F Hannan Properties & Anor v Air Liquide Australia & Anor [2002] NSWSC 895

New South Wales Supreme Court

CITATION : F Hannan Properties & Anor v Air Liquide Australia & Anor [2002] NSWSC 895 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20344 of 1999 HEARING DATE(S) : 26 September 2002 JUDGMENT DATE : 30 September 2002

F Hannan Properties Pty Limited (First Plaintiff) General Newspapers Pty Limited (Second Plaintiff) PARTIES : v Air Liquide Australia Limited (First Defendant) Wiltrading Pty Limited (Second Defendant) JUDGMENT OF : Master Malpass

Mr R S Angyal (Plaintiffs) COUNSEL : Mr G A Seib (First Defendant) N/A (Second Defendant) Holman Webb (Plaintiffs) SOLICITORS : PricewaterhouseCoopers Legal (First Defendant) Sparke Helmore (Second Defendant) CATCHWORDS : Review of decision by Registrar - amendment after expiry of limitation period - restricted power conferred by rule 4 (5) - admission of evidence in review - distinction between a review and a fresh hearing of the original application - discretionary considerations. LEGISLATION CITED : Supreme Court Rules 1970, Pt 20, r 1, r 4, r 4 (5). CASES CITED : N/A DECISION : See Paragraph 24.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Monday 30 September 2002

20344 of 1999 F Hannan Properties Pty Limited & Anor v Air Liquide Australia limited & Anor

