Sheather v V & E Bozzi & Co Transport Pty Ltd

1. Clearly enough, Bozzi Produce was represented by different solicitors in this workplace proceeding in New South Wales to the solicitors who were acting for Bozzi Transport in this proceeding.
2. In preparation for the 12 February 2026 mediation, the defendant's solicitors reviewed the material that had been provided by SafeWork NSW and became aware, they swore for the first time, that there was an issue with the plaintiff's employment status. They made inquiries of 'the defendant' and were told that it was Bozzi Produce, rather than Bozzi Transport, that had notified the NSW authorities of the incident. They have sworn that the defendant has since been 'unresponsive to requests for further instructions or documents'.
3. There was a directions hearing in this proceeding on 13 February 2026. At that directions hearing, the defendant foreshadowed that it was investigating the plaintiff's employment status and that it might need to make an application in relation to it, and by letter dated 10 March 2026, it circulated a proposed amended defence in which it withdrew its admission that it was the employer and added an allegation that the plaintiff was employed instead by Bozzi Produce.
4. At a call over on 7 April 2026, the defendant confirmed that it wished to make such an application. A summons was later filed returnable on 10 April 2026. The defendant also sought to have the preliminary issue of the plaintiff's employment status determined at the upcoming Mildura circuit. Although attractive as an idea, that is, as is now accepted, not feasible as Bozzi Produce would have to have an opportunity to be heard on that issue.

E Is there any merit in the suggestion that the plaintiff's employment is connected with New South Wales?

1. Bozzi Transport and Bozzi Produce both have their registered offices and principal places of business in Victoria. Vito Bozzi is the sole director of Bozzi Transport and its shares are held by Bozzi Enterprises Pty Ltd. His wife, Elisabeth Bozzi, is the sole director of Bozzi Produce and the shares in Bozzi Produce are held by Elisabeth Bozzi and Vito Bozzi.
2. Subject to hearing further argument on the point, it seems that if the plaintiff is treated as having been in a contract of employment in Victoria and sent to New South Wales as part of that employment, then his employment will be connected with Victoria. Indications that that was the true arrangement might include any evidence that, for example, he was to be paid by the same people and at the same rates and in the same manner as previously. If the plaintiff is treated instead as having entered into a new contract of employment for the purpose of performing the work in New South Wales and was to live there while doing so, then it seems his employment might well be connected with New South Wales.
3. There are indications that the plaintiff may well have been employed by Bozzi Transport even when performing work in New South Wales. I note, for example, that Vito and Elisabeth Bozzi's son, Francesco Bozzi, has said in a statement that he was employed by Bozzi Transport but had been working at Texas Downs in New South Wales. He told his father he needed 'an extra set of hands' to help with irrigation works. His father suggested the plaintiff. Francesco Bozzi then made the arrangements with the plaintiff and his mother and drove him to New South Wales and told him what duties to perform. Francesco Bozzi did not know what the arrangements for payment were to be.
4. However, the suggestion that Bozzi Produce, rather than Bozzi Transport, is the employer is not able to be dismissed at this stage as unmeritorious, because, as noted, SafeWork NSW has successfully prosecuted Bozzi Produce in the Local Court of New South Wales for breaches of the Work Health and Safety Act 2011 (NSW) in respect to the 28 July 2020 incident and for the purpose of those proceedings at least Bozzi Produce accepted that it was the employer. If Bozzi Produce were the employer at the time, then it would seem likely that the plaintiff was at the relevant time subject to a different employment contract to that pursuant to which he worked in Victoria, with the result that there is a respectable argument, at least, that New South Wales was the State in which he usually worked 'in that employment'.
5. The difficulty, of course, is that nothing is in writing and it seems likely that neither Vito or Elisabeth Bozzi nor the plaintiff turned their mind subjectively to these issues at the relevant time. It is clear, however, that this question cannot be determined on the current material and if it is to be determined, the parties (that is, the plaintiff and Bozzi Transport and Bozzi Produce) must be given the opportunity to call evidence on that issue.

