Zubary v SRT Formwork Pty Ltd
[2023] ACTSC 152
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Zubary v SRT Formwork Pty Ltd |
Citation: | [2023] ACTSC 152 |
Hearing Date: | 19 June 2023 |
DecisionDate: | 19 June 2023 |
Before: | Curtin AJ |
Decision: | (1) I grant leave to the second defendant to file a contribution notice against the first defendant on or before 5:00pm on 22 June 2023. (2) The second defendant is to pay the first defendant's and the plaintiff's costs of the application. |
Catchwords: | PRACTICE AND PROCEDURE – application by second defendant for leave to file and serve a contribution notice on the first defendant – whether granting leave would prejudice the hearing date – whether conflict of interest for solicitors acting for party in relation to both insured and uninsured risks |
Legislation Cited: | Australian Consumer Law s 23; Part 2, 3 Court Procedures Act 2004 s 5A |
Cases Cited: | Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356 Yanagisawa v Shamrock Civil Engineering Pty Ltd [2021] NSWSC 761 |
Parties: | Ahmad Obaid Zubary ( Plaintiff) SRT Formwork Pty Ltd ( First Defendant) IC Formwork Services Pty Ltd (Second Defendant) |
Representation: | Counsel W Sharwood ( Plaintiff) K Weir ( First Defendant) S Idowu (Second Defendant) |
| Solicitors Norwest Lawyers ( Plaintiff) Moray & Agnew ( First Defendant) Hall & Wilcox ( Second Defendant) | |
File Number: | SC 342 of 2022 |
CURTIN AJ:
EX TEMPORE (REVISED)
Introduction
This is an application filed on 11 May 2023 by the second defendant for leave to file and serve a contribution notice on the first defendant.
For the reasons that follow, the application is allowed.
Background
These proceedings were commenced on 15 September 2022. These proceedings are personal injury proceedings arising out of an accident in which the plaintiff was injured and which occurred at the Brindabella Business Park at Canberra Airport on 17 September 2019.
It is alleged that whilst the first defendant employed the plaintiff as a carpenter, the plaintiff worked under the direction and control of the second defendant pursuant to a labour hire agreement between the two defendants.
Both defendants deny liability to the plaintiff. His claims against them are for negligence and breaches of statutory duty.
The matter was first listed for a directions hearing on 14 November 2022. For reasons which do not need to be explained, the parties returned for an adjourned first directions hearing on 21 November 2022. On that date, the Registrar directed both defendants to file and serve any defence, contribution notices and third party notices by 23 December 2022. There is evidence that the solicitor for the second defendant had asked to be allowed to file its contribution notice by February 2023.
In about January 2023, the second defendant's solicitors received instructions to file a contribution notice against the first defendant.
There are gaps in the second defendant's evidence, but there is some evidence that notwithstanding receipt of those instructions, the solicitors for the second defendant did not immediately file a contribution notice but, instead, undertook investigations to determine whether or not the first defendant had taken out certain insurance which the second defendant alleges the first defendant was required to take out to cover the second defendant in relation to accidents such as that which occurred to the plaintiff.
In short, those investigations took several months until a contribution notice, in identical pleaded terms to that for which leave is sought today, was served on the solicitor for the first defendant either on 4 or 8 May 2023. The difference between those two dates is irrelevant.
Shortly thereafter, the first defendant indicated its opposition to the filing of that contribution notice and this application was filed at about the same time.
Whilst the evidence is a little lacking, I accept the explanation for the delay as set out in the affidavit of Ms Idowu affirmed on 5 June 2023.
The next substantial question is that of prejudice.
The matter is listed for a mediation on 29 June 2023 and for a four-day hearing commencing on 4 December 2023. Whilst it is probable that the mediation date may have to be vacated, it is by no means certain, or indeed probable, that the hearing date would be lost.
The first defendant raises three potential delays to proceedings if the proposed notice is filed, and I emphasise the word “potential”. Some further background is necessary.
The labour hire agreement, on its face, purports to show that it was agreed between the first and second defendant that the first defendant would take out insurance listing the second defendant as an interested party, and to cover its respective liability to third parties. The more specific allegations are set out in section 7, clauses 11.1 to 11.15 of the Subcontract-Labour Hire agreement which is Exhibit B on the application.
