Ridgley-Hewitt v Ridgley-Hewitt

[2017] NSWSC 483

Supreme Court

New South Wales

Medium Neutral Citation:	Ridgley-Hewitt v Ridgley-Hewitt [2017] NSWSC 483
Hearing dates:	7 April 2017
Date of orders:	07 April 2017
Decision date:	07 April 2017
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(i) Leave is granted to the First Defendant/Cross Claimant to file its Amended Statement of Cross Claim in the form annexed to the affidavit of Ms Arnold, sworn 2 March 2017 within 14 days, i.e. on or before 21 April 2017. (ii) The First Defendant/Cross Claimant to pay the costs of the notice of motion. (iii) The matter is listed for case management directions before me on Tuesday 3 October 2017 at 9:00 am. (iv) The parties have liberty to approach the list clerk in Sydney and in Lismore (in that order) to obtain the earliest available hearing date for a 10 day hearing in Lismore.
Catchwords:	PROCEDURE – cross-claim – amendment – amendment of cross-claim – change of venue – leave granted to amend statement of cross-claim
Legislation Cited:	Civil Procedure Act 2005 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
Category:	Procedural and other rulings
Parties:	Daniel Ridgley-Hewitt (Plaintiff) Harley Ridgley-Hewitt (First Defendant, Cross-Claimant) Juno Energy Pty Ltd (Second Defendant, First Cross-Defendant) Byron Health Foods Distribution Pty Ltd (Second Cross-Defendant)
Representation:	Counsel: G Guirguis, R Taylor (Plaintiff) N Polin SC (First Defendant, Cross-Claimant) A Mulcahy, solicitor (Second Defendant, First Cross-Defendant) N Gordon, solicitor (Second Cross-Defendant)   Solicitors: Capital Lawyers (Plaintiff) Hall & Willcox (First Defendant, Cross-Claimant) Mulcahy Lawyers (Second Defendant, First Cross-Defendant) Holman Webb Lawyers (Second Cross-Defendant)
File Number(s):	2015/26486

Judgment

1. Two Notices of Motion came before me for determination on 7 April 2017.

Notice of Motion seeking change of venue for hearing

2. The first, filed 21 February 2017, sought orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 8.2, and par 8 of Practice Note No SC CL 1, that the venue of the hearing of these proceedings be changed to the Northern Rivers District.

3. This notice of motion was filed on behalf of the plaintiff who was a young man severely injured in an accident on industrial premises in July 2012 at Byron Bay. The affidavit of Daniel Steiner, solicitor, dated 8 March 2017 stated that the plaintiff and his de facto partner reside in Brunswick Heads, close to Byron Bay, and seven identified treating practitioners, as well as four lay-witnesses (all of whom were expected to be called to give evidence) reside in or practise from the Northern Rivers area, and that a view of the premises by the trial judge was likely to be required.

4. The First Defendant, as well as the director of the Second Defendant also reside in the Northern Rivers area and are expected to give evidence at the hearing.

5. The order sought was not opposed by the First and Second Defendants or the Second Cross-Defendant. It was clear on the matters deposed to in the affidavit of Daniel Steiner, sworn 8 March 2017, detailed above, that the balance of convenience favoured that the matter be heard in the Northern Rivers District at Lismore or Byron Bay Courthouse.

Notice of motion seeking leave to file an amended cross claim

6. The second Notice of Motion was filed on 2 March 2017 on behalf of the First Defendant/Cross-Claimant, Harley Ridgley-Hewitt (‘HRH’). Leave was sought to rely upon an amended cross-claim as well as case management directions related to medical examinations yet to take place, and the further conduct of the preparations for hearing. A costs order in favour of the applicant was also sought.

7. In support of this application, reliance was placed on an affidavit of Rachael Kim Arnold, affirmed 2 March 2017. The affidavit deposed to the background to the proceedings and provided a procedural chronology. The chronology indicated the following salient matters:

1. The injury to the plaintiff occurred on 2 July 2012 a warehouse in Byron Bay (‘the Premises’) occupied by Byron Health Food Distribution Pty Ltd (‘BHFD’).

2. The Statement of Claim was filed on behalf of the plaintiff on 28 January 2015 and originally sued only HRH, the brother of the plaintiff, who had sought the plaintiff’s assistance to install a solar hot water service at the premises. HRH was a sole trader plumber, but the Plaintiff was not an employee and was simply assisting with the task that day.

3. On 23 July 2015, a cross-claim was filed by HRH joining both Juno Energy Pty Ltd (‘Juno’) and BHFD. HRH alleged that Juno was the head contractor and had resulting responsibilities and liability to contribute, pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(c), to any verdict obtained against him, and that BHFD were negligent in failing to install safety mesh under the Perspex roof sheets and failing to comply with the Building Code of Australia. The affidavit of Ms Arnold refers to an erroneous understanding that she had at the time of filing the cross-claim that BHFD was the owner as well as the occupier of the premises.

