The Public Transport Authority of Western Australia v Bruechle, Gilchrist and Evans Pty Ltd
[2006] WASC 179
THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- BRUECHLE, GILCHRIST & EVANS PTY LTD & ORS [2006] WASC 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 179 | |
| Case No: | CIV:1226/2003 | 15 MAY 2006 | |
| Coram: | MURRAY J | 18/08/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed with costs | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA BRUECHLE, GILCHRIST & EVANS PTY LTD (ACN 008 737 835) GOLDER ASSOCIATES PTY LTD (ACN 006 107 857) CLOUGH ENGINEERING LIMITED (ACN 009 093 869) |
Catchwords: | Practice and procedure Application to strike out indorsement on writ When may be granted Applications to strike out statement of claim on ground that it was wider than indorsement Use of pleaded documents to aid decision whether pleading disclosed a reasonable case |
Legislation: | Nil |
Case References: | ABB Service Pty Ltd v Hetherington [2001] WASCA 235 BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18 Renowden v McMullin (1970) 123 CLR 584 Southern Wine Corporation Pty Ltd v Frankland River Olive Oil Co Ltd [2005] WASCA 236 Stone James (A firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Agius v State of New South Wales [2001] NSWCA 371 Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101 Astley v Austrust (1999) 197 CLR 1 Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 Gould v Skinner [1983] 1 Qd R 377 Hill v Luton Corporation [1951] 2 KB 387 Jeffrey v Witherow [2006] WASCA 4 Maxwell v Murphy (1957) 96 CLR 261 May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) [2000] WASCA 313 McInerney v Esanda Finance Corporation Ltd, unreported; SCt FCt of WA; Library No 970006; 17 January 1997 McNamara v Consumer Tribunal (2005) 221 ALR 285 Morgan v Banning (1999) 20 WAR 474 Pontin v Wood [1962] 1 QB 594 Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 The Jangmi [1989] 2 Lloyd's Rep 1 Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168 Trustek Australia Pty Ltd v Burke and Ors, unreported; SCt of WA; Library No 980121; 16 March 1998 Wheatley v Bower [1999] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BRUECHLE, GILCHRIST & EVANS PTY LTD (ACN 008 737 835)
First Defendant
GOLDER ASSOCIATES PTY LTD (ACN 006 107 857)
Second Defendant
CLOUGH ENGINEERING LIMITED (ACN 009 093 869)
Fourth Defendant
Catchwords:
Practice and procedure - Application to strike out indorsement on writ - When may be granted - Applications to strike out statement of claim on ground that it
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was wider than indorsement - Use of pleaded documents to aid decision whether pleading disclosed a reasonable case
Legislation:
Nil
Result:
Applications dismissed with costs
Category: B
Representation:
Counsel:
Plaintiff : Mr C L Zelestis QC and Mr J A Thomson
First Defendant : Ms F C E Davis
Second Defendant : Mr S M Davies
Fourth Defendant : Mr K J Martin QC and Ms S E Leonard
Solicitors:
Plaintiff : Allens Arthur Robinson
First Defendant : Phillips Fox
Second Defendant : Minter Ellison
Fourth Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18
Renowden v McMullin (1970) 123 CLR 584
Southern Wine Corporation Pty Ltd v Frankland River Olive Oil Co Ltd [2005] WASCA 236
Stone James (A firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
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Case(s) also cited:
Agius v State of New South Wales [2001] NSWCA 371
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101
Astley v Austrust (1999) 197 CLR 1
Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127
Gould v Skinner [1983] 1 Qd R 377
Hill v Luton Corporation [1951] 2 KB 387
Jeffrey v Witherow [2006] WASCA 4
Maxwell v Murphy (1957) 96 CLR 261
May v Vincent Smith as Administrator for Cole Engineering Pty Ltd (Under Administration) [2000] WASCA 313
McInerney v Esanda Finance Corporation Ltd, unreported; SCt FCt of WA; Library No 970006; 17 January 1997
McNamara v Consumer Tribunal (2005) 221 ALR 285
Morgan v Banning (1999) 20 WAR 474
Pontin v Wood [1962] 1 QB 594
Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173
The Jangmi [1989] 2 Lloyd's Rep 1
Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282
Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168
Trustek Australia Pty Ltd v Burke and Ors, unreported; SCt of WA; Library No 980121; 16 March 1998
Wheatley v Bower [1999] WASC 235
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1 MURRAY J: This litigation has thus far not been pursued with any great urgency. The writ was issued on 4 March 2003. A statement of claim was filed on 30 September 2005. There were originally four defendants but the plaintiff discontinued as against the third defendant, Transfield Construction Pty Ltd on 19 December 2005.
