Tanuvasa v USG Boral Building Products

Notice of motion

1. I have before me a notice of motion filed by the defendant on 16 May 2022 whereby the defendant seeks leave to file an amended defence to belatedly raise a previously unpleaded limitation defence.
2. If a defence to that effect were to be upheld, then without more, the plaintiff's claim would necessarily fail. Initially, the plaintiff consented to the filing of the proposed amended defence, but he later withdrew his consent after the significance of that step was made clear to him in the course of the hearing of the defendant's application for leave.
3. These proceedings and the present application are governed by the provisions of the Civil Liability Act 2002 (NSW), ("CL Act"), and the Civil Procedure Act 2005 (NSW), ("CP Act").

Factual background

1. The factual background to the proceedings is that on 8 June 2016, the plaintiff, Mr Asela Rambo Tanuvasa, sustained injury whilst working for a labour hire company on a building site occupied by the defendant, USG Boral Building Products Pty Limited. The plaintiff claims that his injury occurred due to a breach of duty of care on the part of the defendant as the occupier of the premises where he was working.
2. Other than noting that the plaintiff was injured in an industrial accident, for present purposes, it is not necessary to delve further into the underlying facts except to observe that, at the ultimate hearing of the matter, the parties intend to rely upon expert evidence on both the liability and the damages issues. The plaintiff has already completed the service of the expert evidence on which he intends to rely.
3. If there was to be a hearing of the case as presently formulated on the existing pleadings, the parties estimate that the hearing would occupy 2 to 3 days. The plaintiff is in the position of being ready to take a hearing date forthwith, having completed all necessary procedural steps.
4. It is plain that if the defendant was permitted to rely upon the proposed limitation defence, a more extensive hearing would be required at the trial because, in those circumstances, as has been flagged in correspondence between solicitors, it seems that a necessarily reactive notice of motion would need to be filed by the plaintiff to seek leave to proceed by invoking the discoverability provisions of s 50D of the Limitation Act 1969 (NSW).
5. An application along those lines would necessarily have to be heard at the commencement of the hearing of the principal case so as to avoid potential injustice, including as would arise from further interlocutory delays, and this would inevitably also involve an additional layer of costs: Pomare v Whyte [2019] NSWCA 317, at [5].
6. In a case that was to proceed along those lines, on a conservative estimate, a combined hearing would be likely to require more than 5 days. The parties did not demur to a revised estimate of that order.

