Bakalovski v Tangalooma Resort Management P/L

[1998] VSC 58

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 6412 of 1996

VASSAL BAKALOVSKI	Plaintiff
v
TANGALOOMA RESORT MANAGEMENT.PTY. LTD. & ORS.	Defendants
(ACN 010 464 070)

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 and 25 MAY 1998
DATE OF JUDGMENT:	2 SEPTEMBER 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 58

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CATCHWORDS: Application for an extension of time in which to commence proceedings - Limitation of Actions Act 1974 (Qld.) - Choice of laws (Limitation Periods) Act 1993 (Vic.) - Limitation of Actions Act 1958 (Vic.) - Do Carmo v Ford Excavations Pty. Ltd. (1984) 154 C.L.R. 234 - Negligence - Breach of duty - Whether reasonable steps were taken to ascertain the necessary facts - Bakalovski v. Tangalooma Resort Management & Anor. (unreported, Gillard, J., 16 September 1997, Vic. Supreme Court) - Material facts of a decisive character - Taylor v. Trustees of the Christian Brothers and Ors. [1994] Aust. Torts R. 81-288 - McKain v. R.W. Miller Pty. Ltd. (1991) 104 A.L.R. 257 - Section 23A Limitation of Actions Act (Vic.) does not apply - Gardner v. Wallace (1995) 184 C.L.R. 95 - No arguable cause of action - Application against each of the defendants dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. C.H. Francis Q.C. with	Rose Mary Brondolino & Co.
Mr. M.J. Corrigan
For the 1st - 4th Defendants	Mr. D.A. Kendall Q.C. with	Mahonys
Mr. C.J. Blanden
For the 5th Defendant	Mr. D.M.B. Derham Q.C. with	Victorian Government
Mr. D. Masel	Solicitor
For the 6th Defendant	Mr. D.F.R. Beach	Craig Terrill & Associates

HIS HONOUR:

1. This is an application by Mr. Vassal Bakalovski, seeking an extension of the time within which he may commence proceedings against five potential defendants. The application is made pursuant to s.31 of the Limitation of Actions Act 1974 (Queensland) and the Choice of Laws (Limitation Periods) Act 1993 (Vic.). Alternatively Mr. Bakalovski seeks an extension of time pursuant to s.23A of the Limitation of Actions Act 1958 (Vic.). The relevant provisions read:

2. Section 31 Limitation of Actions Act 1974 (Queensland):

   "Ordinary actions
   31. (1) This section applies to actions for damages for
   negligence, trespass, nuisance or breach of duty (whether the duty
   exists by virtue of a contract or a provision made by or under a
   statute or independently of a contract or such provision) where the
   damages claimed by the plaintiff for the negligence, trespass,
   nuisance or breach of duty consist of or include damages in respect
   of personal injury to any person or damages in respect of injury

   resulting from the death of any person.

(2) Where on application to a court by a person claiming to

have a right of action to which this section applies, it appears to the
court -

(a)        that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)        that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the

period of limitation for the action has expired -

(a)        before the commencement of this Act; or

(b)        before an application is made under this section in respect of the right of action."

1. Although each of the parties has made written submissions concerning the interpretation of this provision and a number of authorities in which it has been considered have been drawn to my attention, the differences between their approaches have been largely of emphasis and not of interpretation. In that situation, I do not think that I need embark upon an elaborate exposition of non- controversial propositions of law almost all of which have been addressed by Gillard,J. at the time of the hearing of an earlier application by Mr. Bakalovski to which I will return.

