Practice and procedure - Amendment of pleadings - Belated application to amend defence - No injustice or prejudice - Turns on own facts

Workers' Compensation and Rehabilitation Act 1981

Baume v Commonwealth [1906] HCA 92; (1906) 4 CLR 97

Clough & Rogers v Frog (1974) 48 ALJR 481

Cropper v Smith (1884) 26 Ch D 700

Flower and Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134

Grljusich & Anor v Grljusich, unreported; SCt of WA; Library No 930253; 6 May 1993

Hewitt v Benale Pty Ltd [2002] WADC 22

Hewitt v Benale; WMC Resources Ltd v Koljibabic [2002] WASCA 163

Koljibabic v WMC Resources Ltd [2001] WADC 286

Ronex Properties Ltd & Anor v John Laing Construction Ltd [1983] QB 398

State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150

Tony Sadler Pty Ltd & Anor v McLeod Nominees Pty Ltd (1994) 13 WAR 323

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Hall Chadwick Corp Finance (WA) Pty Ltd v Axiom Properties Ltd [2002] WASC 179

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Rebolledo v Royal & Sun Alliance Financial Services Ltd [2002] NSWSC 104

Smith v Wesfarmers Transport Ltd [2002] WADC 46

1 This is an appeal by the plaintiff from a decision of a Deputy Registrar on 15 April 2003 allowing the defendant to amend its defence by adding paragraphs 4C, 4D and 4E in terms of a Minute of Proposed Amended Defence dated 10 April 2003.

2 The purpose of the proposed amendment is to plead that the defendant is a deemed employer pursuant to s 175 of the Workers Compensation & Rehabilitation Act 1981("the Act") and therefore by virtue of the operation of s 93E(3) of the Act the plaintiff is not entitled to an award of damages against the defendant because the plaintiff has not at any material time either agreed with the defendant that the plaintiff's level of disability is not less than a relevant level for the purposes of the Act or obtained a determination as to the relevant level of disability for the purposes of the Act.

3 An appeal from a Registrar of the Court is to be reheard de novo, save that an appellant should begin: Hazart Pty Ltd v Rademaker (1992) 8 WAR 269.

4 The plaintiff's claim is for damages for personal injuries arising out of an alleged breach of the Occupiers Liability Act 1985 at the "Scuddles Mine" on 27 September 1996.

5 The writ endorsed with the statement of claim was filed on 21 November 2001. It alleges that the defendant was the owner and operator of the Scuddles Mine and in the course of the plaintiff's employment at the mine with Monadelphous Engineering ("the employer") a platform that the plaintiff was standing on collapsed causing him to fall and suffer injury ("the accident").

6 The defendant's appearance was filed on 28 December 2001. The defence was filed on 17 January 2002. It is a bare denial or non-admission of the matters alleged in the statement of claim.

7 On 3 February 2002 Hammond CJDC delivered his decision in Hewitt v Benale Pty Ltd [2002] WADC 22 whereby he decided that for the purposes of s 175 of the Act the defendant in that case was a deemed employer of the plaintiff. That case was an action for damages for personal injuries arising out of an alleged breach of the Occupiers Liability Act 1985. The agreed facts were that the defendant owned and operated an abattoir and the plaintiff was employed by a labour hire firm who had hired out his labour to the defendant.

8 The effect of this decision was that the plaintiff, Hewitt, was bound to comply with the provisions of Part IV Division 2 of the Act, including s 93E(3) before he could obtain an award of damages against the deemed employer.

9 Prior to the Chief Judge's decision in Hewitt's case, O'Sullivan DCJ had come to a contrary view on similar facts in the case of Koljibabic v WMC Resources Ltd [2001] WADC 286.

10 On 14 June 2002 the Full Court of the Supreme Court of Western Australia dismissed an appeal against the Chief Judge's decision in Hewitt's case and allowed an appeal in the WMC Resources Ltd case; Hewitt v Benale; WMC Resources Ltd v Koljibabic [2002] WASCA 163.

11 The subject action was entered for trial on 16 September 2002 after both parties purported to comply with their obligations with respect to discovery.

12 On 27 September 2002 any action by the plaintiff against the employer in respect to the accident became statute barred.

13 On 17 February 2003 the defendant informally discovered a contract between Murchinson Zinc Co. Pty Ltd and the employer ("the contract"). Under the contract the employer was to supply labour to Murchinson Zinc Co. Pty Ltd to work at the Scuddles Mine. Murchinson Zinc Co Pty Ltd is alleged to be the trading name of the defendant. It is not in dispute between the Parties that the contract was at all times relevant to the issues between the parties and should have been discovered prior to entry for trial.

