Mackenzie v W Small Plant Hire
[2001] QCA 277
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- Unreported Judgment
- Appeal Determined (QCA)
- Mackenzie v W Small Plant Hire[2001] QCA 277
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Mackenzie v W Small Plant Hire[2001] QCA 277
Mackenzie v W Small Plant Hire[2001] QCA 277
COURT OF APPEAL |
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de JERSEY CJ |
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DAVIES JA |
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THOMAS JA |
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Appeal No 8716 of 2000 |
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PETER THOMAS MACKENZIE | Appellant (Plaintiff) |
and |
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W SMALL PLANT HIRE (A Firm) | First Respondent (First Defendant) |
and |
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DETAILED EXCAVATIONS PTY LTD | Second Respondent (Second Defendant) |
and |
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W D G & E A SMALL | Third Respondent (Third Defendant) |
BRISBANE |
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DATE 18/07/2001 |
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JUDGMENT |
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THE CHIEF JUSTICE: The appellant appeals against a learned trial Judge's refusal of what the Judge regarded as the appellant's application made at the commencement of a trial for leave to amend his statement of claim. The appellant's claim is for damages for personal injuries allegedly arising out of the respondent's negligence in the course of the appellant's employment.
The appellant commenced his action by writ issued on 13 September 1991. His statement of claim delivered on 13 September 1993 alleged that he suffered the injuries while using a bobcat to clear vegetation in the development of a golf course at Sanctuary Cove.
The issue arises from the appellant's attempt to broaden his particulars of negligence. In the statement of claim he very clearly tied his case to the respondent's requirement that he carry out the work using a machine which lacked a properly functioning seat-belt.
The alleged negligence occurred over the period July to December 1988. Having been commenced in September 1991, the action proceeded slowly over the years, and eventually in December 1999 the appellant's solicitors filed a request for trial dates. The action first came on for trial on 10 July 2000 but was then adjourned because no Judge was available to hear it. It later came on for trial on 11 September 2000.
After filing the request for trial dates in December 1999, the appellant's solicitors obtained in April 2000 a report in relation to the circumstances of the appellant's employment from an "accident investigation occupational health and safety consultant".
Following from that the appellant's solicitors wrote to the solicitors for the respondent on, it seems, 16 June 2000 giving notice that at the forthcoming trial the appellant intended to amend the statement of claim to include further particulars of negligence. The additional particulars essentially alleged negligence because of the respondent's failure to provide the appellant with a larger machine with which to do the work, such as a bulldozer. The respondent's solicitors replied on 22 June 2000 stating that the respondent would, at the trial, object to any such amendment.
Dealing with the issue at the commencement of the trial on 11 September 2000, the learned Judge took the view that since the appellant's solicitors had, in September 1999, signed a request for trial dates, and because of the stipulation of Rule 380 of the Uniform Civil Procedure Rules, the amendment foreshadowed by the later letter of June 2000 could be made only with the leave of the Court.
Additionally, one notes, Rule 470 provides that after a party has signed a request for trial dates, that party needs the Court's leave to amend a pleading. I mention in passing some apparent overlap between Rules 380 and 470 to which the Rules Committee may care to give consideration.
His Honour refused to grant leave to amend, noting the substantially different case which the respondent would otherwise be called upon to meet. With the relevant events having occurred some 12 years earlier, the Judge unsurprisingly observed that the fading of recollections, which would inevitably have occurred with the lapse of that time, would likely prejudice the prospect of a fair trial were the amendment to be allowed.
His Honour having made that ruling, the trial proceeded with the appellant giving evidence. After a time, however, the appellant's counsel indicated that the appellant sought an adjournment so that his Honour's ruling could be tested on appeal. Although the respondent objected to any adjournment, the learned Judge did adjourn the trial for that purpose, ordering the appellant to pay the respondent's costs thrown away.
The appellant contends that his Honour erred in regarding Rule 380 as applicable. That rule provides that an amendment after the filing of a request for trial dates may be made only with the leave of the Court.
The appellant's counsel relies on the circumstance that although the appellant's solicitors letter of 16 June in terms advised the appellant's intention at the trial to seek to amend the statement of claim in this respect, the letter also said that the particulars were being provided under Rule 160, subrule (2). That subrule provides that further particulars may be given by correspondence.
Counsel relied then on Rule 162 which provides for application by the other party to have such particulars struck out on grounds including, for example, a tendency to prejudice or delay the fair trial of the proceeding. The appellant's contention was that because the respondent did not make such an application, the statement of claim should have been taken by the learned Judge to have been effectually amended by the provision of the further particulars by letter.
The clear intent of part 3 of chapter 6 of the Uniform Civil Procedure Rules is that particulars form part of a pleading, whether or not provided by correspondence. Where a party seeks to rely on particulars beyond those formally pleaded, the party may furnish them to the other side and the other party may seek their disallowance. In the absence of disallowance, the pleading will, in such circumstances, be taken to have been amended, but provided the action has not reached the stage where trial dates have been requested.
Quite plainly, and for obvious reasons, once a request for trial dates has been filed, then by force of Rule 380, such an amendment may be effective only if sanctioned by a grant of leave. See also Rule 470 to which I referred earlier, again specifying the need in such circumstances to obtain leave to amend a pleading, the course which, in my view, was, in reality being followed here. I respectfully agree with his Honour's reliance on Rule 380.
As to the exercise of discretion, allowing for the general importance of facilitating the trial of the issues comprehensively arising from the relevant circumstances, a fundamental consideration of which his Honour was obviously aware, it was open to him to have regard, as significant features against a grant of leave, to the substantial lapse of time between the alleged negligence and the notification of the proposed amendment, that it occurred when the matter was otherwise ready for trial on the original pleadings, the substantial departure from the pleaded case which would be involved were the amendment to be allowed and that likely prejudice would flow from the dimming of recollections as to the relevant circumstances.
The appellant contended that the especially relevant circumstances going to the difficulty of the terrain in which the appellant was required to work were also relevant to the case confined, according to the statement of claim, to the issue of the faulty seat-belt. It is, however, in my view conceivable that the new case sought to be advanced, focusing on the adequacy of the machine provided to the appellant, would have warranted exploring more precisely the nature of the terrain and its interaction with the machine of the allegedly limited capacity in fact provided to him.
The appeal challenges a ruling on matters of practice and procedure warranting a circumspect approach on the part of the Court. (See Adam P Brown Male Fashions Pty Ltd v. Phillip Morris Incorporated (1981) 148 C.L.R 170). I identify no error in his Honour's approach and particularly no circumstance which should properly be seen to vitiate his exercise of discretion. I would accordingly dismiss the appeal, with costs to be assessed.
DAVIES JA: I agree.
THOMAS JA: I agree.
THE CHIEF JUSTICE: Those are the orders.