2. Simply expressed, in applying the Queensland legislation a step-by-step approach is to be taken (Do Carmo v Ford Excavations Pty. Ltd. (1984) 154 C.L.R. 234) namely:

1.	The Judge must enquire as to whether the facts of which the applicant was unaware were material facts - s.30(1)(a).
2.	If so it is unnecessary to consider whether they were of a decisive character - s.30(1)(b). Facts are only of a decisive character if a reasonable man knowing them, and having taken appropriate advice, would regard them as showing that a right of action would have reasonable prospects of success and of resulting in an award of damages sufficient to justify the bringing of the action and the person ought in his interest bring the action. (See Moriaty v. Sunbeam Corporation [1988] 2 Qd.R. 325 per Macrossen, J. at p.333 and Denington, J. at pp.336-7; Wood v. Glaxo Australia Pty. Ltd. [1994] 2 Qd.R. 431 per Macrossen, C.J. at 437; Ipswich City Council v. Smith (Qd. Court of Appeal, unreported, 29 August 1997 per Davies, J.A. at p.3).
3.	If the material facts are of a decisive character, it must be ascertained whether those facts were within the applicant’s means of knowledge before the specified date (two years from the accrual of the cause of action) - s.30(1)(c).
4.	Finally, there must be evidence to establish the right of action - s.31(2)(b).

If all of the above conditions are met, the Court may, in its discretion, extend the limitation period - s.31(2).

1. Sections 4, 5 and 6 - Choice of Laws (Limitation Periods) Act 1993 (Vic.):

"4.	Application This Act extends to a cause of action that arose before the commencement of this section but does not apply to proceedings instituted before the commencement of this section.
5.	Characterisation of limitation laws If the substantive law of another place being another State, a Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.
6.	Exercise of discretion under limitation law If a court of the State exercises a discretion conferred under a limitation law of a place being another State, a Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place."

1. Section 23A - Limitation of Actions Act 1958 (Vic.) (in part):

   "Personal injuries

(1)

This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.

(2)

Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.

(3)

In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) 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;
(c)	The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)	The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)	The extent to which the plaintiff acted promptly and reasonably once he 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;
(f)	The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

1. The general factual background to the application may be described as follows. It would appear that the plaintiff was born in Yugoslavia, on 5 January 1949. With other family members, he emigrated to Australia in 1963. After repeating years 5 and 6 at school, the plaintiff commenced an apprenticeship as a house painter in 1966. He continued to be employed in that type of work until the date of the accident upon which the application is based.

2. In January 1992, the plaintiff went on holiday to the Tangalooma Tourist Resort, located on Moreton Island in Queensland. Close to, and arguably under the control of those operating the resort, is a pier which guests staying at the resort use for a variety of purposes. Apparently, it is the normal point of access to and departure from the island. The pier had no rails on either side and there were no warning signs to indicate that it may be unsafe to dive from it.

3. On 17 January 1992, Mr. Bakalovski walked onto and along this pier. At a point, approximately half way along its length and thinking that it would be safe to do so, he dived into the water. However, he struck his head on the sea bed suffering very serious injuries, rendering him a quadriplegic. He contends that the injuries thus sustained were occasioned by the negligence of the parties before the Court, each of whom had breached a duty of care that it owed to him in the circumstances.

4. According to the material before the Court, it appears that the plaintiff first consulted a firm of solicitors, on 14 September 1994. The delay was, in large measure, caused by the nature of his injuries which required a lengthy period of physical and psychological rehabilitation. Understandably, particularly when regard is had to his educational and employment background, he left the matter in their hands, relying upon their skill and expertise. At this stage, the point should be made that, whilst the test of whether reasonable steps have been taken to ascertain the necessary facts upon which an action may be brought is an objective one, regard must be had to the applicant's background, understanding, and, of course, circumstances (see Castlemaine Perkins Ltd. v. McPhee [1979] Q.R. 469). On 12 September 1995, the plaintiff was incorrectly told that he had six years, rather than three years, in which to sue to recover damages for his accident. In due course, the limitation period having expired, an application for extension of the period was made before Gillard, J. who granted an extension of time within which the plaintiff would be able to institute proceedings against one party (the first defendant), and they were duly commenced, but not against the second defendant, which had been joined in the application. The plaintiff is again applying for an order for extension of time against the second defendant and, as indicated, also seeks an extension of time in which to bring proceedings against four other parties.

