Comino v Kremetis

[2023] NSWSC 63

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

1. 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

2. 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.

3. 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 a “race” or loading ramp. The race was cordoned from the forcing yard by a rubber skirt providing a visual obstruction to the cattle and a slide gate which physically separated the forcing yard from the race. During the loading operation, Mr Blair stood outside the fenced race while the cattle allocated to his vehicle were loaded. The loading involved Killara Feedlot’s stockman opening the slide gate and herding the cattle into the race by the use of cattle prods and the like to encourage them up the ramp and into the pens on the trailers.

4. Mr Blair’s rig was divided into a series of pens. During the loading operation it was necessary for him to access the trailers through a “man gate” located at the side of the race near the rig’s tailgate. Each pen within the rig had to be loaded separately and Mr Blair had to re-enter the race through the man gate to close off each pen in turn after it had been loaded.

5. After the final pen was loaded, Mr Blair re-entered the race through the man gate, which closed behind him as it was spring loaded. As he was starting to secure the final pen by closing the tail gate of his second trailer he heard a shout, “Another one coming”. He realised that an additional steer had been permitted to enter the race and that he was in a position of peril. He attempted to exit the race via the man gate, but as he did so the man gate was sideswiped by the “rogue steer”, crushing Mr Blair between the man gate and gate post whereby he suffered serious personal injury.

The formulation of the plaintiff’s case

6. From the original Statement of Claim it is tolerably clear that the plaintiff’s case against Killara Feedlot was that it was the occupier of the feedlot responsible for the loading operations and that it owed him a duty of care as an occupier of the premises in the expanded sense discussed by the unanimous High Court in Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [23]–[27]. Questions of breach, of course, are governed by the provisions of the Civil Liability Act 2002 (NSW). Although the relevant precautions that reasonable care required were said to amount to some 30-odd matters, essentially the focus of the breach question was on the circumstance of the entry into the race of the “rogue steer” while Mr Blair was in the process of securing his truck. In this regard, in general terms, from the pleading the case was put in various ways: a failure to institute and maintain a safe system of loading the cattle; failure to provide safe plant and equipment for the loading operation in as much as the sliding gate separating the race from the forcing yard was in ways specified in the pleading defective and the man gate by reason of its design and installation did not provide a safe emergency exit from the race in the event of the entry into the race of a rogue or runaway steer; or, alternatively, vicarious liability for the casual negligence of one of Killara Feedlot’s stockmen in allowing the steer into the race while Mr Blair was closing the gates of his truck.

7. Mr Blair’s case against Stockmaster is essentially for breach of its non-delegable duty owed to him as his employer, based on the fault of Killara Feedlot: TNT (Australia) Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 at [44].

Some procedural background

8. Killara Feedlot filed its defence on 5 March 2021. By the service of a Pre-Filing Statement of 4 May 2021, Mr Blair initiated the necessary procedural preconditions for bringing a claim for work injury damages against Stockmaster under Division 3, Part 6, Chapter 7, Workplace Injury and Management and Workers Compensation Act 1998 (NSW). After the filing of Stockmaster’s Pre-Filing Defence a mediation was conducted under s 318A in which Killara Feedlot participated, but the claims were not resolved.

9. At a directions hearing on 2 February 2022, Registrar Jones made an order, inter alia, “[Mr Blair] to file and serve an Amended Statement of Claim joining his employer, Stockmaster Pty Limited to the proceedings by 24 February 2022”. Other procedural directions were made. Mr Blair did not comply with that order until 8 June 2022 when he served the ASC, the subject of the present dispute, which in addition to joining Stockmaster, as I have said, amplified the claim against Killara Feedlot.

10. Although the material facts constituting Mr Blair’s alleged cause of action, in my judgment, remained substantially the same, (see McGee v Yeomans [1977] 1 NSWLR 273 at 284D–285B, per Mahoney JA) they were pleaded in much greater detail. Reliance was placed upon an industry standard referred to as New South Wales Livestock Loading Scheme (“NSWLLS”) incorporating a Livestock Loading Calculator (“LLC”). The relevant articulation of reasonable precautions increased from 41 to 53 sub-paragraphs. And rather than the occupier’s duty, Killara Feedlot was said to owe Mr Blair the duty owed by a host employer to a temporary worker under its supervision and control as discussed in TNT v Christie at [70].

Killara Feedlot’s objection to the amendments

11. In her affidavit sworn on 31 January 2023, Ms Natalie Bountros, the solicitor with the carriage of the matter on behalf of Killara Feedlot, made clear that her client objected to the amendment because it had been made in breach of the orders made by the Registrar on 2 February 2022 and leave had not been granted for an amendment to the pleadings so far as they concerned Killara Feedlot. Ms Bountros, by way of submission, as I understood it, asserted that Killara Feedlot was prejudiced by the costs incurred in defending the case prior to the amendment and if leave were granted to permit the amendment it would incur additional costs of investigating “new facts and matters alleged” reinterviewing necessary witnesses, carrying out further investigation and preparing a new defence. It was put that Killara Feedlot would essentially have to “start again”.

