Kwiatkowski v Plum Pictures Ltd - [2022] NSWSC 362

Supreme Court

New South Wales

Medium Neutral Citation: Kwiatkowski v Plum Pictures Ltd [2022] NSWSC 362
Hearing dates: 9 March 2022
Date of orders: 31 March 2022
Decision date: 31 March 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
1. The Court directs the plaintiff to file a Short Minute of Order granting leave to file the proposed Amended Statement of Claim and for substituted service on the second defendant.
2. The plaintiff will pay the first defendant’s costs of the Motion and any costs thrown away as a consequence of the amendment to the Statement of Claim.

Catchwords:
CIVIL PROCEDURE – Amendment to Statement of Claim – Statutory Duty – Limitation – Confined to particular of negligence by amendment permitted – Substituted service on Defendant allowed.

Legislation Cited:
Civil Liability Act 2001 (NSW), ss 5B and 5D
Civil Procedure Act 2005 (NSW), ss 64 and 65
Marine Safety Act 1998 (NSW), ss 13(a), 13(b), 13(c), 13A(1), 13A(2) and 99
Uniform Civil Procedure Rules 2005 (NSW), r 19.1
Work Health and Safety Act 2011 (NSW), s 19

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430; [2015] VSCA 130
McGee v Yeomans [1977] 1 NSWLR 273
State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344

Category: Procedural rulings
Parties: Anne Kwiatkowski (Plaintiff / Applicant)
Plum Pictures Ltd (First Defendant / Respondent)
Michelle Thomas, trading as Rapid Environment Response Unit (Second Defendant)
Representation:
Counsel:
J McQuillen (Plaintiff / Applicant)
A Hourigan (First Defendant / Respondent)
Solicitors:
G H Healey & Co (Plaintiff / Applicant)
Watson Mangioni Lawyers Pty Limited (First Defendant / Respondent)

File Number(s): 2019/53869

Judgment

HIS HONOUR: The plaintiff seeks to be granted leave to file an Amended Statement of Claim, which is Annexure B to the Affidavit of Katarina Healey, sworn 3 September 2021. The original Statement of Claim was filed on 18 February 2019. The first defendant objects to proposed amendments at [20]-[32] of the proposed Amended Statement of Claim (hereinafter also called “the Proposed Statement”).
The plaintiff, Ms Anne Kwiatkowski, claims that she was employed in 2016 by the second defendant, Michelle Thomas, trading as Rapid Environment Response Unit (hereinafter “RERU”), as an agent of the first defendant, Plum Pictures Limited (hereinafter “Plum Pictures”), which is a company incorporated in the United Kingdom.
The plaintiff was engaged to work on the production of a television series at the relevant worksite in Manly. The plaintiff claims that, on 19 February 2016, she was injured whilst moving “gear”. The plaintiff was, at the time, in the water on a boat ramp, waiting to load the gear onto a boat, as instructed. It was due to the slippery surface of the ramp that the plaintiff fell backwards and landed onto her outstretched arms.
As a result of the fall, according to the plaintiff, she sustained injuries to her wrists and back, the…

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.

Keep reading for free

Create a free CaseChat account to read Kwiatkowski v Plum Pictures Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 362
Decision Date: 31 March 2022

CaseChat Overview and Summary

The case of Kwiatkowski v Plum Pictures Ltd involved a dispute between the plaintiff, Kwiatkowski, and the defendant, Plum Pictures Ltd. The plaintiff sought to amend the statement of claim to include a statutory duty claim, which was not initially part of the proceedings. The dispute reached the court, which had to determine whether the amendment was permissible and if the substituted service on the defendant was valid. The court examined the principles governing amendments to the statement of claim and the requirements for valid service of process.

The central legal issues before the court were whether the plaintiff could amend the statement of claim to include a statutory duty claim, despite the statutory limitation period for such claims, and whether the substituted service on the defendant was valid. The court needed to balance the principles of justice and procedural fairness with the statutory constraints and procedural rules. Additionally, the court had to assess if the substituted service met the necessary requirements under the law.

The court held that the amendment to include the statutory duty claim was permissible, as the principles of justice and fairness allowed for the amendment despite the statutory limitation period. The court found that the amendment did not prejudice the defendant and that the statutory period was not a jurisdictional bar to the amendment. Regarding the substituted service, the court concluded that the service was valid as it complied with the relevant procedural rules. The court found that the service was carried out in accordance with the law, and the defendant had not demonstrated any prejudice resulting from the substituted service.

The court's decision allowed the plaintiff to amend the statement of claim to include the statutory duty claim and confirmed the validity of the substituted service on the defendant. The court's ruling provided clarity on the permissible scope of amendments to the statement of claim and the requirements for valid service of process in similar future cases. The final orders of the court would depend on the outcome of the proceedings on the merits of the case.

Orders