Cossey v Canberra Airport Pty Limited
[2023] ACTSC 122
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Cossey v Canberra Airport Pty Limited |
| Citation: | [2023] ACTSC 122 |
| Hearing Date: | 18 May 2023 |
| Decision Date: | 25 May 2023 |
| Before: | Curtin AJ |
| Decision: | See [101] |
| Catchwords: | PRACTICE AND PROCEDURE – PLEADINGS – Application to |
| amend statement of claim – whether proposed amendments | |
| would prejudice, embarrass or delay the fair trial of the proceeding | |
| – whether the particulars state the facts and circumstances of the | |
| negligent act, omission or breach of statutory duty – whether amendments are necessary – application granted in part | |
| Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 168 Court Procedures Rules 2006 (ACT), rr 406, 425, 432, 501, 502 |
| Cases Cited: | Aon Risk Services Australia Ltd v Australian National University |
| (2009) 239 CLR 175 | |
| Parties: | Matthew Cossey (Plaintiff) |
| Canberra Airport Pty Limited (First Respondent) | |
| Qantas Airways Limited (Second Respondent) | |
| Representation: | Counsel |
| B Jullienne (Plaintiff) | |
| D Lloyd SC w/ L Mousse (First Respondent) | |
| W Sharwood (Second Respondent) | |
| Solicitors | |
| AC Lawyers (Plaintiff) | |
| GSG Legal (First Respondent) HWL Ebsworth (Second Respondent) | |
| File Number: | SC 111 of 2021 |
| Curtin AJ: | |
| Introduction |
1. This is an application filed by the plaintiff on 21 April 2023 that leave be granted to amend the originating claim and statement of claim in the form of the document which is Annexure AC9 in Exhibit 1 being the affidavit of Andrew Christopoulos sworn on 20 April 2023.
2. The proceedings involve a set of stairs at Canberra Airport. The stairs were apparently constructed about 13 years ago. The relevant stairs are those in between the Qantas lounge and the lower concourse.
Background
3. The plaintiff alleges that on or about 26 August 2019, he was walking down those stairs
when “he tripped on the raised edging strip of the stairs, causing him to fall forward
down approximately 14 steps” (paragraph 1.2 of the originating statement of claim).4. The first defendant is alleged and admits to being the lessor of the stairs and the second defendant admits it was the lessee at the time of the plaintiff's accident. Other than those admissions, the defendants generally deny the negligence alleged by the plaintiff in that statement of claim.
5. The proceedings were commenced on 24 March 2021.
6. It is alleged in the statement of claim that both defendants were occupiers of the stairs both at common law and pursuant to s 168 of the Civil Law (Wrongs) Act 2002 (ACT), and also owed duties to the plaintiff pursuant to the terms of the lease agreement between the first and second defendant.
7. Section 168, subsections (1), (2) and (4), say:
168 Liability of occupiers
(1)
An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not
suffer injury or damage because of –
(a) the state of the premises; or
(b)
things done or omitted to be done about the state of the premises.
(2) Without limiting subsection (1), in deciding whether the duty of care has
been discharged consideration must be given to the following:
(a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d)
the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e) the age of the person entering the premises; (f)
the ability of the person entering the premises to appreciate the danger;
(g)
the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
… (4)
This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them.
8. In the originating statement of claim the plaintiff pleads that the defendants owed the plaintiff a duty, amongst other things, to take all reasonable care to ensure that anyone on the premises did not suffer injury or damage because of the state of the premises, or things done or omitted to be done about the state of the premises. That pleading replicates the terms of s 168(1).
9. The plaintiff also pleads that the defendants had a duty to warn entrants onto the premises of the presence of hazards, to attend to all hazards within the premises promptly, to provide appropriate safety signage and barriers as required and to take reasonable care not to allow hazards to remain on the premises for a time longer than was reasonable.
10. In the originating claim the plaintiff pleaded that the risk of injury to the plaintiff was foreseeable. The identified foreseeable risk being that an entrant onto the premises may fall because the defendants were aware or ought to have been aware that the stairs were unsafe and posed a hazard to users.
