Damm v Coastwide Site Services Pty Ltd

Supreme Court of NSW|2016-10-06|Before: Garling J

td (D3) Workers Compensation Nominal Insurer (D4) Representation: Counsel: M Perry (P) D S Weinberger (D1) R Cavanagh SC (D2) D A Lloyd (D3) D P Kelly (D4)

Solicitors: Taylor & Scott Lawyers (P) McCabes Lawyers (D1) Thompson Cooper Lawyers (D2) Lander & Rogers (D3) Curwoods Lawyers (D4) File Number(s): 2014/251874 Publication restriction: Not Applicable

Circumstances Surrounding Entry of Judgment

On 24 March 2016, Leightons' solicitors wrote to the plaintiff's solicitor. The letter was marked "Without Prejudice Save as to Costs" however, it was tendered, without objection, on the hearing of the Notice of Motion.
It referred to a number of background facts, including the stated proposition that Leightons was the principal contractor engaged to design, construct and complete the new paper mill on the site. It then said: "As you are most likely aware, [Leightons] engaged the First Defendant, Coastwide Site Services Pty Ltd ('Coastwide') to provide boilermaker and welding services at the site. Coastwide contracted with the Fourth Defendant who provided the plaintiff, an experienced boilermaker, to it in a labour hire capacity. ... The plaintiff as an experienced boilermaker would have been aware of the requirement contained in AS2550.10 2006 Part 10: Mobile Elevating Work Platforms, that safety harnesses are to be worn at all times and working from an EWP basket. Nevertheless, the plaintiff took the inexplicable step of removing his harness and leaning over the edge of the EWP basket in order to seek to carry out work. In those circumstances, it must be found that the plaintiff was not taking reasonable care for his own safety and that the subject accident was solely the result of his own negligence. We also note that in the Amended Statement of Claim, it was alleged that [Leightons] was vicariously liable for the actions of Steve Boyd, said to be its employee. Steve Boyd is alleged to have been the plaintiff's supervisor at the time of the accident and the plaintiff states that when he complained to Mr Boyd about his inability to carry out the subject work from the EWP, responded 'the job just has got to be done'. As you know, Mr Boyd was not employed by [Leightons]. This is evidenced in the Further Amended Statement of Claim which no longer alleges that Mr Boyd was employed by [Leightons]. Instead, it is alleged that Mr Boyd was in fact employed by Hauv's Rigging. Accordingly, our client cannot be held vicariously liable for any acts or omissions of an independent contractor, in this case an employee of Hauv's Rigging."
The letter went on to discuss whether there was any basis for Leightons in its capacity as a principal contractor to be held liable to the plaintiff. It concluded in the following terms: "Therefore, in the circumstances, we respectfully consider that the plaintiff's claim will fail as the accident was not a result of any negligence on the part of [Leightons]. We therefore suggest that you discuss with your client whether he wishes to pursue this claim against our client. To assist, we are instructed to provide the plaintiff with an opportunity to agree to a judgment in favour of [Leightons] in return for which it will bear its own costs to date. This offer is open for 28 days. Should you require further time to obtain instructions, please let us know as soon as possible."
The letter then went on to refer to the fact that if the offer was not accepted and Leightons obtained a more favourable result at the trial, then a claim for costs on an indemnity basis would be made.
On Monday 18 April 2016, in an email from the plaintiff's solicitor to Leightons' solicitors, Leightons was informed: "I refer to your letter dated 24 March 2016. I am instructed to accept your offer of a verdict in favour of your client with each party to bear its own costs to date. Please forward to me a consent judgment for execution."
Sometime before 28 April 2016 (although the date is not clear and is not important), Leightons sent to the plaintiff's solicitor a form of Consent Judgment. That form was executed by the plaintiff's solicitor on 28 April 2016, and returned to Leightons' solicitor, who executed it on 2 May 2016.
On that day Leightons' solicitor sent an email to the solicitors for the other parties. Although it was marked "Without prejudice save as to costs", it was tendered on the hearing of the Motion without objection.
It read: "Dear Colleagues, I refer to the above matter and confirm that the plaintiff has agreed to a judgment in favour of the Second Defendant. Please find attached signed Consent Judgment as between the plaintiff and the Second Defendant which we shortly intend to file in court. Amy - in order to dispose of our client's involvement in the Second Cross-Claim, we propose the attached orders. Please obtain your client's instructions in relation to the proposed orders. We will forward a signed hard copy of the orders via DX." (emphasis in original)
Attached to that email was a scanned copy of the signed Consent Judgment in PDF format and a further document entitled "Consent Judgment" which sought to deal with the Second Cross-Claim. It proposed the following orders: "By consent, the parties agree to the following orders: 1. The Second Cross-Claim is discontinued as against the First Cross‑Defendant to the Second Cross-Claim. 2. The Cross-Claimant to the Second Cross-Claim and the First Cross‑Defendant to the Second Cross-Claim to bear their own costs of the Second Cross-Claim."
That email was sent by Leightons' solicitor at 2.53pm. At 4.43pm on that day, the solicitor for Hauv's Rigging sent an email which in part responded to the email from Leightons. It noted a number of issues relating to the timetable of the matter, essentially those associated with what the solicitor for Hauv's Rigging was asserting was the relatively recent joinder of Hauv's Rigging to the proceedings on 29 March 2016. It drew attention to the most recent direction of the Court in these terms: "At the Directions Hearing, it was relevantly ordered by the Court that Hauv's Defence and any Cross-Claims were to be filed by 29 July 2016. The timeframe proposed, and as ordered by the Court, (sic) for the service of Hauv's Defence and any Cross-Claims was agreed by the parties to enable Hauv's time to investigate the matter further."