12. In his written submissions Mr M Best of Counsel submitted that the ASC “fundamentally altered the claim against Killara”. He pointed to the change from an occupier’s duty to a host employer’s duty and said new factual allegations were made. Learned counsel submitted that these were “a far cry” from the allegations contained in the original Statement of Claim. He also pointed to the ambiguity in the pleading of paragraph 11 of the reasonable precautions repeated as allegations of negligence. Counsel submitted that it was unclear whether these matters related to Killara Feedlot or Stockmaster. Mr Best pointed to the delay in propounding the ASC. He repeated, with respect, submissions advanced by his instructing solicitor that the advantage of “certain tactical and strategic decisions” made so far would be lost, it would be necessary for investigations to start again, and costs will have been wasted. The ambiguity in the pleading made it difficult to formulate a cross claim for statutory contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) against Stockmaster.

13. In answer to a question of mine in oral argument, Mr Best identified the reliance upon the LLC as a new matter requiring further investigation. With respect no other matters were identified.

Argument for Mr Blair

14. In written submissions, Mr CT Barry KC, who appears for Mr Blair with Mr J Hallion of Counsel, pointed out that at the time the ASC was filed, the plaintiff’s evidential statement and the expert report of Mr Neil Adams of 9 December 2021 had been served on Killara Feedlot. Thus, Killara Feedlot could not be in any doubt as to the factual case it is required to meet. It was also submitted that the risk of harm and circumstances of the plaintiff’s injury pleaded in the original Statement of Claim were unchanged. Senior Counsel acknowledged that the reliance upon TNT v Christie was new, but the applicability of this authority did not require any averment of new or additional facts. The amplification of the case against Killara Feedlot was said to be required by rule 15.1(1) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to enable Killara Feedlot to identify the case it was required to meet. It was “conceded” that the ASC was “around 4 months late” and leave was required to cure “the irregularity” under s 63(3) Civil Procedure Act 2005 (NSW). Section 64 provided ample power for the Court to allow the amendment and subject to
    s 58, s 64(2) applied to require the amendment for the purpose of determining the real questions raised in the proceedings. Section 58 required the Court for the management of the proceedings to permit any amendment necessary in accordance with the dictates of justice.

15. It was submitted that there had been no significant change to the case and that Killara Feedlot was not prejudiced.

Determination

16. UCPR 19.1(1) permits an amendment without leave within 28 days of the Statement of Claim having been filed unless a date has been fixed for trial. This rule is inapplicable to the present circumstances. UCPR 19.3 has the effect that an order giving leave to amend ceases to have effect on the expiration of the time specified in the order within which the amendment must be made. This rule is applicable to the order made by the Registrar on 2 February 2022 giving leave to join Stockmaster as a defendant. However, as Stockmaster has since filed a defence, it must be taken to have waived any right to object to the late filing of the ASC so far as concerns it. For the avoidance of doubt, I will treat Mr Blair’s failure to comply with the order as an irregularity for the purpose of s 63 and allow the late amendment so far as Stockmaster is concerned.

17. I accept Killara Feedlot’s argument that as the purported amendment made by Mr Blair to his pleading against it is not made in accordance with UCPR 19.1, Mr Blair requires leave under s 64(1)(b) to maintain the ASC so far as it concerns Killara Feedlot.

18. In my opinion leave ought to be granted. First, for the purpose of s 58, I am satisfied that a grant of leave accords with the dictates of justice as required by s 58. For this purpose, I have had regard to the requirements of s 58(2). Although there has been some delay on the part of Mr Blair since the commencement of the proceedings, I am not satisfied that there has been any relevant lack of expedition on his part since then. While there remains an issue about whether Mr Blair’s cause of action as against either defendant is time barred, I am satisfied allowing the amendment facilitates the just, quick and cheap resolution of the real issues for the purpose of s 56. No hearing date has yet been fixed. And all parties will have further opportunity to take the interlocutory steps each considers necessary for the proper preparation of his or its own case.

19. I am satisfied that the degree of injustice affecting Mr Blair by refusing the amendment is greater than any degree of injustice flowing to Killara Feedlot by allowing it, except in one possible respect. That respect relates to the possible application of the NSWLLS and LLC to the loading operations. As I understand the ASC, it is not suggested that these matters are relevant to the question of breach, although they may be relevant to the question of the content, scope and nature of the duty undoubtedly owed by Killara Feedlot to Mr Blair: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [49]; always bearing in mind that all duties of care recognised by the law of negligence are to be discharged by the exercise of reasonable care only. Given the effluxion of time since Mr Blair’s cause of action arose, raising the NSWLLS and LLC for the first time now may give rise to prejudice to Killara Feedlot which cannot be overcome by an opportunity to investigate the applicability of those matters to loading operations in January 2013. I will allow Killara Feedlot liberty to apply to strike out that part only of the ASC if this so proves.

