Nudrill Pty Ltd v La Rosa - [2009] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NUDRILL PTY LTD -v- LA ROSA & ANOR [2009] WADC 84

CORAM: YEATS DCJ

HEARD: 25 - 29 MAY 2009

DELIVERED : Delivered Extemporaneously on 29 MAY 2009 typed from tape and edited by Trial Judge

PUBLISHED : 8 JUNE 2009

FILE NO/S: CIV 1523 of 2008

BETWEEN: NUDRILL PTY LTD
Plaintiff
AND
GIUSEPPE LA ROSA
ROSINA LA ROSA
Defendants

Catchwords:

Practice and procedure - No case submission - No election required - Evidentiary hiatus in contract claim and tort claim

Legislation:

Rules of the Supreme Court 1971, O 21, O 5

Result:

Plaintiff's claim against the defendants dismissed. Defendants have no case to answer

Representation:

Counsel:

Plaintiff: Mr I Morison
Defendants: Dr P R MacMillan

Solicitors:

Plaintiff: SRB Legal
Defendants: Friedman Lurie Singh & D'Angelo

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

Barclay Mowlem Construction Ltd v Dampier Port Authority & Another (2006) 33 WAR 82
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Compaq Computer Australia v Merry (1998) 157 ALR 1
Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216; 144 ALR 497
Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54
W Hill & Son v Tannerhill [1944] 1 KB 472
Western National Bank of the City of New York v Perez, Triana & Co (1891) 1 QB 304

YEATS DCJ: These are the reasons for my ruling that the defendants have no case to answer.
The plaintiff claimed damages in contract and in tort for damage caused to a drill-rig being transported by the defendants. The accident occurred on 29 August 2001 when the drill-rig was being hauled on a low‑loader pulled by a prime mover driven by the first-named defendant through a roundabout near Kalgoorlie. The right wheels of the low-loader lifted, the chains broke and the drill-rig toppled off the low-loader causing extensive damage to it.
The case the plaintiff set out to prove was that the plaintiff was the bailee of the drill-rig and was entitled to sue the defendants for damages. The plaintiff's action was originally titled Nudrill Pty Ltd (ACN 052 529 754) plaintiff and Giuseppe La Rosa & Rosina La Rosa T/as J-Can Transport Services defendants.
In par 3 of the statement of claim, the plaintiff alleged:
"3.In or before August 2001 the defendants carried on business as partners under the registered business name of J‑Can Transport Services ('the Firm')."
The defendants denied par 3 of the statement of claim and in par 3 of the further re-amended defence pleaded:
"3.At all material times Rojo (WA) Pty Ltd as trustee for the La Rosa Family Trust carried on business under the business name J-Can Transport Services using Australian Business Number 82 683 727 873."
Thus it was apparent from the pleadings and from the opening submissions prior to trial of the plaintiff and the defendants that the identity of the proprietor of the business name J-Can Transport Services was a matter in issue in the litigation. Despite this, in the course of its case at trial, the plaintiff did not lead any evidence to prove the facts pleaded in par 3 of the statement of claim. There was no evidence led by the plaintiff of the identity of the proprietor of the business name. No Business Name Certificate was tendered.
The trial commenced on 25 May 2009 and the plaintiff closed its case at the end of the second day of the trial. The defendants intended to open their case at the start of the third day of the trial, but, very surprisingly, on that day the plaintiff brought a Notice of Motion for leave pursuant to O 21 r 5 to amend the writ of summons and the statement of claim. The plaintiff's application was not in the prescribed form and was without red underlinings so that delay was experienced in dealing with it.
The majority of the proposed amendments sought to remove the reference "T/as J-Can Transport Services" in the name of the case, to amend par 3 of the statement of claim, and to make a number of amendments with the effect that the plaintiff now brought its claim against the defendants, not as partners trading as the firm pleaded in par 3, but as individuals. In addition, there was a further claim made against Mr La Rosa personally and not in his capacity as a partner carrying on business under the firm's name.
Initially because those amendments were not opposed by the defendants I allowed the amendments but on hearing further submissions from the defendants on the fourth day of the trial and, taking account of the fact that we were all taken by surprise by the Notice of Motion, I rescinded that leave and granted leave to the plaintiff to amend its writ and statement of claim only in a limited way including the correction of errors. I allowed the amendment to the name of the action. My reasons were given viva voce on 28 May 2009 and I do not repeat them here.
In the meantime, the defendants submitted they had no case to answer – first in relation to what I will call the interim amended statement of claim and then, subsequently in relation to the finally amended statement of claim. The submission is based on an alleged hiatus in the evidence in the plaintiff's case – that the plaintiff failed to lead any evidence of who entered into the relevant contract to transport the drill-rig for the plaintiff. Without that evidence the defendants contend the claim for damages in contract and in tort must fail.

