Barnes v Surf Life Saving Illawarra Incorporated & Ors

District Court of NSW|2021-03-19

Background

Before the Court are three applications: 1. an application by the defendants to set aside a costs order (made by consent) visited against them by the Court on 17 August 2020. The costs order was that the defendants pay the costs of their motion (28 July 2020) and costs thrown away by the adjournment of a hearing of a trial listed for the August 2020 Wollongong sittings; (the 'Costs variation Application'); 2. an application by the plaintiff that the defendants provide answers to a request for particulars (the 'Particulars Application'); and 3. an application by the defendants to further amend their Defences to rely upon s 5M of the Civil Liability Act 2002 (NSW) (the Act), concerning liability for 'recreational activities'; (the 'Further Amendment Application')
The Costs Variation Application was made in a notice of motion for the defendants being filed on 22 February 2021. The Particulars Application was brought under a notice of motion filed by the plaintiff on 25 February 2021. The Further Amendment Application is brought by a proposed amendment to the defendant's notice of motion dated 22 February 2021, which I allowed on 18 March 2021.
The proceeding is in the nature of a claim for damages for personal injury. The plaintiff is a volunteer surf life saver who alleges that he was injured at a surf carnival at Warilla Beach on 7 November 2015. Specifically, he alleges that he suffered serious physical injuries to his left hand and also consequential psychological injury, when he was on an inflatable rescue boat, as a result of the rope and chain of the anchor sliding through his left hand. He alleges that he was on the inflatable boat following a direction by organisers of the Surf Carnival to pick up and move a swimming can. Three defendants have been joined, in various asserted capacities. They all put on common defences. Liability (and damages) is disputed. For the purposes of the current applications, the defendants take a united position, so it is unnecessary to distinguish their respective positions to any degree.

The Costs Variation Application

The defendants, as applicants to the Costs Variation Application, rely upon the affidavit of Nicholas Bell sworn 25 February 2021, and 5 March 2021.
The plaintiff, as respondent to the Costs Variation Application, rely upon the affidavits of Mark Johnston, affirmed 5 March 2021.

Context

The proceeding commenced on 5 November 2018. On 26 November 2019, the plaintiff served an expert liability report by Mr Williams. That report is not in evidence on the application. The defendants served Defences on 20 March 2020.
At a status conference on 28 or 29 April 2020 a timetable was set, by consent. The matter was fixed for hearing for the August 2020 sittings for Wollongong (set to commence on 17 August 2020), but before that, the defendants were directed to serve their expert liability evidence by 26 June 2020. On 16 June 2020, the respondent consented to an extension of time for the applicants to serve their expert liability evidence, so that such report was to be served by 31 July 2020, a little over two weeks before the Wollongong August 2020 sittings were to commence. On that date, the applicants served an expert liability report of Mr Thompson.

The defendants' application to amend their Defences

But before the service of Mr Thompson's report, on 20 July 2020, the defendants foreshadowed an application for leave to amend their defences. This was to include provisions in Part 9 of the Act (and especially s 60), and also a common law defence of voluntary assumption of risk. On 28 July 2020 a motion, by which leave to amend, was filed. An affidavit in support of that motion was filed on 31 July 2020. Both documents were filed electronically.
In early August 2020, the parties' solicitors exchanged correspondence about arranging an expert liability conclave. By 11 August 2020, an arrangement had been reached whereby the conclave would occur, by telephone, at 5pm on 13 August 2020.
However, on 12 August 2020, being less than a week out from the commencement of the August sittings, Mr Johnston says he came across on the Court's online website, a notice of motion of the defendants' seeking leave to amend. He deposed to not having been served with the motion or a supporting affidavit, a circumstance which Mr Bell later confirmed. It is common ground that the application to amend had not been served until 12 August 2020.
On the morning 13 August 2020 at 11:33am, the respondent's solicitors sent an email attaching a letter to the applicant's solicitors, referring to the recently filed motion to amend. The letter referred to the service of the applicants' application to amend and stipulated that the proposed application was in the process of being reviewed and expressed the view that it was "premature" for the experts to participate in a conclave and, accordingly, Mr Johnston advised Mr Williams that the conclave was called (off). A short time later, Mr Bell sent an email to Mr Johnston asserting that the application to amend had "no bearing whatsoever" on anything that the liability experts had to discuss in the conclave, that the applicants' lawyers were going to instruct Mr Thompson to continue to engage in the conclave and that if the conclave was obstructed, the applicants would seek costs from the respondent. There was further disputation between the lawyers that day, but the upshot was that there was no conclave.
On 14 August 2020, the respondent's solicitor, Mr Johnston, foreshadowed the course that if the defendants were granted leave to amend, the plaintiff would need to seek adjournment and, as part of that, would seek its costs thrown away.
On 17 August 2020, the matter was mentioned before Judge Dicker, who was managing the civil list for the Wollongong sittings. When the matter was called, Mr Campbell SC, who appeared for the respondent, indicated that the respondent was not in position to meet the volunteer defences raised, as it would need to make investigations and inquiries about the factual matters raised by the volunteer defence. Senior Counsel observed that the lateness in the application to raise the volunteer defence was due to oversight which was admitted on behalf of the applicants. A transcript suggests that Judge Dicker provided a tentative indication accepting the proposition that if the application to amend to add the volunteer defence was granted there was a likely need for a vacation of the hearing. Judge Dicker inquired of Mr Gambi, representing the applicants, as to the issue of costs of the vacation. Mr Gambi submitted that the amendments should be allowed and the case should proceed. It was plain that the applicants wished to proceed.
Mr Gambi made no mention of the circumstance that a conclave of experts had been arranged the previous week, but cancelled and accordingly did not suggest that this might have been an independent reason why the case could not proceed to run to hearing in the August 2020 sitting.
The transcript reveals that the matter was stood in the list and when the matter returned to his Honour in the list, consent orders were made. Among other things, the parties agreed that the respondent would not oppose the applicants obtaining leave to amend their defences, subject to the applicants paying costs of the motion and also the costs thrown away by an adjournment (order 8). The consent orders of 17 August 2020 also provided for the plaintiff to have leave to serve his supplementary expert liability report, but this was to occur after the defendant provided further and better particulars of the amended defences (orders 3-5). The consent orders also provided for an expert conclave and a joint expert report which was to occur after service of the plaintiff's supplementary report (orders 5-6). The consent order also provided that the matter was fixed for the December 2020 sittings at Wollongong (order 7).