Procedural history

1. On 21 December 2020, the plaintiff's statement of claim was filed. This occurred some 18 months after the expiry of the applicable 3-year limitation period.
2. On 21 December 2020, the Registry of the Court wrote to both parties to identify a procedural timetable which required a defence to be filed within 28 days of service of the statement of claim.
3. On 24 December 2020, the defendant, by its solicitors, Makinson d'Apice, filed an unconditional appearance in the proceedings, thereby confirming that the plaintiff's statement of claim had been served.
4. Therefore, in line with the Court's case management requirements as communicated to the parties and referred to at paragraph [11] above, the expectation was that a defence should have been filed by 21 January 2021.
5. On 20 September 2021, 9 months later, and notwithstanding that requirement, the solicitor for the defendant filed the present defence to the plaintiff's statement of claim. That defence raised a series of comprehensive statutory defences which the defendant considered to be available: s 5B, s 5D, s 5F, s 5G, s 5H, s 5I, s 5R, s 5S, of the CL Act, as well as other defences, pursuant to s 151Z of the Workers Compensation Act 1987 (NSW), claiming that alleged notional negligence on the part of the plaintiff's employer should be reflected in a reduced award of damages to the plaintiff.
6. The defendant also pleaded a specific statutory defence pursuant to s 51(2)(b) of the District Court Act 1973 (NSW) objecting to any award of damages over the jurisdictional limit of $750,000, as is presently applicable to this case, absent a consent to unlimited jurisdiction. (Paradoxically, if the plaintiff had brought his case against his employer as a work injury damages claim, there would be no limit on the Court's jurisdiction to award damages in a case of that kind.)
7. The defence as filed, also raised a general denial that the plaintiff was entitled to any of the relief that he claimed. However, and significantly, it did not raise or particularise any limitation defence.
8. The delay of 9 months between the time of the filing of the defendant's appearance on 24 December 2020 and the subsequent filing of its defence on 20 September 2021 was not adequately explained on the evidence. It seems that the defendant had deferred filing a defence pending the receipt of replies to requests for further and better particulars, and even then, once those particulars had been supplied, a further unexplained delay of 2 months ensued before the defence was actually filed.
9. It is difficult to understand why the question of particulars had delayed the filing of a defence, when the statement of claim was expressed in concise terms that adequately pleaded the material facts and clearly identified the cause of action which the defendant was required to meet.
10. The need for time to pass for the completion of correspondence concerning particulars was not a justification for the defendant's failure to file a defence within the time required by the rules and as was required by the Court in its correspondence to the parties as identified at paragraph [11] above.
11. When the pleadings closed at the time the defence was filed on 20 September 2021, the plaintiff was entitled to assume that the defendant had foregone, if not waived, its right to thereafter raise a limitation defence without the leave of the Court.
12. I do not accept the defendant's submission to the effect that the plaintiff was obliged to plead the fact that his statement of claim was the subject of a limitation bar which required leave to proceed. The plaintiff was not required to plead that his claim was statute barred. He could have commenced by way of summons seeking leave pursuant to s 50D of the Limitation Act, but he chose not to do so. In those circumstances, it was incumbent on the defendant to raise any limitation defence it wished to rely upon. It did not do so in a timely manner.
13. On 1 December 2021, the defendant first notified the plaintiff that it intended to amend its defence to raise the limitation bar. On 3 December 2021, in response, the solicitor for the plaintiff advised that the defendant needed to seek leave to file an amended defence. At that time, the defendant was advised that any such application would be vigorously opposed by the plaintiff.
14. On 6 December 2021, in response, the solicitor for the defendant indicated that leave would be sought at the next directions hearing. On the same date, in correspondence, the solicitor for the plaintiff noted that the solicitor for the defendant had refused to articulate the reasons for seeking to amend the defence. Ultimately, on that date after exchanges of email correspondence, the solicitors for the parties arrived at the position suggested by the solicitor for the defendant, namely, to leave the question of the proposed amendment to the forthcoming directions hearing, which was scheduled for 14 April 2022, which at some stage was administratively changed to 13 April 2022.
15. The directions given by the Judicial Registrar on 13 April 2022 required the defendant to file its notice of motion by 13 May 2022 to seek leave to amend the defence. That was the next appropriate procedural step. That motion was in fact filed on 16 May 2022. That motion was first listed on 3 June 2022, and then later fixed for a hearing on 15 July 2022.
16. It is noteworthy that although the defendant was, by order made on 12 November 2021, required to serve its expert evidence on medical issues and liability by 28 February 2021, there was some difficulty and delay in achieving this due to the plaintiff's Covid-19 vaccination status, him declining to be RAT/PCR tested, and a refusal by the defendant's expert to examine him in those circumstances. Consequently, on 13 April 2022, a subsequent order was made changing the date for the service of evidence to 1 August 2022, with liberty to the plaintiff to serve any expert evidence in reply by 28 August 2022.
17. On the foregoing timetable it is clear that a hearing date could have been allocated for the case to proceed in September 2022.

The present notice of motion

1. On 16 May 2022, the solicitor for the defendant filed the present notice of motion seeking the following orders: 1. The time for filing this Notice of Motion be abridged. 2. The defendant be granted leave pursuant to rule 19.3 of the Uniform Civil Procedure Rules to file the Amended Defence in the form annexed to the Affidavit in support of this application and marked "B". 3. The plaintiff to pay the defendant's costs of and incidental to this Notice of Motion. 4. Any such further or other orders as the Court sees fit.
2. In this application, the defendant concedes that, notwithstanding questions of consent, the question of whether or not leave should be granted to allow the defence to be amended as proposed is a question for the Court to decide in accordance with the dictates of justice: s 58(2) of the CP Act.

