District Court Rules 2005 (WA)

Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296

Mann v Bankwest - A Division of Commonwealth Bank of Australia [2020] WASCA 35

Reliance Capital Pty Ltd v Caratti [No 6] [2024] WASC 21

1. This is an appeal from a decision of a registrar dismissing an application filed by the defendant on 24 July 2025 for leave to amend its defence (application).
2. The defendant requires leave to amend its pleading because the application was filed after the plaintiff had filed a District Court Rules 2005 (WA) (DCR) r 43(3)(A) certificate of counsel in May 2025 (certificate).
3. At a listing conference on 22 September 2025, the proceedings were set down for a 10-day trial commencing 10 August 2026. Those trial dates remain undisturbed.
4. The defendant's application was heard by a registrar on 7 December 2025, with a decision delivered and orders dismissing the application made on 1 December 2025.
5. The application was reheard by me on 31 March 2026.

1. By his writ filed on 19 September 2023, Mr Marinelli claims damages for physical and psychological injuries alleged to have arisen from an incident on about 14 October 2021 while working as a mechanical fitter for the defendant at a site in Munster.
2. A Re-Amended Statement of Claim was filed on 15 February 2024, and Particulars of Damage were filed on 10 October 2024.
3. The parties filed their respective Indexes of Expert Reports on 13 May 2025 and 19 May 2025.
4. In the meantime, pursuant to orders made on 10 April 2025, Mr Marinelli filed his certificate on 14 May 2025, containing the requisite certification of pleadings. The following day, and being one day late, the defendant filed its certificate on 15 May 2025. However, its certificate contained no such certification of the pleadings as required. Instead, the defendant's counsel noted that he had:

(f) ... reviewed the pleadings and [was] not satisfied that they adequately define[d] all the issues of fact or law that the defendant contends will need to be determined at trial. The defendant proposes to file an amended defence within 28 days of the listing conference.

1. At the first listing conference on 19 May 2025, an order was made that the defendant file and serve any application to amend the defence by 4.00 pm on 3 June 2025, and the conference was adjourned to 23 June 2025.
2. The defendant did not file its application by 3 June 2025. Instead, on or around 19 June 2025, the parties signed and submitted a consent order seeking an adjournment of the next conference scheduled for 23 June 2025. The consent order indicated that Mr Marinelli's representatives were considering their response to a Minute of Amended Defence that the defendant had served, and the parties considered it would be premature to list for trial.
3. After several weeks and given opposition to the amendments, the defendant did then lodge its application, composed of chamber summons and an affidavit, on 24 July 2025.
4. By consent order dated 1 August 2025, the parties sought a further adjournment of the listing conference. This time, the stated reason was because the defendant had filed the application, and it had been listed for hearing on 9 September 2025. On 9 September 2025, the defendant's application was listed for special appointment on 7 November 2025.
5. In the intervening period, the parties attended a further listing conference, on 22 September 2025. Notwithstanding the defendant's application remained outstanding, the proceeding was listed for a 10-day trial commencing 10 August 2026.

1. The pleading under consideration in this application is the defendant's Minute of Proposed Re-Amended Defence to Re-Amended Statement of Claim dated 16 June 2025 and filed on 18 September 2025 (Pleading).
2. As identified in written submissions and in the hearing before me, while the question of leave to amend overall is controversial and needs to be the subject of a determination, there are proposed amendments which do not require detailed consideration and in relation to which the question of leave is not troublesome.
3. To the extent it is needed and for the avoidance of doubt, I grant leave in respect of pars 3, 10, 12, 13 and 15 of the Pleading. These are uncontroversial and appropriate amendments.