14 On 17 March 2003 the defendant applied to amend its defence, relevantly, to allege that it is a deemed employer pursuant to s 175 of the Act and thus by operation of s 93E(3) of the Act the plaintiff is not entitled to an award of damages against the plaintiff because the requirements of Part IV Division 2 of the Act have not been complied with. On 15 April 2003 Deputy Registrar Hewitt granted the defendant leave to amend its defence as detailed above. The plaintiff now appeals that decision.

15 The parties are in agreement that the proposed defence is arguable and may well provide a complete defence to the plaintiff's claim if it is allowed to be pleaded.

16 The issue before me is whether I should allow the appeal and instead exercise my discretion to disallow the proposed amendments because of the prejudice the amendments will cause the plaintiff. That prejudice being that if the defence is successful, the plaintiff now being statute barred from bringing an action against the employer, will not be able to recover damages from any party in respect to the accident. There is a further ground of appeal relating to whether the proposed plea, pleads sufficient material facts.

17 The grant or refusal of leave to amend is a matter of discretion: Baume v Commonwealth [1906] HCA 92; (1906) 4 CLR 97.

18 In State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 155 per Dawson, Gaudron and McHugh JJ their Honours said:

"Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the parties seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the Court, was in this case a relevant consideration but it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."

19 In the course of their judgment their Honours said that the principles established in Cropper v Smith (1884) 26 Ch D 700 and accepted by the High Court in Clough & Rogers v Frog (1974) 48 ALJR 481 were still good law. In Cropper v Smith, Bowen LJ said:

"Now I think it is a well established principal 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 by deciding otherwise than in accordance with their rights... I know of no kind of error or mistake which, if not fraudulent or intended to overreach the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment of a matter of favour or of grace."

20 The case of Clough & Rogers v Frog (supra) has factual relevance to this case. The case included two actions. In the first, Frog sued Clough and Rogers on the basis that the driver of a bulldozer which struck him was a servant or agent of Clough and Rogers. At a later time Frog was granted leave to file an amended statement of claim which alleged that he was the employee of Clough and Rogers. The defence and the amended defence following the amended statement of claim denied all allegations. In a second action Frog issued a writ against the driver and a company. The statement of claim alleged that Frog and the driver were employed by the company and that Frog was injured by a bulldozer owned by the company and negligently driven by the driver. The defence denied negligence. Two days before both actions were listed for hearing Clough, Rogers and the company applied for leave to amend their defences by pleading a defence based on statute to the effect that the actions were statute barred because the plaintiff had failed to commence the proceedings within three years of the date he first received workers' compensation payments. The Supreme Court of the Northern Territory refused leave to amend on the basis that the plaintiff would suffer prejudice if the applications were granted. The possibility of prejudice was said to arise because there had existed the chance that Frog had a cause of action against the nominal defendant pursuant to the Motor Vehicles Ordinance 1949-1971 (NT) for injuries caused by or arising out of the use of an uninsured motor vehicle, that is, the bulldozer. There was some uncertainty surrounding the existence of this cause of action. However if it existed it had become statute barred by the time the defendants applied to amend their defences.

21 In allowing the defendant's appeal and granting leave to amend the High Court said:

"As the defence, if established, would be a complete answer in either action, the amendments sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent, there being nothing to suggest fraud or improper concealment of the defence on the part of the appellants. With the exception of the suggestion of prejudice arising in respect of the loss of the possible claim against the nominal defendant, the matters relied upon by the respondent in opposition to the amendment sought go at the most to delay and irregularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression is used."

22 The High Court found that the question before them turned on the claim that there was a possibility of prejudice or injustice in respect to the loss of the action against the nominal defendant. Assuming the most favourable view of the Motor Vehicles Ordinance the court found that any cause of action against the nominal defendant was lost two years before the second action commenced. Consequently the grant of leave to amend in that action would work no injustice in the manner suggested. In respect to the first action, the possible cause of action against the nominal defendant was extant when it commenced. However, by the time Frog obtained an order giving him leave to amend his statement of claim the cause of action was lost and it was as a consequence of that order that the defendants were permitted to generally plead to the amended statement of claim. The court said that in the exercise of that right the defendants could have pleaded the statutory defence. By allowing them to plead it at a later date, no injustice was thereby occasioned to Frog who lost his cause of action against the nominal defendant before the defendants had gained a right to plead generally to his amended statement of claim.