Legislation

1. The effect of s 56 of the CP Act, which requires the Court to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, and the effect of s 57 of that Act, which requires the disposition of the business of the Court to be managed justly, efficiently, in a timely manner, and in a cost effective way, are well understood, and need no further elaboration.
2. Section 64 of the CP Act provides: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate.
3. UCPR r 19.1(2) permits a defendant to amend a filed defence within 14 days of a plaintiff having amended a statement of claim without leave. Therefore, that provision has no application in this case.
4. UCPR r 19.3 provides: 19.3 Duration of leave or consent An order giving leave to amend a document ceases to have effect - (a) at the expiration of the time specified in the order as the time within which the amendment must be made, or (b) if no such time is specified, at the expiration of 14 days after the date on which the order is made.
5. UCPR r 19.4 provides: 19.4 Disallowance of amendment (1) If a party amends a pleading, as referred to in rule 19.1(1) or (2), the court may, by order, disallow the amendment. (2) Unless the court orders otherwise, notice of motion for such an order must be filed within 14 days after the date on which the amended document was served on the applicant. (3) If, on the hearing of an application for an order under this rule, the court is satisfied that, had an application for leave to make the amendment been made, it would not have granted leave to make the whole or some part of the amendment, the court must disallow the amendment or that part, as the case may be. Although s 64 of the CP Act provides for discretionary relief concerning the amendment of documents, that discretion must be reasoned, and exercised according to the dictates of justice: s 58(2) of the CP Act.
6. As to the requirements of the dictates of justice, s 58 of the CP Act provides: 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

Evidence

1. The defendant's notice of motion was filed with the supporting affidavit of Ms Abigail Tisbury, sworn 16 May 2022. At the hearing of the motion the parties read a wider range of affidavit evidence as, follows: 1. On behalf of the applicant defendant: 1. Affidavit of Abigail Tisbury, solicitor, sworn 16 May 2022; 2. Affidavit of Anthony Gerathy, solicitor, sworn 17 May 2022; 3. Affidavit of Abigail Tisbury, solicitor, sworn 13 July 2022; 1. On behalf of the respondent plaintiff: 1. Affidavit of Dunja Rakic, solicitor, sworn 13 April 2022; 2. Affidavit of Dunja Rakic, solicitor, sworn 30 May 2022; 3. Affidavit of Dunja Rakic, solicitor, sworn 20 July 2022.
2. Helpfully, the parties also produced a common Court Book: Exhibit "A", Tabs 1 - 13, pp 1 - 117. The relevant facts and circumstances referred to in these reasons have been extracted from that material, in addition to the record of orders made by the Court as noted on the Court file.