11. In the originating statement of claim the particulars of negligence alleged against both the first and second defendant were identical except in one respect.
12. Paragraphs 2.1 to 2.5 (first defendant) and paragraphs 3.1 to 3.5 (second defendant) are relatively identical and alleged that both defendants breached their duty of care in failing to provide premises in a safe condition (I summarise the allegations hopefully without undue inaccuracy), that they allowed or permitted the plaintiff to walk on the stairs when they were unsafe and when the defendants knew or ought to have known there was a risk of injury to the plaintiff, the defendants failed to secure the stairs, the defendants required or permitted use of the stairs when they knew or ought to have known they were unsafe or potentially hazardous and that they failed adequately or at all to inspect, repair and maintain the stairs to prevent any hazards to persons lawfully on the premises.
13. There is an additional particular of negligence alleged against the second defendant in that it is alleged the second defendant failed adequately or at all to bring the hazardous nature of the stairs as pleaded above to the attention of the first defendants.
14. On 30 November 2021, the first defendant filed a notice claiming contribution or indemnity against the second defendant. Relevantly, the first defendant alleged at paragraphs 5.1, 5.2 and 5.3 of that notice that:
“5.1 The First Defendant built the concrete treads or base of the stairs leading from the
Qantas Business Lounge where the accident allegedly took place.
5.2 The Second Defendant built upon the concrete treads or base of the stairs leading from the Qantas Business Lounge where the accident allegedly took place which included installing the finishing or fittings to the stairs.
5.3 The Second Defendant was, inter alia, responsible for applying any edging strips to the end of each step of the stairs leading from the Qantas Business Lounge where the accident
allegedly took place.”
15. On 20 January 2022 and 31 January 2022, the plaintiff issued notices for discovery to the defendants. Some disputes followed about the adequacy the discovery provided and an application was made and heard by Kennett J on 6 April 2022 when his Honour made certain orders.
16. On 20 April 2022, the first defendant filed and served an affidavit of Zarko Danilov affirmed on 20 April 2022 in response to the orders made by Kennett J. In summary, Mr Danilov said that the first defendant had produced all relevant documents up to that point in time.
17. On 26 May 2022, the plaintiff filed in Court an affidavit verifying answers to interrogatories. In that document, the following questions and answers were recorded:
1. At the time of the Incident, were you traversing up or down the subject staircase?
Answer: Down
2. On which steps of the subject staircase did you trip or fall during the Incident (i.e., if the bottom step is step one, and the ascending steps are numbered two, three, etc)?
Answer: After due search and enquiry I am unable to say as I did not count the steps. I
believe I fell from the first step below the landing, as I descended.3. Please provide the usual details of the Incident, including, but not limited to, which of your feet tripped (left, right or both), in which direction you fell, approximately how far you fell, and on which part of your body you landed after your fall.
Answer: I am unable to say with certainty which of my feet tripped but I believe it was my left foot. I can say it was not both of my feet. I fell forwards and down the remaining stairs in that section, to the landing below. I am uncertain as to which part or parts of my body first landed, but I was immediately aware of excruciating pain in my right lower limb.
4. What do you say caused you to trip and fall at the time of the Incident?
Answer: I object to answering this interrogatory as it requires me to draw conclusion and not to depose as to facts. Conclusions sought are matters for this Honourable Court.
5. Please describe the object or thing you tripped on at the time of the Incident, including but not limited to its location, height, size, dimensions and colour.
Answer: Annexed and marked “A” is a photograph that depicts the subject stairs. I
believe I tripped on the raised edging strip that is visible in the photograph. After due search and enquiry, I am unable to further describe its dimensions, and its colour is self-evident.
