Collopy v Parks Victoria (Ruling No 1)

[2024] VCC 1929

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No.  CI-20-05851

PETER ANTHONY COLLOPY	Plaintiff
v
PARKS VICTORIA (ABN 95 337 637 697)	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Geelong
DATE OF HEARING:	29 and 30 July 2024
DATE OF RULING:	10 December 2024
CASE MAY BE CITED AS:	Collopy v Parks Victoria (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1929

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Workplace injury – negligence – breach of statutory duty– application to amend pleadings to add further particulars of negligence – extension of time previously granted for statute-barred claim

Legislation Cited:      Limitation of Actions Act 1958; County Court Civil Procedure Rules 2018; Civil Procedure Act 2010

Cases Cited:Collopy v Parks Victoria [2024] VCC 159; AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Namberry Craft Pty Ltd v Watson [2011] VSC 136; Matthews v SPI Electricity Pty Ltd [2012] VSC 70

Ruling:  Leave granted to the plaintiff to further amend the statement of claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S C Bailey with Ms S Fernando	Arnold Thomas & Becker
For the Defendant	Mr R Kumar with Ms J E Clark	Wisewould Mahoney

HER HONOUR:

Introduction

1The plaintiff, Mr Peter Collopy, claims to have suffered injuries in the course of his employment as a ranger for the defendant, Parks Victoria, between December 2006 and December 2013. 

2Mr Collopy alleges his injuries were caused by the negligence and/or breach of statutory duty of Parks Victoria.  He has brought this proceeding claiming pain and suffering damages.

3The matter came on for hearing as a jury trial on 29 July 2024.

4On that day, and prior to the empanelment of the jury, Mr Collopy sought to further amend the Statement of Claim to add additional particulars of negligence.

5Parks Victoria opposed the granting of leave to further amend the Statement of Claim.

6After hearing submissions from the parties, I gave leave for Mr Collopy to further amend the Statement of Claim.  Given the other issues which needed determination prior to empanelment, and so as not to delay the trial further, I indicated to the parties that I would provide my reasons in due course.  These are my reasons.

Background

7This proceeding has had a protracted history.

8The Writ and Statement of Claim were filed on 30 December 2020.

9The Defence was filed on 1 February 2021.  At paragraph 12 of its Defence, Parks Victoria raised a limitation defence.

10The proceeding was set down for trial in the Geelong Circuit commencing 18 October 2021, to be heard as a jury with an estimate of ten days.

11The matter was not ready to proceed in the Circuit commencing 18 October 2021.  It was re-listed in the Circuit commencing 26 April 2022.

12On 4 April 2022, the matter was taken out of the list for the Circuit commencing 26 April 2022 and re-listed in the Circuit commencing 25 July 2022. 

13On 4 April 2022, an order was also made that Mr Collopy issue and serve his application pursuant to s23A of the Limitation of Actions Act 1958 and affidavit within 28 days.

14On 8 June 2022, Mr Collopy filed a summons and affidavit in support, seeking an extension of time.

15On 25 July 2022, the Court ordered that Mr Collopy’s application for an extension of time was to be set down for mention in the next Geelong Civil Circuit.

16On 12 August 2022, the Court set down Mr Collopy’s s23A application for hearing in Melbourne on 26 October 2022.

17On 26 October 2022, Mr Collopy applied to adjourn the hearing of his s23A application. That application was granted.

18On 4 April 2023, the proceeding was set down for trial in the Geelong Circuit commencing 8 November 2023, to be heard as a jury with an estimate of ten days.

19On 2 November 2023, Mr Collopy filed an amended Summons seeking an order that paragraph 12 of the Defence be struck out, and, in the alternative, seeking an extension of time pursuant to s23A.

20Mr Collopy’s Summons was heard by Her Honour Judge Tran on 20, 27 and 28 November 2023, and 2 February 2024.

21On 27 November 2023, Mr Collopy was granted leave to file and serve an amended statement of claim.  The defendant was granted leave to serve any defence to the Amended Statement of Claim by 28 November 2023.

22The Amended Statement of Claim dated 22 November 2023 was filed on 27 November 2023. 

23Parks Victoria filed a Defence to the Amended Statement of Claim on 28 November 2023.

24On 10 April 2024, her Honour Judge Tran delivered her Judgment.[1]  Mr Collopy was granted an extension of time to 30 December 2020 within which to bring his claim.

[1]Collopy v Parks Victoria [2024] VCC 159

25On 2 May 2024, the proceeding was set down for trial in the Geelong Circuit commencing 29 July 2024.

26The proposed amendments to the Amended Statement of Claim were the addition of the following particulars of negligence:

“(aa) Failing to heed complaints as to the work duties and injuries sustained by him in the course of his employment.

