Borg v Scentre Shopping Centre Management Pty Ltd - [2023] NSWSC 1389

Supreme Court

New South Wales

Medium Neutral Citation: Borg v Scentre Shopping Centre Management Pty Ltd [2023] NSWSC 1389
Hearing dates: 26 October 2023
Date of orders: 26 October 2023
Decision date: 15 November 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
Reasons for orders made 26 October 2023:
(1) Proceedings dismissed pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 13.4;
(2) The plaintiff to pay the defendant’s costs of the proceedings.

Catchwords:
CIVIL PROCEDURE – Summary disposal – Application to dismiss proceedings – Where plaintiff sought compensation for workplace injury – Where plaintiff directed to amend statement of claim on two prior occasions – Where no realistic hope plaintiff would comply with rules if granted adjournment

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 13, 14, 15

Cases Cited:
Lazarus v Keneally [2023] NSWSC 349
Troy Borg v Scentre Shopping Centre Management Pty Ltd [2023] NSWSC 338

Category: Principal judgment
Parties: Troy Borg (Plaintiff)
Scentre Shopping Centre Management Pty Ltd (Defendant)
Representation:
Counsel:
In person (Plaintiff)
L Pryde (Sol) (Defendant)
Solicitors:
Mills Oakley (Defendant)

File Number(s): 2022/290420

JUDGMENT

HIS HONOUR: By a notice of motion filed on 13 September 2023, the defendant seeks orders dismissing the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and that the plaintiff pay the defendant’s costs of the proceedings. At the hearing of the motion, the plaintiff appeared without the benefit of legal representation. The orders sought were made. These are my reasons for making those orders.
The defendant sought to read an affidavit of Carolyn Nguyen, who is the assisting solicitor to the solicitor for the defendant, sworn on 12 September 2023, which provides a history of the matter and has annexed to it copies of the relevant filings and correspondence. The plaintiff’s absence of representation impeded his ability to indicate whether he objected to the affidavit being read. I read the affidavit with the exception of the final two paragraphs, which I will treat as submissions. The history in the affidavit is to the following effect.
On 5 September 2022, the plaintiff filed a statement of claim in this Court against the defendant as the first defendant and Australian Guardian Services Pty Ltd as the second defendant. The essence of the claim was an allegation that the plaintiff, while in the employment of the second defendant as a security guard, slipped and fell in the loading dock area of Hornsby Westfields, thereby suffering an injury. On 30 June 2016, he received a “suspension of employment letter”. On 4 July 2016, he filed an “injured register form” reporting that his “left ankle, back, lower back, back of the neck” were injured. Later the same day after filing the report he received a “dismissal letter”. Thereafter the plaintiff set out certain consultations he attended with medical specialists nominated by the second defendant’s insurer. A statement of particulars was not filed.
By a letter dated 21 November 2022, the defendant’s solicitor wrote to the…

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 Borg v Scentre Shopping Centre Management Pty Ltd

Details

AGLC: Borg v Scentre Shopping Centre Management Pty Ltd [2023] NSWSC 1389
Case: [2023] NSWSC 1389
Decision Date: 15 November 2023

CaseChat Overview and Summary

The case before the court involved a plaintiff, Borg, who sought compensation for a workplace injury sustained at Scentre Shopping Centre. Borg's proceedings were under threat of dismissal due to repeated failures to comply with procedural requirements, including two prior orders to amend his statement of claim. The court was tasked with determining whether the plaintiff's application for an adjournment should be granted, allowing further opportunity to comply with procedural rules.

The central legal issue was whether there was a realistic prospect that Borg would comply with the court's directions if granted another adjournment. The court considered the plaintiff's history of non-compliance, the complexity of the issues involved, and the potential for prejudice to the defendant if the proceedings were further delayed. It was also noted that Borg had been provided with multiple opportunities to correct his procedural shortcomings, yet had failed to do so.

In its reasoning, the court held that there was no realistic hope that Borg would comply with the court's procedural requirements if granted another adjournment. The court found that the plaintiff had not demonstrated a sufficient understanding of the legal process, nor had he provided any compelling reason to believe that he would be able to amend his statement of claim in the future. Consequently, the court dismissed the proceedings without a hearing, concluding that further delay would be unjust and inefficient. The dismissal was final, barring Borg from re-instituting the same claim.

Orders