Raydan v Salmat Mediaforce Pty. Limited (Ruling)

[2023] VCC 369

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-03171

SOUHAIL RAYDAN	Plaintiff
v
SALMAT MEDIAFORCE PTY. LIMITED (ACN 001 702 129)	Defendant

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JUDGE:	JUDICIAL REGISTRAR J B GURRY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF RULING:	2 March 2023
CASE MAY BE CITED AS:	Raydan v Salmat Mediaforce Pty. Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VCC 260

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Application by plaintiff for leave to file and serve a further amended statement of claim

Legislation Cited:      County Court Civil Procedure Rules 2018, r13; Accident Compensation Act 1985, s7A, s134AB; Civil Procedure Act 2010, s63, s64

Cases Cited:Charan v Nationwide News Pty Ltd [2017] VSC 66; Mandie v Memart Nominees Pty Ltd [2016] VSCA 4; Utility Services Corporation Ltd v SPI Electricity Pty Ltd (2012) 35 VR 628

Ruling:  Leave granted to the plaintiff to file and serve a Further Amended Statement of Claim. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Perilli	Zaparas Lawyers Pty Ltd
For the Defendant	Mr M Hooper	Minter Ellison

JUDICIAL REGISTRAR:

Summary

1This is a summons application by the plaintiff for leave to file and serve a Further Amended Statement of Claim dated 13 September 2022.  The defendant opposes the application.

2The proceedings are listed for trial on 20 March 2023, with priority, having been marked “not reached” on 14 September 2022.  A jury notice has been served by the defendant.

3No other timetabling orders were made with the Order on 14 September 2022. 

4The plaintiff commenced proceedings by way of Writ dated 17 July 2022 and Statement of Claim dated 14 August 2020.

5The Further Amended Statement of Claim seeks to plead that the plaintiff was a deemed employer.

6In addition to consideration of the leave application, I must also consider whether the trial date can be maintained and any prejudice to the defendant by the late application for leave.

7For the reasons set out, I am prepared to grant leave to the plaintiff to file and serve the Further Amended Statement of Claim.  Further, I am satisfied that there is no significant prejudice to the defendant, such that it would require the vacation of the trial date.

The Plaintiff’s and Defendant’s submissions

8In addition to submissions from counsel during the hearing of the Summons application, I also received written submissions from the defendant dated 16 February 2023.  I do not propose to provide a summary of those submissions.

Consideration

9The plaintiff pleads in the Statement of Claim that between 2003 and 2015, he was employed by the defendant.  Further, on or around 8 December 2011 and in December 2013, he sustained injury, “performing onerous heavy, repetitive, and fast-paced delivery driver duties … [when] repetitively manually handling heavy bundles of catalogues at a fast pace”.

10In the Defence dated 30 September 2020, the defendant denies it employed the plaintiff during those years.  Further, it pleaded it would lead evidence the plaintiff was engaged as a subcontractor owner/driver and there was never an employment relationship with the plaintiff, but the relationship was only ever that of principal/contractor.

11On 28 April 2022, the parties sent proposed consent orders seeking leave for the plaintiff to file and serve an Amended Statement of Claim dated 7 April 2022, and for the defendant to file and serve a defence to the plaintiff’s Amended Statement of Claim.

12Orders were made on 10 May 2022 fixing the proceedings for trial on 14 September 2022.  Leave was granted to the plaintiff to amend the Statement of Claim in the form dated 7 April 2022 and for the defendant to file and serve an amended defence.

13In the Amended Statement of Claim, at paragraph 1, the pleading now included an allegation that in addition to the defendant employing the plaintiff, it engaged the plaintiff as a subcontractor owner/driver. 

14In the Defence to the Amended Statement of Claim dated 12 August 2022, the defendant pleaded it never employed the plaintiff between the relevant years, but admitted it engaged the plaintiff as a subcontractor owner/driver. 

15At paragraph 2 of the Further Amended Statement of Claim, it is pleaded that the defendant throughout the course of his employment was an employee or alternatively a deemed worker as a sub-contractor.

16The Further Amended Statement of Claim is dated 13 September 2022 and the proposed amendments were brought to the attention of the defendant at the not-reached hearing.

17In the affidavit of the plaintiff’s solicitor, at paragraph 4, he deposed that, on 13 September 2022, on the advice of Senior Counsel, the plaintiff served a Further Proposed Amended Statement of Claim on the defendant via email and advised of its intention to seek leave to amend its pleadings at the commencement of the trial. 

18It is agreed no application was made by the plaintiff on the day, and it took until 30 January 2023 before the plaintiff made application to the Court for leave.

19The defendant submitted that if the proposed pleading was allowed, it would be struck out, the amendments were variously frivolous, lacked a reasonable prospect for success, lacked a proper factual foundation and were otherwise futile.

20The defendant accepts the plaintiff was a “deemed worker” under s7A of the Accident Compensation Act 1985 (Vic) (“the Act”). Further, as a deemed worker, his causes of action were therefore affected by s134AB of the Act, which is why he brought a serious injury application.