23 The leading case in Western Australia with regard to the relevant principles applicable upon an application to amend a pleading is Tony Sadler Pty Ltd & Anor v McLeod Nominees Pty Ltd (1994) 13 WAR 323. In that case Seaman J (with whom Anderson J concurred) at 331-335 reviewed the authorities relevant to the granting of leave to amend particularly in light of the modern approach to case flow management. His Honour repeated and applied what he had said in the case of Grljusich & Anor v Grljusich, unreported; SCt of WA; Library No 930253; 6 May 1993 wherein he said, inter alia:

"In my opinion the Court in considering whether it is just to grant belated amendments will consider not only prejudice to the applicant but prejudice to the public interest and prejudice to the opponent on the basis that it is entitled to weigh in the balance the strain the litigation imposes on the opponent, his anxieties in facing new issues, the raising of false hope and his legitimate expectation that the trial will determine the issues one way or the other.... In my view the prejudice to the applicant of the refusal of leave to make a belated amendment does not predominate over the prejudice to the public and to the opponent ...

If a court list is disrupted because a party has failed to prepare in time for the hearing other litigants waiting for a hearing have been needlessly prejudice and the court is concerned to balance the prejudice to the parties which arise from an adjournment in the public interest in the proper use of the resources provided for the administration of justice ...

In Commonwealth v Verwayen (1990) 170 CLR 394 at 416, 464 it was said that it should no longer by likely assumed that an award of costs would cure the prejudice caused by a late amendment. It is my opinion that the new rules further diminish the significance of costs as a cure of prejudice and in view of their terms there is no longer any place for a general presumption that an award of costs will cure prejudice. Furthermore it is my view that consideration may be given by the court to allowing the consequences of the negligent or dilatory conduct of litigation to lie with those responsible for that state of affairs."

24 Whilst that case has not been overruled in Western Australia, it must now be read in light of what the High Court said in State of Queensland & Anor v JL Holdings Pty Ltd (supra). This is particularly so as the High Court restated and applied what had been said in Cropper v Smith (supra), a case which Seaman J said could no longer be relied upon.

25 The prejudice upon which the plaintiff relies as justifying the disallowance of leave to amend is that by the time the defendant discovered the contract and applied to amend its defence, a claim by the plaintiff against the employer was statute barred. Thus, if the amendment is allowed and it is successful at trial, the plaintiff will be unable to recover common law damages against any party in respect to this accident. Whereas if the defendant had pleaded s 175 and relied upon Part IV Division 2 of the Act, including s 93E(3) prior to its cause of action against the employer becoming statute barred, he could have proceeded against the employer instead.

26 The defendant says that the strength of the defence which the amendment seeks to plead is a matter going in favour of allowing the amendment. The defendant says that at any time within the six-year limitation period the plaintiff could have commenced an action against the employer and it is the plaintiff's tactical decision not to pursue this course of action which has resulted in prejudice to him.

27 There are some matters that were raised in the hearing of the appeal that can be quickly disposed of. For example, the public interest in the fair and efficient disposition of litigation, the delay and the alleged failure to give a reasonable explanation for the delay in discovering the contract and making the application to amend and the deficient nature of the original defence and discovery by the defendants.

28 Whilst these are matters of some relevance, in this case they are not determinative of the application. First it is not suggested that there is any fraud or improper concealment of the defence or the contract on the part of the defendant. Secondly as was said in Clough & Rogers v Frog (supra) at 618. These matters "go at the most delay and regularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression."

29 The alleged injustice is the fact that the plaintiff is now statute barred from commencing an action against or joining to this action the employer. If that situation has arisen as a consequence of the belated discovery of the contract or the application for leave to amend the defence then that is an injustice that would warrant me disallowing the amendment. Otherwise the application should be allowed.

30 In respect of this issue the plaintiff put its case on appeal in the following way. The plaintiff submits that until the contract was discovered the plaintiff did not know of the relationship of the employer and the defendant and the employer's obligation with respect to the plant that the plaintiff was using. He says that according to the principles in Flower and Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 it would have been an abuse of process for the plaintiff to join the employer to this action or commence proceedings against the employer.

