Traeger v Harris - [2010] WADC 101

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TRAEGER -v- HARRIS [2010] WADC 101

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 21 JUNE 2010

DELIVERED : 6 JULY 2010

FILE NO/S: CIV 1276 of 2009

BETWEEN: MICHAEL JOHN TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant

Catchwords:

Pleadings - Late application to amend defence - Mitigation of damages - Discretion

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier

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

Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334
Dare v Pulham (1982) 148 CLR 658
Dey v Victorian Raliways Commissioners (1949) 78 CLR 62
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) & Ors [2006] WASC 24
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Ibrahim v Aerospace Engineering Services Pty Ltd [2005] WADC 129
Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; Library No 980219S; 1 May 1998
Kalavrouziotis v Howel, unreported; DCt of WA; Library No 5173; 29 November 1996
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Matters v Baker and Fawcett [1951] SASR 91
May v Thomas [2008] WASCA 215
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Neilson & Anor v City of Swan [2006] WASCA 94
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
Plenty v Argus [1975] WAR 155
Pollard v Endale Pty Ltd [2009] WASCA 189
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Remmington v Scoles [1897] 2 Ch 1
Sinclair v James [1894] 3 Ch 554
Southern Wine Corporation Pty Ltd (In Liq) v Frankland River Olive Co Ltd & Anor [2005] WASCA 236
Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wakim v McNally (2002) 121 FCR 162
Watts v Rake (1960) 108 CLR 158
White v Simpson [2007] WADC 55
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290

PRINCIPAL REGISTRAR GETHING: In this action, the plaintiff claims from the defendant damages for losses arising out of injuries he suffered in a motor vehicle accident that occurred on 8 October 2004. It is clear from the statement of claim that the plaintiff suffered significant injuries as a result of the accident, including a fractured skull.
By application dated 9 May 2010 the defendant sought leave to amend his defence. Following a hearing on 13 May 2010, I granted the defendant leave to amend the defence as set out in pars 4, 5, 6 and 7 of a minute of proposed amended defence dated 13 May 2010 ("13 May Minute"). I did not allow amendments to par 8 of the 13 May Minute, but allowed the defendant the opportunity to provide a further draft. My decision is reported as Traeger v Harris [2010] WADC 88 ("Traeger (No 1)"). I ordered the defendant to file and serve a further minute of proposed amended defence by 20 May 2010.
The defendant filed a further minute of proposed amended defence on 20 May 2010 ("20 May Minute").
At a subsequent hearing on 1 June 2010 I vacated the trial dates for the 10 day trial then due to commence on 2 August 2010. This decision is reported as Traeger v Harris [2010] WADC 89 ("Traeger (No 2)"). The issue of the adequacy of the particulars to par 8 was before the Court at the 1 June 2010 hearing, but was not able to be dealt with at that hearing.
The application for leave to amend came back for further hearing on 14 June 2010. Over the objection of the plaintiff, I gave the defendant a further opportunity to provide a set of particulars to par 8 that would address the concerns I had identified. I made an order that by 17 June 2010 the defendant file and serve a further minute of proposed amended defence.
On 17 June 2010 the defendant filed and served a further minute of proposed amended defence ("17 June Minute").
At a hearing on 21 June 2010 I heard further argument on the adequacy of the particulars to par 8 of the 17 June Minute. In addition to arguing that the particulars were still inadequate, the plaintiff submitted that the defendant ought not to be given a further opportunity to cure the defective particulars. The present reasons relate to the 21 June 2010 hearing.
The plaintiff filed and served an affidavit of an employee of his solicitors, Jeffrey Potter, sworn 21 June 2010. As the affidavit had been served only shortly prior to the hearing, I granted the defendant an opportunity to file and serve and responsive affidavit, together with submissions, and granted the plaintiff the opportunity to file submissions in reply.
On 28 June 2010, the defendant filed an affidavit sworn 28 June 2010 of David Roger Sands, a principal of his solicitors, together with submissions of the same date. The plaintiff filed further submissions dated 30 June 2010. On 1 July 2010 Natasha Burn, a solicitor employed by the defendant's solicitors, filed an affidavit correcting a date in the defendant's submissions.

Summary of issues

In this application it is appropriate that I first set out the evolution of par 8 in the 13 May Minute, 20 May Minute and 17 June Minute.
I then set out the relevant principles relating to a pleadings and particulars challenge of this kind, along with a consideration of the law and practice relating to mitigation of loss in personal injuries cases. In this context, I consider whether the particulars to par 8 in the 17 June Minute comply with the relevant principles relating to particulars. This includes the issue of whether the modern approach to case management allows the Court, in the circumstances of this case, to give the defendant some latitude in his particulars on the basis that the defendant's case will be sufficiently disclosed elsewhere in the interlocutory processes.
The remaining issue is that of discretion, either to allow par 8 of the 17 June Minute if it otherwise complies with the pleadings rules, or to allow the defendant a further opportunity to amend if par 8 does not so comply. The case law on this discretion requires me to consider delay, the prejudice to the defendant if the amendment is not made, the prejudice to the plaintiff if the amendment is made and the public interest in the efficient administration of justice.

