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[2026] NSWSC 651
Supreme Court of NSW
2026-06-05
Chen J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Thomson v Liberty Mutual Insurance Company trading as Liberty Specialty Markets [2026] NSWSC 651
Hearing dates: 05 June 2026
Date of orders: 05 June 2026
Decision date: 05 June 2026
Jurisdiction: Common Law
Before: Chen J
Decision: See [53] and [62]
Catchwords: CIVIL PROCEDURE – notice of motion to enter consent judgment – where entering judgment in favour of the first defendant would foreclose the second defendant’s ability to seek statutory contribution – whether entry of the consent judgment should be deferred until the plaintiff’s claim is determined
CIVIL PROCEDURE – notice of motion to file a third amended statement of claim joining two additional defendants – whether the amended pleading involves the plaintiff re-litigating the claim against the first defendant
Legislation Cited: Civil Procedure Act 2005 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aleknavicius v Pharmacia & Upjohn (unreported, NSWSC, 19 October 2000)
Cockatoo Dockyard Pty Limited v The Commonwealth of Australia [2001] NSWCA 468
James Hardie & Co Pty Ltd v Seltsam Pty Limited (1998) 196 CLR 53; [1998] HCA 78
New South Wales Crime Commission v Tran [2015] NSWSC 542; (2015) 251 A Crim R 214
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229
Category: Procedural rulings
Parties: Kerrie Thomson (plaintiff)
Liberty Mutual Insurance Company) trading as Liberty Specialty Markets ABN 61 086 083 605 (first defendant)
City of Parramatta Council ABN 49 907 174 773 (second defendant)
Representation: Counsel:
E Grotte (plaintiff)
L Moussa (first defendant)
Solicitors:
Turner Freeman (plaintiff)
Wotton Kearney (first defendant)
McCulloch & Buggy Lawyers (second defendant)
SMK Lawyers (third defendant)
File Number(s): 2023/00232381
Publication restriction: Nil.
These reasons deal with two partly overlapping applications in a ‘trip and fall’ claim.
The first application (a notice of motion filed 12 February 2026) seeks an order entering judgment in favour of the first defendant in accordance with a settlement reached between it and the plaintiff. That application is brought by the first defendant but is opposed by the second defendant – essentially on the ground that entering judgment would foreclose any application for statutory contribution against the first defendant by it, or two parties who are proposed to be added as further defendants.
The second application (a notice of motion filed 8 May 2026) seeks leave to file the third amended statement of claim (‘3ASOC’). That application is brought by the plaintiff, consented to by the second and proposed third defendant, but opposed by the first defendant – essentially on the ground that the 3ASOC impermissibly continues to refer to a claim against the first defendant, given the settlement between it and the plaintiff.
The applications were heard together.
On the first application, the first defendant read affidavits from Chanel Bou-Francis sworn 10 February and 2 March 2026 and the second defendant read an affidavit from Ramjit Singh affirmed 7 April 2026.
On the second application, the plaintiff read an affidavit from Thomas Schembri sworn 6 May 2026 and the first defendant read an affidavit from Stephanie Doueihi sworn 14 May 2026.
None of the deponents were required for cross-examination.
The plaintiff’s case is that, whilst walking along the footpath of Smith Street, Parramatta on 2 May 2020, she tripped and fell on a sunken and uneven section of footpath, causing her to suffer personal injury. She was at that location as part of her work as a traffic controller (CB 464). By her current pleading, being the second amended statement of claim (‘2ASOC’), she alleges that the area where she fell had been the subject of works by Excel Galaxy Technology Services Pty Limited (‘Excel’) to install cables for the National Broadband Network (‘NBN’) and that by, and following, completion of that work, the footpath area had been negligently restored given the subsidence that occurred (CB 4-5).
By the 2ASOC, the principal contention of the plaintiff is that Excel, being the entity responsible for the trenching and restoration work in that area, is liable in damages for the injuries and loss suffered by her in the fall. A further contention of the plaintiff is that the local Council (the second defendant) is also liable in damages for the injuries and loss suffered by her in the fall because it “had actual knowledge of the undulated and subsided footpath prior to the plaintiff’s accident” (2ASOC, par 15; CB 6).
Initially, the plaintiff’s liability expert (a civil engineer, Mr Philip Martin) expressed the opinion, in his report dated 6 February 2025, that the entity responsible for the restoration work implicated in the plaintiff's fall was Excel – who had undertaken cabling work in and around the footpath area for the NBN (6 February report at [36]-[46]). (It may be noted that the opinion that Excel did the work was essentially assumed by him, based upon the letter of instruction he received dated 17 June 2024 (6 February report at [14])).
