Kwiatkowski v Plum Pictures Ltd

Judgment

1. HIS HONOUR: The plaintiff seeks to be granted leave to file an Amended Statement of Claim, which is Annexure B to the Affidavit of Katarina Healey, sworn 3 September 2021. The original Statement of Claim was filed on 18 February 2019. The first defendant objects to proposed amendments at [20]-[32] of the proposed Amended Statement of Claim (hereinafter also called "the Proposed Statement").
2. The plaintiff, Ms Anne Kwiatkowski, claims that she was employed in 2016 by the second defendant, Michelle Thomas, trading as Rapid Environment Response Unit (hereinafter "RERU"), as an agent of the first defendant, Plum Pictures Limited (hereinafter "Plum Pictures"), which is a company incorporated in the United Kingdom.
3. The plaintiff was engaged to work on the production of a television series at the relevant worksite in Manly. The plaintiff claims that, on 19 February 2016, she was injured whilst moving "gear". The plaintiff was, at the time, in the water on a boat ramp, waiting to load the gear onto a boat, as instructed. It was due to the slippery surface of the ramp that the plaintiff fell backwards and landed onto her outstretched arms.
4. As a result of the fall, according to the plaintiff, she sustained injuries to her wrists and back, the particulars of which are contained at paragraph 19 of the Proposed Statement. The plaintiff claims that she has continuing disabilities as a result.
5. The plaintiff commenced proceedings by filing a Statement of Claim, as earlier indicated, on 18 February 2019. The primary claim of the plaintiff against the first defendant, being that it failed to provide a safe workplace, is framed in terms of ss 5B and 5D of the Civil Liability Act 2001 (NSW). [1] The plaintiff supplies particulars of the alleged negligence. [2]
6. There have been a number of occasions in which the Court has sought to establish a timeline for the filing of documents by the plaintiff. The plaintiff has failed to comply with those time directions on a number of occasions.
7. On 29 July 2020, the plaintiff, by Motion on notice, sought additional time to serve additional medical and economic loss evidence. On 24 August 2020, the Court granted leave to serve material, ordered costs in favour of the first defendant, and stood the matter over for Directions on 28 September 2020. [3]
8. On 24 August 2020, the plaintiff filed a Notice of Motion seeking substituted service on the second defendant, a matter which is still not resolved. The first defendant does not wish to be heard in opposition to that order. [4]
9. On 1 April 2021, the Court ordered that the plaintiff file and serve updated Part 15.12 particulars by 27 May 2021. [5] On 4 June 2021, the Court ordered, amongst other things, that the plaintiff file and serve evidentiary statements, updated Part 15.12 particulars and further supplementary reports by 16 June 2021. [6] The plaintiff served an initial Amended Statement of Particulars with an evidentiary statement on that date.
10. On 25 June 2021, the Court ordered the plaintiff to serve on the first defendant a Proposed Amended Statement of Claim within 21 days. The Proposed Amended Statement of Claim was served on the first defendant on 29 July 2021. [7]
11. On 26 August 2021, the Court ordered the plaintiff to file a Notice of Motion relating to the Amended Statement of Claim by 3 September 2021 and the first defendant to file any reply thereto by 17 September 2021. [8] The plaintiff filed the Amended Statement of Claim and supporting Affidavit on 4 September 2021.
12. As a consequence of the delay and necessity to amend documents, the Court has, on a number of occasions, ordered that the plaintiff pay the costs of the first defendant.
13. In the current Motion, as earlier stated, the issue in dispute is that the first defendant opposes the proposed amendments at [20]-[32] of the Proposed Statement. The first defendant does not oppose the balance of the proposed amendments.
14. The further claims contained in the contentious amendments are: a claim that the first defendant was in breach of s 19 of the Work Health and Safety Act 2011 (NSW) (hereinafter "the WHS Act") and in breach of some identified provisions in the Work Health and Safety Regulation 2017 (NSW) (hereinafter "the Regulations"); and, a claim that the first defendant was in breach of ss 13(a), 13(b), 13(c), 13A(1), 13A(2) and 99 of the Marine Safety Act 1998 (NSW).
15. As is obvious from the foregoing footnotes. The first defendant relies upon the Affidavit of Michael Edward France, sworn 17 September 2021, and has filed written submissions, dated 8 March 2022. The plaintiff relies on three Affidavits of Katarina Healey, sworn 4 September 2021, 29 September 2021 and 23 February 2022. The plaintiff filed its Outline of Submissions on 24 February 2021.

