WODZIANSKI v BlueScope Steel Ltd - [2010] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WODZIANSKI -v- BLUESCOPE STEEL LTD & ANOR [2010] WADC 107

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 14 JULY 2010

DELIVERED : 29 JULY 2010

FILE NO/S: CIV 2077 of 2007

BETWEEN: AARON LEIGH WODZIANSKI
Plaintiff
AND
BLUESCOPE STEEL LTD (ACN 000 011 058)
Defendant
LINFOX AUSTRALIA PTY LTD (ACN 004 718 647)
Third Party

Catchwords:

Late application to amend defence

Legislation:

Workers Compensation and Injury Management Act 1981, s 175, s 93D, s 93E

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
Defendant:     Mr J R Criddle
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Separovic & Associates
Defendant:     Sparke Helmore
Third Party                   :     Norton Rose Australia

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2009] WASC 301
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334
Cropper v Smith (1884) 26 Ch D 700
Dare v Pulham (1982) 148 CLR 658
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fletcher v St George Bank Limited [2010] WASC 75
Foster v Chief Executive Officer Department of Agriculture [2006] WASCA 95
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) & Ors [2006] WASC 24
Hewitt v Benale Pty Ltd [2002] WASCA 163
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
May v Thomas [2008] WASCA 215
Neilson v City of Swan [2006] WASCA 94
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
Pollard v Endale Pty Ltd [2009] WASCA 189
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Remmington v Scoles [1897] 2 Ch 1
Runcan v Svedala Australia Ltd [2007] WASCA 126
Sinclair v James [1894] 3 Ch 554
Southern Wine Corp Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236
Stone James (a firm) 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 Ltd (2005) 30 WAR 290

PRINCIPAL REGISTRAR GETHING: By application filed 25 May 2010 the defendant sought leave to amend its defence in accordance with a minute of proposed amended defence annexed to the application ("Minute"). The essence of the amendment was to add a plea that the defendant was a deemed employer of the plaintiff pursuant to Workers Compensation and Injury Management Act 1981 (WA) ("WCIMA") s 175 (as it applied at the relevant time) and that, consequently, common law damages could not be awarded in favour of the plaintiff by virtue of the provisions of WCIMA s 93D and s 93E.
In the action, the plaintiff claims damages arising out of an injury on 9 November 2001 which occurred when he was assisting to load a bundle of guttering approximately 57 kilos in weight onto a truck. The defendant, Bluescope Steel Limited, was the occupier of the premises on which the accident was said to have occurred. The third party, Linfox Australia Pty Ltd, was a contractor engaged by the defendant to provide transport services to the defendant. It appears from the pleadings that the plaintiff was employed by a labour hire company, Integrated Group Limited ("Integrated"). Integrated had agreed to provide employees, including the plaintiff, to the third party for the purposes of its contract with the defendant.
In support of this application the defendant filed an affidavit of one Nicola Frampton, sworn 18 June 2010. The defence in its current form does not admit the allegations going to its control of the premises and the circumstances of the accident, denies negligence and does not admit any of the consequences or injuries alleged by the plaintiff.
The amendments, which are longer then the rest of the defence in its current form, are as follows:
"9Further or in the alternative, the defendant was deemed employer of the plaintiff pursuant to section 175(1) of the Workers Compensation and Injury Management Act 1891 (the Act) and consequently, common law damages cannot be awarded in his favour by virtue of the provisions of sections 93D and 93E of the Act.
Particulars
91.On or about 16 February 2000, the defendant as the principal entered into a written contract with the third party as the contractor (the Contract) whereby the third party agreed to:
(a)provide services including undertaking and scheduling of transport for the defendant;
(b)undertake the loading of goods onto and into vehicles and equipment for the defendant;
(c)undertake the transportation of goods from the defendant's site at 14 Howe Road, Osborne Park (the Services).
9.2On or about 1 March 2001 by written agreement between the third party as principal and Integrated Group Limited (Integrated) as contractor, Integrated agreed to provide employees for the purpose of performing the Services pursuant to the Contract.
9.3The plaintiff was employed by Integrated to work under the supervision, direction and control of the third party as a truck driver to perform the Services pursuant to the Contract.
9.4The plaintiff was a worker as defined in section 5 of the Act being a person engaged by Integrated to provide labour for hire as part of Integrated's business and was paid by Integrated for that labour.
9.5The work which the plaintiff was required to perform as pleaded in paragraph 4 of the statement of claim and which resulted in the alleged injury pleaded in paragraph 5 of the statement of claim:
a)was directly a part or process in the trade or business of the defendant within the meaning of section 175(3) of the Act;
b)occurred at premises owned and controlled by the defendant in accordance with section 175(7) of the Act;
9.6The defendant, as original principal under section 175(6) of the Act, was consequently the deemed employer of the plaintiff pursuant to section 175(1) of the Act.
9.7As the plaintiff has failed to obtain a determination that his degree of disability as defined in section 93E(1) of the Act is not less than 30%, common law damages cannot be awarded in his favour by virtue of provisions of sections 93D and 93E of the Act."

