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 not be denied subject to the usual qualifications relating to proceedings being instituted within the limitation period.
•The writ of summons was issued on 28 March 2012
•The statement of claim was filed on 28 March 2012.
•The defence was filed on 30 April 2012 in which by par 3 the defendant admitted that he was negligent.
•Particulars of damages were filed on 3 May 2012.
•On 3 July 2012 the plaintiff, her solicitors, and counsel, the solicitor and counsel for the defendant and representatives from ICWA viewed CCTV footage of the incident on 30 November 2010, the footage having only just been received by the defendant's solicitors.
•On 4 July 2012 a pre‑trial conference was held. The matter was not settled.
•On 11 July 2012 the defendant filed and served an amended defence in which the defendant withdrew the admission in par 3 and denied that he was negligent.
•By O 21 r 3 RSC the defendant was entitled to amend the defence without leave not later than seven weeks before the date fixed for the start of the trial. In this case the provisions of r 48A(2B) of the District Court Rules 2005 (DCR) do not affect the operation of that rule. By O 21 r 3(3) and r 3(4) the plaintiff was entitled to apply for an order that the amendment to the defence be struck out within seven working days after the date upon which the plaintiff was served with the amended pleading. The plaintiff did not do so.
•On 16 July 2012 the plaintiff's solicitors wrote to the defendant's solicitors seeking a copy of the CCTV footage and raised no issue with respect to the amendment to the defence.
•On 3 September 2012 a listing conference was held. Counsel for the plaintiff, Mr Lafferty, appeared. The conference was adjourned to 10 September 2012 for the purposes of clarifying the availability of witnesses. No application was made by Mr Lafferty at the listing conference in respect to the amended defence and the action was listed for trial for five days commencing 21 January 2013.
•The parties were ordered to attend a directions hearing on 20 November 2012. On that date the directions hearing was adjourned to 29 November 2012 because Mr Lafferty was unable to attend.
•On 29 November 2012 Mr Brooksby of counsel appeared for the plaintiff because Mr Lafferty was unable to appear. Mr Brooksby informed the registrar that he had no knowledge of the file and the directions hearing was adjourned to 5 December 2012. Registrar Kingsley ordered that the plaintiff's trial counsel and solicitor attend the further directions hearing.
•On 5 December 2012 Mr Brooksby attended the directions hearing with the plaintiff's solicitor. Mr Brooksby advised the registrar that he had not been briefed for the trial and that Mr Lafferty was briefed but was unable to attend the directions hearing due to another commitment. Mr Brooksby informed the registrar that he had recommended to the plaintiff's solicitor that an application should be made to adjourn the trial because by the amended defence the defendant now denied liability.
•Registrar Kingsley ordered the plaintiff to bring the application for leave to adjourn the trial on or before 7 December 2012. The matter came before me, and was heard, on 17 and 18 December 2012.
I accept that for the past five months or so, liability was understood by the defendant and his advisers to have been in issue. Although there was no listing certificate provided by the plaintiff on the listing of this action, counsel for the plaintiff pressed for trial dates. I was told by Mr Brooksby that Mr Lafferty intended to raise the withdrawal of the admission during the course of the trial.
In his affidavit Mr O'Halloran confirmed that the plaintiff first consulted him on or about 17 December 2010. The affidavit was silent as to whether any investigations were undertaken or inquiries made as to the availability of any witnesses who may have witnessed the incident. In circumstances where those witnesses may include bus passengers, I would have thought it to have been prudent to make such inquiries as could reasonably have been made, as soon as possible.
There is no evidence before me that there was any indication from ICWA before its letter of 18 May 2011 as to its position on liability.
Mr O'Halloran said in his affidavit that he was not able to justify the delay that had occurred in the making of this application (par 20) and that Mr Lafferty's advice, which he sought following service of the amended defence, was to raise the issue of the amendment at the listing conference (pars 21, 22).
By par 23 Mr O'Halloran confirmed that by letter dated 5 September 2012 the solicitors for the defendant confirmed that the defendant was entitled to make the amendment without leave and would rely upon the denial of liability.
In his affidavit Mr Lafferty deposed to the fact that his view was that the defence having been amended in accordance with the rules resulted in the plaintiff being unable to object to the late amendment and that the issue relating to the withdrawal of the admission and any cost consequences that flowed from late amendment would have to be addressed during or after the trial of the action. Mr Lafferty said that he took the view that the plaintiff would be entitled to the costs of the proceedings whatever the outcome of the action as and from the date of the issue of the writ up to and including the date of the amendment (pars 17 and 18).
I must say, given the clarity of the provisions of O 21 r 3 RSC, that the views taken and the inaction on the part of the plaintiff's advisers was very surprising.
Counsel for the defendant told me from the bar table that the letter from ICWA dated 18 May 2011 was sent as a consequence of an assessment made by an officer of ICWA. In Mr Lord's affidavit of 14 December 2012 he deposed to the fact that the solicitors for the defendant did not view the CCTV footage until the day prior to the pre‑trial conference because the Public Transport Authority would not authorise its release to them beforehand. He said that it was as a result of viewing the CCTV footage that the solicitors for the defendant took the view that negligence ought to be denied.

