I am required to decide whether the defendant should be granted leave to amend its defence in the form handed up today by Mr Weinberger of Counsel by adding to the defence a number of averments in numbered paragraphs 10 to 17.
The amended defence was brought forward in compliance with a direction I made at the close of proceedings yesterday afternoon. The matter arose in this way: following Mr Roberts of Senior Counsel's opening of the plaintiff's case, I granted Mr Weinberger the opportunity of stating the issues; the gravamen of the matters set out in the proposed amended defence were outlined as being relevant to the question of the defendant's duty and whether it had been breached ; and at the conclusion of Mr Weinberger's opening, Mr Roberts indicated that the plaintiff would object to at least some of the matters being raised in the proceedings.
I should say that Mr Weinberger has handed up the proposed amendment, as it were, under protest. It is his argument, fundamentally, that the matters set out in the amended defence are not required to be specifically pleaded but are sufficiently raised by the issues already joined on the existing pleadings.
The premises where the plaintiff's accident occurred were relatively new, having come forth from a development that was conceived in July 2009. They were constructed pursuant to contracts going back to July 2010 and were completed, or at least practically completed, in about December 2011. As at December 2011 the builder, a company said to be Commercial Project Group Pty Limited, is alleged to have issued a "certificate of installation" which certified that the surface of the car park of the premises had a slip-resistance rating of "R10". Following the completion of the premises Coles, who had been involved in the conception of the idea, entered into a lease with the developer on 24 July 2012.
It is said that by these matters the Court should conclude that Coles exercised reasonable care in the selection of suitable contractors, including the developer and the builder, and by the terms of the lease Coles was "legally disentitled to carry out repairs to the car park". These circumstances should be taken as showing that Coles discharged its duty of care to the plaintiff.
The plaintiff suffered injury on 6 April 2014, a little under two years from the date of the lease. On the evidence I have heard so far, the plaintiff slipped on the car park floor which was wet with rainwater. I have read in preparation to him giving evidence an expert report from Mr Wagstaff who undertook slip resistance testing on the floor in August 2014 and found the floor to be excessively slippery when wet and non-compliant with what he identified as applicable industry standards.
It seems to me that these matters are matters which, with respect, contrary to Mr Weinberger's first argument, should be pleaded. In that regard I accept Mr Roberts' argument that r 14.14 Uniform Civil Procedure Rules 2005 (NSW) applies. In particular, r 14.14(2), which so far as is material, provides that:
In a defence … a party must plead specifically any matter:
…
(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
(c) that raises matters of fact not arising out of the preceding pleading.
Given the specific matter sought to be raised, I am of the view that the new averments in the proposed amended defence are allegations that make the plaintiff's claim, according to the case formulated by the defendant, not maintainable, in the sense that it cannot succeed. Moreover, they are matters of fact that did not arise out of the plaintiff's statement of claim.
I interpolate that I accept the potential relevance of the matters sought to be raised, that is to say, that the premises were relatively new at the time of the plaintiff's accident, and that they were constructed under the supervision of a developer and by a builder, and not by the defendant. I accept that, as Mr Roberts' opened, it is likely that the lease, in any event, will be relevant. It was a matter relied upon in opening, said to demonstrate that the defendant as lessee of the premises had ample power under the lease to correct the defect in the surface of the floor, if I was persuaded that it was a defect.
Moreover, it is important to observe for the purpose of these proceedings that this matter does have some history. I accept, for example, that the certification that I have already referred to which was issued apparently by the builder had been served by the former second defendant upon the plaintiff on 5 May 2016. In response to that certification, I am also informed, without objection from the bar table, that a second report was prepared by the expert dealing with questions including the accuracy of the certificate.
However, on 9 June this year the plaintiff's solicitors, doubtless in consultation with learned Senior Counsel, wrote to the defendant's solicitors, pointing out that they would object to the tender of the certificate as not being relevant, effectively, to any issue raised by the pleadings as they then stood and questioning its authenticity in as much as the copy in the plaintiff's lawyer's possession appeared to be either unsigned, or signed by a person whose identity could not be ascertained from the face of the certificate.
