Citation : MOORE -v- COMMISSIONER OF MAIN ROADS & ANOR [2008] WADC 122

Appeal - Interlocutory appeal concerning pleadings - Pleadings not settled - Whether substantial injustice if leave to appeal refused

Allmark v Mossensons (a firm) [2006] WASCA 127

Moore v Commissioner of Main Roads [2007] WADC 203

Moore v Commissioner of Main Roads [2008] WADC 122

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

1 JUDGMENT OF THE COURT: The appellant seeks leave to appeal against orders of Scott DCJ made on 2 September 2008. The orders concern the respondent's proposed statement of claim. The appellant (Boral) was the second defendant in a District Court action 434 of 2003, in which the Commissioner of Main Roads was the other defendant. The respondent also seeks leave to appeal against the order for costs made against him in favour of Boral.

2 In relation to Boral's appeal, there is no dispute that the appeal is against orders which do not constitute a final judgment within the meaning of s 79(1) of the District Court of Western Australia Act 1969 (WA). As a result, leave to appeal is necessary. Leave to appeal will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave and if, in addition, substantial injustice would be done by leaving the decision unreversed (Allmark v Mossensons (a firm) [2006] WASCA 127 [26]).

3 Action 434 of 2003 has been consolidated with action 1369 of 2006 in which the respondent is the plaintiff and Champions Corporation Pty Ltd and Robin Tripe and Vivian Tripe are the second defendants.

4 The notice of appeal asserts that the orders made and which were appealed against, were orders that:

1. The Plaintiff (Respondent) have leave to amend his statement of claim against the Second Defendant (Appellant) in terms of the Court's reasons for decision.
2. The Plaintiff (Respondent) pay the Second Defendant's (Appellant's) costs of the application including any reserved costs and costs thrown away, in any event.

5 They were not in fact the orders made by the judge. The orders dealt with the proposed amended statement of claim in the consolidated proceedings by stating that certain parts of a minute of proposed amended consolidated statement of claim be 'allowed' or 'not allowed' and then granted limited leave to replead. So far as Boral is concerned, those orders were:

1. The amendments in paragraphs ... 5.1.1, 5.1.2, 5.1.3 and 5.2 of the Minute of Proposed Amended Consolidated Statement of Claim ('Minute') are allowed.

1. The amendments in paragraphs 10.2(h), (i), (j) and (k) of the Minute are not allowed.

...

6(a) The plaintiff have leave to file and serve within 28 days any Minute of Proposed Amendments to paragraph 5.2 and 10.2 of the Statement of Claim against the second defendant;

6(b) The Minute of Proposed Amended Statement of Claim do stand as the Amended Statement of Claim and service dispensed unless the second defendant, within 7 days of service of the Minute gives notice of objection;

6(c) In the event the second defendant gives notice of objection, the plaintiff to bring an application for leave to amend within 7 days of the date of the notice given by the second defendant.

6 The pleading issues appear to have involved an unreasonable amount of time and decision making in the District Court. The parties appear not to have been discouraged by the Chief Justice's observations in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 that interlocutory disputes concerning pleadings 'must be actively discouraged'. The case concerns a claim by the respondent for serious personal injuries suffered by him as a result of an accident on a road which the Main Roads had arranged to carry out work and which had been carried out either by Boral or Champions or the Tripes.

7 As mentioned above, a relevant consideration in deciding whether leave to appeal should be granted, is whether substantial injustice will be suffered if leave is refused. It is impossible for Boral to show that is so in this case. The process of settling the pleadings in the District Court has not yet been completed. The appellant's counsel informed the court that he understood that pursuant to the grant of leave, the respondent would be making amendments to pars 5.2 and 10.2 of the proposed statement of claim pursuant to the leave granted under Order 6(a). These are the paragraphs pleading the duty of care and the breaches of that duty. The respondent's counsel confirmed that amendments would be made. Boral seeks to have this court intervene part way through the process in the District Court which will ultimately produce a settled statement of claim. It is not appropriate for this court to become involved at this stage. When there is a final version of the statement of claim, Boral can then consider whether or not it reveals a cause of action. Boral will not suffer any injustice if leave to appeal is refused. Leave to appeal should be refused.

8 The respondent has cross-appealed against Scott DCJ's order that the respondent (plaintiff) pay the appellant's (defendant's) costs of the application to amend the statement of claim in any event. The parties are agreed that leave to cross-appeal is necessary, but they are not agreed on the reason why that is so. The appellant, although referring also to s 79 of the District Court of Western Australia Act, appears to contend in written submissions that leave is required by reason of s 60(1)(e) of the Supreme Court Act 1935 (WA). However, that section is concerned with appeals from a judge or a master. The master is a reference to a master of the Supreme Court and, although the word 'judge' is not defined in the Supreme Court Act 1935, the word 'Judge' is defined in the Interpretation Act s 5 to mean a judge, acting judge or auxiliary judge of the Supreme Court.