The requirement for leave to amend the Pleading

1. Unfortunately, the defendant maintained a position throughout the initial stages of the dispute about its application during 2025 that leave to amend was not required. The defendant took the position that it only required leave to amend from 22 September 2025, because, in essence, prior to that time, the defendant itself had not filed a certificate under r 43(3A)(a) that contained any certification of pleadings. It mistakenly proceeded on the basis that in the absence of its counsel having certified its pleadings, leave was not required.
2. That position is not correct as matter of law. The defendant properly conceded at the outset of the hearing before me that leave was required to amend its pleading from 14 May 2025 because Mr Marinelli, being 'any party' for the purposes of r 48A(2), had filed a certificate in compliance with that rule and in which the pleadings had been certified.

1. An application to amend a pleading is not assessed in a vacuum:[1] it is necessary to consider the individual circumstances of each case, including as to the relevant procedural history.[2]
2. In this case, Mr Marinelli seeks substantial damages for personal injuries alleged to have been sustained in a workplace accident. In his pleading generally, Mr Marinelli:

(a) sets out the material facts he says constitute the incident and accident that occurred on the defendant's site on 14 October 2021;

(b) sets out the material facts he says underpin the mechanism by which his injuries occurred;

(c) pleads the non-delegable duty of care he says the defendant owed at common law as well as alleged statutory duties;

(d) sets out the particulars of the defendant's alleged breaches in relation to those duties; and

(e) particularises the injuries, symptoms and permanent disabilities that he says he has suffered.

1. In brief terms, the injuries are alleged to arise as follows:

(a) Mr Marinelli and his co-worker were instructed by a supervisor to lift a 1.5 tonne drum from the ground onto the second floor;

(b) after the drum was lifted by a crane to the first floor, Mr Marinelli and his co-worker proceeded to lift the drum over the second floor using block chains; and

(c) before Mr Marinelli could get into a safe position and prior to lowering the drum onto the second floor, his co-worker released the chain block, causing the drum to sway and swing sideways in the direction of his left leg, crashing into him and pinning his leg against the beam behind him.

1. Mr Marinelli alleges that shortly after sustaining injury, he left the site and attended hospital for treatment.
2. In its defence dated April 2024 (defence) the defendant, in effect:

(a) denies all alleged matters of fact including as to any conversation alleged between Mr Marinelli and his supervisor of the request or instruction to lift the drum that day to the second floor;

(b) denies that Mr Marinelli and the co-worker lifted the drum onto the second floor at all; and

(c) admits that Mr Marinelli suffered a leg injury but denies the accident as pleaded, denying that the shaft 'crashed' into his left lower leg or pinned his leg against the beam, or that his leg was trapped, but otherwise admits that he attended hospital for injury.

1. In response to the alleged breaches, in its defence, and in Further and Better Particulars filed on 6 September 2024 (FABP), the defendant then pleads that:

(a) Mr Marinelli failed to follow instructions given by the supervisor, being to get the drum to the second-floor landing, disconnect it from the chain block and then roll it about 3 m into position for storage;

(b) a 'system of work' had been explained to Mr Marinelli and his co-worker by the supervisor; and

(a) admit several material facts including that Mr Marinelli's supervisor instructed him and his co-worker that day to lift the drum from the ground onto the second floor;

(b) plead that they lifted the drum above the second floor and then lowered to the second floor and removed the chain block from it;

(c) plead material facts as to an alleged conversation between Mr Marinelli and his co-worker about the means by which they would arrange positioning of the drum on the second floor, and as to the occurrence of a 'compression' of Mr Marinelli's leg between the drum's shaft and a beam on the second floor during the manoeuvre of the drum (which the defendant proposes to plead as being the accident); and

(d) say that thereafter, Mr Marinelli complained of pain in his leg and was transported to hospital.

1. Further, the defendant now seeks to include pleas:

(a) of contributory negligence against Mr Marinelli, by reason of an alleged failure to take care for his own safety by placing himself in the 'line of fire', and, allegedly using 'excessive force' when manoeuvring the drum into position;

(b) that Mr Marinelli had fully recovered by October 2022 from any physical injury sustained; and

(c) alternatively, that any injury or incapacity consists of or is caused by pre-existing co-morbidities, primarily of a psychological nature, and a 'lifestyle' decision to cease employment following a successful application by him for sole custody of his son.