The law governing no-case submissions

The general practice in civil cases tried by a Judge without a jury in this State is for the Judge to require a defendant who wishes to make a submission of no-case to elect whether to call evidence, and to decline to rule on the submission until that election is made (Civil Procedure in WA, Vol 1 p 7791: BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294). Alternatively, the Judge may hear the submission and then indicate that he or she will require an election before ruling on it, or the Judge may hear the submission without requiring any election. However, the general rule is that an election is required and it is not departed from unless adherence to it will not serve the ends of justice or convenience (Civil Procedure in WA p 7792).
In this case I agreed to hear the submission of no-case without putting the defendants to their election because in this case the defendants rely on a matter of law, that is a hiatus in the evidence. In Compaq Computer Australia v Merry (1998) 157 ALR 1 at 7, Finkelstein J noted that the practice of putting the defendants to their election is not inflexible. Examples were given of cases depending on an issue of law "where departure from the rule will usually best serve the interests of justice". Justice Finkelstein relied on the decision in Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 where Perry J said that in cases where reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action no election should be required. This is such a case. I agreed to hear the no-case submission without putting the defendants to their election. Having heard the no-case submission I now rule on the no-case submission. I consider that it is in the interests of justice that the defendants not be put to their election in this case. That is because it is purely a matter of law and the interests of justice would be best served by dealing with it directly.
On the fifth day of the trial, the day I was to deliver my decision on the no-case submission, the plaintiff's counsel made further submissions. Those submissions arise from the unusual course that was taken on the first day of the trial. On the morning of the first day of the trial counsel for the plaintiff and counsel for the defendants indicated that each had an important witness who was flying from Western Australia later that afternoon and that it would be important that their evidence be taken before their flights departed. The trial then commenced without the normal opening by the plaintiff's counsel and opening by the defendants' counsel. The evidence of the witness, Michael John Norburn, was taken. Mr Norburn was the principal witness on behalf of the plaintiff. The Court then interposed the evidence called by the defence from Leesa Eileen Pegus who had been a passenger in the prime mover driven by the first-named defendant at the time of the accident.
The plaintiff relied on the general rule that the no-case submission be made at the conclusion of the plaintiff's evidence and before the defendant called any evidence on its behalf. The plaintiff submitted that in the exercise of my discretion as to whether the defendants should be required to elect the fact that the defendants had gone into evidence was relevant and normally they would then be put to their election before I considered the no-case submission.
The plaintiff provided a portion of the judgment of the Federal Court in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216 at 225; 144 ALR 497 at 505. The plaintiff relied on the unauthorised ALR report at 496 – 7. In that case the Court held:
"there is no general rule that requires that a party seeking to make a submission of no-case must elect to adduce further evidence if some evidence has already been led or if exhibits have been tendered during the cross-examination. In a particular case, the fact that the respondent has taken steps of this kind will be one of the circumstances to be taken into account in the exercise of the discretion."
The plaintiff submitted that in this case the defendants had adduced significant evidence "absolutely central" to the issues in the case, principally and most importantly to negligence in that in their submission all the evidence of Ms Pegus goes to negligence rather than a contract issue. The plaintiff submitted that if it adopted a strictly res ipsa loquitur approach the plaintiff could rely on Ms Pegus' evidence as its case. In these circumstances the plaintiff contended that the defence should be put to its election.
I have reviewed the decision in Residues Treatment (supra). The approach of the Federal Court seems to be that it is only where a defendant has gone into evidence directly on the point in issue in the no‑case submission that putting the defendant to its election would be required. In this case, none of the defendants' evidence went to the issue that is to be considered in the no‑case submission. The evidence of Ms Pegus was irrelevant to the question of the identity of the defendant in the contract or tort claims. Therefore, despite the defendant having gone into evidence in the circumstances I have described, that fact does not persuade me to reconsider the exercise of my discretion. I do not put the defendants to their election in this case.