The plaintiff's supplementary expert liability report

The basis for the applicants' Costs Variation Application is the non-disclosure of the plaintiff's expert liability report, by Mr Williams, in reply before 17 August 2020. The applicants argue that the costs order made, by consent, was based upon a misapprehension, caused by the respondent's concealing the existence of Mr Williams' report which would have provided an independent cause for why the hearing had to be vacated. This was, it was said, because Mr Williams' report raised 'new issues'. That characterisation of Mr Williams' report is disputed.
To understand that contention, it is necessary to go back briefly to the chronology. As indicated, after the status conference in April 2020, solicitors for the parties negotiated an alteration of the timetable, beginning with an extended time for service of the defendants' expert liability report, on the basis that the plaintiff retained the opportunity of serving an expert report in reply. Eventually, the defendants served an expert liability report, from Mr Thompson, on 31 July 2020. This was after having qualified Mr Thompson on 23 July 2020.
Mr Williams prepared a supplementary report, which was dated 13 August 2020, however the plaintiff withheld service of it. Mr Johnston, the respondent's solicitor, deposed that after receiving Mr Williams' report he sent it to the respondent's Counsel and awaited advice from them as to whether or not it should be served. Mr Johnston accepts that the report was not served between 13 August 2020 and 17 August 2020. Although he did not say so in so many words, I infer that his explanation for this is that he had not received confirmatory advice from the respondent's counsel to serve the Williams' report in that period.

The December 2020 sittings - explaining the omission to serve the Williams report in August 2020

For reasons which are not apparent in the evidence before the Court on these applications, there appeared to be little progress in the matter before it came before the Court again in the December 2020 sittings in Wollongong.
On 8 December 2020, the second day of the sittings in Wollongong, the applicants' solicitor received service of Mr Williams' report dated 13 August 2020. Mr Bell, the applicants' solicitor, says that this was the first time he knew of Mr Williams report and he deposed that that report had not been the subject of discussion during the expert conclave that had taken place on 4 December 2020.
In his affidavit Mr Bell deposes that when the matter came before Judge Weinstein, on 8 December 2020, the timing for service of Mr Williams' report was raised and that 'as a consequence' the hearing listed for the December 2020 sittings was vacated. In one of the orders made by his Honour the plaintiff's solicitors were required to explain the belated service of Mr Williams' expert liability report in reply by 11 December 2020.
An explanation was supplied by Mr Johnston on 9 December 2020. Mr Bell asserts that Mr Johnston conceded that the plaintiff had intended to rely upon Mr Williams report at the hearing in August 2020, and further, that the Williams report should have been served before the expert liability conclave, which had been cancelled, and at any rate, before the trial scheduled to commence on 17 August 2020.
On the basis of the explanation, the applicants' solicitor invited the respondent's solicitor to vacate the costs order made in August 2020. That invitation was rejected. Mr Bell then caused a subpoena to be produced in early February 2021. Documents were produced. Mr Bell says that they show that Mr Williams had been instructed by the respondent's solicitors to draft a supplementary report as early as 5 August 2020 and that Mr Johnston had received Mr Williams' supplementary report on 12 August 2020.
Mr Bell argues that Court rules stipulated that Mr Williams' supplementary report should have been served on or after 13 August 2020, when it was first obtained. He says that Mr Williams' report raised fresh and substantive issues which the defendants were entitled to address, in reply evidence. Had it been served, when it should have been, the process of preparing the experts' conclave and eventual production of a joint expert report would have followed. The matter was simply not ready to proceed, irrespective of any time that the respondent required to consider the applicants' proposed amendments to their defence. That process would have necessitated the hearing for August 2020 being adjourned but importantly, the defendants would not have consented to an order that they be solely responsible for the plaintiff's costs of an adjournment.
In response, in his affidavit, Mr Johnston deposes that Mr Williams' supplementary report was itemised as one of the documents to be included within the Court Book. Mr Johnston accepted that it should have been served and deposed that the plaintiff had every intention of serving it, as indicated by the contents of the index in the Court Book. He contends that there was no attempt to hide Mr Williams' supplementary report and cites communications that have passed in response to the issue of a subpoena.

