Conray v Scotts Refrigerated Freightways Pty Ltd

[2008] NSWCA 60

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40215 of 2006

HEARING DATE(S):
6 June 2007

JUDGMENT DATE:
11 April 2008

PARTIES:
Vladimir Conray - Appellant
Scotts Refrigerated Freightways Pty Ltd - Respondent

JUDGMENT OF:
Beazley JA McColl JA Simpson J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1407 of 2004

LOWER COURT JUDICIAL OFFICER:
Naughton DCJ

LOWER COURT DATE OF DECISION:
22 March 2006

COUNSEL:
Ms S Norton SC with Ms E Welsh - Appellant
Mr K Rewell SC with Mr L Tyndall - Respondent

SOLICITORS:
Brydens Law Office LP - Appellant
Dennis & Company - Respondent

CATCHWORDS:
LIMITATION OF ACTIONS — extension of time to join defendant — application made on fourth day of trial — whether just and reasonable — exercise of discretion by court — principles — STATUTES — s 60C, 60E Limitation Act 1969 considered.

LEGISLATION CITED:
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Legal Profession Act 1987
Limitation Act 1969
Limitation (Amendment) Act 1990
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Limitation of Actions Act 1974 (Qld)

CATEGORY:
Principal judgment

CASES CITED:
Australian Croatian Cultural & Educational Assoc ‘Braca Radici’ Blacktown Ltd v Benkovic [1999] NSWCA 210
Blackburn v Allianz Australia Insurance Ltd [2004] NSWCA 385; (2004) 61 NSWLR 632
Bluescope Steel Ltd v De Caires; ABB EPT Management Ltd v De Caires [2005] NSWCA 431
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
House v R [1936] HCA 40; (1936) 55 CLR 499
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153; (2005) 63 NSWLR 300
McDonald v Commonwealth (1945) 46 SR (NSW) 129
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
Rutter v The State of New South Wales [2005] NSWCA 231
Salido v Nominal Defendant (1993) 32 NSWLR 524
Shering-Plough Pty Ltd v Page [2002] NSWCA 4
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735
State of New South Wales v Judd [2003] NSWCA 355
Sydney City Council v Zegarac (1998) 43 NSWLR 195
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1

TEXTS CITED:

DECISION:
1. Grant leave to appeal. 2. Notice of appeal to be filed within seven days. 3. Appeal allowed. 4. Order of Naughton DCJ set aside. 5. Limitation period extended to expire on 5 May 2008. 6. Respondent to pay the appellant’s costs of the appeal and of the application for leave to appeal. 7. Costs of the application for an extension of time before Naughton DCJ to be costs in the cause.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40215/06
DC 1407/04

BEAZLEY JA

McCOLL JA

SIMPSON J

Friday 11 April 2008

Vladimir Conray v Scotts Refrigerated Freightways Pty Ltd

Judgment

1. BEAZLEY JA:     I agree with Simpson J. 

2. McCOLL JA:  This is an application for leave to appeal heard concurrently so that if leave is granted, the appeal will also be considered.  In my view, for the reasons which will become apparent from what follows, I am of the view that leave to appeal should be granted.

   Statement of the case

3. The appellant was employed by a company called Stoneglide Pty Ltd (“Stoneglide”).  He was injured on 9 April 2001 while cleaning a trailer owned by Scotts Refrigerated Freightways Pty Limited, the respondent.  He climbed onto the trailer to wash it, but slipped because, he alleged, the rubber buffer attached to the trailer was split.  The trailer was attached to a prime mover owned by PRD Transport Pty Ltd (previously Rogers & Prendergast) (“PRD”).

1. The appellant could not sue his employer.  The nature of his injury was such that he could not satisfy the thresholds in the Workers Compensation Act 1987. He looked to sue the owner of the prime mover, intending to take advantage, it appears, of an argument that by virtue of s 3 (definition of “use” or “operation” of a motor vehicle) of the Motor Accidents Compensation Act 1999 (the “MAA”), responsibility for the trailer (and hence the appellant’s injury) rested in that owner.

2. There was clearly confusion in the minds of those acting for the appellant as to who that owner was.  Proceedings were first commenced on 7 April 2004 against a company called Spartrans Pty Ltd, but were discontinued on 22 October 2005 when it was discovered that company did not own the prime mover or trailer. 

3. The time for the appellant to bring proceedings in respect of his injury expired three years after the date on which his cause of action first occurred, on 10 April 2004: s 18A Limitation Act 1969 (the “Act”).

4. On 26 May 2004 the pleadings were amended to join PRD as the second defendant. It was alleged that PRD was responsible for the trailer and that the trailer contained a “defect”, within the meaning of s 3 of the MAA, which caused the appellant’s injury. PRD denied negligence. Despite the expiration of the limitation period the appellant did not seek an extension of time to join PRD nor did the latter plead the expiration of the limitation period by way of defence. On 9 June 2005 PRD filed a cross-claim against Scotts Refrigerated Freightways Pty Ltd, the respondent, asserting that the respondent was the owner of the trailer and, if the appellant had been injured, the respondent was liable in negligence, including in failing to provide a safe system of work for the appellant. The respondent filed a defence to the cross-claim denying it was responsible for the trailer, denying the trailer had a defect and denying it had been negligent.

5. The matter was set down for hearing on two dates in 2005 but the hearings were vacated. The proceedings finally came on for hearing before Naughton DCJ on 1 February 2006. On the fourth day, 6 February 2006, after the appellant and PRD had called their evidence, and when the respondent was in its case, the appellant applied pursuant to s 60C of the Act to extend the time to file a Further Amended Statement of Claim to join the respondent as the third defendant. The primary judge refused the application on 7 March 2006. On 22 March 2006 his Honour found in favour of PRD and dismissed the proceedings and the cross-claim.

