An Analysis of Marinelli v Statewide Industrial Maintenance Pty Ltd [2026] WADC 32
1. Introduction
Most District Court personal injury practitioners will have encountered a late application to amend a defence, and most will have formed a rough sense of when such an application is likely to succeed. The decision of Cormann DCJ in Marinelli v Statewide Industrial Maintenance Pty Ltd [2026] WADC 32 is significant because, beyond resolving the application at hand, it provides careful guidance on a procedural question that arises every time a party certifies a pleading under r 43(3A) of the District Court Rules 2005 (WA) (DCR): when, and on what evidence, can a later amendment be made?
The decision is of particular importance for practitioners in workplace injury and commercial litigation in the District Court of Western Australia. Three points emerge that will recur in daily practice. First, the leave requirement in r 48A is triggered by any party's certificate, not just the certifying party's. Secondly, affidavit evidence in support of a r 48A(3) application that does no more than recite that amendments are on counsel's advice is, in her Honour's words, “hardly… satisfactory”. Thirdly, a party that candidly declines to certify – and contemporaneously articulates its reasons – preserves real flexibility to amend, notwithstanding the r 48A leave gateway.
The decision also contains practical guidance on the inadequacy of pleadings consisting of bare denials and non-admissions close to trial, the insufficiency of contributory negligence particulars that are not underpinned by material facts, and the distinction between the sufficiency of a plea for pleading purposes and the admissibility or adequacy of the evidence that will be adduced to prove it at trial.
2. Relevant Legal Framework
The application was governed by three rules of the District Court Rules 2005 (WA): rr 43(3A), 48(3) and 48A.
Rule 43(3A) was introduced as part of case management reforms aimed at forcing parties – through their counsel – to identify, before trial listing, whether the pleadings adequately define the issues in dispute. Counsel must certify either that the pleadings adequately define all issues of fact and law the party contends will need to be determined at trial, or that they do not, in which case counsel must state what is proposed.
Rule 48A then engages. Once ‘any party’ has filed a certificate, the pleadings cannot be amended without leave: r 48A(2). An application for leave must be supported by an affidavit that sets out the facts that have arisen since the time for amending without leave expired, and the facts that ground the argument that amendment is now necessary: r 48A(3).
Overlaying that procedural framework is the High Court's decision in Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 which, as summarised at [111], makes case management – and the objectives of efficiency, proportionality and finality – an integral part of the exercise of the discretion to allow amendment. Aon was applied in WA in Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 at [52], which distilled the relevant considerations for this jurisdiction.
More recently, Mann v Bankwest – A Division of Commonwealth Bank of Australia [2020] WASCA 35 at [80] held that an application to amend is not to be assessed in a vacuum: the individual circumstances of the case, including its procedural history, must be considered. Reliance Capital Pty Ltd v Caratti [No 6] [2024] WASC 21 at [3] is to the same effect.
Before Marinelli, practitioners had Aon, Mann and Hightime for the general discretionary framework, but less authority on the specific interaction between the r 43(3A) certificate and the r 48A amendment gateway – in particular, on the position of a party that has positively declined to certify. Marinelli fills that gap.
3. The Facts of the Case
The underlying claim
The underlying proceeding is a workplace injury claim. Mr Bodie Marinelli, a mechanical fitter employed by Statewide Industrial Maintenance Pty Ltd, alleges he was injured on 14 October 2021 at a site in Munster while manoeuvring a drum with a co-worker (at [6], [22]). Mr Marinelli alleges that the drum weighed 1.5 tonnes, that his co-worker released a chain block prematurely, and that the drum swung into his left leg, pinning it against a beam on the second floor (at [22]).
Procedural history
The procedural history is the heart of the case. The writ was filed on 19 September 2023, a Re-Amended Statement of Claim on 15 February 2024, and Particulars of Damage on 10 October 2024 (at [6]–[7]).
Pursuant to orders of 10 April 2025, Mr Marinelli filed his r 43(3A) certificate on 14 May 2025. His counsel certified the pleadings. The defendant filed its certificate one day late, on 15 May 2025. Importantly, it did not certify the pleadings; instead, its counsel noted that he had reviewed the pleadings and was ‘not satisfied that they adequately defined all the issues of fact or law that the defendant contends will need to be determined at trial’, and that the defendant proposed to file an amended defence within 28 days of the listing conference (at [9]).