Subsequently, in a revised report dated 22 December 2025, Mr Martin expressed a different opinion. Based upon his review of documents produced under subpoena, principally by Transport for NSW (described as “subpoena packet 15”), he considered that the entity responsible for the restoration work implicated in the plaintiff's fall “was the contractor engage[d] to carry out the laying of the cables for the traffic signals, which are located outside the entry to Lancer Barracks” (22 December report at [40]; CB 508). In relation to this opinion, Mr Martin did not identify the entity who restored the area following cabling works associated with the nearby traffic lights, but in the 3ASOC, the plaintiff alleges that it was Corrigan Traffic Signals Pty Ltd (‘Corrigan’): see [26]-[27], below.
On 27 November 2025, the first defendant made an offer to the plaintiff to resolve the proceedings against it upon terms that judgment be entered in favour of the first defendant with no order as to costs (Bou-Francis 10 February affidavit, par 7; CB 45).
On 23 December 2025, given the opinion expressed by Mr Martin in his report dated 22 December 2025, the plaintiff accepted the offer of settlement made by the first defendant – namely, judgment for the first defendant and that “[e]ach party bear its own costs” (Bou-Francis 10 February affidavit, par 8; Schembri affidavit, pars 24-25; CB 38).
The plaintiff’s solicitor executed a consent judgment reflecting the above agreement on 5 January 2026 (CB 39).
The first defendant, by its application filed 12 February 2026, seeks entry of the order disposing of the claim against it in accordance with the consent judgment.
The plaintiff commenced proceedings for damages, against Excel only, by statement of claim filed in the District Court on 21 July 2023 (CB 424).
On 13 June 2024, the proceedings were transferred to this Court and, on 5 August 2024, given Excel was deregistered by that time, the plaintiff was granted leave to proceed directly against its public liability insurer – the first defendant (Schembri affidavit, pars 18-21; CB 392-393).
The plaintiff filed the 2ASOC on 5 May 2025 – which added the City of Parramatta Council as the second defendant (CB 489). The second defendant filed its defence to that claim on 18 September 2025. No cross-claim was filed, either at that time or at all, against the first defendant.
Following notification that the plaintiff had resolved the proceedings against the first defendant, the second defendant advised the parties on 5 January 2026 that it objected to entry of that judgment (Schembri affidavit, par 26; CB 393).
On 25 February 2026, the plaintiff circulated the 3ASOC (CB 531).
The first defendant filed its notice of motion on 12 February 2026, and on 24 March 2026, the Registrar fixed it for hearing on 5 June 2026.
The matter was listed for Judicial Case Management on 24 April 2026. At that listing, the plaintiff foreshadowed the need to file a notice of motion seeking leave to file an amended statement of claim, given the first defendant had indicated its opposition to the plaintiff filing the proposed amended pleading. On that day, I made orders for the filing and service of such an application, evidence and submissions, and ordered that the plaintiff’s application be listed for hearing on the same date and before the same judge as the first defendant’s notice of motion.
By the 3ASOC, the plaintiff seeks to add two additional parties.
One party is the plaintiff’s employer at the time of the alleged injury, Civforce Traffic Management Pty Limited. As against them, the plaintiff alleges that the duty owed to her required them “to ensure that the footpath that [she] worked from was [reasonably safe] and to identify and/or rectify tripping hazards” known to them (3ASOC, par 26; CB 538).
The other party is Corrigan – it being alleged that it was the entity who undertook “traffic signal installation works… which included trenching across the footpath immediately in front of 2 Smith Street, Parramatta” (3ASOC, par 29.2; CB 543). The plaintiff also alleges that Corrigan, having excavated a trench “across the footpath for the purpose of laying traffic signal cabling between pits located either side of the vehicle crossing at the entrance to Lancer Barracks”, then backfilled the trench and reinstated “the footpath surface using asphalt or hotmix” (3ASOC, pars 30.1-30.3; CB 544).
The principal contention of the plaintiff is that Corrigan, in reinstating the footpath surface, did so negligently, given the subsequent settlement and subsidence of it, and that the uneven surface created by it caused the plaintiff to trip and fall on 2 May 2020 (3ASOC, pars 36-37).
Relevantly here, the 3ASOC otherwise mirrors the 2ASOC.
Before addressing the competing arguments, it is convenient to note the following matters, which were common ground between the parties, that contextualise the positions adopted by each.