2 The writ was amended pursuant to the Rules of the Supreme Court O 21 r 1 without leave on 10 May 2006. The amendment was to the indorsement of claim against the first defendant. I think it is clear that the amendment to the indorsement of claim was validly made. It did not infringe O 21 r 1(3). In particular, in my opinion, it did not add or substitute a new cause of action.
3 The amendment was to the claim for damages for breach of a contract allegedly entered into by the first defendant (BGE) for planning and investigation, detailed design and supervision of the construction of the Goongoongup Railway Bridge which spans the Swan River between East Perth and Burswood immediately to the south of the Windan Road Bridge which the carries the Farmer Freeway over the river at that point. The plaintiff (PTA) has the statutory responsibility to manage and maintain the bridge.
4 The effect of the amendment is to alter somewhat the description of the subject matter of the contract and to alter the references to the documents or instruments by which the terms of the contract were recorded. There is no suggestion that the indorsement as amended refers to a different contract than that relied upon in the indorsement of claim as originally formulated. Then there is a merely consequential amendment made to the claim by the PTA for damages for alleged negligence by BGE in the performance of its duties to the PTA in relation to the provision of advice and information concerning and in carrying out the work earlier referred to.
5 At the same time, on 11 May 2006, the statement of claim was amended without leave pursuant to O 21 r 3. The subject matter of these amendments was the same as those made to the indorsement of claim on the writ. The amendments were to the case pleaded out against BGE in relation to the making of the contract and its particularisation. Otherwise the statement of claim was amended to delete the claim made against the former third defendant.
6 There is a further confusing document on the Court file which does not appear to have been filed. It describes itself as a minute of the
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- proposed amended writ of summons and erroneously asserts amendment pursuant to O 21 r 3. It is dated 15 May 2006. Its substance is no different from the document filed on 10 May. It was apparently thought that this second version of the amendment filed on 10 May 2006 expressed better the amendment just made. Whatever may have been the intention, it does not seem to me that this second document can have any procedural effect and I ignore it.
7 I should make it clear that the amendments to the writ and to the statement of claim to which I have referred were made after the proceedings before me were instituted. One was an application made on 16 February 2006 by the second defendant (Golder) for an extension of time to strike out the indorsement of claim against it, an indorsement to which no amendment has been made by the PTA. Otherwise, the application is to strike out the paragraphs of the statement of claim insofar as they plead out the case of PTA against Golder.
8 In seeking the extension of time, Golder relies upon an affidavit by a solicitor, Mr Wong, sworn on 16 February 2006. The affidavit reveals that on 2 December 2005 a programming order was made which required that any strike out application was to be made by 30 December 2005. Mr Wong is quick to indicate that the delay was not his fault because he did not take over the file until it was too late. He says that senior counsel had already been retained but no brief was sent to him until 23 January 2006 and as it turned out, a conference could not be held with him and advice could not be obtained until 8 February 2006; nor was junior counsel briefed until 16 January 2006.
9 None of that justifies the failure to comply with the time limit imposed. In my opinion, by the application of ordinary principles, the extension of time should be refused and Golder's applications dismissed, but for Golder it is rightly submitted that the practical effect of the delay has not in fact delayed dealing with the application, or significantly delayed the progress of the action in respect of which, as I have already noted, the approach of the PTA might best be described as "relaxed". On the other hand, counsel for the PTA was prepared and presented argument upon the substance of the applications. Their merits have a bearing upon the question whether an extension of time should be granted to allow the applications to proceed. It is convenient that they be dealt with upon the merits.
