Preitz v PGQW Pty Ltd (Formerly Boxline Industries Pty Ltd)
[2025] WADC 70
•3 OCTOBER 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: PREITZ -v- PGQW PTY LTD (FORMERLY BOXLINE INDUSTRIES PTY LTD) [2025] WADC 70
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 18 SEPTEMBER 2025
DELIVERED : 3 OCTOBER 2025
FILE NO/S: CIV 3572 of 2021
BETWEEN: JOSHUA DENNIS PREITZ
Plaintiff
AND
PGQW PTY LTD (FORMERLY BOXLINE INDUSTRIES PTY LTD)
Defendant
AND
BRADLEY SHACKLETON and LARELLE SHACKLETON (A PARTNERSHIP)
Third Party
AND
AAI LTD t/as GIO
First Fourth Party
AND
IAG LTD t/as CGU INSURANCE
Second Fourth Party
Catchwords:
Practice and procedure - Application to amend defence in third party proceedings - Principles to be applied - Whether proposed amendment embarrassing - Whether application should be dismissed for non-compliance with rules of court - Whether leave should be granted in interests of justice
Legislation:
District Court Rules 2005 (WA), r 6, r 22, r 43(3A), r 48A
Law Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 21 r 3, O 21 r 5, O 59 r 3(3)
Result:
Application to amend allowed
Representation:
Counsel:
| Plaintiff | : | Not applicable |
| Defendant | : | Mr J J Sheldrick |
| Third Party | : | Mr R R Cywicki |
| First Fourth Party | : | Not applicable |
| Second Fourth Party | : | Not applicable |
Solicitors:
| Plaintiff | : | Stephen Browne Lawyers (South Perth) |
| Defendant | : | Moray & Agnew Lawyers |
| Third Party | : | DWL Legal |
| First Fourth Party | : | Moray & Agnew Lawyers |
| Second Fourth Party | : | McCabes Lawyers |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Argosy Strata Plan SP 21513 v CHU Underwriting Agencies Pty Ltd [No 3] [2015] WADC 37
Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Hooper v Cockles Pty Ltd [2025] WASCA 143
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171
Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442
Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555
Mann v Bankwest - A Division of Commonwealth Bank of Australia [2020] WASCA 35
Munting v Pollard [2024] TASSC 30
Reliance Capital Pty Ltd v Caratti [No 6] [2024] WASC 21
Voli v Inglewood Shire Council (1963) 110 CLR 74
Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212
PRINCIPAL REGISTRAR MCGIVERN:
This decision concerns the application of the third party, Bradley Shackleton and Larelle Shackleton (a partnership) (the Partnership) for leave to amend its defence in the third party proceedings (TPP).
The application is opposed by the defendant (PGQW)[1] on the grounds that:
(a)two of the proposed amendments are defective or embarrassing; and
(b)the application itself is defective by reason of the Partnership's non‑compliance with the relevant rules of court (procedural objections).
[1] In these reasons, PGQW refers to the defendant and its predecessor, Boxline Industries Pty Ltd.
In dealing with the application, I will consider the following issues:
(a)What are the circumstances of this application?
(b)What rules and principles apply?
(c)Should leave to amend be given and, if so, on what terms? More specifically:
(i)What is the extent of the delay?
(ii)Are the procedural objections made out?
(iii)Are the disputed amendments defective or embarrassing?
(iv)Is it in the interests of justice that leave be granted?
For the reasons that follow, the application is allowed on terms.
What are the circumstances of this application?
As has recently been observed, an application to amend a pleading is not assessed in a vacuum:[2] it is necessary to consider the individual circumstances of each case, including in relation to the relevant procedural history.[3]
[2] Reliance Capital Pty Ltd v Caratti [No 6] [2024] WASC 21 (Reliance Capital) [3].
[3] Mann v Bankwest - A Division of Commonwealth Bank of Australia [2020] WASCA 35 (Mann) [80].
In this case, the application is brought in the context of an action in which the plaintiff, Mr Preitz, claims that in the course of carrying out work as a sheet metal worker on 21 November 2018, his clothes caught fire when he turned on a welding torch, resulting in personal injury and mental harm.