1. Pleadings have closed but rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) gives the Court a discretion to permit amendments including for the purpose of determining the real question in controversy between the parties or correcting any error. This is broad enough to allow an amendment that withdraws an admission; the phrase 'real question in controversy' must, self-evidently, extend to issues beyond those that arise on the current pleadings.[1] The discretion should be exercised according to an assessment of where justice lies.[2] Particularly in the case of a late amendment such as this, that includes an assessment of whether or the extent to which the amendment if allowed would cause substantial delay or other unfair prejudice to the plaintiff. The length of time for which an admission has stood is a relevant factor.[3] Against that must be weighed the detriment to the party seeking to withdraw an admission if that withdrawal is not allowed. Where the amendments involve the withdrawal of an admission, an adequate explanation for the change in position is usually required.[4] The responsibility of either party for any mistakes that have arisen is relevant. The discretion is otherwise unfettered and I do not accept that there is a legal principle that an application to withdraw an admission must be refused in all cases where there is a risk of prejudice to the other side.[5]
2. To the extent that the plaintiff might benefit financially from bringing the claim under Victorian law rather than New South Welsh law because under Victorian law he can bring a claim for damages for pain and suffering but under New South Welsh law he cannot, I do not consider the risk of losing that benefit can amount to 'prejudice' in the relevant sense. I need to exercise my discretion without taking into account any assessment as to whether one legal regime is more generous than the other.
3. I accept that there is a real issue as to whether the plaintiff's employment is with Bozzi Transport or with Bozzi Produce and whether it is connected with Victoria or New South Wales. Because of this, there is something unappealing about deciding it under Victorian law because of an admission made that is now sought to be withdrawn. And I accept that if the admission is not able to withdrawn, there is a real risk that Bozzi Transport will be found liable on the basis of an employment relationship that might not have been found to exist were there a full investigation into the employment relationships.
4. The defendant's solicitor has sworn, in summary, and I accept, that:

(a) At the time that she drew the defence admitting that Bozzi Transport was the employer, she believed that the only issue in relation to employment had been whether the plaintiff was employed at all, and she was not aware of any issue that, if he were employed, he was employed by a company other than Bozzi Transport;

(b) Although two of the documents discovered by the plaintiff in October 2024 indicated that SafeWork NSW had prosecuted Bozzi Produce (that is, not Bozzi Transport), she did not appreciate the distinction at that time;

(c) She first reviewed the documents produced on subpoena, including the agreed statement of facts, in preparation for the 12 February 2026 mediation, and it was in the course of this review that she appreciated for the first time the 'potential issue with the Plaintiff's employment status with the Defendant'; and

(d) She was then able to confirm with her client that it was Bozzi Produce, and not Bozzi Transport, that notified the authorities in New South Wales, but was not able to obtain further instructions from them.

(a) The defendant (by which reference I here include Allianz or its solicitors) was at no stage misled by the plaintiff into drawing the wrong conclusion, because the plaintiff in his claim form identified Vito Bozzi as the person paying his wages, and the plaintiff had not received anything in writing that was withheld;

(b) The defendant knew from the time that the claim for compensation was made that the accident took place in New South Wales and in circumstances whether there was no written contract of employment and, accordingly, that there was a potential issue as to whether the claim for benefits and then for damages should be governed by the New South Welsh or Victorian statutory regimes;

(c) The defendant always had the ability to try to speak to the various members of the Bozzi family on whose evidence the issue of employment would turn. Because of the relationship of the companies, and the employment situation, no information has emerged that was not known to the defendant itself and at least in theory capable of being provided to its agent or lawyers;

(d) The defendant had before it material in the circumstances investigation report that indicated that the person supervising the plaintiff was employed by Bozzi Produce (not Bozzi Transport) and, by implication, that at least some workers at Texas Downs were employed by Bozzi Produce (not Bozzi Transport);

(e) On 14 October 2020, the defendant accepted the claim for no-fault benefits, thereby by accepting that it was the employer and that the employment was connected with Victoria rather than New South Wales. As a consequence of this, the plaintiff, quite understandably, did not thereafter take any steps to bring or to prosecute a claim for benefits under the New South Wales regime;

