Scarfe, Delegate of the Chief Executive Officer of Customs v Coflexip Stena Offshore International SA

[2000] WASC 191

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SCARFE, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF CUSTOMS -v- COFLEXIP STENA OFFSHORE INTERNATIONAL SA & ORS [2000] WASC 191

CORAM:   MASTER SANDERSON

HEARD:   1 & 20 JUNE 2000

DELIVERED          :   27 JULY 2000

FILE NO/S:   CIV 1721 of 1999

BETWEEN:   ROBERT WILLIAM SCARFE, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

Plaintiff

AND

COFLEXIP STENA OFFSHORE INTERNATIONAL SA
First Defendant

COFLEXIP SA
Second Defendant

COFLEXIP STENA OFFSHORE ASIA PACIFIC PTY LTD
Third Defendant

FLORA JANE DIXON
Fourth Defendant

TASSO PAPAELIAS
Fifth Defendant

ERNST & YOUNG (SUED AS A FIRM)
Sixth Defendant

Catchwords:

Practice and procedure - Supplementary reasons - No point of principle

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr M J McCusker QC & Mr E Carlose

First Defendant             :     Mr P C S Van Hattem

Second Defendant         :     Mr P C S Van Hattem

Third Defendant           :     Mr P C S Van Hattem

Fourth Defendant          :     Mr M J Deleuil

Fifth Defendant            :     Mr M J Delueil

Sixth Defendant            :     Mr M J Deleuil

Solicitors:

Plaintiff:     Australian Government Solicitor

First Defendant             :     Freehills

Second Defendant         :     Freehills

Third Defendant           :     Freehills

Fourth Defendant          :     Mallesons Stephen Jaques

Fifth Defendant            :     Mallesons Stephen Jaques

Sixth Defendant            :     Mallesons Stephen Jaques

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

E F Hutton & Co v Mofarrij [1989] 1 WLR 488

Scarfe, Delegate of the Chief Executive Officer of Customs v Coflexip Stena Offshore International SA & Ors [2000] WASC 153

Waterhouse v Reid [1938] 1 KB 743

Case(s) also cited:

Nil

MASTER SANDERSON: 

Supplementary reasons for judgment

1. Subsequent to judgment being handed down in this matter on 13 June 2000 (Scarfe, Delegate of the Chief Executive Officer of Customs v Coflexip Stena Offshore International SA & Ors [2000] WASC 153), counsel for the first, second and third defendants raised a number of matters which it was said were not dealt with in my judgment. Having reviewed the judgment and the submissions put, I am satisfied that there is one matter raised by counsel to which I did not deal with in my reasons.

2. In this action leave was given to serve the first and second defendants by serving their agent within the jurisdiction.  From this decision there was an unsuccessful appeal.  Counsel argued that leave to amend the statement of claim should not be granted if the effect was to raise a claim which was not included in the writ which was served.  In support of this proposition reference was made to Waterhouse v Reid [1938] 1 KB 743 and E F Hutton & Co v Mofarrij [1989] 1 WLR 488.

3. With respect, I think the principle, correctly stated, is that an amendment to the statement of claim will not be permitted where the relief sought is not claimed in the writ and in respect of which leave to serve notice of the writ outside the jurisdiction would not be granted.  Leaving to one side the question of whether this principle applies when service is effected upon an agent within the jurisdiction, there is no basis for saying in this case that leave would not have been granted to serve outside the jurisdiction in relation to claims now raised against the first and second defendants.  On that basis, I am satisfied that there is nothing in this point which would prevent the amendment to the statement of claim as sought by the plaintiff.

4. As to the other matters raised by counsel, I am satisfied that my reasons for decision covered all matters which were live issues between the parties.