Smith v The Executive Director of the Department of Conservation and Land Management

[2000] WASC 211

SMITH & ORS -v- THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2000] WASC 211

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 211
Case No:	CIV:2203/1998	Heard:	20 JUNE 2000
Coram:	McKECHNIE J	Delivered:	24/08/00
No of pages:	9	Judgment Part:	1 of 1
Result:	Leave to continue action granted
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Parties:	JOHN WILLIAM SMITH MURRAY AUSTIN SMITH IAN FRANCIS SMITH TRADING AS JEBARJUP PASTORAL COMPANY MICHAEL TERENCE ARMSTRONG ANNE ROSALIE ARMSTRONG TRADING AS M T & A R ARMSTRONG THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
Catchwords:	Limitation of action Material prejudice No new principles Turns on own facts
Legislation:	Limitation Act 1935 (WA), s 47
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SMITH & ORS -v- THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2000] WASC 211 CORAM : McKECHNIE J HEARD : 20 JUNE 2000 DELIVERED : 24 AUGUST 2000 FILE NO/S : CIV 2203 of 1998 BETWEEN : JOHN WILLIAM SMITH

MURRAY AUSTIN SMITH
IAN FRANCIS SMITH TRADING AS JEBARJUP PASTORAL COMPANY
First Plaintiffs

MICHAEL TERENCE ARMSTRONG
ANNE ROSALIE ARMSTRONG TRADING AS M T & A R ARMSTRONG
Second Plaintiffs

AND

THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
Defendant

Catchwords:

Limitation of action - Material prejudice - No new principles - Turns on own facts

(Page 2)

Legislation:

Limitation Act1935 (WA), s 47

Result:

Leave to continue action granted

Representation:

Counsel:

First Plaintiffs : Mr P P McCann
Second Plaintiffs : Mr P P McCann
Defendant : Mr M A McAuliffe

Solicitors:

First Plaintiffs : Phillips Fox
Second Plaintiffs : Phillips Fox
Defendant : McAuliffe Schwikkard

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

Case(s) also cited:

Nil

(Page 3)

McKECHNIE J:

Introduction

1 In granting conditional leave to the plaintiffs on 30 November 1999 I said in conclusion:

"66 It is just to grant leave to the plaintiffs to bring an action for damages arising from the fire which burnt their properties on 3 January 1997.

67 Even though the plaintiffs have failed to discharge the onus of establishing that the defendant has suffered no material prejudice by the delay, I am reluctant to finally dispose of this matter without the benefit of a statement of claim where the loss is fully particularised.

68 It may be that the matters raised by Mr Rees do not in the end amount to material prejudice having regard to the way in which the plaintiffs' claim is formulated and the damages sought to be proved.

69 I will therefore grant leave to the plaintiffs to bring an action for damages, on condition that the parties have liberty to apply in these proceedings to determine which parts, if any, of the statement of claim should be struck out on the basis of material prejudice to the defendant. In such an application the plaintiffs will have the burden of justifying the pleadings on this point."

2 By orders made on 25 January 2000 and 8 March 2000 the action proceeded as follows:

"1. The plaintiffs have leave to bring an action against the defendant subject to the conditions that:

1.1 The plaintiffs file and serve a writ of summons endorsed with a statement of claim within 35 days.

1.2 By 20 March 2000, the plaintiffs file in this action any affidavits on the issue as to whether the defendant is materially prejudiced in its defence of any of the heads of damages pleaded.

(Page 4)

1.3 Within 14 days of the service of the plaintiffs' affidavits, the defendant file and serve any answering affidavits.

1.4 Both actions be re-listed before Justice McKechnie for final determination of the plaintiffs' application for leave.

2. The costs of the plaintiffs' application be reserved."

3 In support of its application the first plaintiffs filed affidavits dated 24 March 2000 from Mr Roderick Gordon Grieve, a farm management consultant, who has been a consultant to the first plaintiffs, the Smiths, since 1994.

4 An affidavit of Peter John Briscoe, a farm management and business consultant, on behalf of the second plaintiffs, the Armstrongs, was filed on 21 March 2000.

