Wormleaton v Bluescope Steel (AIS) Pty Ltd

[2013] NSWSC 2047

Supreme Court

New South Wales

Medium Neutral Citation:

Wormleaton v Bluescope Steel (AIS) Pty Ltd [2013] NSWSC 2047

Hearing dates:

3 May 2013

Decision date:

03 May 2013

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)Direct the first defendant to file a defence to the amended statement of claim, filed 23 March 2012, within fourteen days;

(2)To the extent that that defence to the amended statement of claim continues to deny [9], [10], [11] or [12] of the amended statement of claim, the first defendant shall in the defence, provide particulars as to the basis upon which such denial is pleaded;

(3)The costs in the cause.

Catchwords:

PROCEDURE - Part 14 r 28 of the Uniform Civil Procedure Rules 2005 - pleadings and other matters - abuse of process

Legislation Cited:

Civil Procedure Act 2005
Occupational Health and Safety Act 2000
Uniform Civil Procedure Rules 2005

Cases Cited:

Haines v ABC [1995] 43 NSWLR 404
Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275

Category:

Interlocutory applications

Parties:

David Wormleaton (Plaintiff)
Bluescope Steel (AIS) Pty Ltd (First Defendant)
Thomas & Coffey Ltd (Second Defendant)
Transfield Services Engineering Group Pty Ltd (Third Defendant)
Transfield Services Engineering Group Pty Ltd (Fourth Defendant)

Representation:

Counsel:
M. Perry (Plaintiff)
R. Cavanagh SC (Defendant)
Solicitors:
Taylor & Scott Lawyers (Plaintiff)
Mills Oakley Lawyers (First Defendant)
Curwoods Lawyers (Second Defendant)
DLA Piper Australia (Third Defendant)

File Number(s):

2010/283242

ex tempore Judgment

1. HIS HONOUR: In this matter, the plaintiff moves by amended notice of motion to strike out paragraphs 9 and 10 of the defence of the first defendant dated and filed 27 May 2011.

1. That application is made primarily on the basis of the Uniform Civil Procedure Rules 2005 (UCPR) pt 14 r 28, and in particular that the pleadings in the defence of the first defendant, particularly in paragraphs 9 and/or 10, amount to an abuse of process of the Court.

1. Alternatively, the plaintiff moves for the aforesaid paragraphs to be struck out pursuant to the powers of the Court in r 14.6. I will deal with the alternative basis first.

1. The defence to the original statement of claim, there having been filed an amended statement of claim that is not in substantially different terms, denies simpliciter that which is pleaded in paragraphs 10 and 11 of the statement of claim to the extent it concerns the first defendant. As a consequence of the proposition under the alternative proposed by the plaintiff, that an order be made striking out paragraphs 9 and 10 of the defence, an order that it be divided into separate paragraphs necessarily implies that the statement of claim would need to be divided into separate paragraphs. A party is entitled to reply to a global assertion of liability by denying it.

1. The second aspect is much more difficult, and that is the primary basis upon which the plaintiff moves. It carries with it an application in a slightly different way, of some authority, relating to principles of abuse of process, and seeks to utilise the duties imposed upon parties by s 56 of the Civil Procedure Act 2005 to require a party to plead a matter in a way that is consistent with, or that explains, why that which is said to be the real issues in the case are not admitted. There is much to be said in terms of s 56 as to the merits of such an approach.

1. It is necessary to explain further the circumstances behind the application. Shortly put, the second defendant, Thomas & Coffey Limited, was, amongst other companies, engaged in a process which saw the commissioning of a new cinder cooling plant at Bluescope Steel (AIS) Pty Limited. It is alleged that before its final installation, Bluescope arranged for its testing, which entailed its dismantling, and entered into a contract with Transfield to provide labour and contractors. Transfield in turn sub-contracted to the first defendant some of that provision of labour, materials and equipment. An accident occurred during the course of the dismantling in which a person was seriously injured.

1. On or about 30 May 2012, the Industrial Relations Commission of New South Wales sentenced the first defendant for a contravention of the Occupational Health and Safety Act 2000. It sentenced the first defendant on a basis that depended for factual findings on a plea of guilty and agreed facts. The agreed facts are set out in Backman J's judgment of that date.