5. I do not propose to deal at length with the judgment of His Honour, particularly in relation to his view of the position with regard to the second defendant. His decision is the subject of an appeal, the hearing of which I have been informed has been delayed until the present application has been considered.

6. However, the background to and basis of the application before him must be borne in mind. The cause of action arose, on 17 January 1992, and was statute barred by the time that a writ was issued, on 22 July 1996. The first defendant filed an appearance, on 4 September 1996, and a defence, on 12 September 1996, in which it was pleaded that the action was statute barred. An application for an extension of time under s.31 of the Queensland Limitation of Actions Act 1975 was made to which the second defendant was later joined. After adverting to the relevant principles, His Honour stated:

   "A court cannot extend time beyond a period of one year from the date when the applicant had the means of knowledge of the material fact. Accordingly, with respect to the first defendant the relevant period is one year prior to the institution of the proceeding, namely, the period from 25 July 1995 to 24 July 1996. With respect to the second defendant the relevant period is from 25 July 1996 to 24 July 1997. Counsel for the parties accepted the court had to consider each application separately.

   It follows that the date upon which the plaintiff has the means of knowledge of the material fact must be on or after 18 January 1994 and in respect of the first defendant on or after 25 July 1995 and the second defendant on or after 26 July 1996. [There was no dispute concerning these dates - my interpolation].

   ...

   In my opinion, the court is entitled to infer in this case where the facts are simple and in small compass, the material facts concerning the happening of the incident, the duty of care and negligence and causation were known to the plaintiff at the date of the issue of the writ, that is, 22 July 1996. Further, in regard to these facts, by reason of s.30(1)(b) those facts are of a decisive character if a reasonable person having taken appropriate advice would regard the facts as showing a reasonable prospect of success entitling him to damages which would justify bringing the action - see s.30(1)(b)(i) and (ii). As the plaintiff brought the proceeding on appropriate advice he knew all the material facts of a decisive character when he instituted the proceedings on 22 July 1996.

   ...

   That leaves the question of the identity of the person against whom the right of action lies. See s.30(1)(a)(ii). In my opinion, the identity of the person against whom the right of action lies is a material fact of a decisive character and the question is when did that fact come within the means of knowledge of the plaintiff? He has named two defendants.

   ...
   Accordingly, the court is concerned to decide the one issue, when did
   he know of the identity of each of the defendants as a legal person
   against whom the right of action lies?
   ...

   In my opinion the evidence establishes that he did not know of the existence of the first defendant as "the person against whom the right of action lies", until he was informed some time in July 1996. It follows that he has established the elements of his proof and is entitled to an extension of time for one year after that date, which covers the date of issue of the writ."

7. His Honour accepted that, although the plaintiff had known for some time that he had an arguable case that there had been a breach of the duty of care owed to him through the failure of those responsible to place warning signs in position on the pier, until some time in July 1996, he did not know of the existence of the first named defendant as a person against whom that right of action lay and that in the circumstances, he should be granted an extension of time as against that party. Knowledge of the identity of the alleged tortfeasor was clearly both material and decisive in determining whether a proceeding could be commenced.

8. Whilst Gillard, J. considered that the evidence before him in relation to the second named defendant was "sparse and inconclusive", he was, nevertheless, satisfied that the plaintiff knew of the existence of the second named defendant and that a right of action might lie against that party, before 26 July 1996, the operative date for the purposes of the application. This finding was based upon the receipt by the plaintiff of a letter, dated 7 February 1996, sent to the plaintiff’s solicitors by Messrs. Quinlan, Miller and Treston. It contained sufficient information, His Honour found, for the reader to become aware that the company referred to, Tangalooma Island Resort Ltd., was the owner of the resort and in the circumstances an entity against which a cause of action may lie.

