 2007;
(b)Assuming that the Applicant had 'deliberately elected not to pursue other potential defendants' in the absence of any evidence to support such assumption;
(c)Failing to consider the opportunity lost by the Applicant to reconsider his decision as to which party or parties ought to be joined as defendants to the action prior to the expiration of the limitation period on 3 March 2007; and
(d)Failing to take into account that the Respondent remained able to join third parties to the action whereas after 3 March 2007 the [appellant] was unable to join such parties as defendants; and
(e)Taking into account irrelevant considerations namely matters within the possession or knowledge of the Applicant's mother at the date of the issue of the writ.
The appellant's submissions
It was submitted on behalf of the appellant that the learned primary judge erred in concluding that it was reasonable for the respondent not to plead the defences he now seeks to advance at an earlier time and, in particular, before the expiry of the limitation period. The issue of self‑defence was a matter on which the respondent was always in a position to provide sufficient instructions for such a defence to be pleaded.
In relation to the plea that the appellant's injuries had been caused by the negligence of third parties, counsel for the appellant said that the respondent had been on notice of the matters contained in the DPP's letter since at least 16 August 2006 and had therefore been in a position since then to investigate and plead any relevant matter. Despite the comments of the principal registrar and his order that the respondent file and serve any application for leave to amend the defence by 30 January 2007, and the imminent expiry of the limitation period, no application to amend the defence was made.
It was submitted that the learned primary judge erred in concluding that any lost opportunity to proceed against other potential defendants was the responsibility of the appellant and his advisers. In so concluding, the learned primary judge did not have proper regard to the failure of the respondent to raise the alleged conduct of other parties in his defence and to put the appellant on notice that the conduct of those parties would be in issue in the action. There was no evidence to support the assumption of the learned primary judge that the appellant had deliberately elected not to pursue other potential defendants. The learned primary judge also failed to have regard to the endeavours the appellant had earlier made to cause the respondent to plead the defences on which he sought to rely.
It was further submitted in relation to prejudice that the learned primary judge erred in failing to take into account the ability of the respondent to join as third parties the persons that the respondent alleged caused or contributed to the appellant's injuries, in circumstances where it was no longer open to the appellant to commence proceedings against those persons because the limitation period had expired.
On the appellant's application for leave to appeal, it was submitted that an adequate explanation had been made for the short delay in seeking leave to appeal, namely that the appellant had been waiting for the written reasons for decision of the learned primary judge, and that a substantial injustice would be done if the decision of the learned primary judge was not reversed.
The respondent's submissions
It was submitted on behalf of the respondent that the learned primary judge had properly examined the relevant issues and was entitled to conclude that it was reasonable for the respondent to wait until the witness statements obtained by the police were available before considering amendments to his defence.
The learned primary judge had given proper consideration to whether the appellant would suffer prejudice as a consequence of the application to amend being granted. His Honour properly concluded that the appellant had had the opportunity to consider which parties he would sue and had deliberately elected not to pursue the other potential defendants. Accordingly, his Honour was entitled to conclude that the appellant would not suffer irremediable prejudice if the application for leave to amend the defence were allowed.
Disposition of the appeal
The relevant principles to be applied on an application to amend a pleading are well‑known. In general, a party should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause an injustice to the other party which could not be adequately remedied, for instance by an order for costs: Cropper v Smith (1884) 26 Ch D 700, 710; Shannon v Lee Chun (1912) 15 CLR 257, 260 ‑ 261; Clough v Frog (1974) 4 ALR 615, 618; The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154.
The party seeking the amendment bears the burden of persuading the court that the amendment will not cause irremediable prejudice to the other party: Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; McKenzie v Commonwealth of Australia [2001] VSC 361 [22] ‑ [23]; Burk v Commonwealth of Australia (No 3) [2004] VSC 210. However, the party opposing the amendment ordinarily bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party; the non‑existence of prejudice is difficult to prove, so that in practice in the latter circumstances an evidential burden is borne by the party resisting the amendment: Hancock Shipping Co Ltd (1030). But it is not sufficient for a party to rely on prejudice which results from an unreasonable act or omission on the part of that party: Steward v North Metropolitan Tramways Co (1886) 16 QBD 556, 559 ‑ 560; Wilson v Grimwade [1995] 2 VR 628, 632.