Characterising Mr Williams' supplementary report

Mr Williams' report of 13 August 2020 was in evidence on the application. His earlier report (apparently 26 November 2019) was not. The report of Mr Thompson, the applicants' expert, dated 30 July 2020, was also in evidence. Mr Thompson's report plainly responded to Mr Williams' first report.
Mr Williams styles himself as a Beach/Pool and Aquatic Event Consultant. He has qualifications in occupational health and safety. He identified himself as having 25 years as an 'inflatable rescue boat driver, crewman and trainer', having had 12 years as a jet rescue bike driver and 20 years as a patrolling surf life member. In his report, Mr Thompson has qualifications, generally, in public safety. Specifically, he has been involved in emergency rescues as a casual contractor, has been a surf lifesaving coordinator, a coastal safety services manager and national lifesaving co-ordinator. He is currently a Committee Chair of the International Life Saving Federation.
Mr Thompson's report incorporated the content of his letter of instruction. Insofar as they appear on the face of his report, matters (a) - (k), which he opined upon, related to specific concerns about moving buoys and what the plaintiff might have done to limit the risk of injury in so moving them. Pages 7-14 of Mr Thompson's report concerns those topics. Matter (l) invited Mr Thompson to express comment on the allegations of negligence. Pages 14-15 of Mr Thompson's report address those allegations.
Matter (m) from the letter of instruction is the most pertinent aspect for the present application. Mr Thompson was asked to make "Any comments you wish to make in relation to the expert report of Jeff Williams". This Mr Thompson proceeded to do (in pp 15-16) in just over a single page: he referred to what he believed were "inaccuracies". Separately, he pointed out "incongruent conclusions" drawn by Mr Williams in bullet point form. Finally, he sought to "highlight omissions or oversights" observed within Mr Williams' report.
Mr Williams' report of 13 August 2020 also comprised certain parts. It may fairly be said that all of it is responsive to Mr Thompson's report, in a general sense, but the question relevantly is to what extent his report was truly evidence in reply; that is to say, in response to what Mr Thompson had to say about Mr Williams' primary report, on the premise that a strict view is taken as to what constitutes evidence 'in reply'. On this issue, it is clear that Mr Williams went beyond, in effect, rebutting criticisms which Mr Thompson made of Mr Williams' first report. He went into significant detail in response to matters raised by Mr Thompson which the latter had raised.

Power to set aside & relevant principles

The applicant invokes s 98 of the Civil Procedure Act 2005 (NSW), and also rr 36.15 and/or 36.16(3) of the Uniform Civil Procedure Rules ('UCPR').
One basis to set aside an order in r 36.15 is where an order is against 'good faith'. That phrase is not susceptible of exhaustive definition. Nevertheless, it relates to the circumstance in which the order was given; rather than the circumstances of subsequent opposition to having the order set aside: Kendell v Carnegie (2006) 68 NSWLR 193 at [52]-[53]. Bryson JA, who delivered the leading judgment, approved (at [44]-[49]) the interpretation of Kirby P in Coles v Burke (1987) 10 NSWLR 429 at 437 regarding the need for the party procuring the order to have engaged in misconduct or dishonourable conduct. His Honour said (at [60]) the expression requires "impeachment of intention or behaviour of the person whose good faith is impugned". Kendell was a case where a judgment resulted from a negotiated compromise but unknowingly was influenced by a unilateral mistake. The application to have it set aside was unsuccessful.
The respondent submits that rr 36.15 and 36.16(3) do not apply. The interpretation of the predecessor rule to r 36.15 (r 31.12A of the District Court Rules) was such that absent misconduct, a trial judge could not vary an earlier costs order.
It is sufficient, in my view, to say that on the question of power, a costs order in connection with an interlocutory proceeding is amenable to variation under r 36.16(3) of the UCPR. The costs order was an ancillary order associated with the Court's exercise of its power to adjourn the proceeding a power which, must, of course, be interlocutory in nature. It was not an order determining "a claim for relief" to engage the exception in r 36.16(3)(a). Where it exists, the power of the Court to set aside the costs order in this case, that power has to be exercised with reference to the overriding purposes of case management identified in s 56 of the Civil Procedure Act 2005 (NSW) (ss 57(2) & 58)). To my mind, a Court would not lightly countenance a situation where a costs order consented to as a term of a consent adjournment should be varied unless there are substantial reasons. As the High Court said in Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 3 (at [59]), after referring to s 56 and other provisions in the Act, and in the context of a discovery dispute when documents were inadvertently disclosed by a party to another and attempted to have them returned: "It could hardly be suggested that the pursuit of satellite interlocutory proceedings of the kind here in question in any way fulfils the overriding purpose of the CPA. To the contrary, it is the very kind of conduct which should be avoided if those purposes are to be achieved. It involved a relatively minor issue relating to discovery, the resolution of which appears to have offered little advantage to the Armstrong parties. Its determination went no way towards the resolution of the real issues in dispute between the parties. Instead, it has distracted them from taking steps to a final hearing, encouraged the outlay of considerable expense and squandered the resources of the Court."
There must be innumerable instances where costs orders are made along the way in the case management proceeding which a party, subject to such orders, wishes to have revisited on the basis of information it did not have to hand at the time that the costs order was made. It does not assist with the objectives of the quick and cheap resolution of the real issues in the proceeding for applications of this kind to be brought for insubstantial reasons. There is a public interest in finality of decisions, even those which are interlocutory or ancillary to interlocutory decisions, and therefore susceptible to discharge or variation. That is one part, albeit not the only part of, what passes for the interests of justice.
Nevertheless, the determinative question is whether the applicants have made out a case under r 36.16 that it is in the interests of justice for the power to be exercised, or whether an absence of good faith is made out under r 36.15 of the UCPR.
As to the former basis for the Court's intervention, some, perhaps small, analogy may be drawn in the context of repeat interlocutory applications, where a party dissatisfied with the outcome of the first application, who learns of a matter not apparent at the time the first application was heard, tries again, and brings a second application. A general principle, going back to at least the decision of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, is that parties should be discouraged from bringing, for a second time, the same interlocutory relief in circumstances where nothing has changed and no new evidence emerged which was not reasonably available at the time of the first application. In that context, in Liu v The Age Co Ltd [2016] NSWCA 115, McColl JA said (at [199]) that: "in determining what the interests of justice require, the court will have regard, among other matters, to the nature of the first interlocutory application, the nature of the change in position and whether any matter relied upon to change the basis upon which the challenged earlier order was made, was open to be advanced at the earlier hearing."
In my view, subject to other discretionary matters, a legitimate basis for a party seeking to vacate a costs order made against them (under rr 36.15 or 36.16(3)) is where: 1. the costs order is made against Party A, in favour of Party B, on the basis of information not known by Party A (and therefore to the Court); 2. Party B knows of that information; 3. that information is relevant and material to the determination as to costs; 4. Party A's ignorance of the information is contributed to by the conduct of Party B.
The respondent to the application submits that the applicants' legal representatives simply acted on the basis of a mistaken belief that the late notice of their volunteers' defence was the sole independent cause of the vacation of the listing. I reject that submission. It overlooks the respondent's solicitor's role in contributing to that 'mistaken belief'. I referred earlier to the decision of Kendell. In my opinion, Kendell is distinguishable: this is not a case of unilateral mistake leading to a consent judgment. The mistake made by a party was contributed to by the conduct of the other party. I accept, further, that the circumstances leading to setting aside the order are not trivial, but rather, 'sufficient cause' has been shown.
I am satisfied that all of these steps have been proven by the applicants. To the extent necessary, I would find that the plaintiff's conduct in trying to hold a costs order procured in the circumstances is against 'good faith' and therefore engages r 36.15(1).
But the question now arises as to what this Court should do. Effectively, the respondents say that even if all steps were proven, the Court should not intervene since the August 2020 proceeding had to go over anyway (because of the applicants' motion) so even if the costs question was contested before Judge Dicker, the outcome would not have been different. That submission requires me to evaluate what would have been the position had the Williams' report been disclosed to the applicants before 17 August 2020.
But before I consider that counterfactual, I need to explain why I have found that step (3), from paragraph 38 above, is satisfied. That explanation features consideration of the ordinary expectations of practitioners for expert conclaves, the reasonableness of the cancellation of the conclave in the week before the scheduled hearing and the likely impact, upon the applicants' position, had they known of Mr Williams' report.