That email then went on to deal with the email from Leightons' solicitor about the consent judgment. It said: "In light of the above, and the continued investigations into the matter by Hauv's, Hauv's is unable to consent to the entering of the Consent Judgment in favour of Leightons and/or Consent Orders providing for a Discontinuance in favour of Coastwide as proposed. Furthermore, we reserve Hauv's rights in relation to the issuing of Cross‑Claims, based upon any cause of action, as against Leightons, Coastwide and any other person and/or entity, in addition to any Defence/s it may have available, in accordance with the timetable entered by the Court."
On 5 May 2016, the Consent Judgment between the plaintiff and Leightons was filed. The consent judgment was signed by the Registrar of the Common Law Division and the judgment and orders were entered by the Supreme Court on 6 May 2016.
The Registrar of the Common Law Division is an officer of the Supreme Court appointed in accordance with s 199 of the Supreme Court Act 1970 (NSW). The powers of a registrar are set out in s 121 of the Supreme Court Act. As well, s 13 of the Civil Procedure Act 2005 (NSW), authorises the Chief Justice of the Supreme Court to direct that any function of the Court may be exercised by a registrar.
On 26 November 2012, pursuant to s 13 of the Civil Procedure Act, the Chief Justice directed that a registrar could exercise specific functions of the Court. Included in these functions was: 1. the making of consent orders pursuant to r 31.1A of the UCPR in matters with which a registrar could deal; and 2. the entry of judgments or orders pursuant to r 36.11 of the UCPR, unless the Court has directed otherwise.
In Part 3 of the Schedule to the Chief Justice's Direction, a registrar is given the power to give any judgment by consent or to make any order by consent. Neither the UCPR, nor the Direction of the Chief Justice mandate that any hearing is to take place before a Registrar exercises his powers with respect to a consent judgment.
On 10 May 2016, Leightons' solicitor wrote to each of the other defendants saying "We enclose, by way of service, sealed Consent Judgment filed on 5 May 2016".
On 13 May 2016, the solicitor for Hauv's Rigging wrote to Leightons' solicitor in these terms: "We refer to your email correspondence dated 2 May 2016, our email correspondence of 2 May 2016 and your letter dated 10 May 2016 enclosing by way of service sealed consent judgment filed on 5 May 2016 in favour of Leightons (Judgment)."
The letter recited the chronology of events between 2 May 2016 and the letter of 10 May 2016, to which I have earlier referred. It went on to say: "At no time prior to the entry of the Judgment did your client and/or the Plaintiff: (a) inform the parties to the Proceedings of the basis upon which the Judgment was to be entered; (b) respond to the matters raised in our correspondence of 2 May 2016; (c) obtain the consent of all parties to the Proceedings for the entry of the Judgment; and/or (d) seek to have the matter listed before the Court for the purposes of having the judgment entered in circumstance (sic) where there was an absence of consent of the parties. In light of the above we consider that the Judgment has been entered in the absence of good faith. Accordingly, we request Leighton's consent to the setting aside of the Judgment. We look forward to your response to this request by COB Monday 16 May 2016. Finally, should consent to the setting aside of the judgment not be obtained, we reserve Hauv's rights in accordance with rules 36.15 and/or 36.16 of the Uniform Civil Procedure Rules to bring an application seeking to set aside the judgment. Furthermore, we will rely upon this correspondence on the question of costs should the need arise. We confirm a copy of this correspondence has been circulated amongst all parties to the proceedings."
That letter was responded to by Leightons' solicitor on 16 May 2016, in the following terms: "We refer to your letter dated 13 May 2016. The Consent Judgment filed on 5 May 2016 evidences the agreement between the plaintiff and our client. We reject the suggestion that the consent of all parties was required to file a Consent Judgment and reject any suggestion that the Judgment has been entered in the absence of good faith. Further, we did not read your correspondence of 2 May 2016 as calling for a response. Nevertheless, we have forwarded a copy of your correspondence to our client and will further respond upon receipt of instructions."
It is convenient to note that within a few days of that letter, namely 19 May 2016, Hauv's Rigging filed the Notice of Motion seeking to set aside or otherwise deal with the Consent Judgment. This was within the 14 day period contemplated by r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR").
On 27 June 2016, Mr Hawkes, the solicitor for Coastwide, sent a letter to the solicitor for Leightons noting that it was Coastwide's understanding that Leightons did not intend to rely upon the Consent Judgment as an estoppel to Coastwide's cross-claim, and requesting that Leightons' solicitors advise him if this understanding was incorrect. Leightons did not reply to that letter.
Mr Hawkes sent a second letter to the solicitors for Leightons on 11 August 2016, again requesting that they confirm whether or not Leightons would seek to estop Coastwide from pursuing its cross-claim against Leightons. No response was received to this letter.
It was then, on 16 August 2016, that Coastwide filed its Motion seeking similar orders. This was significantly later than the 14 days provided for by the UCPR and referred to above.

