Kwiatkowski v Plum Pictures Limited & Anor.

Supreme Court of NSW|2023-02-28|Before: Chen J

JUDGMENT EX TEMPORE

This is an application, by Notice of Motion filed 9 September 2022, brought by the second defendant for an order that the plaintiff's amended statement of claim be summarily dismissed or, in the alternative, struck out.
The second defendant has read an affidavit of Julian McGrath sworn 9 September 2022 in support of the application ('McGrath affidavit'). The plaintiff relied upon an affidavit of Katarina Healey sworn 7 October 2022.

The accident circumstances

The plaintiff commenced proceedings, by way of statement of claim filed 18 February 2019, seeking damages for injuries that she suffered on 19 February 2016 when she slipped and fell backwards on a boat ramp at Little Manly Beach in Manly, NSW.
On the day of the accident, the plaintiff was working on the production of a television series known as "Lord of the Fries". At that time the plaintiff was working in the role of a "runner", and her injuries occurred whilst she was performing that role on the set of that production.
The first defendant, Plum Pictures Limited, was the production company of the television series, and engaged Michelle Thomas - the second defendant - to assist on the production, including to act "as a conduit by distributing its instructions to its other contractors" (second defendant's submissions at [7]). It appears that service on the second defendant was unable to be achieved - possibly for some extended period of time - and ultimately an order for substituted service was made.
On 20 April 2022, the plaintiff filed an amended statement of claim ('the ASOC'). The first defendant filed a defence to that claim on 5 July 2022.
The second defendant has not filed a defence to the amended statement of claim - nor to the earlier version of it.
It appears, following the accident, that the plaintiff pursued a claim for workers compensation benefits. That claim was accepted, and according to the solicitor for the second defendant, the workers compensation insurer "accepted the first defendant as the plaintiff's employer or deemed employer": McGrath affidavit at [7]. I take this to be a reference to the provision which deems certain contractors to be workers of the principal: see cl 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

The allegations in the ASOC

It is necessary to make reference to the way the case has been pleaded by the plaintiff against both defendants. The relevant paragraphs of the amended statement of claim are: 1. On or about 18 February 2016, the plaintiff was engaged by "the First Defendant's servant and/or agent, the Second Defendant" to provide services to the first defendant during the filming of the television production: ASOC, par 6. 2. The operations on the set were under the care and control of either the first defendant or, in the alternative, the second defendant: ASOC, pars 7 and 8. 3. That whilst working on the set, the "First and/or Second Defendants had assumed control and supervision of the Plaintiff so as to be the Plaintiff's employer pro hac vice and owed the plaintiff a non-delegable duty of care": ASOC, par 9. 4. Further "and in the alternative, at all material times the First and/or Second Defendant having assumed the care, control and coordination of the Operations being conducted … and the engagement of various persons … the First and/or Second Defendants thereby owed a duty of care to the plaintiff …": ASOC, par 10.
The plaintiff has argued that, based upon the allegations in the ASOC, the case being propounded by her against the second defendant is that, for the purposes of the work that she was doing on the film set, she was under the supervision and control of the second defendant and that the duty of care that is owed by her derived from, at least in part, these matters (plaintiff's submissions at [9]).

Dismissing or striking out pleadings: the principles

The second defendant seeks an order under rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') - it is said that no reasonable cause of action is disclosed - and, in the alternative, pursuant to rr 14.28(a) and (c) - it is also said that no reasonable cause of action is disclosed and that the proceedings otherwise have a tendency to cause prejudice, embarrassment and delay.

The rules and principles: a short summary

Rule 13.4(1) of the UCPR provides: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-- (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
The approach to take, and the principles to apply, in determining whether summary relief is appropriate, pursuant to this rule, are well-known: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69. It is sufficient simply to note that an order of that kind is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.
Rule 14.28(1) of the UCPR provides: 14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3) (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading-- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court.
When a pleading is "unintelligible, ambiguous, vague or too general", the rule typically employed in those circumstances is r 14.28(1)(b): Gunns Ltd v Meagher [2005] VSC 251 at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20.
I turn now to consider the second defendant's arguments.