Relevant law and practice – pleadings and particulars disputes

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 cause of action: Fletcher v St George Bank Limited [2010] WASC 75 at [29]; 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 set out in Rules of the Supreme Court 1971 (WA) ("RSC") O 20, r 19(1)(b) to r 19(1)(d): Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32 at 38. Further, in determining the adequacy of the pleading, it is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658 at 664; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. A pleading may therefore be struck out where it is vague, ambiguous or pleaded at too greater a level of generality so as to leave the other party in doubt as to how to respond to the pleadings: Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) &Ors [2006] WASC 24 at [11].
In relation to function of particulars, the High Court in Dare (supra) stated (at 664, footnotes and references omitted):
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it …; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial …; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings … But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed …, though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence…"
As to the purpose of pleadings and particulars, in Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82, the Chief Justice stated (at 83 - 84 [4] - [8]):
"It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.
Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained."
Along a similar vein, Master Newnes, as his Honour then was, in Frank Jasper (supra) at [13] states the following:
"The question of whether a pleading is so defective that it should be struck out is not, therefore, to be answered by any mechanical application of the rules of pleadings. It is generally to be answered by whether or not the pleading serves the fundamental objective of pleadings and whether any significant deficiencies in it can adequately be overcome by the provision of particulars or by some other means. While it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleading is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of the pleading."

Do the amendments comply with the pleadings rules?

The plaintiff raised three objections to the form of the amended paragraphs.
The first is that par 9.1(c) is not supported by the contract referred to in at the heard of par 9.1, the contract dated 16 February 2010 between the defendant and the third party ("Linfox Contract"). In order to determine this objection, I would need to review the Linfox Contract and then assess whether it is fairly represented in par 9.1(c). On my understanding of the authorities, this is not permissible in examining whether a pleading complies with the requirements of the RSC. Specifically, when considering whether a pleading discloses a reasonable cause of action, all the facts alleged in the statement of claim must be accepted as true: Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986; Neilson v City of Swan [2006] WASCA 94 at [18]. No evidence is admissible on an application of this kind: RSC O 20 r 19(2): Southern Wine Corp Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236 at [51]. Where the issue is whether the pleading sufficiently discloses the case that the opponent has to meet, the pleading must be reviewed on its face to determine whether it is sufficient. Evidence may be led of abuse of process or that a defence is a sham, but not as to whether allegations contained in a pleading are improbable, false or untrue: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 109; Remmington v Scoles [1897] 2 Ch 1 at 7.
I am, however, satisfied that it is not clear to the plaintiff how the address of 14 Howe Road was obtained from the Linfox Contract, and that, if I were to grant leave to amend, he ought to be allowed further particulars on this point.
The second objection is that the amendments do not adequately explain why the defendant is a "principal" for the purposes of WCIMA s 175. The amendments in [4] above set out a chain of contractual relationships from the defendant to the third party (par 9.1) to Integrated (par 9.2) to the plaintiff (par 9.3). The application of s 175 is then set out (par 9.4 to par 9.6), including a reference to s 175(6) which deals with contractual chains. I am satisfied that the pleading sufficiently discloses to the plaintiff the case he has to meet.
The third objection is that it is not clear what the defendant's argument here is to establish that the contract was "for the execution of work" and not the supply of labour. This distinction is referred to in Foster v Chief Executive Officer Department of Agriculture [2006] WASCA 95 at [11]. Again it seems to me that this deficiency is one best addressed by further particulars.
In summary, with the provision of further particulars, I would be satisfied that the amendments comply with the rules of pleading. This issue then becomes one of discretion.

