Browning v Bitupave Ltd

[2007] NSWSC 786

CITATION:	Browning v Bitupave Ltd [2007] NSWSC 786
HEARING DATE(S):	6 July 2007
JUDGMENT DATE :	6 July 2007
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	6 July 2007
DECISION:	1. Grant leave to the plaintiff to join the cross-defendant, the Cessnock City Council, as a second defendant in these proceedings. 2. Pursuant to section 60E of the Limitation Act, time is extended until 4pm on 13 July 2007 for the plaintiff to commence proceedings against the Cessnock City Council. I grant leave to the plaintiff to commence the proceedings by the filing of an amended statement of claim in the form of annexure M with the addition of the particulars identifying the relevant road resurfacing standards which are claimed not have been complied with. The amended statement of claim is to be filed in the court's registry by 4pm on 13 July 2007. 3. Costs of the motion are to be costs in the cause.
CATCHWORDS:	Application for extension of time - s 60C of the Limitation Act 1969 - explanation of delay - evidence of cause of action - prejudice - just and reasonable to extend limitation period.
LEGISLATION CITED:	Limitation Act 1969 s 18A, s 60C, s 60C(2), s60E(1)
CASES CITED:	State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
PARTIES:	Annette Trudie Browning Bitupave Limited
FILE NUMBER(S):	SC 20137/05
COUNSEL:	Mr Doherty SC - Plaintiff Mr Sheldon - Defendant Mr Walsh - Cross-defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

6 July 2007

20137/05 Annette Trudie Browning v
Bitupave Limited


JUDGMENT

1 HIS HONOUR: The plaintiff moves the court for orders that:

1. Leave be granted to the plaintiff to join the cross-defendant Cessnock

City Council as a second defendant in these proceedings.
2. That the time for joining the Cessnock City Council as a defendant be
extended to 13 July 2007.
3. Leave be granted to file and serve an amended statement of claim as
per annexure M.

2 The plaintiff seeks costs and such further orders as the court sees fit.

3 On 12 May 2002 the plaintiff was driving her Ford Festiva in an easterly direction along Lovedale Road Keinbar and it appears entered a part of the road where roadworks had been carried out. The road had been resurfaced the previous day. It is the plaintiff's case that, due to excessive loose gravel which had been left on the road, she lost control of her vehicle and collided head-on with a semi-trailer. She suffered extensive injuries as a consequence which included a fractured neck at C2 and traumatic brain damage.

4 As the proposed course of action against the Cessnock City Council ("the Council") is founded on negligence, the limitation period for bringing the action is three years from the date on which the cause of action first accrued to the plaintiff; section 18A of the Limitation Act 1969 ("the Act"), hence the limitation period expired on 10 May 2005. Section 60C(2) of the Act permits the court, if it decides that it is just and reasonable to do so, to order that the limitation period for the cause of action be extended for such period not exceeding five years as it determines.

5 In exercising the powers conferred on it by section 60C of the Act, the court is to have regard to all the circumstances of the case and, without affecting the generality of matters to be regarded, the court is, to the extent that they are relevant to the circumstances of the case, to have regard to matters referred to in subsections (a) to (h) inclusive of section 60E(1) of the Act.

6 In the present case the plaintiff's solicitors wrote to the Council on 23 June 2004 and were advised by letter dated 21 July 2004 that the contract for the sprayed bituminous road surfacing within the Cessnock City Council's local government area for the financial year ending June 30 2002 was successfully tendered by Bitupave Limited, trading as Boral Asphalt. The letter went on to state that:

“The accident site referred to in the police report was a Boral Asphalt controlled work site.”

A copy of the tender document was enclosed.

7 The plaintiff on 5 May 2005 commenced proceedings against Bitupave Limited ("Bitupave"). On 1 February 2006 Bitupave filed a defence admitting, inter alia, that Bitupave carried out resurfacing work on Lovedale Road on the day before the plaintiff's accident. On 1 February 2006 Bitupave issued a cross-claim against the Council claiming contribution or indemnity (“the first cross-claim”), which was followed on 18 May 2006 by a cross-claim by the Council against Bitupave (“the second cross-claim”).

8 The solicitors for the plaintiff sought information from Bitupave's solicitors as to the evidence which Bitupave had justifying its claim against the Council and received in reply certain correspondence which included a letter dated 6 June 2006. The letter, in short, contained information that upon the completion of the works, Bitupave contact Phil Lord of the Council, who came on the site at about 1.30pm and had signed the spray sealing guide. Furthermore, Mr Lord and two other Council representatives attended the site in the afternoon before the plaintiff's accident. Mr Lord, according to Bitupave's solicitors' instructions, indicated to Bitupave that he was happy with the seal and condition of the work.