31 That case is not authority for the proposition which the plaintiff seeks to obtain from it. The facts of the case were that the plaintiff's solicitors advised the plaintiff to commence legal proceedings against the defendant despite also providing advice that they could not win any such litigation if put to the test. It was said that the urgent institution of proceedings were an "attempt to secure some bargaining position." Goldberg J found at first instance that the proceedings had been instituted notwithstanding that the solicitor held the view that his client could not succeed and that the proceedings had been instituted for the primary purpose of delaying action by the defendant to recover money from the plaintiff under a building contract. He found that the proceedings were not instituted for the purpose of vindicating any right that the plaintiff might have. These and subsidiary purposes, His Honour held amounted to an abuse of process because of the illegitimate purpose for which the proceedings were instituted. That decision was affirmed on appeal.

32 Flower and Hart v White Industries is an application of the principle from Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. The facts of that case were that Dr Spautz had an arguable case in criminal defamation. Nevertheless it was held that he had instituted proceedings for an improper purpose, that being to secure his reinstatement as a lecturer with a University. What led to the conclusion that the proceedings were an abuse of process was the fact that Dr Spautz had not commenced them to vindicate the legal right which he claimed, but had done so for an ulterior purpose.

33 Counsel for the plaintiff in this case argued that Flower & Hart v White and Williams v Spautz were authorities for the proposition that an arguable or prima facie case was not sufficient to justify the joining of the party or the commencement of an action against a party. That is not correct. The decisive point in those cases was that the proceedings were instituted for an ulterior purpose and not for the purpose of vindicating legal rights.

34 The plaintiff's submissions were to the effect that if it was legitimate for the defendant not to apply to amend its defence until it had discovered the contract and was aware of the precise nature of the relationship between it and the employer, then similarly it was legitimate, indeed obligatory, of the plaintiff not to commence proceedings against the employer prior to discovery of the contract. Thus the plaintiff argues that the failure to discover the contract until February 2003 when the action against the employer was then statute barred caused irreparable prejudice to the plaintiff and thus the application for leave to amend the defence should be disallowed.

35 There are two difficulties that I have with this submission. The first is that I do not accept that it was legitimate for the defendant to await the discovery of the contract before seeking leave to join the employer as a third party, to plead that it did not operate the mine or to plead that it was a deemed employer. It seems to me that the defendant must have at all times known of the basic facts sufficient for it to instruct its solicitors to plead these matters. Further the fact that the contract had been "archived" is hardly an excuse for the failure of the defendant to discover this document before February 2003, over twelve months after the proceedings had been instituted.

36 Secondly whilst I acknowledge that the plaintiff could not have been expected to know the precise relationship between the employer and the defendant prior to the discovery of the contract, that does not explain why the plaintiff decided not to pursue an action for common law damages against his employer on the basis of a breach of a non delegable duty of care to provide a safe place of work, safe system of work and safe plant for its employee, the plaintiff. Thus I do not accept that the belated discovery of the contract had the prejudicial effect claimed by the plaintiff.

37 Counsel for the plaintiff submitted that until the discovery of the contract the plaintiff did not know and could not be expected to know that the employer had obligations with respect to the plant at the mine. This proposition denies the existence of the non-delegable duties that I have referred to above. In the absence of the discovery of a document which would indicate that the employer had discharged those duties by contracting with the defendant or another party to provide the safe place, plant and system of work the correct assumption would be that liability for failure to provide those matters and to comply with those duties lay with the employer. Thus I do not accept the plaintiff's submissions in this regard.

38 Further, in 1999 the plaintiff referred to the Director of Conciliation and Review ("the Director") the question of his degree of disability arising out of the accident pursuant to s 93D(5) of the Act. The defendant says that the only reason why the plaintiff would have made such a referral is to obtain a determination of his level of disability in order to comply with s 93E(3) of the Act. Thus enabling him to obtain an award of common law damage against the employer. The plaintiff on the other hand says that the referral was for a different purpose and that the referral is not a legal proceeding. Whilst the plaintiff conceded that the hoped for result would be to leave open the possibility of joining the employer or commencing an action against the employer it did not provide credible evidence that would meet the test for commencing an action against the employer. I accept the defendant's submissions in this regard.

39 The background to the referral is that in October 1999 a new s 93D of the Act came into force which applied to the plaintiff's potential claim against the employer. In December 1999 Mr J Schultz, then an orthopaedic surgeon, provided reports to the plaintiff's solicitor in regards to the extent of disability of the plaintiff. On 14 December 1999 the plaintiff referred his degree of disability to the Director. The referral was supported by Mr Schultz's reports. That referral was listed for a preliminary review on 11 May 2000 and that preliminary review was adjourned on more than one occasion. The matter was listed on 27 July 2000 for review on the issue of whether there were grounds to establish a prima facie and bona fide defence that the plaintiff was not a worker within the statutory definition of the term contained in the Act. On that date the referral was adjourned sine die. There is no evidence that either party has asked for the referral to be re-listed.

