WorkCover Corp v John Holland Group P/L - [2014] SADC 202

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WORKCOVER CORP v JOHN HOLLAND GROUP P/L
[2014] SADC 202
Judgment of His Honour Judge Gilchrist
21 November 2014
PROCEDURE
Leave sought to amend the statement of claim to substitute the defendant with another after the time limit for the prosecution of the claim has expired – The Court may only grant permission for the introduction of a defendant against whom a fresh action would be statute barred if satisfied that the plaintiff's failure to join the defendant arose from a genuine mistake and that in the exercise of the Court’s discretion it is appropriate to do so – Held that a genuine mistake was made but on the evidence presently before the Court there is insufficient evidence to explain how that mistake occurred and the Court is not at the present time satisfied that the discretion should be exercised in the plaintiff’s favour – Application adjourned for further consideration and the plaintiff is given permission to file and serve within fourteen days any further affidavits it may wish to rely upon in support of this application - Rule 6R 54 District Court Civil Rules 2006.
Workers Rehabilitation and Compensation Act 1986 s 54, 110; Occupational Health, Safety and Welfare Act 1986 s 4(2), 19(1); Civil Liability Act 1936 s 20, referred to.
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Jackamarra v Krakouer (1998) 195 CLR 516; Revici v Prentice Hall Incorporated 1969] 1 WLR 157; Croft, Justice Clyde Croft “Aon and its implications for the Commercial Court” (VSC) [2010] VicJSchol 14, considered.

WORKCOVER CORP v JOHN HOLLAND GROUP P/L
[2014] SADC 202

In the ordinary course of events when an action is commenced out of time a plaintiff will need to satisfy the relevant pre-requisites for the grant of an extension of time. Rules of Court recognise that sometimes, in the case of an action initiated within time that involves an application to substitute a defendant with another after the time limit has expired, it would not be reasonable to require the plaintiff to seek that extension. In prescribed circumstances they permit an amendment to make that substitution even though the application to do so is made after the relevant limitation period has expired.
The issue in this case is whether those circumstances exist.
On 29 October 2013, the plaintiff, the WorkCover Corporation of South Australia, issued proceedings in this Court against John Holland Group Pty Ltd.
The proceedings rely upon a right of action created by s 54 of the Workers Rehabilitation and Compensation Act 1986. That section provides that where an injured worker has received or is entitled to receive damages from another person in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under that Act, the relevant compensating authority has a right of recovery against that other person.
WorkCover, as the relevant compensating authority, pleaded that it had incurred a liability to pay compensation pursuant to the Workers Rehabilitation and Compensation Act to Mr Peter Hurst as a result of an injury sustained by Mr Hurst on 1 November 2010. It asserted that Mr Hurst is entitled to recover damages from John Holland Group Pty Ltd on account of that entity’s negligence and breach of statutory duty. It asserted that as a consequence, in accordance with s 54 of the Workers Rehabilitation and Compensation Act, it is entitled to recover from John Holland Group Pty Ltd damages, interest and costs.
It pleaded that Mr Hurst was at all material times employed or engaged by SA Decorating Pty Ltd to perform work as a painter.
It pleaded that John Holland Group Pty Ltd was a body corporate carrying on the business of construction in South Australia.
It pleaded that on 1 November 2010 Mr Hurst was performing painting duties at John Holland Group Pty Ltd’s construction site on North Terrace, Adelaide and that whilst he was undertaking those duties Mr Hurst suffered the injuries in respect of which it had incurred a liability to pay compensation pursuant to the Workers Rehabilitation and Compensation Act.
The pleadings make a general assertion that on 1 November 2010 premises on North Terrace Adelaide, was John Holland Group Pty Ltd’s construction site.
In connection with a cause of action based on negligence they allege that: John Holland Group Pty Ltd failed to ensure that persons on their premises and in particular Mr Hurst, were, while at work, not exposed to foreseeable risk of injury; it failed to maintain or adequately maintain the premises to ensure that it was safe for persons on their premises and in particular Mr Hurst; it failed to ensure that all areas of the building were fit for use; and it failed to prevent Mr Hurst from or permitted him to continue to work in an unsafe environment.
