Andonov v Stojanovski (Ruling)
[2021] VCC 266
•19 March 2021
`
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-06294
| IN THE MATTER of Section 27K and/or Section 23A of the Limitation of Actions Act 1958 | ||
| BETWEEN: | ||
| ILIJA ANDONOV | Plaintiff/Applicant | |
| v | ||
| MILE STOJANOVSKI | Defendant/Respondent | |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2020 | |
DATE OF JUDGMENT: | 19 March 2021 | |
CASE MAY BE CITED AS: | Andonov v Stojanovski (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 266 | |
RULING
---
Subject:LIMITATION OF ACTIONS
Catchwords: Application for extension of time – application seeking declaration that three-year limit for commencement of proceedings for recovery of damages did not commence to run until determination of significant injury made; in the alternative, application for extension of time to bring a proceeding for the recovery of damages pursuant to s27 and/or s23A of the Limitation of Actions Act 1958
Legislation Cited: Limitations of Actions Act 1958 (Vic), s23A, s27K; Limitation of Actions Act 1936 (SA), s48(3); Victims of Crime Assistance Tribunal Act 1996; Sentencing Act 1991, s85B; Wrongs Act 1958; Family Law Act 1975; Evidence Act 2008, s92; County Court Civil Procedure Rules 2018, r 42
Cases Cited:Spirovski v Andonov & Anor [2011] VCAT 1689; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Delai v Western District Health Service & Anor [2009] VSC 151; Davies v Nilsen [2015] VSC 584; Tsiadis v Patterson (2001) 4 VR 114
Ruling: Extension of limitation period granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Applicant | Mr J Levine | Frank A Sanna |
| For the Defendant/Respondent | Mr W Drent | Christopher James Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1On 31 December 2019, Ilija Andonov filed an Originating Motion seeking principally:
(a) a declaration that the three-year limitation period did not start to run until 15 December 2015; and
(b) an extension of time to bring a proceeding for the recovery of damages against Mile Stojanovski.
2Both the declaration and the extension of time are opposed by Mr Stojanovski.
Circumstances
3In 2006, Mr Andonov conducted an architectural and building business through a company called Vaitex Pty Ltd (ACN 087 747 751) (“Vaitex”). During that year, Mr Andonov met Mr Stojanovski at a Macedonian community gathering where Mr Stojanovski learnt Mr Andonov was a registered builder. Mr Stojanovski wanted to build five townhouses and believed he needed a registered builder to do so. He was not a registered builder himself. To Mr Stojanovski, Mr Andonov or Vaitex was needed to satisfy certain legal requirements.
4On 19 June 2006, Vaitex contracted with Bondside Pty Ltd (“Bondside”), to build five townhouses in Tarneit. Bondside is owned by Mr Stojanovski and his wife. The price was $700,000; however, Vaitex’s involvement in the building of these townhouses was minimal, with Mr Stojanovski engaging the necessary sub-contractors.
5By completion of the construction in early 2008, Mr Stojanovski had spent about $500,000 on labour and materials. Mr Andonov asked for the balance of the price and was paid $188,920. Later, Mr Stojanovski asked Mr Andonov to return any monies paid over $500,000. Mr Andonov said he would and belatedly, during 2010, made three payments, totalling $10,000.
6Meanwhile, starting in 2009 and lasting some four years, there were a series of incidents involving Mr Andonov and allegedly Mr Stojanovski. Mr Stojanovski says he did not seek redress, whether civilly or criminally, because he believed his actions were illegal and there was the likelihood Mr Andonov would lose his builder’s licence if his actions were revealed.
7In early 2009, two men came to Mr Andonov’s home. He did not know them. As he puts it, they tried to extort $400,000 from him.
8The next morning, Mr Stojanovski phoned Mr Andonov. Mr Stojanovski told Mr Andonov he had sent the two men the previous day. They were to have collected $400,000 that Mr Andonov owed him. Although advised to use the courts to resolve any dispute, Mr Stojanovski said he did not go to courts but resolved disputes by putting a gun in the mouth of builders, which he said he had done before.
9In late 2009, at about 9 or 10.00pm, a male came to Mr Andonov’s house. He did not go to the front door but yelled out: “You have to pay, you have to pay, otherwise we’ll come back and kill you.” The next morning, Mr Andonov found his motor vehicle had between sprayed with green paint. He reported these incidents to the police.
10Starting from early 2010, people came to his house, every three or four months. Through fear, he would not answer the door. Once, a note was left, saying Mr Andonov needed to speak to the person who left it about his debt.
11On 6 September 2011, a former client of Vaitex obtained an award against it for $127,148 in the Victorian Civil and Administrative Tribunal (“VCAT”). Vaitex did not satisfy this award. On 21 March 2012, it was placed into liquidation.
5 July 2012
12At about 10.00pm on 5 July 2012, Mr Stojanovski went to Mr Andonov’s house. His face was partly concealed by a balaclava. From the noise he was making, Mr Andonov thought Mr Stojanovski was trying to break into his house. Later, he found his doorbell broken. He heard Mr Stojanovski say: “$400,000, you have to pay today, or tomorrow you will be killed.” Mr Andonov rang the police, who arrived ten minutes later.
13On 11 July 2012, police members executed a search warrant at Mr Stojanovski’s home. They also searched a motor vehicle and found a black balaclava. They arrested Mr Stojanovski, interviewed him and charged him with four offences.[1]
[1]Mr Stojanovski says there were five charges. Looking at the charge-sheet in exhibit IA-02 there appears to be four charges.
14A significantly redacted police brief of evidence is exhibit IA-02 to Mr Andonov’s affidavit sworn on 30 December 2019. Mr Stojanovski was interviewed by the police. The brief does not contain a transcription of the record of that interview. However, there is a summary, which purports to set out the salient features of the interview including the admissions:
(a) of acting alone in the incident;
(b) wearing a balaclava;
(c) denying trying to the force the door and threatening to kill Mr Andonov.