The second defendant's arguments for relief: discussion

As argued by the second defendant, the complaints made that are said to justify summary relief are two overlapping matters: 1. First, that it is difficult to discern on what basis the second defendant is said to have owed the plaintiff a duty of care (second defendant's submissions at [27]). 2. Secondly, that if the allegation is that the duty was owed as employer or principal contractor, that was "a premise not only denied but a premise which the Plaintiff and Plum Pictures are estopped from asserting" (second defendant's submissions at [29]).

The party who engaged the plaintiff

The first argument raised by the second defendant is that it is "difficult to discern" on what basis the second defendant is alleged to owe the plaintiff a duty of care and, in furtherance of this argument, the second defendant argues that it appeared to her that the plaintiff was arguing that the duty was owed by her "in the capacity of employer or principal contractor" (submissions at [27]-[28]).
In my view it is quite clear from the ASOC that the plaintiff does not allege that the second defendant was her employer. The fact that the plaintiff alleges that, at least in the alternative, the second defendant was the plaintiff's employer pro hac vice emphasises as much. There is no difficulty in pleading that there is an employer, as well as an employer pro hac vice: Hallmark Construction Pty Ltd v Brett Harford (2020) 294 IR 359; [2020] NSWCA 41 at [80]ff; or that a party has assumed a relationship giving rise to a duty that is analogous to the duty owed by an employer to an employee: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; Williams v Metcash Trading Ltd [2019] NSWCA 94.
The second defendant then argues that, based upon the suggestion that the plaintiff's claim involves - or might be taken to involve - the first defendant being the plaintiff's principal, the claim "cannot succeed at law". So far as I understand the argument, that is because the plaintiff may have received workers compensation payments on the basis that the first defendant was a principal, and on that footing an estoppel arose that precludes the success of the plaintiff's claim against the second defendant (submissions at [30]-[33]).
In my view there are a number of matters that stand against acceptance of these submissions.
First, it is important to emphasise that in no paragraph in the ASOC is there an allegation that the relationship between the plaintiff and the first defendant was one of principal and contractor. For example, par 6 of the ASOC merely alleges that the plaintiff was engaged by "the First Defendant's servant and/or agent, the Second Defendant". Nor, for that matter, is that allegation made against the second defendant.
Secondly, the case that is plainly put against the second defendant is additional to the one put against the first defendant and, to be clear, the duty that is said to be owed by the second defendant is based - amongst other matters - upon the second defendant having "assumed control and supervision" of the plaintiff so as to become the plaintiff's employer pro hac vice or "assumed the care, control and coordination of the operations being conducted" on the set: ASOC, pars 9 and 10. There is, in my respectful view, no inconsistency in what is pleaded, contrary to what has been argued - and it is quite open for the plaintiff to allege as much, even if the relationship between the plaintiff and first defendant were that of principal and contractor.
Thirdly, even if it be the case that, as a consequence of what has occurred in connection with the plaintiff receiving workers compensation payments, there is taken to be a "deemed" relationship between the plaintiff and first defendant - being that of principal and contractor - there is no basis to exercise any form of summary relief. That is because the evidence that the second defendant adduced did not establish that the receipt of workers compensation payments was a consequence of there being a deemed relationship of principal and contractor - the evidence is neutral as to the basis on which those payments were made; if anything the evidence in fact proved, upon this application, that the relationship was either one of employment or deemed employment, and the payments were made accordingly. Mr Simone argued that it would depend upon an inference being drawn. That is not an inference that I am prepared to draw - and certainly not on an application of this kind. The premise of the second defendant's argument is therefore not established. In any event, even if, perhaps, there be some doubt about this - in my respectful view there is not - then it is clearly not a case for summary relief particularly when (a) the pleading of an estoppel would be a matter to be raised by the second defendant in a defence to be filed; and (b) there is a live question about its correctness and that pleading (and issue) would inevitably be contested, as the plaintiff submitted. No basis exists for summary relief to be exercised in connection with the so-called estoppel issue.
The second defendant also argues that "there does not appear on the face of the pleading any articulated basis on which a duty of care is alleged to arise" or, if it has been articulated, it is "not clearly discernible" to the second defendant (second defendant's submissions at [34]). I respectfully disagree.
In my view the pleading clearly identifies the basis for the imposition of the duty of care. It is expressly done so in pars 9-10: it is there alleged that by reason of the second defendant "being responsible for the care, control and direction of the operations" on the set, and having assumed "control and supervision of the plaintiff" there was a duty analogous to that of an employer owed (ASOC, par 9) or a duty of care "to ensure a safe system of work in respect of the conduct, coordination and interaction of the activities of those persons" on the set (ASOC, par 10).