On 20 September 2021, Mr Preitz commenced:
(a)this action against the defendant, PGQW, as his employer at the time of the incident; and
(b)another action[4] against the Partnership which, he claimed, was responsible for his 'supervision, management and occupational, health and safety' in the course of his employment with PGQW at the time of the incident.
[4] District Court No. CIV 3573 of 2021.
Mr Preitz's action against the Partnership has effectively stalled, before any exchange of pleadings, while the plaintiff has advanced his claim against PGQW.[5]
[5] Affidavit of Alison Frances Hagan, made on 9 September 2025 (Second Hagan Affidavit), par 17; third party's outline of submissions filed 11 September 2025 (TP Submissions), pars 7 - 8.
PGQW has admitted that, as Mr Preitz's employer, it breached the duty of care that it owed to him, resulting in Mr Preitz suffering burn injuries.[6]
[6] Defendant's amended defence filed 18 March 2022, pars 2.9 - 2.11.
In April 2025, PGQW was granted leave to join, and joined, the Partnership as a third party to this action.[7]
TPP pleadings
[7] Service of the third party notice was effected on 28 April 2025: Affidavit of Alison Frances Hagan made on 16 July 2025 (First Hagan Affidavit), par 24.
PGQW filed a statement of claim in the TPP on 15 May 2025. In broad terms, it alleges against the Partnership that:
(a)at all material times, there was a contract of services between PGQW and the Partnership pursuant to which Bradley Shackleton was to provide his services as a manager of PGQW (Management Contract);
(b)the Management Contract was partly written, partly oral and partly to be inferred;
(c)by reason of the Management Contract, Mr Shackleton owed to PGQW's employees (including Mr Preitz):
(i)a common law duty of care to discharge his obligations as manager competently so as not to expose them to unnecessary risk of injury; and
(ii)a statutory duty of care[8] to take such practicable measures as to ensure that persons at the workplace were not exposed to hazards;
(d)Mr Shackleton breached those duties, including by failing to:
(i)implement safe systems and procedures of work in connection with the use of flammable substances and welding;
(ii)adequately train and supervise Mr Preitz in connection with the use of flammable substances and welding; and
(iii)train and instruct workers on the location of fire extinguishers;
and
(e)if PGQW is liable in damages to Mr Preitz then the Partnership is liable to indemnify PGQW in respect of those damages or, alternatively, to contribute to them as a joint tortfeasor.[9]
[8] Pursuant to s 22 of the Occupational Safety and Health Act 1984 (WA) (ceased) (OSH Act).
[9] Pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (Contribution Act).
In summary, by its defence filed in the TPP on 9 June 2025, the Partnership:
(a)denies the Management Contract asserted against it;
(b)pleads that from or about 1998, Mr Shackleton was employed by PGQW;
(c)says that in about 2004, the principal of PGQW proposed that the Partnership be created and that the Partnership then enter into a profit share agreement with PGQW;
(d)says that despite the Partnership being created and occasionally rendering invoices to PGQW:
(i)the Partnership never received a share of profit from PGQW;
(ii)Mr Shackleton continued to work for PGQW as an employee; and
(iii)PGQW did not relinquish control or supervision to Mr Shackleton or the Partnership;
(e)pleads that PGQW owed its employees duties pertaining to the health and safety and processes and procedures in the operation of its business, and did not delegate those duties to Mr Shackleton; and
(f)says that PGQW is not entitled to be indemnified by, or to claim a contribution from, the Partnership.
On 16 June 2025, PGQW filed a reply to the Partnership's denial of the Management Contract in terms that Mr Shackleton admitted he was the manager of PGQW when, in 2021, he entered a plea of guilty to a charge under s 55 of the OSH Act.
Proposed amendments
By the present application, the Partnership seeks leave to amend its defence in the TPP.
The proposed amendments are set out in a minute of proposed amended defence filed on 19 August 2025 (Minute), as to which:
(a)subpars 4.5.8 and 4.5.9 contain minor proposed amendments, which are not contentious[10] and are not addressed in these reasons;
[10] Subparagraphs 4.5.8 and 4.5.9 of the Minute: Defendant's outline of submissions filed 11 September 2025 (Defendant's Submissions), par 8.
