Hore v Parklands Albury Wodonga Limited

PARTIES : Hayden Mark Hore (Plaintiff) Parklands Albury Wodonga Limited (Defendant)

COUNSEL : I D M Roberts SC with A J Black (Plaintiff) J E Maconachie QC with C L Thompson (Defendant)

SOLICITORS : Walsh & Blair Lawyers (Plaintiff) Carroll & O'Dea (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/289593 Hayden Mark Hore v Parklands Albury Wodonga Limited

JUDGMENT 1 HIS HONOUR: These are two notices of motion filed respectively by the plaintiff and the defendant. By his notice of motion the plaintiff seeks leave to amend his amended statement of claim in the form of a further amended statement of claim, which is annexed to an affidavit of his solicitor Timothy James Abbott sworn 10 March 2010. The defendant seeks leave to amend its defence in order to rely upon s 42 of the Civil Liability Act 2002. In the events that have occurred, the defendant's application has become uncontroversial but the plaintiff's application has not. Background 2 On 11 November 2006 the plaintiff was catastrophically injured when he swung from a rope attached to a tree located adjacent to the southern shore of the Murray River in which he landed, striking his head on the riverbed. The tree is to be found in or adjacent to a reserve, known as the Water Works River Reserve, on the Victorian side of the Murray River. The reserve is allegedly maintained by the defendant for public use as a swimming, picnicking and recreational area. 3 The contentious paragraphs of the proposed further amended statement of claim are in the following terms: 5A On and prior to 11 November 2006 the defendant was responsible for the management and maintenance of so much of the southern bank of the river adjacent to the reserve which was within New South Wales pursuant to an agreement with the Department of Natural Resources and Environment (NSW).

6A Alternatively, on or prior to 11 November 2006, a particular gum tree situated on the southern bank of the river, and immediately adjacent to the reserve, had affixed to it two ropes, one of which had attached to it a piece of wood.

6B In the further alternative, on or prior to 11 November 2006, a particular gum tree situated on the southern bank of the river, partly within the reserve, and partly on the southern bank of the river immediately adjacent to the reserve, had affixed to it two ropes, one of which had attached to it a piece of wood.

6C The land within the reserve provided the means of access which enabled people to climb upon trees within the reserve, and trees immediately adjacent to the southern bank of the river, and trees which were partly within the reserve, and partly on the bank of the river immediately adjacent to the reserve. 4 The plaintiff's original amended statement of claim had alleged that the defendant "had the care, control and management of a recreational reserve known as the 'Water Works River Reserve' … which was situated within the Wodonga Regional Park." It also pleaded that the reserve is situated adjacent to the Murray River with access to it via Water Works Road. Those allegations are not the subject of dispute for the purposes of the present application. 5 The defendant opposes the plaintiff's application to amend the pleadings upon the basis that it would be futile to allow the amendment because, in effect, no reasonable cause of action is disclosed. The significant matter in dispute arises from the as yet undecided factual issue of precisely where the tree is located in relation to the line of demarcation (to use a neutral expression) between Victoria and New South Wales. A photograph of the tree, which is annexed to Mr Abbott's affidavit, shows that it is clearly growing out of the southern bank of the Murray River but the photograph does not solve the technical or legal question of whether it grows in New South Wales or Victoria or partly in each State. 6 The defendant has emphasised that there is yet no evidence that there actually is an agreement as the plaintiff asserts in proposed paragraph 5A. The obvious impetus for the plaintiff's proposed amendments follows upon a discussion about this issue in recent correspondence between the solicitors for the parties, as well as from information on related matters provided to the plaintiff in other correspondence somewhat earlier. This needs to be looked at in the present context. 7 By letter dated 5 February 2010, Mr Abbott wrote to the solicitors for the defendant in which the following paragraph appears: "In the meantime will you please advise, as a matter of urgency, if your client is prepared to produce any agreement that it has with the Department of Natural Resource (sic) and Environment (NSW) and the Department of Sustainability and Environment (Victoria) in relation to the Waterworks Reserve and the areas adjacent to it." 8 The solicitors for the defendant replied by their letter dated 16 February 2010. The specific answer to the plaintiff's request was as follows: "(m) With respect to production of any agreement with the Victorian or New South Wales Departments to which you refer, we will seek instructions." 9 Somewhat earlier, on 15 August 2008 and prior to the institution of these proceedings, Mr Abbott wrote to the manager of the Council of the City of Wodonga foreshadowing that he had instructions to commence them. A copy of the original statement of claim was enclosed. Mr Abbott requested that the Council forward the correspondence and the proposed statement of claim to its insurer. 10 On 9 September 2008 Will Gwosdz, the risk management officer for the City of Wodonga, wrote to Mr Abbott in the following relevant terms: "We have forwarded the claim to our insurer, however, from our understanding the responsible authority for maintaining this reserve is Parklands Albury Wodonga under an agreement with the Department of Natural Resource (sic) and Environment (NSW) and Department of Sustainability and Environment.