Discretion – legal framework

The discretionary issue which arises is whether the defendant ought to be given leave amend in the terms sought. The discretion to allow amendments is set out in RSC O 21 r 5. It provides that "the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the Court may direct".
What may be described as the traditional approach to the exercise of discretion in relation to pleadings amendments is summarised by Newnes AJA in May v Thomas [2008] WASCA 215 in the following terms (at [33] - [34]):
"The relevant principles to be applied on an application to amend a pleading are well-known. In general, a party should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause an injustice to the other party which could not be adequately remedied, for instance by an order for costs: Cropper v Smith (1884) 26 Ch D 700, 710; Shannon v Lee Chun (1912) 15 CLR 257, 260 - 261; Clough v Frog (1974) 4 ALR 615, 618; The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154. The party seeking the amendment bears the burden of persuading the court that the amendment will not cause irremediable prejudice to the other party: Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; McKenzie v Commonwealth of Australia [2001] VSC 361 [22] - [23]; Burk v Commonwealth of Australia (No 3) [2004] VSC 210. However, the party opposing the amendment ordinarily bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party; the non‑existence of prejudice is difficult to prove, so that in practice in the latter circumstances an evidential burden is borne by the party resisting the amendment: Hancock Shipping Co Ltd (1030). But it is not sufficient for a party to rely on prejudice which results from an unreasonable act or omission on the part of that party: Steward v North Metropolitan Tramways Co (1886) 16 QBD 556, 559 - 560; Wilson v Grimwade [1995] 2 VR 628, 632."
This approach must now be refined in the light of the subsequent decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. In Aon (supra) all members of the Court held that in exercising the general discretion to allow amendments to pleadings in Court Procedure Rules 2006 (ACT) ("ACT Rules") r 502, the Court is to seek the objectives of case management set out in ACT Rules r 21 (at pars [36], [89], [133] - [134], [157]). ACT Rules r 502 is similar in effect to RSC O 21 r 5. The objectives of case management set out in ACT Rules r 21 are substantially the same as those set out in RSC O 1 r 4A and r 4B, which are in the following terms:
"4A. Elimination of delays
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
4B. System of case flow management
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of —
(a)promoting the just determination of litigation;
(b)disposing efficiently of the business of the Court;
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business at a cost affordable by parties.
(2)These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1)."

By parity of reasoning, in exercising the discretion in RSC O 21 r 5, I should seek the attainment of the objectives in RSC O 1 r 4A and r 4B.
The majority in Aon made the following comments on ACT Rules r 21 which are relevant to the interpretation of RSC O 1 r 4A and r 4B (at [98], [102]):
"Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
…
The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. While r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment."
The overarching issue in the exercise of the discretion to grant leave to amend is to balance the competing risks of injustice in the context of maintaining public confidence in the legal system as a whole. Four factors emerge from the decided cases:
(a)the reasons for delay in making the application;
(b)the prejudice to the defendant if leave is not granted;
(c)the prejudice to the plaintiff if leave is granted; and
(d)the impact on the public interest if leave is granted.
See generally: Aon; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Fletcher (supra) [25] – [30], Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290; Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334 at 345; Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323. Each of these factors is considered in detail below.

