Beaton, Kylie Ann v Wilson, Scott Andrew
[2009] VCC 1236
•2 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-01883
| Kylie Ann Beaton | Plaintiff |
| v | |
| Scott Andrew John Wilson & Anor | Defendant |
---
| JUDGE: | Lacava |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 September 2009 |
| DATE OF JUDGMENT: | 2 October 2009 |
| CASE MAY BE CITED AS: | Beaton, Kylie Ann v Wilson, Scott Andrew & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1236 |
REASONS FOR JUDGMENT
---
Catchwords: Limitation of Actions Act 1958 – sections 27K and 27L. Effect of Delay balanced against lack of prejudice to the Defendant – Actions of Defendant in divesting himself of assets – exercise of discretion.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. P Vout | Clark Toop & Taylor |
| For the Defendant | Mr. A McNab | Harwood Andrews |
| HIS HONOUR: |
1 By Writ issued on 1 May 2009 the Plaintiff commenced a proceeding against the defendants.
2 There are three causes of action pleaded as against the first defendant one of which is also pleaded against the second defendant.
3 The first two causes of action pleaded by the plaintiff against the first defendant are that he is liable to the plaintiff in damages for an alleged wrongful imprisonment (paragraph 3) and for an assault and battery (paragraph 4). The facts giving rise to both causes of action are pleaded as having occurred on or about 30 May 2001.
4 The third cause of action pleaded against both defendants is different. The second defendant is the mother of the first defendant. On or about 22 September 2003, the Wilson Family Trust (“the trust”) was established by one Robert Dale Stronach as settler. The primary beneficiaries of the trust are the first defendant and his children. The second defendant is the trustee of the trust and is sued in that capacity.
5 On 25 September 2003 the second defendant as trustee paid into the trust the sum of $110,178.33 (“the settlement money”). That sum had been received by the first defendant about one week earlier from his solicitors. It was the net proceeds (after deduction of legal costs and expenses) from a claim that he had made under the Accident Compensation Act 1985.
6 The third cause of action seeks to set aside the payment of the settlement money into the trust as an alienation by the first defendant of his property to avoid creditors. The cause of action is brought pursuant to section 172 of the Property Law Act 1958. (paragraphs 6 to 12 inclusive).
7 The defence delivered and filed by the first defendant dated 27 May 2009 admits the wrongful imprisonment and the assault and battery. It denies that the plaintiff was injured or that she has suffered loss and damage. The defence admits receipt of the settlement sum but denies that there was an alienation to avoid creditors as does a defence delivered and filed on the same day by the same solicitors acting for the second defendant.
8 The first defendant also pleads that each cause of action is statute barred. Although the terms of the defence of the first defendant purport in terms to address the whole of “the plaintiff’s claim”, because of the way in which the argument before me proceeded I infer that the pleading in paragraph 13 of the first defendant’s defence relates only to the causes of action brought by the plaintiff in wrongful imprisonment and assault and battery.
9 This is the return of a summons issued by the plaintiff dated 13 July 2009. In the summons the plaintiff seeks leave pursuant to section 23A of the Limitation of Actions Act 1958 (as amended) (“the Act”) to extend the period within which the plaintiff’s causes of action in wrongful imprisonment and assault and battery may be brought.
10 By consent I gave leave to the plaintiff to amend the summons to seek leave also pursuant to section 23K of the Act.
11 The summons also sought a declaration that the plaintiff was under a disability within section 23(1) of the Act.
Applicable Legislation
12 Section 27N sub-section (2) of the Act states that, on and from 1 October 2003, Part IIA of the Act (“Personal Injury Applications”) applies to causes of action where the act or omission alleged to have resulted in the death or personal injury with which the action is concerned occurred before 21 May 2003.
13 “Personal injuries” is defined in s 3 of the Act to include “any disease and any impairment of a person’s physical or mental condition”.
14 This proceeding was issued after 30 September 2003. The acts alleged to constitute the causes of action of assault and battery and false imprisonment occurred before 21 May 2003.
