Moore v Champions Corporation Pty Ltd

[2009] WASCA 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MOORE -v- CHAMPIONS CORPORATION PTY LTD [2009] WASCA 57

CORAM:   PULLIN JA

HEARD:   22 FEBRUARY 2009

DELIVERED          :   22 FEBRUARY 2009

FILE NO/S:   CACV 103 of 2008

BETWEEN:   KERRIN AHMAN MOORE

Appellant

AND

CHAMPIONS CORPORATION PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :CIV 1369 of 2006

Catchwords:

Appeal - Application for extension of time to appeal - Interlocutory dispute concerning pleadings - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr B L Nugawela

Respondent:     Mr J R Ludlow

Solicitors:

Appellant:     Friedman Lurie Singh & D'Angelo

Respondent:     Dibbs Abbott Stillman

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

Nil

1. PULLIN JA:  The appellant seeks an extension of time in which to appeal and leave to appeal against the order of Judge Scott disallowing proposed amendments to a statement of claim.  His Honour gave leave to file a further minute of proposed amended statement of claim. 

2. The appellant is the plaintiff in an action for personal injuries suffered by the appellant in an accident on a road where Boral had a contract with the Main Roads to carry out work on the road.  The appellant has sued the Main Roads and Boral for damages for negligence. 

3. Following discovery, further information was gained by the appellant and a writ was then issued against the respondent (Champions) just before the limitation period expired.  The actions were consolidated and a consolidated statement of claim was ordered to be filed.  There were various attacks on the statement of claim both in and out of court and in due course leave was given to amend.  Judge Keen ordered the appellant to file an appropriate minute so that all parties could participate in debate about the form of the minute. 

4. The appellant contends that there was a contract between Boral and Champions, whereby Champions was to undertake the works.  This is asserted in that broad form in the statement of claim as it stands at the moment.  The appellant then sought to particularise this further and to add some other particulars of negligence and to make an assertion of law that Champions was the occupier.  The assertion of law, of course, is not something that the appellant has to make.  Whether it is an occupier or not will depend upon the facts in the case. 

5. The respondent then opposed the proposed amendments which would have given further particularisation, in particular, to the alleged contract between Boral and Champions.  His Honour Judge Scott refused the amendments in that form, but made the order giving the plaintiff leave to replead. 

6. The appellant is concerned not so much about the orders that have been made, but about orders that might be made; about the concern that there might be an attack on par 7 in its present form.  It would be a little surprising if the respondent was permitted to deal with the matter in a piecemeal fashion, to attack the particulars and not the pleading as it stood, and then, after having had the particulars refused or leave to bring in the particulars refused, it then deciding to come back and make an attack on the broad form of par 7.  However, if that occurs the District Court will have to consider whether such a course should be permitted. 

7. The appellant says that he is concerned that if par 7 is allowed to stand, there might be an application to strike out that paragraph.  Once again, these are all concerns about matters that might or might not come to pass.  What is clear is that the process towards the drafting and approval of the consolidated statement of claim has not yet reached its conclusion.

8. In those circumstances, it is not appropriate for the Court of Appeal to entertain the appeal to deal with the appellant's anticipation about what might or might not happen when the matter comes back before the District Court.  The process of pleading or repleading in the District Court should reach a conclusion first.  As a result, I would refuse leave to appeal.  There will be no injustice if leave is refused because the appellant has liberty to prepare fresh minute of proposed statement of claim.  This would not in fact preclude it from seeking to formulate its particulars in different language and it is not appropriate, in my view, for this court to become embroiled in the interlocutory process until it has fully run its course.  For those reasons, I would refuse leave to appeal and because there is no merit in the application for leave, the application for an extension of time should be dismissed.