Bracher v Club Marconi and 12 Ors

[1999] NSWSC 1193

CITATION:

Bracher v Club Marconi & 12 Ors [1999] NSWSC 1193

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20669/97

HEARING DATE(S):

28 October 1999

JUDGMENT DATE:

8 December 1999

PARTIES :

Peter George Bracher
(Plaintiff)

Club Marconi
(First Defendant)

Anthony Labbozzetta
(Second Defendant)

Vic Budini
(Third Defendant)

Frank Fontana
(Fourth Defendant)

Frank Baroni
(Fifth Defendant)

Luciano Crema
(Sixth Defendant)

Rocco Mileto
(Seventh Defendant)

Ron Cavagnino
(Eighth Defendant)

Bruno Dalpra
(Ninth Defendant)

Bruno Viler
(Tenth Defendant)

Livio Sartoretto
(Eleventh Defendant)

Juliano Colusso
(Twelfth Defendant)

Ignatious Morvillo
(Thirteenth Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :

Mr P A Beale with Mr Chrysostomon
(Plaintiff)

Mr Enright
(First to fourth and
Sixth to Eleventh Defendants)

Mr J Duncan
(Fifth Defendant)

Mr C M Simpson
(Twelfth Defendant)

N/A
(Thirteenth Defendant)

SOLICITORS:

McGrath Dicembre & Co
(Plaintiff)

Jenny Bull & Co
(First to Fourth
and Sixth to Eleventh Defendants)

Ron Kramer Associates
(Fifth Defendant)

Philip Goldman & Co
(Twelfth Defendant)

CATCHWORDS:

Extension of limitation period; Section 151D WCA; Sections 60C & E Limitation Act

ACTS CITED:

Limitation Act 1969 (NSW) (as amended)
Workers Compensation Act (NSW)
Registered Clubs Act 1976

CASES CITED:

Kirby v Leather [1965] 2 QB 367 at 383
Pointon v Walkley (1951) SASR 121
The Council of City of Sydney v Zegarac (NSWCA unreported, 26 February 1998)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1
Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA unreported, 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995)

DECISION:

See para 28

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 8 DECEMBER 1999

20669/97 - PETER GEORGE BRACHER v
CLUB MARCONI & 12 ORS

JUDGMENT (Extension of limitation period - s 151D WCA;

s 60C & E Limitation Act)

1 MASTER: The plaintiff by notice of motion filed 29 June 1999 seeks an order that the time within which to commence proceedings be extended pursuant to s 60C and E of the Limitation Act 1969 (NSW) (as amended) (the Act) as against the second to thirteenth defendants and s 151D of the Workers Compensation Act (NSW) as against the first defendant. The plaintiff relied on his affidavit sworn 28 June 1999. The defendants relied on the affidavit of Richard Mark Pegg sworn 10 August 1999. The thirteenth defendant did not appear.

2   The plaintiff’s counsel submitted that in the pleadings paragraphs 6 to 11 of the statement of claim inclusive do not need an extension of time. The pleadings in paragraphs 6 to 8 refer to a breach of contract. The damages are those which have arisen from the breach or breaches of contract. Paragraph 9 refers to a conspiracy and paragraph 10 to intimidation.

3   If an extension of time is required for paragraphs 6 to 11 of the statement of claim the application for same is stood over to be determined at the trial. The circumstances in which the plaintiff entered into the deed of agreement dated 15 July 1994 may need to be canvassed.

4 The first defendant, Club Marconi was the employer of the plaintiff. It is alleged that at all material times the second to thirteenth defendants were directors, servants and agents of the first defendant. By paragraph 14 of the statement of claim, it is alleged that in about November 1993 the plaintiff received a death threat as a result of him exercising his professional, contractual and lawful obligations pursuant to the Registered Clubs Act 1976. It is also alleged that the plaintiff received numerous verbal threats of dismissal by the defendants. He claims he suffered personal injury and claims damages for loss of opportunity, mental distress and loss of income, career advancement and prospects. He also claims exemplary damages.