15 Therefore, the relevant limitation provisions applicable to those causes are contained in Pt IIA of the Act, subject to those provisions not operating to extend a period of limitation applicable to a longer period than would have applied had Pt IIA not been enacted. In further submissions in writing filed by counsel for the defendants after the hearing counsel concedes this to be the position.
16 Immediately before the enactment of Pt IIA, the applicable limitation period for the plaintiff’s causes of action for assault, battery and false imprisonment was six years.[1]
[1] Section 5(1)(a) of the Act.
17 Section 5(1AA) of the Act has no application. That provision only applies in respect of certain causes of action that accrued on or after 5 November 2002.2 The Defence of the first defendant in paragraph 13 relies on an application of this section. To that extent it is misconceived.
18 Section 27D(1) of the Act provides that an action to which Pt IIA applies shall not be brought after whichever of the following periods is the first to expire:
(a) 3 years from the date on which the cause of action is discoverable by the plaintiff; (b) 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned. 19. Discoverability is dealt with in s 27F. In this case it is not disputed by the plaintiff that the cause of action was discoverable by her immediately upon the happening of the events of 30 May 2001. Further, the plaintiff accepts that her claim for damages for the torts of assault, battery and false imprisonment (Statement of Claim, paras 3, 4 and 5) involve an allegation of an impairment of her physical and mental condition and are thus “personal injury” within the meaning of the definition contained in section 3 and as that term is used in section 27N(2) of the Act.
20. Accordingly, in this case, the relevant limitation period was 3 years from the date of the assault (30 May 2001) and the time for the commencement of proceedings ran on 30 May 2004.
21. The writ only having been recently issued and the first defendant having taken the limitation of actions point the plaintiff can only proceed with those causes of action in assault and battery and wrongful imprisonment should I grant leave for her to do so pursuant to section 23K of the Act.
22. The plaintiff does not require leave to proceed with the cause of action brought pursuant to section 172 of the Property Law Act 1958 as that cause of action is not based upon an allegation of personal injury within the Act.
Discretionary Power
23. In exercising the power contained in section 27K a Court may make an order extending the time for the commencement of a proceeding if it decides “it is just and reasonable to do so” and, in making a decision “shall have regard to all the circumstances of the case (including but not limited to)” a list of factors set out in section 27L(1) of the Act.
24. The plaintiff bears the onus of establishing that it is just and reasonable to order an extension of the period of limitation applicable to her causes of action.
25. The approach of the Court in applications under section 27K is broadly the same as the approach to be taken under s 23A.3 As Buchanan JA said of s 23A in Tsiadis v Patterson (2001) 4 VR 114 at [33] (cited by Beach J is Desai at [21]), the matters to be taken into account cannot all be weighed against each other. Rather, the Court must synthesize a number of competing
2 Limitation of Actions (Amendment) Act 2002 (c), s 2; and s 39 of the Act.
considerations in arriving at a conclusion that takes account of them all
bearing in mind the onus on the plaintiff.
Delay
26. The length of the delay in coming to the Court and the reasons for the delay are of course very relevant considerations in an application such as this as the statute recognises (s 27L(1)(a)).
27. I accept that the plaintiff continues to suffer the affects of the attack, and this has affected her ability to prosecute the proceedings she now wants to pursue in a timely fashion.4 I also accept that the nature and extent of the plaintiff’s injuries and suffering have been severe.5
28. injuries; her legitimate fear of the first defendant and fear of further attack by
him; and the advice she was given about the hopelessness of further pursuingThe plaintiff explains the delay here in terms of her significant and serious defendant in alienating his workers’ compensation payout in favour of the trust with full knowledge of the plaintiff’s Sentencing Act claim.6
29. In my judgment, the fact that the first defendant (with legal advice) took the steps that he did to divest himself of his compensation money to endeavour to put it beyond reach of the plaintiff demonstrates his lack of remorse for what he did to the plaintiff and shows that the plaintiff’s on-going concerns for her safety at the hands of the defendant are in fact well founded. In the circumstances of this case the plaintiff can be excused I think in not taking any step to provoke the first defendant especially where he, by his actions, had
3 Delai v. Western District Health Service [2009] VSC 151 at paragraph 21.
4 See affidavit of the plaintiff; paras 8, 9 and 10: s 27L(1)(d).
5 Affidavit of the plaintiff, paras 7, 8 and 9 and the expert reports exhibited as KB-4: s 27L(2)(b).
6 See affidavit of the plaintiff sworn 8 July 2009, paras 7-11; affidavit of Kiera Fiona Menzies sworn 14 May
2009, exhibit KFM-10 (letter written to Judge Lewis regarding the Sentencing Act claim 2 months before the
establishment of the trust and the alienation of more than $110,000.00).