At a listing conference on 19 May 2025, the Court ordered the defendant to file any application to amend by 3 June 2025 (at [10]). The defendant did not do so. Instead, it served a Minute of Amended Defence on 9 June 2025 and a properly marked-up version on 16 June 2025. The application itself was not filed until 24 July 2025 – the same day on which Mr Marinelli's solicitors indicated the amendments were opposed (at [11]–[12], [40(b)]).
At a further conference on 22 September 2025 the trial was set down for a 10-day hearing commencing 10 August 2026 (at [3], [14]). The application was dismissed by the Registrar on 1 December 2025 (at [4]) and reheard by Cormann DCJ on 31 March 2026 (at [5]).
The substantive amendments
The substantive amendments were extensive. They included taking certain matters out of issue by admission; pleading that the drum weighed 400 kg rather than 1.5 tonnes (at [48]); pleading that Mr Marinelli's proposed lifting method would compromise the structural integrity of the site (at [55]); pleading an alternative account of how the accident occurred, including that Mr Marinelli's leg was ‘compressed’ between the drum shaft and the beam (at [26], [66]); pleading contributory negligence based on Mr Marinelli placing himself in the ‘line of fire’ and using ‘excessive force’ (at [27], [73]); pleading recovery from physical injury by October 2022 based on video surveillance (at [27], [75]); and pleading pre-existing psychological co-morbidities (at [27], [78]).
4. Analysis of the Court's Reasoning
The trigger for r 48A leave
Her Honour's starting point was to correct the defendant's mistaken view that leave to amend was required only from 22 September 2025, rather than from 14 May 2025. The defendant had proceeded on the basis that, because its own counsel had not certified the pleadings, leave was not required (at [18]).
That position was, in her Honour's words, ‘not correct as a matter of law’ (at [19]). The defendant conceded the point at the outset of the hearing. The correct position is that leave is required from the moment any party – identified in r 48A(2) as ‘any party’ – files a r 43(3A) certificate in which the pleadings are certified. That clarification means the moving party cannot avoid the r 48A gateway by declining to certify its own pleadings. The plaintiff's certificate triggered the need for leave regardless of what the defendant did.
The r 48A(3) affidavit: quality, not merely quantity
Cormann DCJ was notably critical of the defendant's affidavit material. Three affidavits were filed. The first attached email exchanges with the plaintiff's solicitors (at [32]). The second asserted only that the pleaded facts accorded with the defendant's instructions or were based on medical reports, and that the amendments were on the advice of counsel (at [33]). The third set out procedural history and repeated that the amendments were made on counsel's advice and in accordance with instructions (at [34]).
Her Honour observed (at [38]):
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 a party has certified its pleading, and then later applies to amend.
That observation is a clear signal to the profession. An affidavit that does no more than say ‘these amendments are on counsel's advice’ will not ordinarily discharge the r 48A(3) burden. Something more – properly particularised facts that have arisen, or that ground the necessity of amendment – is expected.
The distinction that saved the application
What saved the defendant's application, notwithstanding the deficiency in its affidavit evidence, was the distinction between a party that had certified and later sought to amend, and a party that had from the outset declined to certify (at [39]). The defendant fell into the latter category. Its counsel had, on 15 May 2025, positively identified that the pleadings were inadequate and signalled that amendment was required. The plaintiff was on notice of the need for amendment well before trial was listed.
Her Honour identified five reasons why the evidentiary deficiency was not disqualifying (at [40]): first, the defendant had refrained from certifying and had immediately flagged the need to amend; secondly, the delay between 13 May 2025 and 24 July 2025 was not substantial in the circumstances; thirdly, the defendant was entitled to put an alternative factual case based on lay evidence to be adduced at trial; fourthly, without amendment, the defendant would be deprived of the opportunity to present its case; and fifthly, the existing defence of bare denials and non-admissions would itself be unsatisfactory four months out from trial.
