Plaintiff v Defendants

1. On 27 October 2025, I heard the first defendant's application for leave to file and serve an amended defence in the form of the document dated 2 October 2025. The application was opposed by the plaintiff and not opposed by the second defendant. I granted leave to the first defendant to amend and indicated at the time that I would subsequently provide reasons.
2. The plaintiff was employed by the first defendant as a truck driver to transport various products between South Australia and Victoria. The plaintiff lived on the Victorian side of the border with South Australia but would start and complete his shifts in South Australia. He was injured in an incident occurring at the premises of the second defendant in Hyman, South Australia, on 13 August 2020 when he fell while egressing from the cabin of his truck.
3. It is not in dispute that the plaintiff has an accepted WorkCover claim under the Victorian legislation, resulting in receipt of weekly payments of compensation and an impairment benefit. He has issued this damages proceeding following a grant of a serious injury certificate from the employer's Victorian WorkCover insurer pursuant to s 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the WIRC Act).
4. The plaintiff's statement of claim relevantly pleads:

15. The plaintiff has suffered a serious injury within the meaning of Section 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 and the Plaintiff is entitled to institute and prosecute this proceeding for the recovery of damages for pain and suffering and loss of earning capacity.

15. Save that the First Defendant admits that the plaintiff is entitled by Division 2 Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 to bring this proceeding, the First Defendant does not plead to paragraph 15 of the statement of claim as it raises no allegations of fact or law which is relevant to this proceeding.

1. The pleadings do not otherwise address the applicable law nor address the way in which Part 7, Division 1 Choice of Law of the WIRC Act bears upon the plaintiff's claim.
2. In large part the proposed amended defence addresses the issue of the applicable law governing the plaintiff's claim against the first defendant, namely, whether it is governed by Victorian or South Australian law. It seeks to deny paragraph 15 and positively plead employment 'connected with' South Australia, and that South Australian law governs the damages claim against the employer. Some other amendments addressing particulars of contributory negligence and responding to the claim for breach of statutory duty are also made.
3. As a result, the proposed amended defence squarely raises the question of choice of laws and alleges that, pursuant to s 319(1) of the WIRC Act and s 87(1) of the equivalent South Australian legislation,[1] the substantive law of South Australian governs whether or not a claim for damages in respect of the injury can be made against the employer, and if it can be made, governs the determination of the claim.
4. The first defendant relies on three affidavits of its solicitor respectively sworn on 15, 16 and 23 October 2025 (together the Koutrouzas affidavits), and a report of a circumstances investigator which was exhibited to an affidavit of the investigator sworn on 16 October.
5. The first defendant's explanation, as set out in the Koutrouzas affidavits, is that she turned her mind to the question of employment connection in relation to Victoria or South Australia prior to the grant of a serious injury certificate. At this time, she formed the view that the relevant employment was connected with Victoria, and set out the matters that she relied on in forming that view. She deposed to additional information in a circumstance report that became available after the grant of a serious injury certificate, but did not at that time revisit the question of connection with the state of Victoria or South Australia. The question was next raised with her in correspondence dated 4 September 2025. Having set out the steps taken on receipt, including seeking advice from counsel, the solicitor has proposed the amendments which plead that South Australian law governs the plaintiff's claim against the employer.
6. Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) provides that the Court may give leave to amend any document in the proceeding for the purpose of determining the real question in controversy. Rule 25.04 provides that leave of the Court or consent of a party is required to withdraw an admission contained in a defence. The first defendant seeks to withdraw an admission that the plaintiff is entitled to bring the proceeding by compliance with s 328 of the WIRC Act.
7. The question of the applicable law is a matter that the Court will be required to grapple with regardless of whether or not the parties' pleadings having properly exposed that issue. As such, in my view the issue raised is one that is necessary to decide in order to properly determine the issues in dispute between the plaintiff and the first defendant. The proposed amendment could not be said to be futile and was not submitted to be so. The defendant referred to I.C. Formwork Services[2] to support the argument that there is a real issue in the choice of law question.
8. The fact of acceptance of a claim for statutory benefits under the Victoria scheme is not determinative of the applicable choice of law. Section 319 of the WIRC Act provides:

(1) If there is an entitlement to compensation under a statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that state is the substantive law that governs-

(a) whether or not a claim for damages in respect of the injury can be made; and

(b) if it can be made, the determination of the claim.[3]

