Mehta v Woolworths Group Ltd

[2023] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mehta v Woolworths Group Ltd
Citation:	[2023] ACTSC 214
Hearing Date:	4 August 2023
Decision Date:	4 August 2023
Before:	Mossop J
Decision:	See [24].
Catchwords:	PRACTICE AND PROCEDURE – JOINDER OF PARTIES – Application to join second defendant to proceedings – personal injury – claim against supermarket arising from operation of sliding doors – defence asserting contract with maintenance company – whether maintenance company should be joined as a defendant – defects in defendant’s pleadings – where plaintiff’s
solicitors significantly delayed addressing issue of joinder of
second defendant – basis for joining second defendant as entity contracted to maintain the doors – desire to avoid multiplicity of proceedings and potentially inconsistent outcomes – where defendant neither consents to nor opposes application – joinder of additional defendant allowed – hearing vacated
Legislation Cited:	Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 220, 501, 502, 504, 507, 1753
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27; 239 CLR 175 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Fabre v Lui [2015] NSWCA 157 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
Parties:	Shiel Mehta (Plaintiff)
Woolworths Group Ltd (Defendant)
Representation:	Counsel
B Jullienne (Plaintiff) D Shillington (Defendant)
Solicitors
United Legal (Plaintiff) Meridian Lawyers (Defendant)
File Number:	SC 220 of 2022
MOSSOP J:
Introduction
1․	By way of an application in proceeding, the plaintiff seeks leave to file an Amended
Originating Claim and Amended Statement of Claim for the purpose of joining a second
defendant to the proceedings. The Originating Claim seeks damages for what is said to
be negligence on the part of Woolworths as the occupier of the premises. The Amended
Originating Claim seeks to add Assa Abloy Entrance Systems Australia Pty Ltd as the
second defendant. From correspondence between the plaintiff’s solicitors and
Woolworths’ solicitors, it appears that Woolworths’ position is that it delegated a relevant
part of its duty to the Assa Abloy entity.
2․	Since 2 February 2023, the matter has been listed for hearing on 28 August 2023 with
an estimate of three days.
3․	The power to grant leave to amend an originating process and Statement of Claim arises
from rr 501, 502, 504 and 507 of the Court Procedures Rules 2006 (ACT). The power to
join additional parties is in r 220.
Facts
4․	The proceedings were commenced by an Originating Claim filed on 4 July 2022. The
claim is one alleging negligence on the part of Woolworths. The plaintiff alleges that on
4 March 2021, when attempting to exit a Woolworths store, the automatic sliding doors
closed on the plaintiff, striking his head and trapping both of his arms below his
shoulders. Later that day, as a result of dizziness and his injuries, the plaintiff fell to the
ground and suffered further injuries.
5․	Woolworths filed a Defence on 19 October 2022. In response to the claim of a breach of
duty of care, Woolworths pleaded:

The defendant denies paragraphs 5.1 to 5.2 inclusive of the Statement of Claim and says it retained Assa Abloy to service and maintain the sliding doors at the entrance of the premises.

6․	At about the same time, the solicitors for Woolworths provided the plaintiff’s solicitors
with documents relating to the door manufacturing and maintenance company known as
Assa Abloy.
7․	A statement of particulars was filed by the plaintiff on 19 December 2022. A listing
hearing questionnaire was filed by the plaintiff in January 2023 and an amended
questionnaire filed in February 2023. Both such questionnaires indicated that counsel
had been briefed and counsel’s advice on evidence had been obtained. I interpolate that
the references to counsel in that document were not references to Mr Jullienne, who appeared on the present application. On 2 February 2023, the matter was listed for
hearing in the week commencing 28 August 2023. On 30 January 2023, the defendant
provided answers to the interrogatories. The answers to the interrogatories supplied
information about the material facts relevant to the engagement of an Assa Abloy entity
that were missing from the defence.
8․	A private mediation occurred on 14 April 2023. Following the mediation, the solicitor for
the plaintiff says that he received advice from counsel (once again, not Mr Jullienne) to
write to the defendant’s solicitors in relation to “confirmation of their client’s position in
relation to the delegation of duty to Assa Abloy”. That letter was written on 21 April 2023
and, after agitating an issue about discovery and answers previously provided to
interrogatories, said:

We refer to previous correspondence and note your client’s position that it is not liable for the Plaintiff’s injuries caused by the automatic doors closing on him 4 March 2021. Can you please

advise whether your client is alleging that it has delegated its duty in relation to the automatic doors to Assa Abloy Entrance Systems under the principles in Leighton Contractors Pty Ltd v Fox (2009) 35 [sic].

9․	There is no evidence of any answer to that request, but no criticism of the defendant by
the plaintiff in that regard. On 12 July 2023, the plaintiff brought the application seeking
leave to file an Amended Originating Claim and Amended Statement of Claim in the form
annexed to the affidavit in support. The Amended Originating Claim adds a second
defendant described at that stage as “Assa Abloy Opening Solutions Autralia” [sic]. The
proposed Amended Statement of Claim simply added a reference to the second
defendant after the reference to the first defendant in the pleadings relating to duty of
care, risk of harm, breach of duty and causation. There is nothing in the pleading which
identifies any material facts explaining what the second defendant is or the nature of its
relationship to the factual circumstances giving rise to the incident. This was corrected
at the hearing of the application by the filing of a further draft Amended Originating Claim
and Amended Statement of Claim.
10․	There are a number of comments to be made about the history of these proceedings.

The pleading of the defence was defective

11․	It is open to an occupier to defeat a claim of negligence by an entrant by asserting that
it has engaged someone else to take steps to keep the property safe either generally or
in a particular respect. In that sense an occupier’s duty of care is a delegable one. This
is illustrated by the decision in Bevillesta Pty Ltd v Liberty International Insurance Co
[2009] NSWCA 16 at [53]:

There is no doubt also that this occupier’s duty of care is “delegable”, in the sense that it may

be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in

engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to

discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise

reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.

See also Fabre v Lui [2015] NSWCA 157 at [25].

12․	The difficulty with the defendant’s pleading is that it does not identify any legal entity to
which any responsibility was delegated. “Assa Abloy” may identify a trading name, but it
is not a legal entity. Further, the Defence did not identify how the entity was “retained”
nor did it provide particulars of any contract by which it was retained to allow the pleading
to be understood. It did not identify the duties of the entity pursuant to the contract. It did
not identify any of the contractor’s qualifications or competencies, which would make
Woolworths’ reliance upon it reasonable. It did not plead any circumstances relating to
the selection or suitability of the entity that would make its conduct reasonable.
13․	Presumably by this minimalist form of pleading it was thought that Woolworths could do
enough to raise an issue without disclosing in any detail what its case was, and thereby
adopt a position of minimal disclosure and maximum flexibility. Such an approach is not
consistent with the duty of a party under s 5A of the Court Procedures Act 2004 (ACT).
However, as mentioned earlier, material facts disclosed in the answers to interrogatories
and, I infer, from documents which were informally discovered, provided details of the
substance of the defence that was to be raised.

The conduct of the plaintiff’s solicitors involved delay

14․	There is no evidence that the plaintiff’s solicitors sought rectification of the difficulties with
the pleading of the defence. After October 2022, informal discovery was given and the
interrogatories to which I have referred were administered. However, there is no
evidence that anything was done by the plaintiff’s solicitors to address the potential for
Woolworths to escape liability because of the delegation of responsibility for the doors to
another entity. Rather, the solicitors for the plaintiff asserted that counsel had been
briefed, that they had obtained counsel’s advice on evidence, that all particulars had
been provided and disclosure of documents had been made. That allowed the matter to
be listed for a hearing. There is no evidence explaining why it was only in April, after the
unsuccessful mediation, that the counsel then engaged raised the query about the effect
of the Defence. The plaintiff’s solicitors should have taken steps to address the position
of an Assa Abloy entity following receipt of the answers to interrogatories on
30 January 2023.