Discretion – reasons for delay

This first, and perhaps most critical, factor is the reason why the party has not sought the relevant order in the past. To quote the majority in Aon (at [103] – footnotes omitted, also [98]):
"The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case."
The importance of an explanation for the delay has also been emphasised by the Supreme Court: see generally Pollard v Endale Pty Ltd [2009] WASCA 189 at [43]; Wiltrading (supra) at 315 - 316; Tony Sadler (supra) at 336.
Where there is a recent catalyst for the application, the Court is more likely to grant leave, there having been no prior opportunity to raise the issue. This seems to have been a significant factor in the grant of leave in JL Holdings (supra) (at 154) and a significant factor against the grant of leave in Aon (at [51] ‑ [54], [106], [131]). In the words of Justice Heydon in Aon (at [131]): "There was nothing to indicate that whatever was seen as relevant had not been available earlier if diligence had been employed".
In the present case, the reason for the delay is that following the pre‑trial conference in the action in November 2009, the solicitor for the defendant, Ms Frampton, "caused to be undertaken an (sic) review of the pleadings and available evidence" (par 11). On the basis of this review, the defendant's solicitors recommended to it to make the amendments.
The present application was made on 25 May 2010. I am not told of the reason for the delay between the instruction after the November 2009 pre‑trial conference and the date of the application.
From the file, it appears that the solicitors for the defendant were, or ought to have been, aware of the potential application of WCIMA s 175 amendment by no later than 13 March 2009. On that date, Ms Frampton swore an affidavit in support of the application to join Linfox as a third party. That affidavit referred to an earlier application by the plaintiff for pre‑action discovery. This action (CIVO 118 of 2007) was brought against the third party, Linfox. In support of the action for pre‑trial discovery, the plaintiff filed an affidavit by an employee of its solicitors, Ms Badrieya Moosa, ("Moosa Affidavit"). Ms Frampton referred to the Moosa Affidavit, and drew the following facts from it:
(a)the plaintiff was employed by Integrated as a truck driver at the time of the accident;
(b)Integrated hired the plaintiff's services as a truck driver to Linfox;
(c)the injury occurred while the plaintiff was performing work as directed by Linfox.
Ms Frampton annexed the Moosa affidavit. This is significant for two purposes. The first is because of par 8 of that affidavit, which provides:
"8.The Plaintiff is of the belief he has a prime facie case against the defendant and/or BHP in negligence and provision of the requested documents will assist the Plaintiff in determining whether section 175 of the Workers' Compensation & Rehabilitation Act 1981 ('the Act') is applicable and, consequently, whether such action would be rendered mitigatory by section 93E(3). A decision as to whether to issue proceedings cannot be made without ascertaining the applicability of section 175 and section 93E."
The second is because it annexes the contract between the defendant (under a former name) and Linfox.
The defendant was well aware from the statement of claim that the accident was alleged to have occurred in occurred in 2001. Given the clear reference to WCIMA s 175 in the Moosa Affidavit, the conclusion is inescapable that, at least as at 13 May 2009, the defendant's solicitors were aware of the s 175 issue.
The defendant's solicitors appear to have been aware of the issue earlier than this. From Ms Frampton's affidavit of 18 June 2010, it appears that the plaintiff included the Moosa Affidavit in his discovery. The discovery was served on the defendant on or about 27 February 2008. Ms Frampton deposes that "from the documents discovered by the Plaintiff and made available by the Third Party", she ascertained that the third party contracted with Integrated, and annexes the relevant labour hire contract ("Integrated Contract"). She does not specifically state when she came into possession of the Integrated Contract, but there is a strong inference that it was on February 2008 as part of the plaintiff's discovery.
Significantly, there is no evidence to the effect that there was the recent provision of some item of evidence which was the catalyst for the application for leave to amend.
In exercising the discretion in this case, I am conscious that "the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases": Cropper v Smith (1884) 26 Ch D 700 at 710 - 711. The fact that there has been an oversight by the defendant's solicitors is perhaps a factor in favour of the grant of leave. However, on the other hand, it is difficult to avoid characterising the present case in the same manner as the Chief Justice did in Aon, that the defendant seeks to make "a late and deliberate tactical change in the direction of its conduct of the litigation" (at [24]). If the present change was not deliberate, its effect is the same as if it had been deliberate.

Discretion - prejudice to the defendant

The second factor is the prejudice to the party seeking the amendment if the amendment is not granted. This may require a detailed analysis of the specific grounds of prejudice: Wiltrading (at [314] - 317]).
In looking at the prejudice to the parties, the Court will examine the nature and importance of the amendment to the parties: Aon at [102]. Where the proposed amendments do not extend in any material way the factual ambit of the action, that will be a factor weighing in favour of the grant of leave: Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156 at [21]. It will also weigh in favour of the amendment if it will enable the "litigation to be fought out on the true facts": Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 241. In JL Holdings weight was given to the fact that the point sought to be raised by the amended pleading could not be avoided at trial as it was apparent on the face of certain documents: at 154, also Aon at [28].
The prejudice to the defendant is that it will not be able to raise the WCIMA s 175 defence. The defence has the real prospect of being a complete bar to the plaintiff recovering damages: see generally: Hewitt v Benale Pty Ltd [2002] WASCA 163 and Runcan v Svedala Australia Ltd [2007] WASCA 126. This is because if the claim falls within s 175, the defendant, as a deemed employer, can take advantage of s 93D and s 93E (as they then were). It was common ground before me in argument that the plaintiff had not obtained the relevant 30 per cent degree of disability determination.

