| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SCATES -v- CITY OF STIRLING [2013] WADC 14 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 24 JANUARY 2013 DELIVERED : 12 FEBRUARY 2013 FILE NO/S : CIV 2178 of 2011 BETWEEN : STEPHEN BRIAN SCATES Plaintiff
AND
CITY OF STIRLING
First Defendant
MARIA DOLORES GUELFI
Second Defendant
COLIN RICHARD GUELFI
Third Defendant
ALLAN MICAHEL GUELFI
Fourth Defendant
CAROLYN MOYA CELENZA
Fifth Defendant
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Catchwords: Practice and procedure - Application for summary judgment and to strike out pleading - Amendment to statement of claim after limitation period - Consideration of principles in Jeffrey v Witherow - Consideration of effect of s 55 Land Administration Act - Consideration of the adequacy of the pleading generally Legislation: Land Administration Act 1997 s 55 Result: Application successful in part
Representation: Counsel:
Plaintiff : Mr T Lampropolous
First Defendant : Mr G R Hancy
Second Defendant : Ms A Danti
Third Defendant : Ms A Danti
Fourth Defendant : Ms A Danti
Fifth Defendant : Ms A Danti
Solicitors:
Plaintiff : Vertannes Georgiou
First Defendant : DLA Piper Australia
Second Defendant : WHL Legal Pty Ltd
Third Defendant : WHL Legal Pty Ltd
Fourth Defendant : WHL Legal Pty Ltd
Fifth Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Jeffrey v Witherow (2006) 31 WAR 236
Renowden v McMullin (1970) 123 CLR 584
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1 DEPUTY REGISTRAR HEWITT: By application filed on 11 April 2012, the first defendant sought orders striking out the statement of claim in this action and entering a judgment for the defence. Subsequently a minute of proposed amended statement of claim was filed leading the applicant to modify to some extent the orders sought and in the oral submissions which I heard on the hearing of this matter on 24 January, the position of the applicant first defendant was further modified in the sense that it ceased to apply for an order dismissing the claim in the light of the fact that contribution proceedings had had been brought against it by others of the defendants and it was acknowledged that such an order would defeat those claims.
2 The plaintiff's case arises from an accident in which the plaintiff, who was legally blind, fell over a low wall and suffered injuries leading to tetraplegia. The first defendant is a local government authority and was originally sued on the basis that the area where the plaintiff suffered his accident was a road, under its control and for which it was responsible. The ambit of the claim has since been enlarged in an amended statement of claim which in its terms raises further issues. The issues to be resolved are whether the relevant land was a road under the control of the first defendant, whether the amendments which have been made to the statement of claim (which have introduced a proposed basis of liability emanating from the first defendant's control over, and responsibility for, building works within its boundaries), are permissible amendments given that they were filed after the expiry of a limitation period and finally whether the pleading in the form filed is satisfactory and should be allowed to stand. This being an interlocutory application it has to some extend hybridised from its original form as a summary judgment application into something rather more akin to an abuse of process application where it is contended by the first defendant that some of the matters pleaded by the plaintiff simply cannot be sustained and as a consequence the plaintiff should not be entitled to advance his case on the basis of those allegations. 3 As I mentioned the first issue is whether the relevant area was a road under the control of the first defendant. In a nutshell the claim against the first defendant in regard to this head is that pursuant to s 55(2) of the Land Administration Act 1997 the relevant area was a road under the control of the first defendant constituting it an occupier and as such liable under the provisions of the Occupier's Liability Act 1985. 4 The relevant area is in Main Street, Osborne Park. The second to sixth defendants are the owners of premises in that street and the relevant (Page 4)
premises has a paved area immediately in front of it, followed by a bituminised area which is dedicated as a carpark, presumably for clients of the businesses run from the premises, followed by a further area which has the appearance of a footpath, leading directly onto the road itself. The starting point for my analysis is the definition of roads in the Land Administration Act 1997 which in s 3 defines a road to mean: Subject to section 54, land dedicated at common law or reserve declared or otherwise dedicated under an Act as an alley, bridge, court, lane, road, street, thoroughfare or yard for the passage of pedestrians or vehicles or both. 5 I next turn to the section of the Act which is relied upon by the plaintiff namely s 55. That section provides as follows: 6 On my analysis of the relevant section if a piece of land is to be regarded as a road under the control of the first defendant, it must be (Page 5)