(b)the substantive proposed amendments are contained in pars 8.7, 8.8, 10, 11 and 12 of the Minute;
(c)subpar 8.7 is to the effect that PGQW held Mr Shackleton out as its manager when it knew or ought to have known that he had no training, qualifications or experience in that role (and particulars of the alleged knowledge are given);
(d)subpar 8.8 is to the effect that PGQW knew that Mr Shackleton had no training, qualifications or experience in occupational health and safety role (and particulars of the alleged knowledge are given);
(e)par 10 is to the effect that:
(i)at all material times, Mr Shackleton acted on the instructions of PGQW;
(ii)at all material times, it was an implied term of the contract between PGQW and Mr Shackleton that PGQW would indemnify Mr Shackleton for any negligent acts in carrying out those instructions; and
(iii)in the circumstances, pursuant to s 7(1)(c) and s 7(2) of the Contribution Act, PGQW is precluded from recovering from the Partnership and/or the Partnership should be exempt from making any contribution;
(f)par 11 is to the effect that, if Mr Shackleton was an employee of PGQW then he is entitled to be indemnified under a workers' compensation and employer's liability policy held by PGQW;
(g)par 12 is to the effect that, if Mr Shackleton was not an employee of, but was a manager of, PGQW, then the Partnership is entitled to be indemnified under a 'Business Pack Policy' held by PGQW; and
(h)PGQW has raised objection to the amendments proposed in pars 8.7 and 10, but is otherwise silent as to the substance of the proposed amendments.
What rules and principles apply?
The Rules of the Supreme Court 1971 (WA) (RSC) apply to cases in this court, subject to any inconsistency with the District Court Rules 2005 (WA) (DCR).[11]
[11] DCR r 6.
Although RSC O 21 r 3 provides that a party may, without leave, amend any of its pleadings up to seven weeks before the start of a trial, DCR r 48A(2) modifies the operation of RSC O 21, such that leave to amend a pleading is required after the earliest date on which:
(a)a certificate is tendered under DCR r 43(3A)(a)[12] on behalf of any party in the case; or
(b)the case is listed for trial.
[12] Being a certificate that the legal practitioner who will appear at trial for the party has reviewed the pleadings and is satisfied that they adequately define all the issues of fact or law that the party contends will need to be determined at trial.
Pursuant to DCR r 48A(3), an application for leave to amend a pleading must be accompanied by an affidavit of the party (or the party's legal representative) making the application, or the legal practitioner representing the party, that sets out the facts:
(a)that have arisen since the time expired for amending a pleading without the court's leave; and
(b)that ground the party's or the legal practitioner's argument that the amendment is necessary.
RSC O 21 r 5 provides that, if leave is required,[13] the court may at any stage of the proceedings, allow any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the court may direct.
[13] And subject to RSC O 18 r 6, r 7 and r 8 and O 20 r 19(2) - r 19 (5).
Each of the above rules of court must be construed and applied in a manner that best ensures the attainment of the objectives of contemporary case management and the elimination of delay.[14] Those objectives:
(a)impose responsibilities, not just on the court, but on legal practitioners to assist the court so as best to ensure the attainment of the objects in the conduct of litigation;[15] and
(b)are relevant to the exercise of discretion, in the interests of justice, to grant leave to amend pleadings under RSC O 21 r 5.[16]
[14] RSC O 1 r 4A - r 4B.
[15] Hooper v Cockles Pty Ltd [2025] WASCA 143 [14] - [16].
[16] Mann [80]; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon Risk Services) [111].
In Aon Risk Services, the High Court identified a range of considerations relevant to the exercise of the court's discretion in this context, which were summarised and applied in Hightime Investments Pty Ltd v Lungan [No 2],[17] as follows:
[17] Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 (Hightime) [52].
(a)the effect of an amendment on the court and on other litigants is relevant;
(b)there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(c)justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account;
(d)a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(e)the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay - this applies to natural persons and other litigants;
(f)the nature and importance of the amendment to the party amending must be taken into account;
(g)attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(h)the point in the litigation relative to the trial may be an important consideration;
(i)where a discretion is sought to be exercised in favour of a party, an explanation will be called for;
(j)the point can be reached where a party has had a sufficient opportunity to put its case.