21On 26 March 2020, in proceeding CI-19-04274, the plaintiff was given leave pursuant to s134AB(16)(b) “to bring proceedings for pain and suffering damages in respect of injury to the lumbar spine during the course of his work for [the defendant]”.

22Submissions made by the defendant included reference to the deeming relationship of an employer and employee for the purposes of the Act, the gateway, and issues relevant to the assessment at common law of the contractual relationship between the plaintiff and defendant.

23Rule 13 of the County Court Civil Procedure Rules 2018 (“the Rules”), headed “PLEADINGS”, sets out the formal requirements. Rule 13.02, headed “Content of pleading”, says:

“(1) Every pleading shall—

(a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;

….”

24Rule 13.10, headed “Particulars of pleading”, says:

“(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.

(2) Without limiting paragraph (1), particulars shall be given if they are necessary—

(a)      to enable the opposite party to plead; or

(b)     to define the questions for trial; or

(c)     to avoid surprise at trial.”

25J Forrest J, in the decision of Charan v Nationwide News Pty Ltd,[1] set out factors to be taken into consideration by a court in considering an amendment.  At paragraph 36, his Honour said:

“Notwithstanding the new paradigm of the Civil Procedure Act, the overriding exercise is to ensure that the interests of justice prevail, within reason.  I accept that there are cases where a court will shut a party out from running a defence (or a fresh claim) or adducing evidence because of its conduct – and particularly in circumstances where a fresh allegation is delivered on the eve of trial.  On the other hand, the fundamental task of a court is to do justice between the parties and to shut a party out from maintaining what I regard as potentially significant arguments at trial would, when the balancing exercise is completed, be unjust.”[2]

[1][2017] VSC 66

[2]Footnote omitted

26In the Court of Appeal decision of Mandie v Memart Nominees Pty Ltd,[3] the Court considered the provisions of the Civil Procedure Act 2010, specifically sections 63 and 64 regarding summary judgment, and considerations with respect to allowances of amendments to claims or defences. The Court said, at paragraph 47, on the test that should apply:

“…

Where the Court is considering an objection to a proposed amendment to a pleading on the basis that it would not survive a summary judgment application, the correct test is whether the amendments raise a claim or defence that has no real prospect of success, in the sense of being fanciful.  … .”

[3][2016] VSCA 4 (“Mandie”)

27The Court further said, at paragraph 43:

“The power conferred on the court by s 63(1) of the CP Act to dispose of claims before a trial facilitates one of the stated purposes of the Act. Subject to limited exceptions, if a claim or defence has no real prospect of success, then summary judgment may be given. It must follow that a proposed pleading amendment raising a claim or defence of that type should not be permitted. … .”[4]

[4]Footnotes omitted

28The Court, in Mandie, cited Utility Services Corporation Ltd v SPI Electricity Pty Ltd[5] and what was said in that decision about how best to determine whether there was a prospect of success.  Beach AJA said that he was satisfied that the proposed amendments “were arguable” and therefore should be allowed.  Bongiorno JA took the view that the basis of liability alleged in the proposed pleading was not “unarguable”. 

[5](2012) 35 VR 628

29I am going to grant the plaintiff’s application for leave to amend the Statement of Claim. I am satisfied the proposed pleading complies with the requirements of Rule 13 of the Rules. The factual circumstances regarding the relationship between the plaintiff and defendant can only be properly determined when there has been a full hearing of the proceeding with all evidence, and the merits can be determined.

30I believe there is an arguable case, and I am not satisfied there is no real prospect of success if I allow the amendment.  In that regard, I refer to what the Court of Appeal said in Mandie of the relationship between allowing or disallowing a pleading amendment and summary judgment being entered.

31Section 64 of the Civil Procedure Act is headed “Court may allow a matter to proceed to trial” and states that –

“Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—

(a)it is not in the interests of justice to do so; or

(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.”

32This is such a situation.  It would not be in the interests of justice for the plaintiff to be precluded from arguing his employment status when it is a live issue between the parties.  Further, it has been in dispute since the service of the Defence.  The status of that relationship and the obligation in law requires a full hearing on the merits. The matter is further complicated given the plaintiff was required to proceed through the serious injury gateway to be entitled to seek damages for the alleged injury. 

33I am finally required to consider the issue of prejudice to the defendant by the late amendment.

34Counsel for the defendant submitted that whilst it was not ideal in the timing of the application, it would be difficult to argue there was any significant prejudice to the defendant. 

35The argument will turn very much upon the evidence before the trial judge and the legal issues involved.  Nothing further by way of discovery, interrogation or expert evidence should alter that position.       The defendant was first put on notice of the proposed pleading last September.

36Whilst it has been a live issue between the parties, the defendant should be allowed, if it wishes, to have an opportunity to file any defence to the Further Amendment Statement of Claim.

37Similarly, the filing of a defence should not prejudice the plaintiff.

38Finally, whilst the employer is named as the defendant, it is the Victorian WorkCover Authority that is defending the proceedings.  Issues of this type are matters that it and its legal advisors are required to deal with regularly.  I cannot see any significant prejudice to the defendant by allowing this amendment.

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