Wintle v Conaust (Vic) Pty Ltd - [2001] VSC 315

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 1113 of 1989

WINTLE	Plaintiff
v.
CONAUST (VIC.) PTY. LTD. & ORS	Defendants

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JUDGE:	HEDIGAN, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2001
DATE OF JUDGMENT:	30 August 2001
CASE MAY BE CITED AS:	Wintle v. Conaust (Vic.) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 315

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Application for leave to file Amended Statement of claim – Application made many years after original claim – Applicant widow seeking to include Wrongs Act claim 12 years after original Writ and Statement of claim.

Order 36.01 and 36.06 of Supreme Court Rules – Section 34 Limitation of Actions Act - Court not satisfied that no other party would be prejudiced – Application to amend refused – Title of original proceeding amended.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Sher, Q.C. Mr B. Quinn	Slater & Gordon
For the Defendant S.I.F.C.	Mr R. Gorton Mr F. Saccardo	Blake Dawson
For the Defendant James Hardie in 4950/2000	Mr D. Batt	Arthur Robinson Hedderwick
For the Defendant C.S.R. in 4950/2000	Mr J. Noonan	Ebsworth & Ebsworth

HIS HONOUR:

The matter before me involves a number of proceedings. First, No. 1113 of 1989 between George Wintle, Plaintiff, and Conaust (Vic.) Pty. Ltd. first defendant and four other defendants, including the Stevedoring Industry Finance Committee which is the fifth defendant in the proceeding and, in effect, the only active remaining defendant in it. Another proceeding (No. 4950 of 2000) is between the widow of George Wintle, Anne Wintle, and the Stevedoring Finance Committee, first defendant; James Hardie & Co. Ltd. (which has now changed its name to Amaca Pty Ltd. which has throughout been referred to as James Hardie (as I shall) and C.S.R. Ltd. the third defendant. The Court and the parties have visited and re-visited the inter-relationship between these two proceedings on more occasions than I care to remember and I have given many rulings and decisions concerning it, so much so that I do not propose to say anything in detail about the background, save as to focus upon the present applications. It can be stated that on 7th April 1989 the deceased Mr Wintle also commenced proceedings No. 1113 of 1989 against the S.I.F.C. seeking damages for an asbestos-related injury suffered by him in the course of his employment as a waterside worker between 1961 and 1969. On 14th April 1989 the then Listing Master Master Gawne made an order consolidating 1113 of 1989 with 1114 of 1989. He fixed the trial date for the proceedings as being on 5th June 1989. The late Mr Wintle gave evidence in the course of a De Bene Esse hearing but died on 12th May 1989. No further action was taken in the consolidated proceedings until April 2000. On that date the widow Mrs Anne Wintle commenced proceedings against S.I.F.C., James Hardie and C.S.R. claiming damages pursuant to the provisions of the Wrongs Act

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 Wintle v Conaust (Vic) Pty Ltd

Details

AGLC: Wintle v Conaust (Vic) Pty Ltd [2001] VSC 315
Case: [2001] VSC 315
Decision Date: 30 August 2001

CaseChat Overview and Summary

The case of Wintle v Conaust (Vic) Pty Ltd involved a widow who sought to amend her Statement of Claim over a decade after the original writ and Statement of Claim were filed. The widow aimed to include a claim under the Wrongs Act, which was not initially part of the proceedings. The matter was brought before the Supreme Court of Victoria, where the court had to determine whether the application to amend the Statement of Claim was permissible under the Supreme Court Rules and the Limitation of Actions Act.

The legal issues at hand required the court to consider whether the application to amend was made within a reasonable time and whether such amendment would prejudice any of the parties. The widow argued that the amendment was necessary to include a claim that was discovered after the original proceedings had been initiated. However, the defendant opposed the amendment, asserting that it would be unjust to allow such a significant change many years after the events in question had occurred.

In its decision, the court examined the provisions of Order 36.01 and Order 36.06 of the Supreme Court Rules, which govern the amendment of pleadings. The court also considered Section 34 of the Limitation of Actions Act, which sets out the conditions under which amendments may be allowed. The court found that the widow had not demonstrated that no other party would be prejudiced by the amendment. Consequently, the court refused the application to amend the Statement of Claim. However, the court did amend the title of the original proceeding to reflect the nature of the claim more accurately.

Orders