10 During the period to which I have referred above, on 23 December 2005, pursuant to the order made on 2 December 2005 that any strike-out
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- applications be made by 30 December 2005, such applications were made by BGE, the first defendant, and by the fourth defendant (Clough). Those applications are now sought to be pursued in amended form, the amended applications having been lodged on 8 May and 1 May 2006 respectively. For the PTA, the point is made that leave is required to amend the applications in the way desired by each of the defendants. If an extension of time is granted, the PTA raises no objection to Golder being granted leave to make relatively minor amendments to its application.
11 However, the PTA does object to leave being granted to BGE to amend its application. It is pointed out rightly enough that the proposal of BGE is to shift its ground to seek to strike out all of the paragraphs of the statement of claim which plead the case against it without there being any affidavit in support of the proposed amendment. That, of course, is not fatal to the application to amend which is obviously based upon the view now taken as to what is perceived to be a fundamental difficulty with the claim made against BGE.
12 So far as Clough is concerned, again the application is sought to be amended in a way which changes completely its thrust. Originally Clough sought to pursue its application having regard to the scope of the indorsement as compared with the pleading by way of the statement of claim. Now it seeks to rely on the proposition that the statement of claim discloses no reasonable cause of action against it having regard to the documents upon which the PTA relies. Again it is rightly observed that the documents in question have been in the possession of Clough's solicitors since 19 October 2005, shortly after the statement of claim was lodged and served, but again it seems to me that in the circumstances, the delay in formulating the amendments sought in the case of this application is not a ground upon which it should be refused. I consider that the proper course, having heard full argument, is to deal with the substantive points at issue.
13 In that regard, it is appropriate, I think, that I should commence with the application by Golder to strike out the indorsement of the claim against it which is made in the writ. Order 6 r 1(1) provides:
"Before a writ is issued it must be endorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action."
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14 An application may be made to strike out an indorsement, although it is not a pleading, for the failure to comply with O 6 r 1. Such an application is expressly provided for in O 20 r 19(1) as follows:
"The Court may at any stage of the proceedings, … order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be."
15 It is accepted that the notion that the indorsement discloses no reasonable cause of action is to be viewed in the context of the requirements of O 6 r 1(1). As to what should be provided in the indorsement, the decision of the High Court in Renowden v McMullin (1970) 123 CLR 584 is instructive. Renowden was a solicitor whose practising certificate had been cancelled as a result of his bankruptcy. He sued his accountants. The writ was generally endorsed so as to claim damages for the defendant's alleged "breach of contract in auditing the trust books of [Renowden] in the years 1958 to 1961 inclusive". In addition, damages for the accountant's negligence "in the course of examining and auditing the trust books" of Renowden during the period in question were claimed.
16 When the statement of claim was lodged, it included no claim based on breach of contract. The question was whether the statement of claim might later be amended (at a time which raised limitation questions) to add such a claim. It was held that that could not be done because once the statement of claim was provided within the ambit of the indorsement, the work of the indorsement was effectively performed and thereafter the causes of action upon which the plaintiff did or might rely were to be ascertained by reference exclusively to the statement of claim without regard to the indorsement of the writ. Therefore, although the
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- amendments sought would not take the claims outside the ambit of the indorsement, they should not be allowed, because their effect would be to introduce a claim which was statute barred.
17 As to the nature of an indorsement within the rules, at 595, Barwick CJ and McTiernan J said:
"The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, eg on some occasions identification of the instrument upon which a claim is founded. But insufficiency of the indorsement does not render the writ a nullity. On the other hand, the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended."
18 It is therefore the case that where a statement of claim as delivered, or as it is sought to be amended, would go outside the range delineated by the indorsement, the statement of claim is liable to be struck out or its amendment will be refused: Stone James (A firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 per Burt CJ at 238 - 239.
19 So much is expressly provided by O 20 r 2(2):
"A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned."