Principles going to the adequacy of a proposed pleading were usefully summarised in Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) as follows:[18]
(a)a court will not grant leave to amend a pleading into a form which is liable to be struck out - that is, where it is vague, ambiguous or pleaded at too great a level of generality so as to leave the other party in doubt as to how to respond to the pleading;
(b)however, the approach to be taken to objections to proposed pleadings requires a degree of flexibility and must be directed to the attainment of the objectives set out in RSC O 1 r 4B; and
(c)while it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleading is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of pleading.
[18] Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24 (Frank Jasper) [11] ‑ [13], with authorities cited therein.
Those summaries are not exhaustive. The ultimate question must always be what is in the interests of justice in the circumstances of the case.[19]
[19] Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 [19].
Should leave to amend be given and, if so, on what terms?
What is the extent of the delay?
I commence by noting that, although the action was listed for trial on 7 July 2025, the need for the Partnership to have leave to amend its defence arose before that date.
That is because of the operation of DCR r 48A(2)(a) and that, in this case, prior to the listing conference, pleadings certificates were filed. More specifically:
(a)although the certificate of the plaintiff's counsel was filed on 30 June 2025, that certificate is expressly confined to the pleadings as between the plaintiff and the defendant;
(b)on 4 July 2025, counsel for PGQW filed a certificate in terms of DCR r 43(3A)(a); and
(c)accordingly, pursuant to DCR r 48A(3), I find that leave to amend any pleadings in the TPP was required after 4 July 2025.
To the extent that there has been any 'delay' on the part of the Partnership, it is very minor because:
(a)although the action has been on foot since 2021, the TPP have only been on foot since 28 April 2025;
(b)the only party opposing the application is PGQW, and the plaintiff has made no submissions in relation to delay, and so the issue of delay is properly assessed in the context of the TPP;
(c)PGQW filed and served a statement of claim in the TPP on 15 May 2025 and the Partnership, having sought and been refused an extension of time to file a defence,[20] filed its defence on 9 June 2025;
(d)the need for leave to amend arose on 4 July 2025 upon the filing by PGQW of a pleadings certificate; and
(e)the application was brought on 19 August 2025 (being around two months from the date of the defence and a little over a month from the date that leave became necessary).
[20] First Hagan Affidavit, pars 13 - 14.
The uncontested affidavit evidence that:
(a)on 27 May 2025 the Partnership's lawyers wrote to PGQW's lawyers seeking a modest extension of time (from 29 May to 20 June 2025) within which to file a defence, citing various steps that it sought to take; and
(b)on 29 May 2025, PGQW's lawyers responded in terms that that request was declined on the basis that:
(i)the Partnership had 'been on notice' for some time and had consented to third party directions (which included the time for filing a defence); and
(ii)the plaintiff's solicitors had resisted any delay;
(c)although the action against the Partnership had been commenced in 2021, there were no pleadings or discovery in those proceedings and the Partnership was not copied into the pleadings or discovered documents in the present proceedings until it was joined;[21]
(d)PGQW's list of discoverable documents was served on 7 July 2025 and inspected on 28 July 2025;[22]
(e)the Partnership's lawyers took further instructions from Mr Shackleton, related to the proposed amendments, on 10 July 2025.[23]
[21] Second Hagan Affidavit, pars 13, 17, 25 ‑ 26 and 35.
[22] Second Hagan Affidavit, pars 34 and 39.
[23] Second Hagan Affidavit, pars 36 - 38.
In those circumstances, I do not consider that there has been any meaningful delay in bringing the application, or an absence of explanation for doing so.
Are the procedural objections made out?
PGQW contends that the application is defective because the Partnership has not complied with the relevant rules of court in that:
(a)contrary to DCR r 22(1) - r 22(2), the Partnership did not confer and has not filed a certificate of conferral in relation to the application;[24]
(b)the affidavit evidence does not state the grounds for the application 'as required by RSC O 59 r 3(3)'[25] - although I note that, in the present context, that requirement is contained in DCR r 48A(3)(b).
Is the affidavit evidence non-compliant?