That agreement also, on its face, includes an indemnity clause which the second defendant contends is a contractual obligation for the first defendant to indemnify the second defendant in certain circumstances, including the circumstances of the plaintiff's accident.
The first defendant tendered evidence of a Certificate of Currency issued by Aon Australia Limited dated 28 May 2019 for the period of insurance from 4:00pm on 20 May 2019 until 4:00pm on 20 May 2020. That period of insurance includes the date of the plaintiff's accident. The first defendant also tenders a policy wording which, on the first defendant's solicitor's instructions, is the wording relevant to that Certificate of Currency.
The first defendant submits that it has established that the insurance, the subject of the contribution notice, has, in fact, been taken out and so that pleading is bound to fail.
Alternatively, the first defendant submits that if it turns out that the policy, which it says was taken out, does not meet the policy required to be taken out by the Subcontract-Labour Hire agreement, that it may be that the first defendant would have a claim against its insurance broker for not taking out or arranging the cover requested or required. It was submitted that this would potentially delay the hearing of the proceedings.
The first defendant also says there is potential for delay in the hearing of this action because it may wish to make a claim in the proceedings that the clause imposing an obligation on the first defendant to indemnify the second defendant for the second defendant's own negligence was void as an unfair term in a small business contract pursuant to Part 2-3 and particularly s 23 of the Australian Consumer Law. The first defendant submits that making such a claim would involve the parties gathering and leading further evidence on the negotiation of the subcontract labour hire agreement.
The third potential delay is particular to the first defendant in that there will need to be some “behind the scenes” discussions and agreements reached by which the present solicitors for the first defendant can represent the first defendant in both its insured and uninsured interests.
The first defendant at one stage put forward the proposition that the solicitors currently acting for the first defendant could not remain on the record because they would be placed in a position of conflict. Before the hearing of the application I brought to the parties’ attention Young JA’s judgment in Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356 and Cavanagh J’s decision in Yanagisawa v Shamrock Civil Engineering Pty Ltd [2021] NSWSC 761, both of which cast considerable doubt on the first defendant's proposition.
That claim in relation to a conflict was withdrawn at the hearing of the application and the first defendant accepts there is no present conflict of interest in the solicitors for the first defendant acting for the first defendant on instructions from its present insurer and acting for the first defendant for the uninsured risk, if there be any, arising from the two contractual claims referred to earlier in these reasons.
Decision
I am not persuaded that at the present time there is any actual risk to the hearing date.
Section 5A of the Court Procedures Act 2004 says:
5AMain purpose of civil procedure provisions
(1)The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes-
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Subsection (4) of s 5A says that “(t)he parties to a civil proceeding must help the Court to achieve” those objectives. I emphasise the word “must”.
Subsection (2) says:
(2) Without limiting subsection (1), the main purpose includes the following objectives:
(a) the just resolution of the real issues in civil proceedings;
(b) the efficient use of the judicial and administrative resources ...
(c) the efficient disposal of a court's overall caseload;
(d) the timely disposal of civil proceedings;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
To my mind it is no accident that the word “just” is the first matter that appears in subsection (1) and the first matter that appears in subsection (2).
After the word “just” come the words “quickly”, “inexpensively”, “efficiently” and “timely”.
It seems to me that the interests of justice require that the application be granted so that the second defendant can make a claim in its proceedings against the first defendant based on their contract.
It does not presently seem there is any risk to the hearing date on 4 December and the keeping of that hearing date would allow the determination of all issues between the parties to be determined more quickly, inexpensively and efficiently than if this application was refused or the application was allowed and the hearing date, on present indications, abandoned.
No doubt the parties will have regard to their mandatory obligation to help the Court to achieve the objectives in s 5A as mentioned above, which would include taking all reasonable steps to prepare the matter for hearing, including those matters set out in the subject contribution notice.
For those reasons the application is allowed.
The application was necessary because of the second defendant's failure to file its contribution notice within the time allowed by the Registrar. Accordingly, the application would always have had to have been made to the Court and it was not unreasonable in the circumstances of this application for the first defendant and the plaintiff to take the positions they did at the different times they did.
Orders
I make the following orders:
(1)I grant leave to the second defendant to file a contribution notice against the first defendant on or before 5:00pm on 22 June 2023.
(2)The second defendant is to pay the first defendant's and the plaintiff's costs of the application.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: 27 June 2023 |
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