Perry v Minara Resources Limited - [2012] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PERRY -v- MINARA RESOURCES LIMITED [2012] WADC 80

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 13 MARCH 2012

DELIVERED : 11 JUNE 2012

FILE NO/S: CIV 1441 of 2010

BETWEEN: TAI PHILIP PERRY
Plaintiff
AND
MINARA RESOURCES LIMITED
First Defendant
EUREKA MINE CONSTRUCTIONS PTY LTD
Second Defendant

Catchwords:

Practice - Practice under the Rules of Supreme Court of Western Australia 1971 - Application for leave to amend writ - O 21 r 5 - Turns on its facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr R Cywicki
First Defendant            :     Ms K Dempster
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Vertannes Georgiou
First Defendant            :     Jackson McDonald
Second Defendant        :     SRB Legal

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

Nil

DEPUTY REGISTRAR HARMAN: On 14 May 2010 the plaintiff commenced proceedings against two defendants. The parties have filed pleadings and I understand, given discovery. The action has not yet been entered for trial.
According to the writ the plaintiff claims damages for injuries and loss sustained as a result of an accident that occurred on 12 November 2007 at the Murrin Murrin mine site caused by the negligence or breach of statutory duty of each of the defendants, their servants or agents.
At par 5 of the statement of claim the plaintiff alleges as follows:
At all material times the first defendant was:
5.1The occupier of the mine site within the meaning of Section 2 of the Occupier's Liability Act 1985 and/or;
5.2Carried on mining operations within the meaning of Section 4 of the Mines Safety and Inspection Act 1994 at the mine site;
5.3The principal employer at the mine site within the meaning of Section 4 of the Mines Safety and Inspection Act 1994; and
5.4Responsible for engaging Coates Hire Limited to supply plant and equipment for hire including forklifts for use by persons at the mine site including the Plaintiff.
At pars 6 and 7 he draws upon pars 5.1 and 5.4 to found an allegation that the defendant owed the plaintiff a duty of care and upon par 5.3 to establish in the defendant a duty to not expose the plaintiff to hazards.
Against the second defendant the plaintiff alleges that he had been the subject of agreement between it and a third party by which his labour would be provided to the second defendant, under which he performed work at the mine site. He alleges that he was owed the same duty of care as the second defendant would have owed to an employee.
According to the terms of the application filed on 15 September 2011 the plaintiff seeks to amend the name of the first defendant to Murrin Murrin Operations Pty Ltd. He offers to pay the defendants' costs and any costs thrown away.
Order 21 r 5 provides:
(1)… the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in sub‑rule (3) … is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that rule if it thinks it just to do so.
(3)An amendment to correct the name of a party may be allowed under sub rule (2) notwithstanding that it is alleged that the effect of the amendment will be substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party … intended to be sued.
I take it that by the application the plaintiff seeks to amend the writ to name the first defendant as Murrin Murrin Operations Pty Ltd. It is for the plaintiff to persuade the court that it is appropriate to make the order sought.
As the plaintiff does not propose anything that would be adverse to the interests of either defendant, in putting the application he can be taken as having reflected on the proposition that in all likelihood it would be heard ex parte. In my opinion it is reasonable to consider that if the plaintiff intended to amend either the indorsement or the pleading he would have provided evidence. As he has not done so I take it that the causes of action and pleadings against the first defendant would remain the same. It also follows that the plaintiff would have appreciated that at the hearing hearsay would not be admitted. To labour one feature of that point, to simply identify and annex a document to an affidavit serves no useful end.
It transpires that there must be considerations that inform the interests of the first defendant sufficient to bring it to the point of opposing the application. Although there is no reason to consider that it should justify its stance, there is nothing before me to suggest that it could do any better than be released upon recovery under the usual order for costs.
I have already noted the connections between pars 5.1, 5.3 and 5.4 of the statement of claim and the contentions that the defendant owed the plaintiff a duty of care alternatively a duty not to expose the plaintiff to hazards. There is no pleading to the effect that the allegation at par 5.2; that the defendant carried on mining operations at the mine site, would have any bearing upon either claim.
According to the affidavit of the plaintiff's solicitor the first defendant was nominated as such because he had instructions that it was the owner operator of the mine site. He goes on to state that it now appears that the proposed defendant was the appointed manager/operator of the mine site.
I am not satisfied that there is any evidence of the plaintiff's instructions. Furthermore no feature of the indorsement suggests that the plaintiff intended to claim against the owner operator of the mine site. Indeed there is no attribute of the first defendant expressed in the indorsement. The statement of claim was filed some six weeks after the writ. Neither of the allegations that support the allegation that the first defendant owed a duty of care draws upon it being the owner operator of the mine site. The same can be said of the allegation of the operation of the statutory duty. There is no evidentiary basis for me to evaluate whether the proposition that the first defendant was the owner operator of the mine site would inform any relevant allegation of material fact.
