Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Winch & Haulage Company Pty Ltd v Philip Archibald Collins & Anor [2013] NSWCA 232 Hearing dates: 11.07.13 Decision date: 11 July 2013 Before: Emmett JA [1]; Leeming JA [9]; Sackville AJA [10] Decision: The court orders that: The application to amend the proposed cross-appeal be dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - pleadings - leave to amend proposed cross-appeal to add new ground refused - where defence did not put plaintiff on notice and involves factual matters Legislation Cited: Civil Procedure Act 2005 Construction Safety Regulation 1950 reg 73 Category: Interlocutory applications Parties: Australian Winch & Haulage Company Pty Ltd - appellant Philip Archibald Collins - first respondent Sydney Ports Corporation - second respondent Representation: Counsel: M T McCulloch SC/S J Maybury - appellant L King SC/P Stockley - first respondent D J Hooke SC/N J Broadbent - second respondent Solicitors: HWL Ebsworth Lawyers - appellant Higgins Lawyers - first respondent Hicksons Lawyers - second respondent File Number(s): 2012/358038 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 115 Date of Decision: 2012-02-24 00:00:00 Before: Harrison J File Number(s): SC 2009/296483 Judgment Application by second respondent for extension of time to file cross appeal: see transcript p 9 1EMMETT JA: The Court has before it, to be heard concurrently with the appeal, an application by the second respondent, Sydney Ports Corporation, to file a cross-appeal out of time. Sydney Ports Corporation was the first defendant at first instance. 2When the matter was called on for hearing, counsel for Sydney Ports Corporation indicated that he wished to amend the form of cross-appeal that would be filed if leave were to be given. That is opposed by the appellant and the first respondent, Mr Philip Collins, who was the plaintiff at first instance. 3The proposed new ground is that the primary judge erred in finding that reg 73 of the Construction Safety Regulation 1950 (the Regulation) applied to the circumstances of Mr Collins' injury and, in the alternative, that the primary judge erred in finding that Sydney Ports Corporation had breached the Regulation. 4The Regulation provides that any person who directly, or by his or her servants or agents, carries out any construction work must take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and, for that purpose, without limiting the generality of the foregoing, he or she must, subject to an exception that does not appear to be presently relevant, provide and maintain safe means of access to every place in which any person has to work at any time. 5In paragraph 7 of the final version of his statement of claim, Mr Collins alleged, in the alternative, that he suffered injury as a result of Sydney Ports Corporation's breach of its statutory duty. Paragraph 8 of the statement of claim then asserted breach of the Regulation in failing to take certain measures. Sydney Ports Corporation's amended defence simply denied paras 7 and 8. 6In the course of the hearing at first instance, counsel for Sydney Ports Corporation indicated that there was a dispute about breach, but at no stage was any indication given that the Regulation had no application to the circumstances of the case. Indeed, the matter was specifically raised, and no complaint was made that the primary judge intended to proceed on the basis that the Regulation applied. 7The circumstances of the case are that, while crossing a gangplank, Mr Collins was thrown into the air when a counterweight failed. It does not appear to be disputed, although it is by no means clear, that Mr Collins was on his way to engage in construction work. The argument appears to be that the gangplank did not involve a means of access. Whether that is right or not seems to me inevitably to involve factual matters. 8I do not consider that the mere denial of paragraphs 7 and 8 of the statement of claim fairly put Mr Collins and his advisers on notice that there was an issue as to whether or not the Regulation applied, such that he could have adduced evidence relevant to the question of whether or not the Regulation did have an application in the particular circumstances. I do not consider, therefore, that it is just or otherwise fair that the question now sought to be raised should be allowed to be raised at this stage, assuming that leave to file the cross-appeal out of time be given. The only cross-appeal that should be the subject of the application for an extension of time is one without the proposed new ground. 9LEEMING JA: I agree. I add one thing only. We were told that one basis on which the proposed new ground would be supported was supplied by letter from the solicitors yesterday. We were told this morning that that basis was no longer pressed and a new way of advancing the proposed new ground was advanced to us orally. In those circumstances in my view there is a real risk of injustice to the other parties that is not capable of being cured consistently with the provisions of the Civil Procedure Act 2005. 10SACKVILLE AJA: I agree with the presiding judge. I agree with the additional observations of Leeming 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. Decision last updated: 22 July 2013