| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TRISTRAM -v- HYUNDAI AUTOMOTIVE DISTRIBUTORS AUSTRALIA PTY LTD & ANOR [2003] WADC 289 CORAM : COMMISSIONER REYNOLDS HEARD : 10 DECEMBER 2003 DELIVERED : 19 DECEMBER 2003 FILE NO/S : CIV 1145 of 2001 BETWEEN : TERICA ALISON TRISTRAM Plaintiff
AND
HYUNDAI AUTOMOTIVE DISTRIBUTORS AUSTRALIA PTY LTD
First Defendant
SUMMERRAIN PTY LTD
Second Defendant
Catchwords: Practice and procedure - Adequacy of indorsement of claim in a writ - Whether or not causes of action in substituted statement of claim are beyond scope of indorsement
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Legislation:
Supreme Court Rules
Trade Practices Act 1974
Trade Practices Amendment Act (No 1) 2001
Result: Appeal dismissed
Substituted statement of claim beyond scope of indorsement of claim in writ Representation:
Counsel:
Plaintiff : Mr B L Nugawela
First Defendant : Mr C D Clifton
Second Defendant : Mr M Campbell
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Jackson McDonald
Second Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235
Renowden v McMullin (1970) 123 CLR 584
Samways v Ansett Australia Ltd [2001] WASC 140
Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Wardley v State of Western Australia (1992) 175 CLR 514
Weldon v Neale (1887) 19 QBD 394
Case(s) also cited:
Halliwell v Venables (1930) 143 LT 214
Hazart v Rademaker (1993) 11 WAR 326
Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VR 733
State of Western Australia & Anor v McFarlane & Ors, unreported; FCt SCt of WA; Library No 980248; 20 April 1998
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1 COMMISSIONER REYNOLDS: This is an appeal from orders made by Deputy Registrar Harman on 5 June 2003 that (1) the plaintiff's substituted statement of claim filed 18 March 2003 be struck out and (2) that within 21 days the plaintiff do file any statement of claim and (3) that the plaintiff do pay the first defendant's costs of the application in any event.
2 The writ was issued on 4 May 2001 against Hyundai Australia Pty Ltd as the first defendant and Summerrain Pty Ltd as the second defendant with an indorsement of claim in the following terms:
"INDORSEMENT OF CLAIM
The Plaintiff's claim is for damages for personal injuries sustained as a result of a motor vehicle accident on or about 7 May 1998. The Plaintiff sustained physical and psychological injuries in the accident, which arose as a direct result of the negligence of the First Defendant in supplying to the Plaintiff a Hyundai Excel motor vehicle which was inherently defective and not of merchantable quality. Further, the motor vehicle accident was contributed to by the negligence of the Second Defendant, which failed to maintain the vehicle in a roadworthy condition, in its capacity as an independent contractor engaged by the First Defendant to maintain and service the said vehicle." 3 The writ was amended by substituting Hyundai Automotive Distributors Australia Pty Ltd for Hyundai Australia Pty Ltd as the first defendant pursuant to an order made by Deputy Registrar Harman on 22 April 2002. The indorsement of claim in the amended writ is identical with the indorsement in the writ. 4 The indorsement in both the writ and the amended writ is an indorsement of a claim based on negligence only. The substituted statement of claim filed 18 March 2003 alleges breaches by the first defendant of s 52(1) and/or s 74B(1) and/or s 74D(1) and/or s 75AD of the Trade Practices Act 1974 ("the Act"). Section 52 prohibits a corporation in trade or commerce from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 74B creates a statutory cause of action for loss or damage by reason of goods not being reasonably fit for the purpose for which they were acquired. Section 74D creates a statutory cause of action for loss or damage where goods acquired are not of merchantable quality. Section 75AD creates a statutory cause of action against a corporation in trade or commerce where
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it supplies goods manufactured by it which have a defect and because of the defect an individual suffers injuries. 5 Before the Act was amended on 26 July 2001 an action for damages under s 82 based on s 52 of the Act had to be commenced at any time within three years after the day on which the cause of action that related to the conduct accrued. Pursuant to s 74J of the Act causes of action under each of s 74B and 74D of the Act have a three year limitation period which commences on the day on which the owner of the goods first became aware or ought reasonably to have become aware that the goods were not reasonably fit for the purpose for which they were supplied in the case of s 74B and that the goods were not of merchantable quality in the case of s 74D. Pursuant to s 75AO of the Act an action pursuant to s 75AD of the Act subject to being commenced within 10 years of the supply by the manufacturer of the action goods must be commenced at any time within three years after the time the person became aware, or ought to reasonably to have become aware, of the alleged loss, the defect and the identity of the person who manufactured the action goods. 