There is yet more information that needs to be gone over relevant to the question of whether the amendment should be allowed. As I have already indicated, initially the plaintiff sued two defendants: Coles, as occupier, and Canzon Pty Ltd, as the developer, which I have made previous reference to in these reasons.
These proceedings have been brought on with commendable promptitude. Mr Bridge was injured on 6 April 2014, proceedings were commenced in or about December 2015, and were in a position to take a hearing date in this Court at the end of last year, 3 July 2017 being the date then fixed. During the usual case management in the Common Law Division, the defendants were given opportunities to issue cross claims, which opportunity was taken by the developer but not by Coles; or at least not by Coles until an attempt was made very late in the piece. Indeed, as late as April of this year, Coles indicated that it did not wish to issue any cross claims. These circumstances are fully set out in the judgment of Lonergan J of 23 June 2017 (Bridge v Coles Supermarket Australia Pty Ltd [2017] NSWSC 848) and I will not delve into them in detail for the purpose of these reasons. Suffice it to say that notwithstanding that late indication that no cross claim would be issued, as occurs, I acknowledge, a different view was taken by Counsel who advised on 24 April 2017 that a cross claim should be issued relying upon the contractual documents to which I have already made reference.
There was some delay obtaining instructions to act upon Counsel's advice and the motion seeking leave to issue a cross claim, at that stage only against the developer, was not forthcoming until 2 June 2017. The motion was heard by Lonergan J on 23 June 2017 and dismissed. The significance of that part of the litigious history is that, in the meantime, the plaintiff discontinued the proceedings against the developer on terms which involved each party bearing its own costs. The normal term of course would be that the plaintiff pay the developer's costs as a condition of the discontinuance. It seems to me that that discontinuance is likely to be held, were it ever in issue, to give rise to a binding agreement that the plaintiff would not again sue the developer in respect of this same matter. It seems to me that there is an aspect of irredeemable prejudice in relation to the plaintiff's position, albeit that situation was brought about in circumstances where doubtless forensic decisions were made.
On the contrary, the defendant still has available to it its cross-claims against the developer and also, if so advised, against the builder and if Coles is unsuccessful in these proceedings, separate proceedings can be issued under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and, of course, on any relevant contract.
I should say that the plaintiff not having commenced proceedings against the builder, subject to the date of discoverability, may well still be in time to sue the builder. Mr Weinberger is probably correct in that argument, although I am certainly not in any position on the material before me to make any firm decision about that.
I should also say, and I say this meaning no disrespect or any particular criticism, that it is apparent to me anyway that this is an alternative route to raising the issues which were raised before Lonergan J and which she decided, for reasons she then gave, should not be raised at this late stage in the proceedings.
Her Honour, with respect, referred to the leading authority in this area, being the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. I will not set out any quotes from that decision. Suffice it to say by reference to her Honour's decision at [25] to [27], notwithstanding that the paramount purpose of case management in civil litigation is a just resolution of the proceedings, that consideration is informed by multifarious considerations including matters relating to the public interest. Parties should have a proper opportunity to plead their case but the Justices who participated in the plurality judgment in Aon pointed out that there must be limits placed upon re-pleading when delay and costs are taken into account. Indeed their Honours frankly said at [111] that applications 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 as compensation. Their Honours said, I think with some emphasis, there is no such entitlement.
Given the degree of prejudice suffered by the plaintiff that cannot be cured at this stage by me, I am of the view that the defendant has not established a case for the exercise of my discretion in its favour and I decline to grant leave to proceed on the basis of the amended defence which I will initial, date today and place with the papers.
I should say, however, that it does not follow that some of the facts I have referred to do not remain relevant or may not be relevant after argument; nor am I making any advance ruling under s 192A Evidence Act 1995 (NSW) as to what documents can and cannot be tendered in these proceedings. All rulings in relation to relevant evidence will be decided and determined at the point of tender by reference to the pleadings as they actually stand and the issues that can be identified by reference to them.
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Decision last updated: 19 July 2017