Against that background, I turn first to the amendments in pars 7 and 8 of the minute, which plead, in effect, that the appellant's injuries were caused by the actions of third parties. The appellant says he would suffer irremediable prejudice by reason of those amendments because the limitation period has expired in respect of any claim he may have against those third parties.
It is clear, as the appellant submitted, that a plaintiff will suffer relevant prejudice where, if the amendment to the defence had been brought earlier, the plaintiff might have brought a claim against a third party but, by the time the amendment is sought to be made, the limitation period for such a claim has expired. In the present case, the relevant limitation period expired on 2 March 2007, almost two years after the respondent had filed his defence and approximately six months before he made the application to amend it.
As I have mentioned, the learned primary judge found that the respondent was entitled to wait until the police statements became available in May 2007 before considering amending his defence. In my view, with respect, in so finding his Honour erred.
The respondent had been aware of the contents of the DPP's letter since August 2006 and the appellant had been pressing the respondent since at least November 2006 to ascertain whether he intended to raise any of those matters in his defence. It is apparent that the appellant was concerned that the respondent had not pleaded the case he would ultimately seek to put at trial; that late in the piece the respondent would seek to amend to plead a positive defence quite different to the bare denials which then constituted his defence.
As I have mentioned, at the hearing before the learned principal registrar specific reference was made by counsel for the appellant and by the learned principal registrar to the possible defences arising from the matters referred to in the DPP's letter. It was in order to 'flush out' any such defences that the learned principal registrar made the order that the respondent file and serve any application for leave to amend the defence by 30 January 2007.
In the circumstances, it was plainly incumbent upon the respondent to take any necessary steps to determine whether he would amend his defence, and to take those steps reasonably promptly. Instead, it appears, that nothing, or next to nothing, was done until, in May 2007, by virtue of a subpoena issued on behalf of the appellant, the respondent's solicitors were able to obtain copies of the witness statements made to the police. Even then, the application to amend the defence was not made for a further four months.
There is no explanation by the respondent as to why nothing was done in a timely way to determine whether the defence should be amended. Although the respondent (by his solicitor) says that prior to May 2007 the respondent's solicitors were 'actively seeking' copies of the witness statements made to the police, there is no indication of what, if anything, was actually done. There is simply annexed to the solicitor's affidavit a copy of the letter dated 30 January 2007 to the police seeking a copy of the respondent's statement. Plainly that was not going to advance the position in relation to possible amendments to the defence.
There is no evidence of anything that would have prevented the respondent from taking steps to enquire into the matters mentioned in the DPP's letter. There is also nothing to suggest that had the respondent taken such steps promptly after he became aware of the DPP's letter in August 2006, or even after the interrogatories application in November 2006, the necessary evidence could not have been obtained much sooner and the amendments made before March 2007.
I would add that there is also no evidence that at any time prior to the application in September 2007 the respondent gave notice to the appellant of an intention to amend the defence to allege that the appellant's injuries had been caused by third parties.
In the circumstances, in my view it was not sufficient for the respondent simply to wait until relevant material effectively fell into his lap - by virtue of a subpoena the appellant had taken the trouble to issue - before taking any steps to amend his defence. From, at the latest, November 2006 it was incumbent upon the respondent to make prompt and appropriate enquiries into whether his defence should be amended. On the evidence, he singularly failed to do so.
I also consider, with respect, that the learned primary judge erred in concluding, in effect, that it was unreasonable for the appellant not to have instituted proceedings earlier against the other parties, so that if the appellant suffered any prejudice by reason of the amendment he had brought it on himself.
