| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SUNICH -v- FLUOR AUSTRALIA PTY LTD [2003] WADC 157 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 16 DECEMBER 2002 DELIVERED : 21 JULY 2003 FILE NO/S : CIV 2021 of 2000 BETWEEN : ANTE TONY SUNICH Plaintiff
AND
FLUOR AUSTRALIA PTY LTD
Defendant
CBI CONSTRUCTORS PTY LTD
First Third Party
MURRIN MURRIN OPERATIONS PTY LTD
Second Third Party
Catchwords: Practise - Western Australia - Practise under the Rules of the Supreme Court - Application to amend a pleading, for a stay, alternatively, for the trial of a preliminary issue
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Legislation:
Workers' Compensation and Rehabilitation Act 1981, Pt IV, Div 2
Result: Application unsuccessful Representation:
Counsel:
Plaintiff : Mr A J Castley
Defendant : Mr C C Rimmer
First Third Party : No appearance
Second Third Party : No appearance
Solicitors:
Plaintiff : Bradford & Co
Defendant : Jackson McDonald
First Third Party : No appearance
Second Third Party : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The defendant's application to amend, for a stay and in the alternative, trial of a preliminary issue was before me on 16 December 2002 for determination. At the conclusion of the hearing, I gave the parties the opportunity to reflect upon what had been canvassed during the course of the hearing and afford to them the opportunity to make further submissions.
2 Some time after that date, I was advised by the parties that they wished to have the application determined on the basis of the submissions put at the hearing but that the proposed amendment the subject of the application be that forwarded to the plaintiff under cover of a letter dated 20 January 2003. 3 Perhaps I could be forgiven for the delay in dealing with the issue which was presented upon receipt of the defendant's letter of 29 April 2003, although I accept that does not excuse the delay. 4 It transpires that upon reading the transcript of the submissions, the issue which prompted me to defer consideration of the proposal to amend was my recognition of the prospect that the defendant had not been given leave to file the pleading which it was then in the process of seeking to further amend. The parties had then appeared to be in agreement with that assessment. 5 Although there are obviously differences between the minute the subject of the hearing and the minute presently before me, there is nothing at all that addresses the prospect that I alluded to at the hearing. In the letter addressed to me by the defendant's solicitors, it seems that each of the plaintiff and defendant are content that I determine the application in the absence of further submissions and that I should communicate with the parties should I seek to receive further submissions. 6 I do not criticise either party for adopting that position, however, it is not for the Court to assess how a party should proceed in an application. That is for the parties themselves. Accordingly, I infer that the parties would have me make a determination on the information presently before me. 7 I have now read through the file in order to determine the status of the defence. It was filed on 1 March 2001 and on the basis of that pleading the action was entered for trial on 21 January 2002. In the context of the hearing of the pre-trial conference on 25 February 2002, the defendant was given leave to file and serve an amended defence. I presume that that leave was by consent as, in the ordinary course, the
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defendant would otherwise have been expected to generate and serve the proposed amendment before the issue was considered. 8 Be that as it may, on 6 March 2002, an amended defence was filed. On 17 April 2002, the defendant filed what it described as a substituted amended defence. On a brief overview of the amended defence and the substituted amended defence, I cannot detect any difference. 9 On 24 May 2002, an order was made that the defendant file and serve a fresh set of papers for the Judge prior to the listing conference. It is fair to assume that at the time that order was made, the plaintiff had been served not only with the amended defence, but also the substituted amended defence and that the order made reflected that fact. Thereafter, the minute the subject of the application and the minute now before me were filed. 10 That history is relevant to the application as during the course of the submissions, the plaintiff sought to deal with a substantive defence which first appeared in the amended defence filed on 6 March 2002. As I indicated at the hearing, it seemed to me that the submission was made late. 11 As I indicated, I consider that it is reasonable to assume that the order as having allowing for the amendment was made by consent and that such consent ought to be taken as having been provided as a result of the plaintiff being aware of at least the gist of the proposed amendment. If that was not the case and the plaintiff was thereby disadvantaged, then it seems to me that it would have been appropriate for the plaintiff to have then made an application to contest either the process or the terms of the amendment. 12 Furthermore upon service of the pleading filed 17 April 2002, he ought to have then reflected upon any substantive issue raised by that document. The same consideration applies to its receipt of the defendant's reply filed on 30 May 2002. 13 I accept that particulars are not the same as pleadings and, conceivably, that the plaintiff may have chosen to seek to understand the defendant's case prior to seeking to have it struck out, however, the particular requests do not go to the relevant part of the pleading and, more significantly, in my opinion, as at the date of the hearing of the defendant's application, some nine months had elapsed since the substantive amendment was put on record.
