Borelli v State of Victoria (Department of Education and Training) (Ruling)
[2021] VCC 581
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-00363
| LUIGI BARTOLOMEO BORELLI | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2021 | |
DATE OF RULING: | 19 May 2021 | |
CASE MAY BE CITED AS: | Borelli v State of Victoria (Department of Education and Training) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 581 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Personal injury – common law claim for damages commenced out of time – three separate causes of action – two causes of action statute barred – application to extend time – specific and general prejudice – fair trial
Legislation Cited: Limitation of Actions Act 1958, s23A
Cases Cited:Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hayes v Transport Accident Commission [2010] VSCA 104; Davies v Nilsen [2015] VSC 584; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; Millard v State of Victoria [2006] VSCA 29; Bell v SPC Ltd [1988] VR 123; Tsiadis v Patterson (2001) 4 VR 114; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Ruling: Application allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Angenent | Adviceline Injury Lawyers |
| For the Defendant | Mr D Masel SC with Mr E Makowski | Thomson Geer |
HIS HONOUR:
Introduction
1The plaintiff commenced a proceeding in this Court on 30 January 2020. The Writ was endorsed with a Statement of Claim which was later amended on 18 January 2020.
2The defendant filed a Defence dated 24 February 2020. The relevant part of the Defence is paragraph 13, which pleads that the plaintiff’s cause of action is barred by reason of the provisions of the Limitation of Actions Act 1958.
3The plaintiff filed a Summons dated 11 March 2021 responding to the limitation defence seeking an extension of time.
The pleaded causes of action
4The plaintiff pleaded that he was employed by the defendant at Taylor’s Lakes Secondary College (“the College”) as a science teacher, and at various times as the head of the science department.
5In paragraph 5 of the Amended Statement of Claim, the plaintiff pleaded:
“5During the course of his employment with the Defendant, the Plaintiff was subjected at various times to unreasonable and excessive workplace stress and strain placed upon him by an unsafe working environment and in particular:
(a)in or about 2004 when the Plaintiff was subjected to bullying, harassment and intimidation from 2 science teachers within his department at Taylor’s Lake’s Secondary College;
(b)between about 2005 and 2010 when he was not properly supported by the Defendant in respect to his transfers between various schools; and
(c)in or about September 2015 when he was humiliated in front of students and staff when he was marched out of his classroom and told he was immediately suspended from his teaching duties as a result of an error in his teaching registration renewal application.”
6The defendant submitted that the limitation defence applied to paragraph 5(a) and (b), and not to paragraph 5(c).
7Under paragraph 8(b), the plaintiff expanded upon the allegations he made in paragraph 5(a):
“8At all material times, the Defendant and senior staff at the schools:
…
(b) knew or ought to have known that in about 2004, 2 science teachers at Taylor’s Lakes secondary College had, on numerous occasions, bullied, harassed and intimidated the Plaintiff.”
8Under paragraph 8(c), the plaintiff’s expansion upon the allegations he made in paragraph 5(b) do not provide any particulars of what he says amounted to an absence of proper support. He merely repeated that he “was not being properly supported in respect to his transfers between schools”.
9The defendant served the plaintiff with a Request for Further and Better Particulars dated 24 February 2020.
10Under paragraph 1, relevant to paragraph 5(a) of the request, the plaintiff was requested to provide “the usual details” of the instances of bullying, harassment and intimidation relied upon by him, including the dates of such instances and the persons involved.
11To that request, the plaintiff provided the following Further and Better Particulars:
“(a)In about 2004 when the Plaintiff was subjected to bullying, harassment and intimidation from 2 science teachers within his department at Taylor’s Lakes Secondary College.
PARTICULARS
In about 2003/4 the Plaintiff became aware that 2 teachers, namely Chyloe Kurdas and Louisa Norwood (‘the bullies’), were inappropriately fraternising with students outside of school hours. The Plaintiff reported this activity to the Principal, Mr Geoff Pell, who told the Plaintiff that he would deal with the situation. Mr Pell did not subsequently provide the Plaintiff with any feedback whatsoever about this issue, however the behaviour of the 2 teachers towards the Plaintiff became extremely aggressive and hostile, including (but not limited to) as follows over the period of time from making the complaint to the Plaintiff ceasing work in May 2004 several months later:
(i) As well as teaching, the Plaintiff was also the coordinator of the Science Department that required him to develop and enhance the curriculum programme. The members of staff in the department all cooperated with the Plaintiff in this task, save for the bullies who instead persistently criticised his ideas to improve the curriculum and resisted and obstructed attempts by him to enact same, including refusing to follow the Plaintiff’s requests or directions, thereby undermining the Plaintiff’s authority with other teaching staff.
(ii) The bullies made repeated unfair and offensive personal attacks on the Plaintiff including calling the Plaintiff as ‘asshole’ to other members of staff, including on occasions within earshot of the Plaintiff.