Extension of time

The time for making this application may be extended pursuant to O 3 r 4 RSC. Whilst the court has a broad power to relieve against an injustice, there is no unqualified right to an extension of time.
This is particularly so having regard to the objectives of case flow management.
Overall, however, the interests of justice must be a dominant consideration. In this case the failure to make this application within time falls squarely at the feet of the plaintiff's advisers. True it is that there may be a remedy elsewhere for the plaintiff, however in the circumstances of this case that is in my view an unsatisfactory option.
Whilst the objects of case flow management are important in the timely and expeditious disposition of litigation, in this case these proceedings were instituted in late March 2012 with respect to an incident which is alleged to have occurred on 30 November 2010.
There is no demonstrable prejudice to the defendant in the application being now heard. In all of the circumstances my view is that an extension of time in favour of the plaintiff to bring this application should be allowed.

Withdrawal of admission

In Donyette Pty Ltd v Toplodge Nominees Pty Ltd [2010] WASC 388, Corboy J reviewed the authorities and distilled what he considered to be the principles referrable to an application to withdraw admissions.
His Honour observed that it is ultimately a question of determining what best serves the interests of justice.
In Hutton v Meston [2004] WASCA 178 the Full Court referred to the High Court's decision in Queensland v JAL Holdings Pty Ltd (1997) 189 CLR 146 and in particular the principles governing the exercise of an unfettered power to permit or refuse the amendment of pleadings in which the overriding principle is the attainment of justice.
There is no doubt that the withdrawal of an admission going to liability is a significant amendment. It is necessary to consider the circumstances of each case bearing in mind the governing principle of the attainment of justice.
In this case it is said by counsel for the defendant that the letter from ICWA of 18 May 2011 could not be read as being an admission of liability. The letter made reference to an admission of negligence which is not the same. In a number of circumstances that may well be so. For example, where a defendant may still wish to plead contributory negligence: see Kalavrouziotis v Howel & Anor (Unreported, WASCA, BC9802349 (Wheeler J)); Wealand v Insurance Commission of Western Australia [2006] WADC 88.
That is not a relevant consideration in this case. It has not at any stage been pleaded by the defendant that the plaintiff was contributorily negligent.
In my view the contents of the letter from ICWA would readily convey a meaning to the plaintiff and her advisers that liability was not in issue. That, as it transpired, was reflected in the initial defence.
I accept that from 18 May 2011 until service of the amended defence in July 2012, the plaintiff and her advisers understood that liability was not in issue and that the case to be pursued was one of quantum only.
The relevant circumstances to be considered by me include the following:
(a)The plaintiff alleges she was injured when she was a passenger on a bus. There was no motor vehicle accident in which the bus was involved.
(b)Any witnesses would likely to be fellow passengers on the bus who may, in the main, be not known to the plaintiff. In those circumstances it would have been necessary, one would have thought, for potential witnesses to be identified and their relevant details taken without delay.
(c)The plaintiff sought advice from her solicitors on 17 December 2010, a little over two weeks after the date of the incident. It ought to have been apparent to the solicitors for the plaintiff that steps should be taken as soon as possible to identify any passenger witnesses if that was possible.
(d)No steps seem to have been undertaken by the solicitors for the plaintiff or by the plaintiff to do so. There is no evidence that any such steps were taken before 18 May 2011. In Hutton McLure J said:
In the period between November 1999 and June 2002 when the appellant foreshadowed his intention to make this application, it can be inferred that the memories of witnesses would have faded and lines of inquiry may have become cold … [25]
However in this case there is no evidence as to what, if any, inquiries were made by the plaintiff or her advisers before 18 May 2011 to locate witnesses. I infer that no such inquiry was made.
(e)If no inquiry was made to identify prospective witnesses in that six‑month period, one is left to wonder how it could be said that 'lines of inquiry' might be lost by the amendment.
(f)The amended defence was filed about 2 1/2 months after the defence. It was five months before this application was made. The fact that nothing was done until now to deal with the withdrawal of this admission does demonstrate that the plaintiff by her advisers did not consider the effect of the amendment to have altered the availability of the evidence as to liability which they would otherwise have been able to adduce had it not been for ICWA's letter of 18 May 2011.
The inference which I consider can be reasonably drawn and which I do draw is that the plaintiff is in no worse position as to the availability of any witness able to give evidence favourable to her, than she was immediately prior to the letter from ICWA of 18 May 2011.
In all of the circumstances of this case I am of the view that the defendant is entitled to maintain the denial of liability the subject of the amended defence.

