Smith v Ulan Coal Mines Limited - [2019] NSWSC 1263

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Ulan Coal Mines Limited [2019] NSWSC 1263
Hearing dates: 20 September 2019
Date of orders: 23 September 2019
Decision date: 23 September 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
See paragraph [37]

Catchwords:
CIVIL PROCEDURE – Trial issues – grant of leave – issue of primary fact as to circumstances – non-compliance with UCPR 31.23 – export report fails to acknowledge rules of UCPR – whether report should be excluded – Court retains discretion to exclude report – substantial compliance with the Code; impartiality, independence, assistance to Court.

CIVIL PROCEDURE – Non-compliance UCPR 31.28 – serving report in accordance with code, practice note or law – no later than 28 days before date of hearing – three expert reports – held take evidence of the liability experts individually
CIVIL PROCEDURE – Grant of leave – whether plaintiff should be granted leave to rely upon amended statement – whether exceptional circumstances have been made out – primary records available to both parties since 2016 – consideration of “fairness” – allow amended statement but refuse leave to run case based upon expert’s opinion and usage of “interference”
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 31.23, (3), r 31.28, (4)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Hannaford v Commonwealth of Australia [2014] NSWCA 297
TNT Pty Ltd v Christie (2001) 65 NSWLR 1; NSWCA 47
Category: Procedural and other rulings
Parties: S. Smith (Plaintiff)
Ulan Coal Mines Ltd (Defendant)
Representation:
Counsel:
P. Webb QC (Plaintiff)
A. Cameron (Defendant)

Solicitors:
Kells Lawyers (Plaintiff)
Spark Helmore Lawyers (Defendant)

File Number(s): 2016/173109

Judgment

This matter is listed for final hearing commencing on 14 October 2019, with an estimate of 10 days. The plaintiff claims damages for personal injury for what is referred to as a high pressure hydraulic fluid injection injury to his left non-dominant hand which occurred on 1 June 2014 while he was working as an electrician in the coal mine operated by the first defendant, Ulan Coal Mines Ltd (“Ulan”). The plaintiff was employed by a labour hire company and his services had been lent by his employer to Ulan. His claim against Ulan is based upon the principles discussed by Mason P in TNT Pty Ltd v Christie (2001) 65 NSWLR 1; NSWCA 47. A claim for work injury damages against his employer has resolved.
By Notice of Motion filed on 17 September 2019 pursuant to directions made by Lonergan J on 13 September 2019, the plaintiff seeks leave to rely upon:

the amended evidentiary statement/expert report of mines inspector, Wally Koppe filed and served on 12 September 2019; and

the Further Amended Statement Of Claim (“FASOC”).

The orders sought are related in as much as the amendments, which are to be found in proposed new paragraphs 7, 8, 9 and 10 of the particulars of breach of duty by Ulan, derive directly from page…

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.

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Details

Case: [2019] NSWSC 1263
Decision Date: 23 September 2019

CaseChat Overview and Summary

In the case of Smith v Ulan Coal Mines Limited, the plaintiff sought damages for personal injuries sustained during his employment with the defendant, Ulan Coal Mines Limited. The dispute primarily centred on the admissibility of certain expert reports and the granting of leave to amend the statement of claim, with the matter being heard in the Federal Circuit and Family Court of Australia. The primary legal issues that the court was required to decide included the non-compliance with certain rules of the Uniform Civil Procedure Rules (UCPR) regarding the timing and content of expert reports, as well as the fairness and exceptional circumstances justifying the amendment of the statement of claim.

The court's reasoning was grounded in the principle of substantial compliance with the relevant rules and practice notes. It acknowledged that while there had been non-compliance with UCPR 31.28 concerning the timing of serving expert reports, the court retained discretion to consider the reports due to substantial compliance with the Code of Conduct and the impartiality and independence of the experts. The court also held that the primary records had been available to both parties since 2016, thus mitigating the prejudice argument. Consequently, the court allowed the plaintiff leave to amend the statement of claim but refused to grant leave to run the case based on the expert's opinion and the use of the term "interference".

The final orders of the court were that the amended statement of claim was accepted, but the plaintiff was not granted leave to run the case based on the expert's opinion and the term "interference". The court's decision underscored the importance of adherence to procedural rules while also recognising the court's discretion to consider the overall fairness and exceptional circumstances in specific cases.

Orders