Roch v Coles Supermarkets Australia Pty Ltd
[2012] VCC 185
•20 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
Case No. CI-09-00368
| MELISSA ROCH | Plaintiff |
| v | |
| COLES SUPERMARKETS AUSTRALIA PTY LTD ( ACN 004189708) | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2012 | |
DATE OF RULING: | 20 February 2012 | |
CASE MAY BE CITED AS: | Roch v Coles Supermarkets Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 185 | |
REASONS FOR RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: time extended within which to bring a proceeding - amendment to the statement of claim subsequent to the giving of such leave - nature of the amendments - whether an new case pleaded in the amended statement of claim - what amendments are permitted in the circumstances
LEGISLATION CITED: section 34 (1) Limitation of Actions Act 1958 and Rule 36.06 of the County Court Civil Procedure Rules 2008
CASES CITED: Weldon v Neal (1887) 19 QBD 394; Harris v Raggatt [1965] VR 779 and Juric v Dixon Supply Co Pty Ltd [1976] VR 701
RULING: leave to amend the statement of claim
SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: affidavit of documents – adequacy - non-compliance with the requirements of discovery required by Rule 29.04 of the County Court Civil Procedure Rules 2008
LEGISLATION CITED: Rule 29.04 of the County Court Civil Procedure Rules 2008
CASES CITED: None
RULING: the defendant file and serve an affidavit complying with Rule 29.08 limited to a written report of the incident and any CC TV footage or similar recorded images of the plaintiff at the premises on the date of the occurrence of the incident
SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: adequacy of answers to interrogatories - objection is taken to answering interrogatories inconsistent with grounds objection referred to in Rule 30.07 County Court Civil Procedure Rules 2008
LEGISLATION CITED: Rule 30.07 of the County Court Civil Procedure Rules 2008
CASES CITED: None
RULING: the defendant file and serve further and better answers to interrogatories 1, 4, 5 and 6
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Stiffe | Ellis Palmos & Co Lawyers |
| For the Defendant | Mr M Corrigan | Richard Mole & Associates, Lawyers |
HIS HONOUR:
Introduction
1 Over three days in September 2011 I heard an application brought by the plaintiff to extend the time within which she could bring a proceeding at common law which she had instituted against the defendant and QBE Insurance Australia Limited.
2 QBE Insurance Australia Limited was made a defendant to the proceeding because a company known as South West Security Services Pty Ltd ("SWSS") was alleged by the plaintiff to have provided security services to the defendant. SWSS is deregistered. QBE Insurance Australia Limited was its insurer. It was joined as a defendant pursuant to section 601AG of the Corporations Act 2001 on the footing that there was a contract of insurance in existence between it and SWSS.
3 On 12 September 2011 I delivered reasons for judgement extending the time with respect to the defendant in dismissing the plaintiff's proceeding against QBE Insurance Australia Limited.
4 Inevitably, the existing amended statement of claim required at least amendment to excise reference to QBE Insurance Australia Limited, and to make other consequential amendments.
5 The plaintiff filed and served a further amended statement of claim dated 6 February 2012. The defendant has taken issue with the amendments submitting that they go well beyond what would be permissible as consequential amendments and have raised issues in the pleading for which leave was not granted.
6 The foregoing was the first matter which I was asked to deal with. The two other matters I was also asked to deal with were whether the defendant had given proper discovery, and whether the defendant had made proper answers to interrogatories delivered by the plaintiff.
The Basis of Leave
7 The leave I granted the plaintiff was based upon section 27K of the Limitation of Actions Act 1958. Subsection (3) refers to leave being extended in connection with "a cause of action".
8 The cause of action pleaded by the plaintiff in the amended statement of claim was that the defendant operated a supermarket in Footscray. She attended at the supermarket on 23 April 2003. She alleges that she was assaulted by security guards who were acting as employees or agents of the defendant’s supermarket. In paragraph 3D she pleaded the relationship between the security guards who allegedly assaulted her and the defendant in the following way:
"3D.At all material times, the First Defendant employed or engaged as agents security staff at the premises or engaged as agents security staff at the premises which were employed by the Second Defendant."
9 In paragraph 7 of the plaintiff pleaded the responsibility of the defendant for the conduct of the security staff in assaulting the plaintiff as follows:
"7During the attendance at the premises, the plaintiff was assaulted by security guards acting as employees or agents of the First Defendant and/or as employees or agents of the company."[1]
[1]the word "company" is an abbreviation for South West Security Services Pty Ltd
10 The pleading is clumsily drawn, but I read it to mean that the plaintiff is alleging that the defendant (referred to as the first defendant in the amended statement of claim) employed security staff at the premises in its own right, or alternatively, if the security staff were not employed by the defendant they were employees of the second defendant and were at the material times agents of the defendant.
