Benajmin Dunn v Triple 'M' Fire Pty Limited
[2014] NSWSC 1849
•19 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: Benajmin Dunn v Triple 'M' Fire Pty Limited [2014] NSWSC 1849 Hearing dates: 18 December 2014 Decision date: 19 December 2014 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: (1) The trial date of 9 February 2015 is vacated subject to the plaintiff complying with order (2) below.
(2) The plaintiff has leave to file an amended statement of claim on or before 9 January 2015 nominating the proposed insurer or second defendant.
(3) The plaintiff is to pay the defendants costs of and incidental to the notice of motion.
(4) The plaintiff is to pay the defendant's costs thrown away by the vacation of the hearing date.
Catchwords: CIVIL LAW - application to vacate trial date - application to amend statement of claim -- desire to include second defendant - delay on both sides - proposed defendant in liquidation - requirement to identify insurer - relevant considerations - costs penalty Legislation Cited: Insurance Contract Act 1984 (Cth)
Limitation Act 1969 (NSW)
Civil Procedure Act 2005 (NSW)Cases Cited: Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 Category: Procedural and other rulings Parties: Benajmin Dunn (Plaintiff)
Triple 'M' Fire Pty Limited (Defendant)Representation: Counsel:
M Cranitch SC (Plaintiff)
F Austin (Plaintiff)
M McCulloch SC (Defendant)
Solicitors:
Byles Anjos Lawyers (Plaintiff)
HWL Ebsworth Lawyers(Defendant)
File Number(s): 2013/80101 Publication restriction: Nil
Judgment
These proceedings arise out of injuries said to have been suffered by the plaintiff on 15 January 2009 when he was working at a site manager on the renovation and refurbishment of Level 23 of the Law Courts building in Phillip Street Sydney. The plaintiff commenced proceedings against the defendant by statement of claim on 15 January 2013. His case is that the defendant (or its employees) was negligent in its operation or control of a fire sprinkling system in the premises. In circumstances of no moment for present purposes, an incident occurred with the sprinkler system as a result of which the plaintiff alleges that he suffered serious injuries.
On a brief perusal of the Court file, the proceedings appear to have taken a meandering course until a trial date was set on 30 June 2014. The trial was listed for five days commencing 9 February 2015. By notice of motion filed 9 December 2014 the plaintiff seeks orders that the hearing date of 9 February 2015 be vacated. It also seeks a second order which was cast in the following terms in the original notice of motion:
"That the plaintiff is given leave to amend the statement of claim joining the insurer of Spec F Pty Ltd under external administration to the proceedings in accordance with section 51 (2) of the Insurance Contracts Act 1984"
The second order sought in the original notice of motion is, on its face, misconceived because the section of the Insurance Contract Act 1984 (Cth) which is nominated has nothing to do with the circumstance in which an insurer may be joined to stand in the shoes of a company in liquidation. The second is concerned with cases where an [insured defendant] is dead or cannot be found. When this emerged during the course of the hearing of the motion yesterday, the plaintiff drafted an amended notice of motion over the luncheon adjournment wherein order 2A is as follows:
"Leave be granted to join Spec F Pty Ltd (under external administration) as second defendant to the proceedings pursue to section 500(2) of the Corporations Act 2001."
The defendant vigorously opposed the filing in court of this amended notice of motion. I allowed it in order to get to the heart of the orders sought in the notice of motion.
The plaintiff read an affidavit of Peter Anjos filed 9 December 2014 along with a number of annexures marked A to HH. The defendant, who opposes the vacation of the hearing date, relied upon an affidavit of Jeremy Marel along with annexures A, B and C.
As the argument commenced, it became clear that the material relied upon by the plaintiff in pursuing the application to vacate the hearing date was woefully inadequate. In particular, the documentation which it asserts led it to realise belatedly that a further defendant should be added to the proceedings were not before the court. Over objection, I allowed the plaintiff to tender two witness statements of a James Craigie. Mr Craigie was a workplace health and safety coordinator with Sydney Water at the relevant time. His statements became Exhibits A1 and A2. At the invitation of Senior Counsel for the defendant, the plaintiff also tendered an expert report by a David Swinson as Exhibit B.