20. Otherwise, I am satisfied that while pleaded more elaborately than the original Statement of Claim, the ASC does no more than raise substantially the same cause of action. It is evident from Ms Bountros’s affidavit that a full factual investigation was able to be carried out and relevant witnesses identified and interviewed. I am not satisfied that the more fulsome pleading of the material facts creates any significant forensic prejudice such that a fair trial cannot be had.

21. So far as Mr Blair’s attempt to recast the nature of the duty owed in accordance with TNT v Christie, rather than Thompson v Woolworths, as there is no change in the material facts underpinning Mr Blair’s action in negligence, I am of the view that this is a pure question of law, albeit one which may be fact-sensitive, that can be readily met by Killara Feedlot without prejudice. I will allow myself the observation that in the case of an industrial accident of this type there was always likely to be argument at the trial about the nature, scope and content of the duty owed, if not about its existence.

22. Further I am not satisfied that there is any prejudice flowing to Killara Feedlot because of costs incurred in carrying out the earlier full factual investigation into the circumstances of Mr Blair’s accident. As there is no change to the basic facts, those costs are not wasted. But such further investigations as may be required in some respects to meet aspects of the amendment are likely to be limited to the question I have identified concerning the NSWLLS and the incorporated LLC.

23. I accept that a party to adversarial litigation may wish to develop a “strategy” or adopt “tactical” positions for the purpose of furthering its own case and defeating the case of its opponent. Fundamentally, however, the dictates of justice are not concerned with such matters. While the outcome of litigation may well involve what ordinary people regard as “winners” and “losers” such considerations are not relevant to either the dictates of justice for case management purposes or the exercise of judicial power to quell civil controversies. That one’s strategy or tactics have been disrupted is not relevantly in the way of “forensic prejudice”.

24. I can see no difficulty with Killara Feedlot pleading a cross claim for statutory contribution by Stockmaster. This ought to be an elementary document.

Conclusions

25. I will grant leave to Mr Blair to file an ASC which accords with the document irregularly filed on 8 June 2022. However, it seems to me that Mr Best is correct to submit that there is a degree of ambiguity arising out of the precautions specified in paragraph 11 to the extent to which it is not entirely clear to which defendant Mr Blair refers to from time to time. As I understand it, each of the references are said to be to Killara Feedlot and Stockmaster’s liability depends upon proof of fault on the part of Killara Feedlot given the non-delegable nature of the employer’s duty Stockmaster owes to Mr Blair. However, this should be made clearer in the drafting.

26. I will reserve liberty to apply to Killara Feedlot in respect of the NSWLLS and LLC if upon further investigation it finds itself prejudiced in meeting those averments. These matters appear not to be referred to in Mr Adams’s report.

27. Otherwise, I will make orders for the further preparation of the matter.

Costs

28. Several submissions were directed to the question of the appropriate costs order depending upon the outcome. As substantially Mr Blair has been successful, it is only necessary for me to focus upon the contingent submissions that were predicated upon the result. Mr Blair submitted that costs of the motion of 11 November ought to be costs in the cause. Killara Feedlot sought an order for its costs.

29. Applying the so-called indulgence rule, I am of the view that I should order
    Mr Blair to pay Killara Feedlot’s costs on the ordinary basis, but in accordance with the provisions of UCPR 42.7.

Orders

30. My orders are:

1. Grant leave to the plaintiff to file and serve a further iteration of the Amended Statement of Claim purportedly filed on 8 June 2022 having regard to these reasons by 23 February 2023;

2. Reserve liberty to the first defendant to apply to strike out the references to the New South Wales Livestock Loading Scheme and the Livestock Loading Calculator on the ground that having made further inquiries it is incapable of answering those averments, which liberty may only be exercised by filing a Notice of Motion seeking that relief within the time limited for filing its defence to the Amended Statement of Claim by these orders.

3. The first defendant to seek further and better particulars of the Amended Statement of Claim by 9 March 2023;

4. The plaintiff to provide any further and better particulars requested by
   23 March 2023;

5. The first defendant to file its defence to the Amended Statement of Claim and any motion and affidavit pursuant to Order 2 hereof by 20 April 2023;

1. List the matter for directions before the Common Law Division Case Management Registrar at a time to be appointed by the Registrar on
   11 May 2023;

2. The first defendant is to serve any liability expert evidence upon which it intends to rely by 11 May 2023 or within such further time as the Registrar may allow;

3. Grant leave to the plaintiff to file the Amended Statement of Claim joining the second defendant nunc pro tunc;

4. The plaintiff’s solicitor to inform the solicitor for the second defendant of these orders by 16 February 2023;

5. The plaintiff to pay the first defendant’s costs of the motion filed on
   11 November 2022 on the ordinary basis in accordance with rule 42.7 Uniform Civil Procedure Rules 2005 (NSW).

6. The Notice of Motion filed on 11 November 2022 is otherwise dismissed.

7. Liberty to apply in respect of these directions which may only be exercised within 6-7 days.

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Decision last updated: 09 February 2023