shown that he would not pay her compensation for his unlawful actions
towards her.30. Mr. NcNab who appeared for the defendants argued that there was no evidence to explain why the plaintiff’s current solicitors had not commenced proceedings earlier. There was no explanation of the delay from May 2007 to date. By May 2007 the time had run by which proceedings should have been instituted. Had the defendants in fact suffered prejudice by reason of the delay between May 2007 and now the point made may have taken on more significance. There being in fact no prejudice pointed to by either defendant I do not place much weight on this point.
31. Mr. Vout on behalf of the plaintiff contends that the fact that proper or correct legal advice was not received by her until long after the action accrued was due to no fault of the plaintiff and that in those circumstances I should excuse the delay. He relies upon principles expressed in a number of authorities.[7]
[7] Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 (CA) at 619-620. See also Spandideas v Vellar [2008] VSC 198 and Tucker v Barwon Health [2008] VSC 229.
32. Further, the plaintiff argues the defendants took no steps to make available to the plaintiff means of ascertaining facts, namely, the fact of the existence of the trust and the location and amount of the trust funds, until 24 April 2009, when compelled to do so by subpoena issued in the proceeding no. CI-08- 0284 against the plaintiff’s former solicitor and served on the second defendant (“the solicitor’s proceeding”): s 27L(1)(c). Up until that point in time the plaintiff and her legal advisers were entitled to consider the first defendant impecunious especially having regard to the fact that he had spent so long in prison.
33. In my view consideration of whether or not the proposed defendant can meet any judgment is a relevant factor for a plaintiff to consider and depending on the circumstances may assist a plaintiff in explaining any delay.
34. Here, the first defendant pleaded guilty to various offences of violence on 9 April 2002 (11 months after the events giving rise to the causes of action). The plaintiff subsequently made application for compensation pursuant to section 85 of the Crimes Act 1958. That application was disposed of in her
favour by order of Judge R.P. Lewis in this Court on 30 September 2003. An
order was made in favour of the plaintiff but remains unsatisfied.35. It was only in the context of discovery in other proceedings earlier this year that the full facts surrounding the trust and its assets were revealed by the second defendant to the plaintiff. Those matters were not revealed by the first
defendant for obvious reasons but they were material to a consideration of
whether or not to commence proceedings. That those matters are now known
to the plaintiff justifies the granting of the application in my view.36. Further, the plaintiff acted promptly to bring the present claim once she knew on 24 April 2009 that any judgment obtained might be able to be enforced by reversing the alienation of the workers’ compensation payment into the trust. s 27L(1)(f).
Prejudice
37. Another factor to be considered is the likelihood or otherwise of prejudice to the defendant or defendants: s 27L(1)(b).
38. As Beach J stated in Delai at [23], “prejudice is an important consideration”. However, in the present case there is no prejudice. In my judgment relevant prejudice refers to prejudice in the running of a future trial which may follow after leave is given not personal prejudice. Here, there is no prejudice that can be pointed to such as witnesses having died or gone missing or vital documents being no longer available.
39. The first defendant contends that interference with his rehabilitation is prejudice that should be taken into account. I disagree. I agree with the submissions of Mr. Vout that the inconvenience to the defendant in having to defend any subsequent proceeding is not prejudice.
40. The fact that the defendant may have been dealt with by the State under the provisions of the Crimes Act 1958 and served a period of imprisonment, in my judgment is not to the point. This is an application by the plaintiff to bring a personal action in tort. The exercise of my discretion needs to balance issues between the plaintiff and the first defendant leaving completely to one side matters that have already been dealt with between the first defendant and the State.