(iii) There were various dinners arranged for staff in the science department including a social dinner organised by the Plaintiff for all members of staff in the department and their respective partners, and:
(A) at one dinner, one of the bullies, on discovering she had sat down next to the Plaintiff’s wife, immediately and very publicly moved to another seat, which was humiliating, embarrassing and upsetting for the Plaintiff, as well as his wife;
(B) the bullies rejected various invitations and then when subsequently invited by the Plaintiff to a dinner they complained that the Plaintiff was sexually harassing them, which was obviously without any foundation and designed to, and did, cause the Plaintiff great upset.
(iv) The bullies regularly deliberately and publicly ignored the Plaintiff when he attempted to speak with them.
(v) When the Plaintiff politely asked one of the bullies, Louisa, whether he could address her by her nick-name of ‘Lou’, as most other members of staff did at the school, she told him ‘No you can’t!’.
(vi) The bullies acted in an aggressive and intimidating manner when told by the Plaintiff that he had received a complaint about the ‘Womens only’ area the bullies had created in the staffroom and that it should be dismantled.”
12Under paragraph 2 of the request, relevant to paragraph 5(b), the plaintiff was requested to provide the usual details of the instances relied upon by the plaintiff, including dates of such instances, the person/s involved and the school involved.
13To that request, the plaintiff provided the following further and better particulars:
“(b) Between about 2005 and 2010 when he was not properly supported by the Defendant in respect to his transfers between various schools.
PARTICULARS
(i)After suffering injury in 2004 and ceasing work in May of that year the Plaintiff was rarely contacted by the Department or staff at the school he had been employed at for many years to check how he was, save for when paperwork was required. This left the Plaintiff feeling that despite his many years of service, there was no consideration for his welfare whatsoever.
(ii)After ceasing work due to injury in May 2004, the Plaintiff was approved for compassionate transfer status, meaning that school selection panels were required to give the Plaintiff recruitment priority in accordance with the Defendant’s policy, however there were persistent breaches of this policy to the extent that the Plaintiff actually withdrew his status at certain times to ensure he was not discriminated against, which again left the Plaintiff feeling totally unsupported and that there was no consideration for his welfare whatsoever. Furthermore the Plaintiff was only able to secure temporary contract positions and so was forced to regularly move schools and positions over the following years, resulting in a regular cycle of applying for jobs, for example:
(A)when, several months after suffering injury, having been off work and whilst still receiving ongoing treatment, the Plaintiff managed to secure work as an assistant teacher at Buckley Park Secondary College in about 2005, he was only given a short term contract position which expired in about November 2005, at which time he was again given no, or no adequate, support or guidance to find an appropriate new position, leaving the Plaintiff feeling like there was no support or consideration for his welfare whatsoever;
(B)when the Plaintiff managed to secure work as a maths teacher at Gladstone School in 2005, he was again given a limited 12-month contract to replace a teacher who had gone on leave but at the end of the first term, that teacher returned without notice and told the Plaintiff he intended to resume his role at the start of the second term. The Plaintiff was not advised, formally or otherwise, of this situation by the Department or the school, which given his continuing and known fragile mental state again left the Plaintiff feeling totally unsupported and like there was no consideration for his welfare whatsoever. The Plaintiff was then forced to look for another position without any, or any adequate, assistance from the Department;
(iii)in about 2006 the Plaintiff was again only provided with a temporary contract position at Gisborne Secondary College;
(iv)in about 2008 the Plaintiff applied for a position at Essendon Keilor Secondary College, as a biology and science teacher, and subsequently made a complaint to the Defendant about being discriminated against.
(v)in about 2008 the Plaintiff was again provided with a temporary contract position as a science, maths and biology teacher at Kyneton Secondary College;
(vi)in about 2009 the Plaintiff was again provided with a temporary contract position at Fitzroy campaign School before finally securing a full-time permanent position at Reservoir Secondary College in 2010, meaning that it had taken the Plaintiff five years to find a permanent position despite his compassionate transfer status and ongoing, and known, mental health condition.”
Evidence in the application
14The plaintiff swore an affidavit on 10 March 2021. He described the workplace stress, bullying and harassment, and the steps he took to inform the defendant’s servants and agents of the occurrence of an injury resulting from the workplace stress, bullying and harassment, as follows:
“5. In about 2003 however I started feeling increasingly stressed and anxious as a result of the behaviour of some teachers in my department. When I reported this activity to the Principal of the school, Geoff Pell, he told me he would investigate the matter and engage a Department of Education psychologist to assist. I believe that subsequently he held meetings with various staff in late 2003 and early 2004 to discuss the issues I had raised with him.
6.Subsequent to making the complaint to the principal, I was the target of increasingly hostile behaviour from some teachers in my department such as Ms Chyloe Kurdas, Ms Louisa Norwood and Ms Shiralee Biesot. They started to unfairly criticise me and my plans to change the curriculum, and undermined my authority with other teaching staff. They also became extremely obstructive and generally refused to follow my instructions or directions. I was on the receiving end of many unfair and offensive personal attacks. During this period, I felt like I was not getting any support from the school. By early 2004 I was struggling to cope with the stress, so I wrote a letter to Mr Pell dated 4 February 2004 regarding issues with other staff. Now produced and shown to me and marked ‘LB-1’ is a copy of that letter.
