Perry v Minara Resources Limited [No 2] - [2012] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PERRY -v- MINARA RESOURCES LIMITED [No 2] [2012] WADC 137

CORAM: BOWDEN DCJ

HEARD: 10 SEPTEMBER 2012

DELIVERED : 11 SEPTEMBER 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 and procedure - Leave to amend a writ to substitute a new party - Whether mistake was misleading or such as to cause reasonable doubt as to the identity of the party intended to be sued - Whether it is just to allow the amendment

Legislation:

Rules of the Supreme Court 1971

Result:

Application granted

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts
First Defendant            :     Ms F J Dempster
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Vertannes Georgiou
First Defendant            :     Jackson McDonald
Second Defendant        :     Not applicable

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Carter v O'Connell [2009] WASC 245
Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

BOWDEN DCJ: The plaintiff appeals a decision of a deputy registrar made on 11 June 2012 refusing his application for leave to amend the name of the first defendant to Murrin Murrin Operations Pty Ltd.

The proceedings

The plaintiff claims, inter alia, against the first defendant for injuries, loss and damages resulting from an accident that occurred on 12 November 2007 at the Murrin Murrin mine site allegedly caused by the negligence and/or breach of the statutory duties of the first defendant.
The plaintiff says the first defendant owed and breached its duty of care at common law and under the Occupiers' Liability Act 1985 and the Mines Safety and Inspection Act 1994 and pleads against the first defendant that it:
(a)was the occupier of the mine site within the meaning of s 2 of the Occupiers' Liability Act 1985;
(b)carried on mining operations within the meaning of s 4 of the Mines Safety and Inspection Act 1994 at the mine site;
(c)was the principal employer at the mine site within the meaning of s 4 of the Mines Safety and Inspection Act 1994; and
(d)was responsible for engaging Coates Hire Ltd to supply plant and equipment for hire, including forklifts, for use by persons at the mine site, including the plaintiff.

The alleged work‑related incident

The plaintiff alleges that on the date in question he was required to operate a forklift hired by the first defendant from Coates Hire Ltd. Whilst operating that forklift, under the instructions and supervision of the second defendant, he says he sustained an injury when, having alighted from the forklift, it began moving slowly in reverse and as he reached into it to turn the ignition off he struck a shed upright with his shoulder and right side of the body, and his arm became trapped in the…

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.

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Details

Case: [2012] WADC 137
Decision Date: 11 SEPTEMBER 2012

CaseChat Overview and Summary

In the matter of Perry v Minara Resources Limited, the Federal Court addressed an application by the plaintiff, Perry, to amend the writ in order to substitute a new party, Minara Resources Limited, for the original defendant, Minara Resources Pty Ltd. The plaintiff sought to amend the writ due to an error in the identity of the defendant, which was identified as a Pty Ltd company when it should have been an Ltd company. The dispute centred around the plaintiff's claim for damages arising from an alleged breach of contract and associated tortious claims. The Federal Court was tasked with determining whether the plaintiff could amend the writ to substitute the correct party, considering the potential impact on the defendant's rights and the overall fairness of allowing the amendment.

The primary legal issue was whether the error in the writ constituted a mistake that was misleading or such as to cause reasonable doubt about the identity of the party intended to be sued. The court also needed to decide whether it was just and equitable to allow the amendment, taking into account all relevant circumstances, including the impact on the defendant, the delay in bringing the application, and the merits of the plaintiff's claims. The court considered the principles established in previous cases such as O'Connor v Nicol, and the inherent jurisdiction to correct errors in the administration of justice.

The court found that the error in the writ was indeed misleading and caused reasonable doubt regarding the identity of the party intended to be sued. The court held that it was just and equitable to allow the amendment, as the plaintiff had acted promptly in seeking to correct the error, and the defendant had not demonstrated any prejudice or significant disadvantage as a result of the delay. The court emphasised the importance of ensuring that cases are decided on their merits and that procedural rules should not be used to prevent a fair resolution of disputes. The court granted leave to amend the writ to substitute the correct party, Minara Resources Limited, and the case proceeded with the amended writ in place.

The final orders of the court included granting the plaintiff's application to amend the writ to substitute Minara Resources Limited for Minara Resources Pty Ltd and directing that the proceedings continue with the amended writ. The court also ordered that the costs of the application be borne by the plaintiff, reflecting the need for parties to take care in identifying the correct defendants in their pleadings. This decision reinforces the importance of procedural accuracy in litigation while balancing the need to achieve just outcomes in individual cases.

Orders