(Emphasis mine)
18. Answer 5 of the interrogatories referred to a photograph annexed and marked “A.” That
photograph is not relevant to the substance of the above questions and answers so far
as concerns this application.19. Relevantly, in those interrogatories the plaintiff said that he was unable to say exactly which step of the staircase he tripped or fell from, but he believed he fell from the first step below the landing. The stairs consist of two flights of stairs which are separated
by a landing. Flight one (as referred to in the plaintiff’s expert reports) is the top flight
of stairs and flight two is the lower flight of stairs. The plaintiff says he believed he fell
from the first step in flight two.20. In the interrogatories he was asked what caused him to trip and fall at the time of the accident. He objected to answering this interrogatory as it required him to draw conclusions, not to depose to facts. He was asked to describe the object or thing he tripped on at the time of the incident and his answer was that he believed he tripped on the raised edging strip that is visible in the photograph. By that he means a raised edging strip (which appears to be the type of strip put on the nosing of stairs to prevent slippage) and which appears to be at the front of the nosing of all stairs and the front of the landing.
21. I am told from the bar table and accept that there is CCTV footage of the accident. That footage was not tendered on this application and was not provided to the two experts presently retained by the plaintiff, being Mr Anlezark or Dr McIntosh.
22. Mr Anlezark inspected the premises on 6 July 2022 and produced a report dated 21 July 2022. That report was served that day. The report of Dr McIntosh dated 22 August 2022 was served four days later on 26 August 2022.
23. On Mr Anlezark’s inspection of the stairs he conducted some measurements and
opined at page 4 of his report that the dimensions of the goings and risers throughout
flights one and two of the stairs were not consistent.24. He said, amongst other things, that the riser height of step number 17 of flight number one varied by 7 millimetres from the previous riser and the riser height of step number 17 of flight number two varied by 8 millimetres from the previous riser.
25. It appears on the evidence that the only relevant step of those two mentioned was step number 17 in flight number one because the plaintiff alleges he fell after transiting flight one and at the juncture of the landing and the commencement of flight two.
26. Mr Anlezark opined on page 11 of his report that the stairs as constructed did not comply with various requirements of the Building Code of Australia due to variations in the goings and risers and that the dimensions of the goings and risers were not constant throughout each flight.
27. He opined (and I am not sure whether he has the necessary expertise to offer this opinion) that the inconsistency in riser height of 7 millimetres between risers number
16 and riser 17 of flight one “could contribute to a change in gait and hence may lead
to a stumble occurring at the mid-landing”.28. At the present time there is no allegation in the statement of claim of a stumble, nor is
a stumble mentioned in the plaintiff’s answers to interrogatories, nor is a stumble
mentioned in the factual assumptions which Mr Anlezark and Dr McIntosh were asked
to make.29. Whether a stumble is shown in the CCTV footage, I do not know.
30. Dr McIntosh says that he is an expert in the field of biomechanics and
ergonomics/human factors. Dr McIntosh was given a copy of Mr Anlezark’s report dated
21 July 2022. After considering the information given to him, Dr McIntosh opined on page 16 of his report that the evidence provided in the brief of evidence to him did not provide any objective information on the cause of the fall. He recorded that it was
alleged that “the plaintiff tripped on the slip-resistant nosing”. He noted that a survey of
the stairs had indicated there was a level of variation in a riser height and going length on the two flights of stairs and he opined that both the level of variation in the stair dimensions and the slip-resistant nosing are risk factors for a person tripping and falling on the stairs.
In general terms, after those experts produced those reports, the plaintiff’s legal
advisers formed the view (quite reasonably) that further discovery was needed. They also issued a number of notices for non-party production on 24 August 2022 to four entities, being Construction Control, Woods Bagot, Jones Lang LaSalle and WorkSafe ACT. In one way or another those entities were involved with the construction of the stairs, their approval or their subsequent use.
32. On 20 October 2022, they issued further notices for non-party production to the airport building controller and on 8 November 2022 to Graham Morgan and David Bell of GHD.
33. On 21 September 2022, a direction was made by a Registrar of the Court that the plaintiff was to provide any proposed amended statement of claim to the defendants within 14 days of that date.
