Tam v Super Seasons Pty Ltd - [2024] NSWSC 873

Supreme Court

New South Wales

Medium Neutral Citation: Tam v Super Seasons Pty Ltd [2024] NSWSC 873
Hearing dates: 15-16 July 2024
Date of orders: 16 July 2024
Decision date: 16 July 2024
Jurisdiction: Common Law
Before: Campbell J
Decision:
Grant leave to the cross claimant to amend the third cross claim consistently with the reasons of this judgment.

Catchwords:
CIVIL PROCEDURE – pleadings – amendment – late application for amendment – late briefing of new counsel – proceedings commenced in 2020 – loss of ten hearing days in October 2022 – proposed amendment essentially the same as the case propounded in June 2023 – no forensic prejudice – imperative the matter proceed – leave granted

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 91
Law Reform Miscellaneous Provisions Act 1946 (NSW), s 5
Workers Compensation Act 1987 (NSW), ss 9AA, 9AC, 20
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 48

Cases Cited:
Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Texts Cited:
Mason et al, Mason and Carter's Restitution in Australia (4th ed, 2021, LexisNexis Australia)

Category: Procedural rulings
Parties: Ching Tam (Plaintiff)
Super Seasons Pty Ltd (First Defendant)
Victorian WorkCover Authority (Second Defendant)
Workers Compensation Nominal Insurer (Third Defendant)
Representation:
Counsel:
R Sheldon SC with A Parker (Plaintiff)
J Sexton SC (First Defendant)
S Smith KC with I Griscti (Second Defendant)
A Ahmad (Third Defendant)
Solicitors:
Acer Law (Plaintiff)
Holman Webb (First Defendant)
Lander & Rogers (Second Defendant)
Hicksons (Third Defendant)

File Number(s): 2020/56877
Publication restriction: Nil

ex tempore JUDGMENT (revised)

These proceedings started off life as long ago as 21 February 2020 when the plaintiff filed a statement of claim seeking damages for a catastrophic personal injury he sustained on 13 July 2017 in an industrial accident while working as a fruit picker on a property in the Riverina region of NSW operated by the first defendant. Through various procedural and other developments since, the case has come to a point where the only remaining matter to be determined is whether the third defendant, the Workers Compensation Nominal Insurer (“iCare”), is entitled to recover from the second defendant, the Victorian WorkCover Authority (“VWA”), the workers compensation paid to, for or on behalf of the plaintiff under the terms of the Workers Compensation Act 1987 (NSW) (“WC Act”).
The essential aspect of the claim, without oversimplifying it, is that the third defendant claims to have paid about $1.6 million in various compensation benefits by mistake. It is unnecessary to go into all of the details of how that is said to have come about, other than to say that, on material that has been read before me on an application to amend iCare's cross claim, it appears that shortly after the plaintiff suffered his catastrophic injury, and at a time when he was being treated in the Royal North Shore Hospital in Sydney, a claim was made under both the WC Act and the Workplace Injury…

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: [2024] NSWSC 873
Decision Date: 16 July 2024

CaseChat Overview and Summary

Tam, a plaintiff, brought a claim against Super Seasons Pty Ltd, a defendant, in a dispute concerning allegations of breach of contract and associated damages. The case was before the court, which was required to decide whether the plaintiff's application for leave to amend her pleadings should be granted, particularly considering the lateness of the application and the introduction of new counsel. The application was made in June 2023, proposing an amendment to the pleadings that essentially mirrored the case presented in June 2023, despite the proceedings having commenced in 2020. The amendment followed a loss of ten hearing days in October 2022.

The court considered the lateness of the application and the introduction of new counsel, but also weighed the importance of proceeding with the matter against the potential prejudice to the defendant. The court found that the proposed amendment did not introduce new issues or parties, and that the defendant would not suffer any forensic prejudice. Furthermore, the court recognised the imperative of the matter proceeding to its conclusion.

In granting leave for the amendment, the court noted that the application was not so late as to render the grant of leave unjust. It was held that there was no significant delay and that the defendant was not prejudiced by the late amendment. The court concluded that the matter should proceed to its conclusion, and therefore granted the plaintiff's application for leave to amend her pleadings.

Orders