Moore v Landsdale Pty Ltd as Trustee for the Mount Barker Trust
[2013] WASC 122
•10 APRIL 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | MOORE -v- LANDSDALE PTY LTD as Trustee for the MOUNT BARKER TRUST [No 3] [2013] WASC 122 |
| CORAM | : | KENNETH MARTIN J |
| HEARD | : | 25 MARCH 2013 AND ON THE PAPERS |
| DELIVERED | : | 10 APRIL 2013 |
| FILE NO/S | : | CIV 2588 of 2008 |
| BETWEEN | : NEIL WILLIAM MOORE |
WARREN ROBERT MOORE
Plaintiffs
AND
LANDSDALE PTY LTD as Trustee for the MOUNT
BARKER TRUST (ACN 009 382 969)First Defendant
IAN PAUL CROCKETT as Trustee for the IPC
TRUSTSecond Defendant
ROBERT GRAHAM QUENBY and ADRIENNE
QUENBY as Trustees for the QUENBY TRUST
Third Defendants
BRIAN STEPHEN BOWLEY as Trustee for the
BOWLEY FAMILY TRUSTFourth Defendant
ROBERT GRAHAM QUENBY
Fifth Defendant
[2013] WASC 122
QUENBY VITICULTURAL SERVICES PTY LTD
(ACN 009 283 943)Sixth Defendant
Catchwords:
Late pleading amendments by plaintiff to statement of claim made without leave - Application by defendants to disallow pursuant to O 20 r 3 to part amendments - Application to disallow and to strike out - Upheld as to pars 11, 16A and 17A
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application by defendants upheld
Parts of amended statement of claim disallowed and struck out
Category: B
Representation:
Counsel:
| Plaintiffs | : | Mr S G Leslie |
| First Defendant | : | Mr P D Quinlan SC |
| Second Defendant | : | Mr P D Quinlan SC |
| Third Defendants | : | Mr P D Quinlan SC |
| Fourth Defendant | : | Mr P D Quinlan SC |
| Fifth Defendant | : | Mr P D Quinlan SC |
| Sixth Defendant | : | Mr P D Quinlan SC |
Solicitors:
| Plaintiffs | : | Metaxas & Hager |
| First Defendant | : | Norton Rose Australia |
| Second Defendant | : | Norton Rose Australia |
[2013] WASC 122
| Third Defendants | : | Norton Rose Australia |
| Fourth Defendant | : | Norton Rose Australia |
| Fifth Defendant | : | Norton Rose Australia |
| Sixth Defendant | : | Norton Rose Australia |
Case(s) referred to in judgment(s):
Landsdale Pty Ltd v Moore [2009] WASCA 176
Moore v Landsdale Pty Ltd [2012] WASC 452
[2013] WASC 122
KENNETH MARTIN J
KENNETH MARTIN J: This is the defendants' urgent application seeking pursuant to O 21 r 3(3) of the Rules of the Supreme Court 1971 (WA) to have certain amendments in the plaintiffs' amended statement of claim filed 18 March 2013 disallowed and struck out (namely pars 11, 16A and 17A).
2 The defendants have not challenged the balance of the amendments
made by the plaintiffs without leave when the amended statement of claim was filed. The uncontroversial amendments are found in pars 23.4, 23.5, 24.4, 24.5, 28.4, 29.5(a) and (b).
The amendments which are challenged and objected to in pars 11, 16A and 17A, seek to expand the range of chemicals which the plaintiffs contend were sprayed upon the defendants' vineyard in 2002 and caused damage to the plaintiffs' adjoining ornamental blue marron ponds.
4 In order to assess the significance of the amendments in context, it is
necessary to set out the entirety of pars 11 to 18 of the amended statement of claim. These paragraphs provide (with the amendments underlined and in bold):
11. In the course of operating the vineyard various chemicals namely, Roval, Switch, Legend, Haulmark, Sumi-Alpha, Chlorpyrimax and Captain and wetting agents including Vitti-Wet (collectively the 'Chemicals') were sprayed by the sixth defendant for weed, fungus and/or pest control.
12. Legend was highly toxic to aquatic invertebrates such as marron with a high potential for bio-accumulation in animal systems.
