MacDonald v Inglis Equipment Pty Limited [2017] NSWDC 59

District Court New South Wales

Medium Neutral Citation: MacDonald v Inglis Equipment Pty Limited [2017] NSWDC 59 Hearing dates: 13 and 14 March 2017 Date of orders: 23 March 2017 Decision date: 23 March 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's application for leave to amend the statement of claim dismissed. (2) Statement of claim struck out and dismissed. (3) Plaintiff pay defendant's costs of the application and of the proceedings, with liberty to apply. (4) Exhibits retained until further order. Catchwords: TORTS - negligence - motor accident – defendant leased forklift to plaintiff's employer for five years – plaintiff injured when struck by forklift operated by a fellow employee in the employer's premises – plaintiff brings proceedings against defendant on the basis that his fellow employee was the defendant's servant or agent - whether the defendant had parted with possession of the forklift for the purposes of Motor Accidents Compensation Act 1999 (NSW) s 4(1)(b) - whether defendant "entitled to immediate possession of the vehicle" – defendant not in possession of forklift PRACTICE AND PROCEDURE – application under s 65 Civil Procedure Act 2005 (NSW) to amend statement of claim to plead defendant's failure to repair or negligent repair of forklift – whether proposed amendment based on the same (or substantially the same) facts as those giving rise to the currently pleaded cause of action – prejudice, delay and discretion issues – application for leave to amend refused Legislation Cited: Civil Procedure Act 2005 (NSW), s 65 Motor Accidents Compensation Act 1999 (NSW), ss 3, 3B, 4, 10A and 112 Motor Accidents Compensation Regulation 2015 (NSW), r 20(e)(i) Road Transport Act 2013 (NSW), s 4(1) Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Bon Arthur Transport Pty Ltd (in liq) v Caruana [2013] NSWCA 101 Ewing v Times Newspapers Ltd [2011] NIQB 63 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Greenwood v Papademetri [2007] NSWCA 221 H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 O'Dwyer v Chief Constable of the RUC [1997] NI 403 Perera v Gemworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Riverina Wines Pty Ltd v Tetra Pak Marketing Pty Ltd [2007] NSWSC 1014 Szanto v Bainton [2011] NSWSC 985 Treadtel International Pty Ltd v Cocco [2016] NSWCA 360 WorkPac Pty Ltd v Thearle [2016] NSWCA 303 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Category: Principal judgment Parties: Plaintiff: Graham MacDonald Defendant: Inglis Equipment Pty Limited Representation: Counsel: Plaintiff: Mr C Hart Defendant: Mr J Sleight