Veolia Energy Technical Services Pty Ltd v Roads and Maritime Services

[2020] NSWSC 1109

Supreme Court

New South Wales

Medium Neutral Citation:

Veolia Energy Technical Services Pty Ltd v Roads and Maritime Services [2020] NSWSC 1109

Hearing dates:

21 August 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) The hearing date of 12 October 2020 is vacated.

(2) Each party is to pay their own costs.

(3) The defendant is to file its additional lay and expert evidence on or before 13 November 2020.

(4) The matter is listed for directions at 9.30am on 16 November 2020 before Lonergan J.

(5) The Notice of Motion filed 1 July 2020 is stood over to 16 November 2020.

Catchwords:

CIVIL PROCEDURE - case management - vacation of hearing date - negligence - indemnity for claim under s 151Z(1)(d) Workers Compensation Act 1987 (NSW) -expert reports - delay

Legislation Cited:

Civil Liability Act 2002 (NSW), s 42,

Workers Compensation Act 1987 (NSW), s151Z(1)(d)

Cases Cited:

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

Veolia Energy Technical Services Pty Ltd v Roads and Maritime Services [2020] NSWSC 328

Category:

Procedural and other rulings

Parties:

Veolia Energy Technical Services Pty Ltd (Plaintiff)
Roads and Maritime Services (Defendant)

Representation:

Counsel:
Mr P Morris with Mr P Rickard (Plaintiff)
Mr R Perla (Defendant)

Solicitors:
Stiles Lawyers (Plaintiff)
Wotton Kearney (Defendant)

File Number(s):

2018/292871

Publication restriction:

Nil

Judgment (revised from ex tempore)

Background

1. Three Notices of Motion have come before me today in my capacity as Duty Judge. The first Notice of Motion filed 1 July 2020 is a motion for discovery brought by the plaintiff, Veolia Energy Technical Services, against the defendant, the Roads and Maritime Services (“RMS”). The second Notice of Motion filed 6 August 2020 is also brought by the plaintiff and seeks that the hearing date of 12 October 2020 be vacated. A third affidavit before the court of today's date, 21 August 2020, is also filed by the plaintiff but with the consent of the defendant such that it is in fact a joint Notice of Motion to vacate the hearing date.

2. In support of the joint application to vacate, the plaintiff relies upon an affidavit of Michael Stiles sworn 5 August 2020 and the defendant relies upon an affidavit of Jane de Saint Simon sworn on 21 August 2020. No objection was taken to either of those affidavits and they were both read on this joint application.

3. I have had some earlier involvement in this matter. On 30 March 2020, I made orders that leave be granted to the plaintiffs to file an Amended Statement of Claim. I made other ancillary orders including that the defendant was to file and serve all lay and expert evidence it had been able to obtain by 30 June 2020 on that date and the matter was listed for further directions on 6 July 2020.

4. To explain the orders I made on that occasion, it is necessary to briefly outline the nature of the proceedings brought by the plaintiff in this court. The proceedings were commenced on 25 September 2018 by Statement of Claim under s151Z(1)(d) of the Workers Compensation Act 1987 (NSW) seeking recovery of payments made on behalf of the plaintiff's Workers Compensation insurer in relation to the lump sum death benefits and ongoing weekly payments arising out of the death of the plaintiff's employee, Samuel Denyer, on 13 July 2016. Mr Denyer was killed by a fallen tree on Mount Ousley Road as he was driving in the course of his employment by the plaintiff.

5. The obligation to undertake and remove trees and overhanging branches is one that is attributed to the defendant RMS. The RMS has relied upon the statutory defence in s 42 of the Civil Liability Act 2002 (NSW). In effect, the RMS contends that given the extensive area over which it has responsibility, over 18,000 kilometres of State roads, it would be too expensive to monitor all potential falling trees on a constant basis throughout the State. That puts the defence case somewhat ineloquently but accurately, as I understand it.