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14 I appreciate that the real issue to be addressed in the context of an application being made to file a substantially different pleading is the reason why the proposal was not filed at first instance. In this case, it may have been of some interest to both the plaintiff and the Court as to why it was that the defendant initially chose not to raise the additional substantive issue.
15 Although in the context of the hearing before me in December, issues were raised with that pleading, there was no issue raised in relation to the defendant's motivation in having sought to amend those terms. That probably was a result of the fact that the issue had really been considered at the time that the order was made at the pre-trial conference and the plaintiff was no longer concerned. 16 It seems to me that the only conclusion open on all of those considerations is that once the amended pleading had been filed, absent the prospect that it utterly failed to inform or that it otherwise required further particulars to be given over and above those sought, the Court should take it to be the case that the amendment served the proper function of a pleading, and that is to inform. It is proper to conclude that it had succeeded in that task to the satisfaction of the plaintiff. 17 It transpired that the pleading sought to be lodged by the defendant under the application before me in December may have manifested the defendant's recognition of the prospect of there being deficiencies in relation to the substantive amendment effected on 6 March 2002. In particular, at that time allegations of material fact were sought to be made from which the pleading of the defence could be established. 18 The issue then raised in relation to those proposed allegations by the plaintiff were particularly directed to the failure of the defendant to provide particulars of the contract between itself and the first third party. 19 The particular allegation is as follows: "11AA The Defendant says further that pursuant to the Contract the First Third Party was engaged by the Defendant as a subcontractor to install Site Fabricated Tanks on the relevant premises ('the Installation of Tanks'). The Defendant will refer to the Contract at trial for its full terms and effect." 20 In my opinion, it is conceivable that the second sentence relates to the first. That said, it is also conceivable that the first sentence would be
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established on the basis of either the full terms of the contract or its effect. Unfortunately, the second sentence does not expressly put either proposition. To the extent that the defendant seeks to rely upon the effect of the contract it is at least obliged to specify the effect for which it contends. 21 If it is the case that the second sentence does not relate to the first, then it is either meaningless or puts a case which cannot be identified. In my opinion, until some certainty is given, it ought not to proceed as part of the defendant's defence. 22 The next issue raised by the plaintiff is in relation to par 11AB. It is as follows: "11AB The Installation of Tanks was directly a part or process in the trade or business of the Defendant and was the work on which the Plaintiff was employed at the time of the Plaintiff's alleged accident (such accident not being admitted by the Defendant)." 23 During the course of the submissions, the plaintiff had expressed some difficulty with the allegation of material fact made at par 11AB. 24 It appears to me that the purport of the minute filed subsequent to the hearing is to provide particulars of the defendant's business, the work in which it was engaged at the material time, the process in which the third party was engaged at that time and the activity then being conducted by the plaintiff. Accordingly, the objection may now have been addressed. 25 The issue raised by the application insofar as it draws upon the latest minute is as to the sufficiency of the proposed pleading as a pleading. As I have already indicated, the primary consideration is that a pleading informs. A significant additional consideration is that pleadings define the issues to be tried. I accept that the mechanism known as the close of pleadings is such that practise determines that replies are not necessary, they do serve the purpose of allowing for such definition. The point that I am leading to is that, in my opinion, it is appropriate that what are now provided by way of particulars are pleaded as allegations of material fact which, in truth, is what they are, so as to at least enable the plaintiff to file a useful reply should he choose to do so. It is not appropriate for the plaintiff to plead to particulars. 26 Another significant issue raised by the plaintiff at the hearing was the alleged inconsistency between what is pleaded in response to the
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plaintiff's allegation that the defendant was an occupier and controller of the relevant premises and the allegations sought to be put by way of the proposed amendments as to the defendant's contractual relationship with its principal and the third party. 27 The relevant pleading at that point appears to be no more than that the defendant engaged the third party to fulfil the defendant's contractual obligations and, to that end, the third party was engaged in the process of fabricating tanks at the relevant premises prior to their installation and then going about the task of their installation. There is nothing to suggest that the defendant's engagement of the third party or that, by the third party's activities, the defendant had either a physical or notional presence at the premises so as to constitute it an occupier. 28 Accordingly, in my view, there is nothing inconsistent in the approach which I understand that the defendant seeks to take in its pleading. It denies the plaintiff's allegation and simply puts forward allegations of material fact and presently, particulars, which would indicate the extent of the defendant's interests in the works the subject of the third party's contractual obligations. It may transpire that, on the evidence, determinations may be made that would point to the prospect of the plaintiff's success in relation to the issue. If the defendant does not wish to accord that success by way of admission, it is free to not do so. 29 Accordingly, it is my opinion that the proposal of the defendant does not accord with my understanding of proper practise. It is appropriate that the second sentence of par 11AA be removed, and that what appear as particulars to par 11AB are properly provided as allegations of material fact. 30 In light of the failure of that part of the application before I further address the application I will consider further submissions.
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