The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd
[2014] WASC 286
•11 AUGUST 2014
THE PILBARA INFRASTRUCTURE PTY LTD -v- BROCKMAN IRON PTY LTD [2014] WASC 286
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 286 | |
| Case No: | CIV:2512/2013 | ON THE PAPERS | |
| Coram: | EDELMAN J | 11/08/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE PILBARA INFRASTRUCTURE PTY LTD BROCKMAN IRON PTY LTD ECONOMIC REGULATION AUTHORITY |
Catchwords: | Practice and procedure Strike out application Whether first defendant sought to revoke an admission made Construction of the admission made by the first defendant Whether plaintiff's amendment changed the meaning of the paragraph to which the first defendant had pleaded Whether the first defendant should be given leave to amend its pleading |
Legislation: | Railways (Access) Code 2000 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BROCKMAN IRON PTY LTD
First Defendant
ECONOMIC REGULATION AUTHORITY
Second Defendant
Catchwords:
Practice and procedure - Strike out application - Whether first defendant sought to revoke an admission made - Construction of the admission made by the first defendant - Whether plaintiff's amendment changed the meaning of the paragraph to which the first defendant had pleaded - Whether the first defendant should be given leave to amend its pleading
Legislation:
Railways (Access) Code 2000 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Allen & Overy
First Defendant : Herbert Smith Freehills
Second Defendant : State Solicitor for Western Australia
Cases referred to in judgment:
Nil
- EDELMAN J:
Introduction
1 The central issue in this proceeding is whether Brockman Iron made a valid 'proposal in writing for access' to the railway infrastructure of TPI, within s 8(1) and s 8(3) of the Railways (Access) Code 2000 (WA). If Brockman Iron made a valid proposal in writing then TPI has various obligations under the Code concerning negotiations for an access agreement. This matter is set down for trial in a week's time.
2 On 29 July 2014, the plaintiff, TPI, brought an application to strike out an amendment made by Brockman Iron on 21 July 2014. The amendment was to par 7(a) of Brockman Iron's defence. The reason for the strike out application was, TPI says, that Brockman Iron has sought to withdraw an admission late in the proceedings.
3 Brockman Iron said that neither of its counsel was available to argue the application at any stage prior to the first day of trial next week. Brockman Iron sought to have this application deferred to the first day of trial. I declined to accept this proposal. By a combination of co-operation and good sense, TPI agreed that the matter should be dealt with on the papers. The reasons which follow must be read in the context that they have not been the subject of oral argument. In places, I have expressed my understanding of points made in written submissions or in pleadings where those points are not entirely clear. If any ambiguity remains then it can be addressed in submissions at the commencement of trial. But this issue is one which cannot be left unresolved before the trial next week.
4 For the reasons below, Brockman Iron's proposed amendments should be allowed and the strike out application should be dismissed.
Section 8(1) and 8(3) of the Code
5 Section 8(1) of the Code provides that an entity 'may make to the railway owner a proposal in writing for access by the entity'.
6 Section 8(3) provides for mandatory requirements, that the proposal
(a) specify the route, including the railway infrastructure, to which access is sought; and
(b) indicate the times when the access is required; and
(c) set out the nature of the proposed rail operations; and
(d) be accompanied by a notice in writing of the proponent’s intention to enter into negotiations for an access agreement under this Code.
The amendments and proposed amendments
TPI's amendments on 20 May 2014
7 On 20 May 2014, TPI filed an amended version of its statement of claim. Paragraph 6 of the amended statement of claim was amended as follows (in underlining):
On the proper construction of the Code, a proposal by an entity for access is and can only be a genuine proposal for an agreement in writing by which that entity intends and agrees to make, and pay for, actual use of specified railway infrastructure and, where applicable, the right to use land managed and controlled by the railway owner and the right to construct and operate a rail or other connection to the railway infrastructure, for the purpose of using a railway owner's railway infrastructure (s 8(1), s 8(3)).
8 In par 7 of TPI's statement of claim, TPI said that Brockman Iron's purported proposal was not 'such a proposal' (ie as pleaded in par 6) because
... it was in fact a proposal for an agreement by which, in effect, Brockman would only use and pay for the use of railway infrastructure of TPI and would only be bound to perform the provisions of the agreement in the event that, at some future time, Brockman (amongst other things) does the following things which it has not yet done ...