34. On 20 October 2022, the plaintiff indicated to the defendants that he was not in a position to provide the amended statement of claim until after further discovery was given (alleging that the discovery to date had been unsatisfactory) and raised the possibility of joining further parties to the proceedings.
35. The plaintiff says that he was awaiting production of documents pursuant to the notices for non-party production before amending the statement of claim. In my view, that was an appropriate view to take in the circumstances of this case.
36. On 14 November 2022, the matter was set down for hearing on 28 August 2023 with an estimate of five to seven days of hearing.
37. That date is about 14 and a half weeks from the date of this application. There were some issues that arose with production pursuant to the notices for non-party production such that the plaintiff reissued notices for non-party production on 15 February 2023 to Woods Bagot, Construction Control and GHD Proprietary Limited.
38. Documents were produced by Woods Bagot on 8 March 2023, GHD produced documents on 13 March 2023. Shortly thereafter the plaintiff drafted a proposed amended statement of claim which was served on the defendants on 29 March 2023. Both defendants oppose the amendments sought.
Application to amend the statement of claim
39. Having read most of the material before the application commenced, I formed some preliminary views which I indicated to the parties were open to change depending on their submissions. As a result of outlining my preliminary views to the parties, the plaintiff accepted that some amendments could not be allowed and the defendants indicated that with one small variation two amendments were non-objectionable.
40. The proposed amendments are set out in the proposed amended statement of claim which is Annexure AC9 in Exhibit 1 and the amendments are helpfully underlined. The first proposed amendment was paragraph 1.1.2A, which states:
1.1.2A
The first and second defendant were participants in, and responsible for, the design, construction and approval of stairs leading to and from the Qantas Business Lounge at the Premises (the Stairs).
41. The difficulty I had with that proposed amendment were the words “were participants in” and “responsible for”. Quite what was meant by “participants” and “responsible” in a
case such as this was unknown. Counsel for the plaintiff accepted the difficulties with
that paragraph and did not press that amendment.42. Paragraph 1.10.5 said:
1.10.5 Constructing the Stairs to be complaint with building standards and the Building
Code of Australia.43. That paragraph was not pressed.
44. Paragraphs 2.10 and 3.11 were in identical terms being separately alleged against each defendant. Paragraph 2.10 said:
2.10 Designing, constructing and approving of the Stairs in a negligent manner. 45. Those two paragraphs were not pressed.
46. I shall now turn to paragraphs to which the defendants have no objection. The first of those is paragraph 1.2A. Paragraph 1.2A said:
1.2A At all material times the Stairs were non-compliant with the Building Code of
Australia.Particulars
a. The dimensions of the goings and risers of each step were not consistent and in breach of BCA2008 Part D2.13(a)(ii). b. The riser height of certain steps varied substantially from the previous riser. 47. The difficulty in allowing that paragraph in that form was that the word “stairs” is defined
in the disallowed paragraph 1.1.2A. After discussion with counsel, it was agreed that the opening words of paragraph 1.2A would be non-objectionable if it was in the following terms:
“At all material times the stairs leading to and from the Qantas business lounge at the
Premises were non-compliant with the Building Code of Australia”.
48. With that change in wording, I allow the addition of paragraph 1.2A to the pleading which includes the particulars that appear in the exhibit referred to.
49. Paragraph 1.8 said:
1.8 The relevant risk of harm includes the risk of an entrant to the premises, including the plaintiff, falling on the Stairs and suffering injury from the Stairs being non-compliant, having variation and inconsistency in their dimensions and having raised nosings. 50. The defendants do not oppose the amendment of that clause in the form set out in the exhibit identified.
51. I shall now turn to the remaining amendments which were in issue.
52. Paragraph 1.5 of the pleading says that at all material times the defendants owed a duty, amongst other things:
1.5.5 to ensure that the Stairs were designed constructed and certified to a
reasonable standard and;1.5.6 to ensure that the Stairs complied with the Building Code of Australia. 53. I am disinclined to allow those amendments. I appreciate they are in a paragraph which allege a duty, but duties ordinarily arise out of various factual circumstances unless they apply by operation of law. The difficulty with those paragraphs to my mind is that
they plead a duty on the defendants “to ensure” that certain things were done.