7.In about May 2004 I had a meeting with a departmental psychologist at the school and I met with the school principal again, Mr Pell, who told me that he was concerned about my welfare and suggested that I take some time off work. I subsequently took some leave and as a result of my high levels of anxiety and stress, I attended my GP who prescribed some medication and referred me to a psychiatrist, Dr Thomas Peyton, who I started seeing regularly. I did not return to teach at the school due to my psychological injury after that time, though I did speak with the school including Mr Pell about my progress and ongoing concerns.
8.As a result of my psychological injuries, on about 9 June 2004 I lodged a Workcover Claim Form dated 9 June 2004 together with a 3 page document I created entitled ‘Workcare Report: Luigi Borrelli 2004’. The claim was accepted and I started to receive weekly payments of compensation based on my inability to work. In order to remain on the weekly payments, I was required to provide certificates from my GP to certify that I was unable to work. I was also required to undergo examination by independent medical practitioners to assess my medical condition and ongoing capacity for work. Now produced and shown to me and marked ‘LB-2’ are copies of various documents relevant to my Workcover claim:
(a)Workcover Worker’s Claim Form signed by me on 9 June 2004 and the principal Mr Pell on 17 June 2004 in respect to depression/stress ‘due to conflict/disputes within the workplace’, together with a 3 page document I created entitled ‘‘Workcare Report: Luigi Borrelli 2004’’;
(b)Employer Claim Report dated 17 June 2004 signed by Mr Pell and confirming I had reported depression and anxiety ‘due to conflict/disputes within w’place’ to Mr Pell;
(c)letter from Geoff Pell, Principal to CGU Worker’s Compensation dated 21 June 2004 in respect to my claim for compensation;
(d)letter from CGU Worker[’]s Compensation to the Plaintiff dated 19 July 2004 accepting my Workcover claim for weekly payments of compensation;
(e)independent medical report by psychiatrist, Dr Dharwadkar, dated 8 June 2004;
(f)vocational report of Martinique Diss, Vocational Rehabilitation Consultant dated 23 July 2004;
(g)note from Taylors Lakes Secondary College regarding my compensation payments dated 23 August 2004;
(h)various Certificates of Capacity completed by my treating doctors; and
(i)report of Dr Amanda Sillcock, Occupational Physician dated 21 December 2005 addressed to Mr Geoff Pell, Principal, Taylors Lakes Secondary College regarding an assessment of my fitness for duty.”
15The plaintiff then described what he says amounted to an absence of support:
“9.In about February 2005, despite my ongoing depression and treatment, I was determined to try and get back to work, so I started to apply for new teaching positions. Due to my psychiatric illness I successfully applied to be placed on the Department’s compassionate transfer programme, which I understand was designed to allow participants an easier, less stressful process of obtaining a new teaching position. Unfortunately, despite having such status and my hope to obtain a secure alternative teaching position, over the next 5 years, I applied for about 20 positions and worked at 6 different schools for short periods of time which had the effect of creating significant further stress for me.
10. Specifically:
(a)in about 2005 one of the positions I applied for was as an assistant teacher at Buckley Park Secondary College in Essendon. My application was successful but I was only there for less than a year;
(b)after further applications, I managed to obtain a position at Gladstone Park Secondary School as a maths teacher for a short period;
(c)after further applications, in about 2006 I obtained a position as a science, maths and biology teacher at Gisborne Secondary School which lasted for nearly 2 years;
(d)after further applications, in about 2008 I obtained a position at Kyneton Secondary College for a short period;
(e)after further applications, I taught for a year or so at Fitzroy High School; and
(f)then in about 2010 I was finally given a permanent full-time position at Reservoir High School.
[(g)]due [to] my persistent anxiety and depression, throughout the period from when I stopped work at Taylors Lakes in 2004 and when I started work at Reservoir in 2010, I continued receiving treatment in the form of medication and regular therapy with my psychiatrist. In late 2006, I was also referred to a psychologist, Mr Gabriel Notarianni, who I have seen monthly since for cognitive behavioural therapy.
11.Rather than improving (as I had hoped) after leaving Taylors Lakes and the issues there in 2004, I did not get better. In fact I felt totally unsupported by my employer despite them being fully aware of my medical condition and being on their compassionate transfer programme. As a result of being regularly shunted from school to school on short term contracts and the lack of any stability or security, my anxiety and depression persisted. In about 2009 I made a complaint about the process to the Merit Protection Board. Now produced and shown to me and marked ‘LB-3’ are copies of various documents relevant to these matters, including transfer applications made by me, documents related to the Defendant’s compassionate transfer programme and documents related to the grievance application made by me to the Merit Protection Boards.”