Should the defendant have leave to amend its Pleading?

1. The time for amending pleadings in this proceeding without leave expired on 14 May 2025, when Mr Marinelli filed his certificate.
2. As to the requirements for an application, pursuant to DCR r 48A(3), an application for leave to amend a pleading must be accompanied by an affidavit of the party or its legal representative that sets out the facts that:

(a) have arisen since the time expired for amending the pleading without leave; and

(b) ground the argument that the amendment is necessary.

1. Aon Risk Services Australia Pty Ltd v Australian National University[3] also set out the range of considerations relevant to the exercise of the court's discretion, as summarised and applied in Hightime Investments Pty Ltd v Lungan [No 2].[4]

1. In its application before me, the defendant relied on three affidavits deposed by one of its lawyers.
2. The first affidavit filed 24 July 2025 simply attached email exchanges between the parties during the period 9 June 2025 and 1 July 2025 related to the Pleading.
3. The second affidavit filed 18 September 2025 stated only that:

(a) the facts in the Pleading 'accord with the defendant's instructions or are based on medical reports exchanged between the parties'; and

(b) the amendments sought 'are on the advice of counsel with a view to narrowing the issues for determination at trial'.

1. The third affidavit filed 17 February 2026 set out uncontroversial procedural history between 14 May 2025 and 10 December 2025, and otherwise, added that:

(a) on 29 May 2025, counsel had been briefed to draft amendments to the defence but that due to the size of the brief had not been able to provide a draft by 3 June 2025;

(b) the amendments sought were made with a view to narrowing issues for determination at trial;

(c) the facts pleaded in pars 9, 11, 16 and 17 were 'in accordance with the defendant's instructions, including in relation to the manner in which the accident occurred'; and

(d) the plea of contributory negligence was made having regard to the circumstances in which the accident occurred with 'any contributory negligence arising from the same factual matrix required to establish negligence of the defendant'.

1. The defendant's solicitor also stated, in the third affidavit, that no facts had arisen from the latest date on which the defendant was entitled to amend its defence without leave up to and including the affidavit, and that the grounds on which the amendments were sought, generally, were to narrow the issues and plead a positive case at trial.
2. A primary base upon which the defendant's application is opposed is because, Mr Marinelli contends, the defendant's affidavit evidence fails to comply with the requirements of r 48A(3) and is deficient.
3. The defendant contends that it signalled, on 15 May 2025, that amendment to the pleading was needed and that, no facts arose or changed after that time to occasion the need to amend. The need to amend the defence was indicated immediately, in circumstances where counsel reviewed the pleadings and had given advice that it should be amended, and it put Mr Marinelli on notice of this fact by reason of the certificate that it filed on 15 May 2025.
4. While perhaps not unusual, facts in an affidavit for the purposes of r 48(3)(A) indicating that the proposed amendments arise from counsel's advice and/or in accordance with a party's instructions hardly seems satisfactory. That is especially the case in circumstances where are party has certified its pleading, and then later applies to amend.
5. In this case however, while there is no doubt that the defendant requires leave because Mr Marinelli had filed a certificate, this application is not one that is brought in circumstances where the defendant's counsel also had certified the pleadings and then later applied to amend. Further, it occurs in circumstances where the defendant signalled immediately that its pleading required amendment.
6. While there may be some problems with the detail or extent of the evidentiary material relied on by the defendant in support of its application, for the following reasons, I am not satisfied it is so deficient that it warrants dismissing the application on that ground:

(a) First, the defendant refrained from certifying pleadings and instead, positively indicated that counsel was not satisfied they adequately defined all issues of fact and law. This was prior to the first listing conference. Mr Marinelli was on notice that because of this, the defendant proposed to file an amended defence, at that time, within 28 days of 19 May 2025 and, certainly, prior to any trial dates being set down. The immediate, or at least early, recognition and identification that the defence needed to be amended is a reason tending now towards why leave should be granted.