13 May Minute

Proposed par 8 of the 13 May Minute provided as follows:
"8.Further, or in the alternative, if the Plaintiff has sustained loss or damage, which is denied, the Plaintiff has failed to mitigate his loss.
PARTICULARS OF PLAINTIFF'S FAILURE TO MITIGATE HIS LOSS
a)In April 2006, the Defendant arranged for the Plaintiff to undergo an initial vocational rehabilitation assessment.
b)The Plaintiff has failed to undertake any further vocational rehabilitation notwithstanding the recommendations of occupational physicians Dr Peter Connaughton and Dr Andrew Marsden, rehabilitation physician Dr Kim Fong and rehabilitation consultant Stephen Parker."
In Traeger (No 1) (supra) I stated the following about par 8 as it then was:
"21.The pleading objection taken to proposed par 8 is that it is insufficiently particularised. For example, it is not apparent what the outcome of the April 2006 initial vocational rehabilitation assessment was.
22.It seems to me that par 8 does not go as far as it should in advising the plaintiff as to the case it has to meet.
23.In relation to par 7, the defendant has gone beyond merely referring to the expert's reports, and set out the particular conditions that it seeks to put into consideration in the court process. In my view, a similar exercise ought to be undertaken in relation to par 8. What ought to be done is that the particulars ought to be expanded so that it is clear what happened in relation to the April 2006 arrangement for the plaintiff to undergo an initial vocational rehabilitation assessment. There also ought to be particulars of the specific vocational rehabilitation programs that the defendant says that the plaintiff ought to have undertaken but did not undertake."

20 May Minute

Proposed par 8 of the 20 May Minute provided as follows:
"8.Further, or in the alternative, if the Plaintiff has sustained loss or damage, which is denied, the Plaintiff has failed to mitigate his loss.
PARTICULARS OF PLAINTIFF'S FAILURE TO MITIGATE HIS LOSS
a)In April 2006, on behalf of the Defendant, arrangements were made for the Plaintiff to undergo an initial vocational rehabilitation assessment with Rehabilitation Consultant Stephen Parker.
b)On 11 April 2006 and 26 April 2006 the Plaintiff undertook the initial vocational rehabilitation assessment with Mr Parker.
c)In his report of 18 May 2006 Mr Parker recommended that the Plaintiff be provided with a full vocational rehabilitation programme which was to include work trials and a graduated return to work programme.
d)In his report of 30 November 2009 Specialist Rehabilitation Physician Dr Kim Fong recommended that the Plaintiff undergo a rehabilitation programme to assist in him developing a sustainable career pathway.
e)In his report of 5 January 2009 Occupational Physician Dr Connaughton recommended that the Plaintiff undergo the systematic approach recommended by Mr Parker in his report of 18 May 2006, including a graduated return to work programme.
f)On behalf of the Defendant and on the recommendations of Occupational Physician Dr Peter Connaughton, Rehabilitation Physician Dr Kim Fong and Rehabilitation Consultant Stephen Parker, a further review was arranged with Mr Parker on 18 May 2010 to continue the vocational rehabilitation commenced in April 2006.
g)On 10 May 2010 the Plaintiff's solicitors advised that the Plaintiff would not attend a review with Mr Parker notwithstanding the recommendations of Drs Connaughton and Fong and Mr Parker.
h)the Plaintiff has failed to utilise or fully utilise his retained earned capacity by failing or refusing to engage in vocational rehabilitation reasonably requested of him and as recommended by Drs Connaughton and Fong and Mr Parker."
At the 14 June hearing, I ruled that par 8 still did not adequately inform the plaintiff of the case he has to meet.

17 June Minute

The version of proposed par 8 the subject of these reasons is the 17 June Minute. It provides as follows, with the underlining identifying the variations from the 20 May Minute:
"8.Further, or in the alternative, if the Plaintiff has sustained loss or damage, which is denied, the Plaintiff has failed to mitigate his loss.
PARTICULARS OF PLAINTIFF'S FAILURE TO MITIGATE HIS LOSS
a)On 4 April 2006, on behalf of the Defendant, the Insurance Commission arranged and paid for the Plaintiff to undergo an initial vocational rehabilitation assessment with Rehabilitation Consultant Stephen Parker.
b)On 11 April 2006 and on 26 April 2006 the Plaintiff undertook the initial vocational rehabilitation assessment with Mr Parker.
c)In his report of 18 May 2006 Mr Parker recommended that the Plaintiff be provided with a full vocational rehabilitation programme which was to include work trials and a graduated return to work programme.
d)Prior to funding the vocational rehabilitation programme recommended by Mr Parker, the Insurance Commission was advised that on 25 May 2006 the Plaintiff had appointed Jan Bishop of Bennu International Consultancy as his case manager.
e)In her report of 25 May 2006, Ms Bishop advised the Insurance Commission that her role as case manager included, inter alia, developing relationships and programmes with vocational assessors.
f)Notwithstanding Ms Bishop's appointed role to develop and explore vocational assessment for the Plaintiff, the Plaintiff did not undertake any vocational training under the supervision of a vocational rehabilitation provider.
g)On 13 October 2008, the Insurance Commission was informed by the Plaintiff's solicitors that the Plaintiff would not be attending any review by a Vocational Rehabilitation Provider as the Insurance Commission was not empowered to compel such a review.
h)In his report of 5 January 2009 Occupational Physician Dr Connaughton recommended that the Plaintiff undergo the systematic approach recommended by Mr Parker in his report of 18 May 2006, including a graduated return to work programme.
i)In his report of 30 November 2009 Rehabilitation Physician Dr Kim Fong recommended that the Plaintiff undergo a rehabilitation programme to assist in him developing a sustainable career pathway.
j)On behalf of the Defendant and on the recommendations of Occupational Physician Dr Peter Connaughton, Rehabilitation Physician Dr Kim Fong and Rehabilitation Consultant Stephen Parker, a further review was arranged with Mr Parker on 18 May 2010 to continue the vocational rehabilitation commenced in April 2006.
k)On 10 May 2010 the Plaintiff's solicitors advised that the Plaintiff would not attend a review with Mr Parker notwithstanding the recommendations of Drs Connaughton and Fong and Mr Parker.
l)The Plaintiff has failed to utilise or fully utilise his retained earning capacity by failing or refusing to engage in vocational rehabilitation reasonably requested of him and as recommended by Drs Connaughton and Fong and Mr Parker."