Plaintiff's Submissions

1. The plaintiff relies on the power conferred by s 65 of the Civil Procedure Act 2005 (NSW) to amend the Statement of Claim. The plaintiff claims that the proposed amendments are further particulars of an already existing cause of action pleaded in the Statement of Claim, filed 18 February 2019. Further, the following circumstances are submitted: 1. that the proposed amendments are a result of the finalisation of the plaintiff's Evidentiary Statement when new Counsel was briefed; 2. that the Amended Statement of Claim (the Proposed Statement) pleads substantially the same facts and does not allege any substantially different fact; and 3. that the amendments sought provide additional particulars of negligence.
2. The plaintiff submits that if the Court were to find that the proposed amendments constituted a "new cause of action", then such a cause of action arises from the same or substantially the same facts as those giving rise to the existing cause of action. [9]

First Defendant's Submissions

1. As earlier stated, the first defendant objects to the proposed amendments at [20]-[32] of the Proposed Statement. The first defendant asked that the Motion be dismissed with costs. In so doing, the first defendant relies on the principles set out in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
2. There are four main grounds upon which the first defendant opposes the Motion: 1. there has been no adequate explanation for the delay; 2. the amendments cause prejudice to the first defendant, by reason of the unexplained delays; 3. the amendments agitate a new cause of action; and 4. the amendments are futile.
3. The first defendant points out that the incident occurred in 2016 and that the proceedings commenced in February 2019. The submission of the first defendant is that the plaintiff has been ordered to pay the first defendant's costs on nine occasions since the commencement of the proceedings, still without adequate explanation for the delay, as well as the continuing delay in meeting the requirements of the Court.
4. Further, the amendments cause prejudice to the first defendant, by reason of the delay and the necessary and expected difficulty in obtaining witnesses and material relating to 2016 or asking people, at this late stage, to recall issues associated with the incident in 2016. Further, the first defendant submits that the new contentious paragraphs of the Proposed Statement, relating to the WHS Act and the Marine Safety Act, were not made in the original Statement of Claim and they amount to a case or cases that is or are separate and distinct from the manner in which the plaintiff initially sought to pursue the proceedings. The first defendant submits that there is no evidence filed that demonstrates that the proposed new cause of action was not discoverable by the plaintiff before the expiration of the three-year limitation period. [10]
5. Further, the first defendant submits that the amendments are futile in that the Court is not able to make a considered review of the utility of the proposed amendments to the plaintiff's claim, because the plaintiff has not served any liability or factual evidence in support of the additional causes of action.