6. The appellant seeks leave to appeal from the decision refusing to extend time to join the respondent.

1. The appellant also appealed against the decision in favour of PRD.  That appeal was resolved by the filing of short minutes of order which provided for that appeal to be allowed and for the matter to be remitted to the District Court for a new trial.  They did not deal with the position of PRD vis-à-vis the respondent.

1. The fact there is to be a new trial is not germane to the application for leave to appeal.  That application requires the appellant to demonstrate the primary judge erred in a House v R [1936] HCA 40; (1936) 55 CLR 499 sense in refusing to extend time to join a new defendant on the fourth day of the hearing.

   The trial

2. When the appellant was called Mr A J Lidden of Senior Counsel, who appeared for the appellant at trial, took him to his pre-accident employment history then put to him: (T21, 1/2/06):

   “And was that the pattern till you started working at the

   Scotts Transport Depot on 5 January 2000?

   A. Yes.”

   This provoked a query by the primary judge and an explanation from Mr Lidden that this was a reference to the cross-defendant and:

   “… I think it’s the case … that there may be a number of companies in which Mr Scotts involved which operate out of that address … Scotts Transport … their depot is where he was working.  He was not employed by them and as to the registered proprietor of the depot, I’m not sure.”

3. Subsequently Mr Lidden established through the appellant that a business called “Scotts Refrigerated Transport or a business of similar name” operated from the premises at which he was injured (T 24, 1/2/06).  It appeared that among the vehicles the appellant was required to clean out were trailers bearing “Scotts” insignia.   (T 25, 1/2/06).

4. The appellant said that before he went off work after the accident he made a report of the incident.  (T 7, 2/2/06). He gave extensive evidence about the fact that when he returned to work there had been changes in the way people were getting into the backs of the trucks (ibid ff).  He was shown photographs, apparently of a platform which was, on his account, available after his return to work to enter the trailer.  The respondent had provided those photographs to his counsel.  He was then examined about a proposition of which Mr Lidden was apparently aware, that it would be suggested to him by, presumably, either PRD or the respondent that a similar device had been available for his use prior to the accident, a proposition he denied.  (T9, 2/2/06)

5. In cross-examination by Mr A Stone, PRD’s counsel, the appellant agreed that although he had been receiving his pay cheques from Stoneglide, he “in effect saw [himself] as being part of the Scotts Refrigerated Transport organisation”. (T26, 2/2/06).  He agreed that there was a workshop on “Scotts premises”, that “they” serviced their own trailers, which included replacing the buffers from time to time.  He said he took instruction from David Morris.  He did not know whether or not Mr Morris was employed by Stoneglide.  As far as he was aware, no one from Stoneglide was supervising his work. (T 25-26, 2/2/06)  He reported damage to trailers to Mr Morris. (T 47, 2/2/06)  He agreed that the manner in which he did his work was controlled by “Scotts at Prestons”, Prestons being the suburb where the respondent’s premises were located. (T 49,2/2/06, T 24,1/2/06)

6. The appellant said he had complained to management four times about the absence of a mechanism to assist getting in and out of the back of trailers.  He had complained to a Mr Les Derwent, the occupational health and safety person, to Mr David Morris and to Mr John Hutchison (as recorded in the transcript, but most probably Mr Hutcheon as discussed below), who he thought was a State or Australian manager.  He did not know whether Mr Hutchison/Hutcheon was employed by Scotts or Stoneglide.  He said he had thought he, himself, was employed by Scotts Refrigerated Transport until he found out it was Stoneglide. (T 50-51, 2/2/06)

7. The appellant identified a sub-contractor, Mick, as a person who would arrive from time to time at the yard with a prime mover with its trailer attached, the prime mover being owned by the contractor and the trailer by Scotts.  He agreed that “Mick” “pulled the Scotts trailer for Scotts”. (T 52, 2/2/06)  He agreed that the trailer would be one with “some Scotts delivery”, was maintained by Scotts and, as far as he understood, was owned by Scotts. (T53, 2/2/06)

8. In cross-examination by Mr Tyndall, who appeared for the respondent at trial, the appellant agreed that he had started “at Scotts” in January 2000, on which day he met a Mr Hutcheon.  He had “applied to Scotts prior to that”.  He was interviewed for his position by Mr Hutcheon.  After the interview (at which he was presumably given the position) Mr Hutcheon arranged for him to be taken “down to the yard” where he was given equipment for his job, shown around the yard and shown the hoses he had to use.  (T 59-61, 2/2/06)  He denied that he had been shown a stand to use to get into the back of trucks. (T 61, 2/2/06)  On the day he was employed he received a driver’s handbook from the respondent which he read and which set out the policies and procedures. (T62-63, 2/2/06)  He was cross-examined by Mr Tyndall extensively about, in substance, the fact that the method he used to enter and exit trailers at Scotts premises was one he had used for a number of years before being employed there, the general proposition being that when he started at Scotts he did not see any reason to change his previous practice.  (T 64,2/2/06)  He accepted that a stand was available for use prior to his accident “if we could move it”, but agreed he could “move it with assistance”.  (T 65, 2/2/06)  He agreed that it was annoying for him to use the stand to wash the backs of trailers. (T 66, 2/2/06)

9. It was put to him that he had been told by at least two people, Mr Morris and Mr Firestone, not to climb into the back of the trailer without a stand.  (T 79, 2/2/06)

10. Mr Tyndall also cross-examined the appellant extensively about the actual accident, the gist of the cross-examination being that the buffer onto which he put his foot to enter the trailer was “covered with meat and fats and oil” a proposition with which he agreed. (T 76, 2/2/06)