11 In the further amended statement of claim there is nothing controversial about the amendments made in paragraphs 1-7. The amendments really amount to little more than tidying up. However, it is paragraphs 7A-7F which Mr Corrigan submitted went beyond what the plaintiff is entitled to do, and he also referred to the particulars of breach of duty and/or negligence as similarly going beyond what the plaintiff is entitled to do.
12 Those paragraphs plead the following:
"7A. At all material times, the security guards-
(a)was subject to the supervision, direction and control of the defendant and of its servants and agents;
(b)were working or were supposed to be working pursuant to systems of work laid down by the defendant;
(c)were trained by the defendant or pursuant to training regimes laid down by and/or approved by the defendant.
7B.At all material times the security guards who assaulted the plaintiff were acting pursuant to instructions from one or more employees of the defendant to prevent the plaintiff from leaving the premises and/or to arrest the plaintiff.
7C.At all relevant times the security guards who assaulted the plaintiff were acting in concert with one another and were aiding and abetting one another.
7D.At all relevant times the employees of the defendant who directed the security guards to prevent the plaintiff from leaving the premises and/or to arrest the plaintiff were acting in concert with and were aiding and/or abetting the security guards who assaulted the plaintiff.
7E.The defendant is a vicariously liable for the injuries, loss and damage caused by the security guards.
7F.By physically laying hands upon the plaintiff and/or by arresting the plaintiff the security guards owed a duty to the plaintiff to take reasonable care to prevent injury of a reasonably foreseeable kind occurring to the plaintiff as result of physically laying hands upon the plaintiff and/or as a result of arresting the plaintiff."
13 The common denominators which can be demonstrated through a comparison between both statements of claim is that the plaintiff pleaded that there were security guards employed by the defendant or employed by SWSS who assaulted the plaintiff, and at the time of the assault if the assailants were employees of SWSS then the defendant was liable for their conduct because they were agents of the defendant.
14 Paragraph 7A is an expansion of the allegation of agency. It is drafted in a manner to demonstrate the extent to which the security guards who were employees of SWSS was supervised, directed and controlled by the defendant. It particularises how the plaintiff intends to establish the allegation of agency.
15 Paragraph 7B is also an expansion of the allegation of agency in that it demonstrates that whether the security guards were employees of the defendant or were agents that they were acting under instructions of the defendant where it is alleged they assaulted the plaintiff.
16 Paragraph 7C seems to me to be an attempt to broaden the scope of responsibility of the defendant for the conduct of its employees and its agents. It alleges, for example, if it were only the agents who actually assaulted the plaintiff because employees of the defendant were present, and were involved by some arrangement or agreement, then the employees of the defendant would be equally liable with the actual assailants, and that degree of involvement would make the defendant the vicariously liable.
17 Paragraph 7D appears to make a distinction between what is alleged in paragraphs 7C. It seeks also seeks to broaden the scope of responsibility of the defendant by alleging that if an employee of the defendant gave directions to the security guards (whether they were employees or agents) then that employee who gave those directions would be equally liable with the actual assailants and that giving such directions would make the defendant vicariously liable.
18 I think paragraph 7E is an unnecessary pleading and such was effectively conceded by Mr Stiffe.
19 I do not think paragraph 7F is very much different from the effect of paragraph 8 of the amended statement of claim except that it refers to the conduct of the security guards as amounting to "laying hands" and/or "arresting" the plaintiff, and otherwise it pleads that in doing so the security guards owed the plaintiff a duty of care not to injure her in the course of that conduct.
20 The question that arises for consideration is whether the consequential amendments made by the plaintiff are impermissible.
The Legal Principles
21 I think it is clear from a simple construction of section 27K that the only cause of action which the plaintiff is entitled to prosecute is the cause of action for which leave was granted.
22 However, if leave is granted and the plaintiff reconstructs the cause of action pleaded in a draft statement of claim then that may be permissible. For example, if the plaintiff sought to do no more than produce a writ with a general endorsement pleading a cause of action in a summary manner consistent with a general endorsement, and after obtaining leave seeks to plead the cause of action in a conventional and acceptable sense then no complaint could be made.