Again, in consequence of the fact that it became clear as the argument progressed that the plaintiff's material was inadequate, Senior Counsel tendered (as Ex C) a document entitled "Amended Statement of Claim" which added a second defendant, "Spec F Pty Ltd (under external administration)".
I should emphasise that at all stages of this somewhat haphazard process, the defendant opposed the changes to the plaintiff's evidence and made substantial points to the effect that the application for vacation of the hearing date had been poorly prepared, that the material upon which the plaintiff relied was inadequate and that the plaintiff ought not to be allowed to patch together its evidence on the notice of motion as the argument progressed.
In spite of the cogency of the objections that were taken, I allowed the material to be tendered. I did so for the rather pragmatic reason that this application comes before me very close to the end of the law term when the case is listed to commence in the second week of the new law term in February next year. If I denied the plaintiff the ability to argue the substance, rather than the technicality, of its adjournment application, the Court would almost inevitably be confronted with a more properly prepared and formulated application for vacation of the hearing date on the very eve of the hearing next year. If justice demanded it, such an application would have to be granted. It is better for all concerned that the parties and the Court know whether the matter will be proceeding on that day.
Accordingly I allowed the plaintiff to tender material that had been cobbled together hurriedly and responsively and which is, to be blunt, in rather inadequate form. Senior Counsel for the plaintiff acknowledges that the "amended statement of claim" which became exhibit C needs a lot more work and that various important technicalities must be complied with before it can possibly hope to rely on such a document.
At the core of the argument before me is the question of whether the plaintiff should be allowed to join a second defendant at this belated stage. The defendant asserts that the plaintiff was, or ought to have been, aware of the existence of that second defendant from the very day of the incident giving rise to his injuries. The proposed second defendant is a company known as Spec F or Spectrum. Along with the (first or current) defendant Spectum had some responsibility for the servicing, or repair, or maintenance, or installation of the sprinkling system which is said to be the cause of the plaintiff's injuries. The precise details are not clear to me at this point. The defendant points me to incident report dated 15 January 2009 in which Mr Finlay, the Project Manager engaged by the defendant, noted:
"Once questioned the spectrum service tech agreed that he made a mistake in filling the isolated system."
The defendant points out that this document was emailed to (amongst others) the plaintiff himself. This is acknowledged in another document apparently authored by the plaintiff himself. This is an email dated 15 January 2009 at 4.40pm. The defendant submits that whatever followed over the course of the various interlocutory proceedings leading to the current application, the plaintiff cannot possibly sustain an argument that it was unaware of the involvement and possible negligence of the putative second defendant.
The defendant goes on to mount arguments as to why it is that the plaintiff ought not to be permitted to seek to join the second defendant. These include arguments based around the relevant limitation periods as well as the fact that the evidence appears to show that the company in question is in liquidation and the identity of its insurer is not known. The defendant says that what the plaintiff is truly trying to do is to ascertain the identity of any relevant insurer and join the insurer to the proceedings. The defendant submits that it is ready to proceed and that the plaintiff has left its run too late.
In the course of argument, it was disclosed that the medical conclave of experts has only partially been completed and that another conclave of relevant experts (those to do with the incident itself) is yet to be convened. The precise circumstances are not clear but the second defendant assures me that the matter is ready to proceed notwithstanding those matters and has expressed with real vigour and cogency its position that the matter should proceed. It argues essentially that if there is no substance in the second order sought and if that order falls away, there is no basis upon which the proceedings should be adjourned.
The plaintiff contends that the 1st order is necessary irrespective of the second order and that it is in the interest of justice that the matter be adjourned. It says that it has made relevant inquiries as to the identity of the relevant insurer and that it is very close to identifying the proposed second defendant.