9. The plaintiff submits that it has acquired new information since the making of his first application, concerning "material facts of a decisive character" and therefore an extension of time should be allowed as against each of the defendants before the Court. More specifically, it is asserted that:

1.	The plaintiff first knew of the Australian standard Association signs when informed by counsel on July 23 1997.
2.	The plaintiff first knew in late October 1997 that:

(i)         the lease of the premises on which the resort was situate was held by the second named defendant from the Crown and that a portion, sub- lease E (being apparently a part if not the entire part of the resort) was sub-let to the first named defendant;

(ii)        the sub-lease was of an area some distance, apparently hundreds of metres, from the pier;

(iii)       the pier commenced on land sub-let by the second named defendant to Tangalooma Finance Pty Ltd;

(iv)       the lease, the sub-lease and other sub-leases did not extend below the high water mark;

(v)        the pier was owned by the Port of Brisbane Authority and that a permit to occupy the pier had been granted at the relevant time by the Authority to the second named defendant;

3.          The plaintiff first knew on January 27 1998 that:

(i)	at the date of the accident Tangalooma Pty Ltd held a permit to occupy the area near the pier between low and high water mark granted to it by the State of Queensland;
(ii)	the State of Queensland was the owner of that area between low and high water mark;
(iii)	there was a basis for suing Tangalooma Finance Pty Ltd, State of Queensland and/or Port of Brisbane Authority;

4.          The plaintiff first knew in May 1998 that:

(i)	the State of Queensland was arguably the owner of the seabed in the general area where the accident occurred;
(ii)	the defendants and Tangalooma Pty Ltd might have held ownership of the pier as at the date of the accident;
(iii)	each of the defendants, Tangalooma Pty Ltd and Tangalooma Finance Pty Ltd had common directors at the date of the accident;
(iv)	the State of Queensland was arguably the owner of the pier as at the date of the accident;
(v)	he had an arguable cause of action against Tangalooma Pty Ltd.

1. The Second Defendant

   The plaintiff now seeks to argue that these "facts" are new "material" and of a "decisive character" and have not only substantially increased the likelihood of success of an action against the second named defendant but provide a proper foundation upon which it could proceed. In that circumstance, it is said that the question is open to further consideration. Specifically, he asserts that he has become aware that the second defendant was, at the relevant time, the occupier of the pier and responsible for its upkeep. He claims that it not only controls the pier, but may in fact own the structure, and that it may be the occupier of the area between high and low water marks. He contends that whilst Gillard, J. proceeded on the assumption that a cause of action might be seen in the material, the factual situation was discovered to be somewhat different from that which the plaintiff and, indeed, His Honour, understood to be the case.

1. In response, counsel for the second named defendant submitted that the assertions in the second proposed statement of claim rest upon essentially the same foundations as those contained in the first. Although there is an additional allegation of a breach of the Wrongs Act (Vic.), the claim is still based on negligence. The particulars of breach of duty are merely a tidied up version, it is said, of the particulars of negligence initially pleaded.

2. Counsel argued that the additional facts relied upon in the second application are all directed to the identity of the party which occupied, owned, operated and/or managed the pier on Moreton Island. But this was the basis of the first application against the second named defendant before Gillard, J. The additional facts merely provide evidence to support contentions previously advanced by the plaintiff; that is, that the second named defendant was the owner of the Tangalooma Resort, probably had control of the pier, and certainly owed a duty of care to those of its guests who might use it, the argument proceeded. It may well be, it was said, that the precise legal basis on which the second defendant was arguably responsible for activities on or connected with the use of the pier was not correctly perceived, however, the general character of their obligations was accepted by His Honour to have been known to the plaintiff more than 12 months prior to the making of the application for an extension of time.

3. I consider that there is considerable force in these contentions. The second application by the plaintiff is not based upon a different claim as against the second named defendant. The additional information could only serve to support the potential cause of action of which Gillard, J. found that the plaintiff was aware and which would sound in negligence. The existence and responsibilities encompassed by the duty and the identification and manner of any breach could, of course, be perhaps more powerfully asserted after it was obtained, but the nature of the cause of action, which had earlier been perceived as available, would not be affected. I should add, at this point, that whilst I consider that situations may well arise in which more than one application could be made, I am by no means satisfied that it would be appropriate to make any order in a case where an application for an extension of time was refused on the basis the applicant was in possession of sufficient information within the limitation period to commence proceeding on one basis, even if what was being sought was an opportunity to initiate proceedings on a totally separate basis. However, I do not need to consider this possibility as it does not arise for determination in the present matter. The plaintiff had sufficient information, in February 1996, to enable him to decide whether to commence proceedings against the second defendant on the same basis. He did not do so. There is no foundation upon which a second application against the same party which rests upon the same cause of action can succeed.