11. The appellant called Mr Petrache who had worked with him at the respondent’s premises as a truck washer.  He gave evidence about the way access was gained to the rear of the trailers to wash them out.  He agreed he was employed by Stoneglide.  (T33 2/2/06)  He said he suggested either to Mr Morris, or “another supervisor” Mr Freestone, that something was needed to climb into the trailers “properly”. (T 35 2/2/06)  He was cross-examined by Mr Tyndall about equipment which was available to access the back of trailers, and when it became available. (T39, 2/2/06).  He said he saw “Scotts people” conducting trailer and refrigeration plant maintenance checks and that he saw “them changing the rubber buffers”. (T 43, 2/2/06)

12. PRD’s only witness was Mr Michael Watt who it employed to drive prime movers hauling trailers owned by the respondent.  His evidence, so far as it is apparently relevant, was that he took the trailers to be cleaned by staff in the wash bay at the respondent’s premises. (T 1, 3/2/06)  He said if something went wrong with a trailer “you would ring Scotts and they’d organise to fix it”.  He had no recollection of the day the appellant said he was injured, and was unaware that the appellant sustained an injury that day.  (T 3, 3/2/06)  He was aware the respondent had an agreement with PRD to move the trailers around the country. (T 6, 3/2/06) 

1. When the respondent’s case opened, Mr Tyndall called Mr Hutcheon who identified himself as having been the Australian Fleet Manager for Scotts Refrigerated Freightways in 2000.  Mr Tyndall sought to ask him questions about the procedure for employing people at “the yard”.  When the primary judge inquired as to the relevance of this evidence having regard to the fact that the appellant was employed by Stoneglide, Mr Tyndall responded that the questioning went to the allegation that the respondent had failed to provide a safe system of work.  (T 27, 3/2/06)

2. Mr Hutcheon said that Stoneglide existed to employ people who worked in the respondent’s yards.  (T 28, 3/2/06)  He acknowledged that the appellant worked for Stoneglide but said that when he was employed he was directed in his employment by the respondent’s employees.  (T 29, 3/2/06)  However that evidence was substantially weakened in cross-examination by Mr Stone, when Mr Hutcheon said that as far as he was aware Stoneglide was a wholly owned subsidiary of Scotts. (T 35, 3/2/06)  He described Stoneglide as a “one of the Scotts companies that employ people in a division”.  (T 34, 3/2/06).  He said, “mechanics and yard people were under Stoneglide, drivers, store people under another company, cold store people were under another company…. [and management was] under another company”.  (T36 3/6/06)  While he said, “Scotts Refrigerated Freightways is the name of the company we work for”, he did not believe it had any employees.  He accepted it was “the parent company to the organisation”.  (T 36 3/2/06). 

3. Mr Hutcheon gave evidence about the process of servicing trucks and trailers at “Scotts” in April 2001.  He produced the maintenance checklist which was the computer record of the work done on the vehicle involved in the appellant’s accident.  (T 31-32, 3/2/06)  He gave evidence about the frequency with which rubber buffers were looked at or serviced which he identified as being during “both A and B service”, and said that rubber buffers were also replaced if they were reported as damaged, falling off or “just unserviceable” between services.  (T 32, 3/2/06)

4. He said that the appellant had never complained to him about the lack of a stand to get into the back of a trailer and, further, said that there was a stand available for that purpose prior to the accident.  (T 33 3/2/06)

5. In cross-examination by Mr Lidden, Mr Hutcheon agreed he had never been employed by the respondent, but said he “work[ed] for Scotts” but he had never been paid by it.  (T37, 3/2/06).  He agreed that he had filled out an employer’s report of injury form in relation to the appellant’s accident. (T 40, 3/2/06) He was shown the form. (T 41, 3/2/06)  He had recorded on it that the appellant’s accident occurred:

   “Climbing into semi-trailer pan space tech.  Slipped when bumpered dockway rubber gave way.”  (T 43, 3/2/06)

6. The employer’s report of injury form, dated 10 April 2001, became exhibit R.  (T 46, 3/2/06)  It was not included in the White Books prepared for the leave application.  However it appears from Mr Lidden’s cross-examination of Mr Hutcheon that the form was in Stoneglide’s name.  Mr Hutcheon appears to have signed it in the capacity of Stoneglide’s “Fleet Manager”, although he acknowledged he did not hold that position.  (T41, 3/2/06)

1. Mr Hutcheon explained that after the appellant’s accident he had asked the supervisor to ensure the men used the stands available to get in and out of the van.  (T 44, 3/2/06) 

1. It was in the course of Mr Hutcheon’s cross-examination on 3 February 2003 that Mr Lidden advised Mr Tyndall he proposed making an application to join the respondent as a defendant. (T48, 3/2/06)  That application as I have said was not formally made until the following Monday.

2. The respondent next called Mr Freestone, the workshop foreman at Scotts’ yard when the appellant started working there.  He regarded himself as being “employed by Scotts” although he could not remember who signed his pay cheques.  (T 70, 3/6/06).  He gave evidence that he saw the appellant getting into the back of trucks sometimes “[going] about it in his own way and sometimes [using] the stand”. (T 63, 3/2/06)  He identified a drawing of a stand as that which was available before the accident to access the back of the fridge vans for the “wash boys”.  (T 64, 3/2/06)  He said that when he saw the appellant accessing the back of the trailers without using the stand he would tell him to use it.  He said he had done that on numerous occasions.  (T 65, 3/2/06) .

3. Mr Tyndall then called Mr David McHugh, who had been the person undertaking maintenance at Scotts premises at the time the appellant was injured.  He gave evidence about the availability of a set of steps to enable washers to get into the trailer.  (T 80, 3/2/06) He said he had made a new set of steps after the appellant’s accident and had destroyed the old set.  (T 81, 3/2/06)

4. When Court resumed on Monday 6 February, Mr Lidden indicated he had an application but the primary judge said he would finish the evidence of the part-heard witness before he dealt with it.

