Blaskovic v ABB Engineering Construction - [2001] NSWSC 1008

Reported Decision:
[2001] NSWSC 1008
[2001] ACL Rep 260 NSW 9

New South Wales

Supreme Court

CITATION: Blaskovic v ABB Engineering Construction & Ors [2001] NSWSC 1008

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20858 of 1997

HEARING DATE(S): 7 November 2001

JUDGMENT DATE:
9 November 2001

PARTIES :

Jakov Blaskovic by his tutor The Protective Commissioner for The State of New South Wales (Plaintiff)
v
ABB Engineering Construction Pty Ltd (Formerly known as ABB EPT Construction Pty Ltd) (First Defendant)
Regal Scaffolding Pty Ltd (Second Defendant)

JUDGMENT OF: Master Malpass

COUNSEL : Mr J Clyne (Plaintiff)
N/A (First Defendant)
Mr G Wilson (Second Defendant)
Mr M Fordham (Proposed Third Defendant)

SOLICITORS: Turner Freeman (Plaintiff)
Moray & Agnew (First Defendant)
Dennis & Company (Second Defendant)
Coleman & Greig (Proposed Third Defendant)

CATCHWORDS: Application to add a third defendant and amend Statement of Claim - delay and explanation for delay.

LEGISLATION CITED: N/A

CASES CITED: N/A

DECISION: See Paragraph 17.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

20858 of 1997

Master Malpass

FRIDAY 9 NOVEMBER 2001

Jakov Blaskovic by his tutor The Protective Commissioner for The State of New South Wales v ABB Engineering Construction Pty Ltd (Formerly known as ABB EPT Construction Pty Ltd) & Ors

Judgment

: The proceedings were commenced by Statement of Claim filed on 22 September 1997. The plaintiff suffered severe personal injury in a work incident that took place on 5 October 1994. The injury was suffered when the plaintiff fell whilst descending from scaffolding (via a ladder) at a Shell oil refinery site at Clyde. He brings a claim for damages arising out of that personal injury.

2 Two defendants were named in the Statement of Claim. The first defendant was his employer. The second defendant had erected the scaffolding. In June 2001, the second defendant brought a Cross-Claim against Shell Australia Limited (the proposed third defendant).

3 On 22 June 2001, the plaintiff filed a Notice of Motion. It seeks leave to file an Amended Statement of Claim which joins the proposed third defendant as a party to the proceedings. The proposed amended process seeks to proceed against the proposed third defendant both as occupier of the premises upon which the injury took place and as the head contractor.

4 The application was heard on 7 November 2001. It was supported by an affidavit of Terence Louis Goldberg (the solicitor for the plaintiff). It has a number of exhibits. This was the only evidence placed before the court.

5 Not surprisingly, the existing defendants consent to the application. It is opposed only by the proposed third defendant.

6 The proposed third defendant opposes the application on the grounds of delay and lack of explanation for the delay.

7 The proceedings have now been on foot for about four years. The incident itself took place about 7 years ago.

8 The proposed third defendant is now a party to a Cross-Claim. As things presently stand it can expect…

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.

Continue reading Blaskovic v ABB Engineering Construction

Details

AGLC: Blaskovic v ABB Engineering Construction [2001] NSWSC 1008
Case: [2001] NSWSC 1008
Decision Date: 9 November 2001

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Blaskovic, the plaintiff, brought an application against ABB Engineering Construction, the first defendant, and sought to add a third party, AGL Energy, as a defendant and amend the statement of claim. The dispute involves claims related to a project for the construction of a gas plant, where the plaintiff alleges negligence and breaches of contract by the defendants. The primary issue before the court was whether the application to add a third defendant and amend the statement of claim should be granted, considering the delay in making the application and the lack of a satisfactory explanation for this delay.

The court examined the principles governing applications to add a third party and amend pleadings, particularly the importance of timeliness and the necessity of a reasonable explanation for any delay. The plaintiff argued that the addition of AGL Energy was crucial to the case as it would address the full scope of liability for the alleged negligence and contract breaches. The defendants opposed the application, citing the substantial delay and the absence of a compelling reason for this delay. The court had to weigh the merits of the application against the potential prejudice to the defendants and the importance of finality in litigation processes.

The court concluded that the delay in making the application was significant and the plaintiff had not provided a satisfactory explanation for this delay. The court noted that while the addition of AGL Energy might be relevant to the case, the lack of a reasonable explanation for the delay and the potential prejudice to the defendants outweighed the merits of the application. Consequently, the court dismissed the application to add a third defendant and amend the statement of claim. The plaintiff was ordered to pay the defendants' costs of the application, which were assessed on an indemnity basis.

Orders