Ruskin Nominees Pty Ltd v Avago Pty Ltd
[2007] WADC 159
•10 SEPTEMBER 2007
RUSKIN NOMINEES PTY LTD -v- AVAGO PTY LTD [2007] WADC 159
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 159 | |
| Case No: | CIV:670/2001 | 13 AUGUST 2007 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 10/09/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | RUSKIN NOMINEES PTY LTD AVAGO PTY LTD |
Catchwords: | Practice Western Australia Practice and the Rules of the Supreme Court of Western Australia Application to amend defence |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AVAGO PTY LTD
Defendant
Catchwords:
Practice - Western Australia - Practice and the Rules of the Supreme Court of Western Australia - Application to amend defence
Legislation:
Nil
Result:
Application refused
(Page 2)
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):
Ruskin Nominees Pty Ltd v Avago Pty Ltd [2007] WADC 62
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiffs claim is for goods and services supplied to the defendant under an agreement for drilling and blasting at its quarries. The defendant contends that the results did not meet its specifications. In its reply the plaintiff pleads that the results were determined by the defendant's requirements. The action progressed to a pre-trial conference when the plaintiff foreshadowed the amendment of its pleadings.
2 In its amended statement of claim the plaintiff pleads particular provisions of the agreement: that the services would be provided in accordance with a drilling and blasting pattern to be provided by the defendant and that the plaintiff would supply explosives. It pleads that after it had blasted overburden the agreement was varied to the extent that the defendant would supply the explosive.
3 By the application before me the defendant seeks to amend its defence and counterclaim. On that application it carries the onus of persuasion. On a prior listing of the application it had presented a different minute. Although I provided reasons for dismissing the application no such order was made.
4 The first contest generated by the application was in relation to the defendant's response to the plaintiff's pleading of a variation of the agreement defined at par 3 of the statement of claim.
5 It is as follows:
"7. On or about 18 August 1999 the Agreement was orally varied ("the Varied Agreement") at the request of the Defendant in that:
7.1. The Defendant was to supply the explosive required for the provision of the Services;
7.2. The explosive to be supplied was Total Energy Systems BlastMax 80 ('BlastMax').
Particulars
The conversation was on the telephone between Celeste Baker on behalf of the plaintiff and Mauchline on behalf of the defendant."
6 At par 7 of its proposed defence the defendant would plead as follows:
(Page 4)
- "As to paragraph 7 of the amended statement of claim, the Defendant states that in August 1999 after the blasting of the overburden Mauchline informed Baker by telephone that the Defendant would provide the explosive for the production blast by paying for and arranging for the explosive to be brought in a truck to the Quarry for use by the Plaintiff, and Baker assented to this. The Defendant denies that this constituted a variation as alleged by the Plaintiff because the Defendant denies that it was a term of the agreement between the parties that the Plaintiff would provide the explosive and states that the agreement did not specify who would provide the explosive. The explosive used was BlastMax 80. Save as aforesaid the allegations in this paragraph are denied."
7 The defendant contended that its pleading would found the proposition that the provision of explosive for the production blast was non-contractual. I would observe that the proposition would be undermined by the implication that emerges from the unnecessary pleading of the payment for and the transport and use of particular explosive. Be that as it may, the function of the pleading process is to inform. If the defendant seeks to put the allegation that the provision of explosive was non-contractual then it ought to do so.
8 At par 3 of the proposed defence it has denied the agreement contended for by the plaintiff. The term "agreement between the parties" expressed by the defendant at par 7 could only be a reference to the agreement for which it contends: the blasting contract defined at par 3 of the defence. In proposing to deny that the blasting contract was varied the defendant has overlooked the fact that plaintiff has made no such allegation. To that observation I would add that it is inappropriate for a party to burden pleadings with an explanation for pleading the denial of an allegation made by its opponent. In my opinion par 7 of the proposed defence falls short of an appropriate standard of pleading.
9 The plaintiff also took issue with the sufficiency of the pleading of preparatory work at par 3 of the proposed defence. In so doing it drew upon the proposed pleading at par 20.6. At that point the defendant contends that part of such work was to ensure that explosive that had been injected into drill holes had gassed correctly. I understood the plaintiff’s position to be that what the defendant might characterise as preparatory work would reflect upon the validity of its assertion that the blasting contract made no provision for the supply of explosive. In my opinion, as the positive case presently put in relation to the scope of preparatory work
(Page 5)
- is limited to what is expressed at par 20.6, it is not necessary that the defendant pleads any greater scope. To follow the course of analysis proposed by the plaintiff would exceed the proper scope of the application.
10 The next issue upon which par 20.6 has a bearing is that raised by the plaintiff in relation to par 19 of the proposed pleading. By that paragraph the defendant pleads an implied term of the blasting contract that the plaintiff would carry out the work in a proper and workmanlike manner and with due care and skill and that any materials supplied in connection therewith would be reasonably fit for the purpose for which they were supplied. I take it to be the case that the breach for which the defendant contends at par 20.6 relates to the blasting on 26 August 1999. Not all of the materials for that blasting had been supplied by the plaintiff. The plaintiff submitted that the proposed pleading at par 19 was rolled up. In my opinion that is clearly the case. If the plaintiff seeks to plead 2 implied terms then it should do so and attribute any breach for which it contends to each such term.
11 The defendant's proposed pleading at pars 21 and 22 draw upon provisions of the Trade Practices Act1974. In the reasons that I previously provided I indicated that I would not grant leave to amend to add similar text as the defendant had not satisfied O21 r5 (5) of the Rules of the Supreme Court. The defendant contends that the difference between the former and current proposed pleading is that it now brings no claim and accordingly the rule does not apply. In my opinion if the rule would not apply then the proposed pleading would introduce a false issue in the sense that it would lead to no conclusion. Be that as it may, the claim established by pars 21 and 22 is expressed at par 25.
12 In my prior reasons for decision I noted that the material at par 19 was also new. By that observation I had indicated that there would be ground to consider that pars 19 and 20 would not come within the rule.
13 The next issue raised by the plaintiff relates to the proposed pleading at par 14. It repeats the allegation at 4.2 that it was an express term of the blasting contract that the drilling was to be completed in accordance with the drilling pattern provided by the defendant to the plaintiff. The plaintiff also contends that the particulars of par 14 include an event that occurred after the agreement was made. In my opinion there is no reason to allow for repetition.
(Page 6)
14 As to par 16(b) of the proposed pleading the plaintiff contends that the defendant ought not to be permitted to identify individuals who were parties to a course of dealings between the parties. The plaintiff contends that it would be disadvantaged by a late plea and in advancing that proposition it relied upon evidence of difficulty in locating persons named at par 16(b). In my opinion that difficulty does not amount to a valid objection to the proposed amendment.
15 The last issue relates to the datum provided at par 25.2 by which the breaches for which the defendant contends would be measured. It is that the performance of the blast and material fragmentation was very poor. I take from the broader context provided by par 25 that the defendant had intended to refer to the results of the production blast. In my opinion the expression "very poor" is an insufficient pleading as it fails to inform.
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