40 By application dated before 15 October 2001 the employer applied to the Supreme Court of Western Australia for a writ of certiorari against the Director to quash the referral to him. The basis for this application was an allegation that the medical evidence supporting the application for referral did not meet the statutory requirements. On 19 October 2001 that application was adjourned sine die appending the outcome of a number of similar cases. Those cases were determined by judgment of the Full Court delivered on 16 May 2002.

41 Complicating matters even further in or about August 2000 Mr Schultz was disqualified from practicing as an orthopaedic surgeon and the plaintiff was required to seek other medical opinion. On 6 November 2001 Mr A Geddes, an orthopaedic surgeon, provided a report to the plaintiff's solicitors in respect to the plaintiff's injuries arising out of the accident. In respect to his opinion as to the plaintiff's degree of disability he stated:

"I believe that he has sustained a 20% permanent disability of his right leg below the knee due to his first accident on 27/09/96 according to the assessment disability guide under the Workers Compensation and Rehabilitation Act of Western Australia which allots this percentage for a subtalar fusion. Based on his osteochondral fracture of his right knee, his initial meniscectomy and evidence of some laxity of collateral ligaments, I believe he has a 10% disability of his left lower limb function. As previously stated, I am unable to accurately apportion the degree of disability sustained in the first accident and the second accident. However the majority of this disability was based upon his initial injuries and the findings of his arthroscopic surgery. I note that in Dr John Schultz's report dated 10/12/99 he refers to evidence of Mr Willis' ongoing problems associated with his back. I have not been treating Mr Willis for his back and therefore I am not able to comment on whether he has an associated disability."

42 The plaintiff says that this opinion was insufficient for the purposes of a determination of the question of the plaintiff's degree of disability and that it was not until the plaintiff underwent an operation in December 2002 that Mr Geddes was able to give an opinion that would satisfy the requirements of the Act. The plaintiff says that it was not until after 8 January 2003, after the limitation period had expired against the employer, that the report from Mr Geddes was obtained. This is in essence why the plaintiff says that he did not proceed with the referral proceedings or institute proceedings against the defendant.

43 Against this the defendant says that the plaintiff could have commenced proceedings against the employer in anticipation of receiving a favourable decision in respect to the referral proceedings. Authority for the proposition that proceedings can commence after a referral to the Director but before the question of the degree of disability has been determined is found in Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150.

44 The defendant's argument is that the plaintiff had the opportunity to commence proceedings against his employer and perhaps because of difficulties in the referral process he made a decision not to commence such proceedings. This was his decision and not one for which the defendant bears any responsibility. I agree with this assessment. Basic principles indicated that there was a case against the employer for damages for injuries arising out of the accident. The plaintiff clearly foreshadowed such a claim by making an application for referral of his degree of disability to the Director and pursuing that to some degree. The fact that those proceedings may not have been able to be determined prior to an action against the employer being statute barred, merely meant that the plaintiff should have commenced his action prior to the six-year limitation period expiring, which he was entitled to do. On the other hand if the plaintiff did not believe he could ever obtain the medical evidence to comply with the requirement of s 93E(3) of the Act, then he had no right to commence an action against the employer and the fact it is now statute barred is irrelevant.

45 I have also considered two other matters raised by the defendant. The first is that allowing the amendments would not prevent the plaintiff from pleading that the defendants were estopped from relying upon s 93E(3) of the Act. Secondly, the defendant submits that it is not necessary for it to plead this defence as it is a matter of law and it is merely doing so to avoid taking the plaintiff by surprise at trial. Both these issues are referred to in Queensland v JL Holdings Pty Ltd (supra) at 154.

46 As to the second point, the defence sought to be raised is of similar effect to a statute of limitation which bars the plaintiff's remedy. Such limitation provisions do not take affect until pleaded: Ronex Properties Ltd & Anor v John Laing Construction Ltd [1983] QB 398 at 405. It is for a plaintiff to plead and prove the elements of the cause of the action and for the defendant to plead and prove that it arose outside the statute of limitations.

47 Section 93C of the Act states:

"If this division applies a court is not to award damages to a person contrary to this division."

48 Thus s 93C is a procedural provision which bars the plaintiff's remedy if the provisions of Part IV Division 2 of the Act have not been complied with. It is a matter for the defendant to plead and prove that the division has not been complied with.

