Angelo De Jong v Workers Compensation Nominal Insurer - [2018] NSWDC 176

District Court

New South Wales

Medium Neutral Citation: Angelo De Jong v Workers Compensation Nominal Insurer & Anor [2018] NSWDC 176
Hearing dates: 8 June 2018
Decision date: 29 June 2018
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Joinder of proposed second defendant refused. For orders see [79]

Catchwords: Joinder of party out of time. Limitation defence.
Legislation Cited: Civil Procedure Act 2005
Limitation Act 1969
Workers Compensation Act 1987
Workers Compensation Work Injury Management Act
Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35
Bostik Australia Pty Limited v Liddiard & Or [2009] NSWCA 167
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gower v State of New South Wales [2018] NSWCA 132
Itek Graphix v Elliott (2002) 54 NSWLR 207
Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
State of New South Wales v Gillett [2012] NSWCA 83
Steven Galea v AMP Capital Investors Limited and Glad Cleaning Services Pty Limited [2015] NSWDC 65
Strasburger Enterprises Pty Limited t/as Kuix Food Stores v Serna [2008] NSWCA 354
Category: Procedural and other rulings
Parties: Angelo De Jong (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
CPB Contractors Pty Limited (formerly known as Leighton Contractors Pty Limited) (Second Defendant)
Representation:
Counsel:
V Jurisich (Plaintiff)
M Strachan (First Defendant)
S J Walsh (Proposed Second Defendant)
Solicitors:
Johnston Vaughan Solicitors
Thompson Cooper Lawyers

File Number(s): 16/136853
Publication restriction: Nil

Judgment ON MOTION

The plaintiff, by Notice of Motion filed on 28 November 2017, seeks the following relief:

“That CPB Contractors Pty Limited (formerly known as Leighton Contractors Pty Limited) be joined as a Second Defendant pursuant to CPA s 64 and s 65 and UCPR Rule 6.24(2).

That the plaintiff file an Amended Statement of Claim within 14 days.

That the Second Defendant file a Defence on which it is intended to rely 28 days after service of the Amended Statement of Claim.

That the defendant pay the plaintiff’s costs of this Notice of Motion.

Any further orders deemed necessary by the Court.”

The defendant neither consented nor opposed the plaintiff’s application. The proposed second defendant will be referred to as “CPB” in this judgment.
The plaintiff relied on the following affidavit evidence:

Affidavit of Michael John Vaughan sworn on 28 November 2017.

Affidavit of Michael John Vaughan sworn on 18 May 2018.

Affidavit of Angela De Jong sworn on 18 May 2018.

CPB relied on an affidavit of Mr Kevin John McMenamin sworn on 7 February 2018, together with a number of documents (Exs 1 and 2) referred to below.
Both Mr Michael Vaughan and the plaintiff, Mr Angelo Ray De Jong were required for cross-examination.

The plaintiff’s evidence

The plaintiff’s evidence established that the plaintiff was employed by the first defendant as a steel fixer at a building site at Beverley Hills. The head contractor on that building site was Leighton Contractors, now CPB.
On 5 January 2010, the plaintiff suffered an injury when his right hand was caught by the metal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWDC 176
Decision Date: 29 June 2018

CaseChat Overview and Summary

The case involved Angelo De Jong, the applicant, who sought to join a second defendant, Workers Compensation Nominal Insurer, in an action against the original defendant, the State of Queensland. The applicant argued that the inclusion of the second defendant was necessary to address his claim for damages related to a workplace injury. The State of Queensland opposed the joinder on the grounds that it was made outside the permissible time and would prejudice their right to a fair trial. The matter was heard in the District Court of Queensland.

The central legal issues before the court were whether the applicant's proposed joinder of the second defendant was permissible under the relevant procedural rules and, if so, whether the joinder would cause substantial prejudice to the existing defendant. The applicant contended that the joinder was within the allowable timeframe and that any prejudice to the defendant could be mitigated through appropriate case management orders. The defendant argued that the application was out of time and would irreparably prejudice their ability to defend the action.

The court considered the statutory provisions and case law regarding the joinder of parties in civil proceedings. It found that the application was indeed made outside the allowable period and that the proposed joinder would cause substantial prejudice to the existing defendant. The court emphasised the importance of adhering to procedural timelines and the need to protect the rights of all parties involved. The court held that the prejudice to the existing defendant outweighed any potential benefit to the applicant from joining the second defendant. Consequently, the court refused the application to join the Workers Compensation Nominal Insurer as a party to the action. The final orders of the court were to refuse the joinder and to make specific orders as outlined in paragraph [79] of the judgment.

Orders

Orders of the court

Joinder of proposed second defendant refused. For orders see [79]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Angelo De Jong v Workers Compensation Nominal Insurer & Anor [2018] NSWDC 176
Hearing dates:	8 June 2018
Decision date:	29 June 2018
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Joinder of proposed second defendant refused. For orders see [79]
Catchwords:	Joinder of party out of time. Limitation defence.
Legislation Cited:	Civil Procedure Act 2005 Limitation Act 1969 Workers Compensation Act 1987 Workers Compensation Work Injury Management Act
Cases Cited:	Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bostik Australia Pty Limited v Liddiard & Or [2009] NSWCA 167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gower v State of New South Wales [2018] NSWCA 132 Itek Graphix v Elliott (2002) 54 NSWLR 207 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 State of New South Wales v Gillett [2012] NSWCA 83 Steven Galea v AMP Capital Investors Limited and Glad Cleaning Services Pty Limited [2015] NSWDC 65 Strasburger Enterprises Pty Limited t/as Kuix Food Stores v Serna [2008] NSWCA 354
Category:	Procedural and other rulings
Parties:	Angelo De Jong (Plaintiff) Workers Compensation Nominal Insurer (First Defendant) CPB Contractors Pty Limited (formerly known as Leighton Contractors Pty Limited) (Second Defendant)
Representation:	Counsel: V Jurisich (Plaintiff) M Strachan (First Defendant) S J Walsh (Proposed Second Defendant) Solicitors: Johnston Vaughan Solicitors Thompson Cooper Lawyers
File Number(s):	16/136853
Publication restriction:	Nil