Rawiri v Scholten - [2012] WADC 180

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RAWIRI -v- SCHOLTEN [2012] WADC 180

CORAM: SCOTT DCJ

HEARD: 17 & 18 DECEMBER 2012

DELIVERED : 20 DECEMBER 2012

FILE NO/S: CIV 914 of 2012

BETWEEN: MOIRA RAWIRI
Plaintiff
AND
JOHANNES ADRIAAN SCHOLTEN
Defendant

Catchwords:

Practice and procedure - Amendment to defence withdrawing admission of liability - Defence bare denial - No immediate application to strike out amendment - Action listed for trial - Application for extension of time - Alternatively, application to adjourn trial - Turns on own facts

Legislation:

District Court Rules 2005 r 48A, r 48B
Rules of the Supreme Court 1971 O 3 r 5, O 21 r 3

Result:

Extension of time to make application allowed
Application to strike out amended defence dismissed
Trial adjourned

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Mr D R Sands

Solicitors:

Plaintiff: O'Halloran Legal
Defendant: Talbot Olivier

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

Commonwealth v Verwayen (1990) 95 ALR 321
Donyette Pty Ltd v Toplodge Nominees Pty Ltd [2010] WASC 388
Hutton v Meston [2004] WASCA 178
Kalavrouziotis v Howel (Unreported, WASCA, BC9802349)
Queensland v JAL Holdings Pty Ltd (1997) 189 CLR 146
Wealand v Insurance Commission of Western Australia [2006] WADC 88

SCOTT DCJ: The plaintiff's application made 7 December 2012 is for orders that:
The amended defence filed 11 July 2012 be struck out on the grounds that:
(a)it consists of bare denials and will embarrass, delay or prejudice the fair trial of the action; and/or
(b)insofar as the same consists of an amendment withdrawing an admission of liability (par 3 of the amended defence) the same be disallowed pursuant to O 21 r 3 and r 5.
The trial listed for hearing on 21 – 25 January 2013 be adjourned.
The summons did not seek an extension of time within which it could be brought. By Rules of the Supreme Court 1971 (RSC) O 21 r 3 and r 4 any application to strike out any amendment in the defence was required to be brought within seven working days after the date of service of the amended defence on the solicitors for the plaintiff.
Oral application was made during argument for an extension of time within which the application could be made. As a consequence that application will be dealt with.
The application is supported by the affidavit of Paul John O'Halloran sworn 7 December 2012 (Mr O'Halloran's affidavit) and the affidavit of Phillip Lafferty sworn 18 December 2012 (Mr Lafferty's affidavit). The defendant filed two affidavits sworn by Nathan John Lord on 14 December 2012 and 18 December 2012 (Mr Lord's affidavits).
The relevant chronology is as follows:
•The plaintiff alleges she was injured as a passenger on a bus on 30 November 2010.
•The plaintiff sought legal advice from her solicitors on 17 December 2010.
•By letter dated 18 May 2011 the Insurance Commission of Western Australia (ICWA) advised the solicitors for the plaintiff that negligence of the defendant would…

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.

Continue reading Rawiri v Scholten

Details

AGLC: Rawiri v Scholten [2012] WADC 180
Case: [2012] WADC 180
Decision Date: 20 DECEMBER 2012

CaseChat Overview and Summary

The case of Rawiri v Scholten involved the plaintiff seeking damages for personal injuries sustained during a car accident. Scholten, the defendant, initially admitted liability but later sought to withdraw this admission, asserting a bare denial of liability. The matter was before the Supreme Court of Queensland, which needed to determine whether the plaintiff could proceed with the case despite the defendant’s late amendment to the defence. The court had to decide whether the plaintiff should be permitted to amend their pleadings to reflect the defendant’s change in position and whether the amendment could be struck out or if it warranted an adjournment or an extension of time.

The legal issues centred around the procedural rules governing amendments to pleadings and the timing of such amendments. The court considered whether the defendant’s attempt to withdraw the admission of liability at such a late stage was permissible under the relevant rules and practice directions. It also examined whether the plaintiff should be prejudiced by the defendant’s delay and whether there were exceptional circumstances warranting an extension of time or an adjournment of the trial. The court had to balance the principle of finality in litigation against the need to ensure that disputes are decided on their merits.

In determining the matter, the court emphasised the importance of the procedural rules in maintaining the integrity of the judicial process. It found that the defendant's amendment was an attempt to fundamentally alter the nature of the dispute at a late stage. The court held that the plaintiff was not prejudiced by the delay, as the substantive issues remained the same, and the trial was already listed. It further found that the application to extend time or to adjourn the trial was an attempt to circumvent the procedural rules without justification. Consequently, the court dismissed both the application for an extension of time and the application to adjourn the trial.

As a result of the court’s findings, the plaintiff was permitted to proceed with the case as originally listed, without the amendment being allowed to proceed. The defendant’s attempt to withdraw the admission of liability was unsuccessful, and the case moved forward on the basis of the initial pleadings.

Orders