In particularising its assertion that John Holland Group Pty Ltd was in breach of its statutory duty WorkCover pleaded that: John Holland Group Pty Ltd was Mr Hurst’s deemed employer for the purposes of s 4(2) of the Occupational Health Safety and Welfare Act 1986; John Holland Group Pty Ltd engaged SA Decorating Pty Ltd to provide labour to undertake painting duties on its behalf; Mr Hurst was employed or engaged by SA Decorating Pty Ltd to perform those duties for it; and that it failed to fulfil its obligations under s 19(1) of the Occupational Health Safety and Welfare Act Act by failing to provide and maintain Mr Hurst with a safe working environment and safe systems of work.
WorkCover now wishes to replace, where pleaded, John Holland Group Pty Ltd with John Holland Pty Ltd.
The District Court Rules 2006 (DCR) allow for such an amendment through DCR 6R 54. The applicable parts of that rule are sub-rules 6 and 7 which relevantly provide as follows:
(6) However, an amendment cannot be made without the Court’s permission or the consent of the other parties if the effect of the amendment is—
…
(c) to introduce a defendant against whom a fresh action would be statute barred.
(7) The Court’s power to grant permission for amendment under subrule (6) is subject to the following qualifications—
…
(b) the Court may only grant permission for the introduction of a defendant against whom a fresh action would be statute barred if satisfied that the plaintiff's failure to join the defendant arose from a genuine mistake.
The application to amend was filed on 23 June 2014, more than three years after Mr Hurst was injured. Pursuant to s 54(7)(g)(ii) of the Workers Rehabilitation and Compensation Act proceedings must be issued within three years after the date of the trauma giving rise to rights for compensation. It follows that the Court cannot allow the amendment unless it is satisfied that WorkCover's failure to join John Holland Pty Ltd arose from a genuine mistake. Even if so satisfied the Court has an overriding discretion whether to allow the amendment.
In determining whether DCR 6R 54 should be applied in this case it is helpful to reflect upon how similar rules have been applied elsewhere. Of particular importance is the commentary by the High Court in connection with such a rule in Bridge Shipping Pty Ltd v Grand Shipping SA.[1]
[1] (1991) 173 CLR 231
Bridge Shipping endeavoured to rely upon a similar rule (r 36.01 of the Supreme Court Rules of Victoria) to amend a third party action to substitute the named third party Grand Shipping SA with another entity, Rainbow Line SA. Bridge had been contracted to arrange for the carriage of tobacco from Brazil to Melbourne. The tobacco left Brazil on a vessel known as the Green Sand. The bills of landing did not name the carrier. On arrival in Melbourne it was found that some of the tobacco was missing and some of it was damaged. Bridge was sued on account of this and it issued third party proceedings against Grand Shipping SA, which a search of the Lloyd’s Register had revealed was the owner of the Green Sand. As it was, Bridge subsequently, and after the relevant limitation period had expired, discovered that Grand Shipping had chartered the vessel to another entity, Rainbow Line SA, and it was that entity that was the carrier. Hence its application to amend.
The High Court unanimously upheld a decision by the Supreme Court of Victoria to refuse to allow the amendment.
In explaining the nature of the mistake applicable under the relevant rule, McHugh J, with whom Brennan and Deane JJ agreed, said as follows:
The concluding words of sub-r. (4) “whether or not the effect is to substitute another person as a party” enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make “a mistake in the name of a party” not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake “in the name of a party” because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person’s name. Equally, the plaintiff may make a mistake “in the name of a party” because, although intending to sue a person whom the plaintiff knows by a particular description, e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: “The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X.” The sub-rule applies equally to the case where the plaintiff says: “The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X.” In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.[2]
[2] (1991) 173 CLR 231 at 259 - 260
It follows that in an application such as this, it is permissible to substitute a new party if the plaintiff intended to sue a person who the plaintiff knew by a particular description, but was mistaken as to the name of the person who answered that description.