9 Prior to the 20 May 2014 amendments by TPI, the response by Brockman Iron to par 6 of TPI's statement of claim had been to deny that the matters in par 6 were 'on the proper construction of the [Code] essential to the validity of a proposal for access'.
10 Also prior to the 20 May 2014 amendments by TPI, Brockman Iron said in par 7(a) of its defence that it:
admits that its proposal for access was not one having the features alleged in paragraph 6 of the statement of claim.
11 In other words, Brockman Iron admitted that its proposal for access did not have the features that it was a 'proposal for an agreement in writing by which that entity intends and agrees to ... '. This admission therefore appeared to be limited to the question of the features contained in Brockman Iron's 'proposal in writing for access' or (in Brockman Iron's pleaded shorthand) features contained in its 'proposal for access'.
12 In response to par 7, Brockman Iron admitted that it had not done the matters that TPI said were required to be done in order for a s 8(1) proposal (ie 'a proposal in writing for access...') to be made. But Brockman Iron said that these things were not required for a written proposal for access to be a valid proposal under the Code.
13 Prior to the amendment the position of the parties on this issue appeared to be as follows.
14 TPI effectively alleged that a 'proposal in writing for access' in s 8(1) of the Code is a 'proposal for an agreement in writing by which that entity intends and agrees to make' various things.
15 Brockman Iron denied that this is the proper meaning of 'proposal in writing for access' but it admitted that its proposal in writing for access did not have the features that Brockman Iron intended and agreed to make, and pay for, those various things.
16 The question of law apparently arising from the pleadings was therefore whether (1) the matters concerning intention and agreement that TPI said were required were matters contained in s 8(1) or s 8(3). If so, then a further question would be (2) whether those matters were manifest (expressly or impliedly) in the written proposal. Brockman Iron had conceded the second point, accepting that the matters were not manifest in its written proposal.
17 It is not entirely clear what TPI's amendment was designed to achieve. Neither s 8(1) nor s 8(3) uses the adjective 'genuine'. And TPI did not plead in any further detail what was said to be meant by 'genuine'. The Oxford English Dictionary definitions of 'genuine' include meanings that a thing is 'natural or proper' or 'real, true, not counterfeit'.1
18 It appears from TPI's written submissions that the purpose of the amendment may be to rely upon (1) an implication of a concept of 'genuineness' in the Code, and (2) to draw from that implication a further implication that the pleaded intention and agreement must exist as a matter of fact, rather than as a matter which is said to be required to be evident from the proposal in writing. This is at least one reasonable construction of 'genuine', and it appears to be how TPI's amendment was understood by Brockman Iron.2
Brockman Iron's response
19 Under O 21 r 3(2) of the Rules of the Supreme Court 1971 (WA), Brockman Iron had a right to file an amended defence by 3 June 2014.
20 Brockman Iron's consequential amendments were a little over a week late. They were dated 11 July 2014 and filed on 14 July 2014.
21 In Brockman Iron's amendments to par 7(a) of its defence it retracted its admission and pleaded as follows:
(a)
(b) denies that the content or effect of its proposal for access is accurately or sufficiently set forth in the statement of claim ...
...
22 Brockman Iron submits that this amendment did not involve the withdrawal of admissions concerning Brockman Iron's intention in making the proposal.3 Brockman Iron effectively submits that it was necessary for it to amend its plea as it did because its admission had previously been that its s 8 written proposal for access did not have the features that it (as proposing entity) intended and agreed to make, and pay for, various things. But Brockman Iron was now required to plead to whether its proposal for access was 'genuine'. This appeared, reasonably, to Brockman Iron to carry with it a suggestion that the requirement for the relevant intention was said to be one that the relevant intention existed as a matter of fact.
23 TPI says that it had always pleaded that 'to be valid, a proposal had to be a proposal to make effectively a real agreement under which the proponent had an intention to make and pay for actual use of the railway infrastructure' (original emphasis).4 It says that Brockman Iron had previously 'admitted that its proposal was not one with the described intention' (original emphasis).5 I do not accept either of these submissions.