4. The application pursuant to s.11 of the Limitation of Actions Act (Qld.) for an extension of time against the second named defendant must fail.

5. Counsel for the plaintiff also relied upon an argument advanced before and rejected by Gillard, J. in his judgment, that s.23A of the Limitation of Action Act (Vic.) has application to the present circumstances. As the contention appears to have been presented before this Court on a somewhat different basis to that argued before Gillard, J. I think that it would be appropriate to address it briefly, although I understand it is also to be considered by the Court of Appeal.

6. Support for the argument was claimed to exist in the judgment of Hayne, J. in Taylor v. Trustees of the Christian Brothers and Ors. [1994] Aust. Torts R. 81-288 and Mason, J. in McKain v. R.W. Miller Pty. Ltd. (1991) 104 A.L.R. 257.

7. As I indicated in discussion, I consider that the contention was misconceived. The High Court said in McKain that the particular legislative provision under consideration, (s.36(1) of the Limitation of Actions Act 1936 (S.A.)), was procedural rather than substantive in nature. This was perceived by State Governments around the country and the Government of New Zealand to create a problem. In consequence, uniform legislation was enacted.

8. When the Choice of Law (Limitation Periods) Bill (Vic.) was introduced by the Treasurer, in the Legislative Assembly, he stated:

   "The Choice of Law (Limitation Periods) Bill 1993 arises from an agreement by the Standing Committee of Attorneys-General to enact legislation to the effect that limitation periods should be treated as matters of substance for choice of law purposes.

   The matter was dealt with by the Standing Committee of Attorneys- General as a result of the 1991 High Court decision in McKain v. Miller and Co. (SA) Pty. Ltd.

   The plaintiff who was injured in South Australia sought to take advantage of the longer New South Wales limitation period by bringing his action in New South Wales. The High Court ordered that as the limitation period was procedural, and not a substantive matter, the law of New South Wales applied and an action could be brought. The decision has been criticised as encouraging forum shopping.

   The Bill provides that if the substantive law of another place, being a State or Territory or New Zealand, is to govern a claim before a Victorian court, a limitation law of that place will be regarded as part of the substantive law of that place, and applied accordingly.

   The Bill will discourage forum shopping in Victoria. As other States, Territories and New Zealand introduce parallel legislation forum shopping will be discouraged throughout Australia and between Australia and New Zealand."

9. The language and intent of the Act, as observable in the words employed, are, in my view, relatively straightforward and accord with purposes outlined by the Minister.

10. Rather than provide support for the contention, the judgment of Hayne, J. which contains the following passage:

    "At common law, limitation provisions of the kind now in question are procedural matters not substantive matters. See McKain v. Miller. (That rule has now been reversed by uniform legislation: see the Choice of Law (Limitation Periods) Acts. The Victorian Act came into operation the day after the institution of the present proceedings and thus does not apply to these actions, see section 4."

    (Taylor (supra) at 61,523)

    made it perfectly clear that the situation as a matter of law would have been
    different had the legislation come into effect.

11. A further argument advanced by senior counsel for the plaintiff that it is possible to reconcile the provisions of the Victorian and Queensland Acts so that there are two limitation periods to be considered, also lacks force. Assuming that, by the adoption of some convoluted interpretation of the language, it was possible to achieve such a reconciliation, a process which is certainly not required to give meaning and effect to the provisions under consideration, the very purpose for which the Choice of Law (Limitation Period) Act was introduced would be defeated.