In confirming the correctness of the decision to refuse the amendment McHugh J said:
If Bridge had intended to sue the carrier and had mistakenly believed that the name of the carrier was Grand, it would follow that Bridge had made a mistake “in the name of a party”. In The “Al Tawwab”, Lloyd L.J. said:
“In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v Charrington it was the current landlord. In Thistle Hotels v McAlpinethe identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise.”
The statement of claim in the present case does not indicate that Bridge sued Grand because it believed that Grand was the carrier but was mistaken as to the name of the carrier. To the contrary, the allegation in par. 3 that Grand was “the owner of the vessel” at all material times indicates that Bridge intended to sue Grand because it believed that Grand was the owner of the vessel. The correctness of that conclusion is confirmed by the affidavit of Bridge’s solicitor who swore that he “was concerned to preserve Bridge Shipping’s rights against the Owner of such vessel”.
Bridge made no mistake as to description of the party which it wished to sue. It intended to sue the owner and did so. Bridge’s mistake was not one of misnomer, clerical error or misdescription. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description. The present case is different, therefore, from Lloyd Steel where Clarke J. accepted that the plaintiff's solicitor had “instituted the proceedings because he believed, as a result of his searches of the Lloyd’s Register, that the first named defendant in each case was the carrier”. The mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not a mistake “in the name of a party”.[3] (footnotes omitted)
[3] (1991) 173 CLR 231 at 261-2
It will be apparent from the judgment of McHugh J in Bridge that the characterisation of the mistake is critical in determining the fate of this application.
That exercise is to be undertaken by reference to the pleadings and supporting affidavits.
This application is supported by affidavits from members of the firm of solicitors acting for WorkCover, Ms Danielle Mattiske and Mr Stephen Kellis.
Ms Mattiske attests to the fact that “the information received from the plaintiff (WorkCover) referred to the contract entity as being John Holland Group Pty Ltd” and that it was not until she received correspondence from the solicitors acting for John Holland Group Pty Ltd and John Holland Pty Ltd that she appreciated the need to amend the summons. Her affidavit annexes a copy of what purports to be extracts from a contract entered into by Nest North Terrace Pty Ltd and John Holland Pty Ltd. It annexes a copy of the correspondence she received from the solicitors acting for John Holland Group Pty Ltd and John Holland Pty Ltd. The correspondence asserts that John Holland Group Pty Ltd was not the contracting party; it was not a party to any contract for any construction works on the site at which Mr Hurst was allegedly injured; and that the contracting party was John Holland Pty Ltd.
Mr Kellis attests to the evidentiary material that led him to advise WorkCover to issue proceedings against John Holland Group Pty Ltd.
He states that prior to issuing the proceedings WorkCover undertook investigations into the incident giving rise to Mr Hurst’s injury and that it appointed private investigators.
He identifies a copy of an email dated 14 October 2011 from Ms Julie Heidelberger to an investigator.
The email refers to a request for information dated 8 September 2011. It attaches a “John Holland Incident Investigation Report.” It identifies a site manager and states that he is still employed by John Holland. It provides contact details.
It refers to the manager of the project, states that he is no longer a John Holland employee, that she has made contact with him and provides contact details.
In the email Ms Heidelberger identifies herself as a Workers’ Compensation and OHS Paralegal for John Holland Group Pty Ltd.
He identifies a Health and Safety Policy document dated August 2009 that is signed by Mr Glenn Palin, who identifies himself in the document as the Group Managing Director of John Holland Group Pty Ltd.
He identifies the minutes of a meeting that took place on 3 November 2010 titled “140 North Terrace Safety Committee Meeting”. It is on paper with a logo “John Holland”. It identifies those present and refers to a number as belonging to an organisation stated as John Holland. In a section titled “General Business (Outstanding)” it makes reference to a number of actions required and amongst others identifies those to be responsible for them by the initials JHG.
He states that he reasoned that the reference to JHG was a reference to John Holland Group Pty Ltd and that on the strength of these documents he advised WorkCover that John Holland Group Pty Ltd was “the relevant party responsible for the construction works on the construction site located at 140 North Terrace, Adelaide, South Australia where the worker sustained injury”. He states that based on this advice WorkCover instructed him to issue proceedings against John Holland Group Pty Ltd.