15Three days later, a male called Mr Andonov on his mobile phone. The male said Mr Andonov needed to speak to Mr Stojanovski, to pay his debt or “somebody would be hurt”.
16During June and July 2013, a private investigator, Brian Rockel, tried to speak to Mr Andonov about the alleged debt of $400,000. He threatened court action. These attempts stopped after Mr Andonov reported them to the police. At the end of the month, Mr Rockel left a letter for Mr Andonov. After that, their contact ceased.
17Mr Stojanovski denies any involvement with the phone call on 8 July 2012 and with Mr Rockel.
18On 18 December 2013, at the Magistrates’ Court at Heidelberg, after pleading guilty, Mr Stojanovski was convicted of attempted aggravated burglary and intentionally damaging property. An aggregate penalty was imposed for those offences: a fine of $10,000, and a sentence of imprisonment of six months wholly suspended for twelve months. Two other charges were struck out: extortion with threat to kill, and threat to kill. An application for a forensic sample was refused.
19For the purposes of this criminal proceeding, the prosecution and the accused agreed upon a summary of the facts. A Statement of those facts is exhibited.[2] It varies from the typed version through a number of handwritten alterations. I assume the altered version was read out to the magistrate and agreed to by Mr Stojanovski.
[2] Exhibit MS-4 to the affidavit of Mr Stojanovski sworn 26 August 2020
20The solicitor for Mr Stojanovski, Mr Victor Andreou, swore an affidavit on 30 October 2020. It referred to four proceedings in VCAT where Mr Andonov or Vaitex were parties. The decisions in these proceedings were delivered between 2011 and 2013. Mr Andreou quotes several passages from the reasons of a Tribunal member in Spirovski v Andonov& Anor.[3] The Tribunal member made a series of adverse findings against Mr Andonov relating to his credit as a witness.
[3] [2011] VCAT 1689
21The award against Vaitex in the Spirovski Case led to its winding up. Mr Andreou exhibited the affidavit of one of the joint liquidators of Vaitex. He also exhibits pages from the examination of Mr Andonov before an Associate Justice in the Supreme Court. These pages contain passages where Mr Andonov said the adverse decision in the Spirovski Case caused him to go from a productive man to receiving Centrelink support.
Mr Andonov’s involvement with lawyers
Victims of crime application
22In about September 2012, Mr Andonov went to a firm of solicitors, Spicers Lawyers, seeking their help with an application under the Victims of Crime Assistance Tribunal Act 1996. Within the firm, his solicitor was Ms Lana Treasure. Apparently, she sought, but was unable to obtain a report from Mr Andonov’s psychiatrist, Dr George Wahr. An application for assistance was lodged on 28 September 2012.
23On 7 November 2014, Mr Andonov was awarded assistance in the sum of $26,771. There were four items of assistance including $20,000 for loss of wages[4] and $3,250 for special financial assistance. The criminal act was that occurring on 5 July 2012.[5]
[4]Exhibit VCA-4 to the affidavit of Victor Andreou sworn 30 October 2020 contains copies of three letters from Spicer Lawyers during 2014 dealing with the calculation of Mr Andonov’s claim for loss of earnings
[5] See exhibit IA-05 to the affidavit of Mr Andonov sworn 30 December 2019
24At about 7 November 2014, Ms Treasure told Mr Andonov he could pursue a separate damages claim against Mr Stojanovski, qualifying this advice in two ways: First, he should delay starting such a proceeding until after Mr Stojanovski was convicted of the criminal offences arising out of the incident. She expected Mr Andonov to be told of the result by the police. Unfortunately, he was not. It is surprising Ms Treasure was unaware of this fact given the assistance a conviction gives to establishing a claim for assistance. Second, if successful in a damages claim, he would be required to repay his award of assistance. She did not tell him about the limitation periods.
25The informant did not contact Mr Andonov about any conviction. Although “as time passed, … [he] did realise a conviction against the defendant most likely had occurred”, Mr Andonov did not find out about the outcome of the criminal proceeding until his present solicitor obtained a certified extract of the register of the Magistrates’ Court of Victoria in late 2019.[6]
[6] Certified extract dated 27 November 2019, being exhibit IA-04 to the affidavit sworn 30 December 2019
Schembri Lawyers
26Mr Andonov attended another firm of solicitors, Schembri Lawyers. On 13 March 2015, Ms Sonia Scarpaci, presumably a lawyer at that firm, sent an email to Mr Andonov. Apparently, their contact had been by telephone. Ms Scarpaci confirmed Mr Andonov’s wish to seek compensation under s85B of the Sentencing Act 1991. She advised that since an application for compensation under that provision must be made within twelve months of a finding of guilt or conviction for an offence, Mr Andonov would need to apply for an extension of time to make the primary application.
27Ms Scarpaci then advised of two difficulties: notice to Mr Stojanovski of an application may cause him to transfer assets to avoid satisfaction of an order, and the success of an extension of time application was uncertain. She suggested urging the police to pursue an application for the restraining of Mr Stojanovski’s assets. She also estimated the costs of an application under s85B and to help with a restraining order. I must say the estimate for the s85B application appears high given that it is an application in the Magistrates’ Court.
28Since the second-last paragraph of the email was couched in such discouraging terms, it is unsurprising Mr Andonov did not pursue an application under s85B.
Other litigation
29In 2012 and 2013, Mr Andonov and Vaitex were involved in unsuccessful litigation in VCAT regarding planning permits.
30In 2014, the liquidators of Vaitex sued Mr Andonov and his wife successfully, obtaining an order against them for $57,792.61.