Consideration

1. By operation of s 58 of the Civil Procedure Act, the Court is required, in determining whether to make any order or direction for the management of proceedings, including an order allowing the amendment of the Statement of Claim, to act in accordance with the dictates of justice. In determining the dictates of justice, the Court is, in turn, required to take into account the provisions of the overriding purpose of the Civil Procedure Act, namely the requirement on the Court, the parties and legal practitioners to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. The real issues in the proceedings are those issues defined by the pleadings. In determining how best to further the overriding purpose to which the Court has just referred, the Court is to examine how best to manage the proceedings so as to achieve the just determination of them, their efficient disposal, their timely disposal and the efficient use of resources, including judicial resources. Further, that which expedites the hearing and determination of the issues is a matter that, plainly, goes to facilitating the cheap and quick resolution of the proceedings.
3. By operation of s 64 of the Civil Procedure Act, the Court may, at any stage, order the amendment of pleadings or grant leave to a party to amend pleadings. The relevant statutory scheme and rules, prior to the promulgation of the Civil Procedure Act and the Uniform Civil Procedure Rules 2005 (NSW) (the latter will be hereinafter referred to as "the UCPR"), permitted the plaintiff to amend pleadings at any stage up to the close of the pleadings. That provision was amended to allow a plaintiff to amend a Statement of Claim within 28 days of the filing of the original Statement of Claim.
4. Beyond that time limit, which is contained in UCPR r 19.1, the leave of the Court is required. Leave is required even where, contrary to the previous practice, there is consent. As a consequence, even those amendments which are not opposed by the first defendant, require the leave of the Court. The plaintiff requires leave to amend.
5. Apart from the prejudice associated with issues of fact that may arise as a consequence of the amendment, and which have not previously been the subject of instructions or investigation, there are few, if any, wasted costs or prejudice associated with an amendment to the Statement of Claim. The foregoing is not intended to underestimate any prejudice associated with the delay from 2016 to the present time.
6. On the face of the documentation, the major issue prior to the hearing of the matter seemed to relate to the inclusion in the proceedings of a new cause of action associated with breach of statutory duty, which, on the face of the documentation, would have been outside the period allowed under the Limitation Act. As explained by the Court of Appeal in McGee v Yeomans supra, [11] the former rule of practice that amendments were not allowed after the expiry of any relevant limitation period has been displaced by the provisions of s 65 of the Civil Procedure Act, or its predecessors. [12]
7. In McGee v Yeomans, supra, the Court of Appeal traced the previous practice [13] and the exceptions that have been applied to it. The Court then recited the rule from which s 65 of the Civil Procedure Act derives and said: "I am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v. Neal and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow: cf. Sophron v. Nominal Defendant. The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity." (Citations omitted.) [14]
8. Relevantly, in these proceedings, it is necessary for the Court to determine, if it were faced with this issue, whether the new cause of action was arguable and was based upon substantially the same facts as those giving rise to the existing cause of action. [15]
9. A comparison of the already filed Statement of Claim and the proposed Amended Statement of Claim discloses that the pleadings relating to breaches of the WHS Act and the Marine Safety Act rely upon precisely the same facts as the claim in negligence. As can be seen from the earlier-recited brief summary of facts, the allegation is that the plaintiff fell and injured herself in circumstances where the surface upon which the plaintiff was required to work was slippery, and the first and/or second defendant did not provide a safe system of work and/or breached its duty of care. The facts of the accident and the circumstances in which it occurred are the same, regardless of the cause of action upon which the plaintiff would otherwise rely.
10. There may be issues associated with legal aspects of the operation of the WHS Act and the Marine Safety Act, but, to the extent that they raise issues associated with the practicability of an alternative means of undertaking the work, the same factual matrix is required and is relied upon by the plaintiff. I accept that a claim for breach of statutory duty is usually a separate cause of action, and a plaintiff may succeed even when the plaintiff fails in negligence. [16] Such a claim may also be used as a particular of negligence.
11. In these proceedings, during the course of the discussion with the Court, the Court enquired of the plaintiff's Counsel as to the operation of s 267 of the WHS Act, which provides that the Act, and any of its provisions, is not to be construed as conferring the right of action in civil proceedings in relation to a contravention of the Act; or conferring a defence to an action in civil proceedings; or affecting the extent, if any, to which a right of action arises, or civil proceedings may be brought in relation to breaches of duties or obligations imposed by the Regulations. I am not aware of any similar provision in the Marine Safety Act 1998 (NSW).
12. During the course of the discussion at the hearing, Counsel for the plaintiff, who is the applicant on the Motion, confined the use of the reference to the WHS Act and the Marine Safety Act to particulars of negligence that is otherwise pleaded. Because of that confinement, it is unnecessary for the Court to deal with the exercise of discretion, that would otherwise arise as a consequence of a pleading of a cause of action or causes of action for breach of statutory duty, other than in the context of those breaches being particulars of negligence.
13. The attitude of the plaintiff/applicant is that the provisions of s 267 of the WHS Act preclude a cause of action for breach of statutory duty. As was made clear by the Court during the course of the proceedings, it is a matter for the plaintiff/applicant to determine how she puts her case on the advice available to her.
