Zarko Vranjkovic v Sydney Timber Floor Specialists P/L
[2022] NSWSC 1565
•1 November 2022
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New South Wales |
Case Name: | Zarko Vranjkovic v Sydney Timber Floor Specialists P/L |
Medium Neutral Citation: | [2022] NSWSC 1565 |
Hearing Date(s): | 1 November 2022 |
Date of Orders: | 1 November 2022 |
Decision Date: | 1 November 2022 |
Jurisdiction: | Common Law |
Before: | Campbell J |
Decision: | I grant leave to the plaintiff to join as a fourth defendant, Agia Project Pty Ltd and to file and serve the second further amended statement of claim as attached to Mr Carter’s affidavit within seven days. |
Catchwords: | CIVIL PROCEDURE – parties – joinder – of defendant |
Legislation Cited: | Legal Profession Uniform Law 2014 (NSW) |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 |
Category: | Procedural rulings |
Parties: | Zarko Vranjkovic (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2019/193516 |
Judgment (revised)
The plaintiff is claiming damages for personal injury suffered in a construction site accident at Cremorne on 18 May 2017. As is common with such accidents, there are multiple defendants who currently include the first defendant to whom certain working responsibility was delegated by the principal contractor, its subcontractor, the second defendant, and the plaintiff’s direct employer, the third defendant. The defendants have joined as a cross-defendant to the proceedings, Agia Projects Pty Ltd, who in fact was the head contractor and principal on site.
The plaintiff’s case is a simple one, he was employed by the third defendant as a gyprocker, and although there are some issues about why he did so, he entered a part of the residential construction site where a staircase was still under construction. Not all of the steps had been adequately fixed in place. One step gave way under him, he fell, and suffered what appear to be on the face of it, significant injuries.
The proceedings were commenced in the District Court and subsequently transferred to this court. They have been fixed for hearing with an estimate of five days, commencing on 3 April 2023. As is the court’s practice in relation to longer personal injury matters, Cavanagh J has been responsible for case managing the matter. The matter was last before his Honour on the 16 September 2022 when his Honour fixed the matter for hearing.
The plaintiff now moves by notice of motion filed on 20 October 2022 to join the cross-defendant as a fourth defendant in the proceedings. The plaintiff moves on the affidavit of his solicitor, Mr Trevor Carter, sworn also on 20 October 2022 which annexes the proposed second further amended statement of claim pleading the cause of action against Agia Projects Pty Ltd.
Mr FDM Curran of learned counsel appears for the plaintiff and Mr N Gordon, solicitor, appears for the proposed fourth defendant.
There is no issue of any prejudice raised by the proposed fourth defendant, although Mr Gordon had some concerns about whether the hearing dates could be retained if his client was joined as a defendant given the different emphasis that its involvement would take on as a party directly sued by the plaintiff, as is evident from the emails attached to Mr Carter’s affidavit. Mr Gordon has told me today that upon more mature consideration, his client would be able to retain the hearing dates and would be content to rely upon the medical evidence that had been obtained by other defendants.
However, he does point out that given the accident happened about five years and six months ago, the plaintiff presumptively, if I may put it that way informally, would be out of time to commence proceedings against his client. That consideration would add another layer to the issues at the hearing and no doubt would require additional time to be resolved given that doubtless the plaintiff would be raising an issue about discoverability in response to any pleading of the Limitation Act 1969 (NSW).
The proceedings were commenced within time in the District Court, and it seems from what I have been told by Mr Curran and Mr Gordon, that Mr Gordon’s client was joined to the proceedings as a cross-defendant, I will say as long ago as December 2019 when the plaintiff would have been indisputably within time to join his client as an additional defendant.
I think it is inherent in what Mr Carter says in his affidavit and what Mr Curran has put to me today in argument that although others joined Mr Gordon’s client as a cross-defendant, it did not appear to those advising the plaintiff that they had available to them evidence to justify the joinder as a defendant given restrictions placed upon solicitors under the Legal Profession Uniform Law Application Act 2014 (NSW) in relation to the commencement of proceedings in matters of this type: s 62, Sch 2.