9 The proceedings prior to this time had been subject to various status conferences where it is evident that the joining of Bitupave as a defendant was contemplated. Indeed, the short minutes of order, which were handed up at the status conference on 20 April 2006, record as order number 2:

“That the plaintiff was to indicate to the parties if she wished to join the council as a defendant by 31 May 2006."

10 The plaintiff's delay in not commencing proceedings against the Council prior to the expiration of the limitation period may be readily understood as her solicitors had received the response provided by the Council in the letter dated July 21 2004. The reluctance to commence proceedings until the evidence upon which Bitupave's cross-claim was revealed is also understandable. However, that information was provided some thirteen months ago.

11 It appears that it was not understood until after a meeting attended by Senior Counsel for the plaintiff on 24 May 2007 with the legal representatives of Bitupave that Bitupave's cross-claim was founded, inter alia, upon the assertion that the Council at all times had maintained a significant degree of control over the relevant roadworks and the quality of the road surface had been approved by council employees on the afternoon prior to the accident. To my mind, Bitupave's position should have become apparent from the information supplied in the letter dated 6 June 2006.

12 A satisfactory explanation has been provided for the plaintiff's delay in seeking to join the Council up until that time. I am not persuaded, however, that an explanation for the delay during the last thirteen months has been satisfactorily forthcoming. In any event, the time limit expired, as I have said, on 10 May 2005 and the plaintiff, through no fault on her part, was not apprised of material enabling her to properly commence proceedings against the Council until June 2006. The subsequent delay is to be considered in these circumstances.

13 The onus is on the plaintiff to demonstrate that there is evidence available to establish the proposed cause of action in negligence against the Council. The available evidence arises from the material provided by Bitupave. It seems to me that there is an important triable issue of fact which is the measure of control retained by the Council over the roadworks.

14 The Council contends that it would be prejudiced if the application is granted. The lack of opportunity to have the plaintiff medically assessed and the inability to investigate the precise circumstances of the accident are referred to. It seems that the Council, as cross-defendant, has been conducting its case on the basis that its position is as a cross-defendant under a contract.

15 Whilst there is some prejudice arising from the plaintiff's delay, it is not substantial and may be readily cured. The proceedings are set down for hearing on 20 August 2007. There is, in my opinion, sufficient time for the Council to arrange medical examinations and to carry out further enquiries. If there is not, an application may be made to vacate the hearing.

16 The court is mindful of what was said by the High Court in State of Queensland and Anor v J L Holdings Pty Ltd, (1997) 189 CLR 146 per Dawson, Gaudron and McHugh JJ:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

17 The plaintiff, it appears, suffered serious injury and loss in the accident. There is an important triable issue of fact so far as the Council is concerned. The prejudice arising from the plaintiff's delay is not substantial.

18 I am satisfied, having regard to all the circumstances of the case, that it is just and reasonable to order that the limitation period be extended to enable the Council to be joined as a defendant.

19 Bitupave submits that there are new particulars of negligence provided in the proposed amended statement of claim which cause prejudice either due to lack of precision or by giving rise to matters which will require further investigation. I understand that the issue of the road surface has been the subject of expert reports which have been exchanged. I am not persuaded that any fresh issues have arisen from the proposed particulars. There is in any event sufficient time before the hearing for the experts to be further consulted.

20 Bitupave's complaints concerning the lack of precision in the particulars pleaded are made out solely in respect of particular (n). The plaintiff is required to identify in the particulars of negligence in the proposed amended statement of claim the relevant road resurfacing standards which are claimed not to have been complied with.

1. I grant leave to the plaintiff to join the cross-defendant, the Cessnock City Council, as a second defendant in these proceedings.
2. Pursuant to section 60E of the Limitation Act, time is extended until 4pm on 13 July 2007 for the plaintiff to commence proceedings against the Cessnock City Council.
I grant leave to the plaintiff to commence the proceedings by the filing of an amended statement of claim in the form of annexure M with the addition of the particulars identifying the relevant road resurfacing standards which are claimed not to have been complied with.
The amended statement of claim is to be filed in this court's registry by 4pm on 13 July 2007.

3. Costs of the motion are to be costs in the cause.

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