The materiality of the Williams' supplementary report to the costs determination

In the ordinary management of civil proceedings in the Court, experts retained by parties are expected to give evidence concurrently and, for that purpose, it is expected that they have the opposing party's report at least 21 days before the commencement of the hearing (r 31.28(1)(c) of the UCPR), with the intention that they can confer and produce a joint report before they give evidence at the hearing. The point is to flesh out areas of agreement and disagreement and narrow the issues for determination by the Court which may be influenced by competing expert opinion.
Normally, the abovementioned rule applies, however, 'exceptional circumstances' may arise. The Court rules are a servant, not a master and all depends upon the circumstances. Here, because of an extension of time agreed between the parties, the time for the defendant to serve Mr Thompson's report was quite late, in terms of proximity to the hearing. This was about 2 weeks before the scheduled hearing and the predicate was an opportunity for Mr Williams to respond. There was plainly not much time for the plaintiff to acquire a supplementary expert report in response from Mr Williams prior to the hearing and, thereafter to: (a) conduct a conclave and (b) have the experts prepare a joint expert report prior to the hearing.
The point remains, however, that in order for trials to be efficiently conducted, parties and their legal representatives need to know what expert evidence is to be relied upon by the parties. So too, does the Court. This is consistent with the 'all cards on the table' approach to modern civil litigation. In this case, having only had a brief perusal of the two expert reports of Mr Thompson, and Mr Williams, the Court would have been much assisted in receiving a joint expert report in which those respective experts had the opportunity to confer about each other's reports. But if a party, and its legal representative, does not know of the expert evidence to be relied upon by the other side, it cannot finalise arrangements for a conclave and thereby generate a joint expert report. As a corollary, it cannot assist the Court to efficiently run the trial.
I do not consider that the applicants' service of the proposed application to amend warranted the respondent's decision to cancel the expert conclave. To reiterate, the application to amend the defence partly concerned the insertion of a defence under s 60 of the Act. That had nothing to do with the subject matter of the experts' reports, including Mr Williams' report, which was focussed upon the alleged negligent conduct of the applicants. The application to amend also added a common law defence of voluntary assumption of risk. But that was not dissimilar in substance to the existing defence (pleaded in paragraphs 43 and 45) of assumption of risk relying upon the provisions of Part 1A, Division 4 of the Act. The particulars to the common law defence all concerned matters which were, it was said, known to the respondent. So again, that part of the proposed amendments to the defences had nothing to do with the subject matter of the experts' reports. I agree with Mr Bell's view to the above effect, which he conveyed to Mr Johnston on 13 August 2020. Mr Johnston did not identify any other justification for cancelling the conclave that day.
In my opinion, when the matter was mentioned before Judge Dicker on 17 August 2020, it was not just the case that the matter was not ready because the respondent wanted time to investigate the factual position in the light of the applicants' foreshadowed amendments to their defences. It might have been argued on the applicants' behalf that the matter was also not ready because the experts had not, by that time, conferred to discuss their differences of view arising from the (primary) reports that they had generated. It could also have been argued on the applicants' behalf that the reason that the conclave did not proceed was the unreasonable conduct of the respondent. The availability of these arguments to the applicants in resisting a costs application was not, in any way, affected by their ignorance of Mr Williams' supplementary report. The cancellation of the conclave the week afforded an independent ground for delaying the hearing and the applicants could reasonably argue that the respondent was to blame.
But when the costs consequences associated with a prospective vacation of the hearing was discussed before Judge Dicker on 17 August 2020, Mr Gambi, on the applicants' behalf, did not raise the matter of the cancellation of the expert conclave the week before. This omission is a matter relevant to the exercise of the Court's discretion. But that is not fatal to the applicants' application where, for reasons to be shown, it was likely that with the benefit of awareness of Mr Williams' supplementary report, the omission would likely have been rectified.