1. While the plaintiff relied on Aon Risk Services v ANU[4] to submit that the application should be refused because the consequent delay and additional costs that would be incurred if the amendment was permitted, together with an unsatisfactory explanation for the lateness of the application (in effect an explanation that amounts to a late 'change of mind' as to the application of Victorian law), Aon makes clear however, that it is the opportunity for a party to raise a claim or defence, and how those matters are to be framed, that is relevant when seeking a just resolution of the dispute.
2. In my view it is relevant that the matter raised late by the defendant is not a new defence in a partisan sense, but an issue that the court would in any event be required to grapple with in determining the claim. In other words, the application to amend exposes a controversy that has always lain underneath the plaintiff's claim: a question as to the applicable substantive law by which the claim is to be determined. That issue is not conclusively determined by the actions of a claims agent in managing the claim, although the steps taken, and the reasons for them, may well have a bearing upon the determination by the court.
3. In Aon, French CJ said:
   1. The words 'real issues in the proceeding' obviously refers to the issues raised perhaps unclearly in the pleadings at the time of the application to amend. The real issues may also extend beyond the pleadings... but as is explained in these reasons, to be regarded as a real issue and for the amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application.
4. His Honour goes on to say:
   1. The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. But it is not the existence of such a mistake that founds the grant of leave under rules such as r 501(a), although it may be relevant to show that the application is bona fide. What needs to be shown for leave to amend to be given as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it.
5. In my view the amendment is one that has always been in existence between the parties, and so is properly raised and necessary for the court to determine in the resolution of the real issues in dispute. It can be distinguished from a new claim or a new but previously available defence that would not have been in contemplation or before the court but for a late amendment.
6. The plaintiff also submitted that the previous admission in the defence of an entitlement to bring the proceeding in accordance with the gateway provisions in the Victorian legislation meant that the court could make a consent order as to the applicable law or connection with the jurisdiction. This is what occurred in Di Paolo v Salta Constructions & Ors.[5] However, the circumstances in that case were quite different. The declaration made with the consent of the parties was in a proceeding concerning an entitlement to statutory benefits in accordance with s 91(a) of the Accident Compensation Act 1985 (Vic), the precursor to the present s 37. It was that consent order that meant it was not in dispute that Victorian law applied to the employer concerning the plaintiff's separate damages claim notwithstanding the fact that the tort occurred in Western Australia. Here, there is no consent position between plaintiff and employer, and, even if there were by paragraph 15 of the Defence, what was made clear in Di Paolo is that even if the parties consent to an order that the employment is connected with Victoria, such an order can only be made where the relevant court is satisfied that such an order is appropriate before making it. The Court of Appeal said:

Our analysis was not assisted by Safe Labour's submission that adoption of the applicant's preferred interpretation would encourage forum shopping. This submission ignores the fact that, before the substantive law of a jurisdiction can apply to a claim by a worker, the worker must obtain a judicial determination in accordance with s 80 of the AC [Accident Compensation] Act or its equivalent that claim has a connection with that jurisdiction. While such a determination may be made by way of a consent order, the relevant court must be satisfied that such an order is appropriate before making it.[6]

1. In the present circumstances, even if the first defendant was not entitled to amend its defence and withdraw an admission that the plaintiff was entitled to bring the proceeding governed by substantive law in Victoria, the court would not be bound to act on that agreed position unless satisfied itself as to the applicable law.
2. Insofar as the explanation for delay is also relevant, I accept that the first defendant's solicitor, although turning her mind to the issue prior to the commencement of proceedings, did overlook the potential significance of later information until shortly prior to the trial. Although this explanation may not be sufficient to explain the late raising of other partisan positions or amendments to a defence, the subject matter of the proposed amendment as explained above renders it in this case appropriate to grant leave.
3. For these reasons, in my view it is appropriate that the first defendant have leave to amend its defence notwithstanding the lateness of the application. The summons seeks other consequential relief that the plaintiff's claim be summarily dismissed or struck out. Alternatively, it seeks determination of a preliminary question of the applicable law that governs the plaintiff's claim against the first defendant. It is appropriate that the Court consider this issue as a preliminary question. I will hear from the parties as to the precise form of the preliminary question or questions, the timetabling of that preliminary question, and any discovery or other interlocutory steps to be determined prior to hearing that matter.
4. As a consequence of the leave to amend it has been necessary to vacate the trial date. I have reserved the question of costs.

1. The plaintiff also raised a question for determination arising from the Koutrouzas affidavits. In particular from the affidavit dated 9 October 2025 in which, at paragraph 20, Ms Koutrouzas deposes:

The letter dated 4 September 2025 caused myself and my colleagues at Hall & Wilcox to revisit the state of connection issue and to seek advice from Counsel on the issue (over which the First Defendant does not waive privilege). Revisiting the issue ourselves and in conjunction with Counsel, including reviewing the information in our possession, we realised that the information revealed that the Plaintiff's employment is connected to South Australia and not to Victoria, under s 37 of the WIRC Act. I now appreciate the relevance of the previously obtained information to state of connection (s 37 WIRC Act) issues.

