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[2008] WADC 12
plaintiff. Application for leave to amend the statement of claim allowed; specified amended paragraphs to be supported by further particulars; defendant to be given limited time to amend its defence and to...
The plaintiff sought to amend its statement of claim three days before trial. The court allowed the amendments subject to the plaintiff supplying further particulars for some paragraphs and gave the defendant limited time to amend its defence and witness statements. The court adopted a pragmatic approach to pleading disputes, applied a four-factor balancing test for late amendments (prejudice to plaintiff, prejudice to defendant, public interest, reasons for delay), and vacated the trial from 29 January to 11 February 2008 to permit adequate response time.
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1,856 words · generated 15/07/2026
PH3 Property Group Pty Ltd (plaintiff) sued Otis Elevator Company Pty Ltd (defendant) in relation to the supply and installation of a passenger lift in a multi-storey apartment building in West Perth. On 22 January 2008, three days before a trial listed to commence on 29 January 2008, the plaintiff applied for leave to amend its statement of claim (minute dated 22 January 2008). The proposed amendments fell into three groups: (1) clarifying the timing terms for installation (two alternate time periods) [4]; (2) increasing and clarifying the damages sought [5]; and (3) inserting paragraph 23, an alternative claim for damages based on the contract as pleaded by the defendant, in effect preserving a damages claim even if the contract were found to be in the defendant's form rather than the plaintiff's [5].
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The application was heard in chambers by Principal Registrar Gething on 22 January 2008. The central contested issue was whether the amendments should be permitted so close to trial, and if permitted, what prejudice that would cause to the defendant and to the public interest in court scheduling. The Registrar analysed the proposed amendments in a three-level approach: pleadings validity (do the amendments comply with pleading rules), the proper approach to pleading objections consistent with contemporary case management, and a balancing exercise of competing risks of injustice [6], [16], [17], [20].
Key interlocutory rulings were: (a) deletion of paragraph 4.8 (withdrawal of an earlier alleged admission) was permitted because the defendant had denied the relevant paragraph in its defence and no prejudice from withdrawal was identified [8]–[11]; (b) paragraph 23, a claim for damages under the defendant's version of the contract, properly belonged in the statement of claim, not a reply; the defendant should be given leave to amend its defence to meet it [12]–[14], [27]; (c) certain amended paragraphs (5.2, 14.2, 16.9, 16.10 and 16.12) required further particulars before leave should operate [15]–[16]; (d) overall, leave to amend was granted, but the trial date was vacated from 29 January to 11 February 2008 to afford the defendant limited time to respond to the amended pleadings [28]–[29].
There are three interlinked strands to the decision.
Pleadings sufficiency and remedial approach. The Registrar examined whether the proposed amendments were fundamentally deficient as pleadings. He concluded there were no fatal pleading defects such as incompetence or abuse, save that some paragraphs needed particulars to make them sufficiently specific. The court adopted a pragmatic test: a pleading must identify the issues, disclose an arguable cause of action or defence, and inform the opponent of the case to be met. Technical pleading criticisms should be entertained only where they materially affect trial preparation and presentation [17], [19]. This approach was grounded in the modern case management jurisprudence the Registrar cited from recent authorities, particularly Barclay Mowlem [17].
Withdrawal of admissions. The application sought deletion of par 4.8 which had been earlier pleaded as a term. The Registrar allowed the withdrawal because the defendant had denied paragraph 4 in its defence; therefore the defendant could not claim to have relied on an admission to structure its case preparation. The Registrar referred to the law as discussed in Hutton v Meaton (McLure J) and the High Court's endorsement of flexible amendment principles in State of Queensland v J L Holdings [9]–[11]. On the facts there was no material prejudice to the defendant from the withdrawal.
Balancing interests-of-justice. The pivotal exercise was the discretionary balancing test for late amendments. The Registrar applied a four-factor test (prejudice to plaintiff, prejudice to defendant, prejudice to public interest, and reasons for delay) drawn from authorities including Tony Sadler, Wiltrading, and State of Queensland v J L Holdings [20]. He analysed each group of amendments. Many were "tidying up" clarifications that would probably have been allowed on the first day of trial [21]. The damages amendments increased the claim by about $60,000, but did not alter the type of damages claimed and thus did not necessarily generate a need for new categories of expert evidence [25]–[26]. The alternative claim in par 23 required the defendant be given an opportunity to amend its defence. Crucially, the Registrar noted the court roster permitted a short adjournment, thus enabling the court to balance both parties' interests without causing significant public prejudice; accordingly he allowed the amendments but vacated and rescheduled the trial to 11 February 2008 [28]–[29].