(b) Second, while there was 'delay' between 13 May 2025 and the application being ultimately filed on 24 July 2025, I do not consider it to have been substantial or unacceptable in the context and circumstances of this case. The defendant signalled on 14 May 2025 that it proposed to amend its pleading. It first provided a proposed amended pleading to Mr Marinelli on 9 June 2025, with a further version provided on 16 June 2025 properly marking up the proposed amendments. The parties engaged in various communications as to the proposed amendments, and agreed to several adjournments of the listing conference, by consent, while this occurred. However, once Mr Marinelli indicated by his solicitors, on 24 July 2025 that the amendments were opposed, the defendant filed its application the same day.

(c) Third, the Pleading itself, together with the defendant's evidence, make it clear that the defendant intends to put an alternative set of facts as to how the incident and leg injury occurred. That is presumably based on lay evidence that the defendant will adduce at trial. It is not under obligation to adduce now, the evidence to support the pleading of those material facts. Having adequate notice of the alternative facts which the defendant will be obliged to put in cross-examination to Mr Marinelli appropriately signals to him as to what is the defendant's case, and further, it properly narrows the scope of issues in contention.

(d) Fourth, the defendant first raised on 15 May 2025 that it needed to amend its pleading. It first gave notice of its proposed case on 9 June 2025. In the absence of amendments, the defendant would be deprived of the opportunity to present a case at trial. Such an outcome, given the preceding factors and the length of time since the defendant indicated amendment was required, would appear plainly unjust, particularly where Mr Marinelli has had benefit of the proposed amendments since June 2025.

(e) Finally, in the absence of the grant of leave to amend to the extent that I set out below, the parties are, in any event, left with an unsatisfactory and deficient pleading, and with a series of factual issues apparently in contention but which should be properly narrowed in scope. The current defence consists, in essence, of bare denials and non-admissions and this is also not satisfactory four months out from a trial.

1. That is not to say it is acceptable to lag amendments to a party's pleading nor of course, to wait to set out a case until the point at which pleadings are being ordered by the court to be certified. That is obviously completely unsatisfactory. And those matters, aside from being unacceptable non-compliance with court orders, lead to the very scenario the parties now find themselves in, nearly one year after identifying that the defence was deficient and seven months after trial dates were set down. The requirement for compliance with r 48A(3)(b) is a necessary and an important one, as are the obligations on parties to comply with the rules and orders of the court generally. Compliance is not optional.
2. The court otherwise appreciates parties continuing to work towards narrowing issues during a proceeding and certainly, once trial listing stages are reached. Amendments to that extent are encouraged and of course, a genuine narrowing of issues reflected in a proposed amended pleading is, in the norm, achieved by consent and should not require costly and time-consuming interlocutory applications.
3. Ultimately, however, for the reasons given above, I do not consider in the circumstances of this case that, either the requirements under r 48A(3)(b), nor the objectives of case management including as to the eradication of delay, operate such that this application should be dismissed on that basis.

1. Aside from Mr Marinelli's objection to a grant of leave due to non-compliance, he objects to the proposed amendments on the basis that some of them are deficient and ought not be allowed in any event. The challenge that the parties face it seems, is that the defence, allowed to stand, is deficient for the purposes of the trial in any event. That is not fair to Mr Marinelli, and he cannot possibly prepare for a trial without adequate and proper notice to him of the defendant's case.
2. This is also not a question of Mr Marinelli discovering at a late stage that there are matters now in dispute that he did not understand previously to be in issue between the parties and having to suddenly gather evidence in support of his claims or locate and interview new witnesses. The amendments, in the main, relate to alleged material facts which have not ever been the subject of agreement or concession. Further, the amendments do operate generally to narrow the issues in contention.
3. I also do not find that the amendments would cause any real prejudice to Mr Marinelli's case. He contends that prejudice arises because if the amendments are allowed at this 'late' stage of the proceeding, he is in the position of having to 'grapple with substantive new issues' that cannot be remedied by an order for costs. I do not find that is the case. There is still a number of months before trial is scheduled to start, the Pleading has been around since June 2025, and the issue are not 'substantive' and/or new in the sense that the weight of the drum and the material facts underpinning the incident have always been in issue, as has liability, and the mechanism of injury and its nature and extent.
4. A further, pressing question is whether the amendments would occasion the need to adjourn the trial. Commencement is still some more than four months away. The proposed amendments have been around since June 2025. There is no evidence to support a contention that these amendments will occasion any adjournment to the trial. Any prejudice arising in the future in that respect will be assessed should it arise and, in any event would seem can be properly remedied by the appropriate cost orders that would flow in favour of Mr Marinelli.