20 Putting all that together, it seems to me that no more is required to discharge the purposes of an indorsement of claim to notify the defendant of the general nature of the plaintiff's claim and the relief sought so that the limits of the cause of action to be pursued are delineated, than that those matters are "mentioned" without in any way pleading out the cause of action and the relief sought. The degree of particularity required will be that which concisely identifies the nature of the claim and the remedy being pursued. A number of cases, generally unreported, were cited to
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- me. They all seem to me to fall within, and to be examples of the application of those general principles. It is clear that many of them turn upon their own facts.
21 So far as Golder is concerned, the indorsement is in terms that the plaintiff's claim is for:
"(a) damages for breach by the second defendant of a contract made between the plaintiff and the second defendant on or about 30 June 1992 by which the second defendant undertook to provide geotechnical consultancy services and testing in relation to the design and construction of the Goongoongup rail bridge, Perth, Western Australia.
(b) loss, expense and damage suffered as a result of the breach by or the negligence of the second defendant commencing in or about July 1992 and thereafter in the performance of its duties to the plaintiff in relation to the provision of advice and information concerning, and in carrying out geotechnical consultancy services and testing in relation to the design and construction of the Goongoongup rail bridge."
22 As to the claim for damages for breach of contract, for Golder it is contended that the indorsement is inadequate because it does not provide any particulars of the date and nature of the alleged breach of contract and how the damage claimed was caused. As to the claim in tort, again it is submitted the indorsement is inadequate because it does not identify when or how the breach of duty occurred or the way in which the loss or damage was caused. Clearly, the complaint is about lack of particularity in both aspects of the indorsement, but for myself I am unpersuaded by authority that the terms of the Rules require that degree of particularity.
23 What is mentioned or identified is that the PTA is suing for damages for breach of a particular contract which it is not suggested is referred to in terms which leave Golder unable to identify which contract it was. Again so far as the claim in tort is concerned, it seems to me that the indorsement provides a concise statement of the nature of the relationship between the PTA and Golder which obviously occurred in the context of the performance of the contract previously identified for the provision of geotechnical consultancy services and testing in relation to the design and construction of the bridge. The period is not precisely identified, but nor need it be. It is clear from the indorsement that the plaintiff's claim is for
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- damages for loss occasioned by the negligence of Golder in the performance of the professional services which it was contracted to provide.
24 Counsel for Golder placed heavy reliance upon the decision of the Full Court, Wheeler and McLure JJ, in ABB Service Pty Ltd v Hetherington [2001] WASCA 235. It is a decision, concerned with the adequacy of an indorsement of claim on a writ, which it is clear from the judgment of McLure J, with which Wheeler J agreed, depended heavily upon its own facts. The ratio of the decision is simply that the indorsement failed to put the matters relied upon in a recognisable legal framework to show how the respondent's claims arose and the relationship between the claims and the loss. The indorsement merely referred to reliance upon a claim under s 52 of the Trade Practices Act and the tort of negligent misstatement. Reliance was there placed in argument upon the incapacity for the defendant to discern whether the claims, whatever they were which were being made, might be statute barred. At [16] McLure J (rightly, in my respectful opinion) rejected that argument, but at [17] her Honour continued:
"However, there should be sufficient factual information in the indorsement to predetermine the limitation outcome. That is, the facts in the indorsement should enable a factual trail to be pursued which will result in identification of the date on which the cause of action accrued."
25 Her Honour's observations in [17] are made obiter. I am not sure that I understand them, but if her Honour did indeed mean, contrary to what she appears to be saying in [16], that a test of the sufficiency of an indorsement of claim was whether upon the information provided there, the defendant could discern that it had or did not have open to it a defence that the action was statute barred, then I respectfully could not agree. The question of limitation of action is a matter of defence. It will be pleaded, if available, when more detailed pleading is capable of laying the factual framework for the application of such a plea.
26 I do not uphold Golder's application to strike out the indorsement of claim. I am therefore relieved of the need to consider the interesting arguments presented to me about the consequence in relation to the statement of claim had I been of the contrary view and ordered the indorsement to be struck out.
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27 The balance of Golder's application is to strike out the paragraphs of the statement of claim which put the claims of PTA against Golder on the ground that they failed to comply with O 20 r 2(2) in that they go beyond the causes of action "mentioned in the writ", in other words on the basis that the indorsement is in its terms sufficient to comply with the requirements of the Rules. Each of the paragraphs in question is identified. It would be tedious and it is unnecessary for me to deal with each impugned clause in detail in these reasons.