31As I said earlier, Mr Andonov conducted his professional businesses through Vaitex. Presumably as part of the litigation surrounding Vaitex, he was the defendant in a proceeding in the Supreme Court of Victoria where the plaintiff(s) was or were Burness and Jess. He instructed a firm of solicitors, Rothwell Lawyers Pty Ltd (“Rothwell”). At least, on 24 September 2014, those lawyers were having difficulty in getting instructions from Mr Andonov, which they put down to a “significant psychiatric impairment”.[7] In any event, Mr Andonov did not discuss with those solicitors the possibility of issuing a proceeding against Mr Stojanovski for damages.
[7] Letter dated 24 September 2014: exhibit IA-08 to the 30 December 2019 affidavit
Gigliotti Lawyers
32On about 15 March 2015, Mr Andonov ceased instructing Rothwell and started instructing Gigliotti Lawyers, specifically Peter Gigliotti, in the Vaitex matters. Mr Andonov raised the possibility of an action against Mr Stojanovski. Mr Gigliotti recommended he make a freedom of information application, seeking a copy of the police’s brief of evidence. He made the application on about 19 March 2015. It took until about 2 July 2015 for a redacted copy of the brief of evidence to be provided.
33On 14 July 2015, he took that document to Mr Gigliotti, who suggested his firm search to see whether Mr Stojanovski had real estate to satisfy any potential judgment. Such searches were conducted, revealing certain properties.[8] Mr Andonov instructed Mr Gigliotti to issue a proceeding. Mr Gigliotti recommended, before issuing a proceeding, to obtain a report of Dr Wahr and the advice of counsel. On 15 December 2015, Dr Wahr wrote his report.[9] After Mr Andonov had deposited $2,000 into the trust account of the solicitors, in late December 2015, counsel was briefed to advise.
[8] Exhibit IA-11 to Mr Andonov’s affidavit sworn 30 December 2019
[9] Exhibit IA-13 to the affidavit sworn 31 December 2019
34Mr Andonov did not attend upon counsel, Mr D C Dealehr, for the purposes of the latter’s advice. Counsel gave a written advice,[10] which was received by the solicitors on 10 February 2016. The advice referred to the limitation period.
[10]It is mistakenly dated 5 February 2015: see exhibit VCA-8 to the affidavit of Victor Andreou sworn 30 October 2020
35On 10 February 2016, Gigliotti Lawyers sent an email to Mr Andonov. The email enclosed a copy of the advice of counsel. It asked him to read it prior to his meeting with the solicitor on 12 February 2016. A slightly redacted copy of the email is exhibited.[11] Also exhibited is the last paragraph of the advice of counsel. The rest of the advice is not exhibited. In that paragraph, counsel recommends pursuing an action for damages and not compensation under the Sentencing Act 1991.[12] The paragraph does not mention any limitation period.
[11] Exhibit VCA-8
[12] Paragraph 8b
36Mr Andonov says he did not receive a copy of counsel’s advice for, at the time, he could not access the email address to which it was sent.
37On 12 February 2016, Mr Andonov met Mr Gigliotti. Mr Gigliotti said he had received the written advice of counsel whose view was his prospects of success were “good”. There was no mention of limitation period. The discussion turned to the funding of this proposed litigation.
38Five days later, on 17 February 2016, Mr Vrachnas, a solicitor in the firm, wrote a three-page letter to Mr Andonov.[13] Relevantly, Mr Vrachnas asserted providing a copy of counsel’s advice to Mr Andonov. He confirmed counsel’s opinion that Mr Andonov had a reasonable prospect of success in his claim against Mr Stojanovski. In the third paragraph, Mr Vrachnas said:
“On the basis of Mr Dealehr’s advice, we confirm our discussions with you on 12 February 2016 to the extent that subject to suitable arrangements for funding being made, we are satisfied to represent you in this matter. In relation to funding, we note that we discussed with you a range of different issues and options …”.
[13] Exhibit IA-14 to Mr Andonov’s affidavit sworn 30 December 2019
39The bulk of the letter purported to confirm their discussions about funding of the proposed proceeding. In effect, Mr Vrachnas described two funding options: through a litigation funder; or through a “no win, no fee” arrangement with Gigliotti Lawyers, with this option requiring Mr Andonov’s to pay all of the disbursements.
40Pausing there. Mr Andonov says he did not see counsel’s advice until about 30 May 2019 after his present solicitor obtained his personal injury file from Gigliotti Lawyers in order to comply with the discovery process in family law proceedings. It was then he was advised of the limitation period allegedly ending on about 15 December 2018. Even if Mr Andonov did not receive the email of 10 February 2016, he did attend the meeting with Mr Gigliotti on 12 February 2016, at which the contents of the advice were discussed. Even if he did not see the advice then, at least, he would have been told of its contents.
41Meanwhile, on 12 May 2016, at his request, Gigliotti Lawyers sent Mr Andonov a letter setting out their “estimate of costs and disbursements that is more specific than the stage estimates we provided to you”.[14] Mr Andonov received this letter.
[14] Exhibit IA-17 to Mr Andonov’s affidavit sworn on 30 December 2019
42On 23 May 2016, Mr Andonov met with Mr Gigliotti. They discussed the contents of the letter. Mr Andonov instructed him to commence a proceeding.
43On 20 June 2016, Mr Andonov paid $2,500 into his solicitor’s trust account “on account of costs and disbursements”.[15]
[15] Exhibit IA-18
44On 4 July 2016, Mr Andonov and Mr Vrachnas met with Mr Dealehr. Mr Andonov’s memory of the conference is confined to “discussed with counsel the merits of my case and commencement”. He left the meeting believing a proceeding would be issued shortly.
45The next day, Mr Andonov received a letter from Mr Vrachnas.[16] Judging from its contents, the conference with counsel was meant to receive advice as to what was necessary to issue the proceeding. Presumably, the letter reiterated the advice of counsel, for it is detailed. Mainly, it sought evidence to support a claim for loss of earning capacity. It included a request for a list of all jobs performed from 2006, a classification of those jobs (for example design work) and a list of witnesses who would speak about the level and quality of his work. The letter sought other information shortly after the issue of the proceeding. Despite the evidentiary nature of what was sought, the letter apparently ended:[17]
“Would you kindly attend to the matters set out above as a matter of urgency in order that we can provide the barrister with the final instructions that he needs to prepare your statement of claim.”