12. If I am incorrect in this view, and s.23A of the Victorian Act is applicable, it would not be "just and reasonable", in my opinion, to make an order extending the period within which proceedings could be commenced beyond that which would have been available in the State in which the cause of action arose, in any event. To do otherwise would be to encourage forum shopping of the kind referred to by Dawson, J. in Gardner v. Wallace (1995) 184 C.L.R. 95.

13. Finally, I do not think that I need address the question under what circumstances will a second application be regarded as an abuse of process, interesting as it may be, in the context of the present application.

14. The Third Defendant

    In the course of his submissions, senior counsel for the plaintiff stated:

    "We have been seeking to join the third defendant on the basis that it had a permit to occupy the area coloured pink, which includes the area under the part of the pier coloured orange. But in the light of the documents which we obtained yesterday, it seems unlikely that the third defendant in fact does have a permit to occupy that.

    Now, we had proceeded upon the basis that it had, because a permit had issued to a company with the name of the third named defendant in 1983 but that company, we found out, subsequently became defunct and then a new company was brought into existence with exactly the same name. So it is now problematical as to whether what we had asserted up to yesterday is correct, that the third named defendant has occupation of that part of the beach.

    ...

    In the light of the fact that we have now discovered this other permit given to the second defendant, it seems more likely that the second defendant is in control of that area and the third defendant has not got a permit to it. But that is not clear to us at this stage."

15. He later appeared to concede that no basis existed for the joinder of the third defendant at this time.

16. The Fourth Defendant

    As far as this party is concerned, the claimed justification for joinder is encapsulated in the following passage of the submissions advanced on behalf of the plaintiff:

    "So far as the fourth defendant, Tangalooma Finance Pty. Ltd., we seek to bring an action in respect of that because it was in control of the entrance to the pier and it can, we say, well be argued that having this long pier going out over the sea, one of the very first places at which a warning should be placed would be right at the beginning of the pier, warning people not to dive from any part of the pier."

17. A further argument was advanced to the effect that as the fourth defendant had a number of common directors with what could be called the other Tangalooma companies, it had a duty of care to ensure that those entities complied with their own duties of care.

18. As sub-lessee of the land above the high water mark over which the pier passed and on to which it would be reasonable to anticipate that no one would ever be likely to dive, the presence of warning signs, even if the fourth defendant was the occupier of or in some other way responsible for the pier itself, would hardly have been required.

19. Accepting that the plaintiff acquired the knowledge that the fourth named defendant was the sub-lessee of the land from which the pier commenced within the relevant period for the making of the present application, I do not consider that it could be categorised as either material or being of a decisive character as those terms have been defined in the various judgments in which s.31 has been the subject of attention. It does not automatically follow from proof of occupancy of the land over which a pier passes, that the occupier owes any duty whatsoever to a person who may dive from the pier at a point beyond the area of the sub-lease. I do not mean to convey that circumstances may not exist where such a duty would arise but simply that the mere establishment of the existence of the occupancy of the portion involved here would not, of itself, be sufficient to create an arguable case that the occupant had breached a duty of care owed to the plaintiff. The position is not, I think, affected by evidence that the various Tangalooma companies had some common directors.

20. The Fifth Defendant

    The basis of the claim made by the plaintiff against this party was very broadly stated by counsel for the plaintiff as follows:

    "So far as the State of Queensland is concerned, arguably the pier is owned by the State of Queensland and managed and controlled by its authority, because the State of Queensland owns the strip of land on which the pier is situated. So far as the defendant, the Port of Brisbane, is concerned, it gave the second defendant the permit to occupy the pier back to low watermark from the end of the pier. No improvements can be made to the pier without the authority's consent. Management and control of the pier were vested in the port authority by the Queensland government. It may also arguably be the owner of the pier."

21. It is contended that the documentary material which identifies the relationship between the State of Queensland and the various leaseholders did not become available until 1997. Whilst I consider that there is something surprising about this late acquisition of information, much of which was contained in public records, I accept that it was not within the knowledge or reasonable means of knowledge of the plaintiff personally. Accordingly, with some reservation, I find that the identity of the owner of the land on which the pier was constructed was not known to the plaintiff before the date asserted.