PARTICULARS OF COMPLAINTS

i.From 2006 to in or around 2009, the Plaintiff complained to Will Cox, ranger in charge, on numerous occasions about his work duties including; needing assistance with work tasks, being under resourced, the lack of rotation in respect of the work duties; the amount of work the Plaintiff had to undertake.  Mr Cox ignored the Plaintiff’s complaints and told him to ‘prioritise’.

ii. From 2006 to in or around 2009, the Plaintiff complained to Will Cox about the lack [of] 4WD training.  Mr Cox told the Plaintiff not to engage with 4WD driving.

iii. From 2006 to in or around 2009, the Plaintiff complained to Will Cox that he was exhausted and physically was struggling with the work duties.

iv. From in or around 2010, the Plaintiff complained to Peter Byrne, the ranger in charge, about training in heights; installation of safety points on the rooves (sic).  Mr Byrnes told the Plaintiff not to work on the rooves (sic), there is no budget for training or attachment points but to get [the] job done.  The Plaintiff told Peter Byrne on multiple occasions words to the effect that he could not ‘keep … [this] up, this is too physically demanding for one person’.

v.The Plaintiff complained to Trevor Dess, District Chief Ranger, resourcing, too much work for the number of people rostered; need for training.  Mr Dess’ response was that there was no budget for training and that the Plaintiff would have to wait.  He also told the Plaintiff that he could leave Parks Victoria.

vi. The Plaintiff complained to Rod Newnham, Regional Manager West Region about being left alone to work in winter on the Great Ocean Walk without any assistance.  Mr Newnham responded saying that nothing happens in winter.

vii.The Plaintiff lodged a number of incidents (sic) reports:

a.Apollo Bay minor injury register 2008 – see entry dated 16 July 2018 (sic);

b.17 July 2008 Incident/hazard Injury Report and investigation see entry dated 17 July 2008;

c.Apollo Bay minor injury register 2010 – see entry 27 May 2010;

d.Apollo Bay minor injury register 2010 – see entry 5 September 2020;

e.Incident Summery Report dated 27 February 2011;

f.OHS Report dated 27 February 2011.”

(emphasis added)

27The reason for the late proposed amendment was submitted to be a forensic decision made by different counsel. 

28Leading Counsel for Mr Collopy submitted that the proposed amendment did not take Parks Victoria by surprise as in his Answers to Interrogatories, Mr Collopy had referred to complaints he had made. 

29Further, it was submitted that there could be little or no prejudice to Parks Victoria as evidence of complaints would be relevant on the current pleadings in any event as at paragraph 11 of its Defence, Parks Victoria pleaded the following particulars of contributory negligence:

“PARTICULARS OF CONTRIBUTORY NEGLIGENCE

a) If the Plaintiff’s duties were too difficult for him (which is denied) failing to advise the Defendant of that fact so that assistance or alternative duties could be provided.

b) Failing to seek assistance.

c) If supervision was inadequate (which is denied) then failing to notify the Defendant of that fact.

d) If the work caused the Plaintiff any difficulty then failing to notify his superiors of same.

e) If the Plaintiff was incapable of performing the work he was carrying out, which is denied, then failing to inform the Defendant of same.

f) If the work was causing the Plaintiff difficulty and/or injury then:

iFailing to report or complain of same

iiFailing to seek assistance

iiiFailing to promptly cease those duties

g) If the Plaintiff knew or believed that the system of work was not safe (which is denied) then failing to notify the Defendant of the fact.

h) If assistance was inadequate (which is denied) then failing to request adequate assistance.

i) If the Plaintiff knew or believed that he was required to lift and manoeuvre an excessive weight (which is denied) then failing to notify the Defendant of that fact.

j) If the Plaintiff knew or believed that the plant and equipment were not safe or suitable (which is denied) then failing to request or seek replacement of same.”

30Parks Victoria opposed the amendment on the following bases:

(a)   Many of the allegations were insufficiently particularised;

(b)   The amendments were very late;

(c)   Parks Victoria would be prejudiced.  Mr Newnham, Mr Dess and Mr Byrne were not on Parks Victoria’s proposed witness list, and it had not intended to call them as witnesses.  Parks Victoria had not conferred with Mr Newnham and was unable to contact him;

(d) In the s23A application, Mr Collopy’s pleaded case contained no reference to any complaints. During the hearing of that application, Parks Victoria specifically clarified whether there was to be any reliance on complaints, and there was not. It was submitted that the s23A application may have been determined differently if alleged complaints had formed part of Mr Collopy’s case;

(e)   On 29 May 2024, Parks Victoria’s solicitor wrote to Mr Collopy’s solicitors in the following terms; “In light of the 2023 hearing and judgement, please note the defendant will run the trial on and hold the plaintiff strictly to the pleadings in their current form”.[2]

(f)    To seek to rely upon complaints, where it could not be said that this was new information which had come to light, was an “inappropriate course potentially amounting to an abuse of process”.

[2]        Transcript (“T”) 6

Principles relevant to an application to amend

31The principles relevant to an application of this kind are well known and were not in dispute. 

