New South Wales Supreme Court CITATION : Radford v Boral Resources (NSW) Pty Limited [2003] NSWSC 375 revised - 7/05/2003 HEARING DATE(S) : 2/05/03 JUDGMENT DATE : 5 May 2003 JUDGMENT OF : Shaw J DECISION : Application refused. CATCHWORDS : Pleadings - late application for leave to amend defence and file cross claim - case management - LEGISLATION CITED : Workers Compensation Act 1987 s 151Z CASES CITED : Queensland v JL Holdings Pty Limited (1997) 189 CLR146; Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; PARTIES : Barry Ronald Radford - Plaintiff Boral Resources (NSW) Pty Ltd - Defendant FILE NUMBER(S) : SC 20098/02 Mr P Webb, QC - Plaintiff COUNSEL : Mr M Hutchings - Defendant Mr Esdaile (Sol) - Cross defendant SOLICITORS : Maurice May & Co - Plaintiff Ebsworth and Ebsworth - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Shaw J 5 May 2003 20098 of 2002 Barry Ronald Radford (Plaintiff) v Boral Resources (NSW) Pty Limited (Defendant) JUDGMENT 1 Shaw J: This is a case in which a plaintiff, Mr Radford, alleges that he was employed by Skilled Engineering Pty Limited as a plant operator working at the premises of the defendant. The plaintiff contends that he was employed by Skilled Engineering, although his primary proposition is that his injury which is said to have occurred on 25 May 1998 occurred as a result of the defendant (Boral). The allegations in the pleadings include the proposition that Boral was negligent in leaving a drum in the path of the plaintiff, and (inter alia) failing to provide the plaintiff with a clear pathway to drive his vehicle so as to allow him to perform his work. 2 The notice of motion before the Court is an application to allow an amendment of the defence by Boral to say that it was the negligence of the employer (Skilled Engineering) which was the causal factor in relation to the injury to the plaintiff, and in particular it is alleged that there was a failure to properly instruct the plaintiff as to the removal of objects in the path of the vehicle that he was driving, a failure to advise the plaintiff as to the manner by which he could safely remove the drum from the path, a failure to advise the plaintiff of the correct means of lifting heavy weights, a failure to inspect the defendant's workplace to ensure that the plaintiff's intended place of work was safe, a failure to warn the plaintiff of the dangers involved in lifting heavy objects manually and without appropriate assistance in order to achieve that purpose, and the failure to properly or adequately supervise the plaintiff. I should note that this is a précis of the allegations contained in the proposed amendments and is not intended to be a comprehensive statement of what the defendant wishes to allege. 3 The question for the Court in relation to this notice of motion is whether the amendment should be allowed at this late stage. The trial is set down to be heard on 6 May 2003. The solicitor for the employer, Mr Esdaile, says that his client would not be in a position to properly defend the proceedings if the amendments and/or leave to file the cross claim were to be granted. This, of course, is highly regrettable since the matter has been proceeding for some years having been commenced by the filing of the Statement of Claim in the District Court on 11 February 2000. 4 Yet, due consideration must be given to the right of the defendant to agitate its case as its legal advisers see fit. As the High Court held in Queensland v JL Holdings Pty Limited (1997) 189 CLR 146, whilst case management principles are a relevant consideration in determining procedural matters within the Court, they should not be used to prevent a party from litigating an issue which is fairly arguable. The Court determined that a party should be allowed to raise an arguable defence provided any prejudice to other parties can be compensated by costs. 5 In my opinion, the argument comes down to whether the amendment could be granted without undue unfairness to the parties or whether the disruption to the trial process would be such as to be untoward, disruptive of the position of the parties and the Court listings. 6 Mr Webb, QC, for the plaintiff, submits that any cross claim which Boral desires to agitate could be dealt with by a consequential proceeding and that the potential, perhaps inevitable, adjournment of the trial is therefore unjustified. In other words, counsel puts that Boral's position is sufficiently protected by their right to raise a future claim against the employer which they have foreshadowed in terms of an amendment to the statement of claim and that there is therefore no reason to put in jeopardy the scheduled trial. 7 In my opinion, there is much force in this submission and I propose to accept it. I appreciate the argument of the defendant that, whilst it issued a subpoena to obtain relevant documents in April 2001, those documents were only provided in recent days, whereupon access was granted. It is said by the defendant that it was only after perusing those documents it appreciated and was appropriately advised that the cross claim foreshadowed was open to it. All of this is regrettable. However, I think that the interests of justice are best served by the trial proceeding on the basis of the current proceedings whilst allowing the defendant to pursue any further proceedings by way of indemnity that it might be advised to lodge. There is some substance in the submission of the plaintiff that whilst the subpoena seeking documentation was issued in April 2001 the matter of production does not appear to have been pursued assiduously and that therefore the application for amendment is belated. 8 The defendant referred to Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. In my view that case is centrally concerned with a situation when a party fails to raise a point which should have been raised in the litigation and is therefore precluded from raising it subsequently. This is a case where the point has been foreshadowed and is a claim for indemnity against the employer (a non-party) and that therefore the present defendant would not, in my opinion, be precluded from raising that point in subsequent litigation. 9 It is accepted by the defendant (according to the affidavit filed by its solicitor in support of its motion) that there has been 'delay' in taking steps to amend the defence or to plead the provision of s 151X of the Workers Compensation Act 1987 (NSW) or to file a cross claim against Skilled Engineering. It is candidly said that a number of factors contributed to that delay; including 'the issue having been overlooked and/or not pursued'. 10 Accordingly, after balancing the competing considerations of procedural fairness, the right to litigate all relevant issues, and the efficient administration of justice, it seems to me that I should, and therefore I do, decline the application for leave to amend the defence and/or initiate a cross claim against a corporation which has not hitherto been a party to the proceedings whilst the matter has been in the court lists for some years. Of course, it is possible that some further procedural application could be renewed before the trial judge and that would be a matter for his or her discretion in the context of the formal listing of the trial. However, on an interlocutory basis and given the proximity of the date of the notice of motion to the scheduled trial, my view is that I should decline the application to amend the proceedings in the way that it has been sought by the defendant. 11 In my view, the costs of this notice of motion should be costs in the cause. ***** Last Modified: 05/08/2003 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.