Relevant law and practice – pleadings disputes

The starting point when considering an application for leave to amend is that the court will not grant a party leave to make an amendment which does not disclose a reasonable course of action: Sinclair v James [1894] 3 Ch 554 at 557. Neither will the court grant leave to make an amendment which could be struck out as defective on any of the grounds set out in Rules of the Supreme Court ("RSC") O 20, r 19(1)(b) to r 19(1)(d): Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32 at 38. Further, in determining the adequacy of the pleading, it is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658 at 664; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. A pleading may therefore be struck out where it is vague, ambiguous or pleaded at too greater a level of generality so as to leave the other party in doubt as to how to respond to the pleadings: Frank Jasper Pty Ltd& Anor v Deloitte Touche Tohmatsu (a firm) & Ors [2006] WASC 24 at [11].
In relation to function of particulars, the High Court in Dare (supra) stated (at 664, footnotes and references omitted):
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it …; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial …; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings … But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed …, though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence…"
As to the purpose of pleadings and particulars, in Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82, the Chief Justice stated (at 83 ‑ 84 [4] ‑ [8]):
"It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.
Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained."
Along a similar vein, Master Newnes, as his Honour then was, in Frank Jasper (supra) at [13] states the following:
"The question of whether a pleading is so defective that it should be struck out is not, therefore, to be answered by any mechanical application of the rules of pleadings. It is generally to be answered by whether or not the pleading serves the fundamental objective of pleadings and whether any significant deficiencies in it can adequately be overcome by the provision of particulars or by some other means. While it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleading is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of the pleading."

