Kuypers v Ashton Coal Operations Pty Ltd (No 2)

[2015] NSWSC 1124

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 2) [2015] NSWSC 1124
Hearing dates:	4 & 5 August 2015 (Evidence on Commission); 7 August 2015
Date of orders:	07 August 2015
Decision date:	07 August 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I defer a decision on the plaintiff’s application to amend his statement of claim until I have decided the second defendant's notice of motion; I grant the second defendant leave to file the notice of motion, and Mr Lee's affidavit sworn on 7 August 2015 in court.
Catchwords:	PROCEDURE – civil – application to amend statement of claim
Legislation Cited:	Water Act 1912 (NSW);
Category:	Procedural and other rulings
Parties:	Benjamin Kuypers (Plaintiff) Ashton Coal Operations (First defendant) Silver City Drilling (NSW) Pty Ltd (Second defendant)
Representation:	Counsel: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff); Curwoods Lawyers (First defendant); Lee Legal Group (Second defendant)
File Number(s):	2012/393861

revised extempore judgment

1. Mr Dooley SC, who appears with Mr Perry for the plaintiff, seeks leave to amend the statement of claim by adding a number of additional particulars of negligence on the part of the second defendant, the employer of the plaintiff.  Those particulars substantially mirror particulars of negligence pleaded against the first defendant who is the operator of the coal mine where the plaintiff's accident occurred.  Mr Cavanagh SC, who appears with Ms Dinkha, for the first defendant, has no objection to the amendment of the statement of claim but of course it does not affect the first defendant directly.

2. Mr Harris QC, who appears with Mr Roberts SC and Mr Flett for the second defendant, says the question of leave for the plaintiff to amend the statement of claim ought to be delayed until the determination of a notice of motion he propounds. 

3. Essentially, the proposed amendment of the particulars relates to an alleged failure of the second defendant to comply with the provisions of s 118A Water Act 1912 (NSW). The notice of motion of the second defendant seeks leave to rely upon the evidence of expert drillers whose evidence in part will go to what the obligations of a class 4 driller are under that provision. It is the second defendant's case that the contractual relationship between it and the first defendant allocated responsibility for compliance with s 118A to the first defendant. If there has been a breach of those obligations and that breach sounds in negligence, according to the second defendant, its liability to the plaintiff for such a breach does not involve any personal fault on its part, but would arise solely as a breach of its non‑delegable duty of care to its employee.

4. It seems to me that there is force in Mr Harris' argument, with respect.  If I rule against him in relation to his motion, then there may be real prejudice in meeting these additional particulars of negligence propounded by the plaintiff and for that reason I propose to defer a decision on Mr Dooley's application until I have decided the second defendant's notice of motion.

5. I grant the second defendant leave to file the notice of motion, as foreshadowed previously, and Mr Lee's affidavit sworn on 7 August 2015 in court.

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Amendments

17 August 2015 - Amendment to name of paraties

Decision last updated: 17 August 2015