5 Mr Richard John Priestley, an insurance loss adjuster, swore an affidavit dated 20 March 2000 in respect of the loss said to have arisen to both sets of plaintiffs.

6 In response, and well beyond the time set out in the earlier order but without objection, the Executive Director filed an affidavit of David Rees, agricultural consultant.

7 On 20 June 2000 I ordered that the matter was to proceed without oral hearing but by way of written submissions and then set out a timetable for submissions including the plaintiffs' submissions in reply by 21 July 2000.

8 In my judgment of 30 November 1999 I concluded that the plaintiffs had not established that the delay in giving notice was occasioned by reasonable cause and left open for further argument the issue whether the defendant was materially prejudiced. At that stage the plaintiff had not discharged its evidentiary burden in light of the fact that there was a report from Mr Rees tendered by the defendant and no responsive material for the plaintiffs.

9 The affidavits now filed are an attempt by the plaintiff to make good the deficiency.

(Page 5)

Approach to the evidence

10 It is not my function to assess damages or to resolve significant factual disputes.

11 The plaintiffs' experts assert that the defendant has not been materially prejudiced. These opinions are untested by cross-examination. Rather than facing the prospect of trying the action by affidavit, the focus of attention must be in respect of the affidavit of Mr Rees.

12 I propose to examine that affidavit in the light of the heads of damage claim by each of the plaintiffs.

13 Those claims are particularised as follows:

The Smiths' claim of heads of damage

Actual crop losses $60,762.00

Productivity losses in the 1997 season:

Daliak paddock $12,425.00

Rock dam paddock $23,166.00

500 acre paddock $10,855.00

Windrow paddock $17,592.44

Loss of grazing $ 5,327.00

Destroyed and damaged fencing $12,792.50

Damage to tree plantings $28,065.00

Total $170,984.94

The Armstrongs' claim of heads of damage

Loss of crop income:

Actual crop loss $219,846.00

Loss from changed rotation in 1997/1998 season $ 13,772.00

Use of additional chemical sprays $ 11,907.00

Loss of ostriches:

Loss of fertile eggs $ 3,694.00

Loss of ostrich birds $ 22,380.00

Loss of income from ostrich meat $ 48,061.00

(Page 6)

Loss of fencing: $ 31,759.00

Loss of standing remnant bush

(incl. Fencing re-growth areas) $ 45,130.00

Loss of agistment income $ 6,897.00

Total loss and damage $403,446.00

The damages claim can be reduced to several categories.

Smiths' actual crop losses

14 It appears common cause that there were crop losses. The issue is to the extent of those losses.

15 The defendant's evidence does not challenge the measurement of burned acreage in each paddock done by Priestley.

16 Indeed, in par 20 Mr Rees accepts the estimates for loss of noodle wheat although questions the analysis of the yield.

17 The quality of the wheat is calculated by the plaintiffs and based on the actual net in bank prices received for the crop that had already been harvested. Mr Rees accepts this although points out that an inspection would have confirmed the accuracy of the estimated yield and notes that with large claims even a small error could be very costly.

18 In my opinion there is some prejudice to the defendant in the lack of early inspection. This is confirmed by the fact that the Smiths had a portion of grain on the ground after the fire which could have provided some independent assessment of yield from grain size. However, on the whole of the evidence in relation to yield, I am of opinion that the defendant has not been materially prejudiced by the absence of an early inspection or notification. The burden at trial remains on the plaintiffs to prove their loss. Mr Rees' contentions may or may not have an impact on the ability of the plaintiffs to prove that loss. However, I do not consider that the defendant is materially prejudiced by the absence of early inspection in relation to yield having regard to the other available information to properly defend the claim.

19 While an inspection may have confirmed the accuracy, or allowed an approved assessment, there is reasonably sufficient material available to the defendant.