Statement of Claim, par 8 and defendant's Pleading, par 9

1. Currently, par 9 of the defence is in terms only of a 'non-admission' to the entire plea in par 8 of the Statement of Claim. Now, by par 9 of the Pleading, the defendant proposes to take some factual matters out of issue by admitting them, and otherwise, to plead specifically, that the drum weighed 400 kg, rather than 1.5 tonnes as alleged.
2. To the extent that the defendant proposes to take factual matters in contention out of dispute, leave to amend par 9 is granted.
3. As to the weight of the drum, the defendant contends that the proposed amendment appropriately puts Mr Marinelli on notice of what the defendant's evidence at trial would be about this fact. Mr Marinelli points out however, that there is no suggestion that the defendant has possession, custody, or power of documents evidencing the weight of the drum. In reply, the defendant contends that the absence of discoverable documents validating the weight of the drum would not preclude oral evidence at trial to establish the weight. That is true.
4. Also at the hearing, counsel suggested the defendant could have the drum weighed before trial and produce that evidence. Whether that is the case or not, and as identified by Mr Marinelli's counsel this may create problems given proximity to trial. There are no particulars, no investigations have been carried out, and obviously time for interrogatories long passed. However, based on the respective positions of both parties at the hearing, and given the trial is not listed to commence until 10 August 2026, I did not understand from either side of the bar table that such amendment presents a genuine threat to the trial dates.
5. For present purposes, I do not need to consider whether available evidence establishes whether either party has a reasonable prospect of successfully establishing to the requisite standard, the weight of the drum. Instead, for the purposes of the defendant's application, I must review par 9 on its face to determine whether it provides a sufficiently clear statement of the defendant's case for Mr Marinelli to have a fair opportunity to meet it. I consider it does. Leave to amend in the proposed way will therefore be granted.

Statement of Claim, par 10 and defendant's Pleading, par 11

1. In par 10 of the Statement of Claim, Mr Marinelli alleges the terms of a conversation between he and his supervisor in relation to the lifting of the drum. Further, he says that he made a proposal for the method by which to lift it, which proposal he says was rejected by the supervisor.
2. The defendant's current plea in par 11 of the defence is a blanket denial of the entirety of Mr Marinelli's par 10.
3. The Pleading, in par 11 now proposes to set out an alternative material fact to the effect that the method proposed by Mr Marinelli (in relation to which the defendant maintains his denial) was not viable because it would compromise the structural integrity of the site.
4. Mr Marinelli objects to this amendment including because he says, evidence as to whether the method proposed by him would compromise the structural integrity, is opinion evidence and absent satisfaction of the requirements for adducing opinion evidence, would be inadmissible. That being correct, the defendant will of course be obliged to comply with the requirements as to admissibility. There is no reason to suggest that cannot occur.
5. For present purposes, par 9 on its face provides a sufficiently clear statement of what the defendant's case will be for Mr Marinelli to have a fair opportunity to meet it. There is no evidence of specific prejudice to him to be occasioned by the amendment. Rather, he is given notice of a material fact in relation to which the defendant intends to adduce evidence of at trial. Leave to amend will be granted.