5   For the purposes of this application I find the following facts. In arriving at these findings I observed the plaintiff both giving evidence and being cross examined and I formed the opinion that he was a truthful and intelligent witness.

(1) In about November 1990 the plaintiff commenced employment with the first defendant as joint general manager. In February 1991 he took over as general manager.

(2) In November 1993 the plaintiff was attending a building meeting, on behalf of the first defendant, when he suffered chest pains. He went to hospital. He had a few days off work and claimed workers compensation for that period.

(3) In December 1993/January 1994 the plaintiff was subpoenaed and gave evidence to the Liquor Administration Board in relation to activities involving the first defendant.

(4) During the course of the plaintiff’s employment he was subjected to various threats, harassment, intimidation and his directions were countermanded by the first defendant and he was directed not to co-operate with the Liquor Administration Board in their investigation into the affairs of the first defendant. As a result of this the plaintiff feared for his personal safety.

(5) During early 1994 the assistant manager employed by the first defendant, Wayne Forrest was assaulted in the car park of the premises of the first defendant. Shortly after this assault the plaintiff received a telephone call from an unidentified person who said to him during the course of the conversation words to the effect “Take what happened to Forrest as a warning and don’t rock the boat. It could be unhealthy, keep your mouth shut, and give the Liquor people nothing”.

(6) Also during early 1994, a club member by the name of Genovisi Quattrone approached the plaintiff outside the foyer of the first defendant’s premises and said to him words to the effect “We like you Peter, we don’t like anything to happen to you. Be careful what you say to the Liquor Administration Board.” As those words were said Mr Quattrone displayed a pistol which he had tucked into his belt which was covered by a stretchy polo neck shirt. Mr Quattrone allegedly put his left arm under his shirt and on the pistol. The plaintiff reported the threat to detectives at Central Police Station. The plaintiff, at the time of making the complaint, was unwilling to identify the maker of the threats as he knew him to be a close friend of the second defendant and other members of the board.

(7) Because of the threats the plaintiff feared for his family’s safety. He moved his wife to a country town where their son was in boarding school. He took precautions for his own safety.

(8) In May 1994 the plaintiff suffered a nervous breakdown. He has never fully recovered but started to get his self confidence back later in 1994. The plaintiff consulted Dr Freed a psychiatrist on 17 June 1994 and has been consulting him on an average of once per month from that date to the present time. On 20 July 1995 Dr Freed furnished a report. He diagnosed that the plaintiff suffered from a major depression as well as an anxiety disorder with episodes of panic. He opined that these conditions arose directly out of the tensions which the plaintiff experience at the club, as well as the court case which ensued against members of the club board. He said that the plaintiff’s symptoms would persist while court proceedings continued and or his income remained less than it was with the first defendant.

(9) On 15 July 1994 the plaintiff entered into a deed with the first defendant in relation to his resignation. He knew that he had legal rights but he felt that he was not able to deal with them. He was able to give his solicitors instructions concerning the circumstances surrounding the dispute with his employer. Paragraph 6 of the deed states that the plaintiff releases and forever discharges the club from all manner of damages, claims, actions, suits, causes of action, proceedings, demands, costs and expenses both at law or in equity or arising under any statute (excluding the Workers Compensation Act 1987) arising from or are connected in any way with his employment as Chief Executive officer.

(10) In about July 1994 the plaintiff commenced employment at Penrith Leagues Club in the motel. On 15 October 1994 he was promoted to a job as co-ordinator of the catering team.

(11) In 1995 the plaintiff gave evidence to a Senate Inquiry in relation to the transfer of a soccer player Paul Okon from Marconi Club (the first defendant) to Club Brussels in Brugge.

(12) In May 1995 the plaintiff consulted Holman Webb solicitors about an article published about him in the “Marconi News”. He had one consultation with a solicitor which lasted between 10 to 30 minutes in which he requested that an apology be sought. He forwarded transcripts of proceedings before Licensing Magistrate Keating to the solicitor. On 25 May 1995 the plaintiff’s solicitor forwarded a letter to the editor of “Marconi News” and a copy to the plaintiff. The plaintiff agreed with the contents of the letter.