Before this decision, the established principles governing late amendments were those articulated in authorities such as State of Queensland v J L Holdings (High Court), and subsequent appellate authorities considering when pleading admissions may be withdrawn (e.g. Hutton v Meaton). The decision in Barclay Mowlem emphasised a modern, pragmatic approach to pleading disputes in the context of case management. The Registrar explicitly relied on and cited those authorities, adopting the same practical stance: pleadings should be judged by their utility in identifying contested issues and enabling fair trial preparation, not by obsolete technicalities [17], [20].
After this decision, the practical import is that district court interlocutory decision-making follows the same pragmatic, case-management-oriented approach. The Registrar applied the four-factor balancing test and required remedial steps (particulars and limited adjournment) rather than refusing amendments on technical grounds. The case demonstrates that courts will accommodate late amendments when they are essentially clarificatory, do not introduce new categories of damage requiring wholly new expert evidence, and the court can reasonably reschedule trial to mitigate prejudice [21]–[29]. The decision therefore reinforces the contemporary trend towards flexible management of pleadings close to trial.
Quoted modern pleading approach: "Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence ... the court ought properly be reluctant to allow ... time ... spent extensively debating ... technical pleadings rules" [17].
The four-factor test for late amendments: "In considering the exercise of the discretion ... four factors are relevant: (a) the prejudice to the plaintiff ...; (b) the prejudice to the defendant ...; (c) the prejudice to the public interest ...; and (d) the reasons for delay ..." [20].
Disposition balancing fairness and practicality: "It seems to me that it is in the interests of justice that the plaintiff be allowed to amend ... but also that the defendant be given a limited amount of additional time to respond ..." [28].
On particulars: "The proposed amendments to pars 5.2, 14.2, 16.9, 16.10 and 16.12, ought to be supported by particulars." [15]
This decision is directly applicable where:
The precedent is less favourable where amendments would fundamentally change the nature of the case, require extensive new disclosure or wholly new expert evidence, or where the court roster cannot accommodate any realistic adjournment without public prejudice.
This decision sits as an interlocutory district court ruling that applies and reiterates principles from higher authorities (High Court and Supreme Court decisions cited). It does not purport to state new law but exemplifies applied case-management reasoning at the district court level. Subsequent interlocutory decision-makers in equivalent or lower courts are likely to treat this decision as an illustrative example of applying the four-factor test and adopting the Barclay Mowlem pragmatic approach to pleading disputes. Where later courts face similar close-to-trial amendments, they will consider: the nature of the amendment, identified prejudice, whether new evidence categories are needed, and the ability of court rosters to grant a short adjournment.
Practitioners should cite this decision for the proposition that: (a) clarificatory amendments near trial are often allowed subject to particulars; (b) withdrawal of admissions can be permitted where the defendant has already denied the matter; and (c) courts will prefer short rescheduling to outright refusal where fairness can be achieved practicably.
Threshold for "significant impact" on trial preparation. The Registrar followed the Barclay Mowlem approach that only criticisms significantly impacting trial preparation warrant refusal. What quantifies "significant" remains context-sensitive; different judges or registrars may draw the line differently, particularly where expert evidence is only later shown to be necessary [17], [25]–[26].
Adequacy of particulars and timing. The Registrar ordered further particulars for specified paragraphs but did not specify precise timelines or the level of detail required. Subsequent disputes could arise about adequacy, necessitating further interlocutory hearings to define particulars.
Interaction with expert evidence regimes. The Registrar left open the possibility for the defendant to seek leave to adduce further expert evidence if necessary [26]. The decision does not delineate the circumstances where that subsequent relief would be granted; that remains a case-by-case judicial determination.
Public interest balancing where court rosters are inflexible. This decision relied on available roster flexibility to reschedule trial fairly [28]. When courts are unable to accommodate an adjournment without public prejudice, the balancing calculus and outcome could differ materially.
Degree of latitude in withdrawing admissions. The Registrar permitted withdrawal where the defendant had denied the paragraph. In other cases where an admission has been acted upon in substantial ways (witness preparation, reliance on admissions in cost decisions, interlocutory rulings), courts may be less willing. The boundary of acceptable withdrawal warrants further judicial clarification.
Conclusion: PH3 v Otis provides a pragmatic, case-management-oriented template for dealing with late pleadings amendments: test pleadings for substance, require particulars where needed, balance predictable prejudice, and use roster flexibility to achieve justice rather than striking out amendments on technical grounds [17], [20], [28].
