Ge v King

1. [1]

   This judgment involves an application by the plaintiffs seeking leave to amend the summons to appeal.

2. [2]

   The first appellant is Guoging Ge. The second appellant is Shaoying Chen. They are husband and wife. They are represented by A Wilson of counsel. The respondent is Natalie King. She is represented by T Davy of counsel.

3. [3]

   Without intending any disrespect and for convenience of understanding, I shall refer to the parties by name. Ge and Chen (Ge and Chen) were the defendants in the Local Court and appellants in this Court; likewise, King was the plaintiff in the Local Court and respondent in this Court.

4. [4]

   Ge and Chen relied upon the affidavit of their solicitor, Joey Tass, dated 2 May 2025. King relied on the affidavit of her solicitor, Timothy Mitchell, dated 4 June 2025.

Notice of motion dated 2 May 2025

1. [5]

   On 2 May 2025, Ge and Chen filed a notice of motion requesting that this Court grant leave to amend their summons to include two further grounds, one that was not raised at the hearing in the Local Court. Ge and Chen seek leave to amend the summons to appeal to include the grounds of appeal at pars 10 and 11. They are:

2. [6]

   King opposes the application for leave on the basis that the amendments involve a matter that was not raised at first instance, being, that King was obliged to maintain a policy of workers compensation insurance.

3. [7]

   There is no dispute that proposed appeal point 10 was not argued at first instance.

Ge and Chen’s submissions in this Court

1. [8]

   Ge and Chen submitted that the amendments to the summons are sought for a proper purpose, are proper in substance and form, do not cause prejudice and are consistent with the dictates of justice.

2. [9]

   Counsel for Ge and Chen contend that there is no evidence that could have been given in the Court below that could have possibly prevented the relevant appeal points from succeeding. There is no dispute that King had an obligation to maintain a workers’ compensation insurance policy and failed to do so.

Background

1. [10]

   The factual background is not in dispute. In October 2021, King engaged Yuping Chen as a nanny (Ms Chen). The engagement of Ms Chen was facilitated through an agency, Meiqi Housekeeping Services (the agency). Ge and Chen are the registered proprietors of the property known as XXX March Street, Bellevue Hill NSW 2023 (the premises). King occupied the premises from 10 January 2022 pursuant to a Residential Tenancy Agreement with Ge and Chen.

2. [11]

   On or about 13 January 2022, an electronic roller blind fell from its fixture and landed on the finger of Ms Chen (who incidentally has the same surname as the second appellant), causing an injury (injury). It is common ground that at the time of the injury, King did not maintain a workers’ compensation insurance policy in relation to Ms Chen. The agency refused to pay the expenses of Ms Chen on the basis that the injury was a workers’ compensation matter. Insurance and Care NSW (iCare) processed a workers’ compensation claim on behalf of the nanny and sought to recover the costs of that claim from King.

3. [12]

   On 20 October 2022, iCare and King entered into a deed (the deed). Under the deed, King paid $40,000 to iCare. King engaged Bellrock Advisory, an insurance consultant, to deal with the claim by iCare. The cost of those services was $8,000.

4. [13]

   In the Local Court proceedings, King succeeded in claiming damages for:

   1. (1)

      the monies paid to iCare in the sum of $40,000; and

   2. (2)

      costs associated with the workers’ compensation claim.

5. [14]

   King was represented by T Davey of Counsel and Ge and Chen were self-represented, by Ge, in the Local Court.

6. [15]

   The judgment of the Local Court is the subject of this appeal.

The Workers Compensation Act 1987 (NSW)

1. [16]

   The facts that formed the basis of King’s case in the Local Court reflect the obligations imposed on King under workers’ compensation legislation. As an employer or a deemed employer, King was required to maintain a policy of workers’ compensation insurance in respect of Ms Chen.

2. [17]

   Section 155 of the Workers Compensation Act 1987 (NSW) (WC Act) relevantly reads:

3. [18]

   This is not limited to relationships of employment at common law: Hollis v Vabu (2001) 207 CLR 21.

4. [19]

   Section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act) relevantly reads:

5. [20]

   Schedule 1, s 2 of the WIMWC Act has effect in respect of deemed employment and relevantly states:

6. [21]

   The admissions contained within the statement of claim and affidavits of King in the Local Court indicate that Ms Chen was a worker for whom King had an obligation to maintain a workers’ compensation insurance policy.

7. [22]

   Where no such policy is in effect, an injured worker may pursue a claim against iCare as the nominal insurer. Section 140 of the WC Act relevantly reads:

8. [23]

   The pleadings and evidence of King in the Local Court indicate that Ms Chen made a claim against iCare as the nominal insurer, pursuant to this provision.