The defendants' no-case submission

The defendants contend that in the absence of any evidence as to the proprietor of the business name J-Can Transport Services there is no evidence of who entered into the relevant contract of haulage with the plaintiff. The defendants refer to the evidence of the witnesses called by the plaintiff. Michael John Norburn, a director of the plaintiff, tendered in evidence Exhibit 7, bundles of invoices from 1989 onward to the time of the accident – invoices from various named firms including Joe's Tilt‑Tray & Crane Services, Joe's Tilt‑Tray & Crane & Low-Loading Services and J‑Can Transport Services. At T28 Mr Norburn said this:
"My partner, Brian Webster, looked after all the operations for the machines and where they go and where they went. He would contact Joe La Rosa, and if he was available to take the rig to where we wanted, he would give a quote to Brian Webster. Brian would either agree or disagree. If he agreed, he would then move the equipment to the site and I, as – in the office would receive an invoice some short time afterwards requesting payment."
Mr Norburn said he would pay the invoices on behalf of the plaintiff. When asked about the changes in the firm name on the face of the invoices Mr Norburn said at T29:
"I presumed … we were dealing with Mr La Rosa on all accounts. There was no proprietary limited company involved and I just assumed that he was changing his trading name for personal reasons but I – as far as I were concerned, they were a trading name associated with Mr La Rosa."
Under cross-examination, Mr Norburn was asked if he had any basis for his assumption that it was Joe La Rosa and he said at T43:
"Only from Brian's relationship with Joe and the way he's operated for years. It was – always seemed to be working. We always phoned Joe. He didn't seem to be running a sophisticated company."
Earlier in his cross-examination Mr Norburn conceded that behind every trading name there was a person or a company or a partnership or a trustee operating on behalf of a trust. But he conceded he had no idea who the proprietor of the trading name was (T43).
Brian Geoffrey Webster, now retired, had been a director of the plaintiff at the relevant time. He said that if he ever needed equipment moved he would phone Joe (T89). In examination-in-chief he was asked "who did you understand you were contracting with when you organised for Mr La Rosa to take this equipment?" and Brian Webster replied at T89:
"Well I mainly used to call him Joe Can Transport. Joe can do the job you know. That's what I always termed it as."
Then he was asked what he meant by Joe Can and he said at T90:
"Well for a long while I just thought it was a company name; Joe Can Transport."
The evidence disclosed that it was Geoffrey Webster, Brian Webster's son, who was the operations manager for the plaintiff who made the arrangements with Joe La Rosa to transport the drill-rig the subject of this action. Geoffrey Webster gave evidence of his role at T102:
"Well after all the contract was finalised and details ….Mike would say 'the rig's got to be – start up date is x start arranging it'. So I – part of that role is to give Joe a call and arrange for the machine to be picked up and transported to site."
Geoffrey Webster went on to give evidence that Mr La Rosa had done driving for the plaintiff over quite some time, over a number of years and that the prices given by Mr La Rosa were verbal only. When asked how Mr La Rosa claimed for the price, he said:
"I suppose through the invoice, yeah".
When asked whether he had seen those invoices he replied that they all went to Mike Norburn through the accounts system and he never saw any of them.
Under cross-examination Geoffrey Webster said (at T104) he made a telephone call to Joe La Rosa in relation to the transportation of the rig the subject of the action, that he was dealing in the course of that telephone conversation with J-Can Transport Services and that he had no idea who the proprietor of J-Can Transport Services was.
There was also photographic evidence called by the plaintiff through Mr Ian Joseph Brandis, now retired, who was the private investigator engaged by Zurich Insurance to investigate this accident and claim. Mr Brandis tendered photographs (Exhibit 17) including a photo of the prime mover used to pull the low-loader carrying the plaintiff's drill-rig. "J-Can Transport Services" is clearly visible on the prime mover.
The defendants contend that the evidence clearly establishes that the plaintiff entered a contract with J-Can Transport Services but there is no evidence of who stood behind the business name, whether it be a person, company, partnership or trust. It was an oral contract made by the plaintiff through its operations manager, Geoffrey Webster, with Joe La Rosa, a person associated with J-Can Transport Services. But there is no evidence whether Joe La Rosa was an employee or a proprietor of that business. The defendants contend that the plaintiff pleaded the partnership (par 3) and brought its action against the two defendants as partners and proprietors of the business name, but the plaintiff has failed to prove that the contract was made with the defendants in partnership as J-Can Transport Services. For these reasons, the defendants contend there is a hiatus in the evidence and the plaintiff's claim in contract must fail.
As to the claim in negligence, the defendants point to the plaintiff's statement of claim. In par 8 the plaintiff pleaded that based on the matters pleaded in par 4, 6 and 7, the defendants owed the plaintiff a duty of care in tort to exercise reasonable skill and care in transporting the drill-rig. Without evidence of who the plaintiff contracted with the defendants contend that as a matter of law, the plaintiff cannot establish any duty of care owed by the defendants. The defendants contend the claim for damages in tort must also fail.
The defendants further contend that for the defendants to be sued as joint tortfeasors there must be a concurrence in the act or acts causing damage (Civil Procedure WA 34.8.6). There was no evidence of that in this case without proof of the partnership of the two defendants. The plaintiff alleged in par 7 of its statement of claim that at the time of the accident the drill-rig was "in the possession of the defendants". Without evidence of the partnership, that contention cannot succeed. The defendants contend there is no prime face case as to the duty of care owed by the two defendants in partnership trading under the name of J‑Can Transport Services and the claim in negligence must also fail.