32Rule 36.01 of the County Court Civil Procedure Rules 2018 relevantly provides:

“36.01    General

(1)     For the purpose of—

(a) determining the real question in controversy between the parties to any proceeding; or

(b)     correcting any defect or error in any proceeding; or

(c)     avoiding multiplicity of proceedings—

the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. 

…

(6)     Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party’s claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.

… .”

33In AON Risk Services Australia Limited v Australian National University,[3] the High Court considered the factors relevant in an application for leave to amend.  I respectfully adopt the summary of those relevant factors set out by Vickery J in Namberry Craft Pty Ltd v Watson[4] as follows:

“… there are to be limits placed upon re-pleading.  The High Court in Aon referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading.  The High Court made reference to the following factors:

(a) Whether there will be substantial delay caused by the amendment;

(b)The extent of wasted costs that will be incurred;

(c)Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d)Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.”

[3] (2009) 239 CLR 175

[4][2011] VSC 136 at paragraph [38]

34In Matthews v SPI Electricity Pty Ltd (Ruling No 6),[5] J Forrest J noted that the above list of factors was not exhaustive.  An additional factor was that an amendment would not be allowed if it was so obviously futile that it would be liable to be struck out if it appeared in an original pleading.

[5] [2012] VSC 70 at paragraph [33]

35I am also required to take into account the objects specified by s9(1) of the Civil Procedure Act 2010.

Analysis

36The circumstances in which this amendment application arose were most unsatisfactory.

37At the circuit callover on 18 July 2024, both parties indicated the matter was ready to proceed in this circuit.[6]  No suggestion of amendment was raised by Mr Collopy.

[6]Apart from an issue of some additional discovery which is not presently relevant

38By email dated 24 July 2024, the Court asked the parties to advise whether there were any preliminary issues to be dealt with prior to empanelment.  Mr Collopy’s solicitors did not raise any issue.

39It was not until the matter was called on for trial on 29 July 2024 that Leading Counsel for Mr Collopy indicated an intention to seek leave to further amend the Statement of Claim.

40The only reason provided for the late amendment was that different counsel were now briefed to appear on behalf of Mr Collopy and a different forensic decision had been reached as to the need to plead the complaints.

41Leading Counsel for Parks Victoria made submissions as to the efforts made by his instructing solicitors to contact Mr Byrne, Mr Dess and Mr Newnham.  Leading Counsel for Mr Collopy objected to those matters being considered without evidence of them.  After hearing the argument, and prior to the provision of this Ruling, the pertinent matters which were the subject of submissions were put in evidence in an affidavit from Ms Ashley McDonald, solicitor for the defendant, sworn on 30 July 2024.

42I was of the view that an amendment should not be permitted which might lead to an adjournment of the trial given that:

(a)   this was a very late application to amend on the first day of the trial;

(b)   the events which are the subject of the proceeding occurred many years ago; 

(c)   the proceeding had been on foot for more than three years and this was its fifth listed trial date. 

43The ultimate question in determining such an application is what the justice of the case requires. 

44In my view, the proposed particulars were sufficiently particularised, bearing in mind that only a summary form of the material facts is required.

45The s23A application was determined based on pleaded causes of action in negligence and breach of statutory duty. Those remain the pleaded causes of action. It is important to note that the proposed amendment does not add a new cause of action, merely additional particulars of the existing cause of action. However, I am conscious that this is an application to amend a Statement of Claim in circumstances where Mr Collopy has had time extended.

46Parks Victoria did not assert that Mr Collopy had at any stage represented that he did not regard himself as free to seek to amend his pleading at some later time. 

47The statement by Parks Victoria’s solicitors that it would hold Mr Collopy strictly to his pleading did not take the matter any further. 

48Parks Victoria submitted that the proposed amendments might necessitate further discovery.  I do not accept that contention.  I bear in mind that the question of whether complaints were made or not is not a new matter.  As set out above, Parks Victoria pleaded in detail that Mr Collopy made no complaints.  Parks Victoria must have had a proper basis for that pleading. 

49In the circumstances, in my view, Mr Collopy’s reliance upon various oral complaints as a particular of negligence would be unlikely to cause any significant prejudice to Parks Victoria.  Insofar as written incident reports were pleaded, these were already discovered in the proceeding.

50Upon consideration of the various relevant factors, and in the exercise of my discretion, I determined that it was in the interests of justice for Mr Collopy to have leave to further amend the Statement of Claim to add the proposed particulars at paragraph 8(aa) except for the allegation of complaints to Mr Newnham at paragraph 8(aa)(vi). 

51I did not permit that part of the proposed amendment, given that Parks Victoria were unable to contact Mr Newnham.  To allow that part of the proposed amendment would likely have either necessitated an adjournment or caused an irreparable element of unfair prejudice to Parks Victoria.

52I find that the amendment I have permitted would not lead to an adjournment of the trial and would not cause unfair prejudice to Parks Victoria.  It would enable the real questions in controversy between the parties to be determined.

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