14. Nevertheless, it is important for the Court to make clear that the Court is not determining whether the provisions of s 267 of the WHS Act preclude the cause of action for breach of statutory duty. Nor is it determining whether, if the pleadings for breaches of the WHS Act and the Marine Safety Act were intended to be a pleading for cause of action for breach of statutory duty, the Court would exercise its discretion to allow the amendment because the facts are substantially the same as they were prior to the cause of action being raised.
15. Those issues do not arise as a consequence of the confinement by the plaintiff/applicant of the use of the amendments. One issue raised by the Court is that the proposed Amended Statement of Claim raises, for the first time, actual knowledge of the relevant officer, or agent of the employer, of the lack of safety. It seems that such a pleading, as distinct from the previously pleaded "ought to have known", is not a matter that adds to the prejudice otherwise suffered by the first defendant. If there were actual knowledge that would be a fact that would have been required to have been disclosed by the relevant officers or employees of the first defendant when instructions were taken and/or investigations undertaken on the previous pleadings.
16. The first defendant does not rely upon any actual prejudice. The first defendant does rely upon the delay that has been occasioned by the plaintiff, and the presumptive prejudice that is occasioned by the delay.
17. The incident allegedly causing injury occurred in 2016. The proceedings were commenced in 2019. It is now six years since the incident and a further three years from the commencement of the proceedings. The first defendant has also caused delay, at least on a theoretical basis, in that the first defendant was 16 months late in filing a defence. The first defendant says this is a result of the late supply of an answer to particulars. I accept that is the reason for the first defendant's delay.
18. The plaintiff's Affidavits deal, to some extent, with the delay. Frankly, some of the delay is unexplained and unreasonable. It is important for a plaintiff to have its case dealt with as expeditiously as possible. It is also important for a defendant that litigation is not hanging over its head for an extended period of time.
19. Whatever the reasonableness of the delay that has occurred in the past, some of the delay in the agitation of this Motion has been caused by a delay in the listing of the hearing. It seems that delay was caused by an exaggerated estimate of the time that the proceedings would take. Nevertheless, it is not the fault of any of the parties.
20. Fundamentally, the delay in seeking this amendment has been caused substantially by an alteration in the representation of the plaintiff and different advice. That is partly the explanation.
21. Notwithstanding the delay, and notwithstanding that all of the delay has not been appropriately explained, I intend to exercise the Court's discretion to allow the amendments. It seems to me to meet the overriding purpose of the Act and will not interfere unduly with the future expeditious resolution of the real issues between the parties.
22. I doubt that the amendments will make much difference either to the investigation or the hearing of the matters. In those circumstances, it is far better for all matters upon which the plaintiff relies to be pleaded and it is appropriate that the plaintiff have the opportunity to plead that which she seeks to rely upon as a particular of the negligence that she has alleged. Some delay has been occasioned by the inability of the plaintiff to serve the second defendant.
23. Critical to the exercise of discretion is the stage at which the proceedings have reached. It has not been long since the pleadings closed and the evidence of the first defendant has not been filed. The evidence of the plaintiff has been filed. Medical evidence has been filed and served and there is no expert evidence as to liability.
24. It seems to me that the amendment will not, of itself, delay the finalisation of the proceedings. At this stage no trial date has been set and it is likely that the hearing date would not be set for some period of time in the future. As already stated, the first defendant does not rely upon any actual prejudice.
25. Much of the first defendant's submissions relied upon opposition to the amendments in the circumstances that they pleaded a separate cause of action. That opposition was undermined by the confinement by the plaintiff of the purpose of the amendments relating to the WHS Act and the Marine Safety Act. The latest version of the Amended Statement of Claim, attached to the Affidavit of Katarina Healey of 23 February 2022, makes clear that the reference to the WHS Act and the Marine Safety Act is a reference to particulars of negligence. If it were not clear on the face of the pleading, I would have conditioned any grant of leave to amend on a further amendment that clarified that purpose. In my view, any such condition is now, on the basis of the latest document, unnecessary.
26. The only other matter arising is the application for orders for substituted service. For obvious reasons, the first defendant does not oppose substituted service. By Affidavit, sworn 20 March 2020, Katarina Healy, the solicitor with carriage of the matter, on behalf of the plaintiff, testifies that she attempted to serve the second defendant at the address shown on the records of the business name, Rapid Environmental Response Unit. Service was sought to be effected by registered mail, the receipt for which is annexed to the aforesaid Affidavit. The documents were returned to the deponent.
27. An investigator was commissioned, and it became clear during the course of 2019 that the second defendant had no address, no telephone number and no email address that purported to give an address in Australia. Oddly, the second defendant did hold or does hold a New South Wales Private Investigators' Licence. The plaintiff was eventually able to obtain an email address for the second defendant.
28. By Affidavit of 24 August 2020, the aforesaid deponent updated the information relating to the second defendant. At that point in time, searches of the Internet address that had been discovered previously disclosed that the second defendant had updated the website.
29. That update included a mobile telephone number and email address at which the second defendant could be contacted. The camera shot of the website pages to that effect have been included in the 24 August 2020 Affidavit. The website discloses a mobile phone number that is an Australian number and discloses an email address to which documents may be sent. In the circumstances, it seems appropriate that substituted service be permitted.
30. The Court directs the plaintiff to file a Short Minute of Order granting leave to file the proposed Amended Statement of Claim and for substituted service on the second defendant. The plaintiff will pay the first defendant's costs of the Motion and any costs thrown away as a consequence of the amendment to the Statement of Claim.