16The plaintiff then described the steps he took to obtain legal advice, and once he was in possession of legal advice, the steps that were taken in pursuit of a compensation claim, and then a common law claim, culminating in the filing of the Writ and the Summons. It was following a deterioration in his mental condition in October 2015 that he was certified as unfit for work. Thereafter, he did not return to work:
“13.Shortly after stopping work in October 2015, I sought legal advice from Ms Lisa Paul, a solicitor at Adviceline Injury Lawyers, about my entitlements to compensation. I first met Ms Paul on 30 November 20125[1] at which time I was told that I may have some entitlements to a lump sum payment and a common law claim but the initial focus should be on attempting to reinstating my weekly payments. I accepted that advice and I instructed Ms Paul accordingly, particularly as I had no income at that stage and I was under great financial pressure. After lodging another claim form and issuing proceedings in the Victorian Magistrates’ Court, my weekly payments were eventually reinstated in August 2018. My solicitor then, on my instructions, assisted me with making a claim for a lump sum payment which was ultimately unsuccessful as a result of a medical panel decision in May 2019. Earlier in 2019 I saw a barrister who prepared some documents for a serious injury application which I understand was lodged in June 2019 and I was granted a serious injury certificate in September 2019.
14.As such, there has not been any delay in providing instructions and I have simply followed the advice of my solicitor to deal with my weekly payments first, then my entitlement to any lump sum payment and any common law claim. As soon as my weekly payments were reinstated and I was advised to proceed with a common law claim, I provided my instructions to do so.”
[1] An obvious error: “20125”
17I have set out verbatim the pleadings and the plaintiff’s evidence to demonstrate with absolute clarity not only the basis upon which the plaintiff will allege negligence on the part of the defendant, but to demonstrate also the basis upon which the plaintiff submits that it is just and reasonable to extend time.
18I will now set out the relevant evidence of Ms Lisa Jane Paul, solicitor of Adviceline Injury Lawyers, who was retained by the plaintiff.
“7.In about November 2015, the Plaintiff instructed Adviceline Injury Lawyers to act on his behalf. My firm’s initial investigations and work performed revolved around the potential reinstatement of his weekly payments. I first met with the Plaintiff on 30 November 2015 after he was referred to me by the Australian Education Union for advice about his WorkCover entitlements …
…
At that first meeting with the Plaintiff, I advised him that the initial focus should be on attempting to reinstate his weekly payments of compensation as soon as possible, following which we could explore any other potential entitlements, including a lump sum payment and a common law claim which both required his medical condition to be stable.
…
9.The Plaintiff has instructed me he has not received any legal advice regarding his common law entitlements save for the advice he has received from my firm.
10.In light of the facts above, I believe that based on the advice this firm gave to the Plaintiff on or about 30 April 2018 that he knew or ought to have known that the bullying and harassment and the transfer stress might be capable of giving rise to an action for damages at that time but he accepted my advice to not explore any such action until such time as his condition stabilised enough to assess whether he may meet the required threshold of ‘serious injury’. As such I believe the Plaintiff acted promptly and reasonably based on that advice.”
19I have excised the steps which Ms Paul’s firm took on behalf of the plaintiff in obtaining information from the relevant claims agent, and the steps taken to pursue his entitlement to no fault benefits subjoined to paragraph 8. I have done so, because the defendant did not suggest that the steps taken had not been taken nor that the description of what steps were taken was in any way controversial.
20I will now set out the relevant evidence of Ms Cara Bredebusch, solicitor of Thomson Geer, who was retained by the defendant.
21Ms Bredebusch swore an affidavit on 7 April 2021 in which she makes a commentary on the plaintiff’s reasons for the delay and the prejudice which she submits has been occasioned by the delay of the plaintiff in commencing his proceeding. The commentary amounts to argument, and at best is a submission rather than being evidence. The actual evidence which the defendant submits amounts to prejudice is as follows:
“9.In his Affidavit, the Plaintiff identifies a number of witnesses in relation to his 2004 cause of action. At paragraph 6 he alleges that he was subjected to ‘hostile behaviour form some teachers in his department’ including Ms Chyloe Kurdas, Ms Louisa Norwood and Ms Shiralee Biesot. He notes the relevant principal at the time was Mr Geoff Pell.
10.On 21 February 2020, Ms Elise Williams had a telephone conversation with Ms Louisa Norwood in which Ms Williams advised her of the Plaintiff’s allegations. Ms Norwood denied each of the Plaintiff’s allegations, advising that she believed she got along well with the Plaintiff. On 30 March 2021 I corresponded with Ms Norwood and received her continued denials.
11.On 15 April2020, Ms Elise Williams had a telephone conversation with Ms Chyloe Kurdas, advising her of the Plaintiff’s allegations. Ms Kurdas denied behaving improperly toward the Plaintiff and expressed shock at what was being alleged. On 29 March 2021 I had a telephone conversation with Ms Kurdas. She advised me that she was no longer in the employ of the Defendant and maintained that she never engaged in any harassing or hostile behaviour toward the Plaintiff.
12.have not been able to locate Ms Shiralee Biesot. The Defendant has advised me that Ms Biesot’s last known teaching employment was when she ceased working for Northern Bay P-2 College on 12 January 2012 and Taylor’s Lakes Secondary College do not have the last known phone number for Ms Biesot. I was advised by Ms Chyloe Kurdas during our telephone conversation on 29 March 2021, that she believed that Ms Biesot had some years ago moved to ‘the Middle East’ to work and that she was unsure of her current whereabouts. At the time of swearing this Affidavit I have been unable to locate Ms Biesot.