First, the decision in James Hardie & Co Pty L**td v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 (‘James Hardie’) confirmed that entry of judgment in favour of a defendant, even by consent, amounts to a final determination that the defendant is not liable: that event alone ends the right of contribution in a co-defendant, as the defendant would not be a tortfeasor “who is… liable in respect of the same damage” within s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW): at [40]-[41]; [125]-[127], [134]. Put simply, and directed to the present case, the entry of judgment in favour of the first defendant would take it out of the class of persons against whom an order for contribution could be made.
Secondly, the Court “[has] an overriding power to control its own proceedings” and is “not obliged to act upon [a] request by some of the parties before it that consent orders be entered”: James Hardie at [17] citing R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 392 (‘R D Werner’). Relevantly here, it is open to seek deferral of the entry of judgment until determination of the issue of the liability of the first defendant to the plaintiff: James Hardie at [19] and [133]. In determining whether to accede to an application of that kind, the Court considers “all relevant circumstances”, and the interests of justice: R D Werner at 392; s 56 of the Civil Procedure Act 2005 (NSW) (‘CPA’).
Thirdly, given the second defendant is a respondent to the first defendant’s notice of motion, it had a right to be heard before entry of the consent judgment in favour of the first defendant. Independently of that, in the general circumstances being considered, the entitlement to be heard turns upon whether the opposing party is “directly interested in the question” resolved by the consent orders: James Hardie at [17]; New South Wales Crime Commission v Tran [2015] NSWSC 542; (2015) 251 A Crim R 214 at [28]-[29].
I turn now to the arguments of the parties.
As noted, the second defendant argues that, consistent with the High Court’s decision in James Hardie, the entry of judgment would have the effect of foreclosing any claim for contribution which it might have against the first defendant; accordingly, entry of the judgment should be deferred until the disposition of the plaintiff’s action or further order.
By way of response, the first defendant argued that there was nothing in the High Court’s decision in James Hardie that supported the second defendant’s position: it argued that, properly analysed, there were “significant, and insurmountable[,] differences” between the circumstances in that case and the present proceedings which, in substance, mandate the entry of judgment in its favour (first defendant’s submissions at [21] and [28]-[30]).
The first defendant submitted that one such difference was that, unlike the position in James Hardie, no cross-claim for contribution has been filed by the second defendant against it, nor has one been foreshadowed (first defendant’s submissions at [29]). That difference may be accepted. However, contrary to what the first defendant essentially submitted, I do not regard that fact, of itself, to be decisive: the absence of a cross-claim, or an inability at an early point in time to formulate such a claim, does not disentitle the first defendant to the order it seeks. That follows, I consider, from the decision, and the circumstances, in Cockatoo Dockyard Pty Limited v The Commonwealth of Australia [2001] NSWCA 468 (‘Cockatoo Dockyard’) – a case that is sufficiently like the present one. In Cockatoo Dockyard, an order was made for the evidence of the plaintiff (who had a terminal asbestos-related illness) to be taken. After the plaintiff had given evidence and been cross-examined, he resolved his action against one of two defendants he had sued for damages by agreeing to judgment in that defendant’s favour. At that time, no cross-claims had issued between the defendants. The trial judge entered that judgment, despite the remaining defendant objecting to that occurring.
On appeal against the order entering the judgment, it was noted that the remaining defendant had conceded before the trial judge, in relation to the issuing of any cross-claim, that “there was still much investigative work to be done” and, further, noted that a claim for contribution “had not at that stage been formulated”. Despite these matters, the Court of Appeal held that they did not warrant an order that “peremptorily shut out” the remaining defendant from advancing a cross-claim: at [17], [19] and [20].
The first defendant next submitted that a further difference was that, unlike the position in James Hardie, the “proceedings are in their infancy” (first defendant’s submissions at [30]). I regard the fact that the “proceedings are in their infancy” and, as the first defendant also accepted, that the “pleadings have not yet closed” to be important, but as favouring the second defendant’s position, not the first defendant’s position. That was the situation in Cockatoo Dockyard, as just outlined.
Put a little differently, but to a similar end, it is not a case where, say, the proceedings are complex and lengthy, at an advanced stage with no extant cross-claims (albeit, they are foreshadowed), and at that point there is a settlement by a plaintiff against one but not all defendants. In that situation, the interests of justice may well require a different approach – as the decision in Aleknavicius v Pharmacia & Upjohn (unreported, NSWSC, 19 October 2000) demonstrates. That decision, and the decision in Cockatoo Dockyard, illustrate that the way and manner in which the Court controls its own proceedings in this context is necessarily fact-sensitive, case-specific and, ultimately, informed by the interests of justice.
