SARRION PTY LTD -v- BRAMBLES AUSTRALIA LTD [2004] WASC 12

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 12
Case No:	CIV:1954/2001	Heard:	3 DECEMBER 2003
Coram:	MASTER NEWNES	Delivered:	10/02/04
No of pages:	18	Judgment Part:	1 of 1
Result:	Application to amend dismissed
Category:	B
PDF Version

Parties:	SARRION PTY LTD (ACN 062 347 077) BRAMBLES AUSTRALIA LTD (ACN 000 169 938)
Catchwords:	Practice and procedure Application to amend statement of claim Whether proposed amendments embarrassing or disclose arguable cause of action Turns on own facts
Legislation:	Fair Trading Act 1987 (WA), s 11, s 79(2) Rules of the Supreme Court 1971, O 21 r 5 Trade Practices Act 1974 (WA), s 52, s 82(2)
Case References:	ABB Service Pty Ltd v Hetherington & Anor [2001] WASCA 417 Carey Hazel v Getz Brothers & Co (Aust) Pty Ltd [2001] FCA 703 Drambo Pty Ltd v Westpac Banking Corporation Ltd (1992) 37 FCR 263 Fenech v Sterling (1983) 51 ALR 205 Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853 PSL Industries Pty Ltd v Simplot Australia Pty Ltd [2003] VSCA 7 State of Western Australia v Wardley Australia Ltd & Ors (1991) 30 FCR 245 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Australia and New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286 BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) ATPR 40-771 Byass v Energy Power Systems Australia Pty Ltd [2003] WASC 160 Carey Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 341 Girando v Padbury (1919) 22 WALR 7 Grundy v Lewis (1995) 62 FCR 567 Hamersley Iron Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2000] WASC 66 Harris v Cigna Insurance Australia Ltd and Dicke (1995) ATPR 41-445 Harris v Western Australian Exim Corporation (1994) 56 FCR 1 Macpherson v Wingecarribee Shire Council & Ors, unreported; SCt of NSW (Greenwood M); 19 March 1997 McGee v Yeomans [1977] 2 NSWLR 273 Morgan v Banning (1999) 20 WAR 474 Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 Odin Central Service Pty Ltd (trading as Gregory's Plumbing & Pipeline Services) v Interstruct Pty Ltd (1992) ATPR 46-084 State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 116 ALR 363 Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 The Bell Group Ltd (In Liq) v Westpac Banking Corporation [2001] WASC 315 The Crown v McNeil (1922) 31 CLR 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SARRION PTY LTD -v- BRAMBLES AUSTRALIA LTD [2004] WASC 12 CORAM : MASTER NEWNES HEARD : 3 DECEMBER 2003 DELIVERED : 10 FEBRUARY 2004 FILE NO/S : CIV 1954…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASC 12
Decision Date

CaseChat Overview and Summary

SARRION PTY LTD sought to amend its statement of claim against BRAMBLES AUSTRALIA LTD to include claims under the Trade Practices Act 1974 (WA) and the Fair Trading Act 1987 (WA) alleging misleading and deceptive conduct. SARRION sought to amend the pleadings by way of a minute of amended statement of claim. The amendment was opposed by BRAMBLES on the basis that the proposed pleas were embarrassing and that the claims were out of time. The court was required to determine whether the proposed amendments were embarrassing and whether they disclosed arguable causes of action. The court found that the proposed amendments were embarrassing and did not disclose arguable causes of action. The proposed amendments were found to be unclear and ambiguous in identifying the specific conduct relied upon by the plaintiff and the causal link between the conduct and the alleged damage. The court also considered the limitation issue and found that it was not appropriate to determine the limitation issue at that stage. The application to amend the statement of claim was dismissed.

The court found that the proposed amendments were embarrassing and did not disclose arguable causes of action. The court found that the proposed amendments were unclear and ambiguous in identifying the specific conduct relied upon by the plaintiff and the causal link between the conduct and the alleged damage. The court also considered the limitation issue and found that it was not appropriate to determine the limitation issue at that stage. The application to amend the statement of claim was dismissed. The court found that the proposed amendments were embarrassing and did not disclose arguable causes of action. The court found that the proposed amendments were unclear and ambiguous in identifying the specific conduct relied upon by the plaintiff and the causal link between the conduct and the alleged damage. The court also considered the limitation issue and found that it was not appropriate to determine the limitation issue at that stage. The application to amend the statement of claim was dismissed.

Orders