9. [24]

   In such circumstances, the nominal insurer can recover the costs of the claim from the employer. Section 145 of the WC Act relevantly reads:

10. [25]

    The pleadings and evidence of King in the Local Court indicate that iCare, as the nominal insurer, claimed against King as Ms Chen’s employer pursuant to this provision, and that the claim was settled by way of the deed.

11. [26]

    Ge and Chen concede that the proposed ground 10 was not raised below, but King maintains that the question of quantum was not in issue below and no challenge was made to the evidence of King in respect of damages.

The pleading framework in the Local Court

1. [27]

   The staring point is the pleading framework.

2. [28]

   The statement of claim filed 24 November 2023 alleged:

3. [29]

   On 7 December 2023, Ge filed the defence. It seems that he filed it on behalf of Chen and himself. The defence pleaded:

4. [30]

   Neither party referred to the tenant’s obligation to obtain a workers’ compensation policy in relation to Ms Chen.

The hearing in the Local Court, Waverley

1. [31]

   On 7 and 18 November 2020, the hearing took place before Magistrate Nash (the Magistrate). On 18 November 2024 the Magistrate delivered an ex tempore judgment. King relied on two affidavits dated 22 March 2024 and 19 July 2024. She was represented by T Davy. At the hearing, Ge represented himself and Chen. Ge cross-examined King.

2. [32]

   Ge also relied upon an affidavit dated 18 April 2024 that essentially stated that he had no knowledge of the latent defect of the blind. He deposed that on 10 January 2022, before the tenant moved in, he operated all the blinds a number of times. On the same day, the real estate agent sent King the entry condition report. No issues were identified as being in an unsatisfactory condition in the house. A copy of the entry condition report was attached to Ge’s affidavit. On the morning of 13 January 2022, he was notified by King that the electrical blinds in the loungeroom had “fell off” and her nanny’s finger was injured.

3. [33]

   Chen relied upon her affidavit dated 18 April 2024. Her affidavit is in similar terms to that of Ge. Ge was cross-examined and gave evidence as follows:

4. [34]

   At T7 [23]-[26], counsel for King stated the following:

5. [35]

   At T11 [26]-[27], counsel for King further stated:

The ex tempore decision of the Magistrate dated 18 November 2024

1. [36]

   On 18 November 2024, the Magistrate made findings as follows:

King’s submissions in this Court

1. [37]

   In opposing the motion, King relies on the affidavit of her solicitor, Timothy Mitchell dated 4 June 2025 (Mitchell affidavit). While his affidavit has been the subject of criticism by counsel for Ge and Chen, I will only refer to the relevant parts of his evidence.

2. [38]

   Mitchell deposes in his affidavit at par 7:

3. [39]

   At par 9:

4. [40]

   At par 10:

5. [41]

   At par 16:

The law

1. [42]

   The Court has the power to require or grant leave to amend the summons as set out in s 64 of the Civil Procedure Act 2005 (NSW) (CPA). That power is expressly limited to necessary amendments and “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”: s 64(2) of the CPA. Section 64 of the Civil Procedure Act 2005 (NSW) (CPA) relevantly provides:

2. [43]

   In Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australla Pty Ltd [2006] NSWSC 249, the Court said at [11]:

3. [44]

   Ritchie’s Uniform Civil Procedure (NSW) at [s 64.10] states:

4. [45]

   Such an order is also constrained by the dictates of justice as set out in s 58 of the CPA, which expressly requires the court to consider the overriding purpose in ss 56 and 57 and the court may consider, to the extent relevant, the following matters (s 58(2)(b)):

5. [46]

   King submitted that of the abovementioned considerations, the most relevant factors to the present application are (v), (vi) and (vii), although (i) and (ii) may also have some weight.

Raising a new point on appeal

1. [47]

   In considering whether to allow any amendment, the Court must determine whether or not an order for costs would be sufficient to cure any prejudice arising to King: Heath v Goodwin (1986) 8 NSWLR 478; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. The capacity of an appellant to argue a point not argued at first instance is tightly circumscribed.

2. [48]

   Ge and Chen referred to Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 (‘Cappello’). In Cappello, the Court of Appeal stated at [37]:

3. [49]

   King maintains that the question of quantum was not at issue below at all and no challenge was made to the evidence of King in respect of the damages incurred. To the extent that ground 11 is not a mere extension of ground 10, and thus caught by the same considerations, it is contended that it too falls foul of the principles articulated CPA and the relevant considerations.