[16] Exhibit IA-19
[17] The rest of the paragraph has been redacted
46As to the first of those letters, Mr Vrachnas referred to the conference with counsel on the previous day, and said:[18]
“Further to the matters discussed during the course of our conference, you will recall that there are a number of matters that need to be attended to before proceedings can be issued on your behalf.”
[18] Exhibit IA-19
47What happened next is critical from Mr Andonov’s perspective:[19]
“… Shortly after receiving this letter, I attended the offices of Gigliotti Lawyers and spoke to Mr Gigliotti about the content of the letter. At the time he advised me that all the information requested in the letter was not needed to commence proceedings, as it could be obtained later. He advised proceedings would be issued without the need for me to immediately provide all information requested by Gigliotti Lawyers. So far as I was aware, proceedings were going to be issued.”
[19] Affidavit sworn 30 December 2019 at paragraph [54]
48After the letter of 5 July 2016, Mr Vrachnas followed up with letters dated 23 August 2016 and 13 December 2016.[20]
[20] Exhibits IA-23 and IA-24
49After prompting, on 9 August 2016, Dr Wahr prepared a “Certificate of assessment of degree of impairment arising from stabilised injury” under the Wrongs Act 1958. It was given to the solicitors. It arose out of an examination on 27 July 2016, where Dr Wahr certified the degree of impairment resulting from Mr Andonov’s psychiatric injury satisfied the threshold. He described the injury as “Agitated depression (50%)”.[21]
[21] Exhibit IA-22 to the affidavit sworn 30 December 2019
50After receiving the 13 December 2016 letter, Mr Andonov saw Mr Gigliotti. Again, what he said to Mr Gigliotti is important:[22]
“At the time I had been working with Mt Gigliotti regarding my divorce application, as well as a couple of other legal matters. He again advised me not to concern myself with the content of the letter, all information requested could be obtained later and proceedings would be issued. He further advised me that I had ‘six years’ to issue proceedings and I had plenty of time to issue proceedings.”
[22] Affidavit sworn 30 December 2019 at paragraph [60]
51On 31 May 2017, Mr Vrachnas emailed Mr Andonov.[23] Despite providing his new email address, Mr Andonov did not receive it. Although the subject of the email is described as “Your Crimes Compensation Matter”, the email is clearly dealing with the proposed damages claim. The email refers to a telephone conversation on 30 May 2017 and encloses copies of Dr Wahr’s report and certificate. It contains this paragraph:
“We otherwise kindly enquire what is happening with this matter as we have not heard anything from you since February this year and still do not have all of the information and documents that we requested from you in our letter dated 5 July 2016. Please let us know as a matter of urgency whether you wish to proceed with this matter any further.”
[23] Exhibit IA-25 to the affidavit sworn 30 December 2019
Family law proceedings
52In November 2018, Mr Andonov’s former wife commenced a proceeding in the Federal Circuit Court seeking a property settlement under the Family Law Act 1975. When asked, Mr Gigliotti declined to act for Mr Andonov because he had acted for his former wife. Whether at that meeting or another–[24]
“At around this time Mr Gigliotti did advise me that my common law damages proceedings against the defendant had in fact been issued, but were put on hold, until my family law property was finalised. Mr Gigliotti advised my family law property matter should be finalised before I should continue with my common law damages claim against the defendant. … .”
[24] Affidavit sworn 30 December 2019 at paragraph [63]
53Mr Andonov accepted the advice. He also went to another solicitor for his family law proceeding, Frank Sanna.
54On 26 May 2019, Gigliotti Lawyers sent a letter to Mr Andonov. It was sent by email, which he received. It advised of Mr Gigliotti’s forthcoming retirement from practice. The author, Mr Vrachnas, was assuming responsibility for the practice. He stated it was “some time” since the firm had received instructions from Mr Andonov and it enclosed an account for the personal injuries claim for work until then.
55On about 30 May 2019, Mr Sanna told Mr Andonov that his personal injury claim was statute barred.
56Mr Andonov meet with Mr Vrachnas on several occasions “to get my crimes compensation matter back on track”.[25] These meetings culminated in a long letter from the solicitor written on 4 June 2019.[26] Among other things, it refers to the written advice of counsel dated 10 February 2016, noting counsel discussed the limitation period in two sub-paragraphs and concluding it was three years from 15 December 2015.
[25] Affidavit sworn 30 December 2019 at paragraph [66]
[26] Exhibit IA-27
57On 18 June 2019, Mr Andonov met with Mr Gigliotti. Mr Sanna also attended. Mr Gigliotti denied saying to Mr Andonov that the limitation period was six years.
58On 26 July 2019, Mr Andonov met with the same counsel. Mr Vrachnas and Mr Sanna also attended. Following the meeting, Mr Vrachnas sought to confirm much of what happened in a lengthy letter to Mr Andonov.[27]
[27] Exhibit IA-30
59After this letter, Mr Andonov decided to cease instructing Gigliotti Lawyers, whom he blamed “for not issuing proceedings within time when they had a chance to do so”.[28] In August 2019, he instructed Mr Sanna to act on this application.
[28] At paragraph [71]
60As I said earlier, this application was issued on 31 December 2019.
Psychiatric and psychological treatment
Dr Wahr
61Dr George Wahr is a psychiatrist. Mr Andonov was referred to him by his general practitioner. He first saw him on 31 August 2012.
62On 15 December 2015, Dr Wahr wrote to Mr Andonov’s solicitors.[29] He had seen Mr Andonov about monthly between 31 August 2012 and 1 December 2015.
[29] Exhibit IA-13
63Dr Wahr spoke of the initiating events for Mr Andonov’s mental state:
“Mr. Andonov told me that on the 5th July, 2012, there was a home invasion and a man wearing a balaclava came into his property and Mr Andonov was terrified.