5. Mr McHugh was then recalled.  He gave evidence about the replacement of rubber buffers as they deteriorated.  He was not aware of the position in relation to the rubber buffer on the vehicle on which the appellant was injured.  (T 2, 6/2/06)

   35           Mr Morris was then called.  He agreed he had worked at “Scotts” from February 2000. (T 1, 4/3/06)  He was issued a pay advice from Stoneglide, after his pay went into his bank account.  He regarded himself as “technically employed” by “Scotts Refrigerated”.
   

   Evidence on the extension application

1. Mr Hagipantelis swore an affidavit in support of the extension application which stated:

   “1.          I am the solicitor for the Plaintiff.

   2.When my firm was originally instructed by the Plaintiff we were instructed by him to assume conduct of his matter and obtain his file from other solicitors.

   3.An employed solicitor of mine took the Plaintiff’s original instructions in about January 2002.  She was told by the Plaintiff that he was employed by ‘Scott’s Refrigerated.’ There is a draft statement to this effect.

   4.Eventually I ascertained that the Plaintiff was employed by Stoneglide Pty Limited a company of which Bruce Scott is involved.

   5.The Plaintiff could never bring a claim at common law against his employer because he was under the relevant threshold.

   6.The Second Defendant’s solicitors wrote to me telling me that the cross-defendant was the owner of the trailer.  I knew that the Second Defendant was not the owner of the trailer.  I had decided to sue the owner of the prime mover pursuant to the Motor Accidents Compensation Act 1999.

   7.In the cross claim herein I note that the cross appellant alleged that the cross defendant had control of the system of work performed by the Plaintiff.  This was denied by the cross defendant.

   8.During the conduct of the litigation I have become aware of numerous companies related to Scotts which may have operated from the subject premises. Since commencement of the hearing I have been made aware of evidence from the cross defendant of many more.

   9.Until the Second Defendant and the Cross Defendant went into evidence I did not have any evidence available to me sufficient to sign a solicitor’s certificate as to the prospects of success of a claim as against the Cross Defendant.

   10.I assumed that the system of work imposed on the Plaintiff was directed, arranged and conducted by his employer and not some other entity.”  (emphasis added)

2. Mr Hutcheon swore an affidavit in the respondent’s case in opposition to the extension application.  In essence he said that he had undertaken a search for documents relating to the purchase of the material for the manufacture of the stand located in the wash-bay in the respondent’s premises prior to the date of the appellant’s accident.  As I understand his evidence, he said that such documents were not available because of the respondent’s practice to keep records for taxation purposes for seven years after which they were destroyed.  The stand had apparently been in existence since approximately 1994, and, I therefore infer, such documents as had been available were destroyed in or about 2001.  He also said that no documents relating to any complaint by the plaintiff concerning carrying out his duties as a washer while working at the respondent’s premises had been located.

3. Next Mr Hutcheon said that on the day of the accident there were three people working in the wash-bay: the appellant, Mr Petrache and a Mr Matthew Woolley. The latter had been employed from October 2000 until February 2004 in the yard, apparently by the respondent.  He had made inquiries of persons who knew Mr Woolley.  Those inquiries revealed Mr Woolley had said he was moving to Queensland.  Mr Hutcheon said there was no other information available to the respondent to enable it to locate Mr Woolley to bring him to Court to give evidence.

4. Mr O’Sullivan was the respondent’s Human Relations Manager from about October 2000 through to November 2002.  It was part of his responsibility to record complaints from its employees concerning safety issues.  He attended the accident scene immediately upon being notified that the appellant had injured himself.  He made an entry in his diary relating to the incident, which he said he took with him when he left the respondent’s employ.  He said he had been unable to locate the diaries and said that without those diaries he had no specific recollection of any of the incidents that took place between October 2000 and 9 April 2001 in relation to any complaints the appellant may have made.

5. Mr Gorman deposed that he was working as the Human Relations Officer for the respondent in 2000 and had been responsible for the appellant’s induction on 6 January 2000.  He produced a copy of the Induction Form for Drivers in relation to the appellant, which indicated that he had been responsible for the appellant’s induction.  He said that despite his best efforts to recall the induction, he had no specific recollection of it. 

6. The induction form was headed “Scotts Refrigerated Freightways Pty Ltd – Induction Form for Drivers”.  It had a number of major headings, such as Company Information, Conditions of Employment, Company Policies, Introductions, Layout, Conduct a Tour of the Site and Work Procedures, under each of which was a sub-heading with a box.  Almost all the boxes had been ticked.  The following sub-headings appeared under the heading “Work procedures”:  Job outline, relationship of job to other jobs, preparation of work place, communications procedure, loading/unloading procedures, vehicle cleanliness, personal appearance and hygiene, standard of work required and Training Declaration.  All had been ticked except loading/unloading procedures, against which the note “na” appeared.  What appeared to be the appellant’s signature appeared on the third page of that document under a sentence acknowledging that he had received instruction and induction “in all the above matters”.

7. Mr Lidden cross-examined Mr Hutcheon, through whom he established that inquiries concerning Mr Woolley had only been made within the previous couple of weeks.  Mr Hutcheon said that the respondent’s Human Resources Division had informed him they had no forwarding address for Mr Woolley.  Although he said “the company” may have had an address for Mr Woolley at the time of his termination, that was not supplied to him.  He also had not asked whether Mr Woolley was sent a Group Certificate, and, if so, to what address.  (T 7, 6/2/06) .

8. His Honour delivered his judgment dismissing the Motion the following morning then resumed the part-heard main proceedings.