Statement of Claim, par 13 and defendant's Pleading, par 14

1. In par 13, Mr Marinell alleges that the chain blocks (used to facilitate the moving of the drum from the first to the second floor) were attached to various parts of the staircase and framework. He also alleges the terms of an alleged conversation between him and his co-worker, at the point at which the drum had been already lifted, by crane, onto the first floor.
2. Currently, par 14 of the defence is in terms of a complete denial to par 13 of the Statement of Claim. Now, by par 14 of the Pleading, the defendant proposes to take factual matters as regards the chain blocks out of contention by admission and otherwise, to maintain the denial of the alleged conversation/s between Mr Marinelli and the co-worker.
3. I can see nothing objectionable nor prejudicial about that and therefore leave to amend will be granted.

Statement of Claim, par 15 and defendant's Pleading, par 16

1. At par 15 of his Statement of Claim, Mr Marinelli alleges that he and his co-worker lifted the drum to the second floor of the site. He further alleges that the drum was 'hanging by one chain attached to one side of the shaft'.
2. Currently, the defence contains only a 'non-admission' in respect of that plea. By a new par 16 in the Pleading, the defendant now proposes to admit that the drum was lifted by Mr Marinelli and his co-worker above the landing on the second floor, and then lowered by them onto the landing, and the chain removed. It then otherwise maintains the denial that 'the drum was hanging by one chain attached to one side of the shaft'.
3. Giving the narrowing of issues and that, otherwise, the denial remains unchanged, I can see nothing objectionable nor prejudicial and therefore leave to amend will be granted.

Statement of Claim, pars 16 - 21 and defendant's Pleading, par 17

1. Paragraphs 16 - 21 of the Statement of Claim are the alleged material facts by Mr Marinelli from the point at which he says the drum was hanging, or suspended, over the landing on the second floor, where he was positioned at the time, and then how it is, he alleges, the drum was released, moved and then hit his lower leg and pinned his leg against the beam, causing the injury.
2. Currently, in its defence, the defendant:

(a) does not admit par 16 of the Statement of Claim; and

1. In the Pleading, the defendant now proposes to set out a series of alleged material facts which it says constitute the incident and accident, being that:

(a) once the drum had been removed from the chain blocks, Mr Marinelli and his co-worker agreed to change the orientation of the drum to allow it to be rolled to its intended storage position on the second floor;

(b) they agreed this was to occur by Mr Marinelli's co-worker pushing the shaft on one side of the drum and Mr Marinelli pulling the shaft on the other side; and

(c) while they were rotating the drum, Mr Marinelli's calf became compressed between the shaft and the beam at the edge of the landing.

1. That is, the defendant proposes to set out the alternative alleged material facts as to the incident that day. These are matters that have always been the subject of dispute, and there is nothing surprising or concerning arising from that perspective. It is reflective of the evidence the defendant says it will adduce at trial as to what occurred.
2. I am satisfied that, for the purpose of a pleading, the proposed plea, on its face, is a sufficiently clear statement of the defendant's case. I cannot see how it could reasonably be prejudicial to Mr Marinelli, given these matters will always have been the subject of oral testimony at trial, from those people present or involved in the incident, and matters properly to be put to Mr Marinelli in cross-examination. The plea now provides proper notice of the defendant's case, and I will allow the amendment.

Statement of Claim, pars 22 - 24 and defendant's Pleading, par 18

1. In pars 22 - 24 of the Statement of Claim, Mr Marinelli alleges he lost consciousness during the time his leg was trapped, and, that after he gained consciousness, he noticed his co-worker had disappeared. He says he was able to free his left leg from the drum, and that he eventually left the site with the supervisor and went to Hospital.
2. In reply to these pleas, at the present time, the defendant 'does not admit' that Mr Marinelli left the site with the supervisor, it 'admits' that Mr Marinelli did go to Hospital, and otherwise, it denies all those alleged facts. Now, by its Pleading, the defendant proposes to maintain its denial of the facts as alleged by Mr Marinelli, and provide an alternative set of alleged facts, being that:

(a) Mr Marinelli complained of a sore leg and he requested his co-worker to go and locate the supervisor to assist; and

(b) his co-worker then left, located the supervisor who returned to Mr Marinelli and then drove Mr Marinelli to hospital.