Applicable Legislation

Once a judgment has been entered, the UCPR provides a limited basis upon which that judgment may be set aside by the Court. This limited basis is separate from any relief which the Court of Appeal may grant on an appeal to it in respect of an order which has been entered. No question arises on these Notices of Motion about the exercise of power by the Court of Appeal.
A judgment or order of the Court takes effect on the date upon which it is given or made or, if so ordered, as of the date upon which it is entered: r 36.4(1) of the UCPR.
The UCPR requires that any judgment or order of the Court is to be entered, which is taken to have occurred "… when it is recorded in the court's computerised court record system": rr 36.11(1) and (2) of the UCPR.
Rule 36.15 of the UCPR provides that where sufficient cause has been shown, a court has the power to set aside any judgment or order "… if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith". This was one of two rules relied upon.
Rule 36.17 of the UCPR is the slip rule. No party contended that this rule was applicable here. It need not be further considered.
Rule 36.16 of the UCPR was relied upon. It is in the following terms: "36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) ... (3) ... (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under sub-rule (1), as if the judgment or order had not been entered. (3B) ... (3C) Despite rule 1.12, the court may not extend the time limited by sub‑rule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order."
The Court is not concerned in these Motions with a default judgment. Accordingly, r 36.16(2)(a) can be put to one side.
It is important to note that the scheme provided by the UCPR enables a party to proceedings to seek relief both in respect of a judgment which has been pronounced or agreed in the limited circumstances identified by the UCPR and, also, a judgment which may not have been entered.
The first basis is one without a defined time period, which enables a court to set aside a judgment if it was entered "… irregularly, illegally or against good faith": r 36.15(1) UCPR. No time limit is prescribed, no doubt, because the time at which it may become apparent that a judgment has been entered irregularly, to use the generic description, may not be until sometime after the judgment was entered.
The second basis is where a party moves the Court by notice of motion before the entry of judgment. It is relevant to note here the provision of r 36.11(2) of the UCPR which provides that unless the Court otherwise orders, the judgment is taken to be entered when it is recorded in the Court's computerised court record system. Sometimes, a court will order that a judgment is to take effect from a specific future date. In such circumstances, application can be made as envisaged by this rule to set aside the judgment after it has been given or agreed, but before it has been entered.
Relevantly, the third basis upon which a judgment may be set aside is after it has been entered, but in circumstances, relevantly, if the judgment has been made or given in the absence of a party: r 36.16(2)(b) of the UCPR.
Finally, a limited window is allowed to a party, as set out in r 36.16(3A) of the UCPR, which provides that if a notice of motion seeking to set aside the judgment is filed "… within 14 days after the judgment … is entered" then the Court may determine the matter as if the judgment had not been entered. Importantly, that period of 14 days cannot be extended by the Court: see r 36.16(3C) of the UCPR. This provision specifically overrides the general power of the Court to extend time contained in r 1.12 of the UCPR.

The Legal Effect of a Consent Judgment

In James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53, Callinan J at [98] describes the issue which in part falls for consideration on these Motions in this way: "This appeal is concerned with the liability of concurrent tortfeasors to one another in circumstances in which one tortfeasor has obtained judgment in its favour by consent of the plaintiff. The question is whether a tortfeasor who has sought indemnity or contribution from another tortfeasor who has had a [consent] judgment entered in its favour against the plaintiff, is, as a result of that judgment, precluded from obtaining indemnity or contribution. The answer to the question depends upon the proper construction of s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)."
In Seltsam, the High Court, by a majority, held that entry of a consent judgment in favour of a defendant established that it was not liable to a plaintiff and, accordingly, it was absolved from all liability to other defendants who were seeking to claim contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act.
Gaudron and Gummow JJ considered the appropriate course open to a cross‑claimant in the circumstances. They noted that the appellant, which was the cross‑claimant, had not taken all steps that were open to it to protect and advance its position. Their Honours noted at [17]ff: "The Tribunal, as a court of record, had an overriding power to control its own proceedings and was not obliged to act upon the request by some of the parties before it that consent orders be entered. The appellant had the right to be heard before the Tribunal entered the consent judgment in favour of the respondent against the plaintiff in the plaintiff's action. … The appellant might have sought deferral of the entry of judgment in favour of the respondent until determination of the issue of liability of the appellant to the plaintiff for the purposes of the appellant's contribution claim against the respondent. In the process of negotiation between the parties, various options might have been available. A release agreed between the plaintiff and one tortfeasor would not necessarily have released the others. Further, the respondent concedes that, if the plaintiff had released the respondent without a judgment, then the appellant could have maintained its action for contribution. Against any decision by the Tribunal to enter consent judgment as sought by the respondent and the plaintiff but against the wishes of the appellant, the appellant would have standing to appeal. By that means, the appellant would have kept in play the question whether it was entitled to recover contribution from the respondent. …"
In expressing their conclusions, their Honours said at [40]ff: "However, in the present litigation, the order dismissing the plaintiff's action against the respondent was a final order which brought that action to an end. It would be a distortion of the text and structure of par (c) of s 5(1) to hold in those circumstances that the respondent thereafter answered the description of one yet to be sued. The plaintiff's cause of action against the respondent merged in the judgment, thereby destroying its independent existence. The status of the Tribunal as a court of record was such that the circumstance that the judgment in favour of the respondent was entered by consent renders it no less effective to absolve the respondent from liability to the plaintiff. It was for the appellant to have taken the necessary steps to oppose that entry of judgment and to have put itself in the procedural position whereby it was competent to appeal against that entry. In the meantime, whilst that judgment remained on the record of the Tribunal, the respondent did not answer either of the statutory descriptions necessary to confer entitlement on the appellant to proceed against it for contribution. With respect to the first limb, the respondent had not been adjudged liable to the plaintiff. Rather, it had succeeded in establishing the opposite. With respect to the second limb, the presence of the judgment in the respondent's favour denied it the character of a party still awaiting a final determination of a suit in respect of the damage sustained by the plaintiff."
Callinan J agreed with Gaudron and Gummow JJ that the respondent as a consequence of having judgment entered in its favour, did not fall within either of the classes of litigants contemplated by s 5(1)(c) of the Act, that is, it was not liable nor, if sued, would it have been liable. His Honour also was critical of the appellant for failing to make it plain by an application to the Tribunal that judgment should not be entered. He said at [133]: "It is not as if here the appellant made an application to his Honour Judge Johns to abstain from entering judgment in favour of the respondent. Had the appellant done so, and the judge refused to abstain from entering judgment then the appellant might have been entitled to appeal against that refusal. All that the appellant did was simply to assert that the judgment entered by consent could have no prejudicial effect upon it with respect to the contribution proceedings."
His Honour went on to point out that his conclusion accorded with authority which could be taken to have been settled for many years.
The circumstances here are analogous to Seltsam. A consent judgment has been entered. It provides a judgment in favour of Leightons with respect to the plaintiff's claim against it. The effect of this is that any of the cross‑claims, to the extent that they depend upon the claim for indemnity or contribution under the Law Reform (Miscellaneous Provisions) Act, against Leightons as a tort‑feasor must fail.