13. Switch was highly toxic to aquatic organisms such as marron.
14. Roval was toxic to aquatic organisms such as marron.
15. Captain was highly toxic to fish and moderately toxic to aquatic organisms such as marron.
16. Hallmark was highly toxic to aquatic organisms such as marron.
16A. Chlorpyrimax was highly toxix [sic] to aquatic organisms such
as marron.17. Sumi-Alpha was highly toxic to aquatic organisms such as marron. 17A.
Wetting agents, including Vitti-Wet, can alter the toxicity of the actual ingredients when mixed with the chemicals, can alter the potential for spray drift and may be toxic to marron.
[2013] WASC 122
KENNETH MARTIN J
18. Each of the chemicals have the capacity to cause damage to the marron on Denmoore.
5 It can be seen that the collective term 'Chemicals' as used in par 11 is
expanded by the amendment, to embrace the further chemical Chlorpyrimax and wetting agents generally, but specifically identifying one wetting agent Vitti-Wet.
The defendants have invoked O 21 r 3(3) of the Rules of the Supreme Court. It and the following sub rules (4) and (5) provide as follows:
(3) A party served with a pleading amended under subrule (1) or subrule (2) may apply to the case manager for any amendment in the pleading to be struck out. (4) The party's application under subrule (3) must be made within 7 working days after the date on which the party is served with the amended pleading. (5) If, on an application made under subrule (3), the case manager is satisfied that, had an application for leave to make the amendment in question been made under rule 5 at the date when the amended pleading was filed under this rule, leave to make the amendment or part of the amendment would have been refused, the manager must order the amendment or that part of it to be struck out.
7 Reference in O 21 r 3(5) to 'rule 5' refers to the ensuing rule
concerning amendments of a writ or a pleading, with leave, see in
particular O 21 r 5(1) and (5).8 In the present case it is clear that the defendants' application to strike
out pars 11, 16A and 17A in the amended statement of claim was lodged within the seven working day limit specified by O 21 r 3(4). Accordingly, pursuant to O 21 r 3(5) if I am satisfied an application for leave to make these amendments had been made and that leave would have been refused at the date when the amended pleading was filed (namely 18 March 2013), then I must order that the challenged amendments be struck out. I proceed on that basis.
9 The amended statement of claim of 18 March 2013 was filed
pursuant to O 21 r 3(1), without leave. Leave was not required because 18 March 2013 was the last working day seven weeks before the date which is being set for the commencement of a six-week trial in this action, Monday 6 May 2013.
[2013] WASC 122
KENNETH MARTIN J
10 Some background to this action can be found in the reasons for
decision of the Court of Appeal in Landsdale Pty Ltd v Moore [2009] WASCA 176 delivered 22 September 2009 and my reasons for decision in Moore v Landsdale Pty Ltd [2012] WASC 452 delivered 28 November 2012.
11 The six-week trial set to commence in early May 2013 is of some
magnitude. It looms as the culmination of proceedings issued by writ in 2008 which have slowly wended their way to trial. The amended statement of claim of 18 March 2013 is the first amendment which has been made by the plaintiffs to their pleadings since it was filed in November 2008. It comes in circumstances where, in accord with pre-trial directions, the parties have exchanged between themselves a considerable number of expert reports in preparation for trial. The parties have also filed lengthy numbers of witness statements on each side culminating in 11 witness statements filed by the defendants during February 2013.
12 It is plain from the perspective of the defendants that their witness
statements and expert reports have been prepared by reference to the former state of the pleadings. The defendants say that they are now prejudiced by being required, in the intensive phase of preparation leading up to the commencement of a complex trial, to be confronted with what is clearly an augmentation in the ambit of the plaintiffs' case. The defendants say that this will require them to speak with, and obtain further statements from, a number of witnesses of fact and to obtain at least one further expert report from their toxicological expert Dr Munro Mortimer. Dr Mortimer has already provided two expert reports, including a second report he needed to file in light of leave which I granted the plaintiffs to rely upon a late expert report from a Dr Werner. In my reasons of Moore v Landsdale Pty Ltd [2012] WASC 452 [48], [49] and [50], I said:
Cautious as I am about evaluating, before trial, the relevance of the proposed late report from Dr Werner, it is clear, I think, that a significant component of Dr Werner's report addresses esfenvalerate, which is not a new issue.
