Romaro v Low
[2023] WASC 209
•28 JUNE 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ROMARO -v- LOW [2023] WASC 209
CORAM: MASTER SANDERSON
HEARD: 31 JANUARY 2023
DELIVERED : 28 JUNE 2023
FILE NO/S: CIV 1632 of 2014
BETWEEN: TERRY STEPHEN ROMARO
First Plaintiff
PIKACHU PTY LTD
Second Plaintiff
AND
RYAN LOW
First Defendant
AMP FINANCIAL PLANNING PTY LIMITED
Second Defendant
CYBERSIDE INVESTMENTS PTY LTD
Third Defendant
FILE NO/S: CIV 2384 of 2014
(Consolidated with CIV 1632/2014)
BETWEEN: TERRY STEPHEN ROMARO
First Plaintiff
PIKACHU PTY LTD
Second Plaintiff
AND
AMP FINANCIAL PLANNING PTY LIMITED
First Defendant
CYBERSIDE INVESTMENTS PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Application to amend indorsement of claim - Turns on own facts
Legislation:
Nil
Result:
Amendment allowed
Category: B
Representation:
CIV 1632 of 2014
Counsel:
| First Plaintiff | : | TM Clavey |
| Second Plaintiff | : | TM Clavey |
| First Defendant | : | M Howard SC & R O'Brien |
| Second Defendant | : | M Howard SC & R O'Brien |
| Third Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Blackwall Legal |
| Second Plaintiff | : | Blackwall Legal |
| First Defendant | : | DLA Piper Australia |
| Second Defendant | : | DLA Piper Australia |
| Third Defendant | : | No appearance |
CIV 2384 of 2014
(Consolidated with CIV 1632/2014)
Counsel:
| First Plaintiff | : | T M Clavey |
| Second Plaintiff | : | T M Clavey |
| First Defendant | : | M Howard SC & R O'Brien |
| Second Defendant | : | M Howard SC & R O'Brien |
Solicitors:
| First Plaintiff | : | Blackwall Legal |
| Second Plaintiff | : | Blackwall Legal |
| First Defendant | : | DLA Piper Australia |
| Second Defendant | : | DLA Piper Australia |
Case(s) referred to in decision(s):
MASTER SANDERSON:
This is the return of two chamber summons, one issued by the plaintiffs and one issued by the defendants. The first summons in time is the defendants' summons which seeks to strike out parts of the plaintiffs' amended consolidated statement of claim filed 17 July 2022. In broad terms, the strike out application was based on a claim by the defendants that the amended consolidated statement of claim went beyond the indorsement of claim in the Writ and that therefore certain paragraphs were liable to be struck out. While the plaintiffs did not concede the defendants had correctly characterised the amendments they nonetheless sought, perhaps out of an abundance of caution, to amend the indorsement on the Writ. The defendants opposed the amendment on the basis it raised a new cause of action which was out of time. The plaintiffs responded by saying the amendments fell within the 'basket of facts' found in the original indorsement. It was the defendants' position that the two applications were different sides of the same coin. That is to say, if the plaintiffs' application to amend the indorsement of claim failed then the paragraphs complained of would be struck out. On the other hand, if the amendment was allowed the amendments could stand. In fact for reasons which follow I am not entirely satisfied that is the case.
This matter has had a tortured procedural background. The plaintiffs issued proceedings against the (now) first defendant on 8 May 2014. The plaintiff then issued proceedings against the (now) second and third defendants on 2 October 2014. On 10 November 2014 Registrar S Boyle ordered the two sets of proceedings be consolidated. Prior to that order being made on 13 October 2014, the plaintiff had filed a statement of claim in CIV 1632 of 2014 referencing just the (first) defendant. After the order was made, a consolidated statement of claim was filed on 15 January 2015. The consolidated statement of claim was not a masterpiece of the draftman's art. It was replete with evidence including what appeared to be verbatim conversations between the plaintiff and various parties. Nonetheless the defendants were prepared to overlook these failings and on 27 February 2015 they filed a defence to the consolidated statement of claim.