13.On 27 November 2019 and again on 11 December 2019 Ms Elise Williams had two telephone conversations with Mr Geoff Pell. He advised Ms Williams that he had no recollection of any of the alleged bullying conduct occurring. I have attempted to contact Mr Geoff Pell by telephone and by email to discuss the contents of the Plaintiffs Affidavit dated 10 March 2021, however have not had the chance to have a substantial conversation with him as he is currently interstate on holidays.
14.I humbly submit that the inability to locate Ms Biesot will cause specific prejudice to the Defendant’s ability to defend this proceeding. Further, it is apparent that while the other witnesses strongly deny the Plaintiff’s allegations, their ability to recall exact events of 17 years ago will be compromised. In a claim alleging bullying, with little to no supporting documentary evidence, I humbly submit the ability for witnesses to recall matters with accuracy is essential to the proper carriage of justice.”
22Ms Bredebusch swore a further affidavit on 15 April 2021 in which she deposed to further evidence, which the defendant relied upon in its submissions, as follows:
“5.On 13 April 2021 Mr Geoffrey Pell advised me in approximately 2003 or 2004 he called in Ms Joan Callahan, a consultant Psychologist who was a private contractor used by the Defendant, to deal with a period of disquiet concerning the Plaintiff. He recalls Ms Callahan met with the Plaintiff, Louisa Norwood and several others who he cannot recall.
6.I believe Ms Callahan is the ‘departmental psychologist’ referred to at paragraph 7 of the Plaintiff’s affidavit dated 10 March 2021.
7.Thomson Geer contacted Ms Callahan who on 15 April 2021 advised she certainly does not have any records from 2003 and 2004, nor any reports on disc or backup regarding the Plaintiff. She advised she can offer nothing and has no recollection of the Plaintiff. I humbly submit that the inability to locate Ms Callahan’s records, and her inability to remember the Plaintiff will cause specific prejudice to the Defendant’s ability to defend this proceeding.”
23The parties proceeded on the basis that the plaintiff’s pleadings disclosed three separate causes of action:
· 2004 – bullying, harassment and intimidation (paragraph 5(a)).
· 2005 to 2010 – absence of support (paragraph 5(b)).
· September 2015 – humiliation relevant to the teaching registration (paragraph 5(c)).
24The parties agreed that the first cause of action fixed at events which occurred in 2004 is statute barred, and the effluxion of time between the cause of action and the filing of the Summons is approximately seventeen years.
25The parties agreed that the second cause of action which occurred between 2005 and 2010 is statute barred, and the effluxion of time between the cause of action and the filing of the Summons is between sixteen years (from the commencement of the pleaded period) and eleven years (to the end of the pleaded period).
26The parties agreed that the third cause of action fixed at events which occurred in September 2015 is not statute barred.
The affidavit evidence
27The parties were content to proceed by reference to the causes of action defined in the Amended Statement of Claim and the Further and Better Particulars.
28Additionally, the parties were content to proceed by reference to the evidence contained in the affidavits from which I have quoted extensively. I am concerned to record this, because the first affidavit of Ms Bredebusch contains hearsay. Ms Elise Williams is not identified in Ms Bredebusch’s affidavits as being an employee of the defendant in some role, or a member of Ms Bredebusch’s firm. It was not a point taken by the plaintiff nor did the plaintiff submit that I should not accept what was discovered by Ms Williams through her investigations
The issues
29The plaintiff bears the onus to satisfy me that is just and reasonable to extend the time within which the proceeding may be brought by having regard to all of the circumstances of the case including the considerations relevant to the exercise of the discretion referred to in ss(3), which are as follows:
“(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.”
The discretionary considerations
30I will firstly deal with the first cause of action. I will deal with the considerations referred to in ss(3) individually and, in doing so, return to the question of prejudice and the other submissions made by the defendant.
The length of, and reasons for, the delay on the part of the Plaintiff
31I have already referred to the length of the delay as being approximately seventeen years. Neither party quarrelled with that estimate of the length of the delay. I am in no doubt that the length of the delay deserves to be described as inordinate.
32The defendant was prepared to concede that part of the delay can be excused by reason of the fact that the plaintiff had to meet the statutory requirements of the Accident Compensation Act 1985 to obtain serious injury certification to commence a common-law proceeding. The additional delay in the pursuit of serious injury certification is relevant in determining whether the delay is inordinate.[2]
[2]Hayes v Transport Accident Commission [2010] VSCA 104 at paragraph [21], and Davies v Nilsen [2015] VSC 584 at paragraphs [48]-[49] (“Davies”)
33The reason for the delay is that the plaintiff had not sought nor received any legal advice that he had a common law entitlement until he conferred with Ms Paul on 30 November 2015. Ms Paul said that when she first saw the plaintiff, that he instructed her that he had not received any legal advice regarding a common law entitlement save for the advice that he received from her.