The counterfactual

I find that the likelihood is that had they known of the content of Mr Williams' supplementary report, the applicants would not have consented to an order that they bear the full costs of the adjournment of the hearing even if one cause of it was the late notice of the amendment applications. I also find that the respondent would have persevered with their application that the applicants bear the costs of the adjournment because of the late notice of the amendment applications. That means that there was a contest about the liability for costs of the adjournment which would have required Judge Dicker's determination.
The circumstance of the applicants' late amendment applications was one matter that was thrown on the scales. The applicants say that they would have argued that they had to deal with a report from Mr Williams received the previous Thursday, 13 August 2020 which, according to them, raised 'new issues' and that this was another matter that had to be thrown on the scales.
I am not convinced that Mr Williams' supplementary report truly did raise 'new issues', even if it did more than simply rebut Mr Thompson's criticisms of his first report. The more relevant question for Judge Dicker, for the purpose of deciding the question of costs, was whether, because of the late service of Mr Williams report, Mr Thompson would have had sufficient time to consider Mr Williams report before both of them gave evidence concurrently. That question was, in my view, very likely to generate discussion as to whether a joint expert report had been prepared which, also in turn, would have likely led to discussion about whether the experts had conferred in conclave and if not, why not. I consider it very likely that the applicants' legal representatives, in opposition to the respondent's application on costs, would have taken the opportunity to argue that the omission to conduct a conclave, as at 17 August 2020, was the result of a unilateral and, as I have found it to be, unreasonable decision by the respondent to cancel it.
Since the hearing was to be vacated anyway, I do not consider Judge Dicker would have been too astute to determine whether it was possible, as sometimes occurs, that the hearing could hypothetically have proceeded, say, with the lay witnesses giving evidence first, whilst Mr Thompson and Mr Williams conferred at some point from and after 17 August 2020. Apart from anything else, his Honour had a list of other matters to case-manage in the sittings. Further, by the unilateral conduct of the respondent, the opportunity to conduct the conclave the previous week had been forfeited.
More probably, Judge Dicker would have been presented with reasonable arguments that the lack of readiness of the matter for hearing was contributed to by the conduct of parties on both sides of the record. That being so, in my opinion, it is probable that he would have made a costs order of the adjournment which reflected a position that both sides of the record should jointly be responsible for their own costs of the hearing being adjourned, and not simply one side.

Other discretionary matters

The impugned costs order was made on 17 August 2020. The application to vary the order was brought in February 2021. Usually, for applications of this kind, it is appropriate that applications to vary orders are brought promptly.
But the circumstance underpinning the application, though partly apparent from about the middle of December 2020 (shortly before the Court vacation) only became fully apparent in February 2021. This was after the applicants' solicitors served a subpoena to produce on the respondent's solicitor, in order to obtain documentary evidence to indicate certain matters relevant to the application. The delay was not excessive or unreasonable.

Disposition

The costs order, now impugned, does not reflect the appropriate result. In my view, the appropriate costs order should reflect the circumstance that the hearing needed to be vacated because of a lack of readiness attributable to all parties' conduct. This requires a variation of the costs order to the extent that the impugned order casts full responsibility only upon the applicants for the vacation of the hearing.
That leaves the question of whether to vary the costs order concerning the applicants' notice of motion. That matter was unaffected by the non-disclosure of Mr Williams' supplementary report. An applicant for an amendment conventionally pays the costs associated with such amendments. There is no reason to disturb that part of the consent order for costs which reflects that position and Mr Gambi did not contend otherwise.
I order that order 8 made by Judge Dicker on 17 August 2020 be varied so that it is in terms that the defendants are to pay the plaintiff's costs of the notice of motion filed 28 July 2020, but otherwise, the parties are to bear their own costs occasioned by the vacation of the hearing scheduled for the August 2020 Wollongong sittings.

The Particulars Application

The plaintiff, as applicant on the Particulars Application, relies on the affidavits of Mr Johnston affirmed 25 February 2021 (filed on 4 March 2021) and 14 August 2020. The defendants, as respondents on this application, relied on the affidavit of Mr Joshua Sukkar, affirmed (and filed) on 2 March 2021.
On 8 December 2020, Judge Weinstein vacated the hearing of the matter and set the matter down for hearing in the June 2021 sittings in Wollongong. Relevantly, his Honour granted leave to the defendants to file and serve their amended defences (by 11 December 2020) and directed the plaintiff to request particulars on or before 18 December 2020, with responses to be supplied by 8 January 2021.
On 10 December 2020, Further Amended Defences were filed. The only amendment was the addition of paragraph 44A. This raised a defence under s 5L of the Act, concerning liability for harm suffered from obvious risks of dangerous recreational activities.
Paragraph 44A is in the following terms: "In further answer to the whole of the amended statement of claim, (each) defendant says that to the extent that the injuries sustained by the plaintiff (which are not admitted) were caused as a consequence of the matters pleaded in the amended statement of claim, then such injuries were caused by the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff, and (each) defendant was not negligent by reason of s 5L of the CLA".
No particulars to this plea were incorporated within the Amended Defences. It is also noted that no particulars were supplied in relation to the defendant's pleaded statutory defence of voluntary assumption of risk, under the Act, contained in paragraphs 43-44 and 45. As will be seen, part of that statutory defence shares, as a common element with the statutory defence under s 5L, the existence of an 'obvious risk'.
On 18 December 2020, the plaintiff requested particulars. It is unnecessary to set out all 17 requests. It is sufficient, for the purpose of identifying the present dispute, to note that all requests endeavoured to obtain further information from the respondents as to how the elements of the defence in s 5L were engaged on the facts.
In response to the requests for particulars, the respondents refused to supply them. They justified that position on the basis that requests made were not proper requests for particulars, but rather constituted an attempt to elicit evidence, discovery and/or interrogatories and, further, that the requests involved questions of law. They added, apparently for the sake of completeness, that the applicant did not need the information in any event, since he was an experienced life saver and because his solicitor had furnished Mr Williams, the expert, with sufficient information to opine on liability issues. In short, although not said in quite so many words, the plaintiff was already on notice of the facts sustaining the defence.