   The judgment below

9. The primary judge concluded that the length of the delay before the appellant sought to advance a case against the respondent was unacceptable and that there was no adequate reason for that delay.  He found that the reason for the delay was a lack of diligence by the appellant’s solicitors in investigating the matter and considering and asserting the appellant’s rights as against the respondent. (JMT 21-22)

10. His Honour reached that decision in the following manner.

11. He first noted the progress of the proceedings before him, importantly that the appellant’s Notice of Motion had been orally foreshadowed by the appellant’s counsel at 2.15pm on day three when that counsel, Mr Lidden, was cross-examining the first witness in the respondent’s case, Mr Hutcheon.  He then recorded that Mr Lidden handed up the Notice of Motion and a supporting affidavit by his instructing solicitor, Mr Lee Hagipantelis, at about 11am the following Monday, as well as a form of the proposed Further Amended Statement of Claim.  Later the same day his Honour adjourned the hearing of the substantive proceedings in order to give the respondent an opportunity to file affidavit material in response to the Notice of Motion.  In due course the respondent filed and served three affidavits which it said went to the issue of whether it would be prejudiced by a grant of an extension of time.

12. His Honour then undertook a detailed analysis of the state of the pleadings which it is unnecessary to repeat save in the following respect.  His Honour noted that PRD’s cross-claim alleged that the respondent owned the trailer and that, at the time of the appellant’s accident, the trailer had been in the “care, management and control” of the respondent.  It repeated the appellant’s particulars of negligence as well as asserting:

    “11. The cross-appellant also says that the cross-defendant failed to provide, plan and manage a safe system of work for the plaintiff.”

    The primary judge observed that the respondent had, inter alia, denied paragraph 11.

13. His Honour also noted the terms of the proposed Further Amended Statement of Claim which sought to add the following underlined paragraphs, against the respondent:

    “10.Further and alternatively as against the Third Defendant the Third Defendant conducted, operated and managed premises located at 115-121 Jedda Road Prestons in the State of New South Wales.

    11.At the time of the Plaintiff’s accident the said trailer was in the care, management and control of the Third Defendant.

    12.Arising out of that care, management and control [of] (sic) the Third Defendant was under a duty of care to the Plaintiff and was in breach thereof and was negligent.

    PARTICULARS OF NEGLIGENCE AS AGAINST THE THIRD DEFENDANT

    (a)Failing to provide, plan and manage a safe system of work for the Plaintiff.

    (b)Failing to provide the Plaintiff with a suitable ladder or platform to obtain access to the said trailer.

    (c)Requiring the Plaintiff or allowing the Plaintiff to climb on the said trailer to obtain access to the interior thereof.

    13.And the Plaintiff repeats the particulars of injuries, disabilities, loss and damage and claims damages against the Third Defendant.”

14. His Honour then noted the terms of Mr Hagipantelis’s affidavit in support of the extension application.

15. Mr Lidden informed his Honour that the case the appellant sought to advance against the respondent was that the latter was his employer pro hac vice in respect of the task the appellant was performing at the time of his injury.  Mr Lidden also submitted that it had not been until the respondent’s three witnesses had given their oral evidence that the appellant’s lawyers knew, and could have known, that the respondent was the appellant’s employer pro hac vice.  Mr Lidden relied upon that submission, according to his Honour, to explain the appellant’s delay in seeking to bring proceedings against the respondent.  His Honour observed that that submission:

    “… overlooked the fact that the Notice of Motion had been foreshadowed during cross-examination of the first of the cross-defendant’s three witnesses … .”

16. He added that the Notice of Motion was made after the appellant’s case had concluded on day two, and the second defendant’s case had concluded the next day.  It was not until after the respondent’s case had concluded that Mr Lidden filed in Court the Notice of Motion seeking an extension of time.

17. After setting out the terms of s 60C and s 60E of the Limitation Act, his Honour noted the “guidelines” identified by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 (at 532) and, also the ten matters set out by Kirby P (at 537-539). His Honour observed that in weighing prejudice to the respondent to an application for an order under s 60C, “ ‘the primary focus’ is its likely, or possible, impact upon a fair trial” citing Sydney City Council v Zegarac (1998) 43 NSWLR 195 (at 199) and Shering-Plough Pty Ltd v Page [2002] NSWCA 4 (at [15]-[16]).

18. The primary judge then noted that the appellant was nearly two years out of time in seeking to bring his claim against the respondent.  His Honour regarded that as “a significant over-run”. 

19. His Honour also had regard to the fact that the original Statement of Claim had not been filed until two days before the limitation period expired.  He observed that no explanation had been provided for that delay.

20. His Honour then noted that Mr Hagipantelis’s affidavit had stated that at the time the solicitor in Mr Hagipantelis’s practice first took instructions from the appellant in about January 2002, that solicitor was told by the appellant that he was employed by “Scotts Refrigerated”, but that Mr Hagipantelis had ascertained that the appellant was employed by Stoneglide.  Nevertheless the primary judge concluded that what the appellant had said about “Scotts Refrigerated” should have led his solicitors to have investigated the matter further.  In particular, in his Honour’s view, further questioning of the appellant was likely to have been sufficient for the purposes of the proposed pro hac vice cause of action.  His Honour drew that conclusion from evidence the appellant had given under cross-examination on day two in which he said that David Morris was his “boss” at the time of the accident.  His Honour observed that Mr Morris was “the yard foreman employed by the [respondent] where the accident occurred.”  His Honour observed that the appellant’s evidence had been supported by his only other witness, a Mr Petrarche, who had been working with the appellant at the time of the accident, who had also said that Mr Morris was the yard foreman or supervisor and had told him to “be careful” when working in the yard.

21. His Honour then recorded that the appellant had agreed during cross-examination “that the control of the work that he did in the [respondent’s] yard was by the [respondent] … [and] that although Stoneglide … paid his wages he thought he was employed by the [respondent]”.  The appellant had identified three men to whom he asserted he had complained about the necessity for proper ladders to access the backs of refrigerated trucks all of whom, his Honour observed, were employed by the respondent.  The appellant also said under cross-examination that when he began working at the premises at which he was injured on 6 January 2000, he was met by a Mr Hutcheon and “shown around the yard by someone whom he understood to be employed by the [respondent]”.

