Margi v SFN Constructions Pty Ltd; St George Waterproofing Pty Ltd v SFN Constructions Pty Ltd

[2022] NSWSC 220

Supreme Court

New South Wales

Medium Neutral Citation:

Margi v SFN Constructions Pty Ltd; St George Waterproofing Pty Ltd v SFN Constructions Pty Ltd [2022] NSWSC 220

Hearing dates:

3 March 2022

Date of orders:

3 March 2022

Decision date:

03 March 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The plaintiff’s motion is dismissed.

(2) The first defendant is to pay the costs of the motion including the costs of the hearing today, and the costs of the second defendant and the plaintiff in the related matter.

Catchwords:

CIVIL PROCEDURE — court administration — case management — application for summary judgment — costs orders

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.

Category:

Procedural rulings

Parties:

Proceedings 2018/334236
Gerard Margi (Plaintiff)
SFN Constructions Pty Ltd (First Defendant)
Unity International Pty Ltd (Second Defendant)

Proceedings 2019/390048
St George Waterproofing Pty Ltd (Plaintiff)
SFN Constructions Pty Ltd (First Defendant)
Unity International Pty Ltd (Second Defendant)

Representation:

Counsel:

Proceedings 2018/334236
V Jurisich (Plaintiff)
J Sharpe (First Defendant)
R Perla (Second Defendant)

Proceedings 2019/390048
J Webb (Plaintiff)
J Sharpe (First Defendant)
R Perla (Second Defendant)

Solicitors:

Proceedings 2018/334236
Gerard Malouf & Partners (Plaintiff)
Wotton + Kearney (First Defendant)
Holman Webb Lawyers (Second Defendant)

Proceedings 2019/390048
Hicksons Lawyers (Plaintiff)
Wotton + Kearney (First Defendant)
Holman Webb Lawyers (Second Defendant)

File Number(s):

2018/334236
2019/390048

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. This matter comes before me today by way of both a case management directions hearing and for the hearing of a motion filed by the plaintiff on 20 December 2021 seeking summary judgment as against the first defendant, either pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or rule 14.3 of the UCPR.

2. By way of background, the plaintiff commenced proceedings in the District Court in 2018 alleging that, whilst working on a building site on 20 September 2017, he fell through a hole or void at the building site, which was not protected by way of any fence or barricade.

3. In his amended statement of claim, again originally filed in the District Court, he alleged that the first defendant was the head contractor on the building site and that the second defendant was a subcontractor to the first defendant. He pleaded that either or both had the care, control and management and were occupiers of the construction site. After pleading the circumstances of his accident, he pleaded the particulars of negligence and the particulars of breach of statutory duty against both defendants. The particulars of negligence are many and, in a sense, in standard form.

4. Subsequent to the commencement of the proceedings, the plaintiff applied and was granted leave to transfer the proceedings to this Court.

The background to today’s hearing

5. The matter came before me on 12 August 2021 because the parties were seeking a hearing date of five days or more. Having regard to the current system of judicial case management directed by the Chief Justice, it was necessary that the parties appear before me and that there be a discussion about the issues in the case, the length of time that the case might take and the attempts that the parties were making to narrow the issues.

6. On that day, all of the parties were represented by solicitors or counsel. I engaged the parties in a discussion as to the issues. It seemed to me at the time that there was not a significant factual issue as to what had happened to the plaintiff and that the real issue was a dispute between the defendants as to whether one or both or any were liable to the plaintiff.

7. Having considered all of these matters on 12 August 2021, it was apparent that the plaintiff did not really understand the nature of any defence being pursued by the defendants and that the defendants had not properly articulated the nature of their defences to the plaintiff. In other words, it seemed to me that the parties did not understand the cases that they had to meet, and also that there may be matters remaining in issue which probably should not be in issue.