Endnotes

1. Proposed Statement at [15] and [16].
2. Statement of Claim at 16(a)-(e) of the Proposed Statement.
3. Affidavit of Michael Edward France, sworn 17 September 2021, at [4]-[5].
4. Affidavit of Michael Edward France, sworn 17 September 2021, at [6]-[7].
5. Affidavit of Michael Edward France, sworn 17 September 2021, at [14].
6. Affidavit of Michael Edward France, sworn 17 September 2021, at [16].
7. Affidavit of Michael Edward France, sworn 17 September 2021, at [28]-[29].
8. Affidavit of Michael Edward France, sworn 17 September 2021, at [31].
9. Plaintiff's Written Submissions, at [6], relying on McGee v Yeomans [1977] 1 NSWLR 273, at 284 and 285.
10. Limitation Act 1969 (NSW), ss 50C and 50D.
11. McGee v Yeomans [1977] 1 NSWLR 273.
12. As to the previous practice, see Weldon v Neal (1887) 19 QBD 394.
13. McGee v Yeomans, at 277-278 (Glass JA, with whom Moffitt P and Mahoney JA agreed).
14. Ibid.
15. Civil Procedure Act, s 65(2)(c).
16. State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [63] (Leeming JA, with whom Ward JA agreed) and the cases cited therein. See also Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430; [2015] VSCA 130 at [121]-[126] (Redlich, Osborn and Kyrou JJA) and Apps, A and Foster, N, "The Neglected Tort: Breach of Statutory Duty and Workplace Injuries under the Model Work Health and Safety Law" (2015) 28 AJLL 57. 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: 31 March 2022