He attests to the fact that he “had always intended to file proceedings against the entity that was responsible for the construction work being undertaken at the construction site”.
Mr Cole, counsel for WorkCover, submitted that what had occurred here was a simple and understandable mistake of the type envisaged by the rule.
He said that what had occurred was no more than a simple mistake as to the name of the contracting party who was in control of the construction site. He said that it was an understandable mistake having regard to the materials which were available to the WorkCover’s solicitors. He said that at no time prior to the letter from the defendant’s solicitors “was anyone on the plaintiff's side of the fence was told, ‘Look, the actual contracting party, the person carrying out the construction works, was John Holland Pty Ltd’.”[4]
[4] tr 18
Next he said that both John Holland Group Pty Ltd and John Holland Pty Ltd were aware of the proposed recovery action, they are not separate entities that have nothing to do with each other, such that the proposed substituted party, John Holland Pty Ltd will suffer no prejudice beyond the obvious disadvantage of potentially escaping liability because of the extension issue.
He submitted that in all the circumstances there is no good reason not to allow the amendment.
Mr Roberts SC, counsel for the defendant, argued that the affidavits filed in support of the application indicate that WorkCover always intended to sue the party responsible for the construction site, that it believed that party was John Holland Group Pty Ltd and that it now believes that party to be John Holland Pty Ltd. He submitted that the “mistake” identified in support of this application was not a mistake as to the identity of the contracting party but a mistake as to the identity of the party responsible for the site.

He said:
We have alleged that the relevant relationship in law is the one that has the contract with the employer, and we may be right or wrong about that. The point that I raise is that it's not within the ambit of the relevant mistake rule to now re‑characterise your case because of someone saying the party with responsibility and law is a different one. That’s not the type of misnomer, or other characteristics that have been mistaken in the sense of a party name. That's a change in course as to legal responsibility, and like Bridge Shipping that is precisely the case there. They thought that suing the owner was the right course. They learnt that to sue the carrier was the right course. Because they didn’t always intend to sue the carrier, they were out of court. They couldn't rely on the rule, because the rule is narrow.[5]
[5] tr 26
Next he submitted that the authorities make it clear that in a case such as this, where a party is seeking the indulgence of the Court, complete candour explaining how the mistake was made is required and that this was lacking here. He said that pursuant to s 110 of the Workers Rehabilitation and Compensation Act WorkCover has the capacity to conduct all sorts of enquiries relevant to a claim and that no explanation has been given as to why this matter was not properly investigated. Amongst other things that provision enables an authorised officer to enter any workplace, carry out inspections at the workplace, require a person who has custody or control of books, documents or records relevant to any matter arising under Workers Rehabilitation and Compensation Act to produce those books, documents or records and to examine, copy and take extracts from any such books, documents or records, or require an employer to provide a copy of any such books, documents or records.
Finally he submitted that in the exercise of the Court’s discretion the application should be refused. He said that the amount sought to be recovered was of the order of $50,000, which he said was a very small amount by reference to the amount that WorkCover recovers annually through the invocation of s 54 of the Workers Rehabilitation and Compensation Act.
He said that in the circumstances, as a matter of fairness, WorkCover should be required to run the gauntlet of an application for an extension of time.
Analysis
The allegations of negligence that appear in the pleadings refer to “their premises” and “the defendant’s construction site”. An occupier of premises is defined in s 20 of the Civil Liability Act 1936 as a person in occupation or control of the premises including a landlord. It follows that these references indicate that the cause of action is based upon occupier’s liability and that WorkCover alleges that at all relevant times John Holland Group Pty Ltd was the occupier.
It will be recalled that in respect of the allegations of breach of statutory duty reference is made to s 4(2) of the Occupational Health Safety and Welfare Act. That sub-section extended the duty created by s 19 of that Act to entities that do not have a contract of service with the person to whom a duty under s 19 of the Occupational Health Safety and Welfare Act might be owed. It is in the following terms:
For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.