4. By way of Amended Statement of Claim filed 6 November 2016, the Plaintiff joined Juno as Second Defendant. It was alleged in the Amended Statement of Claim that Juno contracted with HRH to replace and/or install the hot water system. It also BHFD to work as head or principal contractor for undertaking various works at the warehouse including the installation of the solar hot water heater. The Plaintiff pleaded that Juno owed certain duties of care to him, and that it failed to provide him with any instructions, failed to keep him safe, and failed to ensure the safety of the Perspex roof sheets through which the Plaintiff fell.

5. On 15 December 2016, the parties participated in a mediation.

6. In March 2017, a proposed Amended Statement of Cross-Claim prepared pursuant to advice from senior counsel was served upon the parties. Their consent to filing was sought. The additional pleadings and particulars included, amongst other things, clarification of BHFD as the occupier of the relevant premises pursuant to a registered lease, naming the owner as Leigh Andrew Mummery, and pleading that BHFD should have known about the problems with the roof. Particulars of negligence specifically addressing failures to inspect the roof to ensure it was safe and associated allegations as well as fresh allegations of breach of statutory duty against BHFD imported from the Amended Statement of Claim were also added. Consent was not forthcoming.

8. I also note that the Court file shows that Consent Orders had been made by the Registrar on 23 November 2016 that parties were to (in December) complete service of evidence and witness statements, file and serve a statement of issues, and gave leave to the parties to approach the listing clerk after 15 December to obtain a hearing date with a 7 day plus estimate. It does not appear any such approach had yet been made, and why this is so was not canvassed in the affidavits relied upon.

9. The Plaintiff, Juno and BHFD opposed the proposed amendment to the cross-claim. Counsel for the plaintiff indicated their concern was that the amendment would inevitably delay the hearing (although no hearing date had yet been set). Mr Gordon, solicitor, on behalf of BHFD outlined his client’s objections were that his client would now be put to the expense of investigating new allegations, that the case started five years ago, that his client was not the owner of the premises (just the occupier), and that the amendment raised difficulties in investigation given the effluxion of time. It was also submitted on behalf of BHFD that they had not been given any proper explanation for the delay in seeking the amendment and this was particularly of concern given that there had been a mediation at the end of 2016. Juno’s representative adopted those submissions.

10. In respect of its opposition to the amendments to the cross-claim, the Plaintiff relied upon the affidavit of Daniel Steiner dated 8 March 2017, pars 12-15, addressing concerns of delay and difficulties with proposed medical assessments that the solicitors for HRH had arranged for later this year (a subject to which I will return), and an affidavit of Daniel Steiner dated 28 March 2017 raising issues regarding the lack of apparent explanation for the delay in the proposed amendment to the cross-claim, as well as further issues regarding the proposed medical assessments. In particular, there was concern that the solicitors for HRH had made an appointment for neuropsychological assessment in October 2017.

11. In support of its position, BHFD relied upon an affidavit of Nicholas Gordon, sworn 24 March 2017, which gave a procedural history including that certain orders had been made requiring HRH to serve all his liability evidence initially by March 2016. There were then general extensions on that particular order to July 2016, later to October 2016, and again to 9 December 2016. In addition, concern was expressed about the perceived expansion of the parameters of the existing cross-claim. Prejudice to BHFD was described as having to respond to late service of expected expert evidence, which, it was asserted, would ‘fundamentally change the nature of the claim against it’.

12. In oral argument, Mr Gordon candidly confirmed that he had access to a representative of his client from whom he could take instructions regarding the new matters. He submitted that this disadvantage needed to be met by an order that HRH to pay the entirety of the costs thrown away by reason of the late amendment, including the costs of the mediation on 15 December 2016 and subsequent court appearances.

Resolution of Issues

13. The proposed Amended Statement of Cross-Claim includes the necessary clarification of the status of BHFD as the occupier (and lessee) of the premises, as opposed to owner. The proposed amendments also contain an adjustment of the pleadings in terms of respective responsibility of both Juno and BHFD to keep the premises safe, for failing to inspect the roof, failing to identify the dangerous defect in the Perspex roof sheeting and the absence of a wire safety mesh under that sheeting.

14. Initially, HRH’s July 2015 cross-claim against Juno imported particulars of negligence from the Plaintiff’s Amended Statement of Claim. In respect of BHFD, that cross-claim pleaded failure to install or have installed safety mesh under the Perspex roof sheets at the premises to prevent the Plaintiff’s accident, and failing to comply with the Building Code of Australia and the relevant Australian standards in relation to the provision of safety mesh underneath the Perspex sheeting through which the Plaintiff allegedly fell.