The nature of the plaintiffs' claim against the defendants is best explained by reference to the minute of proposed re-amended writ of summons with indorsement. That document appears as Annexure A to the plaintiffs' chamber summons seeking leave to amend the indorsement. It reads as follows:
ANNEXURE A
To summarise the plaintiffs' position, on the advice of the first defendant in October 2007, the plaintiffs had taken out insurance with ING Insurance. In the pleading the two policies are referred to as the 'Romaro Policy' and 'Trauma Insurance'. Essentially both policies provided for insurance against Mr Romaro being struck down by illness or ill health. In October 2008, the first defendant advised the plaintiff to cancel the ING Insurance policies and insure with AXA. This they did. Subsequent to this change, Mr Romaro developed a condition which was on the face of it covered by the AXA policy. However, when a claim was made, AXA declined liability. AXA alleged the plaintiffs had not made full disclosure and had they done so, cover would not have been provided. The plaintiffs then sued the defendants. It was a central plank of the plaintiffs' claim that if not for the negligence of the defendants, the plaintiffs would not have changed from ING insurance to AXA and the payout would have been made.
The defence was essentially that the plaintiffs had completed the documents AXA required before granting insurance. In those documents, information about the first plaintiff's medical history was not provided. So really the fault all lay with the plaintiffs and was not the responsibility of the defendants. In particular, par 34 of the defence specifically pleads that 'AXA declined the indemnity claim on the basis that Mr Romaro had failed to disclose to AXA those matters pleaded in paragraphs 14.4, 15.2 and 15.3 hereof'. Those paragraphs detail pre-existing medical conditions or treatment Mr Romaro had received.
The matter then proceeded towards trial, albeit at a leisurely pace. Witness outlines were filed and subpoenas were issued and returned with various case management orders being made along the way. Then on 5 February 2020, the defendant's indicated they wished to amend their defence. It is worthy of note the defence had stood unamended for more than five years. Be that as it may, the defendants were given leave to file an amended defence and did so on 11 February 2020. The significant amendment was to par 37 of the defence. Effectively what the defendants said was that the plaintiffs had failed to make proper disclosure to ING Insurance and therefore the ING Insurance policy would not have responded if those policies had still been in place and the plaintiffs had made a claim. That being so, even if the claim was made out against the defendants it would not sound in damages. If the plaintiffs could not have succeeded in a claim against ING Insurance under the terms of its policy, then it was neither here nor there that they could not claim against AXA.
The plaintiffs responded to this amendment by seeking to amend the statement of claim. Effectively what they said was that they could have claimed under the ING policies and material was pleaded which supports that assertion. The defendants now say the pleading raises new matters which were not mentioned in the indorsement of claim and which are statue barred.
That submission must be rejected. The authorities make it plain that an indorsement of claim must be liberally construed and must convey to a defendant the nature of the claim it has to meet. The nature of the plaintiffs' claim from the original indorsement is clear. It has about it a number of different elements. First, the allegation that the first defendant was the plaintiffs' agent and through the operation of that agency the second and third defendants are tied in with the first defendant's conduct. Second, the first defendant and by extension the second and third defendants owed the plaintiffs certain duties. The third defendants breached those duties by allowing the plaintiffs to take up insurance policies with AXA which did not respond when the plaintiffs anticipated they would. Finally, the measure of damage was the amount the plaintiffs would have received under the ING policies if they had not been replaced by the AXA policies.
It was always open to the defendants to raise as an issue the prospect that the ING policies would not respond. But from the outset they knew as a consequence of the way the indorsement of claim was drafted, one of the features of the plaintiffs' case was that the measure of damage was dependent upon the ING policy responding. Any material facts which go to establishing that the ING policies would have responded fall within the ambit of the indorsement of claim.
If follows from the above that I am not entirely satisfied it is necessary for the plaintiffs to amend the indorsement of claim to permit the amended consolidated statement of claim. If the indorsement of claim had been left in its original form I am satisfied the new pleading would have been in all respects proper. However, for the avoidance of doubt I would be prepared to allow the plaintiffs to amend the indorsement should they wish to do so. The plaintiff then has two choices. It can either move on the chamber summons and amend the indorsement in terms of the minute. Or it can leave the indorsement in its present form and rely upon the amended pleading. In either case, the defendants' chamber summons seeking to strike out paragraphs of the amended consolidated statement of claim be dismissed.
The parties should confer as to the formal orders. If no agreement can be reached, each party should file a form of orders and short submissions as to cost.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CM
Associate
28 JUNE 2023
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