28 Suffice it to say that the claim made against Golder arises out of the contract for the provision of geotechnical services to facilitate the design and construction of the bridge. The PTA alleges that Golder was contracted to assess conditions below the surface on the eastern side of the river where an integral part of the support structures for the bridge was an embankment and a reinforced concrete abutment. Golder, it is pleaded, was required to carry out any geotechnical testing for the purpose of designing the foundations and the construction of the eastern embankment. It was an engineering consultancy and the work of Golder was to be performed having regard to subsurface conditions under the proposed eastern embankment which included the removal of unstable ash, presumably resulting from the fact that on that side of the river the ground was formerly an extensive landfill rubbish dump. It is alleged that the advice in respect of the ash was inaccurate and the drains which Golder advised, known as "wick drains", were inadequate to prevent subsidence.
29 It seems that that adversely affected the piles driven in the eastern approach and abutment and it is alleged that the monitoring processes adopted by Golder were inadequate. There was a soft clay layer allegedly underlying the bridge's eastern embankment. It was liable to move laterally, a process affected by the proximity of the Windan Road Bridge. It is said that the advice tendered by Golder in relation to lateral displacement was inadequate and erroneous. As a result, the design of the bridge inadequately took that lateral displacement into account.
30 There is detailed pleading of the adverse consequences to which it is asserted that Golder's failure to provide adequate advice contributed, and the allegations of breach of contract and negligence are made, as a result of which it is alleged that the eastern abutment and approach were designed and constructed in a manner which did not allow adequately for lateral movement of the eastern embankment and the bridge ended up being designed and built without a stable eastern abutment and approach. In consequence, the lateral movement has, it is alleged, resulted in
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- defamation of the steel piles supporting the eastern abutment, defamation and cracking of concrete piles, other structural damage and the requirement to replace the bearings of the eastern abutment, thereby causing loss and damage, it is alleged, to the PTA.
31 It is argued that insofar as the statement of claim mounts claims concerned with the establishment of an eastern embankment, the location and advice about ash deposits, dealing properly with their removal, and assessing the adequacy of foundations on the east side of the river, those claims do not fall within the indorsement. It is argued that the reference to failure to maintain a proper system to collect and review data is not mentioned in the indorsement. Nor, it is said, are the pleaded failures to advise about consolidation and lateral movement of the underlying soil, its vertical settlement and what was predictable in this regard. None of these matters, it is put, are identified in the indorsement.
32 In my opinion, these arguments may not be upheld when one has regard to what I conceive to be a proper role, and the adequacy of, the indorsement of the writ which advises claims against Golder in relation to the geotechnical consultancy services that it contracted to provide in relation to the design and construction of the bridge. Encompassed within a claim in respect of those services, one may readily conclude, is advice about the soil, its composition, the way it may behave when the bridge is built and when the approaches to the bridge are created. For the arguments of Golder to be upheld, would require far greater particularity of allegation than I would hold to be necessary to support the validity of the indorsement.
33 Golder relies upon these arguments to support the contention that the pleading infringes O 20 r 19(1)(c) and (d). It should be struck out, Golder contends, because the pleading in its present form may prejudice, embarrass or delay the fair trial of the action and because it is an abuse of the process of the Court to plead outside the four corners of the indorsement. However, in my opinion, these contentions must be rejected and Golder's application is dismissed.
34 I turn then to the similarly based application, as amended, of BGE to strike out the whole of the statement of claim of 30 September 2005 on the ground that it pleads causes of action outside the scope of the indorsement of the writ and which are statute barred. In the alternative, BGE refers to a pleaded contract variation in the statement of claim and seeks to have that struck out on the ground that it is not mentioned in the writ.
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35 As I have noted, that application was originally made on 23 December 2005 and the amendments sought and which I would make were formulated in a minute filed on 8 May 2006. As I have said, to an extent the application has been overtaken by later events because on 11 May, without leave, the PTA amended both the indorsement of claim and the statement of claim.