vested in the Crown, since it is only such land which falls under the control of a local government authority. 7 I have been presented with a plethora of information concerning the situation of this road and the titles of the various parties to this action to relevant land. What is abundantly clear is that the land remains the freehold property of the second to sixth defendants. It is not vested in the Crown, and as a consequence is not, in my opinion, a road under the control of the first defendant within the meaning of the Act. As a consequence of that finding, I am of the view that it is not open to the plaintiff to rely upon the provisions of s 55(2) of the Land Administration Act 1997 as a basis to contend that the relevant area was by virtue of the Act under the control of the first defendant such that it could be constituted an occupier of the land and responsible for events which took place on it. My conclusion is therefore that insofar as the plaintiff relies upon the proposition that the relevant land is a road under the control of the first defendant, its action against the first defendant is unsustainable. 8 The next issue to consider arises from the amended statement of claim which was filed on 1 May 2012. That amendment contains a novel approach to the issue. In brief, it is suggested that the first defendant, as the relevant local authority was invested with a level of building control such that it was required to approve plans for building developments and inspect buildings to ensure that they were safe for use by the public. In my view the pleading is inadequate but that is an issue with which I will deal later. In essence, it seems to me that what the amendments are seeking to introduce is the proposition that the relevant building or buildings were built in an unsafe manner and that the first defendant must bear some responsibility for approving plans which allowed that to happen and for failing to inspect and detect the danger which was created by the inadequate design. 9 It is argued by the applicant first defendant that the amendments should not be allowed. The contention is that the plaintiff's accident occurred in July 2008, that the amendments constitute a new cause of action, that the amendments were introduced after the expiry of a relevant limitation period, and for those reasons should be disallowed. 10 In my view there is no doubt that the amendments introduce a new cause of action, and there is no doubt that new cause of action was introduced after the expiry of a limitation period. The issue to be determined is whether those factors in combination should lead me to strike out the cause of action introduced by the amendments. (Page 6)
11 The first defendant primarily relies upon the High Court authority of Renowden v McMullin (1970) 123 CLR 584. In brief, that authority is proposition for the fact that if, following a broadly expressed endorsement of claim, a statement of claim is filed, those causes of action which might have been supported by the endorsement, if not included in the statement of claim, are deemed abandoned. In this case, the endorsement of claim could scarcely have been broader. Insofar as the endorsement relates to the first defendant it is in the following terms: The plaintiff claims damages against the first defendant for injuries and loss sustained by the plaintiff in an accident which occurred on 8 July 2008 at 237 – 239 Main Street Osborne Park which accident was caused by the negligence and/or breach of statutory duty of the first defendant, servants or agents. 12 If the authority of Renowden is applicable in the present circumstances then clearly the further causes of action sought to be introduced by the amended statement of claim filed in 2012 would be deemed abandoned and unsustainable. The matter does not conclude there however because this issue has received the attention of the Court of Appeal in Jeffrey v Witherow (2006) 31 WAR 236. In that case, the Court of Appeal considered the Renowden decision and concluded that it was based upon provisions of the Rules of the Victorian Supreme Court 2004 which are not duplicated in the Rules of the Supreme Court in Western Australia, making the principles in Renowden inapplicable within this jurisdiction. The conclusion reached was that causes of action which could have been embraced by an endorsement of claim are not to be regarded as abandoned because they were not included in a statement of claim and may at a subsequent stage, and after the expiry of a limitation period, be pleaded in an amended statement of claim. 13 The authority is in my view binding and as a consequence I consider that the argument which has been advanced by the first defendant in relation to the amendment issue should fail. 14 I now turn to the final of the issues which confront me, that being the adequacy of the pleading. On that score, I do not consider the pleading to be at all adequate. Although it is pleaded that the first defendant bore a responsibly imposed upon it by the provisions of the Local Government Act 1960 (that being the relevant legislation at the time the buildings were constructed) there is not to my mind a proper connection between the pleaded statutory provisions and the inadequacies which are said to have been the cause of the plaintiff's accident. (Page 7)
15 I do not intend to exhaustively analyse the pleading, I think its sufficient to say that the plaintiff has identified certain statutory responsibilities which are imposed upon the first defendant by virtue of the Local Government Act 1960 in relation to building approvals and buildings within its area but has neglected at any stage to plead that the relevant buildings were the subject of an application for approval, that relevant plans were submitted or any matter of that kind. In making these remarks I do not intend to convey the impression that there is a fundamental problem facing the plaintiff in pleading this matter adequately, I simply comment that as presently pleaded it is simply not satisfactory. Additionally it would seem that the plaintiff wishes to plead a further matter arising out of some additional development which was undertaken by the first defendant, with the agreement of the relevant occupiers of the land, to smarten up the precinct and which involved laying brick paving in the area where the plaintiff was injured. That matter does not appear in the statement of claim as it is presently formulated and counsel has strongly indicated that it is his intention to plead that additional cause of action. That being the case I think that it would be appropriate for the plaintiff to reconsider the whole of the statement of claim in the light of these reasons. In my view that statement of claim should not include a claim based upon the proposition that the relevant land was a road under the control of the first defendant.
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