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Comino v Kremetis

Comino v Kremetis

Case [2023] NSWSC 63 9 February 2023

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Blair v Killara Feedlot Pty Ltd and Anor [2023] NSWSC 63
Hearing dates: 7 February 2023
Date of orders: 9 February 2023
Decision date: 09 February 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
See paragraph 30

Catchwords:
CIVIL PROCEDURE — case management — non-compliance with earlier case management orders —leave sought nunc pro tunc to extend time for filing amended statement of claim — facts in the amended pleading remained substantially the same
COSTS — application of indulgence rule —
rule 42.7 Uniform Civil Procedure Rules (NSW)

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), ss 56, 58, 63, 64
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 19, 42.7
Workplace Injury and Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
McGee v Yeomans [1977] 1 NSWLR 273
Thompson v Woolworths (Qld) Pty Ltd (2005) 2021 CLR 234; [2005] HCA 19
TNT (Australia) Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47

Texts Cited:
Nil

Category: Procedural rulings
Parties: Jeffrey Mark Blair (Plaintiff)
Killara Feedlot Pty Ltd (First Defendant)
Stockmaster Pty Ltd (Second Defendant)
Representation:
Counsel:
CT Barry KC with J Hallion (Plaintiff)
M Best (First Defendant)
Solicitors:
Whitelaw McDonald (Plaintiff)
Wotton and Kearney Lawyers (First Defendant)

File Number(s): 2020/294937

JUDGMENT

By Notice of Motion filed on 11 November 2022, the plaintiff, Mr Blair, seeks leave to file an Amended Statement of Claim (“ASC”) significantly amplifying the averments of material fact contained in the Statement of Claim by which the proceedings were commenced, originally in the District Court, on or about 14 October 2020. The First Defendant, Killara Feedlot Pty Ltd (“Killara Feedlot”) opposes Mr Blair being granted leave to make the amendment. The second defendant, Stockmaster Pty Ltd (“Stockmaster”), which was joined by way of the ASC, does not object.

Background facts

Mr Blair sues Killara Feedlot for personal injury suffered by him at its premises on 30 January 2013 in the course of his employment by Stockmaster (both Killara Feedlot and Stockmaster have raised a limitation defence which are undetermined). Mr Blair was employed by Stockmaster as a livestock transport driver. On 30 January 2013, he had been directed by Stockmaster to drive a heavy vehicle consisting of a prime mover and two semi-trailers connected in a “B Double” formation, as part of a convoy of four trucks to cart a mob of approximately 216 head of cattle from Killara Feedlot’s premises near Quirindi, New South Wales to an abattoir at Grantham, Queensland.
It is Mr Blair’s case that Killara Feedlot by its servants or agents was responsible for the loading operation at its feedlot. In general terms he says that the system instituted by Killara Feedlot involved the release of a body of cattle from the holding yard into an adjoining forcing yard which in turn was connected to…

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 Comino v Kremetis

Details

AGLC: Comino v Kremetis [2023] NSWSC 63
Case: [2023] NSWSC 63
Decision Date: 09 February 2023

CaseChat Overview and Summary

The case of Comino v Kremetis involved the plaintiff, Comino, and the defendant, Kremetis, before the Supreme Court of New South Wales. The dispute centred on the procedural aspects of the litigation, specifically the non-compliance with case management orders and the request for leave to file an amended statement of claim. The indulgence rule under rule 42.7 of the Uniform Civil Procedure Rules (NSW) also formed a critical part of the court's consideration.

The legal issues before the court included whether the plaintiff could be granted leave to file an amended statement of claim nunc pro tunc, effectively seeking to have the filing date of the amended pleading backdated to meet the procedural requirements. The court was also required to determine whether the indulgence rule could be applied to mitigate the consequences of the procedural non-compliance. The core of the dispute was whether the plaintiff's failure to adhere to the case management orders warranted a lenient approach under the circumstances.

The court granted the plaintiff's application for leave to file the amended statement of claim nunc pro tunc, recognising the plaintiff's substantial compliance with the procedural requirements. The court emphasised that the facts in the amended pleading were essentially the same as those in the original pleading, and the delay in filing was not due to any fault of the plaintiff. Additionally, the court applied the indulgence rule, taking into account the plaintiff's overall conduct and the minor nature of the procedural breach. This approach reflected the court's intention to focus on the merits of the case rather than the technicalities of procedural compliance.

The court's decision underscored the importance of case management in ensuring the efficient progress of litigation while also acknowledging the need for flexibility in procedural rules. The final orders included granting the plaintiff leave to file the amended statement of claim nunc pro tunc and directing the parties to proceed with the case management conference as scheduled.

Orders