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Judgment

1. MACFARLAN JA: This is an application by Mr Stanislaw Kuzminski for leave to appeal against a decision of Olsson SC DCJ of 14 February 2020 by which her Honour, pursuant to Uniform Civil Procedure Rules ("UCPR") r 13.4, dismissed Mr Kuzminski's proceedings against the present first respondent and, pursuant to UCPR r 14.28, struck Mr Kuzminski's statement of claim out so far as it related to the remaining defendant, the present second respondent.
2. Her Honour noted that Mr Kuzminski had no objection to the present first respondent being removed as a party to the proceedings and that position was confirmed by Mr Kuzminski's counsel in this Court. Accordingly, the application for leave to appeal so far as it relates to the first respondent should be dismissed with costs.
3. In his District Court proceedings, Mr Kuzminski claimed damages against the two defendants in respect of injuries he suffered when attempting to install window blinds at Silverwater Correction Centre at the behest of one or other of them. Although he was not an employee of the second respondent (to which attention can be confined in light of the dismissal of the proceedings against the first respondent), he contends that the second respondent had a role in relation to the installation work which resulted in it assuming a relevant duty of care (see Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 at 47-48; [1986] HCA 1; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [24]). The primary judge concluded however that Mr Kuzminski's statement of claim did not adequately allege a cause of action founded on such a duty. Her Honour accordingly struck it out, but she nevertheless said in her ex tempore judgment that Mr Kuzminski should have the opportunity to replead. Moreover, after the judgment was delivered, Mr Kuzminski's counsel stated to her Honour that Mr Kuzminski wished to avail himself of the opportunity to replead.
4. Unfortunately her Honour's orders did not expressly grant Mr Kuzminski leave to replead although her Honour plainly intended that to be the case. Neither counsel alerted her Honour to the slip.
5. Subsequently, Mr Kuzminski's lawyers attempted to file an amended statement of claim but it was rejected by the District Court registry due to the absence of an order granting leave to replead.
6. At this point, in fulfilment of their duty under s 56(3) of the Civil Procedure Act 2005 (NSW) to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, the parties' lawyers should have cooperated with each other by signing a consent order granting Mr Kuzminski leave to replead and by asking the primary judge to make this order which was one her Honour undoubtedly had intended to make. At least for the reason that the proceedings remained on foot (her Honour not having dismissed the proceedings against the second respondent), it would have been open to the primary judge to do this.
7. In the absence of cooperation by the second respondent's lawyers, Mr Kuzminski's lawyers should, by notice of motion returnable before her Honour, have sought the leave which her Honour had intended to grant. Her Honour may have decided to require Mr Kuzminski to produce an adequately pleaded statement of claim before granting leave or alternatively granted leave and left it to the second respondent to apply to strike out the further statement of claim, if so advised. In any event the result would have been that the issue of the sufficiency of the draft pleading would have been in the appropriate forum for its, at least initial, determination, namely the District Court.
8. Unless and until the District Court reached a point in its consideration of Mr Kuzminski's statements of claim at which it was satisfied that he had no viable cause of action and that his proceedings should be dismissed, there was no occasion for Mr Kuzminski to make an application for leave to appeal to this Court. His claim against the second respondent had not been dismissed and he could not reasonably have anticipated that this Court would grant leave to appeal against her Honour's order striking out his statement of claim, particularly when his counsel had informed the primary judge that Mr Kuzminski wished to avail himself of the opportunity to replead. Indeed, it seems from his Summary of Argument in this Court that the reason an application was made to this Court was that his lawyers were acting under a misapprehension that the proceedings against the second respondent had been dismissed. They should not have had that misapprehension as the second respondent was of course represented when judgment was delivered in the District Court.
9. What I have said thus far is sufficient to require dismissal of the application for leave to appeal to this Court. It will be for the District Court to consider the adequacy of any further iterations of the statement of claim proffered on behalf of Mr Kuzminski. It is appropriate however to recall Kirby P's observation as follows in Wickstead v Browne (1992) 30 NSWLR 1 at 5: "Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle."
10. In Ea v Diaconu [2020] NSWCA 127 at [67], White JA noted, after quoting this paragraph, that Kirby P was in dissent in Wickstead v Browne "but his judgment was upheld by the High Court when it granted special leave to appeal and immediately allowed the appeal ((1993) 10 Leg Rep SL 2).
11. In the present case, Mr Kuzminski seeks to found his cause of action on the following principle stated in Leighton Contractors v Fox at [62]: "In Stevens v Brodribb Sawmilling Co Pty Ltd Mason J explained that if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work and where there is a need for direction and co-ordination of the various activities being undertaken, the entrepreneur will come under a duty to prescribe a safe system of work."
12. In the statement of claim which was struck out, he alleged that the second respondent "had control of the way in which the work was to be performed" and in a further draft of the statement of claim which has been provided to the Court he makes various new factual assertions and alleges inter alia that the second respondent "[a]ssumed responsibility for the manner in which the work was to be performed". Whether this, or any further iteration of the statement of claim, can survive a strike out application will be a matter for the District Court. I note however that any decision to summarily dismiss Mr Kuzminski's proceedings would have to be approached with "'great care' and 'exceptional caution' in order to ensure that [Mr Kuzminski] is not improperly deprived of the opportunity to pursue litigation in the ordinary way" (Ea v Diaconu at [18]).
13. I turn now to consider whether any costs order should be made in relation to the application for leave to appeal so far as it relates to the second respondent.
14. Mr Kuzminski is not in my view entitled to a costs order because, for the reasons given above, his application was unnecessary and inappropriate. Nor do I consider that a costs order should be made in favour of the second respondent. Its counsel was present when reasons for judgment were given and orders made in the District Court and was therefore aware that the orders did not fully reflect the primary judge's intentions. Despite this, the second respondent did not in the correspondence between the parties' lawyers which commenced soon after Mr Kuzminski's application for leave to appeal was filed make any unqualified offer to consent to an order rectifying the slip in the District Court orders.
15. Other aspects of that correspondence, including the recoverable costs said to have been incurred on behalf of the first respondent, which would almost certainly be a small fraction of the $19,000 claimed, are less than satisfactory. As pointed out in the first respondent's understandably very brief submissions in this Court, the appropriateness of the primary judge dismissing the claim against it was effectively conceded to her Honour. For that reason, the first respondent's submissions did no more than refer to that concession and the uncontradicted evidence on which it was based, and adopt the second respondent's substantive submissions. Such significant work as was done on behalf of the respondents on appeal was thus done principally on behalf of the second, rather than the first, respondent.
16. For these reasons, I propose the following orders: 1. Application for leave to appeal dismissed with costs so far as the application relates to the first respondent. 2. Application for leave to appeal dismissed with no order as to costs so far as the application relates to the second respondent.
17. LEEMING JA: I agree with Macfarlan JA.
18. McCALLUM JA: I agree with Macfarlan JA.