[24] Defendant's submissions, par 7(a) - 7(b).
[25] Defendant's submissions, par 7(c).
In support of the application, three affidavits of the legal representatives of the Partnership have been filed.[26]
[26] In support of the application, the Partnership has filed the First Hagan Affidavit, the Second Hagan Affidavit and the affidavit of Natasha Simone Barton made on 19 August 2025 (Barton Affidavit).
The thrust of the affidavit evidence is that:
(a)the Partnership was joined relatively recently to the action and, prior to that time, had not been served with the plaintiff's statement of claim and PGQW's amended defence in the action;
(b)at the time of filing its defence, the Partnership:
(i)had requested copies of insurance policies held by PGQW at the time of the incident, which requests had been refused;
(ii)had requested an extension of time to file its defence, which request was refused by PGQW;
(iii)filed a defence based on the evidence available to it at that time; and
(iv)had not inspected the documents listed in PGQW's list of documents (which was served on 9 July 2025);
(c)the Partnership has now inspected the documents listed in PGQW's list of documents, a limited number of which were directly relevant to the TPP; and
(d)the Partnership has made a claim of indemnity under policies of insurance held by PGQW at the time of the incident.
That affidavit evidence extends, as required, to matters that occurred on and after 4 July 2025.[27]
[27] First Hagan Affidavit, pars 18 - 24; Second Hagan Affidavit pars 34 - 40.
Further, although not explicitly identified in the affidavits, the grounds for the application appear with reasonable clarity when the affidavit evidence is read with the Minute. That is, that the Partnership:
(a)seeks to raise a defence in terms of pars 11 and 12 of the Minute, but did not have the relevant policies of insurance at the date of filing its defence; and
(b)seeks to raise a defence as to the nature of Mr Shackleton's role with PGQW, and the implications of the asserted nature of that role on the respective liability of the parties in the TPP, but did not (and does not) have all the documents relevant to that issue at the time of filing the defence.
For the reasons above, I am not satisfied that the affidavit evidence is so deficient as to warrant dismissing the application on that ground.
Has there been a failure to confer?
It is uncontentious that the Partnership did not file a certificate of conferral in relation to the application, and has not therefore complied with DCR r 22(1).
I have regard to the following considerations in dealing with the consequences that should flow:
(a)PGQW was on notice from 27 May 2025[28] that the Partnership considered it needed more time to file a defence because it sought to:
(i)seek further and better particulars of the statement of claim in the TPP;
(ii)make further enquiries about the policies of insurance held by PGQW; and
(iii)issue fourth party notices (against the relevant insurers);
(b)at the listing conference on 7 July 2025, and in a subsequent pleadings certificate filed on 16 July 2025, the Partnership again raised the issue of amending its defence. Accordingly, PGQW could not be taken by surprise by the application, although it was also not given the opportunity to consider the particular amendments before the application was brought; and
(c)given PGQW's attitude to extending time to file a defence (in circumstances where the basis for the request was articulated and where the Partnership had only recently been joined), I do not consider that compliance would have averted the need to make the application.[29]
[28] First Hagan affidavit, pars 13 - 14.
[29] See, for example, Argosy Strata Plan SP 21513 v CHU Underwriting Agencies Pty Ltd [No 3] [2015] WADC 37.
On balance, although the requirement for conferral is important and should not generally be (and is not) waived, I consider that the objectives set out in RSC O 1 r 4B do not favour dismissing the application on this ground alone.
Are the disputed amendments defective or embarrassing?
PGQW has raised objections only to the amendments contained in pars 8.7 and 10 of the Minute (disputed amendments).[30]
Paragraph 8.7
[30] Defendant's submissions, pars 9 - 11; ts 12 - ts 15.
The proposed amendment is in terms that:
The Defendant held Bradley Shackleton out as the Defendant's Manager when at all material times the Defendant knew or ought to have known that Bradley Shackleton had no training, qualifications or experience in that role.
PGQW contends that par 8.7 is embarrassing because it is:
(a)inconsistent with the Partnership's denial that Mr Shackleton was a manager; and
(b)unsupported by material facts.