6. The motion that came before me on 30 March 2020 was necessary because the plaintiff sought to rely upon evidence to establish that the cost would not be significant if regard could be had to Internet resources such as Nearmap, Google Earth and SIX Maps. If a qualified arborist could refer to those maps, it is submitted, the cost would not be as great as that contended for by RMS.

7. The application by the plaintiff back in March 2020 to amend the Statement of Claim to specify that assertion as part of the pleadings was opposed by RMS. The basis for the opposition was that at that time a hearing date of 12 October 2020 had already been allocated. It was the submission of RMS supported by evidence at that time that it was unlikely that this new material could be met prior to the hearing date of 12 October 2020.

8. I have set out those submissions and my findings in Veolia Energy Technical Services Pty Ltd v Roads and Maritime Services [2020] NSWSC 328. Although I accepted at that time that there may be some difficulty for RMS to meet the evidence in time, I was not satisfied at that stage that the risk of it not being able to do so was so great that the hearing date on 12 October 2020 should be vacated.

9. The affidavit evidence today updates the position of the parties as to what has happened since that time.

10. On the part of the defendant, the affidavit evidence of Ms Jane de Saint Simon sets out that a number of conferences were conducted to prepare the further lay evidence that RMS sought to rely upon. In late June, she became aware of the existence of a number of other potential lay witnesses and the date for filing the additional evidence that I had ordered was, by agreement between the parties, extended to 31 July 2020.

11. Ms de Saint Simon further deposes in her affidavit that as at 6 July 2020 she was of the view that the lay evidence would be completed by 31 July 2020. On 21 July 2020, she was provided with the name of a further potential witness who was on parental leave until 3 August 2020. For that reason, the defendant was unable to finalise its lay evidence by the then date of 31 July 2020.

12. When the matter came before the Registrar for directions on 7 August, it was foreshadowed at that time that a joint application to vacate the hearing date would be made. From the plaintiff's perspective, the position as articulated by Mr Rickard today, was that if the obtaining of further lay evidence led to the RMS relying on further expert evidence, it would be untenable that the plaintiff would be in a position to meet such expert evidence prior to the hearing on 12 October 2020.

13. Another matter not referred to in the affidavit evidence but raised in submissions was that the defendant has now filed the report of its expert witness, Mr Castor. He is an arborist who responds to the plaintiff's expert witness, Ms Howden. The submission of Mr Perla, who appears for RMS, is that the defendant has done all it can do to comply with the orders I made on 30 March 2020 and, but for the identification of the additional witness who is on parental leave, it would have been achieved.

14. I have had regard to these respective submissions and the fact that the application is a joint one. The mere fact that an application for an adjournment is made jointly by the parties does not guarantee that this court will vacate a hearing date. That is something that the court is reluctant to do unless satisfied that it is the only order to make consistent with the case management principles set out in the Civil Procedure Act2005 (NSW) and as discussed by the High Court in the decision of Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27.

15. I have had regard to the Practice Note SC CL-1 and in particular paragraphs 70 to 76. I am satisfied that the application was made immediately upon the parties becoming aware of the matters that ground this application today. The applications were made by motion supported by affidavit. The hearing date is still two months away so it is not suggested that the parties have delayed in their application.

16. When the matter was before me on 30 March 2020, RMS had foreshadowed at that stage that they may not be able to meet the evidence in the time before the trial. I am satisfied from the affidavit evidence before me that they did their best to comply with that order but recent events have meant that they were unable to do so. Accordingly, although it is not a matter that the court does lightly, I am satisfied that the interests of justice require that the hearing date of 12 October 2020 be vacated and I make that order and the following ancillary orders by way of case management.

Orders

17. I make the following orders:

1. The hearing date of 12 October 2020 is vacated.

2. Each party is to pay their own costs.

3. The defendant is to file its additional lay and expert evidence on or before 13 November 2020.

4. The matter is listed for directions at 9.30am on 16 November 2020 before Lonergan J.

5. The Notice of Motion filed 1 July 2020 is stood over to 16 November 2020.

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Decision last updated: 21 August 2020