Discretion – prejudice to the plaintiff

The first prejudice to the plaintiff is that he now has to make the choice of whether to press on with the litigation with the risk that the WCIMA s 175 issue will go against him or put the action on hold and seek a 30 per cent degree of disability determination arising from the accident. If he adopts the former course, he runs the risk that the Court will not be able to award him damages, which is likely to give rise to a liability to pay the defendants (and potentially the third party's) costs. If he adopts the latter course he runs the risk that he will not get the 30 per cent degree of disability determination.
The defendant submitted that this prejudice is the same prejudice facing any injured worker who seeks damages from a party other than his employer, at least where the accident occurred in 2001. Had the initial defence included the WCIMA s 175 issue, then the plaintiff would have been in the same position as he would be in now if the present amendment is allowed. I accept this submission. The mere fact that the amendment would expose the plaintiff to the 30 per cent degree of disability determination process is not a relevant prejudice. The relevant prejudice must stem from the delay in making the application.
The prejudice from the delay has several dimensions. The first is that the issue of the 30 per cent degree of disability determination becomes more difficult the longer the delay is, as the relevant doctors will have to disentangle the symptoms caused by general aging from the symptoms caused by the accident. I do not place much weight on this submission as the plaintiff did not commence the current action until 2007, on the cusp of the expiration of the limitation period. The additional complexity in the 30 per cent degree of disability determination caused by a further delay seems to be to be marginal. Put slightly differently, there is no evidence before me that the further delay would cause any specific prejudice of this kind.
The second prejudice is that the plaintiff has prosecuted his action on the basis that he would not be met by a WCIMA s 175 defence. He was (or at least his lawyers were) was clearly alive to the s 175 issue prior to commencement given the comments in the Moosa Affidavit. As counsel for the plaintiff put it, they ceased to be concerned when it was not pleaded.
The existence of a s 175 defence when the initial defence was filed may have caused the plaintiff to have initiated the 30 per cent degree of disability determination process at that time (February 2008). It would have at least given him the opportunity to decide whether to incur legal costs in prosecuting the action in the face of a complete defence. It may have caused him to adopt a different position in the pre trial conferences which occurred.

Discretion – public interest considerations

The fourth factor is the public interest in the proper and efficient administration of justice. In Aon the Court affirmed that the public interest in the administration of justice, reflected in provisions such as ACT r 21 (and RSC O 1 r 4A and r 4B) is an important consideration in the exercise of judicial discretions. In the words of the Chief Justice (at [24], [30], also [93], [133]):
"… Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502.
…
It might be thought a truism that 'case management principles' should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."
The same concern was expressed by the Full Court of the Supreme Court in Christmas Island Resort (No 5) (supra) at 345:
"Access to justice is a critical factor in the functioning of a fair society. Court resources, both in terms of time and facilities are scarce and shrinking. This makes even more important for a court to ensure that public resources are applied in the best and most efficient means possible. The way in which parties to a dispute seek access to the public resources that the courts represent must be closely monitored….It is a question of balancing the private interests of the parties against the broader public interest considerations involved in the administration of justice."
Similar comments are also made in Christmas Island Resort (No 5) at 345, Pollard (at [24]), Attorney-General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2009] WASC 301 at [80], Wiltrading (at 316) and Tony Sadler (at 333 - 334).
The issue of impact on the public interest falls into sharpest focus when the proposed exercise of discretion would imperil trial dates. This is a very significant factor, as if the allocated trial dates are vacated, it usually means that the trial dates are not able to be allocated to another party awaiting trial dates. This was a significant point of distinction between the facts in JL Holdings – where there was six months to trial (154) – and Aon – where the amendment was sought three days into the four week trial.
Another aspect relevant to the public interest is "the need to revisit interlocutory processes": Aon at [24]. "Limits may be placed upon re‑pleading, when delay and cost are taken into account": Aon (at [98], [102]). "It… cannot be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs": Aon at [98].
In the present case, the trial dates have not been set. A further pre‑trial conference is listed for 11 August 2010, followed by a listing conference on 16 August 2010. Three pre-trial conferences have already been heard. The action has been in progress for coming up to three years. Although the amendments will not imperil trial dates, they will certainly defer them, for a period which could be as long as 12 months, whilst the plaintiff pursues a 30 per cent degree of disability determination.
There have been no prior applications for leave to amend the defence.