In accepting that the proceedings are “in their infancy”, I have not overlooked the procedural chronology earlier set out (notably the commencement of the proceedings by the filing of the statement of claim in the District Court) but simply repeat that I accept the first defendant’s characterisation of the claim. The fact that an amended pleading is sought to be filed, the matter has not yet been listed for hearing and, given the proposed joinder of two additional defendants, any hearing date is likely to be in late 2027 reinforces my finding about the proceedings being in their infancy.
The first defendant also submitted that, absent an extant or a “potential claim that requires preservation”, to defer entry of judgment would contravene an “established line of authority” (first defendant’s submissions at [31]). I disagree. The decision in Cockatoo Dockyard, as I have explained, demonstrates that there is no such established line of authority in the way argued.
The first defendant argued that the dictates of justice were against the second defendant’s position because, so the argument went, deferring entry of judgment would mean that the plaintiff “is forced, against her own expressed position, to prosecute her claim” against the first defendant and, as a corollary, the first defendant would be “[required] to continue to defend a claim against it by an unwilling [plaintiff], at a considerable cost”, including by preparing evidence and attending the hearing (first defendant’s submissions at [30]). Quite how or why this could occur was not explained. This submission, which I do not accept, is entirely misplaced. The agreement to terminate the proceedings reached between the plaintiff and first defendant remains unaffected by any deferral of the entry of judgment: Cockatoo Dockyard at [23]. Thus, contrary to what was submitted, the plaintiff would not be prosecuting any claim against the first defendant; axiomatically, the first defendant would not be required to defend any such claim.
The first defendant also submitted that the second defendant had adopted “quite an extraordinary position… by… in effect… seeking to disturb the agreement reached between [the plaintiff] and [the first defendant], without any proper or defined basis for doing so” (first defendant’s submissions at [32]). Precisely how or why that was said to result was not explained. I do not accept that submission. The deferral of entry of judgment does “not [affect] the efficacy of an agreement to terminate proceedings between a [p]laintiff and a [d]efendant”: Cockatoo Dockyard at [23].
The first defendant then submitted that, even if the second defendant foreshadowed an intent to file a cross-claim for contribution against it, there was no evidence identifying the basis of that claim, nor could the Court speculate on whether leave would be granted to bring such a cross-claim in “the absence of evidence explaining the delay” (first defendant’s submissions at [33]).
In relation to the argument that there was no evidence identifying the basis of any cross-claim, that may be so. The present application, however, is not the occasion for such an enquiry (the issue may possibly arise at the time any application for leave to file a cross-claim against the first defendant is made). Rather, the focus is whether the second defendant should be precluded, given the findings I have earlier made, from doing so.
In relation to the argument that the Court could not speculate on the outcome of any application for leave to file a cross-claim, given the “absence of evidence explaining the delay”, I am unable to accept, as the first defendant submitted, that the absence of an explanation for the delay necessarily inhibits the Court from assessing the outcome of any such application, were it to be made. There are, I consider, more than sufficient known, and undisputed, facts upon which to make such an assessment (preliminary or otherwise) – including: the accepted “infancy” of the claim; the matter is not listed for hearing; and any hearing date of the matter would likely not be before the end of 2027 (particularly given the intent of the plaintiff to add additional defendants to the proceedings). Further, even if the explanation for the delay in filing a cross-claim does not justify it, that does not preclude a favourable exercise of the discretion: Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 at [29]-[30].
The above matters all strongly point towards a grant of leave. Additionally, the fact that the second defendant could, if so advised, file a statement of claim seeking contribution from the first defendant is also a material consideration as to whether leave would be granted.
So far, I have dealt with the first defendant’s argument by assuming that the second defendant would be required to seek leave to file any proposed cross-claim seeking contribution or an indemnity from the first defendant. However, given an amended statement of claim is to be filed, the second defendant would, I consider, have an entitlement to file a cross-claim at the time it files its defence to that amended claim: see rr 9.1(1)(a) and 14.3(1) of the Uniform Civil Procedure Rules 2005 (NSW).
It follows from the above that I do not accept any of the arguments raised by the first defendant to support the entry of judgment in its favour.