Dr Werner's references to the chemical chlorpyrifos (which senior counsel complained 'creates more shadows than light in terms of the expert evidence issues' (ts 50)), overall seems to me to be of rather small moment, in the context of her report as a whole. Having been first directed by the plaintiffs' solicitors to assume chlorpyrifos was a chemical of interest, Dr Werner then notes in her report that Dr Mortimer 'does not discuss the toxicity of chlorpyrifos' (page 2) and that chlorpyrifos 'has been shown to increase the toxicity of esfenvalerate' (page 6).
[2013] WASC 122
KENNETH MARTIN J
On my assessment, Dr Werner's report for the most part responds to Dr Mortimer's opinions that the rapid binding of esfenvalerate to sediment and suspended matter in the marron ponds would reduce the toxicity of that chemical. But more importantly I think, Dr Werner does not assume chlorpyrifos was necessarily present. In the end an issue over chlorpyrifos, if it arises at all, looks to be something that can be conveniently resolved at the trial in short order.
13 At par 66 I then observed as regards Dr Werner's report 'I assess it as
within the scope of the present pleadings, despite its few passing
references to chlorpyrifos'.14 Those reasons were published on 28 November 2012. They and the
argument from senior counsel which preceded the reasons (heard on 18 October 2012) clearly put the plaintiffs on direct notice that references to chlorpyrifos in the plaintiffs' expert evidence were regarded by the defendants as being (as they clearly were then) outside the scope of its pleadings concerning designated 'chemicals'.
15 In light of all that, it is more than surprising that if the plaintiffs
wanted to expand the ambit of their case to include the chemical chlorpyrifos, that they did not at least communicate this intent to the defendants and the Court a lot earlier than 18 March 2013. That day the amended statement of claim simply arrived carrying, without any warning, the augmentations now seen in pars 11, 16A and 17A.
16 In the latter part of 2012 and early 2013, the parties were of course in
the final preparation phases for trial. In the defendants' case, completing a further expert report from Dr Mortimer in light of my reasons allowing Dr Werner's report. In the plaintiffs' case, finalising their responsive non-expert witness statements. The magnitude of the preparations is discernible from the fact that a bundle of documents prepared for trial encompasses, it is said, approximately 30 volumes of material. I make that observation to illustrate the intensive nature of preparation in the period leading up to what is no ordinary civil trial.
17 The defendants' position is that they simply should not be further
burdened at this late time by needing to meet an augmented case requiring them to obtain further witness statements and make investigations that, at minimum, will require a further (third) expert report from Dr Mortimer and which will take at least two to three weeks to prepare.
18 The essential argument then, bearing in mind provisions of O 21 of
the Rules of the Supreme Court, requires me to evaluate whether leave
[2013] WASC 122
KENNETH MARTIN J
would have been granted for these amendments, had it been sought by the
plaintiffs as at 18 March 2013.
Would leave to amend have been granted pursuant to O 21 r 3(5)
19 This matter came on for an urgent determination and was the subject
of my directions on Monday 25 March 2013. I required the parties to file written submissions and any further affidavit materials within a short time frame. Bearing in mind the urgency, the parties accepted that the matter was appropriate to be determined on the papers.
20 In terms of evidentiary material, I have received the affidavit of Jane
Maree Tiller (Ms Tiller) sworn 22 March 2013 and Ms Tiller's further affidavit of 27 March 2013 filed in support of the defendants' application to strike out the impugned paragraphs of the amended statement of claim. On behalf of the plaintiffs, I have received an affidavit of the plaintiffs' solicitor Shayne Graham Leslie (Mr Leslie) sworn 26 March 2013. The plaintiffs filed written submissions on 26 March 2013 and the defendants' written submissions were filed in accordance with my directions by noon on 27 March 2013.
I now proceed to evaluate the plaintiffs' arguments articulated in support of leave, had it been sought.