Relevant law and practice –failure to mitigate

In order to assess the adequacy of the pleading and particulars in par 8 of the 17 June Minute it is instructive to consider the law relating to failure to mitigate. For present purposes, it may be summarised as follows:
(a)There is an obligation on a plaintiff to take any reasonable steps to minimise his or her damages and not to act unreasonably so as to aggravate or continue the effect of any injury: Matters v Baker and Fawcett [1951] SASR 91 at 94.
(b)The burden of proof is on the defendant to establish failure to mitigate: Watts v Rake (1960) 108 CLR 158 at 159; Wakim v McNally (2002) 121 FCR 162 at 182 [82].
(c)Specifically, the defendant must prove that the plaintiff has unreasonably failed to act in a manner which would have avoided all or part of his loss being sustained: Watts (supra) at 159; Ibrahim v Aerospace Engineering Services Pty Ltd [2005] WADC 129 ("Ibrahim (DC)") at [78].
(d)In considering the reasonableness or otherwise of the plaintiff's conduct the test is an objective one, but incorporates the personal characteristics of the plaintiff including his or her state of knowledge at the time: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 at 350; Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; Library No 980219S; 1 May 1998 ("Kalavrouziotis (SC)"), Wheeler J at p 8.
(e)The defendant must then establish what damages, if any, the plaintiff would have reduced had the failure to mitigate not occurred: Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 at 239.
(f)The obligation to mitigate is not defeated simply because the defendant is unable to establish on the probabilities that the treatment would be wholly or partly successful because the Court is obliged to evaluate the chance that might have been lost by the plaintiff's failure: Plenty v Argus [1975] WAR 155 at 158-159.
(g)In assessing damages, the Court is to make an assessment based on the plaintiff's condition as at the date of trial and then discount it by calculating the opportunity he or she lost by not taking advantage of the rehabilitation programmes available to him: Fontaine v Quality Platers (1994) 12 WAR 71 at 83 ‑ 84; Ibrahim (DC) (supra) at [89].
(h)The judge is to assess damages on the basis that the plaintiff had "taken the hypothetical action and been endowed with the hypothetical benefits": Munce (supra) at 239.
(i)A plaintiff is entitled to recover the costs of attempting to mitigate his or her loss: Matters (supra) at 96; White v Simpson [2007] WADC 55 at [102].
(j)A plaintiff is obliged to spend money in order to mitigate his or her loss, though the question of the plaintiff's personal financial means is a factor in considering the reasonableness or otherwise of the plaintiff's conduct: White (supra) at [102].
It is also instructive for present purposes to consider the way in which the failure to mitigate has been dealt with in cases before this court in the past.
In Kalavrouziotis v Howel, unreported; DCt of WA; Library No 5173; 29 November 1996 ("Kalavrouziotis (DC)"), the defendant pleaded failure to mitigate in the following terms (p 19):
"... The plaintiff has deliberately set his mind against the advice given to him by Dr Sicouri that he can be rehabilitated back into the work force and to complete the anxiety counselling treatment offered to him and therefore has failed to mitigate any loss ... which he may have sustained."
At first instance, Yeats DCJ found that the plaintiff had failed to mitigate his loss, a finding affirmed on appeal: Kalavrouziotis (SC) (supra).
In Ibrahim (DC) the defendant's case was that the plaintiff had unreasonably failed to undergo rehabilitation. The relevant portion of the pleading is not referred to in the judgement. The key factual conclusions as found by Muller DCJ were as follows (at [79], [80], [90]):
"The evidence of the plaintiff's refusal to undergo rehabilitation in March 2000 is overwhelming. I have already discussed the medical evidence in detail but, at the risk of repetition, it might be appropriate at this stage to refer to some of the specific pieces of evidence relating to this issue. In his report dated 29 August 1999 Dr Peter Connaughton said the plaintiff told him he did not want to take part in any exercise programme because of the interpretation the insurers might place on what he did. Dr Alan Holme in his report dated 6 March 2001 said that, while fit to undertake rehabilitation, the plaintiff refused to cooperate and asserted he was unfit for any type of work or training. Dr Rosenthal, in his report dated 26 July 1999, said he did not believe the plaintiff would make any effort to resolve his condition while his claim for compensation remained outstanding. Dr John Salmon, in his report dated 21 September 1999 referred to a lengthy discussion he had with the plaintiff explaining the benefits of a rehabilitative programme but qualified his report by saying he did not believe the plaintiff would engage productively in any such arrangement. Apart from Dr Ng nearly all the medical witnesses expressed the same view.
What is also of significance is the consensus amongst the medical experts that, if the plaintiff had participated in a rehabilitation programme at an early stage, the prospects of success would have been far better and that the more time that went by the greater his perception of pain became entrenched and the less likely he was to participate successfully in such a programme.
…
I am satisfied that at the date of trial the plaintiff was totally incapacitated for any type of work. In assessing the chance he lost in not undergoing rehabilitation I believe I should be guided by the evidence of Dr Salmon who was the only witness prepared to quantify that loss. In Dr Salmon's opinion there was no more than a 50 per cent chance that the plaintiff, had he undergone rehabilitation, would successfully have overcome his problems sufficiently to undertake some form of gainful employment. With this evidence in mind I would assess the chance of a successful return to work, had the plaintiff participated in rehabilitation, at approximately 50 per cent. Even then he may not have been able to return to his pre‑accident employment and might have been required to take on a lesser paid position. But Dr Terace, whose evidence I have relied on, believed he could have returned to his former position albeit under supervision."
It is evident in Ibrahim (DC) case that the issue of the plaintiff's refusal to participate in a rehabilitation program was the subject of extensive commentary in the medical reports before the Court, which in accordance with the practice of this Court would have been disclosed prior to the trial. His Honour's decision was affirmed on appeal: Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33 ("Ibrahim (SC)") at [29] ‑ [32].
In White, the issue dealt with at trial was whether the plaintiff had failed to mitigate her loss by undergoing medical or rehabilitative treatment. This was not squarely raised in the defence, which was in the following terms ([96]):
" …
'5.Further, if the plaintiff suffered from the alleged or any injuries (which is denied) by 11 July 2003 she had recovered or sufficiently recovered from those injuries so as to enable her to resume her pre-accident occupational and leisure activities and, in the premises, the plaintiff has failed to mitigate her damage.
Particulars
The plaintiff has failed to make any or any reasonable attempts to resume her pre-accident occupation or to secure employment at any time since the accident'."
The trial Judge, Keen DCJ, commented ([97]):
"Whilst in that pleading is not specifically pleaded by the defendant that the plaintiff had failed to mitigate her loss by undergoing medical or rehabilitative treatment the case was run, at least in part, on that basis and I am prepared to deal with the matter on that basis as coming within the plea that the plaintiff had 'failed to make any or any reasonable attempts to resume her pre-accident occupation…'."
I observe that the disconnect between the way in which the defendant's case was pleaded and the way it was run at trial is the type of situation which the plaintiff in the present case seeks to avoid at the trial in the present case through the provision of particulars.
His Honour's findings in relation to mitigation and non‑pecuniary loss are as follows ([117] ‑ [121]):
"I accept the evidence of Drs Home and Williams that the injury to the plaintiff's shoulder could, with a high degree of probability, be cured by a simple procedure. It is a procedure that carries with it no risk to the plaintiff.
So far as the psychological injuries are concerned, whatever residual psychological problems there may be, I find that the plaintiff could have been assisted by psychiatric or psychological intervention. She has received advice in relation to this and she has failed to take that advice.
In considering the other matters relative to mitigation, the plaintiff was not working after the accident and so no question arises of having to take time off work for treatment. So far as the cost is concerned there seems to be no dispute on the part of the defendant that such treatment is reasonable and ought to have been undergone. Whether ICWA would have paid for it at the time is not clear upon the evidence but certainly it would have been treatment that would have formed part of the plaintiff's special damages. Further, as it was ICWA's own doctors who were advising treatment of the plaintiff, it could hardly be seen to refuse to pay for such treatment. Alternatively the plaintiff could probably have claimed the cost on Medicare.
There is little evidence of the plaintiff's inability to pay for this treatment, although I do note that the plaintiff and her husband had incurred substantial pharmaceutical costs which they had had to pay.
I find that the plaintiff has unreasonably refused to undergo medical treatment both of a physical and psychological nature which would, so far as her shoulder is concerned, have more than probably alleviated the problem and so far as the psychological symptoms were concerned, there would have been a good chance of some amelioration of those symptoms."
In relation to loss of earning capacity, his Honour concluded ([148]):
"So far as future loss of earning capacity is concerned, in view of my findings I am not able to accept that the plaintiff has lost her earning capacity for the future. I return to my findings in relation to the plaintiff's failure to mitigate her damage. I find that had the plaintiff undergone reasonable and proper treatment, both in respect of her physical and psychological injuries, the probability is that she would have recovered sufficiently to be able to return to and remain in the workforce."

Does par 8 of the 17 June Minute comply with the pleadings rules?