41. The passage of time has in no way prejudiced a fair trial of the proceeding.[8] The first defendant’s guilty plea constitutes an admission of the facts and law constituting the crimes of which he was convicted, which facts also amount to civil assault, battery and false imprisonment. That said, no prejudice can properly be pointed to.
[8] Section 27L(2)(a).
Legal Advice
42. The plaintiff sought legal advice about claims she might have against the first defendant well within the limitation period. Unfortunately, that advice did not include advice about common law claims nor the true prospects of action
under s 172 of the Property Law Act to reverse the alienation.[9]
[9] Statement of Claim in proceeding no. CI-08-0284, affidavit of the plaintiff, Exhibit KB-1.43. In oral submissions for the defendants, it was argued by Mr. McNab that the potential for the recovery of compensation from the plaintiff’s previous solicitor was a factor to be weighed against an extension of time. I agree that this one factor that may be considered.[10] Mr. Vout argues that whilst the prospects of recovery against the solicitors is appropriate to take into account, the likely prospects of succeeding in that claim must also be considered. I make no final determination of the prospects of the claim against the former solicitors save to comment that such proceedings would be difficult especially absent relevant admissions by the plaintiff’s former solicitors. In the circumstances of this case in my view the prospects of recovery against the former solicitors do not weigh in favour of the defendant such that I should reject the plaintiff’s application.[11]
[10] See the analysis of this issue by Beach J in Delai at [26]-[34].and the cases referred to therein.[11] see Tsiadis v Patterson (2001) 4 VR 114 at [4] per Ormiston JA; at [6] per Callaway JA; and at [28] per44. Mr. McNab argues that the plaintiff overstates the difficulties of prosecuting the plaintiff’s former solicitor and he seeks to distinguish Delai. He argues there is no good reason why proceedings could not have been issued by the former
Mr. NcNab ignores the fact that the plaintiff had obtained an order for
compensation under the Crimes Act 1958 which order could not be satisfied.solicitors within the limitation period. I disagree. The argument advanced by prison serving his sentence. In my view the likelihood of recovery is an important factor which a solicitor is entitled to take into account in advising a client whether or not to sue. The fact that here the known facts up until earlier this year revealed little prospect of recovery makes the action against the solicitor all the more difficult.
Disability
45. Paragraph 2 of the Summons seeks a declaration that the plaintiff was under a disability within section 23(1) of the Act until a date not more than six years prior to the Statement of Claim.
46. Section 3(2) of the Act provides that a person shall be deemed to be under a disability whilst he or she is a minor or of unsound mind.
47. Mr. Vout argued that “a disability” is not limited to those matters contained in section 3(2). He points to section 23(1) and section 27E and argues that those sections do not state that the disability must be a pre-existing one. It simply must exist on the date when the right of action accrued.
48. Mr. Vout argues the plaintiff’s claim accrued on the same day that she was injured at the hands of the first defendant. Her subsequent terror of the first defendant, and her depression, anxiety and post-traumatic stress disorder are continuing. This he argues amounts to “a disability” within the Act. Mr. Vout argues the effect of s 23(1) would be to extend the limitation period until the end of the disability.
49. Minded as I am to grant the plaintiff’s application to extend time within which to commence this proceeding under section 27K of the Act it is unnecessary for me to finally decide this point. However, the expression “a disability” defined as it is in section 3(2) of the Act I would be loathe to accept the argument advanced by Mr. Vout. There is no evidence to suggest the plaintiff at any time was of unsound mind or otherwise without proper standing to have commenced a proceeding.
Buchanan JA; Delai at [34] per Beach J
Conclusion
50. On a full consideration of the circumstances of this case, including the factors enumerated in s 27L of the Act, in my judgment it is just and reasonable that the period within which an action on the plaintiff’s causes of action for assault, battery and false imprisonment may be brought be extended from 30 May 2004 up to the date of the filing of her Statement of Claim, namely 1 May 2009.
51. I will hear the parties on costs.
0
4
0