1. As before, the defendant proposes to set out alternative alleged material facts as to key matters underpinning this dispute. There is nothing surprising or concerning arising from that perspective, and this would always have been the subject of oral testimony at trial, from those people present or involved in the incident.
2. I am satisfied that the proposed plea on its face, is a sufficiently clear statement of the defendant's case. I will allow the amendment.

Defendant's Pleading, par 22 - contributory negligence

1. The Pleading proposes to set out a plea of contributory negligence, alleging that Mr Marinelli substantially contributed to any injury or damage by his own negligence, with the following alleged particulars, being that he:

(a) owed a duty to take reasonable precautions against foreseeable risks of harm to himself and others during his employment with the defendant;

(b) failed to take care for his own safety by placing himself in the 'line of fire' when manoeuvring the drum; and

(c) used 'excessive force' when manoeuvring the drum into position.

1. These particulars are not supported by any alleged material fact or facts in the Pleading nor in the FABP filed on 6 September 2024. In the FABP, it is alleged that Mr Marinelli 'failed to follow instructions.' In that respect, there are also no allegations of material fact to support a contention that Mr Marinelli failed to follow any instruction, and ultimately no allegation of material fact to support the plea of contributory negligence. In those circumstances, leave to amend in par 22 will not be granted.

1. The defendant proposes to include a new plea that Mr Marinelli had, by October 2022, recovered from any injury. It sets out in its affidavit evidence in support of this application that this contention is based on video surveillance to be adduced at trial.
2. In deciding this application, it is not for me to assess whether the defendant's evidence has a reasonable prospect of successfully establishing to the requisite standard, that Mr Marinelli had physically recovered from any injury. Instead, for the purposes of this application, I must review par 25 on its face to determine whether it provides a sufficiently clear statement of the defendant's case for Mr Marinelli to have a fair opportunity to meet it.
3. In my view it does this. Such a plea is also unsurprising and does not raise any new or substantial issues for a plaintiff seeking to claim damages for personal injury sustained, in circumstances where the nature and extent of any injury has always been in contention based on the pleadings filed to date in this case.

Alternative causes of Mr Marinelli's injuries, par 26

1. Finally, the defendant seeks to plead that any injury sustained has been caused or contributed to by pre-existing co-morbidities. Those are set out in par 26, to include chronic post-traumatic disorder alleged to arise from a series of specific alleged material facts and events, as well as other alleged pre-existing psychological conditions.
2. From the bar table, both parties confirmed that expert medical evidence has been exchanged including in relation to psychological or psychiatric assessments undergone by Mr Marinelli for the purposes of his claims in this proceeding. Each have also filed Indexes to Expert Reports.
3. Whether the evidence that the defendant will adduce at trial about these alleged contentions has a reasonable prospect of successfully establishing that Mr Marinelli's co-morbidities pre-exist, or are causative of any injuries sustained, are not matters for assessment by me in this application. I am concerned with whether the plea, on its face, provides a sufficiently clear statement of the defendant's case. It does so and leave to amend in the proposed way will therefore be granted.

1. I will hear from the parties in relation to the form of the orders that should be made, and as to costs. The form of orders should include any necessary programming orders considered to arise from the amendments. It is imperative that outstanding matters of evidence and other steps in preparation for trial are set down now so that both parties are ready and in a fair position to commence as scheduled.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Reliance Capital Pty Ltd v Caratti [No 6] [2024] WASC 21 [3] (Reliance Capital).

[2] Mann v Bankwest - A Division of Commonwealth Bank of Australia [2020] WASCA 35 [80] (Mann).

[3] Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [111] (Aon Risk Services).

[4] Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 [52] (Hightime).