Skinner v BAMBALOS - [2010] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SKINNER -v- BAMBALOS & ANOR [2010] WADC 119

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 28 JULY 2010

DELIVERED : Delivered Extemporaneously on 28 JULY 2010 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 2378 of 2007

BETWEEN: DAVID PAUL SKINNER
Plaintiff
AND
STEVEN BAMBALOS
First named Defendant
ALLAN RAYMOND PAGES-OLIVER
Second named Defendant

Catchwords:

Pleadings - Late application to amend

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Ms P E Cahill SC
First named Defendant     :     Mr G A Rabe
Second named Defendant     :     Mr G A Rabe

Solicitors:

Plaintiff:     Arns & Associates
First named Defendant     :     Norton Rose Australia
Second named Defendant     :     Norton Rose Australia

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Fletcher (as Trustee for the Brian Fletcher Family Trust) St George Bank Limited [2010] WASC 75
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Traeger v Harris [2010] WADC 101

PRINCIPAL REGISTRAR GETHING: The application before me for determination is an application by the defendants filed on 21 July for leave to amend the defence and the counterclaim.
The application takes as its context the plaintiff's action against the defendants in relation to what is, in essence, a partnership dispute. There are issues relating to representations made as to the basis on which an amount of $60,000 was contributed to the partnership. There are then issues as to the basis on which an account should be taken subsequent to its dissolution.
The application also takes as its context the fact that the action is listed for a trial for seven days commencing on 30 August 2010.
The application was accompanied by a minute of proposed further substituted defence and counterclaim. The defendants by oral application have made an application to effectively discontinue the counterclaim. I will leave that to the end of these reasons.
The authorities, as least as I understand them, in relation to late pleadings amendments, require me to do two things. The first is to work out whether or not the amendments would be allowed on the normal rules of pleadings. The second is to work out, if the answer to that is yes, whether in the exercise of discretion that I should allow the amendment.

Pleadings objections

Turning to the first issue, the starting point when considering an application for leave to amend is that the court will not grant a party leave to make an amendment which could be struck out as defective on any of the grounds set out in Rules of the Supreme Court1971 O 20, r 19(1)(b) to r 19(1)(d). Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32 at 38. In relation to the law generally on pleadings disputes, I have set that out in some detail in an earlier decision, Traeger v Harris [2010] WADC 101, and I rely on that…

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.

Continue reading Skinner v BAMBALOS

Details

AGLC: Skinner v BAMBALOS [2010] WADC 119
Case: [2010] WADC 119
Decision Date: 28 JULY 2010

CaseChat Overview and Summary

In the case of Skinner v BAMBALOS, the plaintiff sought leave to amend their pleadings in a legal dispute which was being heard by the Supreme Court. The defendants objected to the proposed amendments, arguing that they were made too late and were insufficiently particularised. The central issue for the court was whether the plaintiff should be granted permission to amend their pleadings in light of the defendants' objections.

The court first considered the general principles governing applications for leave to amend pleadings. It noted that the court would not grant leave to amend if the proposed amendment could be struck out as defective on certain grounds, such as being insufficiently particularised. The court also highlighted the importance of the party seeking to withdraw admissions to provide a satisfactory explanation for doing so. In this case, the defendants had filed a Minute of Proposed Further Substituted Defence, but the court found that the explanations provided for withdrawing certain admissions and for the lack of particulars were insufficient. The court held that the defendants had not demonstrated that it was in the interests of justice to allow the amendments to be made.

Consequently, the court refused the plaintiff's application to amend their pleadings. The court found that the Minute of Proposed Further Substituted Defence was defective in several respects, including the lack of sufficient particulars and the inadequate explanation for withdrawing admissions. As a result, the plaintiff's application for leave to amend was dismissed. The court's decision highlights the importance of providing clear and compelling reasons for seeking to amend pleadings, particularly when doing so at a late stage in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Turning to the first issue, the starting point when considering an application for leave to amend is that the court will not grant a party leave to make an amendment which could be struck out as defective on any of the grounds set out in Rules of the Supreme Court1971 O 20, r 19(1)(b) to r 19(1)(d). Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32 at 38. In relation to the law generally on pleadings disputes, I have set that out in some detail in an earlier decision, Traeger v Harris [2010] WADC 101, and I rely on that statement of the authorities at [18] and following as the broad context for the determination of the present application. The defendants have filed a Minute of Proposed Further Substituted Defence dated 21 July 2010 ("Minute"). For present purposes it is only necessary for me to deal with two categories of the alleged defects. They are that the Minute contains withdrawals of admissions and that the Minute contains pleadings which are insufficiently particularised. In relation to the former, at par 2 of the Minute the defendants seek to withdraw an admission at par 2 of the statement of claim in relation to the formation of the relevant partnerships. In par 11 of the Minute the defendants seek to withdraw an admission relating to the circumstances of the dissolution of the partnership. The law in relation to the withdrawal of admissions requires me to consider the explanation as to why the party seeks to withdraw the admissions. In support of this application the defendants filed an affidavit of their solicitor Ms Callanan, dated 21 July 2010. The circumstances of the amendments are basically that on the evening of Thursday, 17 June 2010, counsel then retained for the trial advised that he was no longer able to appear as counsel. Alternate counsel was briefed. The defendants retained and took advice from alternate counsel. Ms Callanan deposes that (par 5(d)): "… as a result of considering that advice I am instructed by the defendants to apply for leave to amend the defence and counterclaim in accordance with the Minute." That is the only explanation as to why the amendments have been made and, in particular, why the admissions have been withdrawn. As I understand the authorities, the onus is on the defendants, as the party seeking to withdraw the admissions, to establish why it is in the interests of justice that it be allowed to do so. In this case, and on the material available to me, I am not persuaded that it is in the interests of justice to grant leave to withdraw the admissions. In relation to particulars, in the recent case of Fletcher (as Trustee for the Brian Fletcher Family Trust) St George Bank Limited [2010] WASC 75 the Chief Justice stated (at [30]): "… it is incumbent upon the party moving the amendment to provide all necessary and appropriate particulars within the amendment proposed." This comment was made in the context of an application for leave to amend at a late stage in the action. In the present case, the Minute is defective in relation to particulars in at least three respects. The first is in relation to par 9(a)(ii). That paragraph provides: "… the quality of the plaintiff's work in the business was poor and resulted in numerous complaints from customers of the Third Partnership who had previously provided their a custom to the First and Second partnerships."