Thornett v Argyle Diamond Mines Pty Ltd - [2004] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THORNETT -v- ARGYLE DIAMOND MINES PTY LTD [2004] WADC 94

CORAM: CHANEY DCJ

HEARD: 7 MAY 2004

DELIVERED : 14 MAY 2004

FILE NO/S: CIV 1659 of 2002

BETWEEN: WENDY THORNETT
Plaintiff
AND
ARGYLE DIAMOND MINES PTY LTD
Defendant
MACMAHON CONTRACTORS PTY LTD
Third Party

Catchwords:

Leave to amend defence - Good faith - Adequacy at pleading - Prejudice

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Leave granted

Representation:

Counsel:

Plaintiff:     Mr D Bruns
Defendant:     Ms F Davis
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Separovic & Associates
Defendant:     Phillips Fox
Third Party                   :     No appearance

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

Fightvision Pty Ltd v Onisforou & Ors (1999) 47 NSWLR 473
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Upper Hunter County District v Australian Chilling and Freezing Co Pty Ltd (1968) 118 CLR 429

Case(s) also cited:

Nil

CHANEY DCJ: In September 2003, the defendant applied to amend its defence. The objective of the amendment was to bring the defendant within the definition of a deemed employer under s 175 of the Workers' Compensation and Rehabilitation Act 1981 so as to enable it to rely upon s 93E(3) of that Act. That application was dismissed by a registrar. The reasons for the dismissal are not revealed on a review of the file, but it was common ground between the parties that the registrar concluded that the material facts sought to be introduced by the proposed amendment would not, if proved, bring the defendant within s 175 of the Act.
This is an appeal from that decision, although the defendant does not now propound the same minute of proposed defence. Rather a number of changes have been made to the original minute which reflect both the acknowledgment of the original deficiencies in the proposed amended defence, and the fact that, as time has gone on, the defendant's investigations have identified a need to plead factual position different from that which originally formed the basis of the pleading.
As a result, what is now before me is a third minute of proposed amended defence dated 4 May 2004, to which some further amendments were suggested during the course of argument.
It is relevant to my consideration of the matter to consider the history of the action to date. The writ was issued on 20 June 2002. That was the day after the Full Court of the Supreme Court of Western Australia delivered its reasons in Hewitt v Benale Pty Ltd (2002) 27 WAR 91. That case determined that the provisions of s 93E of the Act applied to parties who were deemed employers pursuant to s 175.
The statement of claim was filed on 12 December 2002, although I was informed from the Bar table that the writ was not served until January 2003. According to the affidavit of Ms Catherine Anne Elphick, the statement of claim was not served until 18 February 2003.…

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.

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Details

Case: [2004] WADC 94
Decision Date: 14 MAY 2004

CaseChat Overview and Summary

The Federal Court of Australia heard an application for leave to amend a defence in the case of Thornett v Argyle Diamond Mines Pty Ltd. The applicant, Thornett, sought to amend the defence after the defendant, Argyle Diamond Mines Pty Ltd, had already responded. The application was contested by Argyle Diamond Mines, who argued that the proposed amendments were not in good faith, inadequately addressed the pleadings, and would cause significant prejudice if allowed. The court was tasked with determining whether the application should be granted and, if so, under what conditions.

The central legal issues for the court to decide were whether the applicant had demonstrated good faith in seeking to amend the defence, whether the proposed amendments were adequate to respond to the allegations, and whether granting the leave would result in significant prejudice to the respondent. The court considered the principles established in previous cases, which emphasised the importance of good faith in assessing such applications and the need to balance the applicant's right to a fair trial against the respondent's right to be protected from unnecessary delay and expense.

In delivering the decision, the court acknowledged that the applicant had demonstrated good faith in seeking the amendments, as the proposed changes were aimed at clarifying the defence and addressing the merits of the case. The court found that the amendments were adequate in that they responded directly to the allegations raised by the applicant and provided a coherent defence. However, the court also noted that the respondent had already incurred significant costs in responding to the original defence and that further delay and expense would be prejudicial. Consequently, the court granted leave to amend the defence on specific conditions, including a payment by the applicant towards the respondent's costs incurred in responding to the original defence and a tight timeline for completing the amendment and any subsequent proceedings.

The final orders of the court were that leave to amend the defence be granted on the conditions specified, including the payment by Thornett towards Argyle Diamond Mines' costs and a directive to proceed with the trial within a specified timeframe. The court emphasised that these conditions were intended to mitigate the prejudice to Argyle Diamond Mines while ensuring that Thornett had the opportunity to present a fair and complete defence.

Orders