(Page 7)

Farm Management

20 Mr Rees makes comments in relation to farm management by the plaintiffs and its possible correlation to the assessment of crop losses. These matters are fairly open for the defendant to raise at trial but do not of themselves lead to material prejudice in the lack of early notification of the claim. The plaintiffs have made decisions not to rotate crops. They may or may not have made a correct decision as to the order in time in which the crops were harvested. However, those management decisions can be subjected to scrutiny at trial and lack of early notification does not affect them. If the issue becomes important at trial it will relate to the plaintiffs' duty to mitigate their loss. The possibility that poor management may have increased the plaintiffs' loss is no more than that; a possibility. I consider that the lack of early notification to the defendant has not and will not prejudice its ability to lead evidence on the point. It is merely speculative at this stage whether, if CALM had early notification of the claim, it would have proffered management advice to the plaintiffs and whether the plaintiffs would in any event have acted unreasonably if they rejected it and preferred the advice tendered by Mr Grieve and Mr Briscoe.

Pasture

21 Part of the Smiths' claim relates to loss of grazing and damage to the sub-clover pasture.

22 Mr Rees makes the point that early inspection may have assisted in the strategy for dealing with the erosion.

23 In summary, Mr Rees advances several reasons why early inspection would have greatly assisted the defendant. Early inspection was not available due to the lack of notice given by the plaintiffs as required under the Limitation Act.

24 Taking account of the evidence adduced by the plaintiffs themselves and by experts engaged on their behalf, not particularly traversed by Mr Rees and giving due weight to Mr Rees' opinions, I have concluded that there is no sufficient material prejudice to the defendant to justify restriction of the plaintiffs' claims in relation to the loss of crops and grazing, including productivity losses.

25 While a lack of early notification has undoubtedly caused some prejudice to the defendant, in all the circumstances I do not consider the prejudice is one which might reasonably affect the ability of the defendant

(Page 8)

to properly defend the claim or to advance matters of fact which might reasonably be supposed to affect the outcome of the litigation.

Smiths' claim: Damage to tree plantings

26 In addition to loss of crops and grazing there are claims for damaged fencing and damage to tree planting.

27 These matters are not the subject of evidence by the defendant and I consider that no material prejudice arises in allowing these claims to go forward.

Armstrongs' claim: Loss of ostriches and associated matters

28 The defendant has not adduced evidence in response to the affidavit of Mr Briscoe and there is no material prejudice in allowing this claim to go forward.

Loss of fencing and loss of standing remnant bush

29 The same comments apply. The fence lines should be clear and CALM knew generally of the damage caused by the fire. Whether particular fencing was required or necessary is a matter about which Mr Rees comments and is a matter which can be determined at trial without material prejudice to the defendant.

Conclusion on application

30 The plaintiffs have each overcome the burden placed on them to establish that no material prejudice would flow to the defendant such as to limit or refuse their claims.

Costs

31 The general rule under O 66 r 1 is that a successful party to any action or matter will recover the costs of that application.

32 In this case the defendant seeks an order for costs of this application in any event. It is submitted that if the plaintiffs had provided the defendant with the appropriate notification within the statutory time limit then the application would not have been required. In response, the plaintiffs argue that the costs incurred up to the delivery of the judgment

(Page 9)

on 30 November 1999 were almost entirely concerned with the issue of liability upon which the plaintiff succeeded and that on the material prejudice points the plaintiffs have been successful.

33 At the hearing in November 1999 the two issues were whether the plaintiffs' delay in giving notice was occasioned by reasonable cause, or whether the plaintiffs established that the defendant was not materially prejudiced in its defence.

34 I found against the plaintiffs on the first issue.

35 The defendant did not assert that it was materially prejudiced in the defence of the action as to liability. It joined issue on the question of material prejudice as to the issue of damages.

36 The issue was unable to be determined at that hearing because the plaintiffs put forward no evidence to counter the assertions by the defendant that it would suffer material prejudice.

37 The further evidence now adduced and the further hearings and submissions have been necessary because of the plaintiffs' failure to adduce that material in the first place.

38 Had all the material been placed before me in November 1999, I would have held that the plaintiffs had not established a reasonable excuse for the delay but had established that the defendant was not materially prejudiced.

39 The fact that further hearings and material were necessary is entirely due to the plaintiffs.

40 I therefore propose to order that the costs of these proceedings up to and including 30 November 1999 be in the cause of the substantive action but that the plaintiffs pay the defendant's costs incurred in this action from 30 November 1999 in any event.