Preitz v PGQW Pty Ltd (Formerly Boxline Industries Pty Ltd) - [2025] WADC 70

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…

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: [2025] WADC 70
Decision Date: 3 OCTOBER 2025

CaseChat Overview and Summary

In the matter of Preitz v PGQW Pty Ltd (Formerly Boxline Industries Pty Ltd, the plaintiff sought to amend its defence in third party proceedings. The court was required to determine whether the plaintiff could amend its defence, considering the principles governing such amendments and whether the proposed changes would cause any prejudice to the defendant, PGQW Pty Ltd. The plaintiff also argued that the application should not be dismissed for non-compliance with the rules of court, and that leave should be granted in the interests of justice.

The court examined the principles that govern amendments to pleadings in third party proceedings, recognising that the ultimate question is always what is in the interests of justice in the specific circumstances of the case. The court noted that the need for the plaintiff to have leave to amend its defence arose before the trial date, due to the operation of certain rules and the filing of pleadings certificates. The court also considered the minor delay in bringing the application and the fact that the plaintiff had sought an extension to file its initial defence but was refused. The court acknowledged that the plaintiff had acted promptly in bringing the application for leave to amend once it became necessary.

The court concluded that, despite the minor delay, the application should be granted in the interests of justice. The court found that the proposed amendment did not cause any significant prejudice to the defendant, and that granting leave would not interfere with the fair administration of justice. The court emphasised that the principles of justice and fairness should guide the decision, and that the application should not be dismissed solely on the basis of non-compliance with procedural rules if justice so requires.

The court granted the plaintiff leave to amend its defence in the third party proceedings, allowing the proposed changes to be incorporated. The court's decision was based on a careful consideration of the principles of justice and fairness, and the specific circumstances of the case. The defendant's opposition to the application was unsuccessful, and the plaintiff was permitted to proceed with the amended defence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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]. 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.