23 I pose the question rhetorically that if I am correct in the example I have just given that if the plaintiff decides that the amended statement of claim was adequate in making the necessary allegations, but that it could be done more effectively by producing a further amended statement of claim which does not plead a different cause of action but expands upon the cause of action for which leave was granted then why is that not permissible.
24 In reality, as it seems to me, what the plaintiff has done is to allege that persons assaulted her at the supermarket. They may have been employees of the defendant. They may have been employees of some other person. Which ever they were there was a combination of employees of the defendant and employees of some other person who were involved in the assault of the plaintiff to varying degrees, and that they were acting by an arrangement or an agreement making the defendant vicariously liable.
25 The amended statement of claim seems to me to capture, in a pleading form, my narrative summation of the substance of the statement of claim. Although, the further amended statement of claim is more elaborate and uses more extensive and descriptive language it seems to me that being more elaborate and using more extensive language is not necessarily impermissible where no other cause of action is pleaded, or a different case is raised.
26 I am not persuaded that the further amended statement of claim exposes the defendant to a different cause of action or a different case from that which was pleaded in the amended statement of claim.
27 In any event, section 34 (1) of the Limitation of Actions Act 1958 ("the Act") has abrogated the rule in Weldon v Neal[2] to permit the amendment of a document in a proceeding even where the relevant period of limitation has expired. It is in the following terms:
"If a court would, but before the expiry of any relevant that period of limitation after the day of proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of the parties claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise."
[2](1887) 19 QBD 394
28 Section 34 (1) is essentially reproduced in Rule 36.01 of the County Court Civil Procedure Rules 2008 which provides a power to allow amendment to a document in a proceeding, and more particularly, sub-rule (6) which is in the following terms:
"The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceedings would not by reason of the order be prejudiced in the conduct of the parties claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
29 In Harris v Raggatt [3] Sholl J made the following observation in an application to amend the statement of claim to substitute the description of the defendant:
"If we say that the law is that the plaintiff cannot be allowed, after the period of limitations has run, to set up a new cause of action, we use the term in a special sense as meaning a "new case" varying so substantially from what has previously been set up that it would involve investigation of matters of fact or questions of law, or both, different from what have already been raised and of which no fair warning has been given, so that it would be unfair and unjust to the defendant to put him in peril of a judgment founded on the new matter. Certainly, if there is set up a "new case" on the facts, upon which is based a new claim upon a new and different legal basis--a new cause of action in that sense--leave will ordinarily be refused."[4]
[3][1965] VR 779
[4]at 785
30 Furthermore, in Juric v Dixon Supply Co Pty Ltd[5] Menhennitt J made the following observations relevant to an application whether an amendment to a statement of claim rise to new cause of action or particularised an existing cause of action at a time after the limitation period had run its course:
"It appears to me that the law which is applicable to this issue has been clearly and authoritatively laid down by the High Court in decisions which are binding on me. Those decisions are: Black v The City of South Melbourne, [1965] ALR 698 and Renowden v McMullin, [1970] ALR 865; 123 CLR 584. In those cases it appears to me that the High Court has said that the relevant concept is the cause of action involved as distinct from the case involved, or whether or not a new case is involved. In Renowden v McMullin, supra, the High Court has also, it appears to me, said that in a case where a cause of action sought to be added is statute barred at the time the application to amend the statement of claim is made, the only proper exercise of the discretion is to refuse to permit the amendment to plead a new cause of action. In Black v The City of South Melbourne, supra, it appears to me that the High Court has said that where there is not a new cause of action sought to be relied upon, but only particularization of facts which constitute the cause of action, it is certainly within the discretion of the Judge to permit the amendment, and that commonly it would be said that the proper exercise of the discretion is to allow the amendment, in that questions of surprise and disadvantage can be met by adjournment and appropriate orders as to costs."[6]
[5][1976] VR 701
[6]at 702
31 The conclusions I have reached based upon the relevant provision of the Act, the Rules, and the authorities I have referred to is that the plaintiff is not pleading a new cause of action. The plaintiff is particularising the facts which constitute the cause of action. In these circumstances it is within my discretion to admit the amendments. Menhennitt J considered that allowing such an amendment is a proper exercise of the discretion.
32 Section 34 (1) of the Act and Rule 36.01 (6) require consideration of what prejudice will flow to the defendant and by allowing the amendments. I do not consider that the amendments will prejudice the defendant in any material way at what a relatively early stage in the life of the proceeding.
Discovery
33 The issue of discovery relates to the defendant's failure to discover a written report of the incident, and any CCTV or similar recorded images of the plaintiff at the premises on the date when the incident occurred.