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : PH3 PROPERTY GROUP PTY LTD -v- OTIS ELEVATOR COMPANY PTY LTD [2008] WADC 12
DELIVERED : Delivered Extemporaneously on 22 JANUARY 2008 typed from tape and edited by the Principle Registrar
Practice and procedure - Pleadings - Application for leave to amend statement of claim - Impact on pending trial
1 PRINCIPAL REGISTRAR GETHING: The application before me is an application by the plaintiff for leave to amend its statement of claim dated 15 January 2008. The amendments are contained in a minute dated 22 January 2008.
2 The amendments are sought in the context of an action by the plaintiff who is a property developer. The action concerns the construction of a multi-storey apartment building in West Perth. The defendant is engaged in the business of supplying and installing passenger lifts in buildings. The dispute concerns the supply and installation of a lift by the defendant in the plaintiff's building.
3 This action is listed to proceed to trial on 29 January for four days. Consequently, one of the major issues in dispute between the parties is the question of whether or not the amendments sought would lead to particular prejudice to the defendant in its trial preparation.
4 It is convenient to group the amendments to the statement of claim into three broad categories. The first broad category deals with the terms relating to the timing of installation of the lift. The plaintiff asserts that there were two alternate time periods in which the lift was to be installed: the first one was within 100 days of the contract being signed; the second is within 10 weeks of the plaintiff giving the defendant a notice requiring installation of the lift to commence.
5 The second group of amendments relate to the damages claimed by the plaintiff. The third group of amendments is the insertion of par 23 into the statement of claim. Paragraph 23 is an alternate claim by the plaintiff based on the contract between the parties as pleaded by the defendant. In effect, what the plaintiff is doing is maintaining a claim for damages even if the contract is as asserted by the defendant (and not as asserted by the plaintiff).
6 In looking at these amendments, it is convenient to analyse them in three levels. The first level analysis is the pleadings issues. If the amendments would not survive the normal rules relating to the amendment of pleadings, then no issues arise in relation to prejudice to trial and the like.
7 There are three basic challenges to the proposed amendments from a pleadings perspective. The first is par 4.8 which reads:
"By reference to the defendant's tender documents sent to the plaintiff by facsimile transmission on 9 December 2002, a term that the defendant would provide maintenance for the lift for a period of 12 months after completion of the installation of the lift as set out in the provisions of clause 13 of page 6 of that facsimile."
8 The plaintiff initially contended that the clause I have just quoted was a term of the contract between them. The plaintiff seeks to delete par 4.8 on the basis that it does not plead a breach of the maintenance term pleaded and does not claim damages for that breach. The defendant objects on the basis that what the plaintiff seeks to do is to withdraw an admission.
9 The law in relation to the withdrawal of admissions is conveniently dealt with in the judgment of her Honour McLure J in Hutton v Meaton [2004] WASCA 178. In that case McLure J declined to follow a decision of the Full Court of the Federal Court in Celestino v Celestino, unreported; FCt FCA; No ACT G7 of 1990; 16 August 1990. In that case, and other cases, the courts have sought to put a set of rules around when a party can withdraw and admission in a pleading.
10 McLure J was of the view that, in light of the decision of the High Court in State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, the general principle governing the amendment of pleadings - namely, the attainment of justice - should not be fettered by any particular rules.
11 In looking at the question of the interests of justice, in this case it is convenient to deal with them as a block at the end of these reasons. However, from a particular pleadings point there was no prejudice drawn to my attention on the defendant's part of this admission being allowed to be withdrawn. The defendant in its defence had denied par 4 of the statement of claim, including this term. That means that it was not open for the defendant to say that it relied on this term being admitted in its case preparation. On a pleadings perspective I do not consider that there is any valid objection to be taken to the proposed amendment withdrawing par 4.8.
12 The second pleadings challenge was taken to par 23. As I have indicated, in par 23 the plaintiff seeks to add a claim for damages based on a breach of the contract as pleaded by the defendant. The defendant was of the view that this paragraph ought properly to be included in a reply, to which it could file a rejoinder.
13 In submissions for the plaintiff, counsel was of the view that par 23 ought properly be in the statement of claim as it leads to a claim for damages, and that it is not appropriate to include a claim for damages in a reply. In my view par 23 is properly included in the statement of claim.
14 There is an issue going to prejudice, as to whether or not the defendant ought to be able to be given leave to amend its defence in order to plead a response to par 23. In my view this opportunity ought to be given, which is a factor to be taken into account in the overall balancing process.
15 The third broad issue in relation to pleadings is whether or not the statement of claim or the amendments ought to be supported by some additional particulars. In my view the proposed amendments to pars 5.2, 14.2, 16.9, 16.10 and 16.12, ought to be supported by particulars.
16 To summarise in relation to the pleadings issues, there are no pleadings objections that, in my view, could properly be taken to the proposed amendments, save that for a number of paragraphs further particulars ought to be provided before leave is given.