Consideration

The defendant's defences, to the extent that they rely upon s 5L of the Act, subsume multiple concepts: 'dangerous recreational activity' and 'obvious risk'. Those concepts are defined in ss 5K and 5F of the Act, respectively.
A 'recreational activity' is defined inclusively, as any sport (whether or not it is organised), and any pursuit or activity engaged in for enjoyment, relaxation or leisure.
A 'dangerous recreational activity' means a recreational activity involving a significant risk of physical harm.
'Obvious risk' is defined (by general cross-reference to Part 1A, Division 4 and, implicitly, more specifically, s 5F(1)) as a risk that in the circumstances would have been obvious to a reasonable person in the position of that person. Section 5F(1)(a)-(c) inclusive provide some statutory elaboration of what falls within the ambit of the general concept of 'obvious risk'.
Rule 15.1 of the UCPR provides an entitlement to "necessary" particulars. What is necessary is to assessed with reference to whether or not a party has adequate knowledge of what the other party alleges are facts (Sims v Wran [1984] NSWLR 317 at 321). They complement pleadings in helping to facilitate natural justice by informing the opposing party of the case that they have to meet and, especially, to avoid surprise. In Dare v Pulham (1982) 148 CLR 658 at 664, the High Court made the following observations on the interaction of the requirements of pleadings and particulars: "Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it … they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … and they give (the opposing party) an understanding of (the other party's) claim (or defence) …"
Those observations now need to be considered in light of the additional statutory requirement, whether further particulars should be ordered ultimately falls to be assessed against the overriding case management objectives under the Civil Procedure Act 2005 (NSW), s 58. Those objectives are the 'just, quick and cheap resolution of the real issues' (s 56), but also the efficient disposal of the business of the court and efficient use of available judicial and administrative resources and timely disposal of proceedings (s 57). The latter objectives are not assisted by pleadings that raise statutory claims or defences which are obscure about the factual underpinnings of essential elements to the claims or defences.
In this case, application of the test of necessity does not begin with the pleading defence in s 5L. That defence is only responsive to the facts pleaded in the statement of claim and, especially, the allegations made by the plaintiff as to what caused him to sustain the injuries he alleges. Plainly, the respondents pleaded the statutory defence in s 5L in response to the allegation that on the relevant date, the applicant suffered physical and consequential mental injuries as a result of activity on a rescue boat in a surfing carnival. That activity was to pick up and move a surfing can. It was contact with the rope and chain attached to the can which caused the physical injury. This was a very specific delineation of how the injury occurred.
When plaintiffs plead a cause of action for personal injury, they are required to plead the facts in a way that facilitates the Court's identification of how the considerations in ss 5B, 5C and 5E of the Act are engaged: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752 per Leeming JA (Basten and Simpson JJA agreeing) at [125] and [128]. His Honour focussed, especially, on the concept of 'risk of harm' and expressly noted that the concept was relevant not only to the plaintiff's action in negligence, but was also potentially relevant to a range of statutory defences under the Act ([111]-[115]). It is not enough, for example, for a plaintiff to simply refer to the matters in s 5B(1)(a)-(c) of the Act in the pleading without tying the pleaded facts to those considerations.
The same result pertains to a defendant's pleading of the special defences under the Civil Liability Act, such as those in s 5L (and, for that matter, s 5M): Sydney South West Area Health Service v MD (2009) 260 ALR 702 at [20-[23] (in relation to s 5O). In Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, Leeming JA again noted at [71]-[73] (with Payne and White JJA agreeing) the importance, for the statutory defences under the Act, for defendants to identify, with specificity, the 'obvious risk' relied upon to sustain the defence.
It is no answer for the respondents to say, for example, with reference to identifying the 'risk', that it was first incumbent upon the applicant to identify the risk, when pleading the facts to sustain s 5B(1). That is because where s 5L is available, it is a complete answer to the action in negligence and it is appropriate to deal with that defence first, before consideration of s 5B: Menz at [39]-[40].
Similarly, in Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185, the Court of Appeal (Simpson AJA, Gleeson JA and White JA agreeing) determined that the 'goal' of the activity was relevant to interpreting whether the activity was recreational. The respondents submit that Carter does not assist the applicant since the parties, by their conduct, had agreed in the identification of the relevant activity, even if, as Simpson AJA had postulated (at [50]), a different characterisation had been advanced. But contrary to the respondent's submission, the plaintiff has not agreed to any formulation of the recreational activity. That is precisely what it now seeks and it is precisely information which the respondents do not wish to supply.
The problem is that all that paragraph 44A of the current defences does is simply restate, by bare assertion, the application of the elements of the defence in s 5L without tying those elements to the facts relied upon to sustain them. In my view, that is insufficient to place the plaintiff on notice of the case that it must meet in response to the statutory defence(s) run against him. It also does not assist the Court to identify with specificity the findings of fact which the defendant will ultimately ask the Court to make. That, in turn, does not assist the Court to discharge its responsibility of giving effect to the 'overriding purpose'.
It is also no answer to say that the plaintiff knows of the facts. That would negate the function of procedural fairness that properly drawn pleadings and particulars are intended to serve. It should be clear from what I have already said that I reject the defendants' submission that nothing more need be provided since the issues in dispute are well known to the parties and their practitioners. The proceeding has reached the point where the issues still remain to be clearly identified and this has been contributed to by the defendants' drafting of their recent amendments.
In this way, whether the omission is characterised as a failure to comply with pleading requirements, or whether it is a matter for particulars, the result is the same. Although the elements of the defence in s 5L are not free from complexity, in my opinion, it is necessary, in order for the plaintiff, and also for the Court, to understand the defence, that the defendants, by amendments to their defences or by the provision of particulars, provide the following information:

What is the recreational activity which the plaintiff was engaged in on 7 November 2015?
What are the facts which made the said activity a 'recreational' activity, for the purposes of ss 5K and 5L of the Act?
What are the facts which made the said recreational activity engaged in by the plaintiff on 7 November 2015 a 'dangerous recreational activity', for the purposes of ss 5K and 5L of the Act?
What is the 'risk' of harm which materialized?
What are the facts relied upon to sustain the allegation that the risk which materialized was 'obvious', for the purposes of ss 5F(1) and 5L of the Act?

To this extent, I grant the application.

The Further Amendment Application

The defendants, as applicants for this application, rely upon Mr Bell's affidavit affirmed on 25 February 2021. The application is to permit the defendants to add, as a further defence, paragraph 44B, which is in the following terms: "In further answer to the whole of the amended statement of claim, (each) defendant says it did not owe the plaintiff a duty of care as alleged or at all by reason of section 5M of the CLA in that the plaintiff was engaged in a recreational activity and the risk or risks of engaging in that activity was/were the subject of a risk warning to him. Particulars (i) On or around 24 August 2013, 9 August 2014 and 12 July 2015, the plaintiff renewed his annual membership as a volunteer surf life saver with Surf Life Saving Australia (SLSA) through a membership portal on the SLSA website. (ii) On each occasion that the plaintiff renewed his SLSA membership, he expressly agreed to the terms of an SLSA declaration incorporated into the membership renewal process (the Declaration). (iii) By the terms of the Declaration, the plaintiff accepted and assumed responsibility for certain risks associated with SLSA membership activities, including but not limited to injuries arising from contact with Surf lifesaving equipment (Risk Warning). (iv) The risk warning was a risk warning within the meaning of section 5M of the CLA. (v) At the time of his alleged injury on 7 November 2015, the plaintiff was engaged in a 'recreational activity' within the meaning of section 5K of the CLA. (vi) The alleged risk or risks of such recreational activity that allegedly materialise were the same as the risk or risks contained in the Risk Warning, and voluntarily assumed by the plaintiff. (vii) In the circumstances, and pursuant to section 5M of the CLA, (each) defendant did not own the plaintiff a duty of care and is not liable to the plaintiff as alleged or at all."
In Aon Risk Services Australia v Australian National University (2009) 239 CLR 175, the plurality in the High Court at [103] noted that an applicant for an amendment of a court document (which, if amendment were permitted would operate to the other side's disadvantage) would usually be expected to supply explanation for the circumstances of the application, including the timing for the application. Mr Bell duly explains the circumstances of this application as follows. It was that in late November 2020 that an employed solicitor of the defendants' solicitors firm received information from the client regarding the possibility of the respondent being subject to certain liability disclaimers capable of sustaining a 'risk warning' defence under s 5M of the Act. On 26 November 2020, Mr Bell received a document, titled a 'SLSA Membership Application and Declaration'. He also received instructions that each time the plaintiff renewed his annual membership as a volunteer surf life saver, he agreed to be bound by the terms of the declaration. Mr Bell deposes that on the basis of these matters, he formed the view that the defendants had reasonable prospects of a s 5M risk warning defence.
However, given the immediacy of a hearing in the looming December 2020 sittings in Wollongong, Mr Bell received instructions not to agitate for amendment to add in this defence, lest it result in the vacation of the hearing in the December sittings. This, of course, was the problem that surfaced back in the August 2020 sittings when the application to amend, at that point, was to add the volunteers defence and the common law defence of voluntary assumption of risk. But if the December 2020 hearing was to be adjourned (for another reason or reasons), his instructions were to pursue this defence if possible. Mr Bell also explained that he did not wish to bring a motion earlier for leave to amend to bring this defence as he wanted to deal with the issues of applying to vacate the earlier costs order and further amend in the one motion. It may be noted, here, that the Court rules encourage multiple applications to be rolled into a single notice of motion where that is practicable (rule 18.6(1) of the UCPR).
It was only on 2 March 2021 that the applicants foreshadowed their intention to amend to raise the s 5M risk warning defence. A proposed Further Amended Defence was sent on 4 March 2021 and the motion seeking leave to further amend was filed on the same day.