22 The first argument is that the impugned amendments only bring the
pleadings into line with the plaintiffs' evidence. The position is put this
way at par 6 of the plaintiffs' written submissions:The amendments objected to make the statement of claim reflect the current evidence served by the plaintiffs. The plaintiffs do not intend to adduce further evidence in relation to the matters the subject of these amendments.
23 The position was also put in Mr Leslie's letter to Ms Tiller of
20 March 2013 (attachment JMT3 to Ms Tiller's first affidavit) in the face
of objection to these paragraphs.1. The plaintiffs have not amended their statement of claim to seek to adduce new evidence. They have amended their statement of claim to reflect the current evidence.
24 I must reject this first argument, which in effect puts the cart before
the horse. It is first and always the pleadings which determine the parameters of relevance, not the witness statements or the expert evidence. Witness statement evidence and expert evidence is vulnerable to being ruled inadmissible and excised, if it is objected to in
[2013] WASC 122
KENNETH MARTIN J
circumstances where it falls outside the parameters of relevance as set by the pleadings. That is the undeniable legal position as regards chlorpyrifos and wetting agents, until the pleadings are legitimately expanded to embrace such allegations.
25 Second, the plaintiffs assert the defendants have known of the
plaintiffs' intent to rely upon this material at the trial, notwithstanding the state of the pleadings, well prior to 18 March 2013. The defendants reject that factual assertion and say that they have at all times made it plain to the plaintiffs' solicitors that they were preparing the defence case by reference to the state of the pleadings and would hold the plaintiffs to that.
26 Having reviewed the submissions and affidavit material, there can be
no legitimate suggestion of any waiver or acquiescence by the defendants in terms of agreeing to participate in a trial that was to be run outside the scope of the pleadings. That is crystal clear (or at least it should have been) to the plaintiffs' representatives arising out of what was said on the hearing of the plaintiffs' application to rely on proposed supplementary expert reports, on 18 October 2012.
27 It is also clear from a position taken by the defendants concerning
their stance objecting to what they contended were irrelevant documents in the trial bundle and to various passages in the plaintiffs' witness statements which have been exchanged.
28 Next, Mr Leslie's affidavit contends, in effect, that he had had it in
mind to prepare a draft amended statement of claim which was on his 'to do' list for all or most of 2012. He says that a draft amended statement of claim was created on 12 July 2012. The fact that the plaintiffs' amendments of 18 March 2013 came when they did was due, Mr Leslie says, to a number of circumstances, including attending to other matters associated with this action and leave that Mr Leslie took over December/January and February/March 2013. The intent of this material seems to be to try to persuade me that there was no deliberate plan to hold back (for tactical advantage) a change of position by amendments executed only on the last day before leave to amend was formally required under the Rules of the Supreme Court.
29 Even if that is so, it does not assist the plaintiffs' position at all. In
fact what it discloses is a languid, disengaged approach to the significance of an intended change of position to augment the plaintiffs' case. Especially in circumstances were the parties were in the busy final phases of trial preparation with their witnesses of fact and experts. If there was
[2013] WASC 122
KENNETH MARTIN J
this earlier intention to amend to augment the scope of the plaintiffs' case beyond these specific 'Chemicals' as identified and left constant for the preceding four years, the changes ought to have been advised. Even if Mr Leslie was not in a position to finalise an amendment throughout 2012, at minimum, a letter could have been sent explicitly putting the defendants upon notice as to his plan. But nothing at all was done.
30 Instead, and particularly after the argument concerning the
supplementary expert reports in October 2012, the position was just left silent. In my view this was unforgivable in the context of a case of this magnitude and complexity. When the defendants complained, after 18 March 2013, Mr Leslie simply advised them in his letter of 20 March 2013:
14. We do not accept that the defendants are prejudiced or have insufficient time to deal with these issues.
15. I do not agree that your client's position that the plaintiffs had failed to include Chlorpyrimax or Vitti-Wet in their pleading had been brought to my (or our) attention on multiple occasions. However I did not initially have the carriage of this matter. I agree it was noted by senior counsel for the defendants in October last year. Your comment is consistent with the plaintiffs' position, that these are issues apparent from and reflected in the evidence and the plaintiffs' expert reports, but had not been specifically pleaded.