Pleading adequacy versus evidentiary sufficiency
A recurrent thread in her Honour's analysis was the distinction between the adequacy of a plea for pleading purposes and the admissibility or adequacy of the evidence that will be adduced to prove it at trial. On the disputed weight of the drum (at [50]–[52]), the proposed plea of structural compromise (at [56]–[57]), the alternative account of the accident (at [68]), and the pleas of physical recovery and pre-existing co-morbidities (at [76]–[77], [80]), her Honour repeatedly emphasised that the question before her was whether the plea on its face provided a sufficiently clear statement of the defendant's case such that the plaintiff had a fair opportunity to meet it.
That approach is consistent with orthodox pleading principles but is a useful reminder that on a r 48A application, the Court will not inquire into the prospects of success of the factual case that the amendment foreshadows.
The refused contributory negligence amendment
The one proposed amendment that was refused was the plea of contributory negligence (at [74]). The particulars were that Mr Marinelli had placed himself in the ‘line of fire’ and had used ‘excessive force’. Her Honour held that those particulars were not supported by any alleged material fact in the Pleading or in the further and better particulars, and that the earlier allegation in the further and better particulars that Mr Marinelli had ‘failed to follow instructions’ was itself not supported by any material fact. Leave was accordingly refused. Particulars, her Honour's reasoning makes plain, are not a substitute for material facts.
5. Assessing the Consequences
The practical consequences of the decision flow in several directions.
For the parties, the order made was that the application was ‘successful in part’. All proposed amendments were allowed save for the contributory negligence plea (at [17] and passim; see the orders outline at [81]). Although costs were left for further argument (at [81]), the defendant's failure to comply with the timetable set on 19 May 2025 and its delay in filing the application are matters that would conventionally bear adversely on a costs order. Her Honour described the defendant's conduct in lagging amendments and waiting ‘to set out a case until the point at which pleadings are being ordered by the court to be certified’ as ‘obviously completely unsatisfactory’ and ‘unacceptable non-compliance with court orders’ (at [41]).
For the litigation timetable, the trial dates were preserved (at [3], [47]). Cormann DCJ expressly noted that commencement was still more than four months away, that the amendments had been on the table since June 2025, and that there was no evidence to suggest the amendments would occasion adjournment.
For the wider profession, the decision invites a reappraisal of two habits. The first is the reflexive use of ‘standard form’ affidavits that recite only that amendments are on the advice of counsel and in accordance with instructions. After Marinelli, such affidavits will not be sufficient in the usual case – particularly if the moving party itself certified the pleadings. The second is the practice of pleading bare denials and non-admissions as a holding position and dealing with the ‘real’ defence closer to trial. Marinelli characterises that practice as unsatisfactory, and at [41] draws a direct connection between that practice and the interlocutory disputes it generates.
6. Worked Example
Assume a commercial dispute in the District Court. The plaintiff sues for $600,000 damages for breach of a supply contract. The defendant's current defence is pleaded in the form of bare denials and non-admissions. Trial has not yet been listed. Both parties are ordered to file r 43(3A) certificates by 1 June 2027.
Scenario A – defendant certifies, then seeks to amend
The defendant's counsel certifies on 1 June 2027 that the pleadings adequately define the issues. On 1 August 2027, after proofing a key witness, the defendant identifies a new positive defence – that the plaintiff repudiated the contract by a conversation on 10 March 2025 that has only now been recalled. The defendant applies under r 48A to amend. The r 48A(3) affidavit must set out the facts that have arisen since 1 June 2027 and the facts that ground the argument that the amendment is necessary. After Marinelli, an affidavit that says only ‘the amendment is made on the advice of counsel and in accordance with the defendant's instructions’ is almost certainly insufficient. The defendant should depose to the content of the witness's recollection, when it was first raised, the steps taken to investigate it, and why it could not have been identified earlier.
Scenario B – defendant declines to certify
The defendant's counsel files a certificate on 1 June 2027 stating that the pleadings do not adequately define the issues. The certificate identifies, in substance, the areas in which amendment is proposed. The defendant then works on a minute of amended defence and serves it within 28 days. On Marinelli, the defendant is in a significantly stronger position. The opposing party has been on notice of the intended amendment from the outset. The evidentiary burden under r 48A(3) is, as Marinelli indicates, not so exacting in those circumstances – though the affidavit still needs to do more than recite counsel's advice.
