Nield v Contract Power Management Australia Pty Ltd

[2007] WADC 32

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   NIELD -v- CONTRACT POWER MANAGEMENT AUSTRALIA PTY LTD [2007] WADC 32

CORAM:   REGISTRAR KINGSLEY

HEARD:   22 FEBRUARY 2007

DELIVERED          :   Delivered Extemporaneously on 22 FEBRUARY 2007 typed from tape and edited by the Registrar

FILE NO/S:   CIV 794 of 2003

BETWEEN:   MATTHEW JOHN NIELD

Plaintiff

AND

CONTRACT POWER MANAGEMENT AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice - Application to amend defence - Withdrawal of admissions - Joinder of third party

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr A J Castley

Defendant:     Mr P E Jarman

Solicitors:

Plaintiff:     Bradford & Co

Defendant:     Jarman McKenna

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

Nil

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  The defendant seeks leave to amend its defence in terms of a minute dated 10 January 2007.  The cause arises in 2000 and the writ is issued in 2003.  There is a defence where there are certain admissions which, at first, defendant counsel seeks to withdraw and from the Bar table is happy that they remain in.  At the outset I have to say there is no, and will be no criticism of the defendant's present solicitors.  I say that to make it clear what follows next.

2. The action, in my opinion, has been fought on an issue of causation.  That was clear from the thrust of the application for discovery which was pressed, in a zealous fashion, by the then defendant's counsel.  It is clear that the direction of the defendant in the conduct of this action was on the question of what was the causative means of the plaintiff's present condition.  That impression gained from the interlocutory application for discovery is now fortified by the fact that, notwithstanding the defendant had in its possession certain documents, those documents were not discovered.  If one looks at those documents they go to the relationship between the defendant and parties that it now seeks to join as third parties.

3. In my opinion, then, the defendant through its then advisers, has made the conscious decision to press the issue of causation, and hence, properly, on the pleadings, the documentation with regard to related entities was not relevant because there is no pleaded issue.  There is no reason why these documents need to be discovered.

4. To now bring these documents and the pleadings onto the court record, in my opinion, causes such prejudice to the plaintiff that it cannot be ameliorated by any costs.  In my opinion, the pleading in relation to the withdrawal of admissions, the plea as to the entity KBK will do far greater harm to the plaintiff than the defendant and in my opinion ought not be allowed.

5. As for par 12 of the minute, I have no real issue with par 12.  It comes relatively late but causes no surprise and in the ordinary course perhaps is something which even diligent searches by a defendant might have taken some time to formulate.  Hence, in a proper pleading I would have no difficulties in giving leave to a defendant to plead par 12 in a pleading that is proper.

6. Paragraph 13 of the minute, again is a plea which for the most part, comes late, but again through the searches of the defendant comes at a point when perhaps that is logical in time.  My concern is that it is too vague and of course a pleading that is sought to be amended relatively late in the stage, ought to be amended with the least prospect of vagueness.  I understand that the defendant wants the ability to plead the Bali sojourn, and in a proper plea, in my opinion, the defendant can plead the Bali sojourn.

7. I am not going to hold defendant's counsel to an amendment from the Bar table.  In a proper plea I would have no issue with a plea that properly portrays the Bali sojourn.  But in the end, this particular minute is not a minute that I would admit to the record and I would dismiss the defendant's application. 

8. The defendant also seeks leave to issue third party notices.  The cause that the defendant seeks to raise against the third party is a cause that has not yet, of course, crystallised.  In the ordinary course I agree that the normal course is to have a third party proceeding heard together with the primary proceeding.  But reading the affidavit of Ms Sedic sworn 15 January 2007 and particularly pars 32 and 33 and 34, I have the disturbing impression that the third party proceedings would not be easy proceedings.  Accordingly I think there is the greater potential in the plaintiff's present proceedings of delay and prejudice and that application also is refused.

9. So the defendant's application is dismissed in its entirety and the defendant to pay plaintiff's costs.