8. I thus made a number of orders on 12 August 2021 to facilitate the narrowing of issues and exchanging of evidence. At that stage I was not aware that the first defendant had not actually filed a defence, but it was clear that the parties were proceeding on the basis that the first defendant was not admitting anything of substance.

9. I also directed that the defendants write to the plaintiff within 21 days informing the plaintiff whether breach of duty of care was still in issue and why it was still in issue, and whether they disputed the plaintiff's version of events.

10. The plaintiff's version of events as set out in his statement of claim is rather a simple version, being that during the course of his employment he was standing on the first floor when he fell through a void a distance of approximately three metres.

11. I also made orders for the further exchange of any additional expert evidence and that the experts participate in a conclave by 16 December 2021.

12. It is not necessary that I set out each individual order I made on 11 February 2022, but the effect of the orders was to ensure that by December 2021 the parties would be aware of all the evidence each party intended to serve.

13. I then directed that the parties participate in a mediation, that is after all of the evidence had been served, and further that they indicate prior to 1 February 2022 which doctors they required for cross-examination.

14. The point of the orders was to ensure that:

1. Issues of liability were narrowed, including issues relating to whether a duty of care was owed and whether any party was in breach of a duty of care;

2. The parties were aware of all the evidence, including the joint reports, before they participated in a mediation; and

3. No hearing time was wasted by directing that the parties consider well in advance of the hearing whether they would require any of the medical experts for cross-examination.

15. In the end, the first defendant only filed a defence in December 2021, even though the proceedings were commenced in 2018. I accept that this was a simple oversight or administrative error.

16. Be that as it may, it is also plain that the plaintiff was proceeding on the basis that everything was in issue. Having said that, when the plaintiff became aware that the first defendant had not filed a defence or that no admissions were being made, the plaintiff decided to seek judgment in accordance with the orders sought in the motion.

17. The matter then came before me on 11 February 2022. After some technical difficulties, Mr Jurisich of Counsel for the plaintiff indicated that the plaintiff wished to have the motion, which he had filed in December, determined on that day. I stood the motion over for hearing until today in the hope that the parties might reach some agreement, having regard to the orders I made on 11 August 2021.

18. I was also informed by the solicitor for the first defendant that the first defendant had not complied with the first order I made on 12 August 2021, being an order specifically directed at narrowing the liability issues.

19. As it turns out, other than the second defendant, the parties have not complied with or are unable to inform me today whether they have complied with a number of orders that were made on 12 August 2021.

20. The experts did not participate in the conclave by 14 December 2021 and have not yet done so, although I am informed that arrangements are now in place for that to occur. In other words, despite making an order that it occur in December, the parties have come before me saying, well, they are arranging for it to occur in March.

21. Counsel for the first defendant, briefed only to appear in response to the plaintiff's motion today, was unable to provide information about the real issues in dispute or whether, for example, the essential factual allegations of the plaintiff are in dispute or, indeed, whether the first defendant had complied with the order relating to notifying the other parties as to which experts were required. This is a problem because once again I am confronted by an absence of explanation (that is by the first defendant’s representative) as to what the real issues are and why certain matters remain in issue.

22. That is no criticism of counsel, as he acts in accordance with his instructions. He was briefed only to appear on the motion, essentially taking the point that the motion should be stood over to be determined on the first day of the hearing; providing submissions as to why that should occur.

23. However, the reality of this matter is that there has been non-compliance with orders I made in August 2021. I am dealing with a motion by the plaintiff for summary judgment essentially on the basis that the first defendant did not file a defence until three years after the case started and that the defence does not properly articulate the real issues in dispute.

24. I suspect that the plaintiff might be gathering some comfort from what was said when the matter was before me in August 2021. In other words, the real issues in dispute may not be whether the plaintiff fell and sustained injuries, as he maintains, but who is responsible for that.

25. Further, on the current pleading by the first defendant, the plaintiff is required to adduce evidence that the first defendant had the care and control of the building site because the first defendant has not admitted this. The plaintiff is required to establish this for the purposes of establishing that the first defendant owed a duty of care to him.