17 The second issue is one of the appropriate way in which the parties and the court should entertain challenges to pleadings. This is drawn from recent pronouncements by his Honour the Chief Justice. In the decision in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, his Honour states the following at p 84:
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."
18 His Honour the Chief Justice makes a similar comment in Youlden Enterprises Pty Ltd v Heath Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 at [2] where his Honour states:
"In many cases, the time and expense involved in the consideration and resolution of the interlocutory dispute is entirely disproportionate to its significance to the just and effective resolution of the case as a whole by mediation or trial."
19 In my view the objections taken by the defendant properly drew a distinction between the pleadings issues and the prejudice issues. A pragmatic approach was taken in dealing with the technical pleadings points.
20 The final issue is the question of balancing the competing risks of injustice. In considering the exercise of the discretion to grant leave to amend on the verge of trial, it seems that four factors are relevant:
(a) the prejudice to the plaintiff if leave is not granted;
(b) the prejudice to the defendant if leave is granted;
(c) the prejudice to the public interest - for example, the vacation of trial dates at such a late stage that they cannot be allocated to other litigants; and
(d) the reasons for delay in making the application.
In support of these four grounds it is necessary only to refer to three cases, being Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1984) 13 WAR 335, 336, Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 at 315, 316, and the State of Queensland v J L Holdings, to which I have earlier referred.
21 Dealing with these factors in turn, the first is the prejudice to the plaintiff if leave is not granted. The prejudice to the plaintiff is that it will not be able to present its case at its strongest. With the exception of par 23, the nature of the amendments sought are essentially in the nature of tidying up amendments. They clarify the case of the plaintiff and, from my understanding of the case, allow it to mirror more closely what the witnesses will be saying.
22 In relation to the first category of amendments to which I have earlier referred, they are probably of the sort that would have been allowed on the first day of a trial. In relation to the second category of amendments the prejudice to the plaintiff is that it would not be able to seek the additional $60,000-odd worth of damages claimed as a result of the amendments. In relation to the third category of amendments the prejudice is that the plaintiff would not be able to claim damages if the court found that the contract was as pleaded by the defendant, as distinct from that pleaded by the plaintiff.
23 Turning then to the prejudice to the defendant if leave is granted, the essence of this prejudice is that the defendant would not have time to adequately respond to the claim in its amended form. In relation to the first category of amendments the additional work would, in my view, be minimal.
24 The contest between the parties as to what was the terms of the contract is clearly open on the existing pleaded case. However, having said that, the case management directions here contemplated that the parties would be filing witness statements. It would at least be necessary to allow the defendant the opportunity to add to its witness statements so that it could put the case as pleaded before the court. Aligned to that is the need to clarify a number of the amendments by additional particulars. There is an obvious timing issue as we are only three or four business days from trial, and that needs to be taken into account.
25 In relation to the second group of amendments, (those relating to damages) the defendant also asserted that it would need to consider whether or not it needed to obtain expert evidence in relation to the amendments. However, the amendments to pars 16.9 and 16.10 do not change the type of damages claimed. It was open to the defendant to have obtained expert evidence orders earlier in the piece in relation to these types of damages, and it chose not to do so.
26 If, having considered the pleadings, there is a need for additional expert evidence, nothing I am saying in these reasons should be taken as closing that or as precluding the defendant from bringing an application for leave to adduce further expert evidence. However, as I have indicated, there is a need for additional particulars and those particulars will take some time to analyse.
27 In relation to the new cause of action, the third group of amendments to par 23, the defendant would need the opportunity to amend its defence in order to deal with that.
28 In terms of the balancing exercise, perhaps a critical factor is that, on the court rosters available, the court is able to accommodate this trial commencing on 11 February 2008, due to other matters being vacated at a late stage. It seems to me that it is in the interests of justice that the plaintiff be allowed to amend its statement of claim in the manner sought, but also that the defendant be given a limited amount of additional time to respond to those amendments.
29 The nature of the orders I propose to make is an order allowing the amendments and an order vacating the trial due to commence on 29 January and scheduling it to commence on 11 February. I will hear counsel as to any consequential orders.
(1997) 189 CLR 146
(2006) 33 WAR 82
(2006) 33 WAR 1
(1984) 13 WAR 335
(2005) 30 WAR 290
Application for leave to amend the statement of claim allowed; specified amended paragraphs to be supported by further particulars; defendant to be given limited time to amend its defence and to add to witness statements as necessary; trial vacated from 29 January 2008 and re-scheduled to commence on 11 February 2008; further consequential orders to be heard by counsel [15]–[16], [27]–[29].