Balancing the risks of injustice

In my view, the balance is tipped in favour of not allowing the amendment when the impact on the public interest is considered. It seems to me that public confidence in the administration of justice will be undermined if a defendant is allowed to amend its pleadings, at a late stage in the proceedings, to raise a defence which is a complete answer to the claim. Plaintiffs, in particular individual plaintiffs in tort cases, are entitled to prosecute their action on the basis that any complete answer to the claim will be raised at an early stage. They ought to be able to rely on the pleadings as filed, at least by the time of entry for trial, as containing the major issues. This then allows them to make the myriad of tactical decisions necessary to conduct litigation on the basis of a clear understanding of what will be in issue at trial. These tactical issues importantly include their negotiating stance at the compulsory pre‑trial conference required by the Court. Against this, the defendant has had ample opportunity to amend, and offers no cogent reason for not doing so earlier.
If there was a cogent explanation for they delay, perhaps in the nature of a recent catalyst, then the balance may lie differently. Likewise if the amendments were designed to align the pleadings with the information which had come to hand through the discovery process, medical reviews and the issue of early return subpoenas. In the words of the majority in Aon, this is a case "where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment" at [102].

The defendant ought not to be able to amend its defence to raise the s 175 issue at this late stage.

Defendant's request for further and better particulars

In its chamber summons filed 25 May 2010, the defendant also seeks orders that the plaintiff file and serve further and better particulars to the request numbered 1, 2.1, 3.3 – 3.5, 4, 5, 6, 11 and 12.2 of the Defendant's Request for Further and Better Particulars of the Plaintiff's Statement of Claim dated 8 November 2007.
The plaintiff provided answers to the defendant's request for further and better particulars by document dated 12 December 2008.
The current application is made some 18 months after these answers were provided. Significantly, the answers were provided after three pre‑trial conferences in the action. No satisfactory explanation was given for the delay in the request.
The most important purpose of particulars is to inform the defendant of the case it has to meet. This is made clear in the decision of the High Court in Dare (see [6] above).
Request 1 is for the plaintiff to provide particulars of every matter relied upon in support of the allegation that the "defendant was in control of … the premises at 14 Howe Street, Osborne Park; and … steel loading operations taking place at that address". In its answer, the plaintiff stated that this was a request for evidence and not particulars. There is a continuum of detail between a particular and the evidence which the party will place before the court to establish the particular. In the present case, I am satisfied that the relevant paragraph of the statement of claim sets out the plaintiff's claim in sufficient detail for the defendant to know the case it has to meet.
Request 2 relates to par 3 of the statement of claim. The defendant seeks the plaintiff to provide particulars of every matter it relied upon in support of the allegation that "the steel loading operations were devised by the … defendant" and that "the steel loading operations were implemented by coordinating workers from the … defendant and workers from Linfox". Again, the objection made by the plaintiff is that this was a request for evidence and not for particulars. Again, I am satisfied that the defendant knows the case it has to meet.
Request 3.3, 3.4 and 3.5 relate to par 4 of the statement of claim. Paragraph 3 is a request to provide particulars of "every matter relied upon in support of the allegation that Dragan Opopalovski was an employer of the … defendant". The objection is that this is a request for evidence and not for particulars. I am satisfied that the defendant knows the case it has to meet and that no further particulars are warranted.
Request 3.4 requires the plaintiff to provide particulars of "every matter relied upon in support of the implied allegation that the plaintiff was obliged to follow the directions of the 'Linfox Coordinator' ". The objection is that this is a request for evidence and not for particulars. Again, I am satisfied the defendant knows the case it has to meet.
Request 3.5 is a request for the plaintiff to provide particulars of the identity of his employer on 9 November 2001. The plaintiff objects to answering this question on the basis that it does not relate to any allegation in the pleadings, but goes on to respond that he believes he was employed by "Weststaff". I cannot see any basis for making an order for further and better particulars in relation to this request.
Paragraph 5 of the statement of claim contains an allegation that no crane was available and no forklift could be utilised for the task of lifting the bundle of guttering onto the truck. The pleading goes on to assert that the plaintiff and a co-worker were obliged to lift the bundle above shoulder height onto the tray of the truck and this ultimately caused the plaintiff's accident. The defendant seeks particulars of the allegation that no crane was available and that no forklift could be utilised for the task. The plaintiff objects to answering on the basis that this is a request for evidence and not for particulars. Again, I am satisfied that the defendant knows the case that it has to meet at trial.
