Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257

Supreme Court New South Wales

Medium Neutral Citation: Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257 Hearing dates: 16; 17 March 2020 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) I give the plaintiff leave to file and serve a further amended statement of claim, in accordance with my reasons, by close of business today. (2) I give the defendant leave to file and serve any defence to that further amended statement of claim, in accordance with my reasons, by midday tomorrow 18 March 2020. (3) The costs of 16 March and 17 March 2020 are the parties' costs in the cause. Catchwords: CIVIL PROCEDURE – argument relied on not previously pleaded – prejudice to other party – proper articulation of claim Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [2009] HCA 27 Category: Procedural and other rulings Parties: Woodhouse (Plaintiff) Fitzgerald (First Defendant) McCoy (Second Defendant) Representation: Counsel: G.J. Parker SC with P. Tierney (Plaintiff) R. Cheney SC with H. Pintos-Lopez (Defendant)

Solicitors: Blaxland Mawson and Rose (Plaintiff) Holman Webb Lawyers (Defendants) File Number(s): 2018/249544

EX TEMPORE Judgment 1. In this matter the plaintiff sues the defendants in negligence for damage to their property by a fire which allegedly escaped from the defendants' property on 5 September of 2012. The defendants had in August engaged the NSW Rural Fire Service ("RFS") to carry out a prescribed or controlled burn to eliminate noxious weeds affecting their property. It may be relevant to say that the defendants had not long acquired the property in the Monaro region of New South Wales and they were at all material times resident in the State of Queensland. In any event because of bad weather, the controlled burn was carried out on two separate days in August 2012. There was some degree of inspection and checking thereafter to confirm that the fire had been extinguished. Those checks or inspections were also undertaken by the RFS. 2. The nature of the problem that has agitated me yesterday and today is that in accordance with the Court's practice, Mr Parker of Senior Counsel, who appears with Mr Tierney for the plaintiff, provided a written opening on or about 5 March. That written opening made clear that which Mr Cheney of Senior Counsel, who appears with Mr Pintos-Lopez for the defendants, said was not previously clear from the pleadings, that the plaintiff was seeking to sheet home specific acts or omissions of the RFS in its management of the task to the defendants. 3. In support of his application, which is for a direction or a ruling that the plaintiff should withdraw the submission or I should require it to be amended, he has read the affidavit of his instructing solicitor Ms Sarah Wheeler affirmed on 16 March 2020. Ms Wheeler is an experienced solicitor in commercial litigation and she says that on her reading of the pleading, which in its current form is an amended statement of claim filed on 23 May 2019, she did not apprehend that the specific acts and omissions relied upon by the plaintiff as constituting negligence were those of the RFS rather than of the defendants personally, I interpolate, notwithstanding the express pleading relying upon what was said to be a non-delegable duty owed by the defendants. 4. Mr Cheney, as is appropriate for Senior Counsel, told me from the Bar table that when he read the pleading he too was impressed by the consideration that it seemed to him not to rely upon any act or omission of the RFS as constituting negligence. 5. Ms Wheeler's affidavit is very comprehensive and annexes not only correspondence passing between the parties but also the impugned written opening and some of the evidence from the Court Book which I am told runs to 1,000 or more pages. 6. The defendants' position is that this is a new case not previously telegraphed and that if the plaintiff is allowed to run it they will be prejudiced in their defence of the proceedings. The matters that Ms Wheeler sets out in relation to prejudice include the absence of interviewing Mr Stephen Knowles, who was the RFS captain responsible for the controlled burn. Until the time she read the written opening Ms Wheeler did not regard that matter as being necessary. It should also be recorded, however, that Mr Knowles made a statement to police for submission to the Coroner and has provided an affidavit in the plaintiff's case, which has been filed and served. 7. The plaintiff's case at a factual level, as succinctly pleaded at paragraphs 5, 6, 7 and 8 of the amended statement of claim, to some extent supplemented by the particulars of negligence at paragraph 14, is that as a result of the controlled burn the fire got inside, or into the root system, of a particular tree near the common boundary of the properties and on a day of extreme fire danger involving, on the evidence that I expect will be led at the trial, winds of up to or over 100 kilometres an hour, the fire, or the smouldering, inside, or in the root system of, the tree flared up. There was a conflagration involving the tree including a branch of the tree which broke off and was blown onto the plaintiff's property from where the fire spread, extensively damaging the homestead. 8. Returning to my treatment of Ms Wheeler's evidence, Ms Wheeler also says that had she appreciated that the plaintiff was relying upon the negligence of the RFS they would have interviewed other members of the RFS to ascertain whether they inspected the tree. I should say that there is also evidence in the plaintiff's case from another officer of the RFS who, although not involved in the controlled burn, was the officer in charge of fighting the fire on 5 September. That is a Mr Barry Aitchison and his affidavits were tendered as exhibit A on the application. Ms Wheeler would have also issued a subpoena to the RFS and other comparable fire management agencies seeking all policies, procedures, training materials and the like relating to prescribed burns. She would have obtained expert evidence as to the reasonable practice to be followed by fire management agencies and would have instructed the defendant's current expert or another expert to address each particular of negligence now alleged by the plaintiff. 