6 Paragraph 7.1 of the substituted statement of claim provides that the first defendant supplied the vehicle to the plaintiff containing a serious defect in its original design, manufacture or assembly, in that there was cracking in the sub-frame resulting in problems of directional control and steering. Paragraphs 17 to 25 inclusive of the substituted statement of claim provide inter alia that the plaintiff encountered severe steering problems when driving the car at high speed, that she put the car in for repair and on or about 18 September 1997 was told by the first defendant that there was cracking in the sub-frame and that another piece of metal would be inserted to reinforce it, and that in or about November 1997 at the premises of the second defendant the plaintiff inspected the vehicle on a hoist and observed two pieces of metal welded over the cracks in the sub-frame assembly. 7 As I understand it the Deputy Registrar made his decision by reasoning that on the plaintiff's own pleadings she must have known of her loss in relation to the causes of action under the Act as pleaded in the substituted statement of claim when she bought the motor vehicle on or about 29 July 1996 or at least in or about November 1997 when she inspected it. Therefore as at 4 May 2001 when the writ was issued any claim she had under the Act was more than three years old and statute barred. Using that reasoning he did not have to consider whether or not the substituted statement of claim exceeded the scope of the indorsement in the writ in order to decide the matter.
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8 On appeal counsel for the plaintiff submitted that the Deputy Registrar erred by using the time when the plaintiff purchased or inspected the motor vehicle rather than the time of the accident when she suffered loss as a result of her personal injuries to calculate the commencement and expiry of the statutory limitation periods in the Act to which I have referred. If the time of the accident provided in the indorsement of claim of on or about 7 May 1998 is the time when each of the causes of the action under the Act accrued then the writ was issued about three days within time. Three years after the accident is on or about 7 May 2001 and the writ was issued on 4 May 2001. I note that the substituted statement of claim provides that the accident happened on or about 4 May 1998. I do not need to take that any further to decide this appeal.
9 It was further submitted by counsel for the plaintiff that the various statutory causes of action under the Act included in the substituted statement of claim come within the scope of the indorsement of claim in the writ. 10 The appeal is opposed and counsel for the first defendant takes issue with both of the submissions made by counsel for the plaintiff. 11 In my view the outcome of this appeal primarily turns on the question of whether or not the substituted statement of claim exceeds the scope of the indorsement of claim in the writ. A statement of claim cannot exceed the scope of the indorsement in the writ. See Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 238. 12 In support of the submission on behalf of the plaintiff that the indorsement of claim is broad enough to support a claim based on breaches of the Act it was pointed out that the indorsement of claim includes the words "supplying to the plaintiff a Hyundai Excel motor vehicle which was inherently defective and not of merchantable quality". Samways v Ansett Australia Ltd [2001] WASC 140 was relied on as authority to support this submission. 13 It is trite to say that each case falls to be decided having regard to its own particular circumstances. The Samways case concerned a claim for injuries suffered by a passenger during a domestic airline service. Any claim in relation to injuries sustained during the course of such travel was subject to the provisions of the Civil Aviation (Carriers Liability) Act (C'th) 1959 ("the Civil Aviation Act"). Section 28 of the Civil Aviation Act made the carrier liable for any personal injury suffered by a passenger
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resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The defendant therein applied for summary judgment on the basis that the indorsement of claim was inadequate and the plaintiff therein applied to amend the indorsement. The indorsement of claim made no reference to the Civil Aviation Act. The application for summary judgment was dismissed and the plaintiff was allowed to amend. In reaching his decision the learned Master stated that the action could only be brought pursuant to the Civil Aviation Act and that the failure to mention the Civil Aviation Act in the indorsement of claim was of no significance. He also stated that there was no requirement to refer to a particular cause of action and that the relevant facts were included in the indorsement of claim. In my opinion those circumstances and findings are not apposite to this particular case. 14 In ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235 McLure J with whom Wheeler J agreed, considered the adequacy of an indorsement of claim in a writ. Her Honour McClure J set out in her judgment the following three functions of an indorsement of claim in a writ. Firstly it marks out the perimeter within which a plaintiff may frame the statement of claim. Pursuant to O 20 r 2(2) of the Supreme Court Rules: "A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, the facts giving rise to a cause of action so mentioned." 15 Secondly, an indorsement in a writ has important limitation ramifications. Thirdly, an indorsement also provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action. However it is not intended to be in the nature of a pleading but only a summary of the nature of the claim; see Renowden v McMullin (1970) 123 CLR 584 at 595. The indorsement of claim considered in ABB's case was set out in the following terms:
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16 At [13] to [17] inclusive her Honour McLure J said: "In my opinion, the respondents' indorsement of claim does not comply with O 6 r 1 or O 20 r 19(1) of the SCR. In particular, there is no information in the indorsement which links the respondents or either of them to: (a) receipt of or reliance on or even knowledge of the representations; (b) the contract between the applicant and Monaveen Pty Ltd which is said to be the subject matter of the representation; (c) the damage arising from the representations. The indorsement does not put the facts in a recognisable legal framework showing how the respondents' claims arise and the relationship between the claims and the loss. Without further information the reader is left to speculate as to how it is the respondents have a claim for damages against the applicant for representations made by the applicant about a contract between the applicant and a third party. There are a number of possible permutations and links which could theoretically give rise to a claim by the respondents against the applicant for breach of the pleaded causes of action. However, the respondents must state those links so they cannot subsequently be the beneficiary of such an open-ended plea in the event a limitation issue arises. In order to make the links, the indorsement should identify to whom the representations were made and how representations in connection with a contract between the applicant and a third party affected the respondents (whether it be by way of providing personal guarantees or advancing loan funds to Monaveen Pty Ltd or otherwise) resulting in damage to the respondents.
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The applicant submitted that a defendant should be able to consider its defence under the Limitation Act from the information included in an indorsement: Ruzeu v Massey-Ferguson (Aust) Ltd (1983) 1 VR 733 at 734 - 735; Elsum v Jameson (1974) VR 529 at 542 - 543. Both Victorian cases involved a claim for personal injuries where the date of the accident and the accrual of the cause of action coincided. In my opinion, there is no requirement that an indorsement in a writ for a representation based claim under the Trade Practices Act or in negligence contain all the relevant facts necessary to establish the date of accrual of the cause of action. In many cases that can involve a complex factual analysis: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514). However, there should be sufficient factual information in the indorsement to predetermine the limitation outcome. That is, the facts in the indorsement should enable a factual trail to be pursued which will result in identification of the date on which the cause of action accrued. The information establishing the links referred to earlier in these reasons is necessary for this purpose. The only additional information required for this purpose is further detail identifying the subject matter of the representations. The respondents are not required to state the content or the substance of the representations as in a statement of claim. However, they do need to narrow the focus of the description of the subject matter of the representations. Finally, in view of the wide time-frame identified in the indorsement during which the representations were said to have been made, the respondents need to identify the manner (writing, oral or implied) in which the relevant representations were made." 17 I propose to deal with each of the statutory causes of action under the Act included in the substituted statement of claim in turn. The first is the cause of action for damages under s 82 based on s 52 of the Act. Section 52 concerns conduct that is misleading or deceptive or is likely to mislead or deceive. The indorsement of claim makes no express reference at all to misleading or deceptive conduct. In my view the indorsement does not imply any such conduct. The use of the words "inherently defective" and "not of merchantable quality" in the indorsement of claim do not imply an allegation of misleading or deceptive conduct. Given that the indorsement of claim in ABB's case which made express reference to s 82 and s 52 of the Act was held to be inadequate for all of the reasons as stated by her Honour McLure J in the passage to which I have referred,
