Tanuvasa v USG Boral Building Products

District Court

New South Wales

Medium Neutral Citation:

Tanuvasa v USG Boral Building Products [2022] NSWDC 319

Hearing dates:

15 and 22 July 2022

Date of orders:

5 August 2022

Decision date:

05 August 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [83] for orders.

Catchwords:

PRACTICE & PROCEDURE – dismissal of belated application by the defendant seeking leave to amend the defence to plead a previously overlooked potential limitation bar defence – leave refused due to defendant’s tardy litigation conduct: s 58(2) of the Civil Procedure Act 2005 (NSW) – prejudice to the defendant outweighed by prejudice to the plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5D, s 5F, s 5G, s 5H, s 5I, s 5R, s 5S

Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 64

District Court Act 1973 (NSW), s 51(2)(b)

Limitation Act 1969 (NSW), s 50D

Uniform Civil Procedure Rules 2005, r 14.14, r 19.1, r 19.3

Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Dare v Pulham [1982] HCA 70; 148 CLR 658

Fitzgerald v State of New South Wales [2017] NSWSC 1602

Johnson v State of New South Wales [2017] NSWSC 1591

Jones v State of New South Wales [2017] NSWSC 1601

Pomare v Whyte [2019] NSWCA 317

Wells v Commonwealth of Australia [2014] NSWSC 148

Category:

Procedural rulings

Parties:

Asela Rambo Tanuvasa (Plaintiff/respondent)
USG Boral Building Products Pty Ltd (Defendant/applicant)

Representation:

Counsel:
Mr J Malouf (Plaintiff)
Mr R Coffey (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Makinson d’Apice (Defendant)

File Number(s):

2020/361705

Publication restriction:

None

Judgment

Table of Contents

Notice of motion	[1] – [3]
Factual background	[4] – [9]
Procedural history	[10] – [26]
The present notice of motion	[27] – [28]
Legislation	[29] – [34]
Evidence	[35] – [36]
Review of previous listings and case management orders	[37] – [40]
Course of hearing of the defendant’s notice of motion	[41] – [49]
Submissions of the parties	[50] – [64]
Consideration and determination	[65] – [81]
Disposition	[82]
Orders	[83]

Notice of motion

1. I have before me a notice of motion filed by the defendant on 16 May 2022 whereby the defendant seeks leave to file an amended defence to belatedly raise a previously unpleaded limitation defence.

2. If a defence to that effect were to be upheld, then without more, the plaintiff’s claim would necessarily fail. Initially, the plaintiff consented to the filing of the proposed amended defence, but he later withdrew his consent after the significance of that step was made clear to him in the course of the hearing of the defendant’s application for leave.

3. These proceedings and the present application are governed by the provisions of the Civil Liability Act 2002 (NSW), (“CL Act”), and the Civil Procedure Act 2005 (NSW), (“CP Act”).

Factual background

4. The factual background to the proceedings is that on…