Mr. Andonov told me there was a disagreement over work he had done for someone who had apparently engaged criminals.”
64Dr Wahr diagnosed agitated depression of significant severity. He treated him with psychotherapy and prescribed medicines. On 1 December 2015, he had prescribed Alprax and Avanza.
65In answer to a question from the solicitor, Dr Wahr assessed Mr Andonov’s impairment for the purposes of the Wrongs Act 1958 at 40 per cent. He had then no capacity for work and the prognosis was poor. He said Mr Andonov’s condition had occurred in the context of the home invasion and the threats to which he had been exposed.
66Despite requiring psychiatric treatment for the rest of his life, Mr Andonov’s prognosis was poor. Dr Wahr noted Mr Andonov had been at risk of committing suicide and needed treatment to avoid the worsening of his condition.
67He had no capacity for work and would never return to work.
68In a second report, dated 22 October 2019,[30] Dr Wahr reiterated his diagnosis of agitated depression, with the level of impairment fluctuating between 30 and 50 per cent. Dr Wahr saw Mr Andonov about every three weeks. He prescribed Alprazolam and Avanza.
[30] Exhibit IA-31 to Mr Andonov’s affidavit sworn 30 December 2019
69From a mental state perspective, he had problems with anxiety, depression, reduced thought and memory, sleeping and concentration. His memory problem was a difficulty remembering new material.
70Since his condition is chronic, Dr Wahr saw the need for treatment for the rest of his life. He had no capacity for work presently and will never have that capacity again.
Mr Stojcevski
71Mr Zac Stojcevski is a psychologist.[31] Mr Andonov’s present solicitor requested a wide-ranging report and gave Mr Stojcevski a number of documents to consider.
[31] Report dated 23 February 2020
72Mr Stojcevski first saw Mr Andonov on 22 November 2012. His general practitioner had referred him under the “Victims of Crime scheme”. Somehow, assistance from that source ceased and Mr Stojcevski continued to see him under a mental healthcare plan and then privately.
73Under the heading “History and background”, Mr Stojcevski explained why Mr Andonov’s mental condition was due to the 2012 incident alone:
“There are no factors in the nuclear family that may better explain his symptomatology and diagnoses outside of the crimes with the symptomatology being extant before and after his divorce.
I have no information to suggest a role of trauma prior to the incidents or any developmental history to be a consideration in his diagnosis or presentation.
I do not have any evidence for significant injuries beyond the current incident related injury.
74Over about two pages in his report, Mr Stojcevski sets out a large number of complaints and psychological symptoms experienced by Mr Andonov. Almost all of them are current. Most disturbingly, Mr Stojcevski says:[32]
“At other times, and even into the recent past, he was at significant risk of suicide where he engaged in starvation as he sought active means to terminate his life.”
[32] At p 5
75However, Mr Stojcevski notes the beneficial effect of his grand-daughter in his life.
76Mr Stojcevski diagnosed a chronic Post-Traumatic Stress Disorder and a Major Depressive Disorder, describing the symptoms of both in detail.
77As to his capacity for work, Mr Stojcevski is decidedly pessimistic:[33]
“… The patient has now been unemployed for about 8 years since the incident and without significant symptom stabilisation, the idea of a return to work seems even further in the realms of unlikelihood.”
[33] At p 9
78Mr Andonov’s prognosis is very guarded. His symptoms have fluctuated but these conditions have not ameliorated despite years of treatment. He requires psychiatric and psychological assistance for the foreseeable future.
79The combined effect of the reports of Dr Wahr and Mr Stojcevski is that Mr Andonov has suffered a severe psychological injury due to the behaviour of the respondent and persons allegedly acting on his behalf.
Legal considerations
80Mr Andonov relies on either s23A or s27K of the Limitations of Actions Act 1958 (the Act). For the extension of time, the basal test under either provision is whether it is just and reasonable to do so.[34] Nevertheless, the correct provisions in this application are those contained in Part 11A, including s27K, for the act or omission occurred after 21 May 2003.
[34] Section 23A(2) and s27K(2)(b)
81Section 27D(1)(a) establishes a limitation period of three years from the date on which the cause of action is discoverable by the plaintiff.
82The discoverability of the cause of action is the first date that the plaintiff knows or ought to have known of all of the following facts:[35]
(a) the fact that the personal injury has occurred;
(b) the fact that the personal injury was caused by the defendant; and
(c) the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action. A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
[35] Section 27F(1).
83Section 27l requires the Court to have regard to all the circumstances of the case and then sets out in ss(1) and (2) a non-exclusive list of factors. Those relevant to this case are:
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or likely to be prejudice to the defendant;
(c) the time within which the cause of action was discoverable;
(d) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(e) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received;
(f) whether the passage of time has prejudiced a fair trial of the claim;
(g) the nature and extent of the plaintiff’s loss;
(h) the nature of the defendant’s conduct.
84In Prince Alfred College Incorporated v ADC,[36] the Court was concerned with s48(3) of the Limitation of Actions Act 1936 (SA). In considering the exercise of the discretion under the sub-section, the joint judgment said there were two fundamental propositions:[37]
(a) an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and show good reason for exercising the discretion in his or her favour;[38]
(b) the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.[39]
[36] (2016) 258 CLR 134
[37] French CJ, Kiefel, Bell, Keane and Nettle JJ
[38] At paragraph [99]
[39] At paragraph [100]
85With (a), the joint judgment added in exercising the discretion account must be taken of the reasons for the limitation regime.
86In Brisbane South Regional Health Authority v Taylor,[40] McHugh J explained:
“… For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘(w)here there is delay the whole quality of justice deteriorates’.”
