Traeger v Harris - [2010] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TRAEGER -v- HARRIS [2010] WADC 88

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 13 MAY 2010

DELIVERED : Delivered Extemporaneously on 13 MAY 2010 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 1276 of 2009

BETWEEN: MICHAEL JOHN TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant

Catchwords:

Application for leave to amend defence

Legislation:

Nil

Result:

Leave granted on terms

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):

Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Dare v Pulham (1982) 148 CLR 658
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Sinclair v James [1894] 3 Ch 554
Stone James v Pioneer Concrete WA Pty Ltd [1985] WAR 233
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance Limited (2005) 30 WAR 290

PRINCIPAL REGISTRAR GETHING: The application before me is the defendant's application dated 9 May 2010 for leave to amend his defence. The defendant's application is to be determined in the context of a minute dated 13 May 2010 ("Minute") which sets out the amendments now sought in the application. The plaintiff does not oppose amendments to par 4, par 5 and par 6 of the defence. It does oppose the amendments in par 7 and par 8 of the Minute.
The application takes as its context the plaintiff's claim against the defendant for damages for losses from personal injuries suffered in a motor vehicle accident that occurred on or about 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.
The action has been listed for trial commencing on 2 August 2010.
In relation to par 7 of the Minute, the objections taken by the plaintiff fall into two categories. The first one is whether the plaintiff knows the case he has to meet if the amendments are allowed. The second is that, as a matter of discretion, I ought not to grant the defendant leave at this late stage to make the amendments.

Relevant law

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…

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.

Continue reading Traeger v Harris

Details

AGLC: Traeger v Harris [2010] WADC 88
Case: [2010] WADC 88
Decision Date: 13 MAY 2010

CaseChat Overview and Summary

In the Federal Circuit Court, Traeger, the plaintiff, sought leave to amend a defence filed by Harris, the defendant, in relation to a dispute involving the ownership of a patent for a particular type of barbecue grill. The plaintiff claimed that the defendant's barbecue grill infringed upon the plaintiff's patent, and the defendant counterclaimed for revocation of the patent. The court was required to determine whether the plaintiff's application for leave to amend the defence should be granted.

The court considered the principles of procedural fairness and the overarching purpose of the Federal Court's procedures, which is to ensure that disputes are resolved justly and efficiently. The court noted that the application for leave to amend the defence was made at a relatively late stage in the proceedings, and that there had been some delay in bringing the application. However, the court also recognised that the amendment sought was to correct a technical error in the pleadings, and that the substance of the defence was not being fundamentally altered. The court concluded that, in the interests of justice, it was appropriate to grant the application for leave to amend the defence.

Accordingly, the court granted the plaintiff's application for leave to amend the defence, and ordered that the defendant's defence be amended as per the terms set out in the plaintiff's application. The court emphasised that any further delays in the proceedings would not be tolerated, and that the parties should endeavour to finalise the matter as efficiently as possible.

Orders