One relevant consideration is the extent to which there would be duplication in the evidence if the plaintiff were to commence separate proceedings against the proposed second defendant. While some of the issues and evidence would be different, there would be a good deal of duplication in the evidence. I gather this would include the expert evidence both as to the medical injuries of the plaintiff (which I am told is hotly controversial) and the technical evidence surrounding the incident itself.
In spite of the appropriately circumspect responses of Senior Counsel for the defendant, it appears that the case and evidence presented on behalf of the current defendant may well assist the plaintiff in establishing the case it seeks to mount against the putative second defendant.
The plaintiff says that there is an exception to the limitation problem ("discoverability"): see ss 50C and 50D Limitation Act 1969 (NSW). I take the view that where there is controversy over a limitation issue that matter should not be resolved adversely to the plaintiff on an interlocutory application: compare, for example, Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514.
It is necessary to make a discretionary judgment based on a variety of factors which point in different directions. The exercise of discretion must be made within the bounds of the purposes described in the Civil Procedure Act 2005 (NSW) in section 56 (the just, cheap and quick resolution of the real issues) and 59 (the elimination of delay). Without being exhaustive the following matters are relevant to the exercise of the discretion:
(i) The length of time that has already elapsed between the incident and the hearing date.
(ii) The fact that the delay has been caused by both sides.
(iii) The likelihood that the case will not be heard until the middle of next year if it is adjourned.
(iv) The likelihood that the amount of court time that will be occupied by the case would be far greater if the plaintiff is forced or required to conduct the proceedings against the defendants separately.
(v) The possibility that the evidence of one defendant may be relevant to the plaintiff's case against the other defendant.
(vi) The desirability of all relevant issues being litigated in the course of the same hearing.
(vii) The fact that the expert conclaves are yet to be finalised.
(viii) The fact that the experts can be given significant notice (7 weeks) that the matter is not proceeding.
(ix) Whether any prejudice to the defendant can be ameliorated by an order for costs.
Senior Counsel for the plaintiff forcefully resisted the proposition that if the hearing was vacated it should be bound to pay the costs of the motion and the costs thrown away for the hearing next year. He relies on the chronology of the matter and asserts that the defendant has failed to comply with relevant disclosure obligations particularly surrounding the documents upon which the expert report (Ex B) was based. He claims that the statement of James Craigie dated 13/10/11 (Ex A2) ought to have been disclosed long ago and that it was only when this document was finally discovered that the plaintiff realised it should perusal at action against Spectrum.
On my assessment of the affidavit material and a perusal of the court file, it seems that both parties have from time to time been guilty of delay. More importantly, I do not how see how the plaintiff can resist the argument that it was (or ought to have been) aware of the possible negligence by the proposed second defendant from the very day of the incident. I have already referred to the incident report and email dated 15 January 2009 by which the plaintiff must have been aware of the possibility of negligence in respect of Spectrum.
For those reasons, there is no doubt in my mind that if the plaintiff obtains the relief it now seeks it must do so with a penalty as to cost.
However, even with the benefit of a costs order, the defendant resists the vacation of the hearing date. There is much force in the submissions that are made by but, in the end, I have concluded that the underlying principles which govern applications such as this, as well as those which govern the conduct of civil proceedings generally, militate in favour of granting of the plaintiff's application. I am particularly persuaded by the desirability of all relevant issues being litigated in the one court case and the likelihood that court time will be duplicated if the matter proceeds separately.
Having discussed the purpose of the conditional orders that I have in mind with counsel for both side, I make the following orders:
(2) The trial date of 9 February 2015 is vacated subject to the plaintiff complying with order (2).
(3) The plaintiff has leave to file an amended statement of claim on or before 9 January 2015 nominating the proposed insurer/second defendant.
(4) The plaintiff is to pay the defendants costs of and incidental to the notice of motion.
(5) The plaintiff is to pay the defendant's costs thrown away by the vacation of the hearing date.
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Decision last updated: 22 December 2014
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