Rian Lane v Dive Two Pty Ltd - [2012] NSWSC 49

Supreme Court

New South Wales

Medium Neutral Citation: Rian Lane v Dive Two Pty Ltd [2012] NSWSC 49
Hearing dates: 6 February 2012 - 7 February 2012
Decision date: 09 February 2012
Before: Adamson J
Decision:
(1) Dismiss the first cross-defendant's notice of motion filed in Court on 6 February 2012.
(2) Order the first cross-defendant to pay the defendants' and the second cross-defendant's costs of the motion.

Catchwords: PRACTICE AND PROCEDURE - pleadings - amendment - application to amend pleadings - whether issue sufficiently raised - whether issue raised too late in proceedings - exercise of discretion to grant amendment
Cases Cited: - Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
- State Rail Authority of New South Wales v Heath Outdoor Pty Limited (1986) 7 NSWLR 170
- Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
- Western Export Services Inc v Jireh International Pty Limited (2011) 86 ALJR 1
Category: Interlocutory applications
Parties: Rian Lane (Plaintiff)
Dive Two Pty Ltd (First Defendant, First Cross-claimant)
William Andrew Todd (Second Defendant, Second Cross-claimant)
Horsell International Pty Ltd (First Cross-defendant)
Liberty Mutual Insurance Company (Second Cross-defendant)
Representation: D Campbell SC with T Meakes (Plaintiff)
C V Birch SC with P Lowson (Defendants, Cross-claimants)
A S Martin SC with G M Drew (First Cross-defendant)
J Sexton SC with D Macfarlan (Second Cross-defendant)
Beston Macken McManis (Plaintiff)
Slater & Gordon (Defendants, Cross-claimant)
McLachlan Chilton (First Cross-defendant)
Riley Gray-Spencer (Second Cross-defendant)

File Number(s): 2008/00289706

Judgment

On the morning of the first day of the hearing of this matter, the first cross-defendant ( Horsell ) applied for leave to amend its defence to the defendants' cross-claim. The amendment sought to be made is as follows:

"By no later that 31 October 2005 the Second Cross Defendant agreed to insure PADI Asia Pacific and individual members, dive centres and resorts (including the Cross Claimants) for public liability up to $10,000,000 any one event for the period 1 October 2005 to 30 September 2006 plus an endorsement 'watercraft inclusion for craft up to 12 meters'."

By the time of the hearing, the defendants and the cross defendants accepted that the contract was comprised of at least the following two documents: the certificate of insurance issued by the second cross-defendant ( Liberty ) on 31 October 2005 and Master Policy 03.02. For present purposes the relevant clauses of the Master Policy are as follows.

Clause 1 provides that:

"Subject to the terms of this Policy, LIU will pay to or on behalf of the Insured all sums which the Insured shall become legally liable to pay by way of compensation as a result of a Claim(s) both first made against the Insured and notified to LIU during the period of Insurance for Injury and/or Damage in connection with the Insured's Business."

Clause 4 provides that the Insured's business is as defined in the policy wording under "Scuba diving", which clause 2.6 defines as:

"...principally…

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 Rian Lane v Dive Two Pty Ltd

Details

AGLC: Rian Lane v Dive Two Pty Ltd [2012] NSWSC 49
Case: [2012] NSWSC 49
Decision Date: 09 February 2012

CaseChat Overview and Summary

The case of Rian Lane v Dive Two Pty Ltd involved the plaintiff, Rian Lane, who sought damages for personal injuries sustained while participating in a scuba diving expedition organised by the defendant, Dive Two Pty Ltd. The dispute centred on whether the defendant had breached its duty of care in ensuring the safety of the plaintiff during the dive. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiff sought to amend his pleadings to include an additional cause of action, which was not initially raised in his statement of claim. The defendant opposed the amendment, arguing that the proposed cause of action had not been sufficiently raised in the original pleadings and that it was too late in the proceedings to permit the amendment.

The court was required to determine whether the plaintiff had sufficiently raised the issue of the additional cause of action in his initial pleadings. If the issue had been sufficiently raised, the court would then need to consider whether it was appropriate to allow the amendment at such a late stage in the proceedings. The court considered the principles governing amendments to pleadings and the discretion afforded to it under the rules of court.

In assessing whether the issue had been sufficiently raised, the court examined the particulars of the statement of claim and the evidence presented. It found that the plaintiff had not sufficiently raised the issue of the additional cause of action, as the details provided were insufficient to put the defendant on notice of the specific allegation. The court further found that the proposed amendment was being sought at a late stage in the proceedings, which was a factor that weighed against granting the amendment. The court concluded that the plaintiff had not met the threshold for granting the amendment and dismissed the application. As a result, the plaintiff was not permitted to add the additional cause of action to his pleadings.

Orders