22. That is, of course, not determinative of the question with which the Court is confronted for it must also be considered whether the fact is material and of a decisive character with respect to the institution of proceedings, for it must be shown, before an order can be made, that the plaintiff has, when the additional fact becomes known, an arguable cause of action and evidence to support it. The position with respect to these aspects is, I think, succinctly expressed in the written submissions of the fifth defendant, the relevant portion of which reads.

    "The leased land and the permit land were directly occupied, managed and controlled by one or more of the Tangalooma interests. The identity of the land owner is not a material fact of a decisive character. Responsibility for safety of premises at common law goes with occupation or control not ownership: Fleming Law of Torts 9th ed. 1988 p.520, Wheat v. E. Lacon & Co. Ltd. [1966] 552 at 574. Ownership alone does not make the Crown an occupier or otherwise invoke a duty of care or at least a duty of care which might on the evidence have been breached by the Crown. Nor is it a material fact of a decisive character. More facts than bare ownership are needed to establish Queensland as a person responsible at law either as an 'occupier' or by reference to general principles of negligence. Subject to Native Title, all land ownership in Australia, freehold or leasehold, lies in grant from the Crown. How can the bare ownership by the Crown of the leased land or the permit area make Queensland responsible at law for the plaintiff's injuries? If it does, then the Crown in each State is potentially liable for all such occurrences on land held from the Crown, and occupied by others.

    The applicant has adduced no evidence that servants or agents of the Crown assumed any control of the resort, the pier or the approaches to the pier. While the applicant does not have to adduce the evidence which he will adduce at trial, he must show there is such evidence available to be adduced. He does not. See Minoque v. Bestobel Industries Pty. Ltd. (1981) Qd.R. 356; Evans v. Repco Transmission Co. Pty. Ltd. (1975) VR 150; Dwan v. Farquhar & Ors. (1988) 1 Qd.R. 234. The decisions of the High Court in both Nagle v. Rottnest Island Authority (1993) 177 CLR 423 and Romeo v. Conservation Commission of the Northern Territory (1998) 151 ALR 263 show that an essential prerequisite for a claim of the kind sought to be raised by the plaintiff against the State of Queensland in this case is that the State must have at least the function and power to manage and control the land in question ...

    ...

    It is not to the point to say that the Crown in the right of a State is 'in a position to exercise control over the use of the pier and the erection of signs warning of dangers associated with the use of such a pier' [paragraph 27(e)(viii); see also paragraph 25(b)]. The power of the State to make rules pursuant to statute does not give rise to a duty of care: Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004, at 1065, Lord Diplock."

23. As I have indicated, I consider that these arguments possess considerable force. It has not been demonstrated that the recently ascertained facts are of a material and decisive character or that on the basis of the known information, after their ascertainment, the plaintiff can be perceived to possess an arguable cause of action against the fifth defendant. The application with respect to that party must be dismissed.

24. The Sixth Defendant

    Similar problems to those considered in relation to the fifth defendant arise with respect to the application for an extension of time within which to commence proceedings against this party. Although the evidence with respect to the ownership of the pier by the Port of Brisbane Authority at the time of the happening of the accident is unsatisfactory in a number of respects, the plaintiff is not required to prove this element of his case at this stage or to adduce all of the evidence upon which he relies in support of it. I think that there is enough material before the Court to form the view that the Authority may well have been the owner of the pier at the relevant time. Resolving this question in the plaintiff's favour, for present purposes, it is clear in my opinion that the mere fact that the Port of Brisbane Authority may have given a permit to the second defendant to occupy the pier, would not be sufficient to raise an arguable case of a breach of a duty of care owed to the plaintiff or a cause of action against that party. The information could not be regarded as a material fact of a decisive character in the context of the present matter.

25. It follows that the application against each of the defendants must be dismissed.

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