22. In those circumstances the primary judge concluded that evidence to support the pro hac vice employment cause of action against the respondent would have been available to the appellant’s solicitors from the time of their first instructions in about January 2002 had they made proper and diligent inquiries of the appellant himself.  He said that those inquiries could and should have been followed up by further inquiries directed to Stoneglide and the respondent.  He inferred that no such further inquiries had been made.

23. The primary judge also concluded that the appellant’s solicitors should have been put on notice of the need to make further inquiry about commencing proceedings against the respondent because of three letters PRD’s solicitors had written to them on 29 July 2004, 25 January 2005 and 21 February 2005 respectively in each of which, in substance, those solicitors suggested the appellant should consider joining the respondent as a further defendant.

24. The primary judge concluded that the appellant’s solicitors had not adequately explained why they made no attempt to take up the suggestion contained in those letters.  His Honour inferred that those solicitors had made:

    “… a considered forensic choice to confine the [appellant’s] action to one against the second defendant only, relying upon expansive provisions in the Motor Accidents Compensation Act 1999, but changed their mind during the conduct of the hearing, at some time before 2.15pm on day three when the [appellant’s] Notice of Motion was first orally foreshadowed in open court.”

25. The primary judge rejected a submission Mr Lidden advanced that the appellant’s solicitors had been “lulled into inaction” because the cross-defendant had denied that the trailer was in its care, management and control at the time of the accident. His Honour commented of this submission that, first, the relevant pleadings had come into existence well after the statutory limitation period had expired in April 2004 and, secondly, that the appellant’s solicitors had no better reason for believing the response than believing the allegation to which it replied as neither was on oath nor elaborated in any way. Alternately, he observed, if the appellant’s solicitors had believed the allegation in the cross-claim before the defence was filed, they should have done something about it in the appellant’s interests if they wished to pursue a pro hac vice employment injury case against the respondent.

26. His Honour added that in his view the respondent’s response to the relevant pleading in the cross-claim appeared to accept that the respondent owed a duty of care to the appellant, but merely denied it had been breached.

27. His Honour then turned to deal with the issue of possible prejudice to the cross-defendant pursuant to s 60E(1)(b) of the Act. He concluded that by reason of the appellant’s delay the respondent had lost the opportunity to call evidence from Mr Sullivan, the respondent’s Human Resources Manager at the time of the accident, who had mislaid a diary note concerning the accident, Mr Woolley, an employee who had left its employ in February 2004 and who could not be located and from Mr Gorman, the Human Relations Officer, who was responsible for the induction of the appellant prior to his commencing work in the yard.

28. His Honour rejected Mr Lidden’s submission that the possibility of forensic prejudice to the respondent disappeared because of the similarity of issues as between the appellant and the respondent in the proposed Further Amended Statement of Claim and as between PRD and the respondent in the cross-claim.  In his Honour’s view the aspects of possible forensic prejudice he had identified made the possibility of a fair trial as between appellant and the respondent problematical.

29. For the purposes of s 60E(1)(e), his Honour concluded that if the appellant’s solicitors had acted with due diligence the connection between his injury and the alleged negligence of the respondent would have been apparent shortly after they received initial instructions from him in about January 2002, or, at least, during the year 2002. In his Honour’s view, this point militated adversely against the granting of the application. (J 24-25).

30. Neither party had made any submissions to his Honour concerning s 60E(1)(c), (d) or (g) and his Honour regarded s 60E(1)(h) as being a matter of no relevant significance.

31. Having regard to his conclusions, the primary judge concluded that it was not just and reasonable to order the limitation period be extended, dismissed the motion and ordered the appellant to pay the respondent’s costs of it.

    Submissions

32. Ms S Norton of Senior Counsel, who appeared with Ms E Welsh for the appellant on appeal, but not at trial, submitted that the primary judge’s exercise of his s 60C discretion miscarried in that he took into account irrelevant matters.

33. She submitted that the primary judge placed too great emphasis on the role of the limitation period in encouraging forensic diligence and that forensic diligence was just one matter to be considered when dealing with an application for an extension of time.  She contended that the real issue the primary judge had to determine was whether or not a “fair trial” could take place, bearing in mind that “for a trial to be a fair trial it need not be perfect or ideal”:  Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 (at [79]). She also contended that the primary judge erred in holding that the two year extension sought was a “significant over-run” particularly having regard to the fact that the respondent had been joined to the proceedings in June 2005 and was aware of the nature of the appellant’s case.

34. Ms Norton criticised the primary judge’s conclusion that the appellant’s solicitor should have taken steps to determine the respondent’s role in the appellant’s alleged accident and that, if he had done so, those investigations were likely to have yielded fruit.  She drew attention to evidence which she contended demonstrated that the respondent’s role at the premises at which the appellant was working at the time of his alleged accident was confusing.  She argued that the primary judge was in error in determining that the appellant was at any relevant time aware of who was employed by the respondent and erred in finding that Mr Hutcheon and Mr Morris were so employed.

1. Ms Norton next submitted that the primary judge erred in finding the appellant’s solicitors should have acted when they were informed by the second defendant that the respondent was the owner of the trailer and in inferring that the appellant’s solicitors made a forensic choice to confine the appellant’s action.  She submitted that this inference was not available when Mr Hagipantelis was not cross-examined on his affidavit.  She made the same point in relation to the primary judge’s rejection of Mr Hagipantelis’s explanation that he did not act earlier, in part because the respondent had denied the allegations in the cross-claim.

2. Accordingly, Ms Norton submitted, the primary judge was in error in concluding there was an unreasonable delay with no adequate explanation other than lack of diligence on the part of the appellant’s solicitors.