[40] (1996) 186 CLR 541 at 554
Discussion
Discoverable
87Mr Antonov says the date his cause of action was discoverable was 15 December 2015 when Dr Wahr certified for the purposes of the Wrongs Act 1958. However, Mr Stojanovski submits it was on about 31 August 2012 when he first attended Dr Wahr and was diagnosed. Alternatively, it was no later than 19 November 2013 when the psychologist, Mr Stojcevski, prepared a report to support Mr Andonov’s application to the Victims of Crime Assistance Tribunal.
88The report of Mr Stojcevski did not form part of the materials before me. The fact it was prepared to support an application for assistance under a statutory scheme has no bearing on this issue raised by s27F(1)(c). The “action” under the sub-section is an action to recover damages for personal injury. It is not an “action” to seek limited financial assistance from the State under a statutory scheme.
89Two of the forms of assistance received by Mr Andonov were for loss of earnings and special financial assistance. The former depends on a causal link between injury and loss of earnings while the latter is partly dependent on the type of offence committed for the level of monetary assistance. The psychologist’s report may have been used to elevate Mr Andonov from one category of offence to another or within a category. Nevertheless, the scheme is a very modest one. The level of financial assistance is meagre. It was never intended to even remotely approximate common law damages.
90In this case, s27(1)(c) must be seen in light of the requirements of the Wrongs Act 1958. Section 28LE of that Act disentitles the recovery of damages for non-economic loss unless the injured person suffered a “significant injury”. Section 28LF(2) sets out the circumstances in which a psychiatric injury is a “significant injury”. If a plaintiff cannot establish such an injury, he or she is left with an action involving economic loss but not non-economic loss.
91Although Dr Wahr issued a certificate of assessment of degree of impairment on 9 August 2016, he had assessed the degree of impairment on 15 December 2015 at a level satisfying the threshold.[41] At the same time, Dr Wahr spoke of Mr Andonov’s incapacity for work. The effect of the report was Mr Andonov had suffered a “significant injury”, he was incapacitated for work and the future was bleak in that regard. It was then on 15 December 2015 that s27(1)(c) was well and truly satisfied and as when Mr Antonov knew or ought to have known the facts in paragraphs (a), (b) and (c) of s27F(1).
[41]See exhibit IA-22 to the affidavit of Mr Antonov sworn 30 December 2019 and the definition of “threshold level” in s28LB of the Wrongs Act 1958
92Even though Mr Andonov had been treated by a psychiatrist and psychologist for several years before 15 December 2015, it was on that date his personal injury was “sufficiently serious” to justify the bringing of an action on his cause of action. Certainly, the necessity for such lengthy treatment suggests a degree of seriousness, but within the constraints of the Wrongs Act 1958 and its treatment of a psychiatric injury, that is not enough.
Fault of the defendant
93Mr Stojanovski denies his responsibility for the psychiatric injury claimed by Mr Andonov and does so by referring to many other circumstances affecting Mr Andonov. They are set out paragraph 48 of the “Defendant’s outline of submissions” dated 18 November 2020, with counsel submitting “there are a considerable number of significant preceding and intervening events which make it simplistic to suggest that fault lies with the defendant”.
94Counsel described a number of significant preceding and intervening events. They are:
·the emotional and cognitive effect of bowel operations in 2010 and 2011;
·adverse VCAT findings in 2011 about Mr Andonov’s credit in the context of dishonest business practices;
·the VCAT award in September 2011 of $127,148;
·his failing business in 2011 and the necessary sale of his home;
·in March 2012, the appointment of a liquidator to Vaitex;
·the liquidator pursuing Mr Antonov over his indebtedness to Vaitex;
·the inconsistency of his evidence as to when he last worked;
·his admission as to the effect of the VCAT decision on his health;
·his reasons for not producing documents;
·the pressure of other clients demanding the return of monies;
·being abused and threatened on 12 December 2013 by the respondent’s son;
·his regular involvement in litigation between 2012 and 2015;
·his separation and divorce; and
·factors identified by Mr Vrachnas, especially the bitter split in his immediate family due to a fight over property.
95These matters come together in counsel’s concluding sub-paragraph (o) of paragraph 48, where counsel noted:
“Significantly on a clear reading there is little or no mention or analysis of the above issues in either of the treating professional’s (sic) reports in their assessments. … .”
96The defendant returned to this issue in paragraphs 51 to 54 of the Defendant’s Outline of Submissions and therein lies the difficulty.
97The psychiatrist and psychologist have treated Mr Andonov for many years. They have had ample opportunity to discover the various factors causing his psychological state. If the matters raised by the defendant do not figure in their assessments then, presumably, they are not significant. It is not for me to reject those opinions on the basis of other factors suggested to be relevant. These are matters which can be asked of these experts during cross-examination if I grant an extension of time and there is a trial.
Delay
98Section 27L(1)(a) and (b) of the Act provide:
“In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant.”
99Since the cause of action was discoverable by the plaintiff on 15 December 2015, he had three years from that date to commence a proceeding for the recovery of damages against the defendant.[42] This application was issued on 30 December 2019. For the purposes of paragraph (a), the delay is from the accrual of the cause of action and not the date on which the cause is discoverable.[43] The date of the accrual of the cause of action was 5 July 2012.
[42] Section 27D(1)(a)
[43] Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [22]
100As I noted earlier, the solicitor from Spicers Lawyers told Mr Andonov of the availability of an action for damages. This occurred on 7 November 2014. He was not told of the limitation period. He was told to await the conviction of Mr Stojanovski. Evidence of such convictions are admissible in a civil proceeding.[44]
[44] Section 91(2) of the Evidence Act 2008
101Certainly, by 13 March 2015, Ms Scarpaci of Schembri Lawyers was discussing with Mr Andonov the possibility of seeking compensation under s85B of the Sentencing Act 1991. This relief was intended to be a quick and simple means for a victim to obtain limited compensation. The fact of an order under s85B does not preclude a subsequent action for damages. Admittedly, the contents of Ms Scarpaci’s email is discouraging. Apart from quoting what seems to me high levels for costs for an application in the Magistrates’ Court, she raised the issue of a restraining order, which strikes me as being unnecessary. It is little wonder Mr Andonov did not pursue an application under s85B or seek to persuade Victoria Police to obtain a restraining order.