26. The plaintiff does not actually plead that a duty of care was owed but it is clear from paragraph four of the amended statement of claim that that is what the plaintiff is suggesting.

27. Of course, it would follow that if the first defendant was the occupier and had the care and control of the building site, that is, the building site as a whole, it would have owed a duty of care to workers coming onto the site.

28. I am not sure of any proper basis in which it could be suggested to the contrary.

29. Questions of breach would still arise but questions of duty would not. If the existence of a duty of care had been admitted, and the version of events had also been admitted, then a number of factual issues in this case would have gone away.

30. Mr Perla, on behalf of the second defendant, informs me that the second defendant does not dispute that the plaintiff fell as he maintains; and, further, that the second defendant is not intending to adduce any expert evidence; and, indeed, will not be suggesting that there were no precautions that could have been taken. The issue is what precautions should have been taken and who should have taken them. I do not know whether the first defendant takes a similar view.

31. I am now dealing with a motion brought by the plaintiff for summary judgment, essentially, because the first defendant has not complied with its obligations in terms of filing a defence and has specifically not complied with my orders which were made for the purposes of narrowing the issues.

32. In particular, the very purpose of me directing that the first defendant consider the issues, consider its defence (on the assumption that it had filed one) and write to the solicitors for the plaintiff indicating what the real issues were was to avoid unnecessary expert evidence, unnecessary statements and unnecessary Court time.

33. When the matter was called on, on 11 February 2022, I was informed by the solicitor for the first defendant that there had been no compliance with that order. The explanation was, as I understand it, that the first defendant was acting for a London underwriter and had not been able to get instructions.

34. Unfortunately, that is not an acceptable explanation. I understand the difficulty in getting instructions from London underwriters. I understand that there might be some delay in some cases. I acknowledge that that could create problems in the running of a case. I also understand that this type of failure to comply with orders is not the normal approach from those representing the first defendant. However, it is in this case unsatisfactory.

The plaintiff’s motion

35. I will now deal with the plaintiff's motion. The plaintiff seeks relief either under rule 13.1 or rule 14.3 of the UCPR. Under rule 13.1, a plaintiff may be entitled to obtain judgment in circumstances in which there is evidence of the facts on which the claim or part of the claim is based, and there is evidence that the defendant has no defence to the claim or part of the claim, and no defence except as to the amount of any damages claimed.

36. The defendant has now filed a defence. In its defence, it has not admitted anything of substance other than that it was the head contractor. It has not admitted that the plaintiff's accident occurred as alleged. Plainly, there is a dispute between the first and second defendants as to who was responsible for the plaintiff's accident and what may have caused the plaintiff's accident.

37. Mr Sharpe, on behalf of the first defendant, refers to the General Steel test. ^[1]

    1. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129 (Barwick CJ); [1964] HCA 69.

38. Other than the fact that the plaintiff is unhappy with the first defendant's defence, there is nothing before me which would indicate that the first defendant's defence is so obviously untenable that it cannot succeed or manifestly groundless. The application by the plaintiff, under rule 13.1 of the UCPR, in the circumstances as they exist at this time, that is, the first defendant having now filed a defence, is misplaced.

39. Similarly, the plaintiff cannot succeed under rule 14.3 of the UCPR. Rule 14.3 permits the plaintiff to file a notice of motion for summary judgment under rule 13.1, but then allows the Court to extend the time for the filing of a defence when dealing with the motion for summary judgment. Rule 14.3 does not provide a basis for striking out the defence at this time.

40. As the matter stands at the moment, it is listed for a five-day hearing on 2 May 2022. The defendants have each filed a defence. There is a related matter being pursued by the employer for recovery of workers compensation payments. Subject to the first defendant requesting an extension of time to serve a lay statement, I understand that all the evidence had been served. Cross-claims have been filed.

