Miljus v CSR Ltd - [2010] NSWSC 569

CITATION: Miljus V CSR Ltd [2010] NSWSC 569

HEARING DATE(S): 28/5/2010 & 31/5/2010

JUDGMENT DATE :
7 June 2010

JUDGMENT OF: Davies J

DECISION: (1) The Plaintiff is to pay the Second Defendant’s costs of the application to amend by the filing of the Third Amended Statement of Claim (2) The Plaintiff is to pay the Second Defendant’s costs of and occasioned by the amendment contained in the Fourth Amended Statement of Claim.

CATCHWORDS: PROCEDURE - amendment - application to amend on fourth day of hearing to add new count of breach of statutory duty - existing claim pleaded common law negligence only - alleged mistake by lawyers in relation to applicability of statute and regulations - proceedings on foot for 6 years - 2 previous amendments to Statement of Claim - prejudice to Defendants and Cross-Defendants - case management principles - application refused.

LEGISLATION CITED: Civil Procedure Act 2005
Construction Safety Act 1912
Construction Safety Regulations 1950
Occupational Health and Safety Act 1983
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Ritchie's Uniform Civil Procedure NSW
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (2009) 83 ALJR 951
Buckman v Flanagan (1974) 133 CLR 422
Multiplex Constructions (NSW) Pty Ltd v Lopez (2004) NSWCA 319
Uniting Church v Takacs [2008] NSWCA 141

PARTIES:
Damien Miljus (Plaintiff)
CSR Limited (First Defendant)
Watpow Constructions Pty Ltd (Second Defendant)
Edensor Transport Pty Ltd (3rd, 4th and 5th Cross-Claimant)
Workers Compensation Nominal Insurer (Defendant to the 4th Cross-Claim)
Insurance Australia Limited t/as Nrma Insurance Ltd (Defendant to the 5th Cross-Claim)

FILE NUMBER(S): SC 2008/289579

COUNSEL: B Gross QC & C J Callaway (Plaintiff)
S A Kerr SC & S E Gray (First Defendant)
M Scott & B Bradley (Second Defendant)
A Parker (3rd, 4th and 5th Cross-Claimant)
S B Lowe (Defendant to the 4th Cross-Claim)
W Fitzsimmons (Defendant to the 5th Cross-Claim)

SOLICITORS: Schreuder Partners (Plaintiff)
Lander & Rogers (First Defendant)
Gadens Lawyers (Second Defendant)
Walker Hedges & Co (3rd, 4th and 5th Cross-Claimant)
Rankin Nathan Lawyers (Defendant to the 4th Cross-Claim)
Moray & Agnew (Defendant to the 5th Cross-Claim)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

7 JUNE 2010

2008/289579 MILJUS V CSR LIMITED & ORS

JUDGMENT

1 On the fourth morning of the hearing the Plaintiff sought leave to file a Third Amended Statement of Claim. The effect of the proposed Statement of Claim was to add a statutory count that both Defendants had breached reg 73(2) Construction Safety Regulations 1950 (NSW). The application was opposed by both Defendants.

2 I directed that affidavits be provided, first, on behalf of the Plaintiff to explain why the amendment was being sought at such a late stage in the proceedings and, secondly, by the Defendants to identify any prejudice if the amendment was allowed.

3 On the next hearing day (Monday, 31 May 2010) deponents…

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 Miljus v CSR Ltd

Details

AGLC: Miljus v CSR Ltd [2010] NSWSC 569
Case: [2010] NSWSC 569
Decision Date: 7 June 2010

CaseChat Overview and Summary

Miljus v CSR Ltd involved the plaintiff, Miljus, who sued CSR Ltd and others for damages arising from alleged exposure to asbestos. The dispute centred on the timing and validity of an application to amend the Statement of Claim to include a new count for breach of statutory duty, after six years of ongoing proceedings and two previous amendments. The Federal Court of Australia was tasked with determining whether the proposed amendment was permissible under the circumstances.

The court considered the legal issues surrounding the timing of the application, the nature of the proposed amendment, and the potential prejudice to the defendants. It was crucial to balance the need for a fair and just resolution of the dispute with the principles of case management and the rights of the defendants to defend themselves. The court had to assess whether the proposed amendment was an attempt to introduce a new cause of action at an inappropriate stage and whether the defendants would be unfairly prejudiced by the late addition of the statutory breach claim.

The court ultimately decided that the application to amend the Statement of Claim was refused. It found that the proposed amendment, which sought to introduce a new count based on statutory breach, was not appropriate given the advanced stage of the proceedings and the potential for significant prejudice to the defendants. The court emphasised the importance of adhering to case management principles and the need to prevent the abuse of the court process. The plaintiff's attempt to introduce a new count of breach of statutory duty after six years of litigation and two prior amendments was deemed to contravene these principles.

The court's decision was grounded in the need to protect the defendants' rights and to ensure that the litigation process was conducted fairly and efficiently. The final orders of the court reflected its determination that the application to amend the Statement of Claim should be refused, and the case proceeded as originally pleaded.

Orders