McKellar v Lavalle - [2025] NSWSC 1000

Supreme Court

New South Wales

Medium Neutral Citation: McKellar v Lavalle [2025] NSWSC 1000
Hearing dates: 2 September 2025
Date of orders: 2 September 2025
Decision date: 02 September 2025
Jurisdiction: Common Law
Before: Chen J
Decision:
See [74]

Catchwords:
CIVIL PROCEDURE – tuna and swordfish fishing – argument about the most suitable bait whilst fishing offshore – melee subsequently erupts at Ulladulla Harbour – plaintiff allegedly sustains physical and psychological injuries during and after the fracas – where the plaintiff seeks leave to rely upon the second further amended statement of claim – where the plaintiff seeks orders to rely upon and admit into evidence various evidentiary statements and other material – whether certain expert medical evidence was “reasonably available” to the plaintiff when the pre-filing statement was provided – whether the plaintiff would be “substantially prejudiced” were orders not made – leave granted

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Commissions Rules 2011 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982
Paper Coaters Pty Limited v Jessop [2009] NSWCA 1
Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Category: Procedural rulings
Parties: Craig McKellar (plaintiff)
Paul Lavalle (first defendant)
Daniel Lavalle (second defendant)
Dominico Rocco Lavalle (third defendant)
Workers Compensation Nominal Insurer – icare (fourth defendant)
Representation:
Counsel:
B Dooley SC / E Anderson (plaintiff)
I Todd (fourth defendant)
Solicitors:
Acer Law (plaintiff)
AC Lawyers (first defendant)
Kennedy & Cooke (second and third defendants)
Turks (fourth defendant)

File Number(s): 2019/00285505
Publication restriction: N/A

EX TEMPORE JUDGMENT

Introduction

These proceedings arise out of a fight between employees on or near a fishing vessel, the ‘Tunamoon’ (‘the vessel’), whilst docked at Ulladulla Harbour on 14 September 2016.
The matter is listed for hearing on 1 December 2025. The current application essentially concerns what material can be used by the plaintiff in those proceedings, given the statutory constraints within Chapter 7, Part 6 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’).

The plaintiff’s notice of motion

By notice of motion filed on 25 July 2025, Craig McKellar (‘the plaintiff’) seeks four proposed orders, namely:

an order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) and/or r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) granting the plaintiff leave to rely upon a second further amended statement of claim;

an order pursuant to s 192A of the Evidence Act 1995 (NSW) allowing the plaintiff to rely upon various evidentiary statements and other material;

an order pursuant to s 318(2) of the WIM Act granting the plaintiff leave to admit into evidence various evidentiary statements and other material at the impending hearing; and

an order that the Workers Compensation Nominal Insurer (icare; ‘the fourth defendant’) pay the costs of this motion.

For convenience, the above proposed orders will be referred to…

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.

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Details

Case: [2025] NSWSC 1000
Decision Date: 02 September 2025

CaseChat Overview and Summary

McKellar v Lavalle was a case before the Supreme Court of New South Wales, where the plaintiff, McKellar, sought leave to rely on a second further amended statement of claim. The plaintiff alleged that he had suffered physical and psychological injuries during a melee that erupted at Ulladulla Harbour, following an argument about the most suitable bait while fishing offshore. The plaintiff sought orders to rely upon and admit into evidence various evidentiary statements and other material, as well as to admit expert medical evidence that was not available at the time the pre-filing statement was provided. The defendant, Lavalle, opposed the plaintiff's application on the grounds that the application was an abuse of process and that the plaintiff would not be substantially prejudiced if the orders were not made.

The court was required to determine whether the expert medical evidence was "reasonably available" to the plaintiff when the pre-filing statement was provided and whether the plaintiff would be "substantially prejudiced" if the orders were not made. The court considered that the expert medical evidence was not reasonably available to the plaintiff at the time the pre-filing statement was provided, as it was only obtained after the commencement of the proceedings. The court also found that the plaintiff would be substantially prejudiced if the orders were not made, as the expert medical evidence was crucial to the plaintiff's case.

The court held that the plaintiff was entitled to rely upon and admit into evidence the various evidentiary statements and other material, as well as the expert medical evidence. The court also held that the plaintiff was entitled to rely upon the second further amended statement of claim. The court found that the application was not an abuse of process and that the plaintiff would be substantially prejudiced if the orders were not made.

The court granted the plaintiff's application for leave to rely upon the second further amended statement of claim and to admit into evidence the various evidentiary statements and other material, as well as the expert medical evidence. The court noted that the defendant had an opportunity to cross-examine the expert witnesses and that the defendant had not raised any objection to the admissibility of the evidence at an earlier stage of the proceedings.

Orders