18. If the defendants' expert witnesses now wish to address Chlorpyrimax and/or Vitti-Wet differently, or in more detail, there should be no reason why it cannot be dealt with within a very short time. The plaintiffs would not object to that.
31 The defendants take strong issue over the assertion that they have not
been prejudiced or given insufficient time to deal with these issues. They
say (see Ms Tiller's first affidavit):20. From my review of the witness statements filed by the defendants and my discussions with Jenni Hill, I believe that:
(1)
2 - 5 supplementary non-expert witness statements will need to be prepared to respond to the amended statement of claim;
(2) most of these witnesses reside in Mount Barker; and (3) it will take two weeks to prepare and finalise these
additional witness statements.
[2013] WASC 122
KENNETH MARTIN J
21. I am informed by Dr Mortimer and believe that he will be able to prepare and file a second supplementary report to address the matters raised by the amended statement of claim within approximately 2 - 3 weeks.
22. Dr Mortimer has not yet conferred with Dr Landos or with Dr Werner. If the amended statement of claim stands and a further supplementary report is obtained from Dr Mortimer, further conferral on these points will need to take place after the report is filed.
23. From my experience in trying to arrange the conferral between the experts, I believe that this likely to take a further 2 - 3 weeks to organise and for the conferral to occur.
32 On my assessment, the defendants are prejudiced, and most
unnecessarily so, in the phase of the most intense level of preparation in this case as it approaches a six-week trial. This is not a garden variety two-day trial. It is a case of considerable complexity and magnitude.
33 Next, a considerable portion of the materials relied upon by the
plaintiffs seeks to identify passages where either chlorpyrimax (or chlorpyrifos) and wetting agents have been mentioned at places in the parties' materials. Hence, the plaintiffs say that the defendants have been put on notice about this material. This contention is answered my first point above. That is, the pleadings setting the parameters of relevance for materials not vice versa. However, the defendants' written submissions of 27 March 2013 at pars 25 through to 28 comprehensively respond seriatum to the plaintiffs' assertions concerning all these references to the material and assert that 'very few of these references could be said to be relevant, in any way, to the periods the subject of the plaintiffs' claims' (see par 29). That contextual analysis is, on my assessment, convincing. Furthermore, a shift in focus by the plaintiffs to attempt to make relevant what was formally irrelevant or peripheral material, is apparent. It emerges in circumstances where no sufficient earlier effort appears to have been made by the plaintiffs' solicitors to bring the plaintiffs' case into proper alignment with its pleadings. No adequate reason has been provided for the demonstrable lassitude in regularising that position from the plaintiffs' perspective. That goes for both chlorpyrimax and for the attempt to bring in wetting agents generally, at this late stage.
34 In my view, the application made by the defendants to strike out
parts of the amended statement of claim pursuant to O 21 r 3(5) must be upheld. I am alive to the interests of justice in the looming six-week trial in this assessment, but the original elements of the plaintiffs' attack remain
[2013] WASC 122
KENNETH MARTIN J
in tact as they have for the past five years. My decision simply stops the plaintiffs expanding the field of controversy onwards into areas which they have not chosen to plead, save at what is far too late a point in a complicated action.
35 Finally, I observe that the factual basis for the attempted expansion
in the plaintiffs' case seems to be very narrow indeed. I refer to
Mr Leslie's letter of 20 March 2013 to Ms Tiller in which he says:12. Warren Moore, at paragraph 807 of his witness statement, gives evidence of finding and photographing two drums (one older and one newer) of Chlorpyrimax on Landsdale with its other used chemical drums.
13. The plaintiffs will invite the court to infer the defendants also sprayed Chlorpyrimax and therefore chlorpyrifos on Landsdale.
36 From what I have read, a photograph was taken by Mr Moore of the
chemical drums. The inference he then asks the court to draw relates to what he saw in 2005, when he entered the Landsdale property. It then needs to be borne in mind the first spraying event the subject matter of this negligence action relates to 2002 and early 2003. On that basis the factual edifice for an intended expansion of the case as regards chlorpyrimax or chlorpyrifos looks in any event to be wholly left to inference.
In the circumstances the defendants' application to strike out must
succeed.
2
1