Ruskin Nominees Pty Ltd v Avago Pty Ltd - [2008] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RUSKIN NOMINEES PTY LTD -v- AVAGO PTY LTD [2008] WADC 75

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 7 MAY 2008

DELIVERED : 26 MAY 2008

FILE NO/S: CIV 670 of 2001

BETWEEN: RUSKIN NOMINEES PTY LTD
Plaintiff
AND
AVAGO PTY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - O 20 r 19(1)(a)(b)(c) and (d) - Application to amend reply and defence counterclaim - Turns on its facts

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff: Dr P R MacMillan
Defendant: Mr A O Karstaedt

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Lawton Gillon

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

Nil

DEPUTY REGISTRAR HARMAN: At the point that the action was entered for trial the plaintiff's claim for the cost of specified drilling and blasting services was founded upon the defendant’s request for their provision. By its defence the defendant pleaded particular contractual terms and a counterclaim founded on breach of contract and negligence. The plaintiff had then filed a reply and the defendant, a rejoinder. Those pleadings have now been substantially amended. The plaintiff has incorporated into the statement of claim features of the contract for which it contends and incidents relating to the supply of explosive by the defendant. The plaintiff's amended reply and defence to counterclaim dated 7 January 2008 precipitated the defendant's application to strike out. Shortly prior to the date of the hearing the plaintiff sought leave to amend in the terms of a minute dated April 2008. That minute was addressed by the parties during the course of the hearing.
The issues that bear upon a grant of leave are varied. Ultimately the function of a pleading is to inform and it is fundamental that consideration would be given to how closely any particular proposed pleading reflects that aim. The plaintiff carries the onus.
The focus of the defendant’s concern were references to the process of gassing the explosive emulsion made in pars 2, 3(c), 10 and 18 of the minute.
In its statement of claim the plaintiff has pleaded that Quantum Pty Ltd had delivered the explosive by its supply truck and had tested the adequacy of the density of the emulsion that had been pumped to each blast hole. At par 2 of the minute it proposes to plead that on a proper construction of the term for supply for which it has contended, the defendant would cause the explosive to be prepared and pumped into blast holes and in the process would be tested to ensure that it was adequately gassed and was of an adequate density. Of those allegations it gives the following particulars:
"(i) In the ordinary course bulk explosive is delivered to the blast site by a supply truck,
(ii) The explosive is pumped from the supply truck to the blastholes through a rubber‑type hose lubricated by a thin annular ring of water;
(iii) The supply truck supplies the required water;
(iv) The gassing solution is introduced into the explosive as it is pumped from the supply truck;
(v) The gassing solution is introduced in a quantity sufficient to reduce the density of the explosive emulsion to between approximately 1.3 grams per cubic centimeter (sic) to approximately 1.15 grams per cubic centimetre;
(vi) The above matters were known to the parties at all times material hereto."
I understood one feature of the defendant's concern related to the time at which the specified testing would be undertaken. There is nothing in either the proposed allegation or particulars to suggest that the expression 'and in the process' would extend to a point in the process of supply beyond the pumping of the explosive into each blast hole.
The defendant contended that as par 2 of the reply commences with the denial of parts of par 8 of the defence that context should establish par 2 as the response to par 8. It completed the submission by observing that par 8 does not refer to gassing. In my opinion so long as the issue sought to be raised by the plaintiff is clearly expressed it is of no real consequence where it is raised. For what it is worth my assessment is that par 8 of the defence relates to supply and it is at that point that the plaintiff would now seek to contend a feature of the process of supply.
The defendant also contended that any allegation of the plaintiff relating to the process of gassing ought to appear in response to the defendant’s allegation at par 19.6 that the plaintiff failed to ensure the explosive had gassed correctly after it had been pumped into the blast holes. That allegation is made in the context of pleading breach of the implied term that the work would be carried out in a proper and workmanlike manner. As I understand the force of the submission it is that the proposed allegation relating to gassing undertaken in the course of the process of supply would be inconsistent with the plaintiff's denial of the defendant's allegation at par 19.6. There is no inconsistency. But had I reached the contrary conclusion, of itself the fact that a party denies its opponent's allegation would not preclude a positive allegation being put. And I suspect that it has never been the case that procedural considerations dictated that a responsive pleading should be corralled by features of an opponent's pleading. It is only to the end of eliminating ambiguity that any such consideration would come into play. In context the proposed pleading is not ambiguous.
To all of the above I would add the observation that in the process of pleading each of the parties has established a datum and sought to embellish upon it. In the case of the defendant it does so at par 19.6 where it draws upon the expression 'preparatory work' utilised by it at par 3. I do not consider that anything significant turns on the fact that in its case of the plaintiff proposes to draw upon a term expressed in its earlier pleading.
The defendant sought to have me adjudicate on the question of whether there is a distinction properly drawn between the result of the processes of gassing and the result of the process of mixing the explosive with emulsion: in effect that testing the result of the gassing process would not result in a measurement of density. In the process I was taken to the report of an expert which the defendant had presented to the court on an earlier occasion. I note that at particular (v) of par 2 the plaintiff expresses a relationship between gassing and density. It seems to me that there is a real prospect that however the parties plead their cases that the meaning of expressions utilised in the pleadings and in the report will be live at trial. I accept that in some instances a court may take it upon itself at this stage of an action (the pleadings) to make a determination on such a point. I suspect that in this case it would not be appropriate to seek to do so and that the more appropriate course would be to facilitate a determination being made at trial.
The defendant made similar submissions in relation to similar allegations made in pars 3(c) and 10 of the minute. There is no reason for me to reach any different conclusion.
At par 18(c) the plaintiff refers to the defendant's failure to ensure that the explosive was adequately gassed 'in the blast holes' in the context of asserting contributory negligence against the defendant. The only significant feature of that proposed pleading that differs from those that I have previously canvassed is that at that point the defendant would contend that the material relating to the process of gassing and associated testing amounts to a new claim. It is undoubtedly new material and does comprise part of a claim however it is no more than a responsive claim of contributory negligence. On my understanding of the history of the action the allegation relating to gassing was introduced into the defendant's claim as at 2 November 2006. It is also my understanding of that history that since that time the defendant has sought to re‑amend and on the part of the plaintiff to amend and now re-amend its reply and defence to counterclaim.
No other consideration was advanced as being significant in the assessment of whether the plaintiff ought to be granted leave. I am satisfied that it would be appropriate to grant leave.