Review of previous listings and case management orders

1. In considering the merits of the application by the defendant to amend the defence, it is relevant to review the litigation conduct of the parties in light of their numerous appearances before the Judicial Registrar in the Online Court when facilitative case management orders were made aimed at advancing the proceedings towards the allocation of a hearing date: s 57 and s 58(2) of the CP Act.
2. The context was that since a very early stage of the proceedings following the filing of the plaintiff's statement of claim, namely by letter dated 21 December 2020 as appears on the Court files, the Registry made the parties fully aware that the Court's objective was to seek to fix a hearing date within 10 months of the filing of the plaintiff's statement of claim.
3. In considering the merits of the defendant's notice of motion it is relevant to review the chronological sequence of orders and events that followed the appearances of the parties in the Online Court when case management orders were issued by the Judicial Registrar. Essentially, this was as follows: 1. On 9 February 2021 the following orders were recorded: The hearing dates of 10 Feb 2021 10:45 AM and 06 Jul 2020 09:30 AM are vacated (1) Defendant to request for further and better particulars by 16 February 2021. (2) Plaintiff to respond to defendant/s request for further and better particulars by 9 March 2021. (3) Plaintiff to advise Defendant of all medical and liability experts they are retaining by 15 March 2021. (4) Defendant to file Defence by 16 April 2021. (5) Site inspection/view 30 April 2021. (6) Plaintiff to serve expert medical and expert liability evidence by 15 May 2021. (7) Defendant to serve expert medical and expert liability evidence by 5 July 2021; 1. On 12 July 2021 the following orders were recorded: The hearing date of 13 Jul 2021 09:30 AM is vacated (1) Plaintiff to serve expert liability evidence by 27 August 2021. (2) Any further orders for liability evidence to be supported by an affidavit; 1. On 22 September 2021 the following orders were recorded: The hearing date of 23 Sep 2021 09:30 AM is vacated (1) Parties to confer in relation to subpoena scope and documents to be produced by 11 October 2021. (2) In the event documents are not produced and the matter is not agreed, defendant to file and serve a Notice of Motion to set aside the subpoena issued by the plaintiff by 18 October 2021 and returnable 29 October 2021. (3) Costs reserved; 1. On 28 October 2021 the following orders were recorded: The hearing date of 29 Oct 2021 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 8 November 2021 9:30 AM 1. On 5 November 2021 the following orders were recorded: The hearing date of 08 Nov 2021 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 15 November 2021 9:30 AM 1. On 12 November 2021 the following orders were recorded: The hearing date of 15 Nov 2021 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 14 April 2022 9:30 AM (1) Defendant to produce the balance of the documentation under subpoena by 5 November 2021. (2) In the event that documents are not produced and the matter is not agreed upon, plaintiff to file and serve a Notice of Motion by 12 November 2021. (3) Plaintiff to serve expert liability evidence by 30 December 2021. (4) Defendant to serve expert medical and liability evidence by 28 February 2021. (5) Plaintiff to serve expert medical evidence in reply by 31 March 2021. (6) Defendant to pay the plaintiff's costs of this listing. (7) Defendant to serve its medical and liability evidence by 31 March 2022. (8) Any further adjournment to be supported by an affidavit otherwise parties to make an OLC request for hearing; 1. On 13 April 2022 the following orders were recorded: The hearing date of 14 Apr 2022 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 20 May 2022 9:30 AM (1) The defendant to serve a draft amended defence by 21 April 2022 and if consent not given to draft amended defence by 6 May 2022 an application to amend the defence to be filed and served by 13 May 2022 and returnable 20 May 2022. (2) Defendant to serve expert medical and liability evidence by 1 August 2022. (3) Plaintiff to serve any expert medical evidence in reply by 28 August 2022. (4) If no application pending any further adjournment to be supported by an affidavit otherwise parties to make an OLC request for hearing; 1. On 18 May 2022 the following orders were recorded: The hearing date of 20 May 2022 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 3 June 2022 9:30 AM (1) Plaintiff to respond to the OLC request. (2) The Notice of Motion filed 16 May 2022 is adjourned to 3 June 2022; 1. On 2 June 2022 the following orders were recorded: The hearing date of 03 Jun 2022 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 7 June 2022 9:30 AM 1. On 6 June 2022 the following orders were recorded: The hearing date of 07 Jun 2022 09:30 AM is vacated Directions recorded by the Registrar - Listed for Directions (Case Managed List) on 8 June 2022 9:30 AM (1) The defendant to provide available dates/confirm mutually available dates for a special fixture of the motion;
4. On reviewing the effect of those orders and listings, it is plain that until 13 May 2022, and until the Court ordered otherwise, both parties were proceeding on the premise that there was no operable limitation defence on foot. The plaintiff was therefore entitled to make an assumption along those lines absent an earlier formal application for an order granting leave to alter that position.

