May v Thomas

Case [2008] WASCA 215

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

  1. BUSS JA:  I agree with Newnes AJA.

  2. 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

  1. 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.

  2. The respondent filed his…

Continue reading May v Thomas

Sign in free to access the full text

Details
AGLC
May v Thomas [2008] WASCA 215
Case
[2008] WASCA 215
Decision Date

CaseChat Overview and Summary

In the case of May v Thomas, the appellant sought damages for personal injuries sustained in a motor vehicle accident. The respondent initially pleaded bare denials in their defence. However, the respondent later sought to amend their defence to include a plea that third parties were responsible for the appellant's injuries. This amendment was made after the limitation period for the appellant to bring a claim against the third parties had expired. The appellant argued that the respondent's delay in seeking to amend their defence was unreasonable and that the appellant should not be penalised for this delay. The court was required to determine whether the respondent's delay in seeking to amend their defence was reasonable and whether the appellant acted unreasonably in not bringing an action against the third parties as defendants.

The court considered the relevant principles of law regarding the amendment of pleadings and the impact of delay on the ability to bring a claim. The court noted that the respondent's delay in seeking to amend their defence was significant, but that this alone did not necessarily mean that the amendment should be refused. The court also considered the appellant's conduct in not bringing an action against the third parties as defendants and found that the appellant had acted reasonably in this regard. The court held that the respondent's delay was unreasonable and that the appellant should not be penalised for this delay. The court also held that the appellant's claim against the respondent should proceed, despite the limitation period for the claim against the third parties having expired.

The court allowed the appeal in part, setting aside the respondent's defence and ordering that the respondent's amended defence be struck out. The court also ordered that the appellant's claim against the respondent proceed, subject to any other defences that the respondent may have. The court found that the respondent's delay in seeking to amend their defence was unreasonable and that the appellant should not be penalised for this delay. The court also found that the appellant had acted reasonably in not bringing an action against the third parties as defendants and that the respondent should be held responsible for the appellant's injuries.

Orders

Orders of the court

Appeal allowed in part

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.