Praetz v Sodexo Australia Pty Ltd - [2023] WADC 48

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   PRAETZ -v- SODEXO AUSTRALIA PTY LTD [2023] WADC 48
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   15 FEBRUARY 2023
DELIVERED          :   27 APRIL 2023
FILE NO/S:   CIV 3467 of 2019
BETWEEN:   JOSHUA JOHN PRAETZ
Plaintiff
AND
SODEXO AUSTRALIA PTY LTD
First Defendant
RIO TINTO LTD
Second Defendant

Catchwords:

Practice and procedure - Substitution of a party - Whether Rules of the Supreme Court 1971 (WA) O 21 r 5 is engaged - Whether mistake in naming the party - Whether just to allow amendment

Legislation:

Limitation Act 2005 (WA), s 14
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 18 r 6, O 18 r 8, O 21 r 5

Result:

Application allowed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
First Defendant	:	Ms C Horwood
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	DWL Legal
First Defendant	:	HWL Ebsworth (Perth)
Second Defendant	:	Not applicable

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

Alinta 2000 Ltd v Petko [2012] WASCA 258
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173
Brown v Jammal [1995] NSWCA 62
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139
Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810
Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 218
Lois Nominees Pty Ltd v Hill [2011] WASC 53
O'Rourke v Bonney Downs Pastoral Company Pty Ltd [2016] WADC 104
Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v American Home Assurance Co (1997) 18 WAR 516
Smith v High Energy Service Pty Ltd [2020] WADC 119

PRINCIPAL REGISTRAR MCGIVERN:

Introduction

This is the plaintiff's amended application for orders, pursuant to O 21 r 5 alternatively O 18 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC), amending his writ and statement of claim such as to substitute the named first defendant.[1]
[1] For ease of reference, in these reasons I will refer to the applicant as the plaintiff and the respondent as the first defendant, being their respective positions in the substantive action. In these reasons, except as otherwise provided, all references to rules are references to the RSC.
The action was commenced against the first and second defendants by a writ of summons issued on 10 September 2019. The plaintiff's statement of claim was filed separately the same day. The plaintiff's claim is that he sustained injuries on a mine site in Newman (Mine) when, on 4 September 2017 (Material Date), a bench seat (in the Mine's wet mess area) on which he was…

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: [2023] WADC 48
Decision Date

CaseChat Overview and Summary

The plaintiff, Joshua John Praetz, brought an application for leave to amend the writ and statement of claim in his action against Sodexo Australia Pty Ltd (the first defendant) and Rio Tinto Ltd (the second defendant). The plaintiff sought to substitute the first defendant with Sodexo Remote Sites Australia Pty Ltd (the Proposed Defendant). The plaintiff's claim is that he sustained injuries at a mine site in Newman on 4 September 2017 when a bench seat in the Mine's wet mess area collapsed. The plaintiff contends that the first defendant exercised control over the wet mess area and was responsible for the integrity of the bench seat. The plaintiff's application is brought under O 21 r 5 and, in the alternative, O 18 r 6 of the Rules of the Supreme Court 1971 (WA). The first defendant contends that it was not the proper defendant to the proceedings and that the application should be refused. The first defendant submitted that the plaintiff's error in naming it as the defendant was not a genuine mistake and, in any event, the plaintiff had delayed in bringing the application in circumstances where it had been notified of the error in February 2020. The first defendant argued that the Proposed Defendant would be prejudiced if the amendment was allowed because it would be deprived of the opportunity to investigate the incident and locate relevant witnesses. The court found that O 21 r 5 was properly engaged by the application because it was properly characterised as one to correct an error made by the plaintiff in naming the first defendant. The court found that the plaintiff had made a genuine mistake in naming the first defendant. The court found that, in the exercise of its discretion under O 21 r 5, it was just to allow the amendment. The court noted that, while the plaintiff had delayed in bringing the application, the Proposed Defendant had not been prejudiced because it had been aware of the proceedings and in a position to conduct its own investigations since February 2020. The application was allowed.

Orders