24 As I have explained, and as I understand Brockman Iron's admission, Brockman Iron's pleading prior to the amendment was effectively that its proposal in writing (the statutory language of s 8) did not contain the features alleged by TPI, including that the proposal in writing did not contain (or make manifest) the presence of the alleged intention. This admission has not been withdrawn. Brockman Iron has simply amended its pleading in response to a new allegation which appears to raise the question of its intention in fact in contrast with the presence of an intention as disclosed by a written proposal for access.
25 TPI also submits that the admissions from Brockman Iron's previous pleading have been withdrawn 'without providing clarity as to what Brockman asserts is entailed by its version of "genuineness", a real or potential issue in the case is not brought out'.6 But the plea of 'genuineness' was not made by Brockman Iron. It was made by TPI. Brockman Iron is not obliged to clarify an ambiguity in the pleading of its opponent.
26 On 21 July 2014, Brockman Iron filed another proposed pleading seeking to make further amendments to par 7(a) which it said were 'simply designed to articulate Brockman [Iron's] case more clearly'.7 The amendments were proposed by Brockman Iron as a result of a request from the legal representatives of TPI for Brockman Iron to clarify further its defence. The amendments were that Brockman Iron:
(a)
(i) the matters therein set forth are, on the proper construction of the Code, essential to the validity of Brockman's proposal for access; and
(ii) Brockman's proposal for access was not a proposal which complied with the requirements of the Code by reason of the matters therein set forth;
(b) denies that the content or effect of its proposal for access is accurately or sufficiently set forth in the statement of claim ...
27 Brockman Iron's initial responsive amendments were a little more than a week late. But that delay cannot have caused substantial prejudice to TPI. If Brockman Iron had filed its amended defence by the due date, 3 June 2014, then its amended defence would still have come after trial preparation had been almost complete, including completed discovery, lay witness statements, expert evidence, objections, and preparation of the trial bundle. Furthermore, the admission made by Brockman Iron prior to 20 May 2014 was an admission concerning the content of a proposal document. The admission might still be maintained (as Brockman Iron says it is) and, in any event, it is a matter of construction upon which submissions can be made and which might not require much contextual evidence, if any.
28 The amendments should be allowed.
Conclusion
29 TPI's real complaint about Brockman Iron's amended pleading appears to be based upon a misunderstanding of the meaning of admissions that were contained in Brockman Iron's pleading prior to its amendment. Brockman Iron had admitted that its 'proposal for access was not one having the features alleged in paragraph 6 of the statement of claim'. The reference by Brockman Iron to its 'proposal for access' could only have been a reference to its 'proposal in writing for access' referred to in s 8(1) of the Code. Its admission was that its proposal in writing for access did not have (ie disclose) the features pleaded by TPI. This was a limited admission concerning the matters that were disclosed by the written proposal.
30 The introduction by TPI of an issue concerning whether the proposal in writing for access was 'genuine' was reasonably understood by Brockman Iron as one which concerned Brockman Iron's actual intentions in fact, rather than concerning what its proposal in writing disclosed. The previous admission, on this view, became redundant. Brockman Iron's responsive amendments were a reasonable response to this issue.
31 There does, however, remain one point which is not clear. If (as I have assumed), by the introduction of the concept of a genuine proposal, TPI wishes to put in issue the lack of an intention in fact of Brockman Iron, then there is no express plea by Brockman Iron to the issue of whether it had that intention in fact. That plea might be implied from its denial in its further re-amended defence (in par 7A(b)) of matters such as whether it had reasonable grounds for expecting that it would be ready, willing and able to mine and export iron ore (par 7H(c) of the further re-amended statement of claim). But the denial should be made express.
1 L Brown (ed) The New Shorter Oxford English Dictionary (3rd ed, 1993) 1078.
2 Written submissions for Brockman Iron, 7 August 2014, [11].
3 Written submissions for Brockman Iron, 7 August 2014 [5].
4 Written submissions for TPI in reply, 8 August 2014 [2].
5 Written submissions for TPI in reply, 8 August 2014 [2].
6 Written submissions in reply for TPI, 8 August 2014, [5(a)].
7 Written submissions for Brockman Iron [12].
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