(13) In 1995 the plaintiff gave evidence before the Stewart Inquiry.

(14) Prior to giving evidence at court inquiries or tribunals the plaintiff was involved in interviews and preparing statements of his evidence. A short time prior to being required to give evidence in court proceedings the plaintiff would consult with his psychiatrist who would increase his dose of medication. The plaintiff would become depressed, tense, anxious and mentally drained and lose sleep.

(15) At the end of 1995 the plaintiff obtained employment with the Building Workers Club at Durrock as a secretary manager. This job lasted three months.

(16) From February 1996 to October 1997 the plaintiff was employed as secretary manager of the Tattersalls Club. The job was a responsible, demanding one and he performed well for the first nine months.

(17) In late 1996/1997 the plaintiff realised he would never be capable of having a career as a manager.

(18) In 1997 the plaintiff gave evidence before the Liquor Administration Board in relation to activities involving the first defendant.

(19) From 26 January 1998 the plaintiff was employed at Ramsgate RSL as a secretary manager. He is currently employed. He has been employed in lesser positions in smaller clubs since he left the Marconi Club.

(20) The plaintiff gave evidence that he was incapable of taking these legal proceedings until the end of 1996. He did not seek legal advice until the end of 1996 because of the effects it had on his health. Every time that he is required to discuss this matter he becomes fearful and suffers from anxiety attacks.

(21) On 9 July 1997 the statement of claim was filed.

(22) On 29 June 1999 the notice of motion was filed seeking an extension of the limitation period.

The Law

6 I turn now to the Limitation Act. Section 52 says:

“Disability, confirmation, fraud and mistake
Disability
52(1) Subject to subsections (2) and (3) and subject to section 53, where:
(a) a person has a cause of action;
(b) the limitation period fixed by this Act for the cause of action has commenced to run; and
(c) the person is under a disability,
in that case:
(d) The running of the limitation period is suspended for the duration of the disability; and
(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:
(i) the date on which he last (before the expiration of the limitation period) ceased to be under a disability; or
(ii) the date of his death,
(whichever date is the earlier, the limitation period is extended so as to expire three years after the earlier of those dates.
(2) This section applies whenever a person is under a disability, whether or not he is under the same or another disability at any time during the limitation period.
…”

7   “Disability” is defined in s 11(3)(b). It says:

“(3) For the purposes of this Act a person is under a disability:
(a) …
(b) while he is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(i) any disease or any impairment of his physical or mental condition;
…”

8   According to Kirby P in State Rail Authority v Hammond (1988) 15 NSWLR 395, s 52 evolved from the 1926 Limitation Act which allowed those of non compos mentis (of unsound mind) to bring actions when they are of sane memory.

9   Lord Denning when dealing with the words “unsound mind” in Kirby v Leather [1965] 2 QB 367 at 383 said:

“So here it seems to me in this statute a person is ‘of unsound mind’ when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.”

10   In Pointon v Walkley (1951) SASR 121 Mayo J said that it may be accepted that ‘Unsound’ is the antithesis of ‘sound’. ‘Sound’, when used in connection with body or mind, denotes the presence of perfect health or, putting it in another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.

11   The plaintiff’s submission is that between May 1994 and up until late 1996 early 1997 he was under a disability and for that period the running of time should be suspended. The plaintiff gave evidence that he was not able to deal with his claim until late 1996/97 because of the effects it had on his health. Every time that he is required to discuss this matter he becomes fearful and suffers from anxiety attacks. However, the plaintiff was able to instruct solicitors in 1995 in relation to “Marconi News” and has, to his credit been in almost continual employment since August 1994. In 1994/95 the plaintiff was able to give evidence about some of the events which are relevant to this cause of action. There is no medical evidence to support the plaintiff’s account that he was incapable of taking these proceedings or substantially impeded in the management of his affairs in relation to the cause of action. It may be that he was capable of consulting a solicitor and taking proceedings but he put it off because he anticipated that it would be unpleasant and would cause an anxiety attack. The plaintiff bears the onus of establishing that he falls within s 18(3) and he has failed to discharge that onus. I am not satisfied that the plaintiff by reason of his psychiatric state was incapable or substantially impeded in the management of his affairs in relation to this cause of action. The claim under s 52 fails.

