New South Wales Court of Appeal CITATION: SUTTON v ERECT SAFE SCAFFOLDING (AUST) PTY LTD & ANOR [2006] NSWCA 265 HEARING DATE(S): Dealt with on written submissions in Chambers JUDGMENT DATE: 21 September 2006 JUDGMENT OF: Bryson JA at 1; Basten JA at 8 DECISION: Ordinary Summons for leave to appeal dismissed with costs. LEGISLATION CITED: Occupational Health and Safety Act 2000 CASES CITED: Nowlan v Marson Transport Pty Ltd [2001] 53 NSWLR 116 White v Overland [2001] FCA 1333 Ian Sutton - Claimant PARTIES: Erect Safe Scaffolding (Aust) Pty Ltd - First Opponent Australand (Regency) Pty Ltd - Second Opponent FILE NUMBER(S): CA 40418/06 COUNSEL: Mr M. Perry - Claimant Mr J.G. Stewart - Second Opponent Taylor & Scott - Claimant SOLICITORS: McCulloch & Buggy - First Opponent Ebsworth & Ebsworth - Second Opponent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4948/04 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 15 March 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40418/06 BRYSON JA BASTEN JA 21 SEPTEMBER 2006 IAN SUTTON v ERECT SAFE SCAFFOLDING (AUST) PTY LTD & ORS Judgment 1 BRYSON JA: The claimant seeks leave to appeal from the decision and costs orders made by his Honour Judge Garling in the District Court on 15 March 2006: the Trial Judge was of opinion that the claimant (plaintiff in the District Court) "… will have to be responsible for the costs thrown away by the adjournment and that is of each of the defendants." 2 The claimant sued for damages for personal injuries in a work accident in which he claimed that, while working as a formwork carpenter on a construction site at St Leonards, he walked along planking or a gangway area supported by scaffolding, and his head came into contact with a piece of scaffolding tie which inappropriately protruded into the area where he was required to walk. In his Second Amended Statement of Claim he alleged that the first defendant (and first opponent) Erect Safe was carrying out building work and/or construction work, and was carrying out scaffolding work and had contracted with the second opponent (and second defendant) Australand to do so. It was also alleged that Australand contracted with Erect Safe for Erect Safe to carry out scaffolding work at the site; that both defendants were controllers of work premises and plant within the meaning of the Occupational Health And Safety Act 2000 and were designers, manufacturers and or suppliers of plant for use of work within the meaning of that Act. The force of what was alleged is slightly blunted by there not being a clear and unequivocal allegation that Erect Safe actually erected the scaffolding: but no-one can have misunderstood that that was the contention. In its defence Erect Safe did not admit that it was carrying out building and or construction work, that it was carrying out scaffolding work or that Australand had contracted with Erect Safe for Erect Safe to carry out scaffolding work, and denied the allegations relating to the Occupational Health And Safety Act. 3 On the first day of the hearing, soon after the claimant's counsel had opened his case, Erect Safe's counsel told him and the Court that its case was that it did not erect scaffolding or carry out any relevant scaffolding work at the building site except for supplying scaffolding to another person, Viper Constructions (NSW) Pty Ltd; which presumably did construct the scaffolding. Viper Constructions was not a party. Counsel for Erect Safe produced and showed the claimant's counsel a document purporting to be from Viper Constructions showing that it had erected the scaffolding, and said that he proposed to call two witnesses in support of the defence that Erect Safe did not carry out the scaffolding work or direct any scaffolding work at the building site. This led the claimant's counsel to apply for an adjournment, which he obtained, but subject to the costs orders under challenge. 4 The claimant wishes to contend that there was a wrong exercise of the Trial Judge's discretion as to costs; the basis for this contention was developed at length but what underlay it were contentions to the effect that Erect Safe had not, before the day of the hearing, made known that it was its case, supported by evidence, that it did not erect the scaffolding and that it was able to show by evidence that there was someone else with whom it had made arrangements for the scaffolding to be erected. The claimant wishes to contend that the conduct of the proceedings by Erect Safe and those representing it was inappropriate in that this was not made clear before the hearing date; it was said that Erect Safe and those advising it ought to have known that the claimant was labouring under the misapprehension that Erect Safe carried out the scaffolding work at the building site. In support of this contention reference was made to passages in pleadings and particulars which it was said made the claimant's misapprehension as to who carried out the scaffolding work evident to other parties. References were made to case law relating to the spirit in which litigation should be conducted, particularly to White v Overland [2001] FCA 1333 and to Nowlan v Marson Transport Pty Ltd [2001] 53 NSWLR 116 at 127[23] to 131[36]. 5 Erect Safe sufficiently indicated its position by stating, in its Notice of Grounds of Defence, that it did not admit the allegations relating to its involvement in the events. By so doing, Erect Safe clearly put before the claimant the need to be prepared to prove, at the hearing, the facts alleged relating to Erect Safe's participation in the events. The possibility that Erect Safe, having declined to admit its involvement, would come to Court armed with evidence supporting a case that it was not involved, and also with evidence supporting a case that someone else was, was altogether clear, and if this position took the claimant and those representing him by surprise, they were not acting reasonably. 6 I see no element of deception or want of frankness on the part of Erect Safe and those who represented it. Various courses which the claimant could have taken to equip himself with better knowledge about Erect Safe's position were not taken; the available measures included discovery of documents, delivery of interrogatories and notices to admit facts. 7 In my opinion there is no reason to think that it might be shown on appeal that the Trial Judge's decision on costs was erroneous. In my opinion the Court of Appeal should refuse leave to appeal and should make this order. Ordinary Summons for leave to appeal dismissed with costs. 8 BASTEN JA: I agree with Bryson JA. ********** 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.