Stuart v Manning Retail Pty Ltd

[2024] NSWSC 1158

Supreme Court

New South Wales

Medium Neutral Citation:

Stuart v Manning Retail Pty Ltd [2024] NSWSC 1158

Hearing dates:

23 August 2024

Date of orders:

23 August 2024

Decision date:

23 August 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

See [28]

Catchwords:

CIVIL PROCEDURE – Pleadings – application to amend defence by defendant insurer to particularise disclaimer of liability on the basis of non-disclosure

CIVIL PROCEDURE – application for late service of evidence by defendant insurer – where evidence goes to an issue raised by the plaintiff but not pleaded

Legislation Cited:

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 5

Civil Procedure Act 2005 (NSW), s 56

Insurance Contracts Act 1984 (Cth), ss 21, 28

Category:

Procedural rulings

Parties:

Jacqueline Stuart (Plaintiff)
Manning Retail Pty Ltd (First defendant)
Allianz Australia Insurance Ltd (Third defendant)

Representation:

Counsel:
E Romaniuk SC (Plaintiff)
S Walsh (Third defendant)

Solicitors:
LHD Lawyers (Plaintiff)
Mills Oakley (First defendant)
Carter Newell (Third defendant)

File Number(s):

2021/00262440

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. This matter comes before me today for the purposes of a motion filed by the first defendant on 12 August 2024 seeking leave to amend its defence as well as to rely on affidavits of Alan Fitzsimons, Christopher McGovan and Chantal Simonet which, although dated in 2023 and 2024 were not served then and have only been served recently.

2. The matter is listed for hearing for seven days commencing 16 September 2024. The plaintiff alleges that she sustained injury in an accident when, whilst walking through the World Square in Sydney, she slipped on slippery tiles. It seems that the tiles were wet.

3. The plaintiff originally pursued a case in negligence against three defendants, being the first defendant, as the owner and occupier of the premises, the second defendant as the managing agent and the third defendant as the cleaning company responsible for cleaning the premises.

4. The plaintiff has served evidence to the effect that when she slipped she saw a cleaner or cleaners in the general vicinity.

5. The plaintiff's case is firstly that the tiles were excessively slippery and secondly that the cleaning company should have done something to prevent the accident such as barricading off the area.

6. Subsequent to commencing the proceedings, the plaintiff discontinued the proceedings against the second defendant. Further, the plaintiff became aware that the cleaning company had been placed into liquidation or administration.

7. The plaintiff then made application under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to join the insurer, Allianz, to the proceedings. At the time of that application the parties exchanged expert evidence, the plaintiff relying on a report of a Mr Parnell and Allianz relying on a report of a Mr Hawley.

8. Although Allianz originally opposed the joinder, agreement was reached and Allianz was joined to the proceedings by consent.

9. Unfortunately, despite case management orders being made about service of evidence, those orders were not complied with.

10. Further, Allianz filed a defence merely disclaiming liability. It did not particularise the basis on which it sought to disclaim liability. I infer that when counsel became involved, he advised that it would be necessary to particularise the nature of the declinature. That must be so.

11. Any party seeking to rely on a non-disclosure defence must surely plead the basis on which it can rely on non-disclosure having regard to ss 21 and 28 of the Insurance Contracts Act 1984 (Cth).

12. Further, it is apparent from the evidence of Mr Parnell that the plaintiff's response to the disclaiming of liability was to assert that Allianz had waived its right to do so or had elected not to do so. Both those concepts are well-known legal concepts in insurance law.

13. However, the plaintiff did not file a Reply alleging waiver or election. That may be because when the plaintiff wrote to the solicitors for the defendant asking for particulars of the defence, they were told it was not a matter for particulars. Again, that may be so but only because it was a matter for pleading.

14. The plaintiff objects to Allianz amending its defence to particularise the basis of its non-disclosure and objects to Allianz relying on the further evidence which it seemingly has had for a while but has not served.