Sections 60C and E

12   The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the second to thirteenth defendants. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:

“Ordinary action (including surviving action)
60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."

13   Section 60E provides:

“Matters to be considered by the court
60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff’s injury or loss.”

14   In relation to ss 60C and 60E of the Act Mason P in The Council of City of Sydney v Zegarac (NSWCA unreported, 26 February 1998) referred to propositions which were uncontroversial. They are:

(1) Section 60C confers a judicial discretion.

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is “just and reasonable” to make the order for extension.

(3) In exercising the discretion, the court is required “to have regard to all the circumstances of the case” (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) “to the extent that they are relevant to the circumstances of the case”.

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General’s second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. Mason P then says that beyond this there are more debatable areas of application of Taylor .

15   Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA’s further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant.

16   The cause of action accrued on 27 May 1994. The limitation period expired on 27 May 1997. The statement of claim was filed on 9 July 1997 just over two months out of time. The application seeking the extension of time was filed on 29 June 1999 about two years later. However, the case has been subject to case management court directions which involved appearances before the court by the parties’ legal representatives since 22 October 1997. The plaintiff’s reason for delay is, that due to his psychiatric condition he was incapable of bringing legal proceedings until the end of 1996. In late 1996 he consulted a solicitor and proceedings were commenced just over six months later. There is no explanation for that six month delay nor the two year delay in filing the application to extend time. However, the defendants have been aware of the proceedings shortly after the limitation period expired.

17   In relation to s 60E(b) none of the defendants demonstrated that they had lost evidence that would have been available had the action been commenced within the limitation period. I will refer to delay generally later in this judgment.

18   Shortly after 24 May 1994 the plaintiff was aware that he had suffered an injury and the connection between the injury and the defendants’ acts (s 60E(c) and (e)). It was in 1996 that the plaintiff became aware that he would no longer have a career as a capable manager. In other words, he realised that he would never be able to reattain the position of a manager of a large club such as that of the first defendant (s 60E(d)).

19   As previously stated, for the purposes of this application, I have accepted the plaintiff’s evidence but it is acknowledged that it will be disputed at trial. In January 1994 (before the limitation period expired) the plaintiff’s evidence is that he was threatened by anonymous threats, his assistant manager was assaulted on the first defendant’s premises and the plaintiff received a telephone call saying “Take what happened to Forrest as a warning and don’t rock the boat. It could be unhealthy, keep your mouth shut and give the Liquor Board nothing”. Another threat was made when a club member produced a gun and told the plaintiff to be careful what he said to the Liquor Administration Board. The plaintiff moved his wife to the country and took precautions for his personal safety. Despite the threats, the plaintiff fulfilled his duty and gave evidence at the Liquor Administration Board inquiry and other courts and tribunals. It was only in 1996 that he began to feel less fearful of the threats to his life. The first defendant’s counsel submitted that this behaviour cannot be linked because the threat was anonymous. However, the assault on Mr Forrest occurred on the first defendant’s premises and the threats were linked to an investigation into the first defendant. If the behaviour referred to earlier is linked to the first defendant and its directors it is very serious indeed. Those actions brought about a delay in the plaintiff taking proceedings until 1996 (s 60E(f)).

