Sohailee v City Projects & Developments Pty Ltd

UCPR rule 14.28

1. The second defendant moves under r 14.28 of the UCPR; that is, the second defendant seeks to strike out the statement of claim as against it, either on the basis that it discloses no reasonable cause of action or other case appropriate to the nature of the pleading or has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of process of the court. Conventionally, r 14.28 may be relied upon in circumstances in which there is a pleading problem, pleading deficiency or other matter likely to cause embarrassment or when pursuit of the allegations in the statement of claim might be considered an abuse of process or an exercise in futility.
2. Mr Rickard, who appears for the second defendant, submitted that the plaintiff could not succeed on certain particulars of negligence as pleaded in the amended statement of claim (because the plaintiff is not entitled to file that amended statement of claim) because it is materially different from the proposed amended statement of claim which was served as part of the pre-filing process. He says that the "new" particulars of negligence are materially different and thus those paragraphs, being paras 23(v), (vi) and (viii), are liable to be struck out.
3. There is a threshold issue in circumstances in which the applicant/second defendant is not suggesting that the statement of claim is poorly pleaded or that the second defendant is not able to understand what is alleged or that the statement of claim discloses no cause of action. The question arises whether this is really an application for strike out of the particulars on a summary basis which should be determined in accordance with the principles set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. However, the parties have proceeded on the basis that I should determine whether the particular matters complained of offend s 318 of the Workplace Injury Act at this time rather than just consider the application on the basis of an arguable case. Having said that, it would not be appropriate to simply strike out the statement of claim as against the second defendant irrespective of what findings I might make in respect of the particulars of negligence. It seems to me that the appropriate course, should I accede to the second defendant's application, would be to strike out only those particulars of which the second defendant complains.

The second defendant's complaint

1. The second defendant says that the particulars of negligence raised in paras 23(v), (vi) and (viii) are materially different from anything pleaded in the proposed statement of claim provided to the second defendant as part of the pre-filing process. Mr Rickard says that in those circumstances the plaintiff was not entitled to file the amended statement of claim (adopting the language of s 318 of the Workplace Injury Act) and that those paragraphs should be struck out. I hasten to add that Mr Rickard's primary submission is that the amended statement of claim should be struck out but, as I have said, there seems no point in doing that and an application under UCPR r 14.28 plainly allows me to only strike out the offending paragraphs.
2. In order to determine the issue it is necessary to consider the meaning of s 318 of the Act.