Consideration

Applications to amend, where contested, usually invite consideration of the following: 1. whether the amendments are made for a proper purpose; 2. whether the amendments are proper, in substance and in form; 3. whether they cause undue prejudice to the other party; 4. whether the amendments are consistent with the 'dictates of justice'. See Ritchie's Uniform Civil Procedure (NSW) [s 64.10].
I am satisfied that the amendments are made for a proper purpose.
I remain, however, to be convinced about their form. As with my determination about the s 5L defence, in my view, the pleading of proposed paragraph 44B, relying upon s 5M of the Act, whilst an improvement on the pleading of s 5L, still falls short of what is required. For the same reasons that I have articulated in relation to s 5L, it is necessary for the defendant to identify, with precision, both (a) the 'recreational activity' and (b) the 'risk of the activity'.
Further, since particular (iii) to proposed paragraph 44B identifies more than one risk in the purported risk warning, by reason of s 5M(5) of the Act, the defendant should identify in the pleading the "general nature of the particular risk": Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [125]; see also Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed) [1A.5M.030], p 219).
I do not consider that particular (vi) to proposed paragraph 44B discharges this function. It simply invites the reader to read the risk warning and, effectively, asks the reader to divine what the general nature of the risks is from that warning. It is only a cross-reference.
This leaves consideration of the other matters I alluded to. On the issue of prejudice, Counsel for the plaintiff raises the spectre of consequential forensic steps that might need follow: the issue of a subpoena; the necessity of making enquiries of different surf life-saving organisations to see what they might do about the signing of forms; whether expert evidence might be required; it may require the plaintiff to amend his statement of claim; but at least it will require the plaintiff to request further and better particulars. As is clear, I have already anticipated at least to such extent the last matter in these reasons.
These matters are, advanced in terrorem; and indeed, were not even the subject of evidence. The respondent has now had the proposed amendment in his possession since 2 March. The respondent has had now over two weeks to consider how what would need to be done if the amendment was permitted. It is far from obvious that any of the consequential forensic matters would be necessary. To make some responses to the points raised: it does not strike me as obviously relevant whether other surf-life saving organisations had a similar risk warning. It is far from obvious what an expert might say about the purposes of organisations using risk warnings. Although there are certain statutory provisions which provide exceptions for the operation of the risk warning (ss 5M(6)-(9)), it was not suggested that the putative expert might have something to say about any of them. It is not obviously apparent that an unstated but an additional exception arises if it was unreasonable for the defendant to rely upon a risk warning.
I do not find that the respondent would be prejudiced in the requisite sense. Prejudice is not made out on the basis of the substantive effect of the amendment being allowed on the parties' respective rights. Little demonstrable factual inquiry has been shown as being necessitated by the amendment and it is not the case that the respondent would have conducted his case, so far, in a different way, had the s 5M defence been run earlier. Further, the s 5M defence is substantially complementary of the defence in s 5L.
As to the dictates of justice, as delineated in s 58 of the Civil Procedure Act, the amendments are brought at a stage where the hearing is to occur in approximately 3 months. There is no suggestion that to allow them now would cause the vacation of that hearing (as the amendments did in August 2020).
The application has been delayed, and to some extent, deliberately delayed, in the circumstances explained by Mr Bell, in his affidavit of 5 March 2021. It is curious that the potential applicability of s 5M could not have been ascertained prior to 3 November 2020, when the defendants applied to amend their defences to run defences under s 5L, since they are complementary defences and it would have been expected that the investigative inquiries initiated to determine whether s 5L might run might yield a determination that s 5M was also potentially applicable. Nevertheless, I accept the applicants' position that it was the belated discovery of a document after that date which set them on a train of inquiry leading up to the forensic determination that the s 5M defence was available. The delay in bringing the application, such as it is, is not such that the respondent does not have the time to meet the defence.
The applicants did not make the application expeditiously, but delayed it for forensic reasons. One may quibble about that, but the circumstance is not, in my view, controlling. As the respondent acknowledges, the rules are not to be administered for the sake of punishing parties for their transgressions. Had the case run in December, the defence would not have arisen. But it was not run in December and the hearing is still in 3 months' time.
The difference between bringing the application in November 2020 and bringing it now, in March 2021, still 3 months away from the scheduled hearing, is not overly significant. There will be no difference in judicial of administrative resources should the application be allowed than would be the case if it was not.
I consider that the most powerful consideration is that if the application is denied, it could deprive the applicants of raising a substantial defence that would answer the respondent's claim. In circumstances that I have found, that the respondent is not prejudiced by the amendment (in the requisite sense), I am satisfied that the dictates of justice favour the amendment.
Thus, subject to the provision of that information, as I have indicated the defence is permissible as a matter of principle.

ORDERS

The Court orders: 1. Order 8 made by Judge Dicker on 17 August 2020 be varied so that it is in terms that the defendants are to pay the plaintiff's costs of the notice of motion filed 28 July 2020, but otherwise, the parties are to bear their own costs occasioned by the vacation of the hearing scheduled for the August 2020 Wollongong sittings. 2. The defendants have leave to file further amended defences by 26 March 2021, which defences: 1. provide the information required by s 5L, as indicated in these reasons; 2. provide the information required by s 5M, as indicated in these reasons 1. The plaintiff is to file and serve any Reply, as advised, by 9 April 2021. 2. Order 7 made by Judge Weinstein on 8 December 2020 is varied so as to extend the date for service of Mr Thompson's report to 29 March 2021
In my view, the appropriate costs orders of the motions are that: 1. The plaintiff is to pay the defendants' costs of the Costs Variation Application; and 2. The defendants are to pay the plaintiff's costs of both the Particulars Application and the Further Amendment Application. 3. The defendants are to pay the plaintiff's costs occasioned by the further amendments to their defences.

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: 19 March 2021

Villa, Annotated Civil Liability Act 2002(NSW)

Civil Liability Act 2002(NSW)ss 5B, 5C, 5E, 5F, 5K, 5L

Civil Procedure Act 2005(NSW)ss 56, 57, 58, 98

Uniform Civil Procedure Rules 2005(NSW)rr 15.1, 18.6, 31.28, 36.15, 36.16

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