34According to Ms Paul, the Victorian WorkCover Authority granted the plaintiff a serious injury certificate under cover of a letter dated 26 September 2019. By that grant, the plaintiff was at liberty to commence common law proceedings, and indeed, was also at liberty to seek an extension of time. Rather than doing so, however, the plaintiff waited to see what defence the defendant might take and, once he knew that a limitation defence had been taken, he then filed the Summons seeking an extension of time. It can now be seen that that was imprudent because of the additional effluxion of time running against the plaintiff.
35The defendant submitted that the plaintiff is an educated man who occupied a reasonably senior position within the ranks of teaching staff at the College. It submitted that it is difficult to accept that his state of mind was that of ignorance to the availability of workers’ compensation, and also common-law entitlements. The plaintiff was not cross-examined. I am left to assess his state of mind on the basis of the relevant parts of the affidavits. I accept that he did not know that he had a common-law entitlement until he was informed of that by Ms Paul, and I accept Ms Paul’s evidence that the first time the plaintiff understood that he had a common law entitlement was when she gave him that advice.
The extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
36It is critically important to isolate the factual content of the plaintiff’s evidence seen through the prism of the first cause of action as pleaded and particularised in the Further and Better Particulars. It is then critically important to isolate what the defendant says in response, and, importantly, whether its potential witnesses say that they have some memory, an imperfect memory, or no memory, depriving the defendant of fair opportunity to contest the plaintiff’s allegations.
37Whilst the plaintiff points to Ms Kurdas and Ms Norwood as the main culprits, in his affidavit he also refers to Ms Biesot. So what do Ms Kurdas and Ms Norwood say? Ms Williams said that she had a telephone conversation with Ms Norwood on 21 February 2020. She advised her of the allegations made by the plaintiff during the telephone conversation. She had a telephone conversation with Ms Kurdas on 15 April 2020. She advised her of the allegations made by the plaintiff during that telephone conversation.
38I must pause here to pose the question: what were the allegations made by the plaintiff which Ms Williams advised both Ms Norwood and Ms Kurdas about? By the time Ms Williams spoke to Ms Norwood and Ms Kurdas, the defendant was in possession of the allegations made by the plaintiff in the Amended Statement of Claim, in the Further and Better Particulars and in his affidavit. In the absence of anything more from Ms Williams, I can only assume that the substance of what she advised Ms Norwood and Ms Kurdas were directly taken from the allegations made by the plaintiff in the Amended Statement of Claim, the Further and Better Particulars and in his affidavit.
39So what response did Ms Williams obtain from Ms Norwood and Ms Kurdas? Ms Norwood denied “each of the plaintiff’s allegations”, adding that “she believed she got along well with the plaintiff“. For the purpose of certainty, Ms Bredebusch wrote to Ms Norwood by letter dated 30 March 2021, presumably asking her to respond to the plaintiff’s allegations. She received a response from Ms Norwood which contained “her continued denials”.
40Ms Kurdas “denied behaving improperly toward the Plaintiff and expressed shock at what was being alleged”. Ms Bredebusch had a telephone conversation with her on 29 March 2021 during which Kurdas “maintained that she never engaged in any harassing or hostile behaviour towards the Plaintiff”.
41In Ms Bredebusch’s first affidavit, she referred to two telephone conversations which Ms Williams had with Mr Pell on 27 November 2019 and 11 December 2019. He said he had “no recollection of any of the alleged bullying conduct occurring”; however, in Ms Bredebusch’s second affidavit, she referred to further information she obtained from Mr Pell. He told her that he had some recollection of events involving the plaintiff and Ms Norwood. He recalled that in approximately 2003 or 2004, he called in Ms Joan Callahan, consultant psychologist, “to deal with a period of disquiet concerning the Plaintiff”, and he recalls that Ms Callahan met with the plaintiff, Ms Norwood and several others, although, he is unable to recall who those several others were by name.
42In Ms Bredebusch’s second affidavit, she refers to someone from her firm contacting Ms Callahan on 15 April 2021. Ms Callahan told that person that she does not have any records from 2003 and 2004 and has no recollection of the plaintiff, and presumably that means no recollection of why she was engaged by Mr Pell nor the meeting she had with the plaintiff, Ms Norwood and others.
43The question of specific prejudice was relied upon by the defendant. The specific prejudice is said to have arisen because of the effluxion of time and the impact of it on the memories of Mr Pell, Ms Norwood and Ms Kurdas. Furthermore, Ms Biesot may have moved overseas. Her current whereabouts are unknown, and Ms Callahan has no records and no recollection of any meeting with anyone relevant to the allegations made by the plaintiff.
44So far, the fact that Ms Norwood and Ms Kurdas deny the allegations made by the plaintiff must mean that they recall interacting with the plaintiff at the relevant time in 2004. I say that must be the case, because their denial can only be based on a recollection of that level of interaction. If they had no recollection of the plaintiff or of any interaction with him, then I would have expected that they would have said so, but they have not. Similarly, Mr Pell has some recollection of events which occurred involving at least the plaintiff and Ms Norwood, of sufficient concern to him to call in Ms Callahan.
