Thoroughgood v Emmerton

[1999] NSWCA 394

CITATION:	Thoroughgood v Emmerton [1999] NSWCA 394
FILE NUMBER(S):	CA 40219/99
HEARING DATE(S):	10 September 1999
JUDGMENT DATE:	25 October 1999
PARTIES :	Vicki Thoroughgood v Betty Emmerton
JUDGMENT OF:	Priestley JA at 1; Stein JA at 17; Davies AJA at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6280/97
LOWER COURT JUDICIAL OFFICER:	Her Honour Judge Murrell

COUNSEL:	Appellant - Mr P. Semmler QC Respondent - Mr L.M. Morris QC, Ms C.E. Adamson
SOLICITORS:	Appellant - Marsdens Respondent - Abbott Tout
CATCHWORDS:	Amendment of defence - discretion
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 House v The King (1936) 55 CLR 499
DECISION:	Appeal dismissed with costs,

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40219/99
DC 6280/97

PRIESTLEY JA
STEIN JA
DAVIES AJA

Monday, 25 October 1999

THOROUGHGOOD v EMMERTON
AMENDMENT OF DEFENCE - DISCRETION - Motor car accident in 1991 - in 1994 injured driver seeks damages for negligence from other driver - in December 1994 defendant admits breach of duty but not damage - in November 1998 defendant seeks leave to amend to deny liability on ground of inevitable accident - leave granted - plaintiff obtains leave to appeal - on appeal, grounds of judge’s exercise of discretion examined - estoppel and waiver not relied on by appellant/plaintiff.
HELD: appellant/plaintiff failed to show error of relevant kind by trial judge in her exercise of discretion: House v The King (1936) 55 CLR 499 applied.

ORDERS
Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40219/99
DC 6280/97

PRIESTLEY JA
STEIN JA
DAVIES AJA

Monday, 25 October 1999

THOROUGHGOOD v EMMERTON

1    PRIESTLEY JA: Mrs Thoroughgood, the plaintiff in an action in the District Court against Mrs Emmerton, transferred from the Supreme Court, appeals by leave of this court against an interlocutory order made by her Honour Judge Murrell of the District Court which permitted the defendant to amend her defence. 2    The plaintiff was injured on 24 May 1991 when the car she was driving and a car driven by the plaintiff collided. 3    The plaintiff commenced her proceedings against the defendant in the Supreme Court in March 1994. The defendant filed a defence in which liability was denied on 5 August 1994. On 8 December 1994 the defendant filed DCM documents in the proceedings. In these it was said that the “defendant has admitted a breach of duty of care in this matter”. An amended defence dated 11 January 1995 admitted “the allegations of breach of duty of care contained in paragraphs” 1-8 of the Statement of Claim. The proceedings were transferred to the District Court on 24 September 1997. In November 1998 the defendant filed a notice of motion to amend its defence by withdrawing the admission of breach of duty and then pleading inevitable accident. The notice of motion was served on 27 November 1998. It was supported by an affidavit of Mr J. Edelman sworn on the same day. Annexed to his affidavit was a report from a consultant engineer which had been obtained by the defendant on 30 September 1996. 4    Her Honour Judge Murrell heard the motion on 8 March 1999. There were two affidavits before her, that of Mr J. Edelman and another sworn by Ms E. White in opposition to the application. Objections to parts of Mr Edelman’s affidavit led to the tender and admission in evidence of statements by the defendant and her son-in-law made in September and November 1991. These were Exhibit A. The P5 form in which the plaintiff reported the accident to the police was tendered and became Exhibit 1. Annexed to Ms White’s affidavit was a set of the documents entitled Defendant’s DCM Documents earlier referred to. Amongst these was a statement made by the plaintiff in September 1991. Her account was that the defendant’s car had done a U-turn in front of her. The defendant’s account in her statement in Exhibit A was that her car was parked at the kerb, she started the engine and it then suddenly jerked forward across the road, and into the plaintiff’s oncoming car. The defendant’s son-in-law said in his statement that when he inspected the defendant’s car the next day, he found that the master clutch cylinder was leaking oil and caused the car to jump forward on starting. He replaced the master clutch cylinder with a new one after which the car was in good working order. 5    The three statements, of the plaintiff, the defendant and the defendant’s son-in-law were all apparently taken by some person acting for the defendant’s insurer (they are headed Thoroughgood v NRMA). Before us the defendant’s counsel said the statements were obtained as a housekeeping matter, because although in 1991 no action had been commenced, there had been an immediate notice of claim after the accident. 6 On the materials I have described there was a short argument before Murrell DCJ, which was recorded and transcribed. Counsel for the defendant is additionally recorded as having prepared a brief outline of submission for the judge, which is not available in the appeal. The judge’s reasons for allowing the defence to be amended appear to have been in response to the submissions of the plaintiff opposing the application to amend, and were likewise quite short. 7 After setting out some of the facts the judge referred to the principle that, in general, where there is an arguable matter of defence, an amendment to the defence ought to be allowed unless it will occasion substantial injustice to the plaintiff. She then recognised that there would be prejudice to the plaintiff if the amendment were allowed, that being the inability to explore other circumstances surrounding the accident, including any observations by neighbours. She said also that there would be prejudice to the defendant if the amendment were not allowed. She remarked that it was extraordinary that nothing had been done to amend the defence between September 1996 when the expert’s report came into the hands of the defendant and November 1998 when the motion was filed. 8 Having observed there would be prejudice to the plaintiff if the amendment were allowed, and to the defendant if it were not, the judge said she must have regard to Pt 17 r 1(2) of the District Court Rules. She had earlier mentioned this rule immediately before referring to the principle I have already adverted to. The relevant part of the rule was:

“ All necessary amendments should be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. ”

9    The notice of appeal, filed on 3 June 1999, contained seven grounds. Later, however, grounds 2, 3, 4 and 7 were abandoned. (Ground 7 had sought to raise estoppel and waiver.) The remaining grounds were as follows:

“ 1. Her Honour erred in allowing the Defendant to amend her Notice of Grounds of Defence.
...
5. Her Honour failed to properly apply the principles enunciated in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
6. Her Honour failed properly to take into account a relevant consideration, namely the prejudice to the Appellant in allowing the Respondent to amend her Notice of Grounds of Defence.
... ”

10    In the appeal, counsel for the plaintiff made extensive submissions to the effect that her Honour had fallen into an error or errors of the kind, within the well known principles of House v The King (1936) 55 CLR 499, justifying this court in setting aside her discretionary decision to allow the defence to be amended. Some of these submissions may have been persuasive if this court were simply itself deciding, as a matter of original jurisdiction how the discretion should be exercised. However, as has been said over and over again, in an appeal of the present kind from the discretionary decision of a first instance judge, this court does not consider the exercise of discretion for itself and displace the first instance judge’s decision simply because it disagrees with it, but looks to see whether the exercise of discretion has been vitiated by the first instance judge’s having taken irrelevant considerations into account or having neglected to consider relevant considerations or by an error of law or by having arrived at a result so plainly ill-suited to the circumstances of the case that, although none of the foregoing indications of error can be identified, the decision must have been the result of some such mistake; or to put it shortly, by an error of the kind described in House v The King. 11    I do not think any of the foregoing features appear in the present case. 12    The reasons given by Murrell DCJ for her decision, although brief, in my opinion show that she had an accurate understanding of the facts and history of the case, that she appreciated there would be prejudice to the losing party in the motion, whether plaintiff or defendant, and that she asked the further question whether the amendment if granted would occasion substantial injustice to the plaintiff. After weighing the relevant features of the case, including the long delay by the defendant in seeking to amend its defence, she decided to exercise her discretion to allow the amendment. 13    In my view what I have said is sufficient to enable me to say that I do not think grounds 1 or 6 of the grounds of appeal were made out. I do not think it necessary to recapitulate or deal in detail with the lengthy argument of counsel to the contrary, because, in my opinion, that argument was substantially a traverse of the merits of the question as if this court were approaching the exercise of the discretion in question for the first time as a matter of original jurisdiction and not an appeal on the limited basis I have referred to above. I do not say this in criticism of counsel’s efforts to persuade the court to take a different view, but to explain why I do not think it necessary to embark on what in substance would be a long discussion of the merits, when, having considered the points urged in the appeal, I do not think any of them shows an error of the House v The King kind. 14    The plaintiff sought to derive support from what were termed “the principles” to be found in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That case was dealing with a question whether there should be an extension of time under a Limitation Act. Observations made by the different judges concerning the considerations relevant in such a case are not directly applicable to cases of the present kind, although there are some analogies between them. To the extent that anything said in Brisbane South raised considerations relevant in the present case, I do not see that Murrell DCJ acted inconsistently with them. (So far as I can see, Brisbane South was not cited to her.) 15    An area in the appeal that may possibly have occasioned some difficulty for the respondent (and the court) if it were open to be argued, was that raised by ground 7 in the Notice of Appeal, namely waiver and estoppel. Again, so far as I can see, arguments under these headings were not explicitly put to the trial judge, which may have been one of the reasons ground 7 was not pressed before this court. At all events, it was not, counsel being content, if the court dismissed this appeal, to wait until the hearing of the trial to raise matters of waiver and estoppel. 16    In my opinion the appeal should be dismissed with costs. 17    STEIN JA: I agree with Priestley JA. 18    DAVIES AJA: I agree with Priestley JA.

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