Ljubicic v Heat and Control Pty Ltd

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982

Hearing dates:

11 August 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

I make the following orders:

(1) pursuant to s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), leave is granted to the plaintiff to rely on the report of Mr Luke Murphy dated 5 October 2022;

(2) pursuant to r 64 of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the plaintiff to file the further amended statement of claim;

(3) see para [78] for further case management orders.

Catchwords:

CIVIL PROCEDURE – Pleadings – Amendment – where plaintiff seeks to amend particulars – where plaintiff seeks to rely on an expert report received after pre-filing statement – s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – meaning of “materially different” to pre-filing statement – meaning of "the material concerned" which was not reasonably available to the party at the time of the pre-filing statement – whether the substance of the material was reasonably available at the time of the pre-filing statement

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW), s 192A

Uniform Civil Procedure Rules, r 64

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 316, 318

Cases Cited:

Petreski v The Ors Group Pty Ltd [2019] NSWDC 417

Skinner v The State of New South Wales [2021] NSWDC 36

Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452

Category:

Principal judgment

Parties:

Marijana Ljubicic (Plaintiff)
Heat and Control Pty Limited ACN 009 742 803 (First Defendant)
George Weston Foods Limited ACN 008 429 632 (Second Defendant)

Representation:

Counsel:
Mr P Semmler OAM KC with Mr J Lee (Plaintiff)
Mr G Newton (Second Defendant)

Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Wotton + Kearney (First Defendant/Interested Party)
HWL Ebsworth Lawyers (Second Defendant)

File Number(s):

2020/00365595

Publication restriction:

None

REVISED EX TEMPORE JUDGMENT

1. On 10 June 2018, the plaintiff sustained severe injuries in an accident which occurred at the premises of George Weston Foods, the second defendant. At the time of the accident, the plaintiff was employed by the second defendant.

2. The plaintiff was working with other members of the second defendant's production team on a machine known as a pappadum processing system (“PPS”) when there was an explosion, causing hot oil to be thrown over the plaintiff. She sustained severe burns and has not worked since the accident.

3. The plaintiff commenced proceedings against the first defendant, Heat and Control Pty Limited, by way of a statement of claim filed on 24 December 2020. Subsequent to the filing of the statement of claim, the first defendant joined the second defendant to the proceedings by way of a cross-claim. The proceedings were then case managed in the usual proper and competent way by the Registrar.

4. The plaintiff then sought to…