9. It is important to bear in mind that in answer to the plaintiff's claim the defendants have, in the alternative, invoked the provisions of Part 4 of the Civil Liability Act 2002 (NSW) asserting that the RFS is a concurrent wrongdoer. So far as factual matters are concerned, it does seem that Mr Wood, the defendants' expert has already expressed some opinions which are extracted at paragraph 44 of the written opening relevant to this question. Mr Wood speaks about smouldering materials being protected by soil and ash. These materials may flare up after a period of time. He has already also suggested that if there was any concern, perhaps a so far unproven assumption, about the tree posing a risk it should have been felled and a bulldozer and tanker used to break up the surrounding ground to ensure smouldering material was fully extinguished. 10. The plaintiff's case as put by Mr Parker is that, identifying the tree as the source of the conflagration, the failure to manage that tree is the relevant negligence on the part of the defendants. He also relies on the consideration that the allegation that the defendants are responsible for acts and omissions of the RFS was always articulated in the amended statement of claim. And that the written opening does no more than advance a case which he submits he was entitled to advance on the pleadings as they actually stood. Mr Parker makes the point that a written opening in advance of the trial will always give rise to a question about whether the evidence actually led at the trial will make the case good. I pass over that without comment. He also submits that the evidence supports this case; that evidence has been exchanged some time ago; and that there is no true prejudice suffered by the defendants. 11. When the matter was before me yesterday, I said that my impression from reading the amended statement of claim is that it was ambiguous in relation to the question of whether the particulars of negligence were based on acts or omissions of the RFS or only on acts and omissions of the defendants after the RFS had apparently ceased its operations. I invited Mr Parker to produce a proposed further amended statement of claim, and Mr Cheney to draft a defence to it in order that I might better understand what the case of the plaintiff was and how it might impact upon the case of the defendants. That has been done and most of the debate before me today has centred around the further particulars of negligence of the RFS as a subheading in paragraph 14. 12. Leaving aside some general matters which I discussed with counsel, those particulars do make it clear that the plaintiff's case is: that the RFS failed to undertake appropriate hazard abatement work in relation to the tree by dousing its hollow with water and/or knocking it down; failing to adequately monitor the site of the fire to ensure the fire did not re-ignite particularly in high risk weather days; failing to advise the defendants that the tree should be knocked over and the under surface inspected. I emphasise those matters because they seem to be central to the facts as alleged in the paragraphs to which I have already referred. 13. To that amended pleading, bearing in mind one does not plead to particulars, as I read it there is only one further amendment proposed by Mr Cheney, subject to one thing I will say in a moment, and that is paragraph 12A. This denies that the RFS was negligent and further denies that the defendants are vicariously liable for the acts and omissions of the RFS and its personnel, by implication pursuant to s 5Q of the Civil Liability Act or otherwise. The other matter of course is the matter of s 43A Civil Liability Act, which Mr Cheney may wish to raise, and it is a matter for his judgment, if I am not persuaded to allow his application. 14. The matter is set down for hearing next week; it has been allocated to Schmidt AJ with an estimate of seven days. The Court has that time available for the parties to fight the case. The only evidence outstanding is the joint report of the quantum experts and that is highly unlikely to be the cause of significant disputation, procedurally speaking. 15. Mr Parker has made quite clear to me that it is not intended that there should be any further evidence propounded in the plaintiff's case over and above the evidence actually already reproduced in the Court Book. 16. When I discussed the matter with counsel yesterday, I also indicated that subject to seeing the pleadings I would permit the defendants to bring forward any further evidence that they thought necessary in the case, and I will return to that if necessary in a moment. 