Mees v Sherwood Nominees Pty Ltd T/As Wovodich Engineering - [2004] WADC 174

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MEES -v- SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING [2004] WADC 174

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 6 AUGUST 2004

DELIVERED : 20 AUGUST 2004

FILE NO/S: CIV 2182 of 2000

BETWEEN: ANDREW DAVID MEES
Plaintiff
AND
SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to amend a pleading - Withdrawal of admission

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr R E Keen
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Jackson McDonald

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's claim is for damages for personal injury. For the purposes of the application before me, the most significant feature of that claim is the allegation that as a consequence of physical injury, the plaintiff developed severe reflex sympathetic dystrophy in his knees and limbs, which along with chronic pain syndrome led to major psychological complications.
By the application the defendant seeks to amend its defence. The significant feature of the proposed pleading is that it would withdraw admissions relating to the conditions that I have described. There is a broad discretion to provide for amendment. The defendant carries the onus of persuading the Court that it is appropriate to provide that result. The application was opposed.
The claim put by the plaintiff had included references to the terminology utilised in the Workers' Compensation and Rehabilitation Act 1981 to express compensable injury. By its defence the defendant denied the allegations in the statement of claim. In response the plaintiff pleaded the determination by a review officer on 29 October 2001 under s 93D(2) of the Act as to the degree of disability represented by the conditions.
In support of the application the representative of the insurer of the defendant, Scott Bailey, gives evidence that as a result of discussions in November 2003 the defendant embarked on a process of amending the defence. In December 2003 the defendant's insurer having been provided with the defence that the defendant now proposes, instructed its solicitor to forward that proposal to the plaintiff in order to effect amendment in those terms.
Michael Seaman, a solicitor employed by the defendant's solicitors, gives evidence that during the relevant period, subject to supervision of a former partner of the firm, he had conduct of the defence. He gives evidence that after the date of the instruction the then proposed defence was further amended, settled by his supervisor and filed as the substituted defence, and that the substituted defence was filed without instructions.
On the evidence of those witnesses, between the date of the instruction and the date of filing the substituted defence there was no relevant communication between the defendant and its solicitor. The defendant did not provide instructions to its solicitor to file the substituted defence. According to the Court's file the plaintiff consented to the substituted defence being filed.
It appears to me that the force of the application is that the defendant be given leave to amend because the substituted defence was filed without instructions. That proposition raises the significance of the fact that the substituted defence was filed without instructions. The primary impact of any determination along those lines would be within the context of the retainer. For there to be any impact on the respondent would be the result of an exercise of discretion. I suspect that the defendant has not approached the task that it has constructed for itself with those considerations in mind.
Although it will always be easy to discern that there is scope to find a line of communication whereby information and advice is provided by the solicitor for the purpose of generating a response in the form of instructions, in any given case it may be no more than a useful tool for the purpose of analysis. In the not so distant past it would have been universally accepted that but for instruction at the most basic level, litigation was conducted more efficiently without taxing the client. It is easy to appreciate how that practice developed; as much as risk is a feature of litigation the cost associated with risk reduction may be significant. The most obvious cost saving for the client is within the scope of the line of communication whereby the solicitor would take informed instructions.
I know nothing about the features of the relationship between the insurer and its solicitor that would bear upon the course of communication that I have described. Commercial reality determines that the defendant's insurer will be regularly exposed to litigation as a defendant. The fact that the solicitor may have sought instructions in relation to the proposed pleading may be significant. In evaluating what transpired between the solicitor and client consideration might be given to the client's understanding of the issues presented by the plea of estoppel and its proposed response.
The reason that I canvass those considerations is that there is nothing in Mr Seaman's affidavit to suggest that in the context of the retainer there was anything untoward in him following the course that he describes. On the whole of the evidence there is nothing to suggest that his action in both further amending the document and not seeking further instructions was in any sense unusual in the context of the relationship with the client. Paragraph 13 of Mr Seaman's evidence does not suggest a case where the defendant's solicitors considered that they were bound to seek instructions from their client prior to acting. I do not know what prompted the amendment being revisited or whether for him to have done so without instructions should be considered to be significant. It may be that his approach to the task at hand was consistent with his appreciation of the level of the client’s understanding of the relevant considerations. On a broad view of his evidence and that of Mr Bailey there is nothing to suggest tight control being exercised by the client. He does not suggest that the conduct of Mr Seaman was in breach of the retainer.
Accordingly, although the solicitor and client refer to both instructions and a want of instructions, as much as I do not know what significance ought to be attached to the instructions provided, I am not in a position to judge the significance of the fact that the proposed defence was amended and filed without instructions. I am not in a position to determine whether there should be any impact on the plaintiff.
Ultimately where the onus is on the defendant and where it is appropriate to consider that the defendant would have no difficulty in providing evidence it is inappropriate for me to draw inferences to assist it in the application. If that is considered to be a little harsh, it is worth recording that by the application the defendant seeks to withdraw what were portrayed to me as being significant admissions.
Where to allow for amendment would be to introduce new issues to be tried the fundamental issue on the applicant is to satisfy the Court that there is good reason to provide for that result. Although in response to my enquiry along those lines the defendant made reference to expert opinion it had not been put forward to justify the proposed pleading.
By its substituted defence the defendant admits pars 1, 3, 4, 5 and 6 of the plaintiff's pleading. It alleges further as follows:
"3On 29 October 2001 Review Officer Boon determined in proceedings at the conciliation and review directorate that the plaintiff had, for the purposes of s 93D of the Workers' Compensation and Rehabilitation Act 1981 suffered, as a consequence of the injury sustained on 29 November 1994, disabilities being a psychiatric condition and reflex sympathetic dystrophy.
4The defendant says that on 29 November 1994 the plaintiff suffered soft tissue injury to the left thigh and knee, and subsequently developed disabilities being a psychiatric condition and reflex sympathetic dystrophy, and the defendant otherwise denies the plaintiff has suffered any other of the injuries and disabilities as alleged at par 7.1 of the statement of claim.
5The defendant says at no time subsequent to 21 August 1996 that the plaintiff's injuries and disabilities caused him to suffer any loss or damage.
6The defendant says that subsequent to 29 October 2001 the plaintiff has ceased to suffer from his disabilities or alternatively any incapacity from 29 October 2001 is not caused by the incident on 29 November 1994."
The terms of the proposed defence would admit pars 1, 3, 4, 5 and 6 of the statement of claim but only to the extent that the plaintiff suffered soft tissue injury to the left thigh and knee as a result of the defendant's negligence. It would deny the claim founded by the conditions. It would allege that there was no causal connection between any loss suffered by the plaintiff and his injuries during the period from 21 August 1996 until an unspecified date in 2001 and that the plaintiff ceased to suffer from any disability after 10 September 2001, the date of hearing before the review officer. Alternatively it would allege that the plaintiff's disability is no longer the result of the defendant's negligence.
The issue before the Court is for leave to plead as it seeks to do. As I observed at the hearing it finds itself in a context not dissimilar to that in which a defendant may find itself in seeking to set aside a judgment obtained other than by a determination on the merits of the case. In my opinion it is not enough for the applicant in either case to come before the Court and suggest that it be permitted to put its opponent to proof. The Court is not predisposed to require parties to establish their cases at trial. In the absence of justification, to promote the result sought in the application would require the respondent to prove its case simply because the Court had the power to do so rather than for good reason. There is no evidence to justify the proposed pleading.
I am not persuaded that it is appropriate to allow for the amendment.