In dealing with that objection, I observe that the proper basis for assessment is not whether the proposed amendment gives rise to a good defence; but rather, whether that it gives rise to a reasonably arguable defence,[31] that is not otherwise improper. I also direct myself to the principles summarised at [22].
[31] Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442 [39].
One reason that a proposed amendment might not be reasonably arguable is that it is inconsistent with the party's pleaded case.[32]
[32] See, for example, Reliance Capital [35].
I do not consider that the proposed amendment in par 8.7 of the Minute is inherently inconsistent with the Partnership's pleaded case.
The Partnership denies par 5 of the statement of claim in the TPP, which is in the following terms:
At all material times, there was a contract for services between the Defendant and the Third Party, the terms of which included that Mr Shackleton would provide his services as Manager of the Defendant in consideration for which the Defendant would pay the Third Party the fixed sum of $6,600 per fortnight including GST.
The effect of a denial of that plea is not a denial that Mr Shackleton was a manager, but rather a denial of the asserted basis upon which he performed any such role. Indeed, even if the Partnership did deny that Mr Shackleton was in fact a manager, such a plea is not inherently inconsistent with the contention that PGQW held him out as such.
Accordingly, I do not consider that the amendment proposed in par 8.7 of the Minute is embarrassing by reason of being inconsistent with par 3 of the defence.
The second limb of PGQW's objection is that the proposed plea is unsupported by material facts, and is a 'bald conclusion'.[33] There is some merit to this complaint although, in my view, the real deficiency is that the proposed plea is not particularised.
[33] ts 13.
A pleading that is conclusory is not always improper because a conclusion may be itself regarded as a material fact. Whether the deficiency is fatal is a question of degree and context.[34]
[34] Frank Jasper [16] - [17]; Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171, 173.
In this case, while particulars of PGQW's asserted knowledge are provided, there are no particulars of the assertion that PGQW 'held Bradley Shackleton out' as its manager.
In my view, the Partnership's case in this regard is sufficiently pleaded to enable PGQW to answer it, subject to the provision of particulars of the 'holding out' in par 8.7.
Accordingly, I would allow the amendment proposed in par 8.7 of the Minute, but in terms that require that particulars of the 'holding out' to be provided.
Paragraph 10
The proposed amendment is in terms that:
10. The Third Party further states that: -
10.1.At all material times Bradley Shackleton was acting on instructions from in the Defendant;
10.2.At all material times, at law, it was an implied term of the employment contract between the Defendant and Bradley Shackleton that the Defendant would indemnify Bradley Shackleton for any negligent acts which arose from carrying out those instructions;
10.3.Pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, the Defendant is precluded from recovering contribution from Bradley Shackleton or Larelle Shackleton in respect to any liability to the Plaintiff; and
10.4.Further and in the alternative, by reason of the matters pleaded in paragraphs 4 and 8 above, the court should exempt Bradley Shackleton and Larelle Shackleton from liability to make any contribution, pursuant to s 7(2) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.
PGQW object that par 10 is embarrassing because it is:
(a)vague and overly general; and
(b)does not disclose an arguable defence.
In oral submissions, these objections were directed more specifically to subpars 10.1 and 10.2.
The objection that par 10.1 is 'also a bald statement of conclusion'[35] is not, in my view, made out. Taking account of the principles outlined in [22] hereof, and reading the proposed amended defence as a whole, the case in this regard is discernible. The Partnership pleads a number of facts in pars 4 and 8 of the defence which go to the issue of whether Mr Shackleton could be said to have been acting on the instructions of PGQW.
[35] ts 13.
A key plank of PGQW's opposition to the application is that the implied term asserted in par 10.2 is not arguable at law, by reason of being 'contrary to long‑established authority'.[36]
[36] Defendant's Submissions par 10, citing Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555; Voli v Inglewood Shire Council (1963) 110 CLR 74, 100 and Munting v Pollard [2024] TASSC 30 [338].
In its submissions, the Partnership has pointed to various features that it says distinguish this case from the authorities relied upon by PGQW.[37]
[37] ts 8 - ts 9.
There is enough in those arguments for me to be satisfied that there is a triable issue in relation to the proposed defence.
Is it in the interests of justice to grant leave to amend?