Motion of Hauv's Rigging

The Motion of Hauv's Rigging was filed within the 14 day period permitted by r 36.16(3A) UCPR. The Court proceeded to consider the orders sought as if the Motion had been filed prior to judgment being entered.
Hauv's Rigging submitted that either as a matter of entitlement or else in the exercise of the Court's discretion, the judgment in in favour of Leightons should be set aside.
This submission is based upon the following: 1. by reason of the existence of the cross-claim, and by reason of it being adversely affected by the entry of judgment, it was entitled to be heard, and because it was not, the judgment had been entered in its absence: r 36.16(2)(b) of the UCPR; and/or 2. because it had an entitlement to be heard, and Leightons did not afford it that right, the judgment had been entered irregularly or against good faith, and so should be set aside: r 36.15 of the UCPR.
It is convenient to deal with the second argument first.
Ordinarily, irregularity is concerned with a failure to comply with the UCPR: Arnold v Forsyth [2012] NSWCA 18 at [88] per Sackville AJA. Counsel for Hauv's Rigging did not identify any particular irregularity or illegality which could be regarded as against good faith relating to the entry of judgment. However, it did submit that the knowing failure of Leightons to give it an opportunity to make an application to the Court to defer entry of judgment, in light of the contents of its email set out in [26] above, was against good faith.
It seems to me that the Consent Judgment between the plaintiff and Leightons was in the proper form and was consented to by the lawyers on the record for each of the parties between whom the agreement was made. The terms of the orders that were agreed were proper to give effect to the agreement of the plaintiff and Leightons. The finalisation of the orders occurred after correspondence was written setting out Leightons' position. Having been filed, it was duly entered in the Court's records and the judgment issued. There is simply nothing irregular or illegal in this process. However, the issue is whether Leightons' conduct was against good faith.
In Coles v Burke (1987) 10 NSWLR 429, Kirby P, with whom Samuels and McHugh JJA agreed, considered the phrase "irregularly, illegally or against good faith" in the context of a District Court Rule. There is no reason to think that there is any difference in the interpretation of the phrase in the rule which is here applicable. Kirby P said at 437: "The genus which is involved in the phrase "irregularly, illegally or against good faith" appears to be me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which [the rule] provides."
The Court of Appeal further considered the phrase in Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193. Again the Court of Appeal was considering a District Court Rule but, as was noted, r 36.15 of the UCPR is in very similar terms. The principles applicable are, in my view, the same.
At [52], Bryson JA, with whom Hodgson and McColl JJA agreed, expressed his agreement with observations made by Fitzgerald JA in Shirriff v Nominal Defendant [1999] NSWCA 152 where his Honour said the following: "[19] ... I do not consider that the passage last quoted is intended to express a general principle that, whenever it would be contrary to good faith for a party to attempt to retain the benefit of an order, that order must have been made against good faith. For example, a matter arising subsequent to an order, or fresh evidence which could not have been obtained with proper diligence prior to the order, might make it unjust for a party to retain the benefit of the order, but would not mean that the orders was 'made ... against good faith'. ... [21] Roach did not question the correctness of this Court's earlier decision in Coles v Burke. Kirby P, with whom McHugh JA and, materially, Samuels JA agreed, expressed the opinion that the phrase 'against good faith' was concerned with 'misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment ..."(references omitted)
In [52] of Kendall, Bryson JA went on to say: "...the reference in Roach ... to unconscionability in later relying on a judgment which had been entered up as a result of a mistake, is not in my respectful opinion authorised by the terms of [the rule], which relates good faith to the circumstance in which the judgment was given, and does not extend to lack of good faith in reliance on the judgment at some later time."
Later in the judgment at [60], his Honour said: "There is not and could not, I would think, ever be an exhaustive judicial definition of what is against good faith; only very broad limits are set by proceeding by analogy from circumstances in which judicial remedies are based on good faith, unconscionability, or other concepts closely related to good faith ... 'Against good faith' is an expression which requires the impeachment of the intention or behaviour of the person whose good faith is impugned."
As Davies J said in Zakaria v Dr Noyce [2012] NSWSC 981 at [22]: "The significant matter is that for a judgment to be set aside as having been entered against good faith there must be misconduct or dishonourable conduct by the person who procured the judgment. the matter is directed, not to the Court of the judge who entered the judgment, but to the party who was responsible for bringing it about."
Here, Hauv's Rigging would need to establish misconduct against either or both of the plaintiff and Leightons. No evidence exists, and no submission was made, that the plaintiff had engaged in any conduct which could be regarded as against good faith. Accordingly, it is the conduct of Leightons through its solicitor which falls for consideration.
The email from Hauv's Rigging essentially conveyed two things to the solicitors for Leightons in response to their notification of their intention to file the consent judgment: first, that Hauv's did not consent to the entry of the proposed judgment; and, secondly, that Hauv's Rigging reserved its rights relating to any future cross‑claim.
The failure of Leightons' solicitors to act on these statements does not involve any dishonourable conduct. There was no direct request by Hauv's Rigging to Leightons to, nor were they asked to, refrain from having the consent judgment entered at all, let alone pending the determination of any cross‑claim. On the contrary, Hauv's Rigging contented itself with a statement of its position. It was a matter for its solicitors to decide whether that statement was adequate to protect its interests. It was not a responsibility that fell on the solicitors for Leightons to determine. Their interest and responsibility was to their own client even if, and there is no evidence that this is so, Leightons and its solicitor appreciated fully that the statements regarding Hauv's Rigging's position were inadequate to protect its own position.
Acting as they did to file the Consent Judgment and seeking to have it entered was not against good faith. Rather, what Leightons did was to seek to advance its client's position. In the adversarial system of justice, with parties represented by well qualified and experienced solicitors, in the absence of misleading conduct or any conduct carrying with it any moral obloquy, there was no absence of good faith.
Hauv's Rigging has not persuaded me that the judgment entered can be set aside under the provisions of r 36.15 of the UCPR.
Hauv's Rigging also relied upon the provisions of r 36.16(2)(b) of the UCPR upon the basis that as it was entitled to be heard, and it was not, then the judgment was entered in its absence. I am unpersuaded that this basis is available in the circumstances here.
First, the UCPR enables a consent judgment to be filed in the Court's registry and then entered without the need for any appearance in Court by any party. The usual procedure is for the consent judgment to be signed by a Registrar (or Deputy Registrar) and then entered in the Court's computer system. The provision of this rule contemplates the absence of a party from a hearing which relates to the entry of judgment (and none was necessary here), or where the judgment was entered after an application which would need to be served on the party affected by the application. This was also unnecessary here. Rule 36.16(2)(b) as relied upon is inapplicable here on its terms.
Secondly, the phrase "entitlement to be heard" drawn as it is from Seltsam (see [51] above), which was used in the particular context there applicable, which was that the consent judgment was announced to the Tribunal in the course of a hearing with all parties present. At that time counsel made submissions, but none were directed to the seeking of any order providing for the deferral of the entry of judgment. It is clear from the description of the proper course for a party in the position of Hauv's Rigging here, to follow, as set out in Seltsam that there was no obligation here on Leightons to list the matter before the Court so as to enable Hauv's Rigging to make a submission in opposition to the judgment.