Course of hearing of the defendant's notice of motion

1. On 7 June 2022, after the defendant had filed its notice of motion on 16 May 2022, the Judicial Registrar ordered that the hearing of the motion be listed for 15 July 2022 with the expectation that, following that hearing, appropriate case management directions would take place, including undertaking an assessment of readiness for hearing, followed by the likely allocation of a hearing date.
2. The present range of dates available for the Court to allocate a hearing of a personal injury case of this kind, with a 2 - 3 day hearing estimate, on the present state of the pleadings, is that there are some dates currently available in August 2022, with further dates being available from and including September 2022.
3. On 15 July 2022, the hearing of the notice of motion commenced before me. The parties appeared with proposed consent orders as follows: 1. Leave granted for the defendant to file and serve its amended defence by 21 July 2022. 2. Hearing of the motion listed 15 July 2022 be vacated. 3. Parties to bear their own costs of and incident(al) to the motion.
4. It is common ground that leave was required for the making of such orders. In those circumstances, having regard to the dictates of justice, an inquiry was made of the parties concerning matters relevant to the exercise of the discretion on whether or not leave should be granted: s 58(2) of the CP Act; T1.30 - T2.14.
5. In those circumstances, on inquiry, where the detail of the plaintiff's instructions on the matter of consent became less clear, in the interests of justice, it was determined that counsel for the plaintiff, Mr Malouf, should have the opportunity of consulting his client to seek clarification of his instructions. The matter was temporarily stood down in the list for that purpose.
6. Mr Malouf took the opportunity to seek instructions from the plaintiff, and shortly afterwards, the plaintiff appeared by means of an AVL connection. At that time, and contrary to the effect of the proposed consent orders, the Court was informed that the plaintiff did not want to have the limitation issue raised in his case.
7. At that time, it was made clear that previously, he had not initially opposed the defendant's motion simply because he wanted the matter to proceed smoothly: T2.48. Plainly, he had not understood the effect of the proposed consent order and the proposed amended defence.
8. On behalf of the defendant, Mr Coffey properly conceded that ultimately the question of whether leave should be granted was a discretionary matter for the Court.
9. On 15 July 2022, following the above developments, and after hearing further argument, the hearing of the motion was stood over to Friday 22 July 2022, to allow the parties to provide any further affidavit evidence if they wished to do so, by 20 July 2022, with replies limited to questions of prejudice, by 19 July 2022. The parties were also required to exchange written submissions. The question of costs was reserved.