45In the circumstances, I do not accept that there is any significant specific prejudice relevant to Ms Norwood and Ms Kurdas. Ms Biesot is another matter altogether. Interestingly, the plaintiff does not refer to Ms Biesot as one of the culprits in the Amended Statement of Claim nor in the Further and Better Particulars. She is referred to for the first time in the plaintiff’s affidavit. It is in his affidavit that he appears to blame her equally with Ms Norwood and Ms Kurdas; however, it is probable that considering the denials made by Ms Norwood and Ms Kurdas, that she will make a similar denial.
46Mr Pell was not one of the combatants in the interaction between the plaintiff and Ms Norwood, Ms Kurdas and Ms Biesot. His evidence does not condescend into whether the events alleged by the plaintiff actually occurred or not. His role began when the plaintiff wrote a letter to him dated 4 February 2004 regarding the issues which he had with staff at the College. It now appears that Mr Pell recalls that he engaged Ms Callahan following the letter he received from the plaintiff. Her role appears, as far as it is capable of being determined, to have been the application of her skills as a psychologist to assist the plaintiff with the issues that he was having with staff at the College. Her evidence cannot condescend into whether the events alleged by the plaintiff actually occurred or not. However, the recollections of Mr Pell and Ms Callahan may go some way to demonstrating what issues the plaintiff was having with Ms Norwood, Ms Kurdas and Ms Biesot which may avail the defendant of material which may assist in its defence.
47The defendant also relied upon general prejudice. I refer to the oft quoted observations of McHugh J in Brisbane South Regional Health Authority v Taylor[3] in which his Honour made a number of telling observations, among other observations, that evidence may disappear without anyone knowing that it ever existed, and that time will diminish the significance of the known facts or circumstances because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. Furthermore, that the delay in commencing proceedings may have the result that it will be decided on less evidence than was available to the parties at the time the cause of action arose. The defendant submitted that all of those observations are relevant given the inordinate delay of seventeen years when the effluxion of that period of time would impact upon the evidence in each of the ways described by his Honour.
[3](1996) 186 CLR 541 at 551, and also at 552-553, where his Honour referred to the oppressive nature, even the cruelty of allowing a proceeding to be brought long after the circumstances which gave rise to it have passed
48The defendant submitted that the allegations made by the plaintiff need to be contrasted with an obvious industrial accident where, for example, a worker may lose a hand trapped in a machine. An accident circumstance such as that would live long in the memory of witnesses, whereas in the plaintiff’s case, the subtlety and nuance of words spoken, and postures adopted are lost when they may be of real importance in capturing the complexion of what occurred, the circumstances of its occurrence, and then what is to be made of a synthesis of individual occurrences as between the players involved in the occurrence.
49I think there is merit in that submission that inevitably things have been lost without the players knowing of the existence of what has been lost; however, here, I think that is less likely to be so for two reasons – firstly, the plaintiff’s allegations are essentially defined by the Amended Statement of Claim and the Further and Better Particulars. Secondly, those allegations were put to Ms Norwood and Ms Durmas who, for reasons I have already referred to, deny the allegations rather than assert that they have little or no recollection of any of those allegations.
50I should add that this is not a case without documents. Ms Paul referred to contemporaneous documentation relevant to bullying and harassment of the plaintiff in paragraph 11(b) of her affidavit. The documentation to which she has referred appears to me to be reasonably extensive. I was provided with a much reduced volume of exhibits to Ms Paul’s affidavit. What I was provided with, in addition to Ms Paul’s reference to the documents referred to in paragraph 11(b), record the complaints made by the plaintiff of bullying, harassment and intimidation. I think those documents provide the defendant with a basis to understand the circumstances which prevailed at the time when the plaintiff alleges that he was bullied, harassed and intimidated.
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
51Neither party made any submissions relevant to this consideration. In any event, having reviewed all of the evidence and the parties’ submissions, it does not appear to me to be relevant.
The duration of any disability of the Plaintiff arising on or after the date of the accrual of the cause of action
52Again, neither party made any submissions relevant to this consideration. On the basis of the material provided through the affidavit of Ms Paul, it would appear that the plaintiff has a psychiatric condition which potentially was caused by the cumulative effect of the circumstances relevant to each of these three causes of action.
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
53I repeat the conclusion I have reached about the plaintiff’s state of mind, that he did not know he had a common-law entitlement until Ms Paul advised him of the same.
54In Ms Bredebusch’s first affidavit, she was critical of the advice given to the plaintiff by Ms Paul to pursue his no fault entitlements rather than more vigorously pursuing his common-law entitlement. I think that criticism is harsh and devoid of the reality of the work which Ms Paul needed to undertake to reinstate the plaintiff’s weekly payments of compensation and then to explore whatever other potential entitlements he had to a lump sum and at common law.