What the prudent practitioner does
The lesson from Marinelli is that candour is the practitioner's friend. Where there is any real doubt about the adequacy of a pleading, counsel should decline to certify, identify the deficiency, and set a timeline for amendment. That preserves the moving party's evidentiary position under r 48A(3). Conversely, certifying pleadings that are known to be inadequate – even informally – is likely to put the moving party in the position her Honour described as ‘hardly… satisfactory’.
7. Practitioner Guidance: A Step-by-Step Framework
The following framework is derived from the principles stated in Marinelli.
Step 1 – Before certifying, test the pleadings critically against the intended case at trial
Counsel should approach the r 43(3A) certificate as a genuine forensic exercise, not a procedural formality. Cormann DCJ described the defendant's position on the certificate as ‘immediate, or at least early, recognition and identification’ that the defence needed to be amended (at [40(a)]), and treated that as a factor in the defendant's favour.
Step 2 – If the pleadings are inadequate, decline to certify and state why
A positive statement that counsel is not satisfied that the pleadings adequately define all issues of fact or law, with a proposed timeline for amendment, preserves maximum flexibility to amend later. It also puts the opposing party on notice and reduces the prospect of a Hightime-style prejudice argument (at [40(a)], [40(c)], [45]).
Step 3 – If the pleadings are certified and amendment later becomes necessary, prepare an affidavit that does more than recite counsel's advice
The affidavit must set out the facts that have arisen and the facts that ground the necessity of amendment: r 48A(3). After Marinelli (at [38]), generic recitations are not enough. Particular attention should be paid to when each new factual matter was first known, the steps taken to investigate it, and why it could not be pleaded earlier.
Step 4 – File promptly once it is clear that amendment is opposed
In Marinelli, the defendant was not penalised for delay between 13 May 2025 and 24 July 2025, but her Honour expressly drew attention to the fact that the application was filed on the very day the plaintiff signalled opposition (at [40(b)]). Inaction after opposition is signalled is far more likely to attract criticism than a period of communication while the parties attempt to narrow the amendments.
Step 5 – Ensure every pleaded particular is underpinned by a material fact
The failure of the contributory negligence amendment (at [74]) turned on the absence of material facts supporting the particulars. Draft particulars by first identifying the material fact to be pleaded, and only then articulating the particular that explains how that fact gives rise to the alleged breach.
Step 6 – Keep the distinction between pleading adequacy and evidentiary sufficiency in mind
On a leave application, the Court's concern is with the sufficiency of the plea on its face, not the prospects of the underlying evidence. Marinelli repeatedly demonstrates that evidentiary objections – such as concerns about the admissibility of opinion evidence on structural integrity (at [56]) – are generally not grounds to refuse amendment.
Step 7 – Avoid a defence of bare denials and non-admissions close to trial
Her Honour characterised such a defence as unsatisfactory four months out from trial (at [40(e)]). A defence that does not disclose the affirmative case will ordinarily invite amendment and interlocutory dispute.
Step 8 – Where amendments narrow the issues, seek consent
Cormann DCJ observed (at [42]) that a genuine narrowing of issues reflected in a proposed amended pleading ‘in the norm’ should be achieved by consent and should not require costly interlocutory applications. The opposing practitioner who reflexively resists narrowing amendments should expect judicial disapproval.
8. Evidence and Arguments Available to Each Side
Arguments for the moving (amending) party
The party seeking leave can deploy the material facts supporting the amendment, identified with precision, together with a chronology that ties them to events or disclosures post-dating the certificate (or the last unopposed amendment). It can point to evidence that the proposed amendments narrow rather than expand the issues in contention, which was identified as a factor favouring leave (at [45], [68]). It can rely on evidence that the opposing party has been on notice of the proposed amendments for a substantial period and has had a fair opportunity to consider them (at [40(d)], [46]). It can adduce evidence directed to the trial dates – in particular, evidence that the amendments can be accommodated without adjournment (at [47]). If the moving party declined to certify, it should point expressly to the certificate that identified the inadequacy of the pleadings at the earliest opportunity (at [40(a)]).