20   The plaintiff has obtained a psychiatrist’s report in 1995 and this gives very detailed information on the plaintiff’s psychiatric state from 17 June 1994 to 2 June 1995. The plaintiff has been seeing Dr Freed on an average of once per month since 17 June 1994. A further report covering the period from 2 June 1995 to date or the doctors records can be subpoenaed (s 60E(g)). It seems the plaintiff will require regular psychiatric consultations and medication in the future. The plaintiff’s left hand continues to shake. Although the plaintiff is working and has been in continual employment since August 1994, his career prospects have diminished (s 60E(d), (g), and (h)).

21   I turn to consider whether the plaintiff has a real case to advance. The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA unreported, 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995).

22   The second to twelfth defendants submitted that there is no cause of action against them. According to the second to twelfth defendants the first defendant as employer is vicariously liable for the personal injuries suffered by the plaintiff. If it is established at trial that the second to thirteenth defendants were acting outside their duties as directors, they may still be said to have owed a duty of care to the plaintiff and breached that duty by causing the plaintiff’s injuries. There is medical evidence to support the plaintiff’s claim that he has suffered major depression and an anxiety disorder. There is evidence to support the plaintiff’s proposition that his career prospects have been diminished as a result of his psychiatric condition which was caused by the actions of the defendants. It is my view that the plaintiff has a real case to advance.

23   I turn to consider delay generally. I accept that with the passing of time, there will be presumptive prejudice. A club member may be subpoenaed to give evidence of conversations that allegedly took place five years ago. I accept that he may have difficulty recalling the actual words that were used. But as a gun was allegedly produced during this conversation, that may help jog his memory. As previously stated, the defendants did not produce any evidence of actual prejudice. The plaintiff’s general practitioner’s records from 1991 to 1996 are available. There is a report from the plaintiff’s treating psychiatrist from 1994 to 1995 and the plaintiff has continued to see the psychiatrist each month. There will be evidence as to the plaintiff’s psychiatric state from when the cause of action arose to date. The first defendant’s insurer has been making workers compensation payments for medical expenses and has had the plaintiff seen by a psychiatrist three times.

24   It is my view that the defendants have not suffered significant prejudice nor are their chances of a fair trial unlikely. I have taken the matters referred to in s 60E(a)-(h) into account. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under s 60C and E against the second to thirteenth defendants.

25 In relation to the first defendant, the plaintiff seeks an extension of the limitation period pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) (as amended).

26 Section 151D provides:

“(1) …
(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received except with the leave of the court in which the proceedings are to be taken.
(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.
(4) …”

27 The deed of agreement signed by the plaintiff and first defendant and dated 15 July 1994 allows the plaintiff to take workers compensation proceedings. Any damages awarded against the first defendant will be assessed pursuant to the Workers Compensation Act. The considerations that are taken into account under s 151D(2) are the same as those I have referred to when I determined the plaintiff’s application under s 60C and E of the Act except that I discount the consideration referred to in s 60E(b). I also refer to what I have stated previously in relation to delay generally and the plaintiff having a real case to advance. The first defendant was the plaintiff’s employer and the personal injuries are alleged to have arisen in the course of his employment. I am of the view that it is just and reasonable to extend time and that leave should be granted to commence proceedings against the first defendant. The statement of claim is already on foot. The defendants did not make a submission that the plaintiff should upon leave being granted, file a further statement of claim. The requirement that a further statement of claim be filed is dispensed with. Costs are discretionary. Costs should be costs in the cause.
28   The orders I make are:

(1) Leave is granted to extend the limitation period in respect of the causes of action as pleaded in paragraphs 1 to 5 inclusive and paragraphs 12 to 20 inclusive of the statement of claim against the second to thirteenth defendants up to and including 22 December 1999.

(2) Leave is granted to commence proceedings against the first defendant in relation to paragraphs 1 to 5 and paragraphs 12 to 20 inclusive of the statement of claim up to and including 22 December 1999.

(3) The notice of motion to extend the limitation period in relation to paragraphs 6 to 11 inclusive is stood over until the trial.

(4) The requirement to file a further statement of claim is dispensed with.

(5) Costs be costs in the cause.
**********

Last Modified: 12/09/1999