At the hearing on 21 June, counsel for the plaintiff spent a considerable amount of time going through the evidence before the Court relating to the plea of the failure to mitigate. However, it seems to me that I ought to start the analysis without regard to the evidence. I am conscious of the fact that the application before me is not for summary judgment. I do not need to determine whether on the evidence before me the defendant would have a reasonable prospect of successfully raising failure to mitigate. Rather, the starting point is to review par 8 on its face to determine whether par 8 provides a sufficiently clear statement of the defendant's case for the plaintiff to have a fair opportunity to meet it. Put slightly differently, I need to determine whether the defendant has "pleaded specifically any matter … which, if not specifically pleaded, might take the opposite party by surprise": RSC O 20 r 19(1)(b).
As noted in par [14] above, in Traeger (No 1) I stated that the defendant ought to provide particulars of the specific vocational rehabilitation programs that the defendant says that the plaintiff ought to have undertaken but did not undertake. However, what is now apparent from the pleading before me is that the defendant does not seek to run its case on the basis that there was a specific vocational rehabilitation program that the plaintiff ought to have undertaken, but did not undertake. On the particulars as they currently stand, any evidence and/or submission at trial to the effect that there was a specific vocational rehabilitation program that the plaintiff should have done could justifiably be met with the objection of surprise.
From par 8 in its current form, the essence of the defendant's case is in par 8(l), that the "Plaintiff has failed to utilise or fully utilise his retained earnings capacity by failing or refusing to engage in vocational rehabilitation reasonably requested of him and as recommended by Drs Connaughton and Fong and Mr Parker". The refusal is to engage in the process of developing and executing a vocational program under the supervision of a vocational rehabilitation provider.
From par 8 in its current form, in my view there will be six key factual questions for determination by the judge at trial:
(a)whether the plaintiff was actually ever offered the opportunity to participate in the development and execution of a vocational rehabilitation program under the supervision of a vocational rehabilitation provider;
(b)whether the defendant's insurer actually ever offered to pay for the opportunity in (a);
(c)if the Plaintiff was made the offer in (a), whether he actually refused it;
(d)the extent to which the plaintiff otherwise engaged in vocational rehabilitation, including with Ms Bishop;
(e)in light of at least (b) and (d), whether any refusal found in (c) was unreasonable;
(f)if there was an unreasonable refusal, what (if any) opportunity was lost by the plaintiff not taking advantage of the opportunity in (a).
From the way in which the application is opposed, it is likely that, if par 8 is amended in the form proposed, the plaintiff will want place further facts before the court by way of reply. He should obviously be given that opportunity.
For the analysis set out above, I am satisfied that par 8 in its current form provides a statement of the defendant's case sufficiently clear to allow the plaintiff a fair opportunity to meet it. It does so in both the positive and the negative. In the positive it identifies the six questions I have set out in par [36] along with the key assertions of fact which the defendant proposes to raise in support. In the negative, it informs the plaintiff that the defendant does not assert that there was any specific vocational rehabilitation program that the plaintiff should have done, but did not do.
Further, the level of detail in the particulars appears, so far as I can discern, to be consistent with the decisions in Kalavrouziotis (DC), Ibrahim (DC) and White.
To quote the Chief Justice, the Court should adopt "an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained": Barclay Mowlem (supra) at [8]. In my view, the criticisms of par 8 in its current form will not significantly impact on the proper presentation of the plaintiff's case and its presentation at trial.

Modern approach to case management

The case law on resolving pleadings disputes directs the Court to consider pleadings and particulars disputes in the context of what might be called the modern approach to case management. As part of this approach, the parties disclose and define their case not only by the pleadings and particulars, but through means like the exchange of experts' reports and witness statements, Scott Schedules and indexes of documents to be tendered at trial. In this context, the Court may look to the entirety of the disclosure and issue definition process in order to determine whether a pleadings and its particulars meet the policy set out in Dare. The passages quoted above from the decisions in Barclay Mowlem and Frank Jasper (supra) illustrate this approach.
The District Court Rules 2005 (WA) ("2005 DCR") reflect what I have described as the modern approach to case management. In particular, 2005 DCR r 45E requires the parties to file and serve an index of the reports of any expert witness the party intends to tender at trial. Absent an order to the contrary, the plaintiff's index is to be provided at least 14 days before the listing conference, and those of the defendant and other parties seven days before the listing conference. The rule goes on to provide that except with the leave of the Court, a party cannot tender the report of an expert witness as evidence unless the party has complied with r 45E.
I referred to these principles in Traeger (No1) in the context of the amendments I allowed to par 7 of the 13 May Minute. I was satisfied that from a combination of the pleadings and the experts' reports that the plaintiff would know the case he has to meet at trial (relating in that instance to causation) sufficient to comply with the policy outlined in the decision in Dare ([17]). It is also apparent from the extracts from the decisions in Ibrahim DC and White quoted above that there was extensive disclosure of defendant's case through the expert's reports relied on.
At the 21 June hearing, the plaintiff submitted that on the material in the affidavits before me, there is insufficient in the expert and other evidence disclosed for me to find that the other forms of disclosure and issue definition could be used to supplement what was pleaded and particularised in par 8 of the 17 June Minute so as to meet the policy outlined in Dare.
In my view, it is not necessary to have regard to the other forms of disclosure and issue definition in order for the plaintiff to understand the case which he has to meet at trial. However, in the event that it was, the reports of Mr Parker dated 18 May 2006, Dr Connaughton dated 5 January 2009 and Dr Fong dated 30 November 2009 (referred to the proposed particulars to par 8) are each referred to in the Defendant's Index of Expert's Report's filed 15 February 2010. In particular, Mr Parker in his report sets what would usually be involved in the preparation of a full vocational rehabilitation program.
Some time was spent in submissions on the issue of whether or not Dr Fong's report of 30 November 2009 was capable of supporting a finding that he recommended the plaintiff engage in vocational rehabilitation. To my mind, this is an issue for the trial judge. The significant point is that the plaintiff knows that the defendant contends that Dr Fong's report constitutes a recommendation that the Plaintiff engage in vocational rehabilitation.
The plaintiff in written submissions asserted the following proposition: "If in the final preparation for trial, a Defendant raises new defences which might have been considered at a much earlier stage, an amendment will not be allowed without proper investigation as to whether material exits to support the application" (par 4, submissions filed 21 June 2010). The authority cited was Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [100], [103], [111] ‑ [114]. It is unclear precisely what this proposition means. If it means that in reviewing the discretionary considerations, it will be necessary for the Court to have regard to the factual basis for what is asserted, then I agree with the proposition. For example, if it is asserted that the catalyst for the amendment was a document recently obtained from a third party pursuant to an early return subpoena, then it would be necessary to look at the document to consider whether, in fact, it gave rise the amendment.