3. Ms Norton next dealt with the issue of possible prejudice arguing that in relation to Mr O’Sullivan it was difficult to see what use his “lost” diary would have been. In relation to Mr Woolley, who had left the respondent’s employ, she contended that he was but one of a number of witnesses, some of whom had in fact been called, so that it was difficult to see why his evidence would have been important. She drew attention to the evidence which the respondent had called prior to the s 60C application concerning the system of work at the respondent’s premises and, in particular, evidence from two witnesses each of whom deposed that he had told the appellant to use an available stand to access the back of the trailer.

4. Ms Norton also submitted that it was irrelevant for the primary judge to observe that there was no explanation as to why the Statement of Claim was not filed until two days before the expiration of the limitation period and, too, when he held that it was anomalous that the appellant may be able to pursue his de facto employer in circumstances where there was no threshold such as that which barred his claim against his de jure employer.

5. Ms Norton also submitted that the primary judge should have taken into account the fact that it was not until the trial actually ran that the respondent admitted the extent of its role in the maintenance of the trailer.

6. Finally, Ms Norton pointed out that the respondent was already a party to the proceedings and had called a number of witnesses who gave evidence of the appellant’s induction process and work conditions.  She pointed out that the appellant had been cross-examined about having been given a stand to enter the trailers and having been told how to use it, that he had been given a handbook and that there were further stands and steps available.  In those circumstances she submitted a fair trial could have taken place despite the delay.

7. Mr K Rewell of Senior Counsel, who appeared on appeal with Mr L Tyndall for the respondent, but not at trial, submitted that the primary judge focused on relevant matters and applied the correct legal test.  He argued that the primary judge was correct in approaching the appellant’s application on the basis that lack of diligence on the appellant’s solicitors’ part was a material factor.  Mr Rewell submitted that the failure to include the respondent as a defendant when the Statement of Claim was first filed, despite awareness of its potential involvement since 2002, amounted to a deliberate decision by the appellant to allow the statutory limitation period to expire, a matter he contended was “a powerful factor against the grant of leave” to grant an extension:  Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 (at [91]) per Ipp AJA (as he then was). He contended that the appellant had made a further tactical decision not to seek an extension of time earlier than he did to join the respondent, despite the urging of the solicitor for the second defendant in the three letters to which the primary judge referred.

8. Mr Rewell submitted that it was apparent from Mr Hagipantelis’s statement in his affidavit that an employed solicitor had taken the appellant’s original instructions and had been told by him that he was employed by “Scotts Refrigerated”, and that the appellant considered that at the time of his injury he was working under the direction of the respondent.  He observed that the appellant was working at the respondent’s premises.  He submitted that further inquiries at the time ought to have discovered evidence to the same effect as that given before the primary judge, which the appellant’s counsel had contended at trial was the evidence which first put them on notice that the respondent was the appellant’s employer pro hac vice for the purposes of the work he was undertaking at the time of his injury.

9. In dealing with the issue of prejudice Mr Rewell submitted that the primary judge correctly addressed himself to the ultimate test as to whether a fair trial between the appellant and the respondent could take place in the context of the delay in making the application.  He argued that the primary judge was correct in attributing the prejudice the respondent would suffer if the application was granted to the appellant’s delay in seeking to join it as a defendant, in circumstances in which Mr Hagipantelis’s explanation was found to be unsatisfactory.

10. Further, Mr Rewell argued that it could not properly be said that there was no forensic prejudice to the respondent because it had already been joined in the proceedings as the cross-defendant.  He noted that the issues as between PRD and the respondent were different from those which the appellant sought to raise against the respondent.  He pointed out that the cross-claim filed by PRD focused on an alleged “defect” in the trailer, whereas the proposed Further Amended Statement of Claim focused on the alleged failure by the respondent to provide a safe means of access to the trailer the appellant was required to clean.

    Legislative framework

11. Section 60C is found in Part 3 (Postponement of the Bar), Division 3 (Personal injury cases arising before 2002 amendments), Subdivision 2 (Secondary limitation period) of the Act. Subdivision 2 and s 18A of the Act were inserted into the Limitation Act 1969 by the Limitation (Amendment) Act 1990. Subdivision 2 relevantly provides:

    “60A Purpose of this Subdivision

    The purpose of this Subdivision is to provide a procedure for a 5 year (maximum) extension of the 3 year limitation period for personal injury cases. It applies to causes of action that accrue on or after 1 September 1990.

    This Subdivision does not apply to a cause of action to which Division 6 of Part 2 applies.”

    Division 6 of Part 2 did not apply to the appellant’s case because the act or omission alleged to have resulted in his injury occurred before the commencement of that Division which was inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002: see s 50A.

12. Section 60C applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury: s 60C(1). Subsection (2) provides:

    “(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 relevantly provides:

    “60E Matters to be considered by court

    (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.”

    Extending a limitation period

14. This case concerns Subdivision 2 of the Act. Many of the cases counsel relied upon were decided in different statutory contexts. While some of those authorities are useful, as I shall seek to explain, for their exposition of general principles which might be regarded as fundamental to the exercise of a discretion to extend a limitation period, they should not be applied in a manner which will displace the statutory criteria identified in s 60C and s 60E: Sydney City Council v Zegarac (1998) 43 NSWLR 195 per Mason P (at 199); Bluescope Steel Ltd v De Caires; ABB EPT Management Ltd v De Caires [2005] NSWCA 431 (at [29]) per Mason P (Handley and Hodgson JJA agreeing); Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 (at [44]) per Basten JA (Handley and McColl JJA agreeing).

15. In considering the circumstances to which s 60E refers a court must have regard to the rationales for the existence of limitation periods identified in the Attorney-General’s Second Reading Speech to the Bill which led to Subdivision 2’s introduction as well as the matters to which McHugh J (at 551-553) and Kirby J (at 563-564) referred in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541: Zegarac (at 197) per Mason P; see also Itek Graphix (at [87]) per Ipp AJA (with whom Spigelman CJ agreed).

