Miller v BP (Fremantle) Limited

[2001] WADC 66

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MILLER -v- BP (FREMANTLE) LIMITED & ORS [2001] WADC 66

CORAM:   MARTINO DCJ

HEARD:   9 MARCH 2001

DELIVERED          :   Delivered Extemporaneously on 9 MARCH 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 486 of 1998

BETWEEN:   DESMOND LAWRENCE MILLER

Plaintiff

AND

BP (FREMANTLE) LIMITED
First Defendant

FREMANTLE PORT AUTHORITY
Second Defendant

FREMANTLE LAUNCH AND TUG COMPANY PTY LTD
First Third Party

FREMANTLE LAUNCH AND TUG COMPANY PTY LTD
Second Third Party

Catchwords:

Practice and procedure - Pleadings - Amendment after expiry of limitation period

Legislation:

Nil

Result:

Amendment allowed

Representation:

Counsel:

Plaintiff:     No appearance

First Defendant             :     Mr P K Walton

Second Defendant         :     Mr T Lampropoulos

First Third Party           :     No appearance

Second Third Party       :     No appearance

Solicitors:

Plaintiff:     Gibson & Gibson

First Defendant             :     Jackson McDonald

Second Defendant         :     Blake Dawson Waldron

First Third Party           :     Basile Hawkins

Second Third Party       :     Basile Hawkins

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

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431

Morgan v Banning (1999) 20 WAR 474

Case(s) also cited:

Nil

1. MARTINO DCJ:  This is an application by the second defendant to amend its statement of claim against the first defendant in contribution and indemnity proceedings in which the plaintiff has brought action for damages for personal injuries.

2. The statement of claim by the second defendant in its present form is a claim that the first defendant is liable as a fellow tortfeasor and also a claim under an agreement between the first defendant and the second defendant which it says the first defendant has breached in failing to notify the second defendant of any risk.  The second defendant claims an indemnity under that agreement.

3. The amendment that is sought to be made is to pursue another claim under that same agreement, that other claim being a claim that pursuant to cl 11 of the agreement the first defendant was required to effect and keep effective public risk insurance and the second defendant pleads that the first defendant breached that agreement by failing to effect such insurance – or I should say the second defendant seeks to plead that the first defendant failed to effect such insurance in breach of the agreement – and that if the second defendant is found liable to the plaintiff it will suffer loss and damage as a result of the first defendant's breach.

4. The accident in which the plaintiff was injured occurred on 1 March 1995.  It is now 9 March 2001, so more than six years have expired and the first defendant opposes the application on the grounds that the amendment is statute barred.  So the first question for me to determine is whether I have power to permit the amendment.  Order 21 r 5(2) provides:

   "Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned if it thinks just to do so."

5. Order 21 r 5(5) provides:

   "An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

6. Counsel for the second defendant has submitted that the amendment proposed does not raise any limitation point because time has not begun to run because under cl 23 of the agreement between the first defendant and the second defendant it was provided that if there was a breach, then legal and other costs, charges and expenses would be paid on demand and it is said that time has not yet begun to run.

7. I do not accept that submission and I conclude that because the amendment is to include a claim for damages and because the claim is a claim for damages for breach of contract time began to run at the date of the breach and the limitation period has expired.  The amendment should not be permitted unless it comes within O 21 r 5(5).

8. There has been extensive analysis of this rule by the Full Court in cases such as Morgan v Banning (1999) 20 WAR 474 and Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431. The rule avoids an overly technical and rigid investigation as to the degree of coincidence which must be found to exist between the facts necessary to establish the cause of action as originally advanced and those contained in the proposed amendments. The necessity to canvass a greater range of facts and circumstances if the amendment were permitted is a factor weighing against a conclusion that the new cause of action fairly arises out of substantially the same facts.

9. In this case, because the agreement between the plaintiff and the defendant was already being sued upon and the amendment seeks to pursue a claim under a different clause in the same agreement, I conclude that it does arise out of substantially the same facts and that I do have the jurisdiction to make the amendment required.

10. As to discretion, I am satisfied that at least some notice of this proposed amendment has been given to the first defendant for some time through statements of issues of fact and law that have been provided pursuant to the District Court Rules and that it is appropriate in the exercise of my discretion to permit the amendment.