1. The agreed facts upon which the sentence was based included, understandably, admissions of fact that the plaintiff in these proceedings suggests are relevant to the question of negligence in these proceedings.

1. The plaintiff in these proceedings then says, first, that the circumstances of what happened point strongly to a breach of duty of care and negligence; secondly, that, as a matter of "common sense", denial of liability by the first defendant is difficult; thirdly that there is expert evidence as to the breach, causation and damage that confirms the common sense approach arising from those circumstances; and, fourthly, that no details are put by the first defendant in reply on the question of liability, or on the facts, to explain how it can admit facts that give rise to negligence or liability in one set of proceedings but deny them in the other set of proceedings.

1. The plaintiff relies for the abuse of process on a judgment of French J, as his Honour then was, in Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 at [279] to [280]. That passage is to the following effect:

"[279] The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed... An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process.

[280]...If a party in litigation in this Court makes a formal and public allegation by way of its pleading which is inconsistent with a formal and public allegation in another forum, then such an issue may arise. No doubt most questions of statements made by a party out of court inconsistent with its plea in court are to be resolved as matters of evidence going to credit and not upon an application for summary disposition. In most such cases there will, in any event, be room for debate about the precise extent and significance of the alleged inconsistency which can only be resolved by a consideration of all the evidence and the circumstances surrounding the alleged inconsistent statement."

1. The circumstances of that comment by French J related to a formal amended defence, filed coincidentally in the Western Australian Industrial Relations Commission, which was inconsistent with claims made by the same party in proceedings in the Federal Court. In other words, we had a situation where a party was, as we used to call it, approbating and reprobating.

1. The plaintiff also relies upon a judgment of Hunt CJ in CL, as his Honour then was, in defamation proceedings, the details of which are unimportant or irrelevant for the purposes of these proceedings. In those proceedings the issue that was litigated was the question of whether or not an imputation arose, and whether that imputation which had been the subject of litigation was the same as a claim for false or misleading conduct: see Haines v ABC [1995] 43 NSWLR 404.

1. His Honour held, notwithstanding the absence of issue estoppel or res judicata, that a party could not attempt to re-litigate against another party an issue that is in substance the same and which has already been lost. While I understand the plaintiff's reliance on these matters, they do not directly deal with the issue that is before the Court.

1. The question of the pleadings is complicated by the fact that on or about 5 September 2012, the plaintiff served a notice to admit facts on the first defendant, which notice seeks the admission of facts that are precisely consistent with the facts that were agreed and formed the basis of the sentence proceedings before Backman J.

1. In relation at least to some of these facts, and I hesitate to say, somewhat crucial facts in relation to liability, the first defendant has denied the facts, which denial is inconsistent with the factual situation to which the first defendant agreed in the proceedings before the Industrial Court.

1. Notwithstanding the eloquent submissions of the plaintiff and the manner in which they are put, a gloss on this application, once removed, essentially asks the Court to require the first defendant in these proceedings to plead on a basis that is consistent with admissions made in an agreement of facts made in other proceedings for a different purpose. That is an extension of abuse of process for which I have not seen any authority. That does not mean it is not right, only that I have not seen authority for it.

1. A complicating factor is that there is a duty on parties, and on the Court, to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. The plaintiff quite properly points to the fact that the capacity in one set of proceedings to admit to facts, which, on one analysis are plain, and on any analysis would seem to suggest a duty of care and a breach of that duty, while in the other proceedings denying facts in or to the same effect, must be inconsistent with the duty imposed on the parties under s 56 of the Civil Procedure Act.

1. There is great merit in that argument. On the face of it, if the agreed facts in the Industrial Court proceedings were admitted in these Common Law proceedings, it must be inconsistent with the duty imposed by s 56 of the Civil Procedure Act for a party to be able to make one statement in one set of proceedings and another statement in another.

1. The question ultimately must be answered in two ways. First, it is a matter for the trial Judge whether the agreed facts will be admitted into evidence as an admission of the first defendant. The second factor is that the fact that there is a breach of s 56, if there be one, does not necessarily mean that the probability is the striking out of proceedings. There may be other remedies that are available.

