McCarthy v Southcorp Wines Pty Ltd

[2000] WADC 147

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   McCARTHY -v- SOUTHCORP WINES PTY LTD & ANOR [2000] WADC 147

CORAM:   LA JACKSON DCJ

HEARD:   8 JUNE 2000

DELIVERED          :   Delivered Extemporaneously on 8 JUNE 2000 typed from tape and edited by Trial Judge.

FILE NO/S:   CIV 1419 of 1999

BETWEEN:   ANDREW JOHN McCARTHY

Plaintiff

AND

SOUTHCORP WINES PTY LTD
First Defendant

OZBOB PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Unreasonable opposition to an application to amend statement of claim

Legislation:

Rules of Supreme Court O 21 r 5

Result:

Application granted; first defendant to pay additional costs occasioned by opposition on an indemnity basis

Representation:

Counsel:

Plaintiff:     Mr A Jenshel

First Defendant             :     Ms E McLennan

Second Defendant         :     No Appearance

Solicitors:

Plaintiff:     Leonard Cohen & Co

First Defendant             :     Jackson McDonald

Second Defendant         :     James McManus & Associates

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

Nil

Case(s) also cited:

Hamersley Iron Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union of Workers [2000] WASC 66

Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

1. LA JACKSON DCJ: This is an application for leave to amend the statement of claim pursuant to O 21 r 5 of the Supreme Court Rules. 

2. The plaintiff's claim is for damage for personal injury.  The injury is alleged to have occurred at Lords Health Studio in Subiaco which is operated by the second defendant.  The plaintiff was employed by the first defendant.  As part of the plaintiff's employment he was required to attend a team building exercise on 22 August 1997.  He says that during the course of that exercise he suffered an injury to his knee. 

3. The writ was filed on 23 April 1999.  The statement of claim was filed on 20 July 1999 and alleged that during the course of exercises involving an outdoor bobsledding activity the plaintiff suffered his injury. 

4. The plaintiff commenced his action against the first defendant. The first defendant joined in the second defendant as a third party and subsequently the plaintiff joined the second defendant to the action and amended his statement of claim pursuant to O 21 r 1 accordingly.

5. In support of this application an affidavit by Errol Joseph John Vertannes dated 5 May 2000 was filed.  Mr Vertannes is the plaintiff's solicitor.  In the affidavit Mr Vertannes deposes to having obtained an expert's opinion in or about 18 January 2000.  As a result counsel's advice was sought on 10 February 2000 and advice received on 14 April 2000 recommending the statement of claim be amended to alternatively claim the plaintiff's injury was due to an indoor soccer game in which the plaintiff says he was required to engage on 22 August 1997. 

6. This application was filed on 28 April 2000.  It was listed before a Deputy Registrar in this Court on 9 May 2000.  The Deputy Registrar was advised that the application was opposed and it was adjourned to a special appointment on 8 June 2000. 

7. In opposition to the application the first defendant, in accordance with the rules, filed an outline of submissions.  That outline runs into some 15 paragraphs.  In line with the outline, and orally, counsel for the first defendant objected to the amendment complaining of the delay and complaining of a lack of explanation by the plaintiff.  There is a complaint that the plaintiff has failed to swear an affidavit explaining why the reference to the soccer game was not included in his original statement of claim.  The first defendant argues that as a matter of proper case management, this application, being late, should, as a matter of discretion, not be granted. 

8. I do not accept those arguments.  This application is not being made at a late stage in the proceedings.  The matter has not been set down for trial.  There is no suggestion by the first defendant that as a result of this proposed change there is any prejudice to the first defendant.  The first defendant's position is, and probably reasonably so, that if there was an injury caused to the plaintiff, it is the fault of the second defendant who was responsible for conducting the activities in the gymnasium.  The duty of care by an employer is non‑delegable and to that extent it might be liable, but at the end of the day, this is very likely to be an issue that needs to be addressed by the second defendant. 

9. In my view, opposition to this proposed amendment is and always was going to be fruitless.  The reasons for the amendment are, I think, sufficiently explained in the affidavit of the solicitor.  It might well be that the plaintiff could have sworn an affidavit.  It might well be that the expert's report could have been sent to the first defendant's solicitors.  The failure to do those things does not affect the propriety of this application.  In my view the application should be granted. 

10. I have some concern at the course this application has taken.  As I have noted, the matter came on before a Deputy Registrar on 9 May and was adjourned then to a special appointment.  It is matter of public notoriety, and I am sure everybody is well aware of the delays in the District Court.  The Court is overworked.  Delay is a matter of great concern.  Delay in the criminal area has attracted most publicity, but delay in all aspects of the work of the Court is a matter of concern. 

11. In my view the opposition to this application is unreasonable and unnecessary.  I would almost describe it as frivolous.  The purpose of pleadings is to allow the real issues in dispute to be litigated.  It would be unreasonable for the Court at this stage of proceedings to refuse an amendment for that purpose.  Legal practitioners are officers of the Court.  Subject to their duty to their clients, they have a responsibility not to engage in conduct that is clearly a waste of the Court's time. 

12. So far as the question of costs is concerned, the order that was sought in the application, quite properly, was that the plaintiff pay the costs of the application in any event and any costs thrown away arising from the further amendment.  In my view the proper order should be that the plaintiff is to pay the costs of the hearing on 9 May 2000 and any costs thrown away but for the reasons I have indicated the first defendant should pay the costs of today.  The first defendant was put on notice that, if successful, the plaintiff would seek costs occasioned by opposition to this application be paid on an indemnity basis.  In the circumstances I agreed that is appropriate. 

13. The orders of the Court are the application is granted, the plaintiff pay the costs of the hearing on 9 May 2000 and any costs thrown away.  The first defendant pay the costs of 8 June 2000 on an indemnity basis.