The appellant's case was simple. He alleged that the respondent caused his injuries by assaulting him, thereby knocking him to the ground and causing him to strike his head on the concrete driveway. In his defence, the respondent simply denied that he had assaulted the appellant. While the respondent put the appellant to proof that his injuries were caused by the respondent, there was no assertion of a positive case that the appellant's injuries were caused by someone else. In the absence of a plea of that nature, the appellant was entitled to proceed on the basis that no such case was sought to be made by the respondent.
Even after the respondent became aware of the matters referred to in the DPP's letter, and despite being pressed to make any amendments that he wished to make to his defence, the respondent did not at any stage prior to September 2007 apply to amend his defence to plead that any other party had caused or contributed to the appellant's injuries. Nor is there any evidence that the respondent gave notice to the appellant that such an amendment was proposed. In the meantime, on 2 March 2007, the limitation period expired. Since that time the third parties have had an unassailable limitation defence to any claim the appellant might seek to bring.
I do not, with respect, consider that in the circumstances the appellant can be regarded as having acted unreasonably or imprudently in not joining the third parties as defendants before the limitation period expired. In my view, the responsibility for the position in which the appellant now finds himself lies with the respondent in failing to pursue the question of the amendment of his defence with reasonable diligence.
I would extend the time for the filing of the application for leave to appeal, an explanation for the delay having been provided and there being no evidence of any prejudice to the respondent if an extension of time is granted. I would grant leave to appeal and allow the appeal insofar as the primary judge granted leave to the respondent to amend the defence in terms of pars 7 and 8 of the minute.
I turn then to the amendments sought in pars 5 and 6 of the minute. In respect of those amendments, I am not satisfied that the appellant would suffer any prejudice that would not be remedied by the order for costs made by the learned primary judge. In relation to those pleas no question arises as to the joinder of other parties by the appellant. Although the amendments are very late, as there is no evidence of any irremediable prejudice to the appellant they should be allowed.
I would therefore grant leave to appeal but dismiss the appeal insofar as it relates to pars 5 and 6 of the minute.
In respect of the proposed amendments set out in pars 7 and 8 of the minute, it is appropriate that this court exercises afresh the discretion as to whether the respondent should be granted leave to amend his defence in those terms. I would refuse such leave.
The respondent was given every opportunity, and indeed encouragement, from November 2006 to amend his defence to raise any matters of the nature referred to in the DPP's letter. Despite the observations and orders of the learned principal registrar on the application to administer interrogatories, no amendments were sought to be made and, from the material before us, no real endeavours were made by the respondent to obtain any necessary evidence to consider whether amendments of that nature should be made. As I have said, that evidence was eventually obtained only through a subpoena which the appellant had caused to be issued.
When finally the amendments were sought in September 2007, more than 12 months had elapsed since the respondent had become aware of the matters in the DPP's letter and the limitation period within which the appellant was required to commence action against any other party had expired. The appellant would now be faced with an unanswerable limitation defence in respect of proceedings against any of the parties the respondent seeks to plead were responsible for the appellant's injuries.
It follows, in my view, that the appellant would suffer irremediable prejudice if the respondent were now permitted to plead the defences contained in pars 7 and 8 of the minute. In the circumstances, I consider it would not be in the interests of justice to grant to the respondent leave to amend his defence in those terms.
In light of the view I have reached, it is unnecessary to consider the further contention of the appellant that the learned trial judge failed to have regard to the ability of the respondent to join the other parties as third parties to the action. It is, therefore, unnecessary to resolve the issue between the parties as to whether in fact it is open to the respondent to do so.
Conclusion
I would:
(a)extend the time within which the appellant was required to apply for leave to appeal and grant leave to appeal;
(b)allow the appeal and set aside the decision of the learned primary judge insofar as his Honour granted leave to amend the defence in terms of pars 7 and 8 of the minute of amended defence;
(c)dismiss the appeal insofar as the learned primary judge granted leave to amend the defence in terms of pars 5 and 6 of the minute of amended defence;
(d)dismiss the respondent's application for leave to amend the defence in terms of pars 7 and 8 of the minute of amended defence.
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