I take it that the statement of the solicitor that it now appears that the proposed defendant was the appointed manager/operator of the mine site was intended to convey that at the relevant time the proposed defendant was the manager or operator at the mine site. Putting aside the fact that the statement does not put any evidence, in my opinion, it is no more apparent how those attributions would connect the proposed defendant with the relevant allegations in the pleading any more than the attribution or attributions owner operator connect the first defendant with those allegations. That said, in putting the case against the first defendant the plaintiff did not require a grant of leave.
The first defendant's solicitor deposes that after filing the defence her firm advised the plaintiff by letter dated 17 August 2010 that the proposed defendant was the appointed manager/operator of the mine site and invited the plaintiff to consider substitution/amendment of the first defendant. She also deposes that her firm acts for the proposed defendant. It is open to consider that the first defendant's solicitor concluded that the plaintiff had intended to name as first defendant the entity that was the manager/operator of the mine site. How and why she came to that conclusion I am not in a position to judge.
The fundamental question raised by the application is whether the evidence reveals a mistake amenable to remediation under r 5(3). In my opinion the fundamental response is that there is no datum by which any mistake would be revealed. On an assessment of the evidence in the affidavits, the indorsement and the pleading, the party that the plaintiff intended to name the first defendant was the first defendant.
My assessment that there is no evidence to justify the change proposed by the plaintiff informs another consideration that would bear upon the prospects of his success. It is at least not irrelevant that the plaintiff's success would expose the new defendant to the cost of services provided in any defence of the claims. It is appropriate to reflect on the fact that there is no basis upon which the court could be satisfied that the plaintiff has any case against the proposed defendant at all.
Despite the evidence of the relationship between the proposed defendant and its solicitor, as it is not a party to the action it has not had the opportunity to be heard on the question of leave. However in my opinion the court ought to consider that it would be disadvantaged by the plaintiff's proposal. It is neither possible nor is it appropriate to evaluate the extent its actual disadvantage. I will do no more than state two matters that could not be ignored. The first is established by the fact that by imposing a limitation period of three years on the commencement of an action for damages for loss arising from personal injury the legislature intended to confer on a defendant named in a writ issued beyond that period the opportunity to claim immunity. The second is established by the extent to which the Legislature's motivation in so enacting was founded upon the proposition that delay generates injustice.
On an application in which the only real contest is around the point of relative disadvantage, the task before the applicant would be to satisfy the court that if he failed, he would have a greater claim to injustice than would the proposed defendant if he succeeded. A broader assessment of disadvantage is complicated by the fact that regardless of the result in the application the plaintiff has a case against the second defendant. I should add that as I am in the dark as to the interest of the first defendant in opposing the application I do not know whether in the event of failure in the application the plaintiff would discontinue against the first defendant.
Should the applicant be successful the disadvantage to the proposed defendant appears to be more straight forward.
The crux of the first defendant’s opposition was that the application should fail because it was made so long after the plaintiff was put on notice of its contention regarding the proposed defendant by the letter dated 17 August 2010 to which I have referred. The application was made on 15 September 2011.
The evidence relating to the period between those dates is sparse. Initially the plaintiff responded by putting questions to the defendant and the Department of Mines and Petroleum. Between the date of receipt of the response of the Department dated 21 October 2010 and the date of receipt of a letter from DLA Piper dated 2 September 2011, the plaintiff's solicitor did not carry out further relevant investigations as he became distracted by a dispute with the defendants regarding how the accident had occurred.
Any analysis of the events within that period is complicated by the lack of evidence as to the plaintiff's instructions at the point of issuing the writ. It is also unclear whether the plaintiff left the question raised by the defendant to be resolved by his solicitor. There is no basis upon which to consider that the plaintiff had been aware of the passing of the limitation period and the significance of that event in light of either the defence or the defendant's solicitors' letter.
I am conscious that there is some attraction to the proposition that whatever the reason for the plaintiff's failure to do so, the delay in giving attention to the question raised by the defendant would itself justify dismissal of the application. Some substantial momentum to that end is provided by the proposition that at least prima facie the content of the letter suggests that it would be supported by documentary evidence, which if not then discovered might then have been the subject of an application.
My assessment of the case put in the application is that it has no substantial merits. I am not persuaded that the plaintiff has discharged the onus.