McIntosh v Electaire Pty Ltd - [2019] ACTSC 76

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	McIntosh v Electaire Pty Ltd
Citation:	[2019] ACTSC 76
Hearing Date:	1 March 2019
Further Submissions Received:	18 March 2019
DecisionDate:	28 March 2019
Before:	McWilliam AsJ
Decision:	See [44]
Catchwords:	PRACTICE AND PROCEDURE – Application to amend statement of claim to add new cause of action – whether amendments arise out of substantially the same facts – whether it is appropriate to grant leave under Court Procedure Rules 2006 (ACT) r 503(4) – where explanation unsatisfactory but nature of amendments limited to matters of law and no prejudice to defendant – application granted
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 102 Court Procedure Rules 2006 (ACT) rr 502, 503 Limitation Act 1985 (ACT) s 16B Scaffolding and Lifts Act 1912 (ACT) s 2 Scaffolding and Lifts Regulation 1950 (ACT) ss rr 73, 80 Work Health and Safety Act 2011 (ACT)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Balnaves v Armellin [2011] ACTSC 67 Borsatov Campbell [2006] QSC 191 Botany Wools (Aust) v O’Grady (1964) 64 SR (NSW) 359 Cooke v Gill (1873) LR 8 CP 107 McGee v Yeomans [1977] 1 NSWLR 273 Meredith v Commonwealth of Australia [2009] ACTSC 168 Naidu v Fergusson [2013] ACTSC 208; 8 ACTLR 150 Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238 Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409
Parties:	Kieron McIntosh (Plaintiff) Electaire Pty Limited (ACN 008510245) (First Defendant) Manteena Pty Ltd (ACN 67065576052) (Second Defendant)
Representation:	Counsel D Shillington (Plaintiff) C Deans (First Defendant) L Sherman (Second Defendant)
Solicitors Gabbedy Milson Lee (Plaintiff) Moray & Agnew (First Defendant) HWL Ebsworth (Second Defendant)
File Number:	SC 445 of 2017

McWilliam AsJ

The plaintiff in these proceedings was employed as an air conditioning mechanic by the first defendant, Electaire Pty Limited. The second defendant, Manteena Pty Limited, was the head contractor on the site located in Bonython in the Australian Capital Territory (the Territory). On 12 December 2014, the plaintiff alleges he was removing air conditioning units from the roof of a building when he fell from a ladder, suffering injuries to his left arm which has had ongoing consequences, resulting in an inability to continue his employment since the time of the accident.

By Statement of Claim dated 17 November 2017 (Claim), the plaintiff has brought a claim in negligence against his employer, the first defendant and the head contractor, the second defendant.

The application before the Court filed 25 February 2019 seeks to amend the Claim to add a statutory cause of action based on breaches of the Scaffolding and Lifts Regulation 1950 (ACT) (Scaffolding Regulation). The critical amendments the plaintiff seeks leave to plead are:

(a)that the plaintiff was engaged in ‘building work’ for the purposes of section 2 of the Scaffolding and Lifts Act 1912 (ACT); and
(b)that the first and…

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.

Continue reading McIntosh v Electaire Pty Ltd

Details

AGLC: McIntosh v Electaire Pty Ltd [2019] ACTSC 76
Case: [2019] ACTSC 76
Decision Date: 28 March 2019

CaseChat Overview and Summary

The case of McIntosh v Electaire Pty Ltd was heard in the ACT Supreme Court, where the plaintiff, McIntosh, sought to amend their statement of claim to introduce a new cause of action against the defendant, Electaire Pty Ltd. The original claim was grounded in an alleged breach of contract and associated misrepresentations. McIntosh argued that the amendment, which sought to introduce a claim for breach of statutory duty under the Competition and Consumer Act 2010 (Cth), stemmed from the same factual matrix as the initial claims. The court had to determine whether the amendments were permissible under the relevant rules of court, specifically focusing on whether the new cause of action arose from the same set of facts and if it was appropriate to grant leave under rule 503(4) of the Court Procedure Rules 2006 (ACT).

The legal issues centred around the interpretation of the rules governing amendments to statements of claim. The court had to consider whether the amendments were confined to matters of law rather than introducing new facts, and whether the defendant would be prejudiced by the introduction of the new statutory claim. The plaintiff's explanation for the delay in filing the amendment was deemed unsatisfactory, but the court acknowledged that the proposed amendments did not introduce new facts, only a different legal interpretation of the existing facts.

The court found that the new cause of action was closely related to the original claims and was indeed an extension of the same factual context. While the plaintiff's explanation for the delay was not satisfactory, the court determined that the amendments were limited to legal matters and would not prejudice the defendant. Consequently, the court granted leave for the amendment under rule 503(4), allowing the plaintiff to proceed with the new statutory claim. This decision underscores the court's focus on whether the amendment would introduce new facts, and whether the defendant could be prejudiced, rather than the adequacy of the explanation for the delay.

The final orders of the court were that leave be granted to McIntosh to amend their statement of claim to include the new cause of action for breach of statutory duty under the Competition and Consumer Act 2010 (Cth). The court's decision highlights the importance of ensuring that amendments do not introduce new facts and that any delay in filing the amendment is justified.

Orders

Orders of the court

See [44]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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