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the indorsement of claim in this case falls a very long way short of supporting the inclusion of a cause of action under s 82 based on s 52 of the Act in a statement of claim. 18 The second cause of action under the Act included in the substituted statement of claim is under s 74B which concerns the supply and acquisition of goods for a particular purpose. The indorsement of claim makes no express reference to any particular purpose. Clearly when a consumer buys a car it is implicit from the very nature of the goods that the consumer wants the car to be fit for the purpose of accurately steering it on roads. However, in my view an ordinary reasonably minded person whether legally qualified or not on reading the indorsement of claim would not imply any allegation in relation to particular purpose from the wording of the indorsement of claim. 19 The third and fourth causes of action under the Act included in the substituted statement of claim are s 74D which concerns the supply and acquisition of goods that are not of merchantable quality and s 75AD which concerns the supply of defective goods and the suffering of injury because of the defect, respectively. In my opinion the express reference to key words such as "merchantable quality" and "defective" does not necessarily create the scope for including causes of action under s 74D and s 75AD respectively in a statement of claim. It is necessary to have regard to the context within which such words are used. The express reference in the indorsement of claim to the car being inherently defective and not of merchantable quality are confined within the context of a cause of action in negligence and only go to explain such plea. 20 For all these reasons I am of the opinion that the scope of the indorsement of claim is not broad enough to support the inclusion of the causes of action under the Act in the substituted statement of claim. 21 As at 18 March 2003 when the plaintiff filed her substituted statement of claim she was out of time for all of the causes of action under the Act included in the substituted statement of claim no matter whether the loss accrued on 29 July 1996 when she purchased the car or about November 1997 by which time she was aware of the defect or on or about 7 May 1998 when the accident occurred and the plaintiff suffered injury. 22 I should add that the amendment to the Act in 2001 which extended the three year limitation period in s 82(2) of the Act from three years to six years by Item 20 of the Trade Practices Amendment Act (No 1) 2001
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does not assist the plaintiff in this particular case because Item 21 of the same Act provides: 23 For all of these reasons, in the circumstances of this particular case the delivery of the substituted statement of claim cannot operate to amend the writ. Further, the indorsement in the writ should not be amended in order to allow causes of action under the Act to be pleaded because as at 18 March 2003 they were all out of time. See Weldon v Neale (1887) 19 QBD 394 and Wardley v State of Western Australia (1992) 175 CLR 514 at 561 – 562. 24 The first defendant's application heard by Deputy Registrar Harman on 5 June 2003 sought an order inter alia that par 12 of the substituted statement of claim be struck out if the substituted statement of claim as a whole was not struck out. Paragraph 12 of the substituted statement of claim relates to the negligence plea by the plaintiff. It provides:
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and the vehicle becoming unsteerable, particularly when driven at speed. 12.4 The First Defendant failed to warn the Plaintiff that the cracked subframe of the vehicle could result in loss of directional control. 12.5 The First Defendant failed to take such care that was reasonable in all the circumstances to ensure that the Plaintiff did not suffer injury when driving the vehicle. 12.6 By reason of the matters pleaded in paragraphs 12.1-12.5 the Plaintiff's injuries sustained in the accident on the material date were caused by the negligence of the First Defendant, its servants and/or agents. 12.7 In the alternative to paragraph 12.6, the Plaintiff will rely on the doctrine of 'res ipsa loquitur' at the trial of this action." 25 In my view par 12 as presently drafted is embarrassing in a number of respects. The defect referred to in pars 12.1 and 12.2 is not specified or linked to the defect referred to in pars 12.3 and 12.4, there is no plea of any duty of care and there is no connection pleaded between any alleged defect and the accident in which the car rolled over. 26 The basis of the plea of res ipsa loquitur in par 12.7 is not spelt out. If it be the case that the plaintiff is simply relying on the motor vehicle having a cracked sub-frame and it rolling over in an accident then I would not have thought that those facts by themselves would necessarily support such a plea. For present purposes I think that I should stop short of saying that such a plea cannot apply in a case such as this and give the plaintiff another chance to plead this and other aspects of her case based on negligence. That is effectively what the Deputy Registrar did by giving the plaintiff 21 days to file another statement of claim.
Conclusion 27 For all these reasons I propose to make the following orders.
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statement of claim is amended to provide that the plaintiff may do so within 21 days of the date of these reasons being published. 28 I will give the parties the opportunity of being heard on the question of costs.
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