Although each of the specific objections to the proposed amendments raised by PGQW are addressed above, it is important to return to the fundamental consideration: whether it is in the interests of justice to grant leave to amend. That question properly includes consideration of the overarching circumstances of the case and the context in which the application is brought.
The nature and importance of the proposed amendment to the applicant is relevant.[38]
[38] Hightime [52(f)].
In this case, proposed amendments go to the nature of the relationship between Mr Shackleton (and through him, the Partnership) and PGQW, and the implications of that relationship for:
(a)the respective responsibilities of PGQW and the Partnership for the safety of Mr Preitz; and
(b)PGQW's claim for indemnity or contribution in relation to its liability to Mr Preitz arising from its admitted breach of the duty it owed to him.
As has previously been observed,[39] the application of the key provisions of the Contribution Act are 'far from easy to understand'. The proposed pleadings go squarely to factors that the Partnership says should carry weight in this case.[40] In my view, and without forming any view of the strength of the case, the amendments give rise to an arguable case.
[39] Frank Jasper [15].
[40] Third party submissions, pars 20 - 26.
The proposed amendments raise matters that have significance for the scope of the evidence and arguments that may be put at trial. If leave is refused, the Partnership will lose the opportunity of having those parts of its defence, which I have found to be arguable, tried. The considerations supporting such an outcome would need to be weighty.
Although the avoidance of delay is an important factor, the nature and cause of any such delay and the surrounding circumstances ought to be considered.
In this case, it is of note that PGQW:
(a)has been a party to the action since 2021;
(b)has, throughout the proceedings, known of the identity and involvement of Mr Shackleton;
(c)filed its defence on 19 October 2021;
(d)some five months later, on 22 March 2022, filed an amended defence; and
(e)some three years after the action commenced, sought leave, and less than three months before the action was listed for trial, obtained leave, to join the Partnership as a third party on the basis that it was in the interests of justice that the issues between them be tried in the action.[41]
[41] That application was supported by the affidavit of Zan Bosman, filed on 28 November 2024, setting out the inquiries and investigations leading to the application.
By way of contrast, the Partnership had:
(a)at the time it brought the application, only been involved in the action for around three months;
(b)having been joined to the proceedings, but before having been served with the statement of claim in the TPP, consented to the third party directions; and
(c)following receipt of the statement of claim in the TPP, requested and was refused a three‑week extension of time within which to file its defence.
In the circumstances, the grounds upon which PGQW refused the Partnership's request for an extension of time within which to file a defence are difficult to understand because:
(a)the uncontested affidavit evidence is that the Partnership had not received the pleadings in the action before it was joined;
(b)although the Partnership knew of the action and the circumstances giving rise to it, that could not put it in a position to know the pleaded cases of the plaintiff and defendant in the action, let alone the case that would be put against it by PGQW;
(c)when the Partnership consented to the third party directions, it had not yet been served with the statement of claim in the TPP; and
(d)although the interests of the plaintiff in progressing the action are clearly relevant, it is difficult to see how the need to file an incomplete defence on 9 June 2025, and then make the present application to amend it, has assisted.
The identification by the Partnership of the need to better consider and respond to the case against it, made at an early stage in the TPP, is a significant factor. This is not a case where a party has had ample opportunity to file, and has filed, detailed pleadings and has then delayed taking steps to inform its position and meet the case against it.
The objectives set out in RSC O 1 r 4B are not directed to shutting a party out from the opportunity to properly consider and respond to the case against it. Rather, they are directed to achieving a sensible balance between the avoidance of delay and the efficiencies to be gained by having all issues properly ventilated before the court, including by granting modest extensions of time or leave to take steps, where the circumstances warrant it. That balance falls in favour of the application.
In my view, it is in the interests of justice to allow the application.
Conclusion
Given:
(a)my conclusions in relation to the disputed amendments; and
(b)the absence of particular objection having been raised as to the balance of the proposed amendments, and my conclusions in relation to the procedural objections,
I am satisfied that leave should be granted to amend the defence in terms of the Minute, subject to the requirement to provide particulars.[42]
[42] As set out in [49] - [51] hereof.
I will hear the parties as to the precise terms of the orders that should be made, including as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
6 OCTOBER 2025
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