I have forwarded letters to both the DSE and Parklands Albury Wodonga along with copies of your claim, therefore, we respectfully request that you pursue the claim through the aforementioned organisations.

I have requested both parties contact you accordingly," 11 This would appear to have happened because on 8 September 2008 Ivan Ciardullo, claims manager from Civil Mutual Plus, wrote a letter to Mr Abbott in the following terms: "Your letter dated the 15th day of August 2008, together with attachment, addressed to the Council of the City of Wodonga, has been passed on to us, as we are Council's public liability and professional indemnity insurer.

If you issue proceedings against the Council of the City of Wodonga, we advise that such proceedings will be issued against the incorrect defendant, as Council does not manage nor maintain the area in which your client sustained his injury.

Our investigations have disclosed that the tree in which the rope swing was placed at the time of your client's accident, was located inside the high water mark of the Murray River. As such, the responsible authority for maintaining same is a committee known as Parklands, which manages same under an agreement with the Department of Natural Resource (sic) and Environment (NSW). The adjoining land is Crown land which is also managed by Parklands under an agreement with the Department of Sustainability & Environment (Vic).

Council does not have anything to do with Parklands, or with the maintenance of the area in question. We understand that Council will be writing to you, confirming same and providing you with the contact details for Parklands.

Under the circumstances, we can only suggest that you redirect your demand to Parklands, who appears to be the proper respondent to your client's claim." 12 On 16 September 2008 Mr Abbott sought further information from Mr Ciardullo by his letter in the following terms: "We refer to your letter of 8 September 2008.

We understand that you are saying that the responsible authority was Parklands Albury Wodonga.

However, is Parklands Albury Wodonga also responsible for the adjoining reserve known as 'Water Works River Reserve'?

We look forward to hearing from you." 13 Mr Ciardullo replied to that letter on 24 September 2008 relevantly as follows: "According to our enquiries, Parklands is responsible for maintaining the whole of the reserve known as 'Water Works River Reserve', whether it be as Committee of Management for the DNRE (NSW) or the DSE (Vic)." 14 On 28 January 2010 senior and junior counsel retained by the parties conferred. Following that meeting Mr Maconachie of Queen's Counsel produced a memorandum, which was duly circulated. That memorandum apparently canvassed a number of issues to some of which reference is made in Mr Abbott's letter to the solicitors for the defendant dated 5 February 2010 referred to above. It is unnecessary for present purposes to refer to any of them apart from the paragraph that is quoted.

15 On 5 March 2010 Mr Abbott again wrote to the solicitors for the defendant in the following relevant terms: "Please supply us with any agreement between the defendant and the Department of Natural Resource (sic) and Environment (NSW) and/or the Department of Sustainability and Environment (Vic). Provide us with the documents that clearly exist and weren't produced under subpoena. We don't agree that the subpoena is spent or that it was an attempt at discovery. Plainly the documents that were the subject of the subpoena have been identified in the answers to interrogatories.". 16 Finally, that letter provoked a response dated 8 March 2010 that included the following paragraph: "With respect to the letter responding to our letter of 16 February 2010 and dealing with an alleged agreement between the defendant and the Department of Natural Resources and Environment etc, we do not see how any such agreement, if it were to exist, is relevant to any pleaded issue." Consideration 17 Although this application is being considered in the light of the plaintiff's application to amend his pleadings, it realistically falls to be determined by reference to issues more commonly considered on an application by a defendant pursuant to UCPR 13.4 or 14.28 concerning a pleading that arguably fails to disclose a reasonable cause of action. The principles to be considered in applications of that sort are well known and were recently considered by Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 at [36] - [39]. Those paragraphs are as follows: " Claim that No Reasonable Cause of Action Disclosed