1. The plaintiff has in some senses taken advantage of one of the remedies already by the service of the notice to admit facts, the denial of which, if ultimately wrong, has significant costs consequences.

1. The other aspect is the alternative ground that is sought in the motion of which notice has been given, that is that the Court ought make orders pursuant to the terms of s 61 of the Civil Procedure Act. The Act must be read as a whole, but s 61 allows the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings. In so doing, the Court may direct any party to the proceedings to take specified steps in relation to the proceedings, or direct the parties as to the time within which such steps may be completed. A failure to comply with the directions given may result in consequences such as default judgment or the striking out of pleading or the like.

1. The plaintiff submits, alternative to the striking out application, that the first defendant file an amended defence to the plaintiff's amended statement of claim in which it not be at liberty to deny or not admit the allegations made in certain sub-paragraphs of paragraph 12 of the amended statement of claim, or alternatively, show cause why it should be at liberty to deny or not admit the allegations referred to in paragraph 3, that is the particulars of negligence to which the plaintiff has referred.

1. In my view, the first defendant's pleadings are not an abuse of process and ought not be struck out. Nevertheless, that which is before the Court does give rise to serious issues relating to the duties imposed on parties under s 56 of the Civil Procedure Act. The plaintiff seeks orders of a kind that, in my view, it is not entitled to, because of the manner in which it has pleaded its case.

1. The amended statement of claim upon which the plaintiff is relying alleges, somewhat globally, that:

"9. At about 2 pm on Monday 30 March 2009, while the plaintiff was undertaking the work described in para 6, he was about to apply a lifting chain to a steel support chain or beam when such chain or beam fell upon his body.

10. As a result of the incident alleged in the preceding paragraph the plaintiff sustained serious injury, loss and damage.

11. The said serious injury, loss and damage arose as a result of the negligence on the part of each or all of the defendants."

1. Then paragraph 12 sets out a number of the particulars of negligence.

1. The defendant admits that the plaintiff sustained an injury as a result of an incident on site as alleged, does not admit the circumstances of the incident as pleaded, and does not otherwise admit paragraph 9.

1. In relation to paragraph 10, the defendant denies that paragraph to the extent that it concerns the first defendant, and does not otherwise admit the paragraph. In relation to paragraph 11, it denies the paragraph. In relation to paragraph 12, the necessary changes being made, the defendant denies those paragraphs.

1. I have referred to "the necessary changes" because the document upon which the matter will, subject to any subsequent change, go to trial, as currently pleaded, is a defence filed by the first defendant to the original statement of claim, which, in this respect, is not materially different to the amended statement of claim, however the paragraph numbers are slightly different.

1. Once the first defendant denies negligence, as a matter of logic, it would have to deny each of the paragraphs of what is now paragraph 12 because they are particulars of negligence. The difficulty therefore from the plaintiff's point of view is the manner in which it has, notwithstanding the notice to admit the facts, pleaded some of the factual allegations giving rise to negligence.

1. I am not therefore minded to make the orders that are sought relating to or arising under s 61 of the Civil ProcedureAct. Having said that, it seems to me that some orders ought to be made that would allow the real issues between the parties to be resolved, and I need to raise with the parties for that purpose some other issues, but I do not make the orders in paras 1 and 2.

1. Having heard further from the parties, the Court will adopt the proposal of Mr Cavanagh, and I will make orders in the following terms.

1. The Court orders, pursuant to s 61 of the Civil Procedure Act, in the following way:

(1)   I direct the first defendant to file a defence to the amended statement of claim, filed 23 March 2012, within fourteen days.

(2)   To the extent that that defence to the amended statement of claim continues to deny paragraphs 9, 10, 11 or 12 of the amended statement of claim, the first defendant shall, in the defence, provide particulars as to the basis upon which such denial is pleaded.

1. My order in the proceedings generally is that the plaintiff has not been wholly successful, but it has sought as one of its alternatives in the motion orders under s 61, which it has succeeded in obtaining. In the circumstances it seems to me the appropriate course is that costs be costs in the cause, and I so order.

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Decision last updated: 04 September 2014