Submissions of the parties

1. On 22 July 2022 the hearing resumed and the affidavit evidence identified at paragraph [35], was read. The parties then made their oral submissions to augment their written submissions.
2. In the submissions properly made on behalf of the plaintiff, having regard to questions of professional comity, no issue was taken with the factual explanation given by Ms Tisbury as referred to earlier concerning why the defendant had not filed a timely defence raising the limitation issue.
3. In that regard due allowance must be made for the combination of the changed professional working conditions for solicitors during the Covid-19 pandemic, and the identified health and other issues that had an effect on Ms Tisbury's work on the defence case, whilst at home, in isolation and unable to access the hard copy of the defendant's solicitor's file.
4. The substance of the submissions made by the plaintiff was that notwithstanding those matters, there was a significant and a material delay in the filing of the present notice of motion after the defendant's omission to file a limitation defence had come to light. This was in circumstances where the objection to the proposed amendment was clearly communicated by the plaintiff's solicitor on 3 December 2021, and where there was a delay in the filing of the motion seeking leave to amend, where the filing did not occur until 16 May 2022.
5. This was over 5 months after the solicitor for the plaintiff informed the solicitor for the defendant of the need to file that motion. No specific explanation has been given for that delay other than that the parties had thought or assumed, incorrectly, that the issue should be dealt with at a listing hearing.
6. That was an unreasonable and risk-laden assumption where the solicitor for the plaintiff gave no indication that there would be a change in the plaintiff's earlier stated position of objecting to the proposed amendment, which meant that a notice of motion seeking leave was required.
7. In his resistance of the defendant's application to amend, the plaintiff relies upon the inherent prejudice that arises in litigation due to delay, where, prior to 3 December 2021, the plaintiff's case had proceeded on the assumption that there would be no limitation defence. The plaintiff also relies upon the further consequential prejudice that evolved in the ensuing 5 months, where the plaintiff continued to incur costs in the litigation and where the defendant had not taken any formal procedural steps to seek leave to rely on a limitation defence, knowing that any such step would be opposed.
8. This was in circumstances where the plaintiff's case had reached the point where service of primary evidence on the liability and damages issues has been completed and the allocation of a hearing date was the next expected procedural step.
9. It is against that background that the plaintiff now argues that to permit the defendant to raise a limitation defence at this late stage would lead to a substantial prejudice where the defendant would be able to achieve a hitherto un-pleaded opportunity to defeat the plaintiff's case entirely.
10. This would necessarily raise the spectre of a need for the plaintiff to pursue an application for leave pursuant to s 50D of the Limitation Act 1969. That course would without doubt be productive of further avoidable cost and further prejudice which would be caused by avoidable delay, as in those circumstances the case would not be allocated a hearing date before mid-2023, rather than in August/September 2022.
11. In contrast, on behalf of the defendant it was in essence submitted, first, that substantial weight should be given to the fact that the plaintiff had earlier agreed to the filing of consent orders that would enable a grant of leave to the defendant to amend its defence, and secondly, "there is no express evidence that [in the event of a grant of leave] the plaintiff's claim would be rendered futile".
12. With regard to the latter point, the defendant further submitted that, absent specific affidavit evidence capable of being tested, the Court was not entitled to draw an inference that the plaintiff's claim would become futile. That submission must be rejected. The Court is not only entitled to have regard to its own calendar and listing arrangements, but it is in a position to have regard to the likely legal effect of a belated limitation defence, if permitted to be pleaded, in terms of likely prejudice to the opposing party.
13. With regard to the former point, the issue of amendment was always going to be subject to whether or not leave should be granted, and that question would have to be determined by an examination guided by the dictates of justice.
14. The defendant sought to justify the delay in filing the original defence by arguing that there had been an asserted delay in the supply of further and better particulars by the plaintiff until 23 July 2021. That submission must also be rejected for the reasons identified at paragraphs [18] to [19] above.
15. The defendant's ultimate submission was that disallowing an entitlement to rely upon a statutory defence (assuming there was an entitlement at this point in the proceedings), would substantially prejudice the defendant to a degree that would outweigh any prejudice to the plaintiff. That submission requires that a balancing exercise be undertaken.