Paragraph 6 of the statement of claim contains the allegations of negligence. One particular is that the co-worker, who was an employee of the defendant, failed to take account of the fact that he was taller than the plaintiff while transferring the bundle onto the tray of the truck. In request 5.1 the defendant seeks particulars of the difference in height between the plaintiff and the alleged employee of the defendant. The plaintiff answered that he did not know the exact height of the employee but estimated he was "6.2 metres" tall. Counsel for the plaintiff readily conceded that this was an error and it should be 6.2 feet tall. It seems to me that the defendant is also entitled to know the plaintiff's height so that it can ascertain the difference between the height of the two employees.
Request 6 of the defendant's Request relates to par 7 of the statement of claim. Paragraph 7 contains an allegation that "the defendant had a duty as coordinator of the various steel loading tasks for that address involving employees from more than one employer, to devise a system of work whereby no hazards were created such as to cause injuries to those undertaking them". The breach is then pleaded. The defendant seeks particulars of the allegation that the defendant was the coordinator of the various steel loading tasks. The plaintiff responds that this is a request for evidence and not particulars. Again I am satisfied that the defendant knows the case it has to meet.
In request 6.2, the defendant requests the plaintiff to provide particulars of the number and identity of the employers whose employees were involved in various steel loading tasks. The plaintiff objects that this is a request for evidence and not particulars. To my mind, it is important for the defendant to know the case it has to meet to know how many employees and how many employers were on the site. The alleged duty of the defendant as a coordinator of the various steel loading tasks will be very different if there were five employees from three employers compared to 20 employees from ten employers. Further and better particulars ought to be provided of this allegation.
In request 6.3, the defendant effectively seeks further and better particulars of the implied allegation, arising from the particulars in par 7 of the statement of claim that the defendant "had a duty to provide a crane, forklift or other mechanical device to lift a 60 kg bundle". The plaintiff responds that this is adequately particularised. I agree; the defendant knows the case it has to meet.
Along a similar vein, in request 6.4, the defendant seeks particulars of the "implied allegations that the … defendant had a duty to bundle gutters so that the total weight to be lifted by two people was less than 40 kg". Again, the defendant knows the case it has to meet.
A similar conclusion follows to request 6.5, which seeks particulars in support of the "implied allegation that the … defendant had a duty to lay out gutter racks in the loading bays so as to enable forklift access". The defendant knows the case it has to meet.
In request 11, the defendant seeks further particulars of an allegation in par 12.2 of the statement of claim as to "every matter relied upon in support of the allegation that the plaintiff's alleged residual disability is permanent". The answer is: "permanent loss of efficient use of the back, neck and left arm". The authorities set out above in relation to "contemporary case management" direct the court to consider the entirety of the interlocutory processes. In order to establish the allegation in par 12.12 of the statement of claim, the plaintiff will inevitably have to serve expert medical evidence. Pursuant to r 45E of the District Court Rules 2005 (WA) ("2005 DCR") the plaintiff must file and serve an index 14 days prior to the listing conference setting out the experts reports he proposes to rely on at trial. If a report is not in that index, it cannot be relied on at trial. The disclosure processes for expert reports in combination with the pleadings mean that by the time trial dates are allocated, the defendant will be well aware of the case it has to meet. No further particulars are required.
Paragraph 12.2 relates to an allegation in par 13 of the statement of claim that the plaintiff will incur ongoing pharmaceutical and travelling expenses. The answer in relation to pharmaceutical expenses refers to anti-inflammatory agents, in relation to travel refers to travel to the general practitioner, pain specialist and chemist. By document filed on 26 August 2009, the plaintiff provided full particulars of damages complying with 2005 DCR r 45C. This contains further details as to the future pharmaceutical and travelling costs sought. The combination of the information in both answers means that the defendant knows the case it has to meet.
In summary terms, the plaintiff is required to provide answers to requests 5 and 6.2.

Orders

It follows that, aside from the few items of particulars sought, the defendant's application should be dismissed. I will hear from counsel in relation to costs.