Nudrill Pty Ltd v La Rosa t/as J-Can Transport Services - [2009] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NUDRILL PTY LTD -v- LA ROSA t/as J-CAN TRANSPORT SERVICES & ANOR [2009] WADC 9

CORAM: BOWDEN DCJ

HEARD: 23 JANUARY 2009

DELIVERED : 23 JANUARY 2009

PUBLISHED : 28 JANUARY 2009

FILE NO/S: CIV 1523 of 2008

BETWEEN: NUDRILL PTY LTD
Plaintiff
ROSINA LA ROSA t/as J-CAN TRANSPORT SERVICES
Secondnamed Defendant
AND
GUISEPPE LA ROSA t/as J-CAN TRANSPORT SERVICES
Firstnamed Defendant

Catchwords:

Practice and procedure - Appeal from Deputy Registrar - Amendment of defence - Late application - Noncompliance with District Court Rules- Leave to amend further amended defence granted - Costs

Legislation:

Nil

Result:

Leave to amend further amended defence granted

Representation:

Counsel:

Plaintiff:     Mr B A Winburn-Clarke
Secondnamed Defendant     :     Mr P R MacMillan
Firstnamed Defendant     :     Mr P R MacMillan

Solicitors:

Plaintiff:     SRB Legal
Secondnamed Defendant     :     Friedman Lurie Singh & D'Angelo
Firstnamed Defendant     :     Friedman Lurie Singh & D'Angelo

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

Barclay Mowlen Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
May v Thomas [2008] WASCA 215
Wiltrading (WA) Pty Ltd v Lumley General Insurance & Ors [2005] WASCA 106

