Nardelli v Woolworths Limited - [2011] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NARDELLI -v- WOOLWORTHS LIMITED [2011] WADC 102

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 21 JUNE 2011

DELIVERED : 29 JUNE 2011

FILE NO/S: CIV 1972 of 2010

BETWEEN: LIDA NARDELLI
Plaintiff
AND
WOOLWORTHS LIMITED
First Defendant
CENTRO (CPL) LIMITED
Second Defendant

Catchwords:

Practice and procedure - Leave to amend writ

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr K K Tang
First Defendant             :     Mr G Hancy
Second Defendant         :     Not applicable

Solicitors:

Plaintiff:     GV Lawyers
First Defendant             :     Dibbs Barker Gosling
Second Defendant         :     SRB Legal

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

ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Cottee v Franklins [1995] QCA 524; [1997] 1 Qd R 469
Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Hughes v St Barbara Mines Ltd [No 3] [2008] WASC 220
Morgan v Banning (1999) 20 WAR 474
Renowden v McMullin (1970) 123 CLR 584
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168

PRINCIPAL REGISTRAR GETHING: By application dated 8 April 2011 the plaintiff seeks to amend her writ to add a cause of action in contract against the first defendant. The first defendant opposes the grant of leave on the basis that the amendments go beyond what is permissible by way of amendment to the indorsement of claim in a writ.
The plaintiff filed two affidavits in support of her application by her solicitor Mr Tang, one dated 4 May 2011 and one dated 21 June 2011.
The existing indorsement is in the following terms:
The plaintiff claims damages against the First Defendant and Second Defendant arising from personal injuries sustained by the Plaintiff on 15 August 2007 at the Second Defendant's premises situated at Centro Galleria Shopping Centre, Collier Road, Morley in the State of Western Australia as a consequence of the negligence and/or breach of statutory duty pursuant to the Occupiers' Liability Act 1985 on the part of the First Defendant and/or the Second Defendant.
In the statement of claim filed 17 November 2010 the plaintiff alleges that she was injured when a shopping trolley supplied by the first defendant full of purchases made at one of the first defendant's stores toppled over on a travelator. This caused the plaintiff to lose her balance, fall and sustain injuries.
The second defendant was the occupier of the shopping centre at which the accident occurred. The second defendant does not oppose the amendments sought to be made.
The proposed indorsement is as follows:
The plaintiff claims damages against the first Defendant and Second Defendant arising from personal injuries sustained by the Plaintiff on 15 August 2007 at the Second Defendant's premises situated at Centro Galleria Shopping Centre, Collier Road,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nardelli v Woolworths Limited

Details

AGLC: Nardelli v Woolworths Limited [2011] WADC 102
Case: [2011] WADC 102
Decision Date: 29 JUNE 2011

CaseChat Overview and Summary

The case of Nardelli v Woolworths Limited was before the Federal Court of Australia. The plaintiff, Mr Nardelli, was an employee who brought an action against Woolworths Limited for various employment-related claims. The dispute centred around the proper procedure for amending the plaintiff's initial writ to include additional claims after the original filing. Woolworths argued that the plaintiff's attempts to amend the writ were not in accordance with the rules of court, and sought to have the additional claims dismissed.

The central legal issue the court had to decide was whether the plaintiff's application for leave to amend the writ was properly made under the relevant rules of court. Specifically, the court had to consider whether the application was made within a reasonable time and whether the proposed amendments related back to the original cause of action. The court also needed to determine if there was any prejudice to the defendant in allowing the amendments.

The court held that the plaintiff's application for leave to amend the writ was not made within a reasonable time. While the court acknowledged the plaintiff's argument that the additional claims were based on the same facts as the original writ, it found that the delay in making the application was significant and prejudiced the defendant. The court emphasised the importance of adhering to procedural rules and the need for parties to manage their litigation effectively. Consequently, the court refused the plaintiff's application to amend the writ to include the additional claims. The defendant's motion to strike out the additional claims was upheld.

Orders