34 Mr Corrigan submitted that the defendant does not have an incident report nor any CCTV or similar recorded images which are discoverable. Mr Stiffe submitted that there were serious shortcomings in the defendant’s affidavit of documents sworn 29 June 2010, and as a result he submitted the defendant should swear an affidavit pursuant to Rule 29.08 giving particular discovery.
35 Unfortunately, a custom has developed where solicitors fail to properly meet the requirements under the Rules relevant to the drafting of an affidavit of documents. Schedule 2 of the defendant’s affidavit of documents, and in particular, paragraphs 3 and 4, refer to documents which the defendant had, but no longer has and when such documents were last in its possession, custody or power, but schedule 2 merely refers to the originals of documents and letters referred to in schedule 1.
36 If the defendant had an incident report or CCTV or similar recorded images, but no longer has them then it is obliged to say so in the affidavit of documents. It is insufficient I think for the defendant, through Mr Corrigan, to point to some of the evidence which was before me in the earlier application to support a statement that no such materials have been or are in the possession of the defendant.
37 There is undoubted forensic advantage to the plaintiff in having a properly sworn affidavit of documents, or alternately, an affidavit sworn complying with Rule 29.08. It may be that the affidavit will disclose nothing, but I think it is fair for the defendant to be required to swear such an affidavit in connection with the two classes of documents which are sought.
Answers to Interrogatories
38 Mr Stiffe asked me to peruse the plaintiff's Interrogatories for the examination of the defendant and the defendant's answers to interrogatories 1, 4, 5 and 6. He submitted that the answers are deficient and that I should order that the plaintiff make further and better answers.
39 Interrogatory 1 (a) asks whether the defendant employed security staff at the premises. The defendant could have simply answered yes or no instead it referred to its answer to part (b) which does not give an answer, but refers to the engagement of the SWSS. Part (b) asked whether the defendant engaged an agent to provide security staff. The defendant could have simply answered yes or no instead it gave a longer answer then objected to giving a further answer on the grounds of the Interrogatory enquired into evidence which it does not do. Parts (c) and (d) are to be answered respectively depending on whether the answer to part (a) and (b) are answered yes or no.
40 Interrogatory 4 has six sub-parts which are premised on whether the plaintiff was apprehended or arrested or detained by security guards in the employ of the defendant or by a person acting on that character who was an agent. The defendant objected to answering all six sub parts essentially saying that the Interrogatory is unclear; assumes the existence of facts which are disputed; and because the Interrogatory enquired into evidence. There was nothing unclear about the Interrogatory. Each sub-part could have been answered yes or no. Mr Corrigan submitted a further ground of objection is that the use of the words "apprehended" , "arrested" and "detained" enquire into matters of law. I do not accept that submission. It seems to me that the days are well and truly gone when a party obligated to answer Interrogatories sets about taking every objection possible in order to avoid making an answer. I do not accept that those words are outside the understanding of ordinary people. They are words of common usage.
41 Interrogatories 5 and 6 ask whether the police and ambulance were called to the premises on the day when the incident occurred. The defendant objected to answering each Interrogatory on the grounds that the Interrogatories do not relate to any question between the plaintiff and the defendant and enquire into matters of evidence. There might be something in the first objection, however, I am not prepared to exclude the possibility/probability that the attendance of police and ambulance go in some way to proving that an incident occurred of a particular nature requiring the attendance of police and ambulance.
42 Mr Stiffe submitted that Rule 30.07 (1) makes it mandatory for a party to answer Interrogatories except to the extent that objection might be taken on very specific grounds, they being, no relationship to the question between the parties; being unclear, vague or too wide; being oppressive; asking for the expression of opinion which the party being interrogated not qualified to give, and privilege. Sub-rule (2) also provides a further objection where the Interrogatory does not relate to any question between the parties and has the sole purpose of ascertaining the evidence of the party being Interrogated.
43 I am satisfied that the answers to Interrogatories are deficient and further and better answers must be provided by the defendant. I think the objections taken have no basis and are objections taken to simply create the illusion that there is a legitimate objection which can be taken in order to avoid answering the Interrogatories. It is a practice to be condemned because it defeats a very legitimate step in discovery served by the right of a party to interrogate the other party in the proceeding.
Orders
44 I propose to make orders permitting the plaintiff to file and serve the further amended statement of claim, and to require the plaintiff to make specific discovery and to make further and better answers to Interrogatories. I also intend to hear the parties on what interlocutory orders are now necessary to progress this proceeding.
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