As is noted in [55] above, Gaudron and Gummow JJ confirmed that such an obligation fell onto Hauv's Rigging to have "… taken the necessary steps to oppose that entry of judgment and to have put itself in the procedural position whereby it was competent to appeal against that entry".
Hauv's Rigging took no such steps, having been informed of the existence of the agreement between the plaintiff and Leightons, to move the Court not to enter judgment in favour of Leightons. If it wished to take advantage of the provisions of this Rule, then it needed to procedurally to file a Notice of Motion and to seek a hearing. But, in the absence of any attempt to put the matter before the Court and to seek any amendment to the usual procedure of the Court in the circumstances here, the provisions of r 36.16(2)(b) are not applicable.
I would not set aside the judgment on the basis of these submissions.
In the course of oral argument, counsel for Hauv's Rigging submitted that although he had relied on other bases to set aside the judgment, because his client had filed its Notice of Motion within the 14 day period allowed by r 36.16(3A) of the UCPR, then the obligation of the Court was to determine the matter "as if the judgment or order had not been entered". Rule 36.16(3A) of the UCPR provides the Court with the power, if appropriate, to set aside or vary the judgment or order. It follows that in the exercise of such power, the Court needs to act in accordance with the interests of justice and to promote the overriding purpose set out in s 56 of the Civil Procedure Act.
Counsel submitted that this power was at large and otherwise unfettered except by the overall discretion obliging the Court to act in the interests of justice. In support of this argument, counsel submitted that at the time the consent judgment was entered, the following things were clear: 1. the litigation commenced by the plaintiff was multi-party litigation in circumstances where the defendants, speaking generally, were resisting their individual liability to the plaintiff and seeking to share their liability with each other; 2. because Hauv's Rigging had been joined to the proceedings at a relatively late point in time, the time for it to file a cross‑claim as fixed by directions of the Court, had not expired; 3. the terms of the correspondence from Leightons solicitors dated 2 May 2016, were, at best, ambiguous, in respect of when the Consent Judgment would be entered or whether Hauv's Rigging's consent was sought to that recent judgment being filed or only to the terms for the disposition of the cross-claim; 4. the terms of the response by Hauv's Rigging's solicitor on 2 May 2006, sufficiently indicated Hauv's Rigging intention to file a cross-claim against Leightons and its wish to preserve their capacity so to do; and 5. the legal consequence of a final judgment being entered for the purposes of Hauv's Rigging's cross-claim in circumstances where the agreement was entered into without active participation by Hauv's Rigging.
Hauv's Rigging submitted that the combination of these circumstances indicated that it would be in the interests of justice for the Consent Judgment to be set aside so as to enable it to proceed with its cross-claim against Leightons and the other defendants, and thereby to have all questions of liability as affecting it determined appropriately at a defended hearing.
In response, Leightons submitted that in order to succeed in having the Court make such an order, Hauv's Rigging needs to satisfy the Court that the setting aside of the judgment and allowing Leightons' liability to remain in issue as between the defendants would facilitate the just, quick and cheap resolution of the real issues in the proceedings in accordance with s 56 of the Civil Procedure Act.
It argued that Hauv's Rigging must establish by provable facts, an arguable case on liability against Leightons. Leightons also submitted that it was not sufficient to merely establish a desire to seek contribution through its cross‑claim. As authority for this proposition, Leightons drew attention to the judgment of Hidden J in Pandurevic v Southern Cross Constructions (NSW) Pty Limited & Ors (No 1) [2011] NSWSC 1695.
Leightons also submitted that, in circumstances where Hauv's Rigging was asking the Court to set aside a judgment entered into in accordance with an agreement between the plaintiff and Leightons, the Court must be satisfied that there was a proper basis on which Hauv's Rigging would be entitled to a contribution from Leightons. Leightons submitted that the evidence was inadequate to support any case against it. It further submitted that the pleadings could not without evidence adequately establish any case.
Leightons argued that to bring it back into the proceedings and to cause it to expend further costs in defending the case would be contrary to the interests of justice. Moreover, it submitted that such action would be contrary to the Court's overall interest in encouraging settlement and to the principle of finality in litigation.
Finally, Leightons pointed out that no party took immediate action to prevent the entry of the consent judgment during the three days which elapsed between notification of the Consent Judgment and it being entered into the Court's online system. It characterised Hauv's Rigging's action as, at best, reserving its position in relation to the issuing of any further cross-claims. However, having regard to the fact that the Court is required by r 36.16(3A) of the UCPR to determine Hauv's Rigging's application as if judgment had not been entered, the delay between entry of judgment and the filing of Hauv's Rigging's Notice of Motion is irrelevant.
In all of those circumstances, Leightons submitted that Hauv's Rigging has not persuaded the Court that it should exercise the discretion pursuant to r 36.16(3A) in its favour.
Some factual material was put before the Court on the question of whether or not Hauv's Rigging had established an arguable case of the kind which Leightons contended for, even though it was not accepted by Hauv's Rigging that it needed to demonstrate by evidence the existences of such a case.
The decision in Pandurevic does not seem to me to be authority for the proposition that in the circumstances where here exist, Hauv's Rigging must establish by provable facts the existence of an arguable case on liability against Leightons. In that case, at quite a late stage in the proceedings, and shortly before they were due to be heard, having had an earlier hearing date vacated, one of the defendants sought to file a cross-claim seeking indemnity or contribution from the other defendant with respect to the plaintiff's damage. That cross‑claim was out of time. Accordingly, an extension of time was required.
As well, at the same time as this was being argued before the Court, the Court was being asked to defer judgment being entered with respect to an agreement between the plaintiff and the party which was sought to be made a cross-defendant in the proceedings.
In that case, it seems to have been accepted by the parties that it was necessary to show, by provable evidence, that the cross-claim was an arguable one. The Court did not discuss any authority which determined that that was an essential step in the consideration of the issues before it. The judgment of Hidden J dealt with the issues which were posed by the parties for his consideration.
Conventionally, when an extension of time has been sought either for commencement of proceedings or, alternatively, to file a document such as a cross-claim, the Court in considering whether it is in the interests of justice to allow the extension of time will require that it be satisfied that the grant of an extension of time would not be futile because the claim to be advanced could not succeed.
Consistently with other interlocutory applications, in my view the correct approach in circumstances such as these is to ask whether the party seeking that the Court exercise a discretion in its favour by the seeking of orders demonstrate for the Court's consideration of the interests of justice that if the order were made, the cross‑claim which is proposed to be pursued would not be futile.
In considering that test, the first step is to accept the concession made by senior counsel for Leightons that no objection could be taken to the terms of the pleading of the cross-claim which, on its face, properly pleaded the cause of action being relied upon. In other words, the pleading could not be the subject of either a striking out application or a summary dismissal.