1. The plaintiff also relies on recent discovery of a file note from April 2024 by an unknown author at the solicitors' office to the effect 'if domicile and share of work in Vic - then covered by first def Vic system rather than SA'.[7]
2. The plaintiff submitted that by the affidavit and file note the first defendant has lost privilege over the opinion of the solicitor as to the question of applicable law.
3. The relevant principles not in dispute can be briefly summarised as follows.

(a) The question of loss of legal privilege is governed by s 122(2) of the Evidence Act 2008 (Vic) which states:

Loss of client legal privilege - consent and related matters

...

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.[8]

(b) The provision reflects the common law test[9] for waiver of privilege and may inform an analysis of the factual circumstances, but the words of the statute prescribe the applicable test.

(c) A party can act in a way inconsistent with the maintenance of confidentiality of privileged information expressly or by implication.

(d) The disclosure of the existence of legal advice and its effect may, but does not necessarily, amount to inconsistency resulting in loss. In Osland v Secretary to the Department of Justice[10] the fact of legal advice having been obtained and the conclusion or recommendation of that advice was said not to constitute a waiver of privilege.

(e) Questions concerning the purpose of disclosure and the consequences of limited (rather than full) disclosure are relevant in ascertaining whether an inconsistency arises.

1. The plaintiff's written submissions filed 27 October 2025 contend that the relevant paragraph discloses the solicitor's state of mind and the instructions provided by the defendant which both support a material change in advice as to the applicable law, leading to the amendment to the pleadings.
2. The Koutrouzas paragraph and the file note are therefore submitted to be conduct inconsistent with the maintenance of privilege. This is because the substance of paragraph [20] discloses a material change in legal advice and a statement of earlier legal advice, disclosure of which is conduct inconsistent with the maintenance of privilege.
3. The first defendant submits that there is no inconsistency in the conduct of the solicitors acting for the first defendant that give rise to loss of privilege. They argue this on the basis that the Koutrouzas affidavit does not refer to any advice of the solicitor given to the client, does not disclose the substance of any advice, and the purpose of disclosure as to 'revisiting' the issue was to explain the timing of the application to amend. Further, the disclosure highlights when various information was received by the solicitors, which bore upon an explanation for the timing and need for amendment. Further, when the fact of legal advice goes to an explanation for the timing of a proposed amendment close to the time of trial, it is undesirable that a revelation of the existence of legal advice would necessarily amount to conduct resulting in a loss of privilege over the content of that advice.
4. I accept the submissions of the first defendant. Paragraph [20] of the Koutrouzas affidavit refers to revisiting a legal issue in light of additional information. It does so for the purpose of explaining any delay in seeking to amend the defence filed. It addresses information that was obtained but overlooked in significance at an earlier time, as well as a recent consideration, aided by advice of Counsel.[11] The question of legal advice available to the first defendant is relevant to the merit and timing of the amendment application, but the content of that legal advice, or the state of mind of a legal advisor or their client, is not in issue in the substantive dispute before the Court. In other words, the determination of the applicable law will be on the basis of the facts and circumstances relevant to the legislative test of 'connection'.
5. Therefore no inconsistency arises between disclosure of the fact of the current [or changed] advice and the maintenance of client legal privilege. The case is distinguishable from cases where the client's knowledge of, or reliance on, legal advice and the maintenance of privilege are inconsistent with each other in light of the cause of action before the court.[12]
6. In this case there is an express maintenance of legal client privilege. The plaintiff has not established that the actions of the first defendant's solicitor in making the affidavit of 9 October 2025 is an action, by implication, inconsistent with the express maintenance of the privilege.
7. Little argument was directed to the separate recent discovery of the file note from 2024. The note itself states little more than a paraphrase of some considerations relevant to the applicable law. The note is ambiguous as to whether it expresses an opinion or a statement. I am not persuaded that discovery of the note is inconsistent with the maintenance of confidentiality of the first defendant's legal opinion provided to the client.
8. Privilege has not been lost by paragraph [20] of the Koutrouzas Affidavit nor discovery of the April 2024 file note.

[1] Return to Work Act 2014 (SA).

[2] I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44; (2020) 356 FLR 111 [44], [50].

[4] [2009] HCA 27; (2009) 239 CLR 175 ('Aon').

[5] [2015] VSCA 230.

[7] Plaintiff, 'Outline of Plaintiff's Submissions in Respect of the First Defendant's Application to Amend its Defence', filed 27 October 2025 [5].

[8] Although a matter to be determined prior to trial, s 131A makes s 122(2) applicable to production of documents including by way of pre-trial discovery.

[9] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1.

[10] [2010] HCA 24; 241 CLR 320.

[11] The parties addressed the privilege argument on the basis of whether the solicitors legal advice had been lost. The parties did not address the related question of loss of counsel's advice referred to as this had not been raised prior to oral argument and I have put that question to one side.

[12] See, for example, cases discussed in Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118 [47]- [50].