Alelaimat v Synergy Scaffolding Services (No 2)

[2020] NSWSC 1496

Supreme Court

New South Wales

Medium Neutral Citation:

Alelaimat v Synergy Scaffolding Services (No 2) [2020] NSWSC 1496

Hearing dates:

19; 20; 21; 22 October 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

I grant leave to the second defendant to file in court the proposed cross-claim dated 19 October 2020

Catchwords:

CIVIL PROCEDURE – pleadings - leave to file cross-claim – where no forensic prejudice occasioned by late filing

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 100

Law Reform Miscellaneous Provisions Act 1946 (NSW) s 5

Workers Compensation Act 1987 (NSW) ss 151A,

151Z(1)(d), 151Z(2)(e)

Cases Cited:

HIH Casualty & General Insurance Ltd v Pluim Constructions Pty Ltd & Anor [2000] NSWCA 281

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

Category:

Procedural and other rulings

Parties:

Bilal Alelaimat (Plaintiff)
Synergy Scaffolding Services Pty Ltd (First Defendant)
Workers Compensation Nominal Insurer (Second Defendant)

Representation:

Counsel:
D. Toomey SC with D. Morgan (Plaintiff)
D.A. Priestley SC (First Defendant)
P Rickard (Second Defendant)

Solicitors:
Matthew Garling & Co (Plaintiff)
McCulloch & Buggy (First Defendant)
Moray & Agnew (Second Defendant)

File Number(s):

2017/208752

Judgment

1. I am dealing with an application on behalf of the second defendant for leave to file a cross-claim against the first defendant seeking statutory contribution under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) and a statutory indemnity under s 151Z(1)(d) Workers Compensation Act 1987 (NSW). The application was raised before me on Monday at the commencement of the trial when it was made clear that a draft proposed cross-claim had been forwarded to the parties only shortly prior to the commencement of the hearing.

2. Mr Rickard of counsel who appears for the second defendant advanced the argument and Mr Priestley of Senior Counsel for the first defendant opposed it. There was no stern opposition to the institution and maintenance of a s 5 cross-claim and I indicated on Monday that I would at least permit the cross-claim to be filed to seek that relief, observing that even absent a cross-claim, according to the judgment of Handley JA and Foster AJA in HIH Casualty & General Insurance Ltd v Pluim Constructions Pty Ltd & Anor [2000] NSWCA 281; (2000) 11 ANZ Ins Cas 61-477 at [81]-[82], the s 5 issue would be in play in any event. The real question was whether I should allow the second claim for a statutory indemnity to be raised. I indicated that if that was to be pressed I would require an affidavit setting out the circumstances explaining the lateness of the application.

3. Mr Rickard has read without objection the affidavit of his instructing solicitor Mr Stephen Harris, sworn on 21 October 2020, which with appropriate and disarming candour states that the reason for the lateness was his oversight.  He sets out other relevant facts including that the proceedings were commenced on 10 July 2017 in the District Court, that his client, the insurer had been joined by cross-claim filed on behalf of the now first defendant on 26 March 2018 and that on 3 May 2018 he did file a defence to the cross-claim setting out payments made under the Workers Compensation Act 1987 (NSW) (“WCA”) in defence to the claim for contribution. It may be taken that by implication s 151Z(2)(e) WCA was called in aid of that pleading.

4. On 11 June 2019 the second defendant was joined to the claim by the plaintiff in a claim for work injury damages under Div 3 of Part 5 WCA. Again a defence was filed pleading payments under WCA although in that context that may be taken to be a reference to s 151A WCA. Mr Harris also points out that he had at different times provided details of the amounts paid to, for and on behalf of the worker, the plaintiff here, to the other parties to the litigation. It was only in preparation for the trial in early October that he realised his oversight in failing to file the cross-claim against the first defendant which he then sought to remedy.

5. Generally speaking late amendments are frowned upon as being contrary to the overriding purpose of civil litigation; however there are ample powers to allow amendments at any time including on appeal: ss 56 and 64 Civil Procedure Act 2005 (NSW). Generally the power to amend is exercised in the light of the principles discussed by the High Court of Australia in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. A full and satisfactory explanation of any relevant delay is normally required as a condition precedent to the exercise of the power to amend.

6. Mr Priestley points out that a candid statement of oversight may be a full explanation but it need not be satisfactory. It seems to me that in this case the explanation is full and given Mr Priestley’s equally candid concession that he can point to no aspect of forensic prejudice it can be seen to be satisfactory. “Satisfactoriness” is a flexible standard capable of flexible application. It also seems to me that the power to amend is properly invoked in this case because the amendment to rely on s 151Z(1)(d) does not generate any additional factual issue not already in play amongst the parties to the litigation. And indeed, as Mr Rickard points out, the same issues must necessarily arise against the prospect that the plaintiff will persuade me that he is entitled to judgment against both defendants and questions of contribution must be decided anyway.

7. The issues are identical. They will be based upon the same evidence and legal considerations for the purpose of working out the amount of contribution between the defendants for the purpose of s 151Z(2) Workers Compensation Act. There are complexities, as Mr Priestley points out, but they are not much lessened by denying the second defendant reliance upon s 151Z(1)(d). As I remarked during the course of the argument, a vice commonly perceived by the profession where a s 151Z(1)(d) claim is raised late in separate proceedings is the additional questions of costs and interest under s 100 Civil Procedure Act2005 (NSW) that such claims involve. However, I have ample discretionary power to cure such prejudice that may arise in that regard in the interests of justice.

8. For those reasons I grant leave to the second defendant to file in Court the proposed cross-claim dated 19 October 2020, raising both the claim for statutory contribution and statutory indemnity.

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Decision last updated: 27 October 2020