The evidence which was tendered established that the plaintiff was working at the site where Leightons was undertaking a principal contract to construct a paper mill. It established that when he arrived on the site, the plaintiff was given an induction by Leightons which no doubt included matters of safety.
The plaintiff's statement gives a description of what occurred, which, if established at a hearing, would indicate an unsafe system of work and the provision of inadequate equipment to enable the particular specified task to be carried out in the time required. It would also indicate that directions given to the plaintiff by Mr Steve Boyd were themselves negligent and in breach of the duty owed to the plaintiff.
According to the affidavit of Mr Hawkes, the solicitor for Coastwide, evidence will be available at trial from employees of Coastwide to prove that work tasks on the site were allocated each day by Leightons' supervisors. This allocation was carried out during "tool box meetings" held every morning and occasionally at other times during the day. As well, it is anticipated by Coastwide that it will adduce evidence that Leightons was responsible for the provision of generic Safe Work Method Statements for completion of each task on-site and that, when other contractors completed Safe Work Method Statements and/or Risk Assessments for the task upon which they were engaged, those statements and assessments were reviewed and approved by Leightons. This is evidence permits the conclusion by the inference that work could not take p[lace in the absence of an approved Safe Work Method Statement.
Coastwide will adduce evidence at a hearing that whilst Mr Steve Boyd was employed by Hauv's Rigging, he was at all times under Leightons' control and was obliged to act in accordance with Leightons' directions.
As well, the affidavit of Mr Simon Hauville, who was at the time of the plaintiff's accident the Managing Director of Hauv's Rigging, contains the following statement about Mr Boyd's position: "Stephen Boyd was hired to Leightons as a supervisor initially on day shift and then when required, on night shift. The terms of hire was an agreed weekly amount based on agreed hours and an hourly rate for hours exceeding this. This was a gentleman's agreement between Hauv's Rigging and Leightons."
The context in which this proposed evidence will be received is that because Hauv's Rigging is no longer trading, the paperwork supporting these statements may not be readily available.
It is necessary to keep in mind that this Court is not conducting the final hearing into the Cross-Claim. Nor is it conducting an interlocutory hearing which would result in the making of any findings of fact with respect to what occurred at the workplace where the plaintiff was injured. On the contrary, it is engaged in the evaluation of whether or not the interests of justice are such as to fall in favour of the orders sought being made.
One step in that evaluative decision is a consideration of whether allowing the Cross-Claim to proceed would be futile. The evidence which is before the Court allows it to readily conclude that it would not be futile. The evidence establishes, if it is ultimately led and accepted, that the circumstances of the plaintiff's injury came about as a result of a breach of safety in the workplace. A task was given to the plaintiff to complete under a time pressure which, with the equipment provided, he could not complete safely.
Leightons was the principal contractor on site. It oversaw, and provided, the induction process. The content of that induction process is not before the Court. The Court should infer that it was a full and complete induction process to the site, including safety requirements. As well, there is evidence that Leightons reviewed and approved Safe Work Method Statements and Risk Assessments. There is some evidence that Leightons employed the supervisor and gave him directions and that he was working under its control. Whether or not this is what is ultimately proved is not to the point.
The totality of the evidence persuades me that the Cross-Claim is not futile. I am also persuaded that there is an arguable cross-claim against Leightons for contribution for such damages as the plaintiff may recover from any of the other defendants.
There is no reason for the Court to set aside the agreement reached between the plaintiff and Leightons to resolve the matter on the terms which they have agreed. No party sought that result. What was sought by Hauv's Rigging was that the judgment be set aside and the entry of it deferred until after the determination of the Cross-Claim.
The matters which the Court must balance are, on the one hand, the right of Leightons and the plaintiff to resolve the issues between them at a time and in a manner of their choosing, consistent with the Court being able to finally dispose of the matter in accordance with the manner which they propose. As well, it is in the interests of justice that parties are free to resolve their disputes and to implement their resolution in a binding way as and when they choose, and at an early time in litigation. Leightons pointed to the fact that there would be additional costs which it must incur if it is not allowed to maintain the judgment as entered, thereby finalising its involvement in the proceedings.
On the other hand, Hauv's Rigging submitted that the agreement, in accordance with the terms chosen by the plaintiff and Leightons, has the direct effect of preventing it from pursuing its Cross-Claim. In other words, it puts that that agreement has a final and prejudicial effect on its rights to enforce its Cross-Claim.
To the extent that Leightons might otherwise incur costs, counsel for Hauv's Rigging accepted that such detriment as existed could properly be addressed by an order for security for costs as a condition of the setting aside of the judgment.
Putting it shortly, Hauv's Rigging submitted that it ought not have rights, which it argues are available to it, determined adversely to it before it has had a chance to have the Court hear and determine its claim. That is in circumstances where it has not consented to the orders being sought.
This is an evaluative exercise by the Court, upon the result of which minds may differ.
However, I am of the view that the judgment must be set aside and Hauv's Rigging must have the opportunity of pursuing its Cross-Claim. A condition of those orders is that it must provide security for costs.
It seems to me that, having regard to all of the factors, the interests of justice are best served by allowing parties to advance such claims as they wish in an orderly fashion and have them determined by a court of appropriate jurisdiction. Whilst it is in the interests of justice that parties are free to negotiate a resolution of claims against them, and to have finality brought to litigation in which they are engaged, that right does not prevail in all circumstances over the rights of other parties. Here there is no reason to think, and no suggestion by the plaintiff and/or Leightons that the plaintiff will attempt to resile from the agreement which he has with Leightons if judgment is not permitted to be entered. There is no reason to think, on the material before the Court, that the agreement between the plaintiff and Leightons does not remain binding. Particularly would this be so once the proceedings commenced to be heard because by that stage, at the latest, and probably much earlier, Leightons will have acted upon the basis of the agreement to its detriment.
In those circumstances, and given that the agreement was negotiated between lawyers for each of the parties and on its face has a financial benefit to the plaintiff (being excused from the risk of having to pay Leightons' costs in the event that he is unsuccessful) then there seems to be no real reason to suppose that the agreement could be set aside even if the plaintiff sought for that to occur. Clearly, Leightons has no interest in moving to set aside the agreement. In those circumstances, it seems to me that the agreement between the plaintiff and Leightons is preserved even though judgment is not entered.
Balancing all of the components of the interests of justice, the avoidance of the determination of the Cross-Claim by Hauv's Rigging, through an agreement made between parties who are not party to it, suggests real unfairness to Hauv's Rigging. Thus, the balance falls in favour of making the orders.
It is for this reason that the orders sought by Hauv's Rigging will be made.