36 So far as the indorsement of claim is concerned, there is no application to disallow the amendment made and nor can I see any ground upon which such an application could be mounted. The amendment does not add or substitute a new cause of action, contrary to O 21 r 1(3)(b).
37 As against BGE, the indorsement as amended shows that the claim of the PTA is for:
"(a) damages for breach by the first defendant of a contract for the planning, investigation, detailed design and construction supervision of the Goongoongup bridge, which contract was made in or about February 1992 between the plaintiff's predecessor (the 'WAGR') and the first defendant, and which was then incorporated in and supplemented by the terms of an instrument executed by the WAGR and BGE in or about June 1992 and further varied in January, February and April 1993 and January 1994;
(b) loss, expense and damage suffered as a result of the breach by or the negligence of the first defendant commencing in or about February 1992 and thereafter in the performance of its duties to the plaintiff in relation to the provision of advice and information concerning, and in carrying out the work set out in paragraph 1(a) above."
38 So far as the indorsement claims damages for breach of contract, it always referred to a contract made on or about February 1992. It was originally contended that there was a further contract made on or about 2 February 1993, and a further contract made on or about January 1994. The subject matter of the contract or contracts was described globally and generally in substantially the same terms as after the amendment. It was said that BGE was required to investigate and make recommendations on the planning and preliminary design of the bridge, to prepare the detailed design and contract documents, and to make recommendations as to the
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- award of the contract and undertake the supervision of the construction of the bridge.
39 In short, what was then described as three contracts is now described as one, initially made in February 1992, incorporated and supplemented by the terms of a written instrument in June 1992 and varied in January, February and April 1993 and January 1994. It is true that originally the indorsement did not mention variations made in January and April 1993 but, in my opinion, that can hardly be necessary to sustain the indorsement.
40 Having regard to what I have already written on this topic, what is necessary in the indorsement is that it should properly identify the particular contract entered into, by reference where necessary to the various instruments or agreements making and varying the terms of the contract to reach its final form, then it must identify the parties and that the plaintiff's claim against the defendant is for damages for breach of the contract.
41 Similarly, where, as here, there is a claim made in tort, the indorsement, to satisfy the requirements of O 6 r 1, should identify the nature of the duty and its breach causing the plaintiff loss and damage for which damages are claimed. In this case, of course, the claim in tort endorsed on the writ was not in terms amended. It could only be regarded as having been changed in any substantive way if, contrary to my view, the amendment made to the indorsement of the claim in contract substantively changed the scope or ambit of the indorsement by changing the nature of the work to be performed and the duty alleged to be owed by BGE to the PTA.
42 Turning then to the amended statement of claim so as to consider the question whether it pleads causes of action outside the scope of the indorsement, it is again necessary briefly to refer to the nature of the pleading. After introducing the parties, the bridge and the nature of the bridge, the pleaded case against BGE commences at par 14. As has been mentioned, this is the provision amended. It refers to the manner of formation of the contract originally by 13 February 1992. It pleads that in June 1992, the contract was incorporated in and supplemented by a written instrument and it pleads that variations were made in 1993 and 1994.
43 Particulars are given. The first variation was in January and February 1993 to agree that BGE would undertake the detailed design and
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- documentation of the bridge. In April 1993, a variation was made by which it was agreed that BGE would act as superintendent for the forward works contract for the earthworks construction for the bridge. Later in that month it was agreed that BGE would supervise the contractor engaged to remove ash deposits from the site. In January 1994, there was a variation by which BGE was engaged as superintendent for the contract for the construction of the bridge.
44 Certainly it is clear now that par 14 provides the detail of the amendments made to the indorsement of the claim in contract on 11 May 2006, but I think it must be right, as is submitted for the PTA, that even if the contract were more generally described in the indorsement of the claim, albeit sufficiently to identify the contract with which the plaintiff's claim is concerned, then to plead out the detail of its formation and variation until it reached a final form does not take the statement of claim outside the ambit of the indorsement. It merely adds particularity.