4. [50]

   While it is accepted that the statements of Leeming JA in Capello at [37] is a correct statement of the law, in that a new point cannot be taken on appeal if evidence could have been given which could “by any possibility” have prevented the point from succeeding, it is not a statement as to all matters or legal principles which apply in circumstances were a party seeks to amend a summons to include a proposed ground that has not been raised before.

5. [51]

   Leeming JA in Capello at [37] referred to and followed the well-known principle in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (‘Suttor’), where Latham CJ, Williams and Fullagar JJ said:

6. [52]

   Their Honours in Suttor then went on to refer to the decision of the Privy Council in Connecticut Fire Insurance Co v Kavanagh (1892) AC 473 at 480 where Lord Watson said:

7. [53]

   In this appeal, prejudice or injustice to King could arise where an opportunity for compromise has been lost. Thus, as Tadgell J in Geelong Building Society (in liq) v Encel [1996] 1 VR 594 said at 608-609:

8. [54]

   A Court may refuse to allow an amendment to a pleading on appeal where further evidence is required or findings of fact were not made in the Local Court. In Banque Commerciale S.A., En Liquidation v. Akhil Holdings Ltd (1990) 169 CLR 279 at 284 (‘Banque’), Mason CJ and Gaudron J referred to:

9. [55]

   Their Honours in Banque continued that some aspects of this rule:

10. [56]

    While the above principles are fundamental and address technical issues that constitute the interests of justice, the finality of litigation and the importance of parties being bound to the cases they make at trial should not be overlooked: Crampton v R [2000] HCA 60 at [15] per Gleeson CJ and at [157] per Hayne J. This is underscored in the decision of the High Court in University of Wollongong v Metwally (No 2) [1985] HCA 28 where the Court said at [7]:

11. [57]

    As McHugh JA said in Holcombe v Coulton (1988) 17 NSWLR 71 at 76-77:

12. [58]

    In Coulton v Holcombe (1986) 162 CLR 1 at 7:

13. [59]

    Finally, in Whisprun Pty Ltd v Dixon [2003] HCA 48 Gleeson CJ, McHugh and Gummow JJ observed at [51] that:

King’s submissions

1. [60]

   Ge and Chen made decisions at first instance about the case they wanted to put before the Court. They elected to pursue a simple case about what they asserted was the effect of ss 52 and 63 of the Residential Tenancies Act 2010 (NSW). They are sophisticated and commercial individuals with a substantial property portfolio. They chose not to obtain formal legal representation, although they were given the opportunity to do so during the procedural development of the proceedings in the Local Court. They could have made any appropriate challenge to the evidence of King and did cross-examine her but did not raise any disputes about the quantum of damages or the entitlement of King to recover based on an obligation to obtain workers’ compensation insurance. The trial judge is entitled to have an opportunity to consider a matter and exercise his discretion, where it called for, before being told that the appeal had been allowed upon a point he had no opportunity of considering: Sutherland v. Thomson (1906) AC. 51 at 55.

Resolution

1. [61]

   It is my view that at the time of the hearing in the Local Court, Ge and Chen unwisely elected to be self-represented. In their defence, they did not allege that the tenant was obliged to have a workers’ compensation policy in place for Ms Chen but rather they focused on the issue of whether they had complied with s 52 of the Residential Tenancies Act to ensure that the residential premises were clean and fit to live in as the electric roller blinds, being a fixture on the premise, fell and caused injury to Ms Chen who was employed by King.

2. [62]

   It is my view that the new issue raised in point 10 of the amended summons does raise a pure question of law. While King has raised s 155 of the WC Act and cl 2A of Sch 1 of the WIMWC Act, as matters for consideration, in my view, the proposed ground raises a question of pure law. In the interests of justice, Ge and Chen should be granted leave to file an amended notice of appeal to include the proposed appeal ground 10.

3. [63]

   The proposed appeal ground 11 is whether the Magistrate gave any reasons or adequate reasons. This proposed appeal ground is a generic one and should have been raised in the notice of appeal filed on 16 December 2024. The Magistrate did give extensive reasoning as to the issues raised before him. In any event, it is my view that proposed appeal ground 11 has no merit leave to amend the grounds of appeal to include proposed ground 11 is refused.

Costs

1. [64]

   Costs are discretionary. Costs are reserved.

Orders

1. [65]

   The Court orders that:

   1. (1)

      Leave is granted to the appellants to file an amended summons to include proposed appeal ground 10.

   2. (2)

      Leave to amend the grounds of appeal to include appeal ground 11 is refused.

   3. (3)

      Costs are reserved.