The explanation for the application for joinder being made now from Mr Carter’s affidavit is that documents produced under subpoena have disclosed part of an email, from Agia Projects Pty Ltd’s insurance broker of 2 February 2018, which expressed the broker’s view that matters contained in a loss adjustor’s report suggested a potential for Agia Projects Pty Ltd to be exposed to legal responsibility in relation to the matter.
Now, I interpolate, obviously the opinion of a broker about those matters is just entirely irrelevant and would not see the light of day in evidence at a properly contested hearing. On the other hand, the broker does recite some facts based upon the loss adjustor’s investigation which if established by admissible evidence at the hearing, may be capable of exposing Agia Projects Pty Ltd to legal liability, always accepting that a head contractor’s duty is more truncated than the duty owed by an employer, on the one hand, or by a subcontractor actually responsible for performing the offending work, on the other.
The difficulty with the explanation for the delay in joining the proposed fourth defendant is that it is not disputed that, as Mr Gordon says, this document was among documents produced under subpoena back in December 2019. And it seems that I need to infer that the solicitors for the plaintiff either did not inspect them or did not inspect them sufficiently thoroughly at that time or since to become aware of those factual matters which are now relied upon.
It is, of course, important for me to bear in mind in accordance with Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 that any late amendment, leaving aside any limitation considerations, needs to be supported by a full and satisfactory explanation for the apparent delay in taking the now contested step. A full and satisfactory explanation need not be elaborate. It is sufficient that it fully explains what happened and although “satisfactory” is a protean adjective, it needs to be acceptable to the Court when viewed from the party’s perspective rather than necessarily the perspective of his lawyers.
From the perspective of the plaintiff himself who doubtless relied upon his lawyers in terms of what steps should properly be taken in the proceedings, there is nothing before me to suggest that he was aware of the facts which are said to now underpin the potential liability of Mr Gordon’s client. Indeed, there is nothing before me to suggest that he was aware of the contents of the email from the insurance broker which has motivated this application for joinder at this time.
I am informed, unsurprisingly, that neither of the first or third defendants object to the joinder of Mr Gordon’s client as a defendant, but that is not the end of the matter. I am concerned about the potential effect of the joinder upon the hearing date, but I think as Mr Gordon very fairly acknowledged, the matter has been listed in the week leading up to the Easter public holidays and it is unlikely to finish in the week for which it has been set down. And it is bound to either spill over into the following short week or will have to be adjourned part heard if it does not settle. That seems to be a factor which was overlooked by the parties and with respect, by his Honour, to whose attention that circumstance was not drawn, when 3 April 2023 was selected as the date for the commencement of the hearing.
Accordingly, I am of the view that there is pressure on the hearing dates anyway and that if I allow this joinder, it will not make a material difference to that pressure. It seems that everyone is able to commence the proceedings on 3 April, what happens thereafter will of course be within the discretion of the trial judge assigned.
Although the matter is not straightforward, I am satisfied that the explanation is that Mr Carter was simply unaware of the facts narrated in the broker’s email of February 2018 until quite recently. And, indeed, at the directions hearing before Cavanagh J, the first defendant claimed to be the principal contractor on site until the representative of that party was disabused of that consideration.
Although the circumstances are unfortunate, I am satisfied that the explanation is, although not elaborate, full and while perhaps the solicitor should have picked up what was buried in the subpoenaed documents sooner, at least in an ideal world, from the point of view of the plaintiff himself, the explanation is not unsatisfactory. In the circumstances, given that there is no prejudice as Mr Gordon again fairly acknowledges to his client, and without prejudice to the proposed fourth defendant’s right to raise and rely upon a limitation defence, I grant leave to the plaintiff to join as a fourth defendant, Agia Project Pty Ltd and to file and serve the second further amended statement of claim as attached to Mr Carter’s affidavit within seven days. No order as to costs to the intent that each party appearing today bear its own of this application.
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Amendments
21 November 2022 - 21 November 2022 Restriction lifted
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