BOWDEN DCJ: This is an appeal by the defendants from the decision of Deputy Registrar Harman made on 3 December 2008 whereby the Deputy Registrar dismissed the defendants' application to amend the re‑amended defence.
The issue to be decided on this appeal is whether the defendants should be granted leave to amend their defence. The plaintiff's claim was commenced by a writ of summons filed in the Supreme Court on 25 June 2003 and arises out of the transport of a drilling rig from Gnangara to the Savo Mine approximately 50 kilometres north of Kalgoorlie.
As both parties agreed there have been a large number of interlocutory applications. In due course the matter was transferred from the Supreme Court to the District Court and eventually entered for trial on 24 July 2008. At a conference held on 28 July 2008 orders were made that:
"The defendant do file and serve a chambers summons seeking leave to amend the defence, such application to include a minute of proposed amended defence on or before 8 August 2008."
That order was not complied with.
Subsequently, at a listings conference held on 1 December 2008, it was set down for a trial commencing on 25 May 2009.
On 13 October 2008 the defendants filed the chamber summons seeking leave to amend the defence in terms of a minute filed therein together with an affidavit of Mr Singh in support of that application.
Rule 48A of the District Court Rules 2005 provides that if an application to amend a pleading is filed after a case is listed for trial, the application must be accompanied by an affidavit of the party making the application, or the lawyer representing the party, and must set out the facts which have arisen since the certificate was tendered under r 43(3)(a). That certificate requires the lawyer who will appear at the trial for a party to certify that he has reviewed the pleadings and is satisfied that they adequately define all the issues of fact or law that the parties contends will need to be determined at trial. The affidavit must set out the facts that ground the party or the lawyer's arguments that the amendment is necessary.
The affidavit of Mr Singh does not comply with r 48A (4)(a) or (b) because the affidavit does not set out the facts that have arisen since the certificate was tendered nor the facts that ground the party or the lawyer's arguments that the amendment is necessary.
As I indicated to the parties at the hearing of the appeal, if I was to allow an adjournment and an affidavit was filed indicating that counsel, in preparing the matter for trial, further considered the matter and realised an amendment was necessary, it will probably not advance the matter any further.
I indicated to the parties that in view of the long history of this matter, the large number of interlocutory applications and the approaching trial, that it seemed to me that it was preferable, notwithstanding that there was non‑compliance with the District Court Rules, for me just to deal with the application rather than adjourn for an affidavit to be filed and that is what took place.
The defendants' application to amend the defence was heard by Deputy Registrar Harman on 3 November 2008 and it appears from counsel's submissions that almost all of the time before Deputy Registrar Harman was spent dealing with the proposed amendment to par 10. In any event, that amendment was not allowed and the defendant does not now seek to amend par 10. The defendants' counsel advised me that there was no objection raised by the plaintiff to the proposed amendments to par 8A – 8H inclusive and those aspects of the application were not dealt with by the Deputy Registrar.
An appeal from a Deputy Registrar to a Judge in Chambers is a complete review de novo which is dealt with by way of an actual hearing of the application which led to the order under the appeal. I am required to treat the matter as though it has come before me for the first time (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).
The relevant principles to be applied on an application to amend a pleading are well known. In general, the parties should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause injustice to the other party which could not be adequately remedied, for instance, by an order for costs (May v Thomas [2008] WASCA 215 per Newnes AJA at [33] and the cases therein cited).
The party seeking the amendment bear the burden of persuading the court that the amendment will not cause irremediable prejudice to the other party. However, the party opposing the amendment ordinarily bears the evidentiary onus of adducing evidence in relation to the prejudice at least where the proof of that prejudice lies in the hands of the party. The non‑existence of the prejudice is difficult to prove so that in practice in the latter circumstances an evidentiary burden is borne by the party resisting the amendment. It is not sufficient for a party to rely on prejudice which results in an unreasonable act or omission on the part of that party (May v Thomas (supra) at [34] and the cases cited therein).
In Wiltrading (WA) Pty Ltd v Lumley General Insurance & Ors [2005] WASCA 106 McLure JA stressed that authorities do not support the proposition that a late grant for leave to amend is invariably in the interests of the justice of the case. In that case her Honour was critical of a common practice of applying for late amendments of pleadings and stressed the importance of filing an affidavit in support of such an application explaining the delay and raising the proposed defence (Wiltrading (supra) at [92]).
In this case there had been correspondence between the plaintiff and the defendants' solicitors prior to the appeal and the plaintiff had made a number of objections to the proposed amendments. The defendants on the morning of the appeal made further amendments and filed a minute of further re‑amended defence and then in the course of the appeal made two further amendments to that document.
There was no objection by the plaintiff to the amendment to par 5 and the defendants did not pursue their amendment to par 10. When one considers the nature of the amendments to par 8A – 8H it is seen that the defendants are seeking to plead an estoppel by representation. In short, they say that the plaintiff is estopped from denying that the terms and conditions on either Rojo (WA) Pty Ltd or the defendants' standard print forms of invoices form part of the contract for carriage of goods by either of those parties whom, it is said, used standard forms of invoices over a period of time spanning from approximately July 1997 to August 2001. It is said that the plaintiff did not indicate to either of those entities that it did not accept those terms and conditions leaving those parties to assume that the plaintiff accepted them. Thereby the plaintiff induced or intended them to act on that false assumption which was relied upon by them to their detriment. Accordingly in those circumstances the defendants say it would be unconscionable to permit the plaintiff to deny the terms in the standard printed forms of invoices and thus the plaintiff is estopped from relying on such a plea.
As to the prejudice, the plaintiff states that the proposed amendment to par 8A – 8H result in the state of mind of the defendants becoming a relevant issue and there is not sufficient time for an application for leave to interrogate to be made and due to the closeness of the trial date such application would be unlikely to succeed. The plaintiff does have sufficient time to make an application for leave to interrogate if he wishes and if it appears to the judicial officer that in light of the amendments such interrogatory is appropriate I have no doubt that the leave will be granted.
The plaintiff also validly points out that the matter is listed for trial and that trial preparation is interrupted by this type of application.
It really seems to me that at the end of the day the proposed amendments refer directly to terms and conditions of invoices and transport services provided by either Rojo or the defendants for a period from 1997 to 2001 and these invoices are referred to and pleaded in par 6 of the current defence. It seems to me that there is no prejudice and the amendment does allow the court to decide on all matters in issue between the parties and that no injustice is caused to the plaintiff by the amendments.
As indicated earlier the objections made to the proposed amendments by the plaintiff prior to the appeal have been addressed by the defendant making further amendments.
At the end of the day I consider the re‑amended defence, as amended on 23 January 2009, does fulfil the basic functions of a pleading to identifying the issues to be determined in the case and apprise the other party to the proceedings of the case they have to meet.
As the Chief Justice stated in Barclay Mowlen Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82 at [7]:
"… provided a pleading fulfils a basic function of identifying the issues, disclosing an arguable cause of action or defence, as the case may be and apprising parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in and derived from a very different case management environment."
Accordingly, I do allow the amendment.
Accordingly, the orders that I make are as follows:
1.The defendants have leave to amend their defence in terms of the minute of further re‑amended defence filed on 23 January 2009, as further amended at the hearing of the appeal on 23 January 2009.
2.The defendants file a copy of the minute of re‑amended defence referred to in par 1 by 4 pm Tuesday, 27 January 2009.
3.The plaintiff have liberty to file a reply within 21 days.
4.The defendants pay the plaintiff's costs of the appeal and the costs thrown away by reason of the amendment.