49 With respect to the fact that the amendments could be met on reply by a plea such as that of estoppel or waiver, the cases indicate that the availability of a reply of estoppel or waiver does not suggest any reason for the refusal of an application to amend. However they do not indicate whether the existence of a reply of estoppel or waiver justifies the allowance of an application to amend. I rather think that the possibility of such a reply is not relevant to the question before me.

50 I conclude that allowing the proposed amendments will not result in injustice to the plaintiff. This is because it was the plaintiff who decided who he sued in relation to his injuries. This defendant has done nothing to prevent the plaintiff from proceeding with his claim against the employer. It was the plaintiff's decision alone not to proceed against the employer. It cannot be that the courts have a duty to protect the interests and decisions of a plaintiff by preventing a defendant from pleading a defence which is likely to be successful because, as a consequence of a separate decision, the plaintiff cannot sue any other person or body. If the plaintiff has decided to put his eggs in one basket, so to speak, by choosing to sue the defendant and not the employer, it is not an injustice for a court to allow the defendant to raise a successful defence. This is even so where the defence is raised at a late point in time after the action against the employer had become statute barred. The inability of the plaintiff to obtain damages against his employer arises from his decision not to commence proceedings within the six-year limitation period and not to pursue the referral to the Director, not from the defendants proposed plea.

51 If the claim against the employer and the difficulties in proving his entitlement to damages against the defendant could only have been discovered by the plaintiff through the contract the situation may have been different. But that is not the case. Any plaintiff, legally advised as this plaintiff was, should have been aware of the potential claim against the employer. The application to the Director for referral in 1999 indicates that this plaintiff was so aware. The potential claim was based on his relationship with his employer and not on the existence of the contract. Similarly the plaintiff, legally advised, should have been aware at least by 14 June 2002, the date of the Full Court's decision in Hewitt's case of the potential difficulties in this case. That gave him three months to take action against the employer.

52 The plaintiff argues that to allow the amendments on this basis is to place the onus on the plaintiff to anticipate unpleaded defences. When a party is deciding which person or body to sue they are required to anticipate issues of fact and law that will be raised against them and, in respect to a plaintiff, to make tactical decisions based on the available evidence and potential defences. The fact that those decisions preclude a plaintiff from proceeding with an action when another turns out to be unlikely to succeed is not an injustice in the relevant sense of the word.

53 The case of Clough & Rogers v Frog has caused me some difficulty. That is because an inference which can be drawn from that case is that if the alternative claim against the nominal defendant had not been statute barred at the time the defendants gained a right to plead to the amended statement of claim, the subsequent application for leave to amend the defence to include the statute of limitations defence after the claim against the nominal defendant had become statute bared would have, in the view of the High Court, worked an injustice that would have warranted the court refusing leave to amend the defence.

54 However the court did not have to decide the case on those facts because in both actions, the claim against the nominal defendant became statute barred before the defendants had a right to plead generally to the statement of claim or amended statement of claim. Consequently it is not authority for that proposition. After considering the facts of this case and applying the law to them I conclude that the belated discovery of the contract and application to amend the defence has not worked an injustice to the plaintiff.

55 The other ground of appeal is without merit. It is that the proposed pleading does not contain sufficient material facts to bring s 175 and particularly s 175(3) of the Act into operation. Section 175(3), in summary, requires that in order for the defendant to be regarded for the purposes of the Act as a deemed employer the plaintiff at the time of the accident must have been employed on work that was "directly a part or process in the trade or business of the principal."

56 Paraphrased, the proposed pleading includes allegations that at all material times the plaintiff was the employee of the employer, that the defendant's business was that of ore extraction and that the employer was contracted to perform work that was "directly part of the defendant's ore extraction business". The proposed pleading goes on to allege that by virtue of the defendant being a deemed employer the defendant is entitled to rely upon the constraints imposed upon the plaintiff's entitlement to damages by operation of the Part IV Division 2 of the Act and as a consequence of the plaintiff's failure to comply with s 93E(3) of the Act the plaintiff is not entitled to an award of damages.

57 It is true that the pleading does not expressly allege that at the time of the accident the plaintiff was employed doing work that was part in the defendant's ore extraction business. However that appears to me to be the only inference open on the pleadings.

58 Order 20 r8(1) of the Rules of the Supreme Court requires every pleading to "contain only a statement in summary form of the material facts in which the party pleading relies for his ... defence, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits." Although the proposed pleading is not perfect it contains sufficient facts to meet this requirement.

59 For the foregoing reasons the appeal is dismissed.