45 BGE relies on a statement made by Steytler J in BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18. The decision was that of the Full Court. The judgment is that of Steytler J with whom Anderson J agreed. When dealing with a decision of the Judge at first instance to refuse to allow an amendment which would have been statute barred, his Honour said at [90], "It is, in my opinion, quite plain that this is a new cause of action depending upon entirely new facts". His Honour was not advancing that as a test as to whether an amendment ought to be allowed in circumstances which would give rise to a limitation point; it was a comment upon the facts of that case, with respect, well justified when one reads the case, but it was quite a different case to this.
46 Here, the argument of BGE that all the provisions of the statement of claim which plead causes of action against it should be struck out, relies upon the proposition that the pleading of the contractual framework from which the claim springs reveals that the contract is one not mentioned in the indorsement of claim. It is plain, I think, that that is not so, whether one has regard to the indorsement as it was framed originally, or as amended on 11 May.
47 I should add that I am of the same view in relation to the pleaded claim in negligence which by the statement of claim, as in the indorsement, is closely linked to the contractual claim because the duty of care alleged arises out of the relationship of the PTA and BGE as contracting parties.
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48 If, as I think, the proposition cannot be made out that the whole of the statement of claim against BGE should be struck out as going beyond the ambit of the indorsement, then BGE argues that specific matters raised in the statement of claim do so and should be struck out accordingly. That argument is not unlike that presented for Golder. Reference is made to the pleading about BGE recommending appropriate earthworks for the approaches to the bridge and embankments by which access to the bridge would be achieved. The point is made that the obligations of a contractual kind in relation to the earthworks and embankments, including the removal of ash deposits and the installation of wick drains and the pleaded causation of loss and damage in relation to problems arising from the eastern abutment and approach and the earthworks generally go beyond the indorsement, either as amended or before it was amended, because they are not matters concerned with the planning, investigation, design and construction supervision of the bridge.
49 Again, with respect, I disagree. The bridge was to be designed and constructed, according to the allegations of the PTA, not in isolation but with all its attendant earthworks and access provisions to enable it to provide the rail link across the river. To make a claim arising out of those aspects of the work does not, in my opinion, take the pleading outside the ambit of the indorsement, either in respect of the contractual claim or the tortious claim.
50 Matters of limitation were argued before me on behalf of BGE and the PTA. Having regard to the view to which I have come, there is no necessity for me to deal with such matters and I think it inappropriate that I should do so at this stage by giving reasons which would be strictly obiter. BGE's application is dismissed.
51 I turn then finally to the application by Clough. As amended, it is an application to strike out nominated paragraphs of the statement of claim pursuant to O 20 r 19(1)(a)(c) and (d). The application originally sought to challenge the sufficiency of the indorsement on the writ, but that was abandoned. While I am mentioning such matters, I should note that counsel for Golder told me that it did not support the submissions of Clough as a challenge which it could make in support of an application to strike out the pleading in the statement of claim against Golder.
52 The grounds of the application by Clough are set out in the application. It is convenient to quote them here:
(Page 17)
- "The grounds for this application are that the Paragraphs disclose no reasonable cause of action or alternatively are embarrassing in that:
(a) The allegations against the Fourth Defendant in paragraphs 18 to 21 and 78 to 84 are for breach of a so called 'Clough Contract' and for breach of an alleged duty to exercise reasonable care and skill in providing services to the Plaintiff.
(a) The Clough Contract as pleaded in paragraph 19, is stated to be a contract entirely in writing.
(b) The combination of the allegations in paragraphs 20(e) and 21(a) and (b) of the Statement of Claim lead to a conclusion that this Clough Contract, if it did exist, could not have existed beyond 21 April 1995. This means that any performance obligations in the alleged Clough Contract could not have subsisted beyond 21 April 1995. It follows that any performance obligations allegedly owed to the Plaintiff under the Clough Contract could only have been owed for a period between 22 November 1993 and 21 April 1995.
(c) However a close examination of the written documents that are alleged in paragraph 19 to constitute the Clough Contract, reveals that the Plaintiff, throughout the entirety of that period, was at pains to make it express that it only ever intended to have a contractual relationship with the Third Defendant (ie not the Fourth Defendant).
