TransAdelaide (STA) v Tremco (Pabco) & Ors No. Scgrg-58-90
[2000] SASC 320
•14 September 2000
[2000] SASC 320
TRANSADELAIDE (STA) V TREMCO (PABCO) & ORS
Civil (Ex Tempore)
1................ LANDER J....... This is a further application by the third party to amend its defence in third party proceedings brought by the defendant. A previous application was made and dismissed for reasons which I gave on 7 June 2000.
The first application failed because of the form of the proposed amendment.
The issue between the defendant and first third party concerns a policy of insurance issued by the third party covering the defendant.
The third party seeks to plead, by this amendment, an exclusion to the policy to the affect that the policy does not cover products hazard liability: Exclusion (j). It has, in the proposed amendment, defined the products hazard, the insured’s products, and it has particularised the product which is said to be excluded by exclusion (j). The third party has then given particulars of why it claims that exclusion (j) operates to deprive the defendant of cover under the policy.
Exclusion (j) also includes two exceptions to the exclusion, but the third party has, on this occasion, not pleaded them.
I am satisfied that the present pleading, although not including extensive particulars, is in an acceptable form.
Mr O’Sullivan, who appeared for the defendant, indicated that, whilst his client was not satisfied with the particularity given in the proposed pleading, the defendant could not point to any further and better particulars which should be given. He was prepared to accept, for the purpose of the argument, that the proposed amendment included all particulars as were available to the third party.
In those circumstances, on this application, there was no substantial objection to the form of the amendment.
The only real question which needs to be considered, on this application, is whether the application is brought so late that it should be refused because, to otherwise allow the application, would occasion prejudice to the defendant.
The defendant first notified the third party of a claim on the policy of insurance on 5 June 1991. As early as 18 February 1992 the solicitors, then acting for the third party, advised the then solicitors acting for the defendant that the third party was unable to find a copy of the relevant policy of insurance. That has remained the case ever since, and, indeed, neither party has been able to obtain a copy of the policy of insurance.
The parties have proceeded upon the basis that there was a standard form of insurance at that time, and that that standard form of insurance contained the relevant cover, conditions, and exclusions in the policy issued by the third party.
Notwithstanding that the defendant first notified the third party of the potential of a claim on 5 June 1991, the defendant did not articulate its proceedings against the third party until it filed its Statement of Claim on 18 April 1996. The third party filed its defence to the defendant’s statement of claim, on 16 December 1996. I need not go into the details of the various pleadings, but it is the fact that the defendant did not, at that stage, plead exclusion (j) of the policy.
The third party, only relatively recently, within the last ten or twelve months, advised the defendant that it intended to rely upon the exclusion. The defendant has, since that time, sought to obtain a copy of the policy from brokers, which it had engaged during the relevant time, and the successor in business to those brokers. It has made extensive inquiries to ascertain whether a copy of the policy, or any schedules to the policy, exist. It has not been able to find any further information relevant to this matter over the period of the search.
The defendant objects to the amendment being allowed upon the basis it will suffer prejudice by such a late amendment. It seems to me, however, that the defendant has to show that, if it intends to rely upon an objection based upon prejudice, it has suffered some prejudice since the third party filed its defence on 16 December 1996.
There is no doubt that the third party when it filed its defence could have included in it the plea, which it now seeks to raise. Therefore it seems to me logically the defendant must show, if it intends to rely upon prejudice, that the failure to plead the provisions of exclusion (j) in December 1996 has thereby occasioned some prejudice. That prejudice, logically, it seems to me, must be prejudice which has been occasioned to the defendant since that time and before this hearing.
Mr O’Sullivan frankly conceded that he could not point to any prejudice but, in doing so, said that his inability to identify any prejudice since December 1996, was occasioned by the document trail having become so cold. He said that his client had done everything possible to try and obtain a copy of a policy of insurance and the schedules to the policy of insurance, but the document trail was so cold that it had been unable to do so.
The difficulty, I think, with his argument is, that those circumstances existed prior to December 1996. I think then the document trail was so cold that Mr O’Sullivan’s client would then not have been able to have obtained a copy of the policy or any of the schedules.
I do not think the defendant can point to any prejudice since the filing of the third party’s defence.
In those circumstances it would be appropriate to allow the application to amend the defence and I will do so.
The orders will be that:
1...... The third party have leave to file the further amended defence of the first third party against the defendant’s statement of claim, enclosed in a letter from Proud & Co dated 31 August 2000 to my associate, by Monday 18 September.
2...... Leave to the defendant to file any reply, which it might be advised, by Friday, 22 September.
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