[36] With respect to the Defendant's submissions that no reasonable cause of action is disclosed in certain respects in the proposed Amended Statement of Claim, I keep in mind the following principles which apply either directly or by analogy.

[37] A very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action is disclosed, and this power should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1965] ALR 636; Webster v Lampard (1993) 177 CLR 598 at 602-3; [1993] HCA 57. The test is not whether the Plaintiff would probably fail in his action against the Defendant, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. The fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial, and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a plaintiff to be shut out upon the basis that no reasonable cause of action is demonstrated, a high degree of certainty is required about the ultimate outcome of the proceeding, if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552 at 575-6.

[38] For practical purposes, the present Defendant undertakes the burden of establishing that there is no triable issue by contending that there is no reasonable cause of action so that the amendment ought not be allowed: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim, would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the plaintiff a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].

[39] The summary disposal procedure may be used even though a difficult question of law is invoked, and extensive argument is necessary to demonstrate that the case is so plainly untenable that it cannot succeed: General Steel at 130." 18 The defendant's complaint is that the proposed amended pleading alleges that the defendant was responsible for the management and maintenance of so much of the southern bank of the river adjacent to the reserve within New South Wales pursuant to an agreement with the Department of Natural Resources and Environment (NSW) but that the pleading does not particularise any such agreement. The defendant argues that the plaintiff ought to be required at this stage to bring forward evidence of the existence of any such agreement and of its relevant terms and conditions. Both parties acknowledge that so far that has not occurred. However, as a review of the preceding correspondence reveals, this is not for want of any attempts on behalf of the plaintiff to do so. Furthermore, so I am informed, subpoenas to each of the respective departments have been issued and are returnable on 1 April 2010. It remains to be seen what, if anything, those subpoenas will uncover. 19 In the meantime, according to the authorities, I am required to have regard to the test of whether the material presently before the Court demonstrates that the action, or in this case so much of it as consists in the proposed amendments to the pleading, should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. Whatever may be the frailty of the evidence about the existence or otherwise of the agreement upon which the plaintiff purports to rely, it cannot be said that there is no evidence about the existence of such an agreement. Whether or not that position changes on or after 1 April 2010 is presently a matter of speculation. 20 I am content to accept, in accordance with the urgings of the defendant, that serious and significant legal, not to say factual, issues will confront the plaintiff in this case. In my opinion, none of these issues is such as to demonstrate clearly that the plaintiff's case, even if amended as proposed, will necessarily be likely to fail. The defendant has the burden of establishing that there is no triable issue, contending that there is no reasonable cause of action, so that the proposed amendment ought not be allowed. As I have indicated, however, without in any way expressing a view about the possible or probable outcome of the proceedings generally, even if the plaintiff's prospects of success could hypothetically be characterised as slim, that would be insufficient to strike out the pleading if it were otherwise on foot. In the same way, it is also insufficient to defeat the plaintiff's application further to amend his statement of claim in the circumstances of this case. Orders 21 Accordingly, I grant leave to the plaintiff to amend his pleadings so as to rely upon the proposed further amended statement of claim, which for identification I will initial, date with today's date and place with the papers. 22 I also grant leave to the defendant to amend its defence in the form proposed. It will be obvious that that amendment will necessarily require attention to the additional changes to the statement of claim that I have allowed the plaintiff to make. 23 Unless there was a request from any party that I should otherwise order, it seems to me that the costs of these applications should be costs in the cause.

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