Williams v AusNet Electricity Pty Ltd (Ruling No 1) - [2015] VSC 659

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 05296

STEVEN ELLIOT WILLIAMS

Plaintiff

AUSNET ELECTRICITY PTY LTD

HUME CITY COUCIL

ACTIVE TREE SERVICES

First defendant

Second defendant

Third defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2015
DATE OF JUDGMENT:	18 November 2015
CASE MAY BE CITED AS:	Williams v AusNet Electricity Pty Ltd & ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 659

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PRACTICE AND PROCEEDURE – Pleadings - Proposed amendment to statement of claim – Expansion of claims alleged – Objections – Principles relevant to application to amend – Test for determining whether amendment futile – Some evidence capable of supporting the allegations in the proposed amended pleading – Amendments allowed - Supreme Court (General Civil Procedure) Rules 2005 r 36.01.

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APPEARANCES:

Counsel

Solicitors

For the plaintiff

Mr G. Dalton
Mr A. Fraatz

Maddens Lawyers

For the first defendant

For the second defendant

For the third defendant

Ms L. Nichols

Mr M. Hooper

Mr R. Andrew

Herbert Smith Freehills

DLA Piper

Wotton + Kearney

HIS HONOUR:

This proceeding was issued by writ and statement of claim on 1 October 2014. The second and third defendants were joined by the first defendant’s defence on counterclaim as a party to the proceeding. They were joined as defendants on 19 January 2015.

Orders for discovery were made on 8 April 2015 and in due course a total of more than 20,000 documents were discovered.

Review of the documents was delayed somewhat by difficulties associated with electronic processing. Eight thousand of AusNet’s August discovered documents were not available for review until early September 2015. Understandably, this review took some time.

Following the review, the plaintiff asserts that he considered it necessary to amend his statement of claim. The plaintiff’s written submissions read: ‘The plaintiff considered it necessary to make amendments to the pleading to ensure that the real questions in the controversy between the parties are decided’. This picks up the language of Rule 36.01(a) of the Supreme Court (General Civil Procedure) Rules 2005, to which I shall return later in these reasons.

The plaintiff served a proposed Second Amended Statement of Claim on the parties on 12 October 2015.

On 12 October, by consent, I made an order as follows:

Unless any party notifies the plaintiff of an objection to its proposed Second Amended Statement of Claim by 4.00pm on 23 October 2015 the plaintiff has leave to file and serve a Second Amended Statement of Claim in the form proposed by 26 October 2015.

On 23 October, the third defendant, Active Tree Services, objected to the proposed Second Amended Statement of Claim, particularly proposed paragraphs 22C and 22G. I reproduce those paragraphs:

22C. At all material times, Ausnet’s procedures required assessors conducting assessments of vegetation outside the clearance space in the course of pre-summer tree inspections:

(a) to have the following knowledge and experience:

(i) a sound knowledge of horticulture and/or…

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.

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Details

Case: [2015] VSC 659
Decision Date: 18 November 2015

CaseChat Overview and Summary

Williams, a property owner, filed a claim against AusNet Electricity Pty Ltd, the electricity distribution company, in the Supreme Court of Victoria. Williams alleged that he suffered damage to his property due to the alleged negligence of AusNet in maintaining and operating the electricity distribution network. The dispute centred on the proposed amendment to the statement of claim to expand the claims alleged against AusNet. AusNet objected to the amendment on the grounds that it was futile and would not succeed.

The court was required to determine whether the proposed amendment to the statement of claim was permissible under the Supreme Court (General Civil Procedure) Rules 2005 and whether the amendment was futile. The test for determining whether an amendment is futile involves considering whether there is some evidence capable of supporting the allegations in the proposed amended pleading. The court must also consider the principles relevant to an application to amend, such as the need for amendments to be made in a timely manner and the potential prejudice to the opposing party.

The court held that the proposed amendment was permissible and allowed it, finding that there was some evidence capable of supporting the allegations in the proposed amended pleading. The court noted that the amendment sought to expand the claims alleged against AusNet, but did not introduce new parties or change the cause of action. The court also considered the potential prejudice to AusNet, but found that it was not significant and could be mitigated by appropriate orders. The court held that the proposed amendment was not futile and allowed it.

The court made orders allowing the proposed amendment to the statement of claim and directing the parties to proceed with the amended pleading. The court also made orders to ensure that the amendment did not cause significant prejudice to AusNet, such as directing that AusNet be given reasonable time to respond to the amended pleading and that any costs associated with the amendment be shared fairly between the parties.

Orders