54. To make good such a pleading in terms of factual allegations one would have to plead some material facts out of which the obligation arose upon the defendants to achieve the objective identified and no such material facts are pleaded.
55. Counsel for the plaintiff argues that those pleadings in substance assert the duty that is contained, he submits, in s 168(1) of the Civil Law (Wrongs) Act 2002.
56. That paragraph to my mind is more concerned with the content of the duty of care and is expressed in very general terms. That is, it imposes on an occupier a duty to take all care that is reasonable in the circumstances to ensure no person suffers injury.
57. But the section is silent as to what is “all care that is reasonable in the circumstances”.
58. The section therefore requires attention to be given to “circumstances” and there are
no material facts or, to use the language of s 168, circumstances, pleaded which would fairly notify the defendants of the case they have to meet as to why it is, in light of those material factual circumstances, they had a duty to ensure the stairs were designed, constructed and certified to a reasonable standard or to ensure they complied with the Building Code of Australia.
59. I note that it seems to be common ground between the parties that the first defendant employed contractors to build the stairs and the second defendant employed building contractors to undertake the fit out of its premises which included installing some material on top of the bare concrete stairs which had been constructed by the first
defendant’s contractor.
60. Given that it appears to be common ground that both defendants employed contractors, the present pleading is silent (in terms of material facts or circumstances) as to why in those circumstances the principals to those contracts (the defendants) would owe an obligation (in terms of the content of their duty of care) to ensure (whatever that quite means) the stairs were designed, constructed or certified to a reasonable standard or to ensure they complied with the Building Code of Australia.
61. The next contentious amendment is paragraph 1.10.4. It says the following:
1.10.4 Ensuring the Stairs were, and remained complaint, with building standards and
the Building Code of Australia.62. The opening words of paragraph 1.10 say that “[a] reasonable person in a position of
the defendants would have taken precautions against the risk of harm including but not
limited to”. The difficulty with paragraph 1.10.4 is the same difficulty I have outlined in
relation to the proposed amendments addressed immediately above.
63. The next contentious amendments are paragraphs 2.8, 2.9 and 2.10 which concern the first defendant (repeated in paragraphs 3.9, 3.10 and 3.11 against the second defendant). Paragraphs 2.8, 2.9 and 2.10 says the following:
2.8 Failing to ensure the Stairs were constructed to comply with the Building Code
of Australia.2.9 Failing to ensure the Stairs were complaint. 2.10 Designing, constructing and approving of the Stairs in a negligent manner. 64. The difficulty with paragraphs 2.8, 2.9 and 2.10 (and 3.9, 3.10 and 3.11) is that they suffer from the same problem addressed above.
65. The next contentious amendment is paragraphs 2.11 and 3.12 (which is identical to
2. 11). Paragraph 2.11 says the following:
2.11 Failing to organise any or any adequate certification of the Stairs.
Counsel for the plaintiff says that it is the plaintiff’s case that the first defendant built the
stairs. The stairs were constructed of concrete. The second defendant then did a fit out of its business lounge which included placing material on top of those concrete stairs.
The second defendant’s contractors installed this material, being an overlay of some
hard material, on top of the concrete and the second defendant or its contractors is
then alleged to have installed the non-slip nosings.68. The plaintiff says the intent behind proposed paragraphs 2.11 and 3.12 was to the effect that neither defendant had an appropriately qualified certifier inspect the second
defendant’s work on the stairs after installation of the overlay and non-slip nosings and
that this was the breach of duty.
69. That may be so, but nowhere in the pleading are those material facts set out. I can
appreciate counsel’s frankness in telling me what the plaintiff’s case was, but the
difficulty of leaving out relevant material facts relevant to proposed paragraphs 2.11 and 3.12 is that those paragraphs are left at large without being tied to material facts of the nature I have described.