15. Again, it is unfortunate that these matters were not attended to some time ago but I accept the evidence of the solicitor for Allianz that there was some oversight in their offices.

16. My task in considering such an application is to ensure that justice is done between the parties having regard to s 56 of the Civil Procedure Act 2005 (NSW). These are case management matters which should have been attended to but the defendant must be permitted to particularise the basis on which it is disclaiming liability in circumstances in which it has always disclaimed liability under the policy.

17. I accept what Mr Walsh says about the need to particularise and the relevance of the evidence which he seeks to rely on, albeit it has been served very late.

18. I also accept Mr Romaniuk's submissions as to the problems that the late particularisation and service of the evidence could cause the plaintiff.

19. Yet, as I said to Mr Romaniuk, I am not sure that, as a matter of law having regard to the particular insurer test, the plaintiff could obtain or rely on a report talking about what a reasonable or prudent underwriter might have done. However, there are steps which the plaintiff wishes to take and should take to investigate further the basis on which Allianz seeks to rely on its non-disclosure defence.

20. Having said that, to the extent that the plaintiff wishes to rely on election and waiver, the plaintiff should also be pleading those matters. In reality, both parties have been proceeding along in this case for a period without really seeking to finalise or crystallise the complicated insurance issues which arise between them.

21. Perhaps the plaintiff was entitled to think that there was not much to the Allianz defence because the basis of its declinature was not particularised but there was no suggestion by Allianz that it was withdrawing its denial.

22. Further, the late served evidence relates more to the issues of waiver and election than the issue of non-disclosure. The latest report seems to be a response to the original evidence of Mr Parnell. Again, the evidence should have been served some time ago but it relates to an issue raised by the plaintiff, also not pleaded.

23. In the circumstances, the appropriate course is to, firstly, permit Allianz to particularise the nature of its defence by way of its amended pleading and also permit the plaintiff to file a Reply articulating the basis on which it suggests that Allianz has waived, is estopped from or has elected not to disclaim liability.

24. As for the evidence, Mr Romaniuk fairly accepts that he needs time to consider the further evidence and it may be that, on further investigation, there may be no further evidence the plaintiff can obtain.

25. At this stage, the plaintiff does not seek a vacation of the hearing date. Nor does any defendant.

26. In those circumstances, I suggested that the appropriate course would be for the plaintiff to write to the third defendant setting out exactly what documents the plaintiff needed or was seeking. The third defendant can respond, either providing the documents, or assisting in the obtaining of the documents, or indicating that those documents are not in its control, or it cannot assist.

27. At this stage, I am not convinced that the plaintiff will be unable to properly prepare its response to the late amendment or the late service of the evidence. Mr Romaniuk again fairly accepts that he is not able to assert positively that the plaintiff will be unable to properly respond.

28. In all these circumstances, I make the following orders:

1. I confirm the hearing date for seven days commencing 16 September 2024.

2. I grant leave to the third defendant to amend its defence in accordance with the proposed amended defence annexed to the notice of motion, so that document will be taken as filed today.

3. I order that the plaintiff file any Reply to that defence by 30 August 2024.

4. I grant leave to the third defendant to rely on, that is on the basis that these reports have been properly served, the affidavits of Alan Fitzsimons, affirmed 14 November 2023, Christopher McGovan, sworn 30 November 2023 and Chantal Simonet, affirmed 18 July 2024.

5. I order that, if she wishes to, the plaintiff write to the third defendant, by 5pm on 27 August 2024 informing the third defendant of the documents the plaintiff is seeking in response to the late service of evidence and amendments.

6. I order that the third defendant by 5pm on 29 August 2024 inform the plaintiff as to whether such documents can be produced or will be produced or it can assist in the production of the documents or respond as it wishes.

7. I grant liberty to the parties to approach my chambers to have the matter relisted before me on 24 hours' notice, should either party need any further orders or should either party consider that the matter can no longer proceed on 16 September or be finished during the allocated seven-day period.

8. I stand the question of costs of this application over to the trial judge.

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Decision last updated: 12 September 2024