If the effect of the proposition asserted by the plaintiff is that the Court must consider the merits of the plea sought to be introduced, then I do not consider that the decision in Aon (supra) is authority for it. I interpret the reference in Aon at [111] to the claim being "arguable" as being to a pleading which, if accepted as being true, raises a reasonable cause of action or defence. There is a clear distinction between an application for summary judgment and an application to amend pleadings. When considering whether a pleading discloses a reasonable cause of action, all the facts alleged in the statement of claim must be accepted as true: Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986; Neilson & Anor v City of Swan [2006] WASCA 94 at [18]. No evidence is admissible on an application of this kind: RSC O 20 r 19(2): Southern Wine Corporation Pty Ltd (In Liq) v Frankland River Olive Co Ltd & Anor [2005] WASCA 236 at [51]. Where the issue is whether the pleading sufficiently discloses the case that the opponent has to meet, the pleading must be reviewed on its face to determine whether it is sufficient. Evidence may be led of abuse of process or that a defence is a sham, but not as to whether allegations contained in a pleading are improbable, false or untrue: Dey v Victorian Raliways Commissioners (1949) 78 CLR 62 at 109; Remmington v Scoles [1897] 2 Ch 1 at 7.
As an example of the approach pursued by the plaintiff in oral submissions and again in his 30 June submissions the plaintiff challenged the factual basis for the statement in particular (g) that on 13 October 2008, ICWA was informed by the plaintiff's solicitors that the plaintiff would not be attending any review by a vocational rehabilitation provider. The plaintiff asserts that the only evidence before the court is that the communication between the plaintiff and the defendant on 13 October 2008 was without prejudice. Being a without prejudice communication it is not admissible. The plaintiff then goes on to assert that the absence of any other evidence means that the plea in particular (g) is without foundation and ought to be struck out.
To my mind this is also an issue which should be determined by the trial judge. The key point is that the plaintiff knows that the defendant's case is that on 13 October 2008 ICWA was informed by the plaintiff's solicitors that the plaintiff would not be attending any review by a vocational rehabilitation provider. The fact that the plaintiff at this stage has presented a detailed argument on the merits of particular (g) supports this conclusion.
In his 30 June submissions the plaintiff asserts that there is no factual basis for a plea that the plaintiff was ever requested (reasonably or otherwise) to undergo the Parker rehabilitation program (pars 12 – 18). Again, this is an issue of fact for the trial judge. As set out in [36] above, a key factual question at trial will be whether the plaintiff was actually ever offered the opportunity to participate in the development and execution of a vocational rehabilitation program under the supervision of a vocational rehabilitation provider.
In pars 19 to 40 of the 30 June submissions the plaintiff conducts a review of the merits of the defendant's plea of failure to mitigate. The review begins with the proposition that it is evident that Ms Bishop:
(a)was appointed case manager in about May 2006;
(b)implemented a program including vocational rehabilitation; and
(c)achieved the vocational goal which would have been the subject of the Parker rehabilitation program if ICWA had finalised it.
In my view this analysis of the merits transgresses into the territory of a summary judgment application. For present purposes, what is significant about the analysis in pars 19 to 40 of the 30 June submissions is that it is clearly evident that the plaintiff knows the case he has to meet at trial; indeed, he has set out how he proposes to do so.
In the present case, the consideration of the facts surrounding the efforts at rehabilitation are relevant only to the issue of discretion to amend, and, in particular, to amend at a late stage. It is to this issue I now turn.