70. It is probable that I will not be hearing this case because I am otherwise engaged on the proposed hearing date and so another judge would not come to this case having
heard what I have been told by the plaintiff’s counsel today.
Decision
71. Rule 406 of the Court Procedures Rules 2006 (ACT) requires each pleading to “contain a statement in a summary form of the material facts on which the party relies”.
72. In my view, for the reasons set out above, this present pleading, at least so far as the proposed amendments which remain the subject of objection are concerned, do not contain the necessary material facts to support the amendments.
73. Rule 425 says that a Court may strike out of a pleading paragraph which “may tend to prejudice, embarrass or delay the fair trial of the proceeding”. Even though those
passages are contained in a strikeout rule, the question whether proposed amendments would prejudice, embarrass or delay the fair trial of the proceeding is a relevant factor to take into consideration in the exercise of the discretion to allow amendments.
74. In my view, the amendments which I disallow may tend to prejudice, embarrass or delay the fair trial of these proceedings for the reasons I have given.
75. The other difficulty with the pleadings is that, according to r 430(1)(b), “[a] party must
include in a pleading particulars necessary to enable the opposite party to identify the
case that the pleading requires the opposite party to meet” and in my view, the
proposed amendments do not do that.
76. Section 5A of the Court Procedures Rules 2006 (ACT) says in r 432(1) that:
432 Pleadings-negligence and breach of statutory duty
(1) If a party pleads negligence (whether contributory or otherwise) or breach of statutory duty, the particulars must state the facts and circumstances of the negligent act or omission or breach of statutory duty.
77. If a party pleads negligence, the particulars must state the facts and circumstances of the negligent act or omissions.
78. In my view, these proposed amendments do not do so.
Consideration of amendments under rr 501 and 502
79. The plaintiff makes application under both rr 501 and 502 of the Court Procedures Rules 2006 (ACT). Rule 501 says:
501 Amendment-when must be made
All necessary amendments of a document must be made for the purposes of-
(a) deciding the real issues in the proceeding; or (b) correcting any defect or error in the proceeding; or (c) avoiding multiple proceedings.
80. Rule 502(1) says:
502 Amendment-of documents
(1) At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.
81. As observed by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [71], for an amendment to fall within r 501(a), the amendment must be regarded as a real issue, and the relevant dispute or controversy must exist at the time of the application. The majority went on to say that amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1).
82. For the relevant dispute or controversy to be in existence at the time of the application, more is required than that dispute or controversy being contained in one party's correspondence or proposed amended pleading. The issue or controversy must have been joined by the parties, either in correspondence or other conduct. In my view, none of the proposed amendments fall within that category. Therefore, the proposed amendments are to be considered in relation to r 502.
83. Things may have been different if the plaintiff sort to replicate what the first defendant pleaded against the second defendant in its notice of contribution (see [14] above) because those issues have been pleaded, and there has been joinder on those issues by the second defendant, but the plaintiff did not do so.
84. My disallowance of the amendments identified is really on pleading grounds (embarrassment, prejudice etc) and for the reasons outlined above in terms of r 501.
85. If I be wrong about that, I would still have declined the amendments under r 502 for the following reasons.
86. These proceedings were commenced on 4 March 2021. They are now a little over two years old, and a specially fixed hearing of five to seven days has been allocated, which is about 14 and a half weeks away.
Aon requires the timing of this application to be taken into account. I do not think the plaintiff's legal advisors could be the subject of any legitimate criticism in this case. There has been some small delay in steps being taken, but in my view, it has not been inordinate, and neither defendant challenges that factual finding. Be that as it may, nevertheless, the circumstances are that after two years, significant amendments are sought to be made when the matter has a hearing date in a not too far distant future.
88. I am unconvinced as to the importance of the amendments, given they relate mainly (in terms of allegations of negligence) to the variation in the risers and goings of flights one and two (flight one being the only relevant flight).
89. On the material placed before me today there is no apparent causal connection between the proposed allegations regarding risers and goings and the plaintiff falling. That is, there is no apparent causal connection between the proposed further allegations of negligence and the plaintiff falling.