The plaintiff's submissions

The plaintiff's counsel's submission was that the case will stand or fall on whether the plaintiff is bound by its pleading or not. If it is bound, counsel conceded that the no-case submission must succeed. But the plaintiff contends they have established by evidence a very clear case that there was a contract between the plaintiff and Mr La Rosa. The plaintiff relied on Mr Norburn's evidence that he "presumed" that the plaintiff was dealing with Mr La Rosa. Counsel relied on what he referred to as "first principles". The plaintiff made extensive written submissions on the evidence which he addressed in his oral submissions.
The plaintiff relied on the evidence of Mr Norburn, who was not a lawyer, and suggests the cross-examination asking him whether he knew "that every firm that trades under a firm name has a proprietor" was inappropriate because Mr Norburn was referring to a trading name not a firm. The plaintiff contends that Mr Norburn used interchangeable terms as most laypersons do – company, firm, trading name – when referring to a business.
The plaintiff relied on Mr Norburn's evidence that over the years when the plaintiff contracted with J-Can Transport Services and the earlier business names he presumed Joe La Rosa was the proprietor of the business names (T43). The plaintiff referred to Mr Norburn's evidence about the plaintiff's course of dealings with Joe La Rosa and submits that throughout his evidence Mr Norburn made it plain that the plaintiff was dealing with Mr La Rosa. The plaintiff referred to the evidence of Brian Webster and of Geoffrey Webster. He conceded Geoffrey Webster believed he was dealing with J-Can Transport Services because that was the name used by Mr La Rosa but the plaintiff contended he was dealing with Mr La Rosa.
The plaintiff contends that the defendant's no-case submission ignores the fact that, first and last, the plaintiff's witnesses believed they were dealing with Mr La Rosa. The plaintiff suggests that the defendants logic relies on a flawed syllogism:
A.The plaintiff was dealing with Mr La Rosa;
B.The plaintiff knew Mr La Rosa used a trading name;
C.Therefore the plaintiff was contracting with whoever was the proprietor of the business name.

The plaintiff submits that the plaintiff's witnesses were dealing with Mr La Rosa, they knew Mr La Rosa used a trading name but it did not occur to them to consider who was the proprietor of the business name because they were dealing with Mr La Rosa and he used that name. The witnesses agreed with the proposition that they were dealing with J‑Can Transport Services because they were dealing with Mr Rosa and he used that name.
The plaintiff submitted that the pleadings are only a gateway – that once the evidence was led, the pleadings fell away and the case comes to be decided on the evidence – not on the pleadings. The plaintiff submits that there is unshaken evidence the contract was made with Mr La Rosa and that the allegation of negligence is consistent with the plaintiff's pleading and therefore the no-case submission should fail.