15. The additional particulars of negligence alleged against Juno in the proposed Amended Cross-Claim are as follows:

(c)   failure to adequately inspect the roof and identify a dangerous defect in the nature of perspex sheeting or translucent cladding without wire safety mesh installed underneath;

(d)   failure to ensure that the perspex sheeting or translucent cladding on the roof had wire safety mesh installed underneath in compliance with AS 2424-1991;

(e)   failure to adequately inspect the roof and identify that it contained no anchor points to which a safety harness could be attached;

(f)   failure to adequately inspect the roof and ensure that a safety harness could be attached and safely used whilst working upon it;

(g)   failure to conduct a risk assessment of the roof prior to allowing the plaintiff and the first defendant onto the roof;

16. The additional particulars of negligence alleged against BHFD in the proposed Amended Cross-Claim are as follows:

(c)   the cross claimant repeats and relies upon the particulars of negligence at paragraph 27 of the Amended Statement of Claim as against BHFD;

(d)   failure to inspect the roof of the premises to determine the presence of a defect in the roof in the nature of perspex sheeting or translucent cladding without wire safety mesh installed underneath;

(e)   failing to ensure that the perspex sheeting or translucent cladding on the roof had wire safety mesh installed underneath in compliance with AS 2424-1991.

(f)   failure to ensure that the premises were safe;

(g)   failure to keep the premises in good repair including its obligations pursuant to clause 24 of the lease;

(h)   failure to inspect the roof;

(i)   failure to identify a defect in the roof;

(j)   failure to conduct a risk assessment of the roof prior to allowing the plaintiff and the first defendant onto the roof; and

(k)    failure to keep the exterior façade of the premises in a neat and clean condition.

17. It is my view that the proposed additional particulars of negligence against BHFD and Juno included in the proposed Amended Cross-Claim provide specificity of the particulars of negligence against each of them. Those particulars are not, in my view, an expansion of the case or an addition of a new case, but simply a more detailed elucidation of the allegations that are to be ventilated at the trial.

18. In the circumstances, it is my opinion that the amendment is appropriate. Pursuant to r 1.12(1) of the Uniform Civil Procedure Rules 2005, I extend the time allowed to file the Amended Cross-Claim. I grant leave to the First Defendant (HRH) to file and serve the Amended First Statement of Cross-Claim in the form annexed to the affidavit of Ms Arnold, on or before 21 April 2017.

19. It is appropriate to allow the amendment to ensure all relevant issues are heard and determined, and it is consistent with s 56 of the Civil Procedure Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings primarily because the proposed amendments better identify the nature of the allegations of negligence made.

20. In so concluding, I have borne in mind what was said in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. It was held by the Court that whilst case management principles are a relevant consideration, they cannot be used to prevent a party from litigating an issue which was fairly arguable. A party should be permitted to raise an arguable matter provided any prejudice to other parties can be compensated by costs.

21. I have also borne in mind Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 which provided a gloss on JL Holdings. In particular, French CJ explained that JL Holdings should not be read as authority for the proposition that case management considerations and questions of proper use of Court resources are to be discounted or given little weight (at [6]). He observed further (at [23]) that the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

22. Allowing the amendments sought does not offend these requirements. The case requires further preparation by all parties and no hearing date had yet been set, nor is one available this year for a 10 day hearing in Lismore.

Costs

23. I accept the submissions made by the parties opposing the amendments that HRH’s application is late in the proceedings and in effect seeks an indulgence. That was conceded by Senior Counsel for HRH. Accordingly the other parties’ costs relating to this indulgence should be paid by HRH.

24. Because I have formed the view that the proposed Amended Cross-Claim defines and better specifies the cases HRH seeks to make against the cross-defendants rather than expands those cases, I decline to make an order that HRH pay the parties’ costs of the mediation on December 2016. Further, mediation is an integral and necessary part of this Court’s processes. Even where mediation does not succeed in finally and fully resolving proceedings, it is an essential tool in refining issues and promoting understanding of the parties’ respective arguments and concerns.

25. I am of the view that any prejudice to the parties can be dealt with by the costs of this notice of motion being paid by HRH.

Orders

26. Orders were made on 7 April 2017 as follows:

1. Leave is granted to the First Defendant/Cross Claimant to file its Amended Statement of Cross Claim in the form annexed to the affidavit of Ms Arnold, sworn 2 March 2017 within 14 days, i.e. on or before 21 April 2017.

2. The First Defendant/Cross Claimant to pay the costs of the notice of motion.

3. The matter is listed for case management directions before me on Tuesday 3 October 2017 at 9:00 am.

4. The parties have liberty to approach the list clerk in Sydney and in Lismore (in that order) to obtain the earliest available hearing date for a 10 day hearing in Lismore.

27. The parties were directed to agree upon a case management timetable for outstanding preparation and service of medical reports. Orders were made in chambers in accordance with the Consent Orders agreed by the parties and provided on the afternoon of 7 April 2017. Those consent orders have been initialled by me and placed in the court file.

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Decision last updated: 27 April 2017