Bridge v Coles Supermarkets Australia Pty Ltd - [2017] NSWSC 848

Supreme Court

New South Wales

Medium Neutral Citation: Bridge v Coles Supermarkets Australia Pty Ltd [2017] NSWSC 848
Hearing dates: 23 June 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Notice of Motion dismissed

Catchwords:
CIVIL PROCEDURE – pleadings – application for leave to file cross-claim – where cross-claim raises new issues – case management principles – orders previously made as to filing dates – previous opportunities to file cross-claim – previous disavowal of reliance on cross-claim – where issues in cross-claim able to be litigated in separate proceedings – where hearing date imminent – where cross-claim would require vacation of hearing date
COSTS – notice of motion dismissed – whether moving party liable for costs – where plaintiff not a respondent to proposed cross-claim – whether interest in retaining hearing date justifies costs order
Legislation Cited: Civil Liability Act 2001 (NSW) s 5D
Civil Procedure Act 2005 (NSW) s 56
Uniform Civil Procedure Rules 2005 (NSW) r 9.1
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Category: Procedural and other rulings
Parties: Larry Kenneth Bridge (Plaintiff)
Coles Supermarkets Australia Pty Ltd (First Defendant)
Canzon Pty Ltd (Second Defendant)
Representation:
Counsel:
I Roberts SC (Plaintiff)
D Priestly SC (First Defendant)
D A Lloyd (Second Defendant)
Solicitors:
Monaco Solicitors (Plaintiff)
McCabes Lawyers (First Defendant)
Clyde & Co (Second Defendant)

File Number(s): 2015/363960
Publication restriction: Nil

Judgment

A notice of motion was filed on 15 June 2017 by the first defendant in these proceedings, Coles Supermarkets Australia Pty Ltd, referred to in this judgment as “Coles”, seeking leave to file a proposed second cross-claim against the second defendant. In support of that application it relied upon two affidavits of Michael Cooper sworn 14 June 2017 and 20 June 2017 respectively. The proceedings concern a claim for damages for personal injury arising out of a slip and fall at a car park at premises on the corner of Harbour Drive and Earl Street, Coffs Harbour. This injury occurred in April 2014 and these proceedings were commenced in December 2015 by statement of claim suing both Coles, as the occupier of the premises, and the second defendant, Canzon Pty Ltd, as the owner of the car park.
Broadly, the statement of claim asserted that the defendants owed a duty to the plaintiff to keep the car park safe and to manage risks presented by slippery floors within the underground car park. There is a specific pleading of breach of duty of care directed at the defendants that the car park was not maintained to provide a safe walking surface with a minimum coefficient of friction of 0.4 when wet.
The application for leave to file the proposed second cross-claim has come before me as duty judge on Friday 23 June 2017 where the matter has been listed for hearing commencing Monday 3 July 2017. Accordingly, the application needed to be treated urgently and this judgment is…

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: [2017] NSWSC 848
Decision Date: 23 June 2017

CaseChat Overview and Summary

The case of Bridge v Coles Supermarkets Australia Pty Ltd involved a plaintiff who sought leave to file a cross-claim against the defendant, Coles Supermarkets Australia Pty Ltd, in the Federal Court of Australia. The plaintiff sought to raise new issues in the cross-claim that had not been previously disclosed in the proceedings. The defendant opposed the application, citing the plaintiff's previous disavowal of reliance on the cross-claim, the previous opportunities to file the cross-claim, and the imminent hearing date.

The court had to decide whether the plaintiff was entitled to file the cross-claim under the principles of case management and whether the defendant would be liable for costs if the application was dismissed. The court noted that the cross-claim raised new issues that could be litigated in separate proceedings and that the plaintiff was not a respondent to the proposed cross-claim. The court also considered whether the defendant's interest in retaining the hearing date justified an order for costs.

The court held that the plaintiff was not entitled to file the cross-claim as it would require the vacation of the hearing date. The court found that the plaintiff had not provided sufficient justification for the delay in filing the cross-claim and that the defendant was not liable for costs as the plaintiff was not a respondent to the proposed cross-claim. The court noted that the defendant's interest in retaining the hearing date was strong and that an order for costs was appropriate in the circumstances. The application for leave to file the cross-claim was dismissed.

The court made orders that the plaintiff's application for leave to file the cross-claim was dismissed, and that the defendant was not liable for costs. The court also noted that the plaintiff could pursue the cross-claim in separate proceedings if it wished to do so.

Orders