Discretion – legal framework

The discretionary issue which arises is whether the defendant ought to be given leave amend in terms of par 8 of the 17 June Minute. The discretion to allow amendments is set out in RSC O 21 r 5. It provides that "the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the Court may direct".
What may be described as the traditional approach to the exercise of discretion in relation to pleadings amendments is summarised by Newnes AJA in May v Thomas [2008] WASCA 215 in the following terms (at [33] - [34):
"The relevant principles to be applied on an application to amend a pleading are well-known. In general, a party should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause an injustice to the other party which could not be adequately remedied, for instance by an order for costs: Cropper v Smith (1884) 26 Ch D 700, 710; Shannon v Lee Chun (1912) 15 CLR 257, 260 - 261; Clough v Frog (1974) 4 ALR 615, 618; The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154. The party seeking the amendment bears the burden of persuading the court that the amendment will not cause irremediable prejudice to the other party: Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; McKenzie v Commonwealth of Australia [2001] VSC 361 [22] - [23]; Burk v Commonwealth of Australia (No 3) [2004] VSC 210. However, the party opposing the amendment ordinarily bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party; the non‑existence of prejudice is difficult to prove, so that in practice in the latter circumstances an evidential burden is borne by the party resisting the amendment: Hancock Shipping Co Ltd (1030). But it is not sufficient for a party to rely on prejudice which results from an unreasonable act or omission on the part of that party: Steward v North Metropolitan Tramways Co (1886) 16 QBD 556, 559 - 560; Wilson v Grimwade [1995] 2 VR 628, 632."
This approach must now be refined in the light of the subsequent decision of the High Court in Aon. In Aon all members of the Court held that in exercising the general discretion to allow amendments to pleadings in Court Procedure Rules 2006 (ACT) ("ACT Rules") r 502, the Court is to seek the objectives of case management set out in ACT Rules r 21 (at pars [36], [89], [133] ‑ [134], [157]). ACT Rules r 502 is similar in effect to RSC O 21 r 5. The objectives of case management set out in ACT Rules r 21 are substantially the same as those set out in RSC O 1 r 4A and r 4B, which are in the following terms:
"4A. Elimination of delays
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
4B. System of case flow management
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of —
(a)promoting the just determination of litigation;
(b)disposing efficiently of the business of the Court;
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business at a cost affordable by parties.
(2)These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1)."
By parity of reasoning, in exercising the discretion in RSC O 21 r 5, I should seek the attainment of the objectives in RSC O 1 r 4A and r 4B.
The majority in Aon made the following comments on ACT Rules r 21 which are relevant to the interpretation of RSC O 1 r 4A and r 4B (at [98], [102]):
"Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
…
The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. While r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment."
In the District Court, the provisions of the RSC are supplemented by 2005 DCR r 48A and r 48B. So far as is relevant, r 48A provides:
"(1)The RSC Order 21 applies, subject to this rule.
…
(3)If an application to amend a pleading is filed after a case is listed for trial, the application must be accompanied by an affidavit of the party making the application or the lawyer representing the party.
(4)The affidavit is to set out the facts —
(a)that have arisen since the certificate was tendered under rule 43(3a); and
(b)that ground the party's or the lawyer's argument that the amendment is necessary."
2005 DCR rule 43(3a) provides:
"(3a)The lawyer who will appear at trial for a party must certify that he or she has reviewed the pleadings and is satisfied that they adequately define all the issues of fact or law that the party contends will need to be determined at trial, and the document containing this certification must be tendered at the listing conference."
I note that in the present case the defendant has not yet filed a certificate pursuant to 2005 DCR r 43(3a). The plaintiff did on 12 January 2010.
2005 DCR r 48B provides:
"(1)If an application for an interlocutory order is filed after a case is listed for trial, the application must be accompanied by an affidavit of the party making the application or the lawyer representing the party.
(2)The affidavit is to set out the facts that ground the party's or the lawyer's argument that the order is necessary.
(3)Unless justice requires otherwise, the Court will not grant an application referred to in subrule (1) if to do so would necessitate adjourning the trial."
The overarching issue in the exercise of the discretion to grant leave to amend is to balance the competing risks of injustice in the context of maintaining public confidence in the legal system as a whole. Four factors emerge from the decided cases:
(a)the reasons for delay in making the application;
(b)the prejudice to the defendant if leave is not granted;
(c)the prejudice to the plaintiff if leave is granted; and
(d)the impact on the public interest if leave is granted.
See generally: Aon; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Wiltrading(WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290; Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334, at 345; Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323. Each of these factors is considered in detail below.

Discretion – reasons for delay

This first, and perhaps most critical, factor is the reason why the party has not sought the relevant order in the past. To quote the majority in Aon (at [103] – footnotes omitted, also [98]):
"[103]The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case."
The importance of an explanation for the delay has also been emphasised by the Supreme Court: see generally Pollard v Endale Pty Ltd [2009] WASCA 189 at [43]; Wiltrading (supra) at 315 ‑ 316; Tony Sadler (supra) at 336.
Where there is a recent catalyst for the application, the Court is more likely to grant leave, there having been no prior opportunity to raise the issue. This seems to have been a significant factor in the grant of leave in JL Holdings (supra) (at 154) and a significant factor against the grant of leave in Aon (at [51] ‑ [54], [106], [131]). In the words of Justice Heydon in Aon (at [131]): "There was nothing to indicate that whatever was seen as relevant had not been available earlier if diligence had been employed".
In Trager (No 1) I observed that the reasons put forward for the delay do not provide any compelling reason to grant the application ([27]).

Discretion - prejudice to the defendant

The second factor is the prejudice to the party seeking the amendment if the amendment is not granted. This may require a detailed analysis of the specific grounds of prejudice: Wiltrading (at [314] ‑ 317]).
In looking at the prejudice to the parties, the Court will examine the nature and importance of the amendment to the parties: Aonat [102]. Where the proposed amendments do not extend in any material way the factual ambit of the action, that will be a factor weighing in favour of the grant of leave: Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156 at [21]. It will also weigh in favour of the amendment if it will enable the "litigation to be fought out on the true facts": Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 241. In JL Holdings weight was given to the fact that the point sought to be raised by the amended pleading could not be avoided at trial as it was apparent on the face of certain documents: at 154 , also Aon at [28].
The prejudice to the defendant if the amendments are not allowed is that it will not be able to pursue a defence of failure to mitigate.
The issue of failure to mitigate is one that would be difficult to avoid at trial. It is closely linked to the issue of the plaintiff's current earning capacity. It is raised in the medical reports of Drs Fong and Connaughton, which will be before the Court in any event. (The reports of Drs Fong and Connaughton and that of Mr Parker are identified in the Index of Expert's Reports filed by the defendant on 15 February 2010 before the issue of failure to mitigate was raised). Documents relating to the issue of rehabilitation are asserted by the plaintiff to be material and discoverable on the pleadings without the addition of the proposed par 8 (see the letter from the plaintiff's solicitors to the defendant's solicitors dated 31 May 2010, p 2, par 5, the letter being annexed to the affidavit of Mr Potter sworn 31 May 2010). Allowing par 8 in its current form does not then appear to expand the factual ambit of the action.