Complaint that defence contains bare denial

The defendant does not plead facts giving rise to, or in support of, the denial of negligence.
In par 20.0.2 of the Red Book the authors refer to the relevant authorities from which the principles of pleadings having regard to positive case flow management are articulated.
The cases make clear the primary objective, being to ensure that there is no ambush at trial. In this case, as I raised with counsel for the defendant, the consequence of a bare denial for the defendant is that the he will be unlikely to be able to raise a positive answer to the plaintiff's case under the cover of a mere denial. If the defendant is to raise a positive case then it is for the defendant to plead the facts and circumstances which give rise to that positive case.
In my view it is open to the defendant to plead in a way that puts the plaintiff to proof of negligence. There is no merit in my view in the plaintiff's argument to strike out the amended defence on that basis.

Adjournment of trial

Counsel for the plaintiff informed me that in the event that I did not allow the application, the plaintiff would wish to interrogate the defendant with respect to matters relating to the circumstances in which, on the plaintiff's case, the bus lurched forward and stopped suddenly.
In addition, counsel said that the plaintiff may wish to file a reply in which issues of election, waiver and/or estoppel may be raised. By dismissing this application I have not made any determination as to whether these issues are arguable. Those matters were not raised in argument before me. They may be arguable: see, for example, Commonwealth v Verwayen (1990) 95 ALR 321.
It is most unsatisfactory that there be an adjournment of a trial listed for late January 2013 in respect to which trial dates were allocated on 10 September 2012.
As I say, the fault lies at the feet of the plaintiff's advisers. Be that as it may, it would not in my view be in the interests of justice for the plaintiff to be required to go to trial when she is not ready to do so.
Whilst principles of case management are important, the fact is that this court is able to list civil trials at relatively short notice.
In balancing the prejudice to the plaintiff and to the defendant by the trial proceeding on the allocated dates, rather than on subsequent dates and taking into account all relevant circumstances in this case, the balance favours the plaintiff.
I will hear the parties as to whether directions ought to be made by me as to any further pleadings and/or interlocutory matters or whether those issues are best left to a registrar on a directions hearing.
The orders I propose making are:
1.There be an extension of time for the filing of this application to 7 December 2012.
2.The plaintiff's application to strike out the amended defence or any part be dismissed.
3.The dates for the trial of this action commencing 21 January 2013 be vacated.
4.The plaintiff pay the defendant's costs of and incidental to this application and any costs thrown away by the adjournment of the trial to be taxed and paid in any event.