New South Wales Supreme Court CITATION : Blaskovic v ABB Engineering Construction & Ors [2002] NSWSC 35 FILE NUMBER(S) : SC 20858/1997 HEARING DATE(S) : 04/02/2002 JUDGMENT DATE : 8 February 2002 Jakov Blaskovic by his tutor The Protective Commissioner for the State of New South Wales (Plaintiff) PARTIES : ABB Engineering Construction Pty Ltd (Formerly known as ABB Engineering Construction Pty Ltd (First Defendant) Regal Scaffolding Pty Ltd (Second Defendant) JUDGMENT OF : Hidden J at 1 LOWER COURT Supreme Court JURISDICTION : LOWER COURT n/a FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER : Mr J Glissan QC - Plaintiff COUNSEL : Mr G Wilson - 2nd Defendant Mr Fordham - Proposed 3rd Defendant Turner Freeman - Plaintiff SOLICITORS : Moray & Agnew - First Defendant Dennis & Company - Second Defendant Coleman & Greig - Proposed Third Defendant CATCHWORDS : Civil procedure: appeal from refusal by Master of application to join additional defendant. DECISION : Appeal allowed IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J 8 February, 2002 20858/1997 – Jakov BLASKOVIC by his tutor The Protective Commissioner for the State of New South Wales –v- ABB Engineering Construction Pty Ltd (Formerly known as ABB EPT Construction Pty Ltd) & Ors JUDGMENT 1 HIS HONOUR: On 5 October, 1994 the plaintiff, Yakov Blaskovic, was seriously injured at work. He was employed as a boilermaker/welder by the first defendant, ABB Engineering Construction Pty Limited. He fell from a ladder which had been placed against scaffolding erected by the second defendant, Regal Scaffolding Pty Limited. The work was being conducted at an oil refinery site owned by Shell Australia Limited. The plaintiff suffered brain damage, and in September 1997 he commenced proceedings in this Court against the two defendants by a tutor. 2 In June 2001 the second defendant filed a cross-claim against Shell Australia Limited, in which it was alleged that an employee of that company gave directions as to how the ladder from which the plaintiff fell should be placed. This led the plaintiff in the same month to apply for leave to file an amended statement of claim joining Shell Australia as a third defendant. That application was refused by Master Malpass on 9 November 2001, and I have before me an appeal by the plaintiff against that decision. 3 In an affidavit which was before the Master, the plaintiff's solicitor deposed that it was not until he saw that cross-claim that he became aware of any suggestion that Shell Australia might have been involved in any negligence or breach of statutory duty giving rise to the plaintiff's injuries. (The plaintiff himself has no recollection of the accident.) The Master refused the application because he did not find this an adequate explanation for the delay in proceeding against Shell Australia. He noted that it was always known that Shell was the occupier of the site and the head contractor. An investigation of the accident had been carried out by the Workcover Authority and, in the course of it, the managing director of the second defendant was interviewed. The record of that interview discloses something said by that gentleman which, the Master considered, should have put the plaintiff's solicitor on notice of Shell's possible involvement. The Master took the same view of a report by Unisearch of 28 February 2001, which had been prepared on behalf of the plaintiff. 4 The Master noted that the plaintiff bore the burden of satisfying him that he should make the order sought. He said that the result may well have been different if there were evidence explaining the "significant delay." However, he expressed his conclusion in this way: In my view, the evidence that is offered to explain delay is parsimonious and falls well short of explaining it. It does not explain why the role of the proposed third defendant was not the subject of earlier investigation. 5 Whether or not I might have taken the same view of the evidence, I cannot say that that was not a finding which was open to the Master. However, there are other matters to be considered, chief among them being whether Shell would suffer any unfairness by being joined. The Master acknowledged that Shell was already a party to the proceedings by virtue of the cross-claim but, with respect, he does not appear to have given that fact the weight it deserves. More importantly, he made no reference to the fact that it would still be open to the plaintiff to commence separate proceedings against Shell because, being a person under a disability, the normal limitation period would not run against him: S 52 of the Limitation Act, 1969. If the plaintiff did so, it would clearly be desirable that the two proceedings be heard together so that all relevant issues could be determined at one hearing. In fairness, it may be that this point was not taken before the Master, but I see it as determinative of the matter. 6 In all the circumstances, I am satisfied that the exercise of the Master's discretion miscarried and that the appeal should be allowed. I shall consult the parties about the appropriate consequential orders and, if necessary, hear argument on costs. ********** Last Modified: 03/25/2002 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.