Consideration and determination

1. In my view, on a consideration guided by the overriding purpose of the CP Act and the Uniform Civil Procedure Rules and the dictates of justice, the plaintiff's resistance to the defendant's notice of motion must prevail: s 56 and s 58(2) of the CP Act.
2. This is because there comes a point in litigation where the pleadings must define the issues for trial and the parties then proceed on that basis: Dare v Pulham [1982] HCA 70; 148 CLR 658, at [6]. Material changes to that position should only be made in the absence of any material prejudice to the affected party.
3. In this case, the defendant delayed filing its defence until 20 September 2021, notwithstanding the Court's requirement that it be filed within 28 days of service of the statement of claim. This has necessarily meant the plaintiff lost significant time in terms of securing a position of priority for the allocation of an earlier hearing date.
4. Whilst that litigation conduct which has led to procedural default is not the sole determining factor, it provides a relevant baseline for considering matters of prejudice because it was a significant cause of the subsequent compounding delays that have occurred which have prevented the plaintiff from achieving a timely hearing date.
5. In considering the defendant's application for leave, I am cognisant of the fact that the failure of the defendant to raise the now claimed limitation defence was initially due to the confluence of several acknowledged factors, the first being the changed professional working environment of the solicitor for the defendant, who was working in isolation, from home, in the times of Covid-19, with only limited access to the electronic version of the file and non-access to material parts of the hard copy of that file, and secondly, the very human impact of other factors that affected the defendant's solicitor, namely the devastating effect of illness and the death of a close friend.
6. If those two factors were the only ones to be considered, the defendant would have had a stronger case for justifying the exercise of the required discretion for a grant of leave as sought in the notice of motion filed on 16 May 2022, where the focus would have been unfortunate circumstantial oversight and personal difficulties. Properly, the stance ultimately taken on behalf of the plaintiff in this motion appropriately recognises and acknowledges that position.
7. However, those are not the only matters to be considered. Here, the spectre of an application for leave to amend was flagged by the solicitor for the defendant on 6 December 2021, but unreasonable delay then followed when the notice of motion, which sought that leave was not filed until 16 May 2022.
8. In that delay of just over 5 months, the defendant took no formal active steps to seek leave to amend its defence. In those events, the plaintiff was entitled to regard the pleadings as being closed and definitive of the issues for trial, especially where the plaintiff was taking other preparatory steps towards obtaining a hearing date in order to seek finality of the proceedings.
9. Relevant to the exercise of discretion, I consider that the element of the defendant's delay of 5 months in actually seeking leave to amend its defence, on top of the earlier delay in filing the defence, notwithstanding the Court's requirement to file the defence within 28 days, operates as a significant prejudice to the plaintiff due to tardy litigation conduct which should not be condoned.
10. Contrary to the submission made by the defendant, I do not accept that the delay in filing a defence pending outstanding correspondence over particulars was a justified element for delay in this case, where that delay was in contravention of the earlier unvaried directions issued by the Court, and where in the meantime, the defendant sought no remedial relief, assuming that such relief was indicated: s 58(2) of the CP Act.
11. In my opinion that element of tardiness disentitles the defendant to the leave now sought because of irreparable prejudice to the plaintiff caused by the disruptive consequences of that tardiness: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, per French CJ, at [5], [27], [35]-[36], and per the plurality, at [72], [90], [98] and [111].
12. If leave were to be granted as sought by the defendant, the extensive costs incurred by the plaintiff in preparing for a hearing date to be allocated would have been wasted due to the delay. That result would be a further material prejudice to the plaintiff. A compensatory order for wasted costs is not a remedy that overcomes prejudice due to delay arising from delinquent litigation conduct.
13. I do not accept the defendant's submission that the plaintiff would not be prejudiced by the proposed amendment. Real or material prejudice arises to the plaintiff because of the combined effect of the past delays already referred to, plus the further costs and delays that will inevitably arise from any emergent need to pursue an application pursuant to s 50D of the Limitation Act 1969.
14. This would involve a delay of almost a year before a hearing could occur, noting that this would also be a material cost to the plaintiff, in addition to the burden of losing the case if, beforehand, an application by him for relief from a limitation bar fails.
15. The ultimate prejudice to the plaintiff if a belated limitation defence were to be allowed is that the plaintiff's case would be primed for failure whereas beforehand, that was not the case.
16. The defendant placed emphasis on an argument that the plaintiff's statement of claim was filed in breach of UCPR r 14.14(1) and (3) by not pleading a limitation issue: Fitzgerald v State of New South Wales [2017] NSWSC 1602; Johnson v State of New South Wales [2017] NSWSC 1591; Jones v State of New South Wales [2017] NSWSC 1601; Wells v Commonwealth of Australia [2014] NSWSC 148.
17. In my view, respectfully, those cases, which undoubtedly and correctly state the principles that apply in limitation disputes, do not determine the present case, where the focus is the question of procedural delay caused by the tardy litigation conduct of a party.

Disposition

1. For the above reasons, I consider the defendant's notice of motion filed on 16 May 2022 should be dismissed with costs.

Orders

1. I make the following orders: 1. The defendant's notice of motion filed on 16 May 2022 is dismissed; 2. The defendant is to pay the plaintiff's costs of the dismissed notice of motion on the ordinary basis unless a party can show an entitlement to some other costs order; 3. Liberty to apply for further or other orders if required; 4. Having heard the parties, the Court will forthwith proceed to make further case management orders pursuant to s 56 of the Civil Procedure Act 2005 (NSW).

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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: 05 August 2022