Prejudice
102Mr Stojanovski submits there is both general and specific prejudice resulting in his inability to receive a fair trial on the issues in dispute.
103Initially, he raises an inability to date to “access all necessary records held on files of different practitioners”. That may be so but it does not necessarily follow he will be unable to do so in the future.
104There is presumptive prejudice. Memories fade. However, it can be worse than fading, for as McHugh J pointed out:[45]
“… ‘what has been forgotten can rarely be shown’. … The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
[45] Brisbane South Regional Health Authority v Taylor (op cit) at 551
105The principal incident occurred in 2012. At the time of the making of this application, more than seven years had passed. However, those events were the subject of criminal proceedings in which Mr Stojanovski was convicted. The fact of his conviction is admissible in a civil proceeding.[46] Although ss92(2) is silent on how the fact of conviction is used, Odgers cites from the report of the Australian Law Reform Commission.[47] In part, it states:
“A conviction has substantial weight itself in any event and needs no presumption that it was justified. It is enough that the convicted person will have an evidentiary onus in any civil proceedings if he disputes the facts sought to be proved by the conviction.”
[46] Section 92(2) of the Evidence Act 2008
[47] Stephen Odgers, Uniform Evidence in Victoria at [1.3.6120]
106Those facts are set out in the amended summary read by the police prosecutor and agreed to by Mr Stojanovski in the Magistrates’ Court[48]. No doubt, Mr Andonov will seek to prove more occurred than was admitted in the criminal proceeding but the substance of the incident was admitted.
[48] Exhibit bMS-4 to the affidavit of Mr Stojanovski sworn 26 August 2020
107In this case, presumptive prejudice is not significant.
Specific prejudice
108An aspect of Mr Andonov’s claim for damages will be his claim for loss of earning capacity. In his written outline, Mr Stojanovski’s counsel pointed to eleven specific areas of prejudice.
109It is speculative whether an earlier opportunity to examine Mr Andonov psychiatrically or psychologically represents a lost opportunity. Certainly, there is a lost chance of a different psychologist or psychiatrist arriving at a different assessment of his then mental state. However, his treating practitioners arrive at much the same conclusions about cause, symptoms and prognosis even though differing on diagnosis. The loss is so speculative to be of little weight.
110The question of additional stressors not apparently considered by his psychologist or psychiatrist is raised again in this context. I doubt after so many years of treatment, these practitioners would fail to elicit them if they were important. In any event, these matters could be put to those persons to explore whether it makes any difference to their views or sufficiently undermines their views as to lead a Court to reject them.
111If relevant, the documents relating to Mr Andonov’s proceedings in the Family Court could be made available. Whether through a search of the relevant Court file, if permitted, or through a search of his file, again if permitted. I note Mr Andonov’s solicitor has given Mr Stojanovski’s solicitor a copy of his amended financial statement, filed in the family law proceeding.
112Since the VOCAT paid for a counselling report, I would infer it related to the report of the psychologist and a copy remains on the VOCAT file. Subject to an order of a Tribunal member, it could be examined. I have a reservation whether it would add much beyond that contained in the psychologist’s very detailed 2019 report. Nevertheless, a copy of that report may exist within the file of Spicer Lawyers, which has been given to Mr Stojanovski’s solicitors.
113I do not know whether the clinical records of Mr Andonov’s general practitioner and of the initial attendances upon the psychologist and psychiatrist still exist. Without enquiry, it is pointless to speculate.
114The production of the solicitors’ liquidation file could be compelled by subpoena.[49] The same observation applies to the file held by the solicitors, Ellinghaus Weill. If the interests of justice require its production and inspection by a third party, then those interests will prevail over a solicitors’ lien.[50]
[49] See order 42 of the County Court Civil Procedure Rules 2018
[50] See Civil Procedure Victoria at [1 42.01.170].
115Whether the records and taxation returns of Vaitex still exist is unknown. They may not, since it is years after its liquidation. But they may. Speculation about their existence is pointless.
116Mr Andonov worked as an architect and builder and, from 1999, worked in those capacities through Vaitex. When it was placed into liquidation, he set up another company, Elite A Pty Ltd, for the same purposes. I assume Vaitex and then Elite employed him and paid him a salary and other benefits. If so, then the amount of the salaries and benefits should be easily ascertainable from his income tax returns. If Mr Andonov does not retain copies of those returns, then copies should be obtainable by him from the Australian Taxation Office. Assuming Mr Andonov was a shareholder in each company and either company paid dividends then, again, these would appear in the returns.
117The respondent’s counsel cited a passage from Davies v Nilsen[51] discussing the nature of a fair trial in this context. I do not accept that an “acceptably fair” trial could not occur in this case.
[51] [2015] VSC 584 at paragraph [108]
Conduct of Mr Andonov
118Referring to s27L(1)(g), the respondent’s counsel submitted Mr Andonov had not acted promptly or reasonably. First, he submitted Mr Andonov did not proceed further with Spicers Lawyers in relation to a common law action.
119Mr Andonov’s application for assistance was lodged in 2012. He received a final award in 2014. Meanwhile, Mr Stojanovski was convicted of offences in 2013. Reading the award, I would infer the fact of the conviction was known to the Tribunal. There is no suggestion the Tribunal conducted a formal hearing and received oral evidence. There is no suggestion the Tribunal notified Mr Stojanovski of the fact of the application under s34(2) of the Victims of Crime Assistance Act 1996. Mr Andonov may not have been aware of the precise terms of Mr Stojanovski’s convictions until 2019 but he, or at least his solicitors, should have been aware of the convictions in 2014. The solicitor’s advice to wait, given in 2014, is most surprising.