It follows that the summons inferentially pleads that John Holland Group Pty Ltd was a principal; that SA Decorating Pty Ltd was a contractor engaged by it to perform work for it in the course of a trade or business carried on by it; that Mr Hurst was employed or engaged by SA Decorating Pty Ltd to carry out or to assist in carrying out that work; and that John Holland Group Pty Ltd had control or would have had control but for some agreement to the contrary between it and SA Decorating Pty Ltd over matters relevant to Mr Hurst’s injury.
In light of Mr Kellis’ assertion that he “had always intended to file proceedings against the entity who was responsible for the construction work being undertaken at the construction site” it must be inferred, in light of the pleadings, that WorkCover was of the view that that entity was not only the occupier of the premises but was also the relevant contracting party for the purposes of s 4(2) of the Occupational Health Safety and Welfare Act.
In making this application presumably WorkCover accepts as correct the assertion made in the correspondence referred to in Ms Mattiske’s affidavit that the contracting party was John Holland Pty Ltd.
The fact that John Holland Pty Ltd has now been identified as “the contracting party” goes some way to establishing that it was the entity responsible for the construction work being undertaken at the site. That in turn goes some way in establishing that that entity was an occupier of the premises.
The fact that it entered into a contract with Nest North Terrace Pty Ltd does not necessarily mean that it engaged SA Decorating Pty Ltd as a contractor to perform work it in the course of its trade or business. Thus it would not appear that WorkCover is relying upon that fact in connection with the action based upon a breach of statutory duty. Rather, it would appear that it has reasoned that the contracting party is responsible for the construction work being undertaken at the site and that that in turn makes it likely that that entity was the one that engaged SA Decorating Pty Ltd as a contractor for the purposes of its pleading that relies upon s 4(2) of the Occupational Health Safety and Welfare Act.
Whilst that chain of reasoning is not necessarily correct, despite some initial doubts, I think it is clear enough that WorkCover has not had a change of view as to who it believes is the “right” entity to sue. It maintains that the culpable entity in respect of both causes of action is the entity that was responsible for the construction work being undertaken at the construction site. Whilst that is an assumption that might be wrong, in connection with that view, it is plain that WorkCover merely got the name wrong. It thought that the entity was John Holland Group Pty Ltd. It now believes the entity to be John Holland Pty Ltd.
It is not now saying that it assumed that the culpable entity to be the entity who was responsible for the construction work, it now accepts that the relevant entity is the one that entered into a contract to undertake the construction work and it now believes that entity to be John Holland Pty Ltd. If this had been the position, in conformity with Bridge, the application would have to fail.
I find, for the purposes of DCR 6R 54 that there has been a relevant mistake.
However the mere fact of that finding is not enough to secure an amendment. The Rules make it clear that an amendment cannot be made without the Court’s permission.
Prior to the decision in Aon Risk Services Australia Ltd v Australian National University[6], in light of the statement in Queensland v JL Holdings Pty Ltd that:
[T]he ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.[7]
litigants were entitled to believe that securing that permission was not a big ask. The approach then was that provided the application for an amendment to pleadings raised an arguable issue and any prejudice could be compensated by an order for costs, the application should be granted.
[6] (2009) 239 CLR 175
[7] (1997) 189 CLR 146 at 154-5 per Dawson, Gaudron and McHugh JJ
That is no longer the law. The current position is as stated in Aon by Gummow, Hayne, Crennan, Kiefel and Bell JJ, namely:
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs … There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance.[8]
[8] Aon (2009) 239 CLR 175 at 217
Delay in litigation is insidious. As Gummow and Hayne observed in Jackamarra v Krakouer:
Delays in the court are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. Delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with prescribed time limits. Each day's delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible.[9]
[9] [1998] HCA 27 at para 29 (1998) 195 CLR 516
It is therefore an important factor to be taken into account.
So too, is the explanation for the need to amend. It is well settled that as a general proposition where in respect of a procedural matter a discretion is sought to be exercised in favour of one party to the disadvantage of another a candid explanation explaining all of the relevant circumstances underpinning the need for the indulgence is required.[10]
[10] See for example: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) at para 103 (2009) 239 CLR175 at 215 per Gummow, Hayne, Crennan, Kieffel and Bell JJ and Revici v Prentice Hall Incorporated [1969] 1 WLR 157
Sometimes mistakes are understandable and readily excusable. Pleadings might be poorly drafted because the proceedings have been issued in great haste because of the failing health of a plaintiff. The plaintiff might be impecunious and that lack of funds might mean that before the proceedings are instituted all that can reasonably be achieved are superficial enquiries.