17. Mr Cheney relies substantially on the principles established by the High Court of Australia in Aon Risk Services Australia Limited Underwriting v The Australian National University (2009) 239 CLR 175, [2009] HCA 27 and in particular at paragraphs [111]-[113]: An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 1. What Mr Cheney emphasises is that there is no entitlement on a party to litigation to raise an arguable claim by way of amendment especially at the late stage of the hearing subject to the payment of costs wasted by the amendment. Mr Cheney emphasises that the High Court stated that the fact of substantial delay, wasted costs, and concerns of case management will assume importance on any application for leave to amend. It is important to bear in mind that an adjournment or delay in the determination of proceedings affects not only the parties to the litigation but other litigants waiting their turn to have their cases heard. Their Honours said that limits must be placed upon the ability of parties to effect changes, particularly if the litigation is advanced. Their Honours also emphasised the importance of the Court's role in case management rather than, as was the case in former times, leaving it to the parties themselves to prepare a case, more or less at their own pace and having regard to their own choosing. Mr Cheney also emphasised that there should be an explanation for delay, which is satisfactory, given before any exercise of discretion favourable to the plaintiff should be made. 2. So far as that is concerned, as I remarked during argument, notwithstanding the absence of an affidavit from the plaintiff's solicitor, bearing in mind this application has been brought on rather quickly, that the explanation was obvious, to me at least, and that is to say that, although I was of the view that there was ambiguity in the face of the statement of claim, until the issue was raised by the defendants' legal team, the plaintiff's legal team were content that their case was both within the pleadings as they stood and was supported by the evidence already marshalled. 3. Although I am of the view that the statement of claim needed to state more clearly that the relevant acts and omissions constituting negligence extended to acts and omissions of the RFS, I am satisfied that the case the plaintiff seeks to run is based upon the pleadings, at least so far as the material facts are concerned, already propound and, and so far as I have had the opportunity to review it, from the extract provided by Ms Wheeler and from the statement of Mr Aitchison, and on the evidence already marshalled. It seems to me that it is inappropriate to refuse to allow the plaintiff to advance the case sought to be advanced in the written submissions. 4. As I remarked, and I will repeat, Aon, whilst it establishes important, and indeed fundamental principles, which will guide adjectival law in the administration of civil justice in the current age, does not constitute a stick to beat parties with. Rather the purpose of the important statements of principle made by the Justices is to facilitate the administration of justice in civil litigation. 5. On the whole I am of the view that I should allow the further amendments proposed to the statement of claim to enable the real issues in dispute to be identified and to facilitate their trial. I will make an order in that regard subject to certain matters I will refer to in a moment. 6. So far as the defendants' position is concerned, I mean no disrespect when I say that some of the matters referred to were of a very general nature. It is apparent to me from what Mr Cheney said and from the form of the defendants' current pleading that they do have in their possession a policy document or the like in relation to controlled burns carried out by the RFS. If the evidence remains the same, I must say I am having difficulty understanding what practical steps need to be taken to meet this case. But subject to the decision of the trial judge as always, it would seem to me that if practical steps can be identified, then subject to hearing from both parties about it I would be prepared to make directions that those things can be undertaken. Moreover, if it were thought appropriate to include a pleading which raises for consideration the provisions of s 43A of the Civil Liability Act I would permit that too, without, with respect, permitting the plaintiff to obtain further evidence at this late stage in relation to that matter in advance of the commencement of the hearing on Monday. 7. I will return to the further particulars of negligence. It seems to me that sub-paragraphs (aa), (bb), (dd) and (gg) are stated too broadly. I accept what Mr Parker says, that in framing those particulars regard was had to what the defendants said in paragraph 11 of their statement of defence in relation to the delegation of the duty to the RFS and at paragraph 28, perhaps it's unnumbered paragraph 29, in relation to the contingent case that the RFS is a concurrent wrongdoer. 8. Even so, having regard to the purpose of pleadings and given the late stage in the proceedings, even if the further pleading has been brought forward at my direction rather than of the plaintiff's choosing, those paragraphs are too indefinite to have any real content. As I said, they simply beg for a request for further and better particulars. I would only permit those paragraphs to be promulgated in the further amended statement of claim if they were given content. By way of example only, (aa)is in these terms: Failed to take adequate and appropriate steps to extinguish the fire. It seems to me that for that particular to survive, it would be necessary for those adequate and appropriate steps to be identified and by reference to the evidence actually to be led in the case to demonstrate that those matters are based upon the material that has been exchanged between the parties. The same is true of (bb) and (dd). In relation to (gg), it is really necessary for the plaintiff - I accept this entirely in the same form as paragraph 29 of the defence to the amended statement of claim - to say what additional steps the plaintiff says, according to the evidence in the case, the RFS should have directed the defendants to take after the RFS completed its operations. 1. My orders are: 1. I give the plaintiff leave to file and serve a further amended statement of claim, in accordance with my reasons, by close of business today. 2. I give the defendant leave to file and serve any defence to that further amended statement of claim, in accordance with my reasons, by midday tomorrow 18 March 2020. 3. The costs of 16 March and 17 March 2020 are the parties' costs in the cause.