Section 318 of the Workplace Injury Act

1. The parties have helpfully provided me with some other cases in which s 318 of the Workplace Injury Act has been considered, although it is not apparent that any of these cases necessarily provide the answer to this case.
2. In Petreski v The Ors Group Pty Ltd [2019] NSWDC 417, s 318 of the Act was considered. His Honour Judge Abadee of the District Court considered the meaning of "material" and in particular the definition in the Australian Concise Oxford Dictionary (4th ed) as being "something that is important, essential or relevant". His Honour emphasised that the context in which the statutory provision appears is directed towards the content of a pleading.
3. Of course in construing s 318 of the Act, regard must be had to the proper principles of statutory construction which include applying the words according to the text used, interpreting the words in context and having regard to the purpose of the section: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
4. In Hall v Ecoline Pty Ltd t/as Treetop Adventure Park [2018] NSWSC 1732, Davies J had occasion to consider s 318 of the Act with reference to the employer's assertion that the statement of claim relied upon in the Supreme Court was materially different from the proposed statement of claim that formed part of the pre-filing statement. His Honour accepted that the alleged mechanism of injury, as set out in the proposed statement of claim which formed part of the pre-filing statement, was quite different from the mechanism of injury pleaded in the Supreme Court and thus that the statement of claim as filed offended s 318 of the Act.
5. Section 318 is contained in Pt 6 Div 3 of the Workplace Injury Act.
6. Part 6 of the Act is concerned with court proceedings for work injury damages. Division 3 of Pt 6 is concerned with pre-filing statements.
7. As set out in s 315 of the Act, before a claimant can commence court proceedings for the recovery of work injury damages the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence the claimant will rely on to establish or in support of the claim as the rules may require. Section 316 requires the defendant to respond within 28 days to the pre-filing statement by either accepting or denying liability or setting out a defence to the claim with particulars.
8. The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars of his claim and the evidence that the claimant will rely on in support of the claim before commencing a work injury damages claim in court. The purpose of requiring the claimant to do that must be to assist in the process of resolution of the dispute prior to proceedings being pursued and to ensure that the employer/proposed defendant has proper, adequate and complete notice of the claim that is and will be pursued by the injured employee. The obligation to provide that notice is complimented or enforced by s 318 of the Act.
9. The expression "materially different" must be given its ordinary, natural meaning. It must be interpreted in the context in which those words appear having regard to the overall purpose of s 318(1)(a) of the Workplace Injury Act. It is not necessary or appropriate to substitute other words to give meaning to the expression. It is also important to emphasise that not just any difference will give rise to the application of s 318. The difference must be material. Whether there is a material difference between the two documents must depend on the facts in each case.
10. There can be little doubt that a pleading of a different mechanism of injury or an accident occurring in substantially different circumstances would be a materially different pleading. A pleading of a different cause of action would be a materially different statement of claim. Further, raising a completely new allegation as to the conduct of the proposed defendant would be a materially different pleading. By that I mean that if the plaintiff asserted that the defendant did or failed to do something not raised at all, either generally or specifically, in the proposed statement of claim then that would be something which is materially different.
11. However in this matter the issue is more nuanced. The second defendant complains only of particulars of negligence being different or new. The second defendant does not assert that there is any new cause of action or that there is a new mechanism of injury. It is just that the particulars of negligence in paras 23(v), (vi) and (viii) of the amended statement of claim are materially different.
12. It may be that in some circumstances new particulars of negligence could fall within the meaning of "materially different" in s 318(1) of the Workplace Injury Act. In some circumstances, a comparison of just the particulars of negligence may lead to a finding of material difference. The issue cannot be determined merely with reference to the assertion that they are just particulars of negligence, not that Mr Sleight, who appeared on behalf of the plaintiff, made a submission in those terms.
13. The issue requires a consideration of the form of paras 23(v), (vi) and (viii) with reference back to the proposed statement of claim and then a consideration of whether there is a material difference.
14. Mr Rickard directed my attention to para 23(v) with reference back to para 10(e) of the proposed statement of claim.
15. The particular in para 10(e) is "allowing a wall panel to be leaned against an upright beam so that the same was liable to fall over". The particular in para 23(v) of the amended statement of claim is "exposing the plaintiff to unnecessary risk of suffering injury by permitting wall panels to be placed leaning against walls when there was a danger they could fall and injure persons such as the plaintiff".
16. Mr Rickard says that the plaintiff has introduced a system case whereas para 10(e) should be interpreted as referring to a single event or incident. I do not agree. It seems to me that para 23(v), whilst expanding somewhat on para 10(e), is not materially different. The conduct complained of is that the second defendant permitted or allowed the wall panel to be leaned against the wall.
17. Mr Sleight points out that there is an obligation on the plaintiff to properly plead all material facts. That is so. It does not seem to me that the change in words or addition of words creates a material difference within the meaning of s 318 of the Act.
18. Paragraph 23(vi) of the amended statement of claim is in the following terms: "exposing the plaintiff to unnecessary risk of suffering injury by requiring him to work in an area where wall panels had been leant up against a wall where they are likely to fall and cause injury". This seems to me to be another way of stating what was really pleaded originally in the proposed amended statement of claim.
19. The plaintiff was required to work in an area where a wall panel or panels had been leant up against a wall where they were likely to fall. I do not accept that that is an allegation relating to new conduct or an allegation which is materially different from the content of the proposed amended statement of claim served with the pre-filing statement.
20. I have in mind that the particulars of negligence in the proposed statement of claim are somewhat general but I have no evidence before me suggesting that any issue was taken with the general nature of those particulars of negligence and I am not suggesting that any issue should have been taken.
21. Similarly, I do not consider that there is a material difference between para 23(viii) of the amended statement of claim and para 10(g) of the proposed statement of claim.
22. Para 10(g) of the proposed statement of claim was as follows: "failing to properly supervise the plaintiff and other workers in the performance of their work" and in para 23(viii) of the amended statement of claim is as follows: "failing to properly supervise and instruct persons working on the premises so as to ensure as far as reasonably practical that wall panels were safely secured before being installed".
23. It could hardly be suggested that the second defendant was unaware of the proposition being advanced by the plaintiff from the outset, that is, as part of the pre-filing documents, that the second defendant should have ensured that the wall panels were safely secured. I agree with the submission of Mr Sleight that, in the circumstances of this case, any form of supervision necessarily involves instruction and that the adding of that word does not create a material difference.
24. In the circumstances, whilst I accept that some of the wording is new and the expressions are different, it does not seem to me that the amended statement of claim is materially different from that set out in the proposed statement of claim.
25. The second issue raised by Mr Rickard is that the plaintiff has relied upon the wrong legislation in the amended statement of claim. This is a reference to paras 21 and 22. Mr Rickard submits that in pleading paras 21 and 22 the plaintiff is relying on the Civil Liability Act 2002 (NSW) and in particular has adopted the words used in s 5B of the Civil Liability Act. Mr Sleight submits that there is no reference to the Civil Liability Act in those paragraphs and that all that was intended was an expanded and proper pleading having regard to common law principles.
26. In Road Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, the Court emphasised the importance of proper identification of the risk of harm in any negligence pleading. It has been said that in some respects s 5B of the Civil Liability Act merely represents a restatement of common law principles.
27. In my view it is always appropriate for a plaintiff to properly plead all of the aspects of negligence which include matters relating to foreseeability and risk of harm. In doing so the plaintiff has not filed a materially different proposed statement of claim. The plaintiff has merely filed a better and more proper form of pleading.
28. Section 318 of the Workplace Injury Act does not require the plaintiff to file a statement of claim which is identical to the one which was filed as part of the pre-filing process. It just cannot be materially different. Indeed, it should be incumbent upon a plaintiff to ensure that a statement of claim filed in this Court is properly pleaded, albeit - as required by s 318 - not materially different from the proposed statement of claim served with the pre-filing process.
29. It may be that the pleader thought it appropriate to adopt the words used in s 5B of the Civil Liability Act and it may be that the second defendant viewed those paragraphs as making reference to the Civil Liability Act because they appear to come directly from s 5B and there is some reference to that Act in the correspondence. However, there is no reference to the Civil Liability Act in those paragraphs and, as indicated by Mr Sleight, the paragraphs are intended to reflect a proper pleading with reference to material facts and those matters which should always be pleaded in a negligence action. They do not create any material difference for the purposes of s 318 of the Workplace Injury Act.
30. In the circumstances the motion is dismissed.
31. I order that the second defendant pay the plaintiff's costs of the motion.

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: 24 October 2019