Motion of Coastwide

The Motion filed by Coastwide on 16 August 2016 was filed after the 14 day time period fixed by r 36.16(3A) of the UCPR had elapsed. In fact, about 14½ weeks had passed after judgment was entered, and before Coastwide filed its Motion.
Accordingly, the principal ground upon which Coastwide submitted that the Consent Judgment ought be set aside was pursuant to r 36.16(2)(b) of the UCPR.
In oral submissions, counsel for Coastwide put forward a second ground, namely the Court's power under r 2.1 of the UCPR. He submitted that the starting point for consideration of the issue was ss 56 and 58 of the Civil Procedure Act which, he argued, informed rr 2.1, 36.15 and 36.16 of the UCPR. Rule 2.1 of the UCPR empowers a Court to make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. He submitted that this included setting aside the judgment in Leightons' favour.
Dealing with the first ground, counsel indicated that Coastwide placed its reliance upon r 36.16(2) of the UCPR, on the basis that it had a right to be heard in relation to the entry of the Consent Judgment in favour of Leightons.
The arguments of Coastwide were in substance the same as those advanced by Hauv's Rigging on this issue. Counsel for Coastwide sought to draw support from the judgment of Spigelman CJ in BP Australia Ltd v Brown [2003] NSWCA 216 at [133]-[136]. I am not persuaded that the remarks of Spigelman CJ when dealing with orders under s 588FF(1) and (e) of the Corporations Act 2001 (Cth), and the procedure to be followed there, have any application to the present circumstances.
BP Australia dealt with an ex parte application to the Court which involved a hearing where one party needed to obtain an extension of time to bring proceedings which were otherwise statue-barred. The proper approach to that question required a discretionary determination by the Court as to what was fair and just in all the circumstances. Such determination required the Court, amongst other things, to consider the position of the party directly affected by the orders sought, which were not served with the application and which were not before the Court.
The position here is very different. First, the parties actually affected in a direct way, namely the plaintiff and Leightons, consented to the orders sought. Secondly, the orders sought did not require, as a matter of the UCPR, the consent of all parties before being entered by the Court. Thirdly, the entry of the orders did not require any discretionary decision on the part of either a Judge or Registrar of the Court prior to entry. Fourthly, Coastwide had notice of what was to occur and took no steps to seek any orders from the Court to protect such rights as it asserted it had.
On the issue of Coastwide's failure to take steps to oppose the entry of the Consent Judgment as discussed in Seltsam at [41], counsel for Coastwide could provide no explanation as to why his client did not take any action between receiving the email from Leightons at 2.53pm on 2 May 2016, and the entering of the Consent Judgment on 6 May 2016, nor his client's failure to take any steps in the ensuing lengthy period.
However, counsel for Coastwide did make the submission that Leightons, in their email to the defendants at 2.53pm on 2 May 2016, failed to seek Coastwide's consent and failed to provide Coastwide with a reasonable opportunity to indicate its position on the Consent Judgment. Counsel then submitted that this conduct constituted a denial of procedural fairness.
However, this submission is without merit. Leightons was not required to seek Coastwide's consent. There was sufficient time for an application to be made by Coastwide to the Court or for it to take any other steps by correspondence as may have been necessary to protect its position.
Coastwide has not persuaded me that it has established any basis for a conclusion in accordance with r 36.16(2)(b) of the UCPR, that the Court ought set the judgment aside because it was entered in the absence of a party. My reasons for reaching this conclusion are the same as those expressed with respect to Hauv's Rigging's application under the same sub-rule. Those reasons, which are set out at [75]-[79] above, apply equally here.
Coastwide made one further submission to the effect that apart from the specific provisions of r 36.16 of the UCPR, the Court had a general power which was unfettered to set aside the judgment.
In making this submission, Coastwide referred the Court at least indirectly, and without any real precision, to s 23 of the Supreme Court Act, which defines the jurisdiction of the Court in the following terms: "The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales."
Section 23 of the Supreme Court Act has been held to be closely related to the inherent jurisdiction of the Court: Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 617-618. In turn, the inherent jurisdiction of the Court has long been acknowledged to be incapable of being confined to defined categories: see Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 at 361; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 16.
As McClelland J said in Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 at 287: "Since it rests on necessity for the purpose of preventing injustice, the extent of the power is commensurate with the requirements of the necessity which calls it into existence."
Despite this seemingly unlimited ambit, it is an established principle of the common law that the Court's inherent power, which extends to the power to vary judgments and orders, cannot be used to reopen a case to alter the substantive conclusions reached: see Raulfs v Fishy Bite Pty Ltd (No 3) [2013] NSWSC 1732 at [17] and the cases cited therein.
