Best v Theodore

[2000] TASSC 4

[2000] TASSC 4

CITATION:            Best v Theodore & Ors [2000] TASSC 4

PARTIES:  BEST, Geoffrey

v
THEODORE, Conrad
POLLER-MOUNTER, John Alexander
DANISKA, Ernest John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  BDR M23/1999
DELIVERED ON:  18 February 2000
DELIVERED AT:  Burnie
HEARING DATE:  3 February 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Limitation of Actions - Extension of time - Prejudice - Action based on conduct of architects designing a building over 20 years before plaintiff's injury sustained.

Sophron v The Nominal Defendant (1957) 96 CLR 469; Brisbane South Regional Authority v Taylor (1996) 186 CLR 541, referred to.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
           Applicant:  C J Bartlett
           Respondents:  J L Dewar
Solicitors:
           Applicant:  Bartletts
           Respondents:  Crisp Hudson & Mann

Judgment  Number:  [2000] TASSC 4
Number of paragraphs:  4

Serial No 4/2000
File No BDR M23/1999

GEOFFREY BEST v CONRAD THEODORE,
JOHN ALEXANDER POLLER-MOUNTER and
ERNEST JOHN DANISKA

REASONS FOR JUDGMENT  COX CJ

18 February 2000

1. This is an application for an extension of time within which to commence proceedings against the respondents who are alleged to be the architects who designed the building for a ledge from which the plaintiff/applicant fell and sustained personal injuries on 21 March 1996.  He commenced proceedings against the owner and some occupiers of the building for damages for negligence and/or breach of agreement and/or breach of statutory duty in 1997 and thereafter, on 24 November 1998, that is, within the three years following the accrual of his cause of action, joined one Agros Saliens (the fourth named defendant), an architect who is claimed to have effected some modifications to the building in 1981, Fellows Pty Ltd, then thought to be the architects who designed the building when it was constructed some time prior to 1978, and the Burnie City Council.  The decision of the plaintiff and his advisers to join these extra parties was made after consultation with the solicitors acting for Miala Pty Ltd, the owner of the building, in order to avoid Miala Pty Ltd having to join them as third parties.

1. The applicant subsequently discovered, in January 1999, that Fellows Pty Ltd was de-registered and advised the solicitors for Miala Pty Ltd of that fact.  On 7 May 1999, the latter firm of solicitors advised the applicant's solicitor that the three respondents were the architects responsible for the design of the building in question and on 21 May 1999, the Master made an order at the applicant's request substituting the respondents as defendants in the place of Fellows Pty Ltd.  Following service of the writ, an appearance was entered by the respondents and a defence delivered.  It pleads (inter alia) the Limitation Act 1974 ("the Act").

1. I am not satisfied on the materials before me that "in all the circumstances of the case it is just and reasonable to grant the extension of time sought" (the Act, s5(3)) or to use the paraphrase of the High Court in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475 that there is "some positive reason for concluding that as between the parties it would be just to extend the period" for instituting the proceedings against these respondents. The evidence is, at this stage, scant as to whether or not these respondents, though the original architects of the building, designed the apparently unprotected ledge area from which the applicant fell. As modifications were made to the building in 1981 and the then architect has been joined as a party, it would seem that there is at least a claim that he is responsible in some way for the defective design for which, on the basis of Voli v Inglewood Shire Council (1962 - 1963) 110 CLR 74 the applicant seeks to rely to establish liability. The conduct of the applicant's solicitor in joining Fellows Pty Ltd rather than the respondents and in seeking to rectify that error when he discovered it is beyond reproach, but the possibility of prejudice is a very significant factor in this case. No affidavit of specific prejudice was filed to attend the hearing of the application, but counsel for the respondents, without protest from counsel for the applicant, said in the course of his submissions that his clients, in their affidavit of discovery in the action, had claimed to be in possession now of only very few relevant documents and, in my view, the passage of time is itself more significant here than the duration of the delay since the expiration of the time allowed by the Act. The conduct of the respondents relied upon by the plaintiff as giving rise to a liability towards him was performed prior to 1978 and modifications have been made to the building subsequently by another architect, although whether these affect the relevant portion of the premises, and if so, to what extent, is unclear. There is, furthermore, the consideration adverted to by McHugh J in Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at 552 that parties and their insurers have an interest in knowing that they have no liabilities beyond a definite period.

1. In all the circumstances, I am not satisfied that it is just and reasonable to grant the extension.  The application is dismissed.