In my view, no material prejudice or disadvantage would result from deferring entry of judgment: the first defendant will either remain a non-active party (and, following the matter’s disposition by settlement or judicial determination, able to seek entry of the judgment in its favour) or be joined to the proceedings as a cross-defendant. In the first situation, the first defendant did not suggest that there was any particular disadvantage to it and, in my view, the only possible disadvantage would be the incurring of a nominal amount of costs associated with the entry of judgment. In the second situation, no disadvantage arises given the question of their liability to make contribution (if any) will be resolved by later determination. For the second defendant, and potentially the additional defendants (at least the employer – assuming the party responsible for the work is either the first defendant or Corrigan), the entry of judgment in proceedings that are in their infancy would foreclose the right to seek contribution against the first defendant, and could well lead to significant prejudice to them. The interests of justice, in my view, clearly favour deferring the entry of judgment.
Given the limited way in which the first defendant sought to support the entry of judgment in its favour and my conclusion about where the interests of justice lie, it necessarily follows that the first defendant’s notice of motion should be dismissed.
The judgment should not be entered until disposition of the principal proceedings, or as the Court orders.
For the above reasons, I make the following orders in relation to the first defendant’s notice of motion:
Dismiss the notice of motion filed 12 February 2026.
Note that the plaintiff has compromised her claim against the first defendant by agreeing to judgment in favour of the first defendant with no order as to costs.
Order that the entry of that judgment be deferred pending disposition of the plaintiff’s proceedings or further order.
Order the first defendant to pay the plaintiff’s and second defendant’s costs of, and incidental to, the notice of motion filed 12 February 2026.
I have earlier outlined the key aspects of the proposed amended pleading – the 3ASOC: see [24]-[28], above.
The first defendant opposes a grant of leave for the plaintiff to file the 3ASOC, arguing that, despite the compromise of the claim, the proposed pleading still refers to the action against it. The first defendant submitted that this was demonstrative of the plaintiff seeking to “re-litigate the claim against” it and, building upon this, further submitted that it “will be required to continue to participate in the litigation as more than just a ‘nominal defendant’” given the “express pleading against it” (first defendant’s submissions at [23]).
It is important to add that the plaintiff at no stage has suggested, or sought to suggest, that she has any ongoing claim against the first defendant; plainly, she does not, given the agreement between her and the first defendant.
Notwithstanding the clear legal position, reinforced by the plaintiff’s confirmation as noted above, the first defendant persists in its opposition to the grant of leave on the grounds identified.
In my view, there is no substance to any of the first defendant’s arguments. The plaintiff has compromised her cause of action against the first defendant. That is where it ends, as the plaintiff has accepted.
It is true that, as the first defendant pointed out in its written submissions, the plaintiff could have sought leave to discontinue the proceedings against it. The plaintiff and second defendant accepted as much. But that order bears a different character to a judgment in its favour, which is what the first defendant is entitled to receive due to the compromise reached with the plaintiff.
The power to grant leave to amend the statement of claim is provided by s 64(1)(b) of the CPA.
As to the exercise of that power, I am satisfied it is appropriate to grant the plaintiff leave to file and serve the 3ASOC. Briefly, that is because: the plaintiff has provided a satisfactory explanation for the proposed amendments (in short, to join additional parties, including the one that is alleged to have negligently performed the restoration work, based upon recently secured expert evidence) – which I accept; I am satisfied that no prejudice to the first defendant arises by the grant of leave, particularly given it will have no further substantive involvement in the matter; the second and proposed third defendant consent to the plaintiff being granted leave; there are no case management or other considerations which tell against the grant of leave; and the overriding purpose and the dictates of justice (ss 56-58 of the CPA), in my assessment, all strongly favour the grant of leave sought by the plaintiff.
For the above reasons, I make the following orders in relation to the plaintiff’s notice of motion filed 8 May 2026:
Grant leave to the plaintiff to file the third amended statement of claim in the form annexed to the affidavit of Thomas Schembri sworn 6 May 2026, with the third amended statement of claim to be filed and served by 12 June 2026, 4pm.
Note that the plaintiff has compromised her claim against the first defendant and is not proceeding with it.
List the matter for directions on 25 September 2026.
Order that the plaintiff, at the time of serving the third amended statement of claim, advise the newly added defendants in writing of the further listing of the matter.
Order the first defendant to pay the plaintiff’s and second defendant’s costs of, and incidental to, the notice of motion filed 8 May 2026. The proposed third defendant is to bear its own costs of the motion.
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Thomson
Liberty Mutual Insurance Company trading as Liberty Specialty Markets