Victorian WorkCover Authority v State of Victoria (Ruling)
[2015] VCC 612
•14 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMON LAW DIVISION
GENERAL LIST
Case No. CI-12-04933
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2015 | |
DATE OF RULING: | 14 May 2015 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 612 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to rely upon Amended Statement of Claim – failure to serve document within timeframe fixed by the Court’s order – service effected on the evening before the trial was fixed for hearing – invariable consequences for the defendant if amendment allowed – nature of proposed amendments – breach of obligations in civil proceedings.
Legislation Cited: Civil Procedure Act 2010
Ruling: Plaintiff’s application for permission to rely upon the Amended Statement of Claim is refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Churilov | Herbert Geer |
| For the Defendant | Mr J Langmead QC with Mr J Simpson | Russell Kennedy |
HIS HONOUR:
1 On the evening of 11 May 2015, the plaintiff in served upon the defendant an Amended Statement of Claim in respect of this trial which was fixed for hearing before me on the morning on 12 May 2015. The estimated duration of the trial is ten or so days.
2 The application now made by the plaintiff that it be permitted to rely upon the Amended Statement of Claim is opposed by the defendant.
3 It is put on behalf of the plaintiff that the proposed amendments largely flesh out the previous particulars contained in the plaintiff’s pleading and, in that sense, no prejudice is occasioned to the defendant by reason of the proposed amendments.
4 At first analysis, when a comparison is made between the particulars of negligence and breach as set out in paragraph 18 of the plaintiff’s Proposed Amended Statement of Claim and those which were previously particularised in paragraph 12 of the plaintiff’s Statement of Claim, this position contended for by the plaintiff appears to be unpersuasive.
5 In putting the defendant’s case in opposition to the proposed amendment, Mr Langmead, QC, set out clearly and quite comprehensively the nature of the alteration in the case which the defendant would be required to meet should the plaintiff be entitled to rely upon the amended pleadings. I accept the position put by Mr Langmead, QC, that should the amendment to the Statement of Claim be allowed, it will invariably involve the defendant having to re-interview witnesses and re-plead to the plaintiff’s case.
6 Given the obligation of the Court to other matters already listed to within this jurisdiction, should this matter be adjourned, the earliest date upon which it could be re-listed for hearing, given the length of the trial, is 24 November 2015.
7 In the context of that statement I am satisfied that the obligation of nine of the defendant’s proposed witnesses to be available for firefighting duties during the fire season between November and February raises the real possibility that the defendant would not be able to assemble its witnesses to allow a trial to be undertaken until some time after February 2016.
8 Notwithstanding the fact that the plaintiff was given the opportunity to present affidavit material which explained the reason for the late amendment in this instance, no such material was presented.
9 In these circumstances, the plaintiff’s current application falls to be considered in the light of the following uncontested facts:
(a) On 6 October 2014, his Honour Judge Brookes adjourned the trial of this proceeding upon acceding to the application by the defendant that it be allowed to make substantial amendments to its Defence, and made the following Orders:
(i) Leave granted to the plaintiff to file and serve an amended statement of claim within 28 days;
(ii) Leave granted to the defendant to file and serve an amended defence within a further 28 days;
(b) On 7 October 2014, the defendant filed an Amended Defence, a copy of which was served upon the plaintiff’s solicitors on that day;
(c) The plaintiff chose to delay the serving of an amended statement of claim until some six months after the expiry of the period fixed by his Honour Judge Brookes;
(d) The plaintiff now seeks the indulgence of the Court to undertake a significant restructure of its pleading on the morning of the commencement of the trial and puts no material before the Court to explain or justify its position;
(e) Further, the plaintiff seems to take the attitude that because the defendant’s application to amend its Defence was allowed by his Honour Judge Brookes, it is now entitled to the same indulgence with respect to its application.
10 The provisions of the Civil Procedure Act 2010 are well known to the parties, both parties having taken me to those provisions in the course of their submissions. Whilst the object of achieving justice between the parties must assume a critically important role in the factors which I must consider in exercising my discretion as to whether I should allow the plaintiff’s proposed amendment, I am satisfied that I should apply due weight to the following findings which I make:
(i) Firstly, there is no issue in this instance that that the plaintiff is in a position to compensate the defendant in respect of any costs associated with the adjournment;
(ii) Secondly, should the amendment be allowed, this trial will be adjourned and that it is unlikely to be re-fixed for a period in the vicinity of nine months;
(iii) Thirdly, this trial, which arises out of an incident which occurred in 2007, has, as I have commented already, been the subject of one previous adjournment;
(iv) Fourthly, should the amendment be allowed, the delay between the current date and the date upon which the case is re-fixed for hearing will invariably involve the requirement on behalf of the defendant to re-conference each of the witnesses which it proposes to call in the case, particularly upon the primary issue of liability, and that prejudice arising by reason of the effluxion of time could not be ruled out, having regard to the fact that the incident the subject of this litigation occurred in January 2006;
(v) Fifthly, the proposed evidence, which is purported to possess significant relevance upon the issue of liability, is not the subject of comment by any expert retrained in the case. As such, I am not persuaded that if it was to be admitted, it would necessarily influence the outcome of the case in any significant way;
(vi) Sixthly, there can be no suggestion that the delay in this instance arose by reason of the fact that the plaintiff only became apprised of the material matters recently. There was no evidence advanced to support such a position; to the contrary, various statements made by Counsel in the course of submissions advanced on behalf of the plaintiff were such, in my opinion, to suggest the polar opposite. See the statements made by Counsel for the plaintiff in the course of his submissions at T29, L22;
(vii) Seventhly, the circumstances in which the adjournment is sought, in my opinion, involve a significant breach of the obligation by those responsible for the management of this litigation on behalf of the plaintiff of their duty under the Civil Procedure Act to ensure:
· the timely and cost-effective determination of a civil proceeding
· the efficient conduct of the business of the Court; and
· the effective use of judicial and administrative resources.
11 In making that statement, I rely in this instance in particular, upon the failure by the plaintiff to file an amended statement of claim within the timeframe which was the subject of the Order made by his Honour Judge Brookes and the timing of the service of the document the subject of this application on the defendant, namely at 5.00pm on the evening before the trial was fixed for hearing.
12 Each of these factors, other than the first, speaks with varying degrees of force against the allowance of the plaintiff’s application.
13 After balancing all of the above factors, I am satisfied that I should refuse the plaintiff’s application in this instance.
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