(e) The very documents that the Plaintiff alleges constitute the Clough Contract disclose no reasonable basis for a cause of action as to the existence of a contract between the Plaintiff and the Fourth Defendant, let alone a contract containing terms involving performance obligations as pleaded in paragraphs 20(a) to (d) of the Statement of Claim. Accordingly, the whole basis for the contentions as to any breach of such performance obligations, must also fail.
(f) Furthermore, the allied attempt by the Plaintiff in paragraph 24 to contend for an independent common law duty of care, ought also to fail and be struck out, because
- that contention is inherently grounded on the existence of the Clough Contract, so that these linked contentions must fall altogether. Any notion of an independent duty of care is also out of harmony with the elaborate nature of the actual subcontract as between the Third and Fourth Defendants, and the elaborate main contract between the Plaintiff and the Third Defendant."
53 In essence, the contention is that when one examines the documents pleaded as constituting the contract between the PTA and Clough in respect of which breach is alleged and which is said to establish a relationship giving rise to a duty of care to ground a claim in negligence, it can seen that there was no such contractual relationship, but on the contrary, any such relevant contractual relationship was between the PTA and Transfield, against which company the action has been discontinued.
54 Ordinarily, of course, a strike-out application may not depend upon evidence. But where documents are pleaded, they may be examined to see whether the pleading can be sustained as disclosing a reasonable cause of action. The question is whether that proposition is arguable and, of course, in this area, the Court, dealing with a strike-out application, ought to avoid the temptation to definitively construe the documents and draw firm conclusions about them: Southern Wine Corporation Pty Ltd v Frankland River Olive Oil Co Ltd [2005] WASCA 236. The question is whether there is an arguable case revealed by the pleading supplemented by reference to documents referred to in the pleading.
55 The statement of claim, par 18, alleges that on 22 November 1993 the predecessor of the PTA, the WAGR Commission, and Clough entered into a contract for the design and construction by Clough of the piled foundations for the bridge including the eastern abutment and approach. Clough was invited to tender as a nominated subcontractor under a main contract which, the documents inviting tender and providing the information necessary for that purpose explained, could not be let before early February 1994. The intention was, according to the documents, that the Commission would hold open the tender and stipulated that it could not be withdrawn before the main contract was let. The Commission advised that it would accept a tender after the main contract was made, but in any case not later than the end of March 1994.
56 However, as pleaded, it is clear that Clough's tender was accepted in writing on 22 November 1993 and for Clough it is argued that the proper conclusion therefore is that there was no direct contractual relationship
(Page 19)
- ever envisaged between the Commission and Clough who was only ever to be a nominated subcontractor to whoever became the head contractor. I was taken through the documents, as it was argued that they were to be read consistently with that view. There being no contractual relationship, it was submitted that both the claim in contract and in tort should be struck out.
57 However, there is, I think, certainly another way of looking at the documents. The tender was to be entered on a form of tender supplied by the Commission and that took place. Clough's tender is dated 6 October 1993. The document gives the sum tendered as the cost of the work and goes on to provide:
"Unless and until a formal Agreement is prepared and executed with the selected Main Contractor, this Tender, shall constitute a binding agreement between The Western Australian Government Railways Commission and ourselves.
In consideration of the effort and expense incurred by you in preparing the tender document and in examining and considering this Tender, we undertake that the Tender shall not be withdrawn by us before the letting of the Main Contract which it is envisaged cannot be let before the beginning of February 1994 and shall remain binding upon us and may be accepted at any time after the Main Contractor is appointed, but in any case not later than the end of March, 1994.
We understand that you are not bound to accept the lowest or any Tender you may receive."
58 In addition, there is evidence in the documents referred to that the intention was that the piles to be used in the construction of the bridge would be designed and manufactured before the main contract was awarded. It may be consistent with that, that the tender was accepted on 22 November 1993. In my opinion, without, of course, finally determining the matter, there is an arguable case to support the existence of the contractual relationship between the PTA and Clough upon which its claim, both in contract and in tort, depends. Clough's application is dismissed.
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