41. I should say that the fact that the first defendant filed a cross-claim early in the proceedings without filing a defence is indicative of the fact that the failure to file a defence was simply an administrative oversight, which I have already accepted.

42. The plaintiff has not made out the grounds on which he relies for the purposes of obtaining summary judgment against the first defendant and the plaintiff's motion is dismissed.

Going forward

43. However, as will be apparent from the terms of this judgment, there is a broader issue at play in this matter. The broader issue involves parties not complying with case management orders and, in particular, not complying with a rather simple direction to write to another party in an attempt to narrow the issues.

44. It is important in case managing that the Court look forward, not backward, in ensuring that a matter is ready for hearing. However, the orders of the Court are intended to be complied with. Case management is designed to ensure the quick, just and cheap resolution of the real issues in dispute.

45. It serves a number of specific purposes, including:

1. Ensuring that only the necessary and required court time is allocated for a hearing;

2. Ensuring that the parties’ pleadings properly reflect the case that each party intends to run and do not raise matters that should not be in dispute;

3. Ensuring that there are no late applications to amend pleadings thereby avoiding unnecessary and costly adjournments;

4. Ensuring that all evidence is served well before any allocated hearing date, that is, in many cases months, not days or weeks, subject of course to bringing any evidence up to date;

5. Ensuring that the parties have given proper consideration to the real issues in dispute and that each party is aware, either through pleadings, particulars or even direct correspondence (such as emails or letters which I may order be sent), of the case that they have to meet; and

6. Ensuring that all appropriate steps have been taken or will be taken to attempt resolution of the matter as a whole or at least some of the issues.

46. There has been no attempt to narrow the issues in this case by the first defendant. The terms of the first defendant's defence are broad and general. Nothing of significance is admitted. Further, contrary to my specific order made on 12 August, the first defendant did not forward a letter to the plaintiff identifying the real issues until 1 March 2022, and even that letter was really dealing with why the plaintiff's motion should not succeed and should be withdrawn.

47. If the first defendant had complied with the Court's orders made for the purposes of narrowing the issues, then it seems likely that we would not be here because when filing a defence, the first defendant would have realised that there were matters which could be admitted whilst retaining the right to agitate the essential and critical issues.

48. Every month a large number of matters come before me for the sort of case management that was undertaken in this matter. The failure to comply with case management orders can have consequences. This has been demonstrated in this matter.

Costs

49. The first defendant having been successful on the motion seeks costs on an indemnity basis.

50. The plaintiff seeks that the first defendant pay the costs. The second defendant and the plaintiff in the related matter appeared today (having regard to their interests and having been directed to do so as part of the case management process) and also seek costs.

51. As will already be apparent from this judgment, I am satisfied that the reason we are here today is because the first defendant did not file a defence until December 2021 and, more specifically, because the first defendant did not comply with the Court’s orders made for the purposes of narrowing the issues in the case.

52. In those circumstances, I order that the first defendant pay the costs of the motion including the costs of the hearing today and including the costs of the second defendant and the plaintiff in the other matter.

53. I will make further directions again to encourage the parties to narrow the issues as follows:

1. I order that the first defendant, within 7 days, review its defence and consider whether it wishes to admit duty of care, whether it had the control of the premises or any other matters such as the essential factual allegations. If it does, I direct that the first defendant file an amended defence within 14 days being 18 March 2022.

2. I grant leave to the first defendant to serve any additional lay statement by 18 March 2022.

3. Should any party maintain that it is unable to meet that further evidence by the first defendant, I grant leave to that party, including (including the related matter), approach my Chambers to have the matter relisted to agitate the issues.

4. I grant leave to all parties to the proceedings to rely on all evidence which has been served today.

5. I confirm the hearing date of 2 May 2022.

6. I make the usual order for hearing (order added after hearing and notified to parties).

Endnote

Decision last updated: 07 March 2022