(f) On 8 October 2024, some four years after the accident, the defendant admitted that Bozzi Transport was the employer and, by implication, that the claim was governed by Victorian law;

(g) From 23 October 2024, the defendant had available to it documents produced on discovery that showed that SafeWork NSW had prosecuted Bozzi Produce (not Bozzi Transport) for the accident; and

(h) By late March 2025, the defendant had available to it documents produced on subpoena that indicated that Bozzi Produce (not Bozzi Transport) had agreed that it was the plaintiff's employer.

1. In reality, it appears that, despite the question of employment being a matter of some complexity, the defendant (really, its agent or lawyers) did not take any steps to consider or to re-consider whether it was in truth the employer at any stage after the circumstances investigation report was prepared in October 2020, or to review (or appreciate the significance of) the documents that were discovered in October 2024, until shortly prior to the mediation in this matter earlier this year. Throughout this time, by its acceptance of the claim and defence, it was conveying to the plaintiff that it accepted that it was the employer. On that basis, the plaintiff has prosecuted this proceeding and not either made a claim for benefits against Bozzi Produce or engaged in the pre-litigation process set out in New South Wales as a precondition for commencing proceedings against it; since 14 October 2020, the plaintiff has been entitled to assume that Bozzi Transport accepts that it was his employer and that he had claimed against, and then sued, the right company. By raising the issue now, a situation has arisen where a withdrawal of the admission will lead to a delay for the plaintiff, which I consider not to be through any fault of his, of something up to two years in the hearing of his case. A delay of that duration, for a young man where the accident already took place some six years ago, is a very significant prejudice.
2. I see the issue was reasonably finely balanced. It is understandable that those acting for the defendant did not conduct any further inquiries, but their failure to do so has led to the current situation. It is to be recalled, too, that nothing emerged that was not known to the Bozzi family and thus something that the defendant's lawyers could have found out about.
3. The defendant faces only potential prejudice if it is unable to withdraw its admission as it may well be that, if the matter were fully argued, a finding is made that the defendant is the employer. If that were the case, then the additional work and delay for the plaintiff would also have been unnecessary.
4. Taking these various considerations into account, I am satisfied that the interests of justice are here furthered by:

(a) refusing the defendant's application for leave to withdraw its admissions regarding employment; but

(b) permitting it to file, late, its third party notice.

(a) there will be some delay to the plaintiff's claim, in that it will not be able to proceed this circuit. I do not consider it would be appropriate to hear the claim for contribution separately to the plaintiff's claim for damages, because of the duplication that would be involved in such a process. But the delay would be much less, as the plaintiff would not have to go through the pre-litigation process in New South Wales;

(b) Bozzi Transport will be able to claim contribution in the amount thought just and equitable from Bozzi Produce to any damages it is obliged to pay to the plaintiff having regard to Bozzi Produce's responsibility to the plaintiff's injuries.

(a) Grant the defendant leave to file an amended defence that amends the allegations of contributory negligence, but otherwise dismiss the application in so far as it seeks to withdraw the admission of employment;

(b) Grant the defendant leave to file and serve a third party notice against Bozzi Produce; and

(c) Vacate the trial date to a date to be fixed.

1. I will hear the parties on the precise form of order and on the question of costs.

[1] Likewise, the requirement in the Civil Procedure Act 2010 (Vic) to give effect to the 'just, efficient, timely and cost-effective resolution of the real issues in dispute' cannot mean that an admission may not be withdrawn on the basis that until it is withdrawn there is not a real issue in dispute on that point.

[2] Gregorich v Khouri [2020] VSC 5, [6] (Nichols J).

[3] Collie v Merlaw Nominees Pty Ltd & Anor [2001] VSC 39; (2001) 37 ACSR 361, 379 (Warren J).

[4] See, eg, Gregorich v Khouri [2020] VSC 5, [12]-[13] (Nichols J).