55The plaintiff instructed Ms Paul to advise him and to prosecute what no fault and common-law entitlements he might have. These were matters which he left to her, and that decision was both reasonable and desirable. There is nothing, so far as I can see, that warrants criticism of the plan of attack which Ms Paul considered was appropriate in the circumstances. Furthermore, after reading Ms Paul’s affidavit carefully, it is clear that a lot of work needed to be undertaken in reinstating the plaintiff’s weekly payments of compensation, and no doubt while that process was being undertaken, evidence was inevitably gathered which made the prospect of the plaintiff having a common-law entitlement so much clearer.[4]
[4]The approach taken by Ms Paul and accepted by the plaintiff was the subject of observation consistent with what I have said: see Anisiena v H Crane Haulage Pty Ltd [1974] VR 670, Millard v State of Victoria [2006] VSCA 29 and Davies (supra) at paragraphs [62]-[64]
56I do not accept, therefore, that there was any inordinate delay on the part of the plaintiff after he initially gave instructions to Ms Paul and got the ball rolling.
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
57Again, neither party addressed this consideration, and in any event, there would be no merit in any submission that the plaintiff had not taken appropriate and expeditious steps to obtain medical, legal and other advice relevant to his common-law entitlement.
A synthesis
58The plaintiff bears the onus of persuading me that it is just and reasonable to extend time.[5] I must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all.[6]
[5]Bell v SPC Ltd [1988] VR 123 at 125-6, and Tsiadis v Patterson (2001) 4 VR 114 at paragraph [33] (“Tsiadis”)
[6] Tsiadis (ibid) at paragraph [33]
59The prejudice which the defendant contends is palpable and needs to be viewed in the context of the true issues to be ventilated at trial, and in particular, the issue of liability. That brings me to the question of whether a fair trial can be had in the circumstances. A fair trial does not mean an ideal trial, but one which is acceptably fair. The plaintiff must persuade me that what prejudice there is would not make the chances of an acceptably fair trial unlikely.[7]
[7]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at paragraph [79], and Davies (supra) at paragraph [108]
60The actual prejudice to the defendant must be considered carefully. The trial of this proceeding will have a heavy concentration on the issue of liability. The issues to be ventilated on liability have been made clear by the plaintiff in the Amended Statement of Claim and the Further and Better Particulars. At least two of the defendant’s witnesses, Ms Norwood and Ms Gurvas, understand the nature, extent and gravamen of the allegations made by the plaintiff and have demonstrated that they are in a position to answer those allegations.
61The evidence of Mr Pell and Ms Callahan does not seriously impinge on the issue of liability. Their involvement does not impinge upon the question of causation of the injury. Furthermore, once the plaintiff lodged his Workers’ Compensation Claim Form, the documents which were subsequently generated demonstrate what allegations were then made by the plaintiff regarding the cause of his injury.
62The absence of Ms Biesot is the most direct evidence of specific prejudice suffered by the defendant should her whereabouts not be discovered; however, the main culprits according to the plaintiff are Ms Norwood and Ms Gurvas. I do not think that a fair trial is unlikely by reason of her absence because of the availability of Ms Norwood and Ms Gurvas, and the available documentary evidence.
63For the reasons I have set out, and after weighing up the competing considerations, I think it is just and equitable to grant the plaintiff leave to bring the proceeding, relevant to the first cause of action, out of time.
The second cause of action – absence of support from 2005 to 2010
64The defendant’s submissions essentially concentrated on the first cause of action. That is abundantly clear from the evidence contained in the affidavits of Ms Bredebusch. The written submissions of the parties were also directed to the first cause of action, although, there is some passing reference to the second cause of action in the defendant’s written submissions, but then an analysis of the facts and the applicable law relevant to the first cause of action.
65I propose to dispose of the limitation defence relevant to the second cause of action in a rather more summary way. I will assume that the real attack made by the defendant is based upon general prejudice in the absence of anything more direct.
66The plaintiff described the transfers between schools that he suffered from 2005 through to 2010 in paragraphs 9 to 11 of his affidavit. The defendant has not contested any of that evidence, and so I must operate on the basis that it is not controversial. Furthermore, on the basis of the plaintiff’s description of the transfers between schools, and the existence of documents in his possession which go some way to demonstrating what he says, there appears to be a paper trail which the defendant now has by which it can verify what the plaintiff says. I think I can infer that the transfers were considered by the defendant, and that its consideration and the mechanism by which the transfers occurred are documented.
67I incorporate my analysis of the evidence and the applicable principles of law which I referred to relevant to the consideration of the first cause of action into my reasoning relevant to the second cause of action. For very much the same reasons, and after weighing up the competing considerations such as they are, I do not think what prejudice there is would not make the chances of an acceptably fair trial unlikely. I think it is just and equitable to grant the plaintiff leave to bring the proceeding, relevant to the second cause of action, out of time.
Orders
68I expect that the parties will provide appropriate draft orders not only relevant to the extension of time that I have now granted the plaintiff, but relevant to any other interlocutory orders that are necessary to move this proceeding to trial expeditiously. In the absence of agreement between the parties relevant to draft orders, I expect the parties to agree to a date for a directions hearing to be undertaken forthwith.
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