120Second, Mr Andonov was interested in compensation in 2015, for he discussed an application under s85B of the Sentencing Act 1991 with Schembri Lawyers.
121Third, he did not give Gigliotti Lawyers the instructions they sought in a letter dated 5 July 2016.[52] However, Mr Andonov does say he spoke with Mr Gigliotti and was told complying with those requests was not an impediment to the issuing of the proceeding.
[52] Exhibit IA-19 to the affidavit of Mr Andonov sworn 30 December 2019
122Fourth, there were substantial periods where Mr Andonov failed to contact Gigliotti Lawyers.
123Fifth, the failure to pay amounts owed to Gigliotti Lawyers or place monies in trust, allowing them to pursue the matter.
124Sixth, the failure to act on the advice given on 12 February 2016 and re-affirmed by counsel on 4 July 2016.
125For both the fifth and sixth points, at some stage, there remains Mr Andonov’s evidence that Mr Gigliotti told him the proceeding had been issued:[53]
“At around this time [November 2018] Mr Gigiliotti advised me that my common law damages proceedings against the defendant had in fact been issued, but were put on hold, until my family law property matter was finalised.”
[53] (Op cit) at paragraph [63]
126Mr Andonov says he accepted these advices because he trusted Mr Gigliotti. Surprisingly, when Mr Andonov met with Mr Gigliotti on 18 June 2019, he does not record Mr Gigliotti denying telling him of the issue of the proceeding, at least by November 2018. Since at that meeting Mr Gigliotti denied telling Mr Andonov of a six-year limitation period, it is surprising that no mention was made of the more important point of issuing the proceeding. Notwithstanding this anomaly, I am not prepared to reject Mr Andonov’s sworn evidence on this point. It requires a very good reason to reject a person’s sworn evidence. This consideration is nowhere near enough in strength. If the proceeding had, in truth, been issued by November 2018, then it would have been in time, given my view as to the date when the cause of action was discoverable.
Conduct of solicitors
127The principal solicitors were Gigliotti Lawyers. According to Mr Andonov, Mr Gigliotti told him three important things:
(a) his proceeding against Mr Stojanovski had been issued. Mr Gigliotti said this in about November 2018;
(b) his proceeding could be issued notwithstanding Mr Andonov’s failure to provide financial information;
(c) there was a limitation period of six years.
128(a) and (c) were incorrect and (b) is likely to be incorrect. Accepting what Mr Andonov says, then he would have a viable action against Gigliotti Lawyers if this application fails.
129An action against a solicitor is more complicated than an action against Mr Stojanovski. As Buchanan JA explained in Tsiadis v Patterson:[54]
“… The court is required by the section to have regard to all the circumstances of the case. The prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case, and in my view is one that is relevant to the exercise of the Court’s discretion. An applicant with the ability to recover compensation from a solicitor responsible for allowing the limitation period to expire is not relevantly in the same position as an applicant who has no such prospect.
The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. … .”
[54] (2001) 4 VR 114 at paragraphs [27] and [28]
130If Mr Gigliotti told Mr Andonov of the matters in (a) and (b), that renders a potential action against Gigliotti Lawyers somewhat less complicated for establishing the solicitor’s negligence should be straightforward. It then does not matter whether Mr Andonov was told of the limitations in the conference with counsel in February 2016 or that the verbal advice was confirmed in the written advice. Or that the solicitors should have reminded Mr Andonov of the period in their letters. If the proceeding had been issued by November 2018, then it was within time. If, despite the failure to provide financial information, there was no impediment to issuing the proceeding, then that should have been done before the expiration of the limitation period. The harshness in rejecting Mr Andonov’s application for an extension may be ameliorated by his ability to sue Gigliotti Lawyers based on his evidence of what Mr Gigliotti told him. However, I suspect Mr Gigliotti would deny saying (a) and (b) as he is recorded as denying saying (c). If the suspicion proved correct, then the task of successfully suing the lawyers may prove difficult. After all, Mr Andonov admittedly suffers from memory loss. He could prove an easy target for a cross-examiner. I do not think suing Gigliotti Lawyers would be an easy matter for Mr Andonov and his chances of success would be uncertain.
131The conduct of Spicer Lawyers is immaterial because there is no evidence it was instructed to pursue a damages claim. It was instructed to pursue an application to the Victims of Crime Assistance Tribunal, which it did. I doubt the terms of its contract with Mr Andonov extended to advising about a damages claim. Its failure to speak about a limitation period does not seem to be a breach of contract or create a tortious liability.
Nature and extent of Mr Andonov’s loss
132Based on the reports of Dr Wahr and Mr Stojcevski, the extent of Mr Andonov’s psychiatric injury is very large. It has left him with an injury which has not improved with treatment over many years. The combination of psychiatric treatment and psychological counselling has prevented the worsening of his condition. In his first report, Dr Wahr noted Mr Andonov had been at risk of suicide. It goes without saying that suicide is the gravest outcome of a disturbed psychological state.
133Mr Andonov’s condition has prevented him from working since 2012 and he will not work again. Since he is now sixty-seven, the issue of working in the future may not be important now. He will need treatment for the rest of his life.
Nature of Mr Stojanovski’s conduct
134From Mr Andonov’s perspective, the actions of Mr Stojanovski has caused him considerable damage. Those actions have had cognitive consequences including the impairment of his memory. However, on the material I cannot find that those actions have impeded Mr Andonov in pursuing this claim.
Conclusion
135After considering all relevant matters including those set out in s27L, it is just and reasonable to order an extension of the period of limitation applicable to Mr Andonov’s cause of action. That poses the question as to the extent the period is extended. Not unnaturally, this was not the subject of submissions. Somewhat surprisingly, neither Mr Andonov nor Mr Sanna exhibited a proposed statement of claim to their affidavits. Accordingly, I will invite the parties to make any submission they wish to make on this point.
136I will hear the parties on the question of costs.
- - -
0
7
0