Ruling

In this case, I am satisfied the defendants have no-case to answer for the reasons submitted by the defendants. The submissions by the plaintiff that the pleadings simply fall away after the evidence has been led is a nonsense. Pleadings perform an important and continuing function in every action. They define the matters in issue between the parties. They determine whether or not evidence is admissible in the trial. They ensure that each party knows the case against it and prevents a party from leading evidence that the other party is not prepared to answer. The pleadings continue to shape the issues when the Judge, after trial, considers all the evidence in order to determine the issues between the parties.
In Barclay Mowlem Construction Ltd v Dampier Port Authority & Another (2006) 33 WAR 82 at [4] Martin CJ discussed the contemporary purposes of pleadings:
"It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet."
In Civil Procedure WA at 20.0.2 the functions of pleadings are discussed (as taken from Bullen v Leake on English Practice). The primary function of pleadings is:
"To define with clarity and precision the issues or questions of fact and law which are in dispute between the parties and that are to be decided by the Court.
…
(Pleadings) … ensure that the parties come to trial able to articulate the matters that are truly in dispute, are armed with the evidence necessary to further their own cause and are prepared to meet the case of their opponents."
The pleadings do not stop performing that function once the trial is under way. The issues do not change in the course of the trial but arise from the evidence led pursuant to the facts pleaded in the pleadings.
This action was commenced by Writ with Statement of Claim attached, filed on 25 June 2003 in the Supreme Court. I have no knowledge of what pre‑trial matters took place between that date and the date the trial commenced on 25 May 2009 in the District Court before me but, I note that the plaintiff's claim in its statement of claim filed in 2003 was a claim against the same two defendants T/as J-Can Transport Services carrying on business as partners under the firm name J‑Can Transport Services (par 2). The plaintiff originally brought its action for damages in both contract and tort as it does currently. The plaintiff never claimed against the first-named defendant personally as the plaintiff now suggests he can do based on the evidence in the trial.
The case the defendants prepared for trial was based on the plaintiff's case as pleaded. That is evident from the outline of defendant's opening submissions provided to the Court prior to trial. In those submissions counsel for the defendants identified as one of twelve issues:
"5.Whether the plaintiff contracted with the defendants or with Rojo (WA) Pty Ltd as trustee for the La Rosa Family Trust trading as J-Can Transport Services."
That submission is entirely consisted with the pleaded defence of the defendants. That submission and the pleadings are consistent with the questions asked by defendants' counsel in cross-examination of the plaintiff's witnesses at trial.
Defendants' counsel did not cross-examine any of the plaintiff's witnesses about the personal liability of Mr La Rosa in contract or in tort. His cross-examination was properly confined to the matters in issue at trial.
As previously noted in its statement of claim, the plaintiff pleaded its case against the defendants in their capacity as partners T/as J-Can Transport Services. And in the outline of the plaintiff's submissions provided to the Court prior to trial the plaintiff identified five issues requiring determination including:
"2.Were the defendants parties to the contract of carriage?"
That issue was consistent with the issues joined in the pleadings in this case. Further, in all its submissions prior to trial the plaintiff consistently referred to the liability of the defendants and never to the liability of the first‑named defendant in his personal capacity.
I accept the plaintiff's submission that a partnership is not a distinct legal entity. That is trite law. Anyone who sues partners, even if the suit is brought in their firm name "in truth sues them individually" (Western National Bank of the City of New York v Perez, Triana & Co (1891) 1 QB 304 at 314). The effect of the proceedings in this case originally against the two named defendants trading as J-Can Transport Services is that the defendants were sued in their own right (not as the firm) and the words "T/as J-Can Transport Services" were irrelevant (W Hill & Son v Tannerhill [1944] 1 KB 472 at 475). That is the reason I allowed the plaintiff's application to amend its statement of claim to remove those words despite the fact that it had closed its case. They were simply irrelevant.
But that does not alter the capacity in which the defendants were sued by the plaintiff. They were sued as partners trading as J‑Can Transport Services as the plaintiff pleaded in par 3 of its statement of claim.
A plaintiff can sue the same defendant in different capacities (see O 18.1) but no other capacity was ever pleaded in this case. The plaintiff never put its case on the alternative basis of personal liability until after it had closed its case. The personal liability of Mr La Rosa in contract and in tort is not a cause of action brought by the plaintiff against these defendants. Therefore submissions by counsel for the plaintiff that there was unshaken evidence that the contract was made with Mr La Rosa in his personal capacity is irrelevant to any issue in the trial. Evidence of any negligence by Mr La Rosa in his personal capacity is also irrelevant to the matters in issue in this trial unless he was negligent as a partner in the firm pleaded by the plaintiff.
In order to establish its case the plaintiff had to prove that Mr La Rosa and Mrs La Rosa were partners in a business trading as J-Can Transport Services. The plaintiff has failed to prove that. Therefore there is a hiatus in the evidence. The plaintiff has led no evidence of the defendants alleged partnership. Without that evidence there is no prime face case in contract or in tort against the defendants in that capacity. I accept the defendant's submissions about these issues. There is no evidence of who the plaintiff contracted with for the haulage of the drill-rig. These are fundamental issues in the trial and, without that evidence, the Court had no alternative but to allow the defendants' no-case submission and to order that the claim against the defendants be dismissed. The question of costs was adjourned for further hearing.