9 The respondent made no submissions in writing about why leave was necessary. However, in oral submissions and when asked by the court whether leave to appeal was necessary, he submitted that leave was necessary by reason of s 79(1)(b) of the District Court of Western Australia Act. He submitted that the costs order was not a final judgment. He referred to no authority and appeared not to have considered the issue before being asked. The appellant made no submissions in response to the respondent's submission. Because neither party had considered the question about whether the costs order was a final judgment or not, it would not be appropriate to resolve that issue in this case. Whether leave is required or not, it is necessary to consider the merits of the appeal.

10 The respondent contends that the judge denied him procedural fairness 'in deciding new matters which were never in dispute between the parties and which had not been raised in argument, which new matters then became the basis of his Honour's cost order'. To understand this, it is necessary to mention that attempts to amend the respondent's statement of claim have occupied the time of Deputy Registrar Hewitt on two occasions. On the second occasion on 29 November 2007, Deputy Registrar Hewitt refused the respondent leave to amend the statement of claim in terms of a minute which was then before the deputy registrar. His reasons for doing so are published as Moore v Commissioner of Main Roads [2007] WADC 203.

11 The respondent appealed against the order of the deputy registrar. This was an appeal pursuant to r 15(1) of the District Court Rules 2005 (WA). Rule 15(6) provides that the appeal is to be by way of a new hearing of the matter that was before the registrar. The hearing before Scott DCJ was the hearing of the appeal. In effect, the appellant sought to support the reasoning of the deputy registrar. The respondent contends that all of Boral's arguments for sustaining the judgment of Deputy Registrar Hewitt and contending that it was not possible for the respondent to plead out a statement of claim against Boral, failed. That appears to be correct because Boral argued that there was no cause of action which could be pleaded against it and his Honour concluded in Moore v Commissioner of Main Roads [2008] WADC 122 [32] that:

[T]he plaintiff has, in the proposed statement of claim, pleaded a reasonable cause of action against Boral.

However, his Honour then raised a point in his reasons for decision in [32] which had not been the subject of any argument between the parties. His Honour said:

In respect to the particulars of negligence pleaded against Boral, those particulars need to be consistent with the plea in par 5.2. To that end the particulars in 10.2(h)(i)(j) and (k) are not consistent with nor follow from the duty pleaded to ensure that the road including the section of road was in the state of repair or condition referred to in par 5.2. There would, in my view, need to be specific duties pleaded by the plaintiff in respect to which the breaches in these particulars were referable. Consequently, pars 10.2(h)(i)(j) and (k) are not allowed.

12 The parties were provided with an advance copy of the reasons for decision and on 2 September 2008 and before any orders were made, there was discussion about the fact that some of the allegations of breach were an allegation of a failure to warn and were not matched by any pleaded duty to warn. Counsel for the respondent in discussing the form of the orders, said that he wished to consider whether to 'expand on the duty in 5.2, or we just give away those particulars' (referring to the particulars of breach of duty alleging a failure to warn). As mentioned above, the respondent now indicates that it does intend to amend and so even though the respondent did not have the opportunity of making submissions before his Honour identified the deficiency in the statement of claim, no miscarriage of justice has been suffered. There has been no miscarriage of justice because the respondent accepts the correctness of his Honour's reasons on this point. His Honour's reasons for ordering costs against the respondent were expressed as follows:

There was an application necessary from [the respondent's] standpoint to re-amend an earlier pleading. Now, why would it not follow, even though you were partially successful - let's say you were entirely successful in this application, it would still be difficult to resist an order for costs, given that the parties were put to the expense of the application being made.

I think the difficulty still arises, Mr Nugawala, that this is a matter in respect of which there has been a number of applications in the past ... but the reality is that the plaintiff had an opportunity to get its pleading right in the first place. ... The plaintiff has only been partially successful in respect of the application and some of those particulars of negligence seem to me to be quite ... important. And you're going to have to have a careful look at your duty that's been pleaded in paragraph 5.2.

As a result, his Honour then made an order that the respondent pay Boral's costs of the application and any costs thrown away, but declined to make an order that the attendance of senior counsel was necessary.

14 The respondent submits that if there had been consultation before the hearing, the respondent would have amended par 5.2 or par 10.2 to ensure that the pleading and the breach of duty matched and that a hearing would not have been necessary, or that if Boral had persisted with the arguments which it advanced, then leave to amend would have been granted.

15 However, even if the parties had conferred before the appeal was heard, and if the respondent had recognised the deficiency in the pleading, it would still have been necessary for him to make an application to the court for leave to amend to bring in the statement of claim it now proposes to introduce, to overcome the mismatch between the breach of duty and the pleaded duty. His Honour was therefore correct to say that even if the respondent had been 'entirely successful' that the parties would still have been put to the expense of an application being made to obtain leave to amend to deal with the deficiency.

16 As a result there is no merit in the appeal. As the parties are prepared to agree that leave is necessary, we would grant leave but dismiss the cross-appeal.

17 The result is that the appellant is refused leave to appeal and the respondent is granted leave to cross-appeal but the cross-appeal is dismissed.