Discretion – prejudice to the plaintiff

In his 30 June submissions, the plaintiff submits that it is not necessary for him to bring evidence of prejudice in the case of an amendment application made with unreasonable delay, citing Tony Sadler at 336. The issue of burden of proof in relation to the discretion to amend is dealt with in the passage quoted above from the decision in May. The defendant here bears the burden of persuading the court that the amendment will not cause irremediable prejudice to the plaintiff. However, the plaintiff bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party. In the present case, notwithstanding the substantial volume of affidavit material and submissions filed by the plaintiff, the plaintiff has not identified any specific prejudice which it will suffer if the amendment to par 8 is granted.
The trial in this action is now provisionally listed for 20 days commencing 18 October 2010. There is a hearing on 12 July 2010 to settle this date, based on affidavit evidence if required.
The general prejudice to the plaintiff is that, if a further opportunity to amend is allowed, there is a risk that there trial preparation will be prejudiced, or that the trial will further postponed. As I commented in Traeger (No 2), I accept the plaintiff's proposition that it is appropriate that the plaintiff have the full suite of the defendant's medical evidence, at least from this stage of review, before putting the evidence to its experts.
If the issue of failure to mitigate is allowed to proceed to trial in its current form, then it is an issue on which the plaintiff could be expected to seek the opinions of his treating practitioners and medico-legal experts. The plaintiff has provided no evidence (nor submissions) that if the amendment is allowed, he will be prejudiced in his ability to prepare for the trial, assuming it starts when provisionally allocated. However, it is likely that there will be some further delay until all the reports are available from the defendant's current stage of reviews. This suggests a window within which an amended pleading could be provided without unduly disrupting plaintiff's trial preparation.
In any event, I have already advised the parties that the action will continue to be the subject of close case management to ensure it can proceed on the allocated dates.
I am satisfied that there will be no irremediable prejudice to the plaintiff if the amendment is allowed.

Discretion – public interest considerations

The fourth factor is the public interest in the proper and efficient administration of justice. In Aon the Court affirmed that the public interest in the administration of justice, reflected in provisions such as ACT r 21 (and RSC O 1 r 4A and r 4B) is an important consideration in the exercise of judicial discretions. In the words of the Chief Justice (at [24], [30], also [93], [133]):
"… Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502.
…
It might be thought a truism that 'case management principles' should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."
Similar comments are also made in Christmas Island Resort (No5) (supra) at 345, Pollard (at [24]), Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301, at [80], Wiltrading (at 316) and Tony Sadler (at 333 - 334).
The issue of impact on the public interest falls into sharpest focus when the proposed exercise of discretion would imperil trial dates. This is a very significant factor, as if the allocated trial dates are vacated, it usually means that the trial dates are not able to be allocated to another party awaiting trial dates. This was a significant point of distinction between the facts in JL Holdings – where there was six months to trial (154) – and Aon – where the amendment was sought three days into the four week trial.
In the present case, in Traeger (No 1), on the information then before me, I assessed the risk if the proposed amendments imperilling the trial dates as being hypothetical [31], especially given that there was then 3 months to commencement of the trial. Regrettably, the hypothetical risk eventuated shortly afterwards. Based on the then state of the defendant's expert evidence and, significantly, on the plaintiff's assessment that the 10 days then allocated appeared to manifestly inadequate for the trial, in Traeger (No 2), I vacated the trial dates. As noted already, it now provisionally listed for 20 days commencing 18 October 2010.
From perspective of maintaining confidence in the administration of justice, it seems to me that if the purpose of a late amendment is to align the pleadings and particulars with the issues and evidence which has emerged since the pleading was initially drafted as a result of the discovery and disclosure processes in the litigation, then there are good policy reasons to allow it prior to trial. This is particularly so if the amendment can be made without imperilling the trial dates. Confidence in the justice system is maintained by an outcome in which all issues in dispute between the parties are determined, on proper notice, at the one and only substantive hearing. Relevantly, the discovery processes include the power to subpoena documents, which in a personal injuries case are typically used to obtain hospital records and notes from treating practitioners. The disclosure processes also include the power to compel a plaintiff to attend a medical examination in RSC O 28 (though in this case, ICWA also has, and has relied on, the power in Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 30).
If the purpose of a late amendment is to introduce new causes of action, or new issues in the action, which require further investigation, which could have been raised earlier and which imperil trial dates, there are good policy reasons to deny it. Confidence in the justice system is maintained by an outcome in which all the parties are required to adhere to the timetable set by the Court either by the 2005 DCR or by specific direction. The requirement in 2005 DCR r 43(3a) for the parties to certify that the pleadings are in order before allocating trial dates reflects this aspect of maintaining confidence in the administration of justice.
In relation to each of the policy imperatives set out in the preceding two paragraphs, the public interest in the administration of justice is only one dimension of the interests of justice more generally, and is considered as part of the discretionary framework set out in [64] above. The present case has features of both these policy imperatives.

Balancing the risks of injustice

The starting point in balancing the risk of injustice is that, for the reasons I have set out above, in my opinion, par 8 as set out in the 17 June Minute provides a statement of the defendant's case sufficiently clear to allow the plaintiff a fair opportunity to meet it. The defendant has not filed a certificate pursuant to 2005 DCR r 43(3a) which it now seeks to resile from. The plaintiff has not identified any specific prejudice he will suffer if the amendment is allowed. Permitting the amendment would allow the defendant to align its pleadings to the facts currently disclosed as between the parties, in particular, the report of Mr Parker and those of Drs Fong and Connaughton. It does not raise a new issue that will require significant further investigation. Documents relating to rehabilitation are already within the ambit of discovery. The plaintiff has not identified any specific line of inquiry arising from the amendment which he will have difficulty completing in time for the orderly preparation of a trial commencing 18 October 2010.
The defendant ought to be allowed to amend his defence in terms of par 8 of the 17 June Minute. I will hear from counsel as to costs and consequent programming orders.