No party referred to any decided authority which supported the proposition for which Coastwide contends. The Court through its own researches has not found any recent civil case in this jurisdiction where a party has successfully invoked the Court's general jurisdiction including its inherent jurisdiction, instead of the UCPRs, to set aside a judgment.
By analogy, it would be a surprising result if a party were permitted to invoke the Court's inherent jurisdiction to set aside a judgment regularly entered, when that party failed to take affirmative action in a reasonable timeframe to protest against that judgment, and where that failure to act with due dispatch caused it to fall afoul of the provisions of the UCPR which deal specifically with such matters.
The anomaly of this result is supported by a number of propositions. First, to permit the Court's inherent jurisdiction to supersede the rules of Court tends against the maxim of generalia specialibus non derogant, which mandates that where there is a conflict between general provision and a specific provision, the specific provision (in this case, the UCPR) must prevail.
Secondly, a consideration of the dictates of justice in this case leads to the conclusion that to enable Coastwide to set aside the Consent Judgment between the plaintiff and Leightons would be contrary to the interests of justice as between the plaintiff and Leightons. This is because, consonant with the principle of the finality of litigation (which informs the power to set aside judgment under the UCPRs and the common law), the plaintiff and Leightons were entitled to conduct themselves on the assumption that, following the entry of the Consent Judgment between them and after the expiry of the 14 day period provided for by the UCPRs, and absent any irregularity, illegality or bad faith, the Consent Judgment was binding and effective.
To use the words of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302, the public interest in the finality of litigation will only be compromised in exceptional circumstances, "when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law." No such exceptional circumstances exist in this case.
Moreover, to permit the judgment to be set aside some 14 weeks after it has been validly entered, by a party who indicated no opposition to that judgment when notice was given of it, undermines the entitlement of parties to be assured that Consent Judgments, once entered in the circumstances noted above, are binding and effective as between those parties. To accede to Coastwide's submission that the Court's general jurisdiction empowers the Court to set aside the Judgment in the circumstances articulated would institute a level of uncertainty into case management and litigation which is fundamentally at odds with the overriding purpose as expressed in s 56 of the Civil Procure Act and the principle of finality in litigation, and would undermine both the judiciary's and all parties' interests in resolving proceedings without having to resort to litigation.
Accordingly, for these reasons, I am not persuaded that the Court's inherent jurisdiction ought be available to Coastwide grant the order which it seeks.
Coastwide did not argue that the judgment which was entered would be ineffective against it, in circumstances where its Motion failed, but Hauv's Rigging's Motion succeeded. Nor did it argue that if the judgment was set aside at the suit of Hauv's Rigging, with respect to its cross-claim against Leightons, then it was automatically set aside with respect to its cross-claim against Leightons. Although counsel for Coastwide did argue that his client would suffer significant injustice if the judgment was not effective against Hauv's Rigging but if it was effective against his client.
However, the consent judgment which was entered was a single judgment in the principal proceedings between the plaintiff and each of the four defendants. It was a judgment which directly determined the claim of the plaintiff against Leightons. The terms of the judgment had the effect as a matter of law that no cross-claim based on the Law Reform (Miscellaneous Provisions) Act can succeed because Leightons is not a tortfeasor within the meaning of that term in the legislation. It seems to me that one cannot regard the judgment as divisible in any way. That is, it is a judgment which can be set aside in part - namely, only insofar as it may affect that interest of Hauv's Rigging, but not insofar as it effects Coastwide.
Accordingly, although Coastwide's Motion must be dismissed, it will in fact benefit from the success of Hauv's Rigging on its Motion.

Orders

The Court makes the following orders: 1. The consent judgment entered on 6 May 2016 in favour of Leightons with respect to the plaintiff's claim is set aside. 2. Order that the consent judgment dated 6 May 2016 between the plaintiff and Leightons not be entered until further order of the Court. 3. Note that the proceedings between the plaintiff and Leightons have been resolved by agreement between them on the terms set out in the consent judgment dated 6 May 2016. 4. Order that Hauv's Rigging Pty Ltd is to provide security for costs of its cross-claim against Leightons within 28 days of agreement between the parties of the amount for such security, or in such sum as may be determined by the Court. 5. The Motion of Hauv's Rigging filed on 19 May 2016 be otherwise dismissed. 6. Costs of Hauv's Rigging's Motion filed on 19 May 2016 be costs in the cause. 7. Notice of Motion of Coastwide filed on 16 August 2016 is dismissed. 8. Coastwide is to pay Leightons' costs of its Notice of Motion. 9. Liberty to apply on 3 days' notice.

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: 12 October 2017

Work Health and Safety Regulation 2011(NSW)

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