Arguments for the opposing party
The party resisting leave can demand strict compliance with r 48A(3): the ‘facts that have arisen’ and the ‘facts that ground necessity’ must be particularised (at [29], [38]). It can adduce evidence of specific, non-compensable prejudice – preferably tied to witnesses no longer available, or to steps that cannot now be undertaken because of delay. It can contend that the amendment raises genuinely new issues requiring fresh investigation or witnesses (noting that argument failed on the facts in Marinelli: at [45], [46]). Where the proposed particulars are not underpinned by material facts, it can mount a focused submission on that deficiency – which succeeded in Marinelli on the contributory negligence plea (at [74]). It can address the trial dates and the likelihood that amendment will require adjournment, noting that mere assertion will not suffice (at [47]). Even if leave is granted, it can pursue the costs thrown away by the amendment.
9. Key Takeaways for Legal Practice
1. The leave gateway in r 48A opens when any party files a certificate. A party cannot avoid the leave requirement by declining to certify its own pleadings. The plaintiff's certification on 14 May 2025 triggered the leave requirement for the defendant from that date (at [19]).
2. Candour in declining to certify is rewarded. A party that positively identifies in its certificate that the pleadings do not adequately define the issues, and proposes a timeline for amendment, is in a materially stronger position than one that certifies and later seeks to resile (at [39], [40(a)]).
3. A r 48A(3) affidavit that says only that amendments are on counsel's advice is ‘hardly satisfactory’. Marinelli at [38] warns against the habit of filing generic affidavits. The facts that have arisen, and the facts that ground the necessity of amendment, must be particularised.
4. Bare denials and non-admissions are not a sustainable defence close to trial. Her Honour was critical of such pleadings and treated their inadequacy as a factor favouring leave to amend to a more particularised defence (at [40(e)]).
5. The question on a r 48A application is pleading adequacy, not evidentiary sufficiency. Objections to admissibility – for example, opinion evidence as to structural integrity – are generally not a basis to refuse amendment. The Court looks at the plea on its face for a sufficiently clear statement of the case (at [52], [56]–[57], [68], [76]–[77], [80]).
6. Particulars must be underpinned by pleaded material facts. The contributory negligence amendment failed precisely because its particulars – ‘line of fire’ and ‘excessive force’ – were not supported by any pleaded material fact (at [74]).
7. Timeliness is measured contextually. The delay between 13 May 2025 and 24 July 2025 was held not to be unacceptable, in circumstances where the defendant had signalled the need to amend, provided a marked-up draft, and engaged with the plaintiff on the proposed amendments (at [40(b)]).
8. Prejudice must be concrete. General assertions that the amendments require ‘grappling with substantive new issues’ will not suffice where the issues have always been in contention and the trial is still months away (at [46]).
9. Compliance with court orders is not optional. Her Honour's observation at [41] that ‘compliance is not optional’ is a reminder that the court's indulgence is finite and that repeated non-compliance will ultimately tell against a party, even if it does not defeat an individual application.
10. Narrowing amendments should be by consent. The observation at [42] that narrowing amendments ordinarily should not require interlocutory applications is a clear signal that reflexive opposition to sensible amendments will attract judicial criticism and, potentially, adverse costs.
10. Conclusion
Marinelli is a short but practically rich decision. Its primary contribution is the careful articulation of how rr 43(3A) and 48A DCR interact – a point of procedure that, while apparently technical, affects the daily conduct of District Court civil litigation in Western Australia.
The decision confirms that the r 48A gateway is triggered by any party's certificate; that affidavit evidence in support of an amendment application requires particularised facts rather than a recitation of counsel's advice; and that candour in declining to certify is rewarded while untimely certification followed by later recantation is not.
For practitioners, the core practical message is this: the certificate of counsel is a substantive forensic document, not a formality. Treating it accordingly – declining to certify where pleadings are inadequate, and supporting any later amendment with a properly particularised affidavit – is now plainly necessary. The days of filing generic r 48A(3) affidavits reciting counsel's advice are, on the strength of Cormann DCJ's reasoning in Marinelli, effectively over.