In such cases, provided a candid explanation is given and any prejudice can be compensated by an order for costs, I expect that the Court might not be that concerned by any delay associated with the grant of an amendment to cure a defect in the pleadings.
But absent any such explanation the Court might more readily conclude that it is not in the interests of justice to allow a significant amendment calculated to cure, what would otherwise be a fatal defect.
Here we have an explanation as to why it was that WorkCover instructed its solicitors to sue John Holland Group Pty Ltd. We have a bald assertion that in light of correspondence and a brief piece of evidentiary material that it now wishes to sue John Holland Pty Ltd. What we do not have is a full and candid explanation as to how the mistake was made. What has been put forward is consistent with superficial enquiries that identified the wrong entity in circumstances where a moderately more robust approach, such as securing the contract between SA Decorating Pty Ltd and the contracting party that engaged it, which WorkCover had the statutory right to obtain, or contacting the persons identified by Ms Julie Heidelberger, would have in all likelihood identified the right entity.
Moreover, WorkCover must have been aware of the circumstances of Mr Hurst’s injury for some time. The Court is entitled to know that WorkCover is a regular and sophisticated litigant. As mentioned earlier, it is clothed with wide ranging powers of enquiry. It has substantial physical and financial resources. It might have been expected to have undertaken timely and extensive enquiries into the prospect of pursuing an action in accordance with the rights conferred upon it by s 54 of the Workers Rehabilitation and Compensation Act and that those enquiries would have identified who was the right entity to sue. There is no suggestion that it delayed making those enquiries to save costs in the expectation that Mr Hurst would be pursuing his own action for damages in respect of which it could have exercised its statutory charge as provided for by s 54 of the Workers Rehabilitation and Compensation Act Act and therefore was only able to conduct limited enquires in the time available before the limitation period expired. Indeed, there is little explanation as to what enquiries were made prior to the issue of proceedings, and if they were superficial as to why that was so.
In the end result, WorkCover’s failure to correctly identify the entity that it wishes to sue has resulted in delay, wasted costs and an imposition on the resources of the Court that has compromised the capacity of the Court to apply those resources to other cases.
In my view, in conformity with the judgments of the High Court in Aon, to succeed in this application WorkCover must provide the Court with fulsome reasons that justify the grant of the relief that it seeks. As Justice Croft, writing extra-curially, said:
Litigants should now assume that a court will conduct some rigorous inquiry into whether any waste of time or resources has been adequately justified by the applicant in the context of the particular proceedings.[11]
[11] Croft, Justice Clyde “Aon and its implications for the Commercial Court” (VSC) [2010] VicJSchol 14
In my view, the explanation proffered to date, does not enable that rigorous enquiry to occur.
If I was to adopt Roscoe Pound’s sporting theory of justice[12] that Gummow and Hayne JJ spoke of in Jackamarra v Krakouer, I would dismiss this application here and now.
[12] “The Causes of Popular Dissatisfaction with the Administration of Justice”, reproduced in Glenn R Winters (ed), Handbook for Judges, (1975), 280 at 288:
It [the ‘sporting theory of justice’] creates vested rights in errors of procedure, of the benefit whereof parties are not to be deprived.... The inquiry is not, what do substantive law and justice require? Instead, the inquiry is, Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverse judgments, or sustains demurrers in the interest of regular play.
I proceed however, from the premise that WorkCover may have failed to appreciate that the Court would conduct a rigorous inquiry as to the circumstances giving rise to its need to seek an order to cure its failure to identify the correct party and that it may be able to provide a more fulsome explanation.
As a matter of fairness, I think it appropriate to extend to it the indulgence to enable it to do so.
I therefore adjourn further consideration of this application and direct WorkCover to file and serve within fourteen days any further affidavits it may wish to rely upon in support of this application.