REASONS FOR JUDGMENT 1 Master: These proceedings were commenced by Statement of Claim filed on 28 July 1999. The plaintiffs are claiming damages as a result of an explosion of a cylinder that took place on 10 October 1993. 2 The explosion took place at premises owned by the second defendant in Alexandria at a time when one of its employees (Stephen Mallia) was loading cylinders onto a truck for delivery. The explosion brought about the death of the employee and damage to the first plaintiff's neighbouring premises and to the business conducted thereon by the second plaintiff. 3 The explosion was followed by considerable investigation and other activity (including a WorkCover investigation, a Coronial Inquiry and WorkCover prosecution). Despite this activity, little is known as to the cause of the explosion. Experts have been retained and opinions have been expressed as to its cause. 4 The Statement of Claim pleaded a claim founded on negligence. It pleaded a breach of the duty of care which is alleged in paragraph 12 thereof. The allegations of breach proceeded on the basis that the cylinder had been filled with acetylene. 5 The plaintiff's expert (Associate Professor Price) has provided reports. He has canvassed a number of possibilities for the cause of the explosion. One of these, was the possibility that the cylinder may have been filled with oxygen. 6 On 24 April 2002, the plaintiffs filed a Notice of Motion seeking leave to amend the Statement of Claim so as to in effect litigate that possibility as a part of the claim. The application was opposed. It was heard by Deputy Registrar Haggett who made orders on 20 May 2002 allowing the proposed amendment. This involved inter alia the addition of paragraphs 31A, 31B and 31C. The Amended Statement of Claim was filed on 23 May 2002. 7 The first defendant has sought a review of the decision made by the Registrar. The review was had on 26 September 2002. Upon completion of the review, the court decided that it was not satisfied that there were grounds justifying the disturbing of the decision of the Registrar. 8 The application for review that was litigated was as advanced in the Further Amended Notice of Motion filed on 19 July 2002. The Notice of Motion has been dismissed. The first defendant has required detailed reasons. Because of the circumstances in which the court was then placed, the delivery of those reasons was reserved. 9 Counsel for the first defendant has prepared detailed written submissions. These submissions were amplified and supplemented orally. It is unnecessary to address all of the matters agitated in the submissions. I shall expressly deal with certain of them. 10 The court is presently concerned with what appears in paragraphs 31A, 31B and 31C of the Amended Statement of Claim only. The first defendant seeks to have the orders of the Registrar set aside and this would see these paragraphs struck out. 11 The court has the discretionary powers in relation to amendment conferred by Part 20 of the Supreme Court Rules 1970. The power is to be exercised having regard to the relevant circumstances of the particular case before the court and so that the interests of justice are best served. 12 For present purposes, the relevant provisions are rules 1 and 4. It is common ground that the relevant limitation period expired after the commencement of the proceedings. 13 In contrast to rule 1, the power conferred by rule 4 is of a restricted nature. For present purposes, the relevant restrictions are to be found in sub-rule (5). There is a threshold requirement that the new cause of action (added or substituted) arise out of the same or substantially the same facts. The first defendant says that the plaintiffs have failed to satisfy the requirements of this provision. 14 It is common ground that whether or not the plaintiffs satisfy these requirements, the court still may exercise the power conferred by rule 1. The first defendant says that in the circumstances of this case this power should not have been exercised in favour of the plaintiffs. 15 As part of its submissions, the first defendant has raised criticism of the pleading of the amended process. Some of this criticism is justified. There are structural and other problems (see inter alia paragraph 7). Although the substance of what is purported to be pleaded may be clear, the pleading could be improved by amendment. It is really a case, where the plaintiffs are in doubt as to the cause of the explosion. 16 The first defendant has contended that the disputed paragraphs propound a new cause of action which requires a new factual investigation. The plaintiffs dispute this contention. The form of the pleading is to raise the new matter as further breaches of the duty of care pleaded in paragraph 12. The question of whether or not the amendments have the effect of adding a new cause of action seems to me to be a matter that does not have to be decided in this case. I shall return to the other aspect of the submission in due course. 17 The first defendant further says that the new material does not arise out of the same or substantially the same facts. This contention is also disputed by the plaintiffs and I am not satisfied that it can be sustained in this case. In any event, even if a different view were taken on this matter, relief may still be available pursuant to rule 1. 18 The first defendant has said that it would be futile to allow the new material. I disagree. It may well be that the plaintiffs have a difficult task in relation to liability in respect of the whole of the claim, but I do not regard the new material as propounding something that is hopeless. 19 The first defendant is confident that all of the plaintiffs' claims will fail. Firstly, it relies on the lack of evidence available to the parties. Secondly, it relies on what has been said by its experts. 20 This is a case where the experts have raised a number of possible causes for the explosion. The plaintiffs merely wish to propound a case in their pleading which raises all of the possibilities. Any trial, would see the court looking at the possible causes in the light of such evidence as can be advanced as to the circumstances of the explosion. The experts have addressed what is raised by the new matter and it is difficult to see what can be done by way of further factual investigations. The fact-finding process may largely be a task of drawing inferences. 21 The first defendant has also sought to raise matters of delay and explanation for delay. There has been delay and it may be that little has been offered to explain delay. However, it appears that the question of explanation for delay may not have been agitated before the Registrar. 22 The first defendant also alleges prejudice. There is no evidence of actual prejudice before the court. There is always presumed prejudice. However, it seems that in the unusual circumstances of this case such prejudice (including the matter of the dimming of recollection of witnesses) may not be of great significance. The problem being one of paucity of witnesses and other evidence as to what happened. 23 I should add that whilst no evidence of actual prejudice was before the Registrar, there was a last minute attempt to adduce some such evidence into the review. The tender of this material was rejected after opposition from the plaintiffs. The affidavit which sought to advance this material had been served shortly before the hearing contrary to directions of the court and undertakings given at the time of the allocation of the special fixture for the hearing of the review. If admitted, it would have either prejudiced the plaintiffs or brought about an adjournment of the special fixture. Also, if admitted, it would have turned the review into a fresh hearing of the amendment application. Additionally, there was nothing to suggest that the evidence was other than available to the first defendant at the time of the hearing before the Registrar. 24 In my view, justice is best served by not disturbing the decision of the Registrar. I dismiss the Notice of Motion. The first defendant is to pay the costs of the Notice of Motion. The Exhibits may be returned. **********