George Weston Foods Limited v Heat and Control Pty Ltd

[2023] NSWSC 655

Supreme Court

New South Wales

Medium Neutral Citation:

George Weston Foods Limited v Heat and Control Pty Ltd [2023] NSWSC 655

Hearing dates:

07 June 2023

Date of orders:

07 June 2023

Decision date:

07 June 2023

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Plaintiff’s Notice of Motion of 28 March 2023 dismissed with costs

Catchwords:

CIVIL PROCEDURE – court administration – case management – where proceedings pending in Commercial List and Common Law Division arising out of same industrial accident – whether proceedings should be heard together – factors pointing in favour of concurrent hearing – possibility of inconsistent findings – other factors pointing against concurrent hearing – desirability that the two proceedings be case managed so as to avoid possibility of inconsistent findings

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Category:

Procedural rulings

Parties:

George Weston Foods Limited (Plaintiff/Applicant)
Heat and Control Pty Ltd (Defendant/First Respondent)
Marijana Ljubicic (Second Respondent)

Representation:

Counsel:
O Jones (Plaintiff/Applicant)
C Farah and M Collins (Defendant/First Respondent)
J C Lee (Second Respondent)

Solicitors:
HWL Ebsworth (Plaintiff/Applicant)
Barry.Nilsson Lawyers (Defendant/First Respondent)
Carroll & O’Dea Lawyers (Second Respondent)

File Number(s):

2022/209624

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiff, George Weston Foods Limited (“GWF”), brings these proceedings against the defendant, Heat and Control Pty Ltd (“Heat & Control”), in relation to a pappadum processing system supplied and installed by Heat & Control in GWF’s premises in Ermington.

2. The allegations in these proceedings relate to a number of incidents that occurred in relation to the system.

3. First, GWF contends that on 10 January 2018, during the commissioning of the equipment, an incident occurred whereby water came into contact with hot oil, causing an explosion, injuring an employee of GWF, Ms Marijana Ljubicic.

4. The proceedings also relate to an alleged failure of the equipment in the following year in August 2019 after, it is said, Heat & Control entered into a further agreement to upgrade and automate the system.

5. The proceedings also relate to a third incident, in July 2020, where what is described as a steam explosion occurred within the system, causing loss of sales, operating and rectification costs.

6. GWF seeks damages from Heat & Control for the economic loss said to have arisen from these incidents and also compensation for amounts it contends it is liable to pay a related company, AB World Foods Pty Ltd, arising out of GWF’s alleged inability to supply that company with product.

7. There are pending in the Common Law Division separate proceedings brought by Ms Ljubicic against both GWF and Heat & Control in which Ms Ljubicic claims damages for the injuries that she sustained in the 10 January 2018 incident. In those proceedings, there is a cross-claim by Heat & Control against GWF.

8. These proceedings have reached a stage where GWF has served its lay evidence. It is agreed that the next step is for an order to be made for Heat & Control to serve its lay evidence by 1 September 2023. The parties expect that thereafter directions will be made for the exchange by each of expert evidence.

9. The Common Law proceedings have reached a stage where it is necessary for Ms Ljubicic to make an application under s 318(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for leave to serve any expert evidence. That application is listed for hearing on 11 August 2023. The Common Law proceedings cannot proceed further until that application is determined.

10. It is in those circumstances that GWF in these proceedings, by Notice of Motion filed on 28 March 2023, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 28.5, that these proceedings be heard together with the Common Law proceedings with evidence in one to be evidence in the other.

11. It appears likely that common issues will arise in these proceedings and in the Common Law proceedings. These include:

1. the terms on which Heat & Control was engaged by GWF;

2. the events leading to the 10 January 2018 incident;

3. the sequence of events involved in that incident;

4. the cause of that incident;

5. whether the machine was defective on that occasion;

6. whether the training Heat & Control provided GWF’s machine operators was deficient; and

7. whether GWF was negligent and caused or contributed to the incident.

12. A spectre does arise, therefore, of the possibility that a judge determining the Common Law proceedings might come to different conclusions than the judge determining these proceedings as to one or more of those issues.

13. It would obviously be undesirable that such inconsistent findings arise. That possibility is a factor in favour of the proceedings being heard together.

14. However, in my opinion, there are numerous other factors which point to the undesirability of the proceedings being heard together.

15. As I have described, the claims made by GWF against Heat & Control in these proceedings range far more widely than those arising in the Common Law proceedings.

16. Further, were the proceedings to be heard together, it is likely that Ms Ljubicic would be involved in the case which would proceed for many more days than the proceedings that she brings in the Common Law Division are likely to occupy. I am told that the current estimate by those advising Ms Ljubicic is that the Common Law proceedings will take in the order of ten days. Were the two proceedings to be heard together, the totality of the hearing time would be longer, and possibly much longer than ten days.

17. I am told that those acting for Ms Ljubicic are doing so on a “conditional” basis, which I assume means that they are acting on a no win, no pay basis. I am informed that, were Ms Ljubicic to be successful, and her lawyers were entitled to recover fees, a component of those fees would be payable from the verdict. Thus, the longer the proceedings run, the more there will be deducted from Ms Ljubicic’s verdict on that account. It appears to me that would not be a fair burden to impose upon Ms Ljubicic.

18. There also may be complications in the cross-admissibility of evidence between the two proceedings by reason of s 318 of the Workplace Injury Management and Workers Compensation Act.

19. Further, the damages claims in each proceedings are obviously entirely distinct.

20. Related to that issue is the fact that, currently, Heat & Control is represented by two different firms of solicitors, no doubt reflecting the underlying insurance arrangements. At the moment it appears likely that, were the proceedings to be heard together, Heat & Control would seek to be represented separately in each proceedings by different solicitors and counsel.

21. That is a matter that as Mr Jones for GWF submitted, is capable of being managed, but would no doubt cause complications and further delay.

22. In these circumstances, I am not persuaded that, at least at the moment, I should make the orders sought by GWF. I propose to dismiss its application.

23. However, as Mr Jones for GWF has very sensibly submitted, it appears to be important that the Court, as a whole, adopt some process of case management to ensure that inconsistent findings on the questions arising from the 10 January 2018 incident and perhaps, generally, in relation to the machine, be avoided. One possibility is that the proceedings be case managed, perhaps separately in each of the Common Law and Equity Divisions, but so as to ensure that one or other of the proceedings is fixed for hearing and determined before the other.

24. That is not a matter about which I need to make a final decision now, but I can see the sense of attention being paid by the judges managing both proceedings to that possibility.

25. What I will do today is to order that the plaintiff’s Notice of Motion of 28 March 2023 be dismissed and to stand these proceedings over to 8 September 2023 before me so I can then be informed of the current state of the Common Law proceedings with a view to then give further consideration to what case management steps will be adopted to progress the matters.

26. As to the costs of the motion, Mr Jones submits that notwithstanding GWF’s lack of success today, it was necessary that the Court’s attention be drawn to the progress of two separate cases in different Divisions of the Court arising out of the same incident. Nonetheless, the fact is that the application has been brought and has not succeeded. My order is that the plaintiff’s Notice of Motion of 28 March 2023 is dismissed with costs.

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Decision last updated: 16 June 2023