The reliance on the decision in Leighton Contractors was misconceived

15․	The letter that was sent in April referred to the decision in Leighton Contractors Pty
Ltd v Fox [2009] HCA 35; 240 CLR 1. It is not clear how that decision would be relevant.
It does not relate to the delegability of an occupier’s duties. The reference in the letter to
that authority was confusing.

The proposed pleading annexed to the application in proceeding was clearly defective

16․	The proposed pleading obviously misspelt the name of the entity sought to be joined. It
did not identify a legal entity, rather, what appeared to be a trading name or part of the
name of a legal entity.
17․	The pleading did not disclose material facts which would connect the entity proposed to
be joined as the second defendant to the circumstances of the case. It merely added
references to the second defendant where there were references to Woolworths. As I
have indicated, these defects were fixed by the time of the oral hearing by the filing of
amended versions of the proposed Originating Claim and Statement of Claim, which
became exhibit 2.
18․	Prudently, the position of the defendant was to neither consent to nor oppose the
application.

The problem

19․	This appears to be a reasonably clear case in which the second defendant should be
joined. That is because there is a live issue as to whether or not the sliding doors were
functioning properly and maintained in an appropriate way. It appears that Woolworths
had taken steps to contract out responsibility for the maintenance of the doors.
Recognising the potential for the delegation of responsibility by an occupier to a
subcontractor, whether or not the steps taken by Woolworths are sufficient to avoid
liability on the part of Woolworths is a matter to be determined at trial. Depending on the
terms of the contract and the factual circumstances relating to any defect in the doors,
there is certainly a basis for joining the entity, now identified, that was contracted by
Woolworths to maintain the doors. If the proceedings were allowed to run as separate
cases, this would involve a multiplicity of the proceedings and give rise to the potential
for inconsistent outcomes.
20․	However, all of this should have happened a long time ago. The matter had been listed
for hearing on the basis of representations made to the court that it was ready for a
hearing. If another entity is joined, the listed hearing will have to be vacated. Substantial
steps will need to be taken in relation to the second defendant. There is the potential for
there to be claims for contribution or indemnity as between defendants.
21․	Obviously, any decision as to what to do must take place against the background of s 5A
and the decision in Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27; 239 CLR 175. But in light of the reasonable approach taken by the
defendant, to neither consent to nor oppose the amendments and vacation, the decision
is a relatively straightforward one.
22․	The least unsatisfactory solution is to allow the joinder of an additional defendant and
the amendments to the Originating Claim and Statement of Claim, and to vacate the
hearing.
23․	In my view, the necessity to vacate the hearing has resulted from the delay on the part
of the plaintiff’s legal representatives in addressing the issue of the joinder of an
Assa Abloy entity. The solicitors for the plaintiff quite properly gave an undertaking in
relation to costs which was, in the circumstances, appropriate and avoided any necessity
to consider the operation of r 1753 of the Court Procedures Rules.

Orders

24․ For these reasons, the orders of the Court are:

1.       Assa Abloy Entrance Systems Australia Pty Ltd ABN (095 443 486) is joined as

the second Defendant in the proceedings.

2.       The Plaintiff has leave to file an amended originating application and amended

statement of claim substantially in the form of the documents in exhibit 2

tendered on 4 August 2023.

3.       The hearing listed to commence on 28 August 2023 is vacated.

4.       The plaintiff is to pay the defendant’s costs of the application and vacation of

the hearing date.

5.       Note the undertaking of the solicitors for the plaintiff that the plaintiff will not be

charged for the application in proceeding dated 12 July 2023 or costs thrown

away by reason of the vacation of the hearing date and will be indemnified for

any claim by the defendant (Woolworths Group Limited) in relation to a claim

for costs arising from the vacation of the hearing date.

6.       The plaintiff is directed to file the amended originating application and amended

statement of claim by Wednesday 9 August 2023.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 28 August 2023