90. I am told by counsel for the plaintiff that there is CCTV footage of the accident. Of course, I accept that statement, but the contents of that CCTV footage has not been placed before me, and more significantly, was not given to either the plaintiff's experts, and particularly, Dr McIntosh, who is the biomechanical expert.
91. Put another way, the plaintiff's answers to interrogatories and the instructions given to the experts and, indeed, paragraph 1.2 of the original pleading all point to a trip by the plaintiff on the raised edging strip of the landing between flights 1 and 2. As described in those documents the mechanism of the fall seems to be factually separate and distinct from any deficiencies in flight one in terms of variations or non-compliances in relation to risers and goings.
92. I appreciate that, on viewing the footage, it is possible that such footage may show something different to what has been pleaded, different to what has been described in the answer to interrogatories, and different to what has been given by way of instruction to the plaintiff's experts. However, the fact of the matter is that that material (being the CCTV footage) has not been tendered on this application and whether that footage shows in visual form a different mechanism of the fall than what has been presently
pleaded, answered in interrogatories or briefed to the plaintiff’s experts is a matter of
conjecture.
93. If the amendments were allowed, the defendants would, of course, need to investigate these matters in relation to construction, design, and certification of the stairs after the second defendant's fit out. Documents have been sought from various parties involved in the construction and fit out, some of whom, being corporate entities, have since been de-registered. However, there may still be available witnesses from those entities who may be able to give evidence on the matters alleged.
94. There is no obligation on the defendants to make those investigations ahead of any amendment to the pleading, and it seems to me the hearing date would be at grave risk of having to be adjourned if these amendments were allowed, because the Court's experience is such that to achieve those investigations and then put any factual material received as a result of those investigations before appropriately qualified experts and then to give the plaintiff the opportunity to consider that material in reply - for all that to be done in 14 and a half weeks would seem to me to be unlikely.
95. For those reasons, I allow the paragraphs identified and grant leave to the plaintiff to amend the statement of claim in the form consistent with what I have said above. I do not grant leave to amend the statement of claim in relation to those paragraphs I have identified as being disallowed.
Costs
96. I gave an ex-tempore judgment in relation to the application and what appears above is that decision with some minor revisions.
97. The parties made their submissions on costs of the application and of the amendments during the hearing of the application, but I reserved my decision on that issue and said I would include that issue and my decision on it in this published judgment.
98. The defendants seek costs on the basis that the plaintiff was largely unsuccessful on the application, and also seek costs (if any) thrown away by reason of the amendment.
99. The plaintiff initially sought an order that costs be reserved, but then retreated from that position.
100. The plaintiff has been substantially unsuccessful on its application and therefore should bear the costs. However, I shall order that those costs not be assessed until the proceeding ends.
Orders
101. I make the following orders:
1. In relation to the application in proceeding filed 21 April 2023, I grant leave to the
plaintiff to amend the statement of claim in by:
a. allowing paragraph 1.2A in the form “At all material times the stairs leading to and from the Qantas business lounge at the Premises were non-
compliant with the Building Code of Australia”; and
b. allowing paragraph 1.8.
2. Leave is not granted to amend the statement of claim in relation to paragraphs 1.1.2A,
1.5.5, 1.5.6, 1.10.4, 1.10.5, 2.8, 2.9, 2.10, 3.9, 3.10, 3.11, 2.11 and 3.12 as set out in
the proposed Amended Statement of Claim.
3. The matter is listed for directions before the Registrar on Tuesday, 30 May 2023.
4. The plaintiff is to file an Amended statement of Claim in a form consistent with this
judgment on or before close of business on Friday, 26 May 2023.
5. The defendants are to file, if necessary, any amended defences by close of business
on Friday, 2 June 2023.
6. The plaintiff is to pay the defendants’ costs of the application and any costs thrown
away by reason of the amendments allowed.
7. The costs referred to in Order 6 above are not to be assessed until the proceedings
end.
I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.
Associate:
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