New South Wales Supreme Court CITATION : Seach v Brydown Pty Limited [2000] NSWSC 893 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 18040/93 HEARING DATE(S) : 4 September 2000 JUDGMENT DATE : 7 September 2000 Robert Milton Seach (Plaintiff) Brydown Pty Limaited t/as PARTIES : Ossie Hall Sawmilling (Defendant/Cross Claimant) Seccombe Timber & Transport Pty Ltd (in Liq) (Cross Defendant) JUDGMENT OF : Master Harrison Mr B Gross QC with Mr A Porthouse (Plaintiff) COUNSEL : Mr A Hewitt SC (Defendant/Cross Claimant) G H Healey & Co - Glebe (plaintiff) SOLICITORS : Curwood & Partners (Defendant/Cross Claimant) CATCHWORDS : Review of registrar's decision - amend statememt of claim Supreme Court Rules - Part 61 r 3, Part 20 rr 1(1) & 4(5) LEGISLATION CITED : Factories, Shops and Industries Act 1962 Cosntruction Safety Act 1912 Beaufort Air-Sea Equipment Pty Limited v Emhart Australia Pty Limited (NSWSC unreported, Master Malpass, 18 December 1992) CASES CITED : Westpac Banking Corporation v Abemond Pty Ltd & Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) Modern Woodcraft Pty Ltd v Nett (NSWSC unreported, Young J, 7 March 1997) DECISION : See 15 6 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON THURSDAY, 7 SEPTEMBER 2000 18040/93 - ROBERT MILTON SEACH v BRYDOWN PTY LIMITED t/as OSSIE HALL SAWMILLING JUDGMENT (Review of registrar's decision; amend statement of claim) 1 MASTER: By notice of motion filed 18 July 2000 the plaintiff seeks to review the decision of Registrar Howe dated 3 July 2000 pursuant to Part 61 r 3 of the Supreme Court Rules (SCR). The plaintiff relied on the affidavit of Yvonne Williams affirmed 16 May 2000. 2 By a statement of claim filed 24 September 1993, the plaintiff sues the defendant. On or about 22 June 1989, the plaintiff drove a flat top truck onto the defendant's property where a load of timber was placed on the truck by an employee of the defendant by using the defendant's forklift. It is alleged that the timber was loaded in such a way that the slings of timber were distorted from their proper shape and that when the plaintiff was tightening the truck's security chains about the timber, the load shifted causing him to fall about 4 metres to the ground and suffer injuries. The defendant was the owner of the forklift and the occupier of the premises where the accident occurred. 3 By cross claim filed 8 May 1996, the defendant sues the plaintiff's employer, Seccombe Timber and Transport Pty Limited, for contribution. Review 4 There are several cases which are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) and Modern Woodcraft Pty Ltd v Nett (NSWSC unreported, Young J, 7 March 1997). 5 From these decisions, the approach I should take is that I should inform myself of all the material before Deputy Registrar Howe at the time when he made the orders. I can consider the fresh evidence which the plaintiff has put on and which has not been objected to by the defendants. I can allow fresh evidence to be tendered. I should also make my own decision based on the material before me and having heard legal argument. 6 The registrar referred to the amendment power in the Supreme Court Rules (SCR) namely Part 20 r 1(1), which states: (1) The court may, at any stage of the proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings." 7 Further Part 20 r 4(5) SCR allows for amendments that arise out of the same or substantially the same facts. The defendant submitted that the amendment was statute barred. Part 20 r 4(5) states: "Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of or substantially the same facts and a claim for relief on that new cause of action." 8 It is my view that that these new causes of action arise out of the facts which are already known to the parties. Thus it falls within Part 20 r 4(5). 9 At the hearing before the registrar the plaintiff relied on the affidavit of Yvonne Williams affirmed 16 May 2000. Annexure "J" at pp 48-52 inclusive sets out the proposed amendments to the statement of claim. The amendments seek to plead breach of statutory duties by the defendant pursuant to the Factories, Shops and Industries Act 1962 and the Construction Safety Act 1912. 10 The registrar stated that the court had a statutory obligation to completely and finally determine all matters in controversy between the parties. As well, the court may order amendment at any stage of the proceedings, in such manner as the court thinks fit. 11 The registrar found that the application to amend in the manner sought appeared to be misconceived. He found that there is no employer-employee relationship between the plaintiff and the defendant, only that of occupier and invitee. The registrar stated: "The amendment sought in the paragraphs to which the defendant objects relies on an employment situation existing between those two parties but that is clearly not the case as the employer is the cross defendant. With respect to the plaintiff, it seems to me that the proper application to be made is one where the plaintiff would seek to join an additional party, ie his employer, as a second defendant and allege the breach of statutory duties outlined in the proposed amendments against that party." 12 The registrar dismissed with costs the plaintiff's notice of motion filed 17 May 2000. The reasoning above is not correct. It was common ground between the parties that an occupier can be held liable for a breach of a statutory duty. 13 The defendant objected to the filing of the amended statement of claim on the basis of futility. The first defendant submitted that because the plaintiff was injured while standing on the top of timber on the tray of a truck, it did not occur in a factory. According to the defendant, if the Factories Shops and Industries Act applies then all trucks would be factories. Factory is defined in s 3 of the Factories Shops and Industries Act as a "building or place". It can be agreed that the definition extends to the grounds upon which the sawmill is located. It is the area over which an occupier has control and is responsible for the safety. It also appears that the work falls in the definition of building work in accordance with s 3 of the Construction and Safety Act. It is my view that the amendments to the statement of claim are not futile. Justice is best served if the amendments are allowed. The plaintiff should be granted leave to file and serve an amended statement of claim. The decision of the registrar of 3 July 2000 is set aside. 14 Costs are discretionary. The defendant was unsuccessful with its review but the plaintiff is usually obliged to pay the costs thrown away by the amendments. In these circumstances, the appropriate order for costs is that costs of the review and the costs incurred before the registrar should be costs in the cause. 15 The orders I make are: (1) The decision of Registrar Howe dated 3 July 2000 is set aside. (2) The plaintiff is granted leave to file an amended statement of claim, such amended statement of claim is to be filed and served within 14 days. (3) Costs of the review and the costs incurred before the registrar are costs in the cause. ********** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.