Other defects in the pleadings

The second defendant has also submitted that there are specific defects in the form of the ASOC that justifies summary relief.
The first is that, in relation to ASOC, par 19, the second defendant complains that the plaintiff has not differentiated between the defendants in connection with the particulars of negligence (submissions at 39). The second defendant submits that many of the particulars are "more properly directed" at the first defendant. That may well be so, but it is not a basis to require the plaintiff, in advance of the hearing, to abandon particulars or to strike them out on an application such as this.
The second is that the ASOC refers to the second defendant being the "servant and/or agent" of the first defendant, which, so the second defendant has argued, creates uncertainty and confusion as to whether the allegation relates to the second defendant or potentially others who might meet that description (second defendant's submissions at 39). In my view, as a blanket proposition, there is no uncertainty or confusion created to all paragraphs where that phrase is used: see, for example, ASOC, pars 7 and 8. In my view, no such confusion could there arise.
Another example is ASOC, par 11. In relation to that paragraph, although I consider that it is sufficiently clear that the "servants or agents" referred to are servants or agents of each of the defendants, but not including the named defendants, I accept that some possible uncertainty could be created by that allegation. A further example is ASOC, par 26. That was the subject of some attention during argument. By that paragraph, the plaintiff alleges that "servants and/or agents" of the first defendant were negligent in failing to comply with a maritime notice; yet no particulars of the "servants and/or agents" are provided nor does the pleading make clear whether the allegation extends to the second defendant directly or vicariously. It is desirable for these allegations to be made clear, and I propose to make orders about this.
The third is that the reference in the ASOC, par 15 - the paragraph which deals with the risk of harm - to the 'defendant', when there are proceedings involving multiple defendants, was submitted to be "unintelligible and ambiguous so as to be embarrassing" (submissions at 39). In my view that is in context a minor omission - self-evidently it should refer to both defendants - and does not warrant, of itself, any relief.

The further matters raised by the second defendant

The plaintiff prepared written submissions and, following receipt of them, the second defendant has argued, based upon them, that the case appears to be one that is for work injury damages, within the meaning of s 250 of the Workplace Injury Management and Workers Compensation Act - with the consequences that the various pre-trial procedures are required to be complied with prior to commencement of the proceedings, but have not been.
In my view, that is not what the plaintiff submitted; rather, the plaintiff merely clarified that, to the extent any clarification was needed and consistent with ASOC par 9, the plaintiff alleges that the second defendant owed an employer-like duty of care. It is not wider than that, as the plaintiff confirmed during submissions.

Orders

For the above reasons I make the following orders: 1. Dismiss the second defendant's Notice of Motion filed 9 September 2022. 2. Order that the plaintiff provide particulars to the defendants identifying with precision, in connection with each and every reference to the phrase 'servants and/or agents' where it appears in the amended statement of claim filed 20 April 2022, the 'servants and/or agents' referred to, with such particulars to be provided on or before 14 March 2023, 5pm. 3. Order the second defendant to file and serve its defence to the amended statement of claim filed 20 April 2022 on or before 11 April 2023, 5pm. 4. Direct that the matter be listed for directions before the Common Law Registrar, specifically to include orders for the preparation of the defendants' evidence, on 18 April 2023. 5. Order that the costs of the second defendant's Notice of Motion be costs in the cause. 6. Vacate the directions hearing listed before the Common Law Registrar on 20 March 2023.

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: 01 March 2023

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