16. Brisbane South concerned s 31(2) of the Limitation of Actions Act 1974 (Qld), which permitted a court to grant an extension of time for the bringing of proceedings where, in substance, a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action.

17. McHugh J (with whom Dawson J agreed) observed (at 551) that “the enactment of time limitations [was] driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’ ”.  He said (at 552 – 553, footnotes omitted):

    “Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period … Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

    In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society….A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’ But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.” (emphasis added)

18. Kirby J (at 564) was also of the view that a provision permitting extension of the period of limitation was “an exceptional entitlement” and that although the applicant for an extension might be “innocent of fault”, even if the applicant established the two preconditions in s 31(2), the court might properly refuse the extension “either because the proposed defendant affirmatively establishe[d] that irreparable injustice would be done by requiring it to face a belated trial or because, in balancing the material placed before the court, the judge [was] not convinced that an extension order would be just”.

19. It is unnecessary to repeat the extracts from the Second Reading Speech to which Mason P referred in Zegarac.  They were critically analysed by Priestley JA (Zegarac, at 216 – 221; see also Powell JA, at 238 – 240). The rationales for limitation periods identified in the Second Reading Speech, in my view, substantially accord with those identified by McHugh and Kirby JJ in Brisbane South.

20. Zegarac involved an application for an extension pursuant to s 60C of the Act. Both Mason P (at 200) and Priestley JA (at 222) doubted whether the reasoning in Brisbane South which appeared to turn on the provisions of the Queensland legislation applied to Subdivision 2.  Mason P said it was unnecessary to decide the point.  Subsequently, in Australian Croatian Cultural & Educational Assoc ‘Braca Radici’ Blacktown Ltd v Benkovic [1999] NSWCA 210 (at [2]) (“Braca Radici”) his Honour expressed doubt about a concession by counsel that a trial judge dealing with an application under Subdivision 2 erred in confining himself to presumptive prejudice during the (two and a half year) period starting from the date on which the primary limitation period expired.  He observed:

    “It is clear that this would have involved error of law in the application of the Queensland statute (Limitation of Actions Act 1974 (Qld), s31) considered in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. As I pointed out in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 200, it is not clear to me that there would be error of principle in choosing to take that position in a particular case in New South Wales in the light of s 60E(1)(b) of the Limitation Act 1969”

21. His Honour did not decide the point.  Cole AJA (with whom Meagher JA agreed) approached the case on the basis that (at [13]) it was an error of principle for the primary judge to have determined the application by reference only to the presumptive prejudice for the two and a half years after the expiry of the limitation period, rather than prejudice throughout the entire five and a half years after the cause of action accrued. 

22. I prefer, with respect, the approach Cole AJA took in Braca Radici. I accept that in focusing on the prejudice to a defendant arising from the delay by reason of the fact that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, s 60E(1)(b) looks to the period between the expiration of the limitation period and the time of the extension application. However the governing requirement (s 60(1)) is to have regard to “all the circumstances of the case”. The attention drawn in s 60(1)(a) to the “length of and reasons for the delay” requires the court to examine the period which has elapsed since the cause of action accrued. This approach takes into account the rationales for limitation periods identified in Brisbane South which focus on the time which has elapsed since the cause of action accrued, rather than since the limitation period expired.

23. In considering a s 60C application, the court is required to take the s 60E factors into account to the extent that each is relevant to the circumstances of the case: Zegarac (at 197). Thus Mason P (at 199) held that “proof of prejudice, even ‘significant’ prejudice does not dictate the rejection of an application to extend time” and that while “[e]vidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case … [i]n weighing prejudice, its impact upon a fair trial is the primary focus”. Priestley JA (at 221) was also of the view that the court “had power, in the proper exercise of its discretion in a particular case, to order an extension of time, notwithstanding either the presumptive or proved prejudice to the defendant which would be caused by that extension”.

24. In Schering-Plough Pty Ltd v Page (at [15]) Sheller JA (with whom Meagher JA agreed) after referring with approval to Mason P’s statement in Zegarac concerning the significance of proof prejudice, added that the Court should also be mindful of the matters referred to in Gleeson CJ’s judgment in Salido v Nominal Defendant (1993) 32 NSWLR 524 (at 532-3), observing (at [16]) that ss 60C and 60E spelt out expressly matters which to some extent, at least, were embraced by the Chief Justice’s remarks. He said:

    “15…The discretion conferred upon the Court is to be exercised judicially in a manner that furthers the purposes of the statutory context, the immediate purpose, as with any limitation period, being to protect defendants against the injustice of stale claims and to promote forensic diligence. Bearing those matters in mind, the question is whether in the circumstances of each individual case the applicant for leave has demonstrated that it is just and reasonable that leave should be granted. The diligence or lack of diligence shown by a plaintiff or a plaintiff’s representatives in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff’s delay will also be material. The effect, if any, of the delay upon the defendant’s ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.”

25. Of particular relevance to the present case is Gleeson CJ’s observation in Salido (at 532) that statutes concerned with limitation periods have, as their immediate purpose, protecting defendants against the injustice of stale claims. His Honour concluded from the terms of s 52(4) of the Motor Accidents Act 1988 that that Act was also concerned with promoting forensic diligence and that in considering whether to grant leave under s 52(4) “[t]he diligence, or lack of diligence, shown by a plaintiff or a plaintiff’s representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.” As I understand Sheller JA’s judgment in Schering-Plough, his Honour regarded forensic diligence as a matter arising for consideration either under the chapeau to s 60E(1) or under s 60E(1)(a), a proposition with which I would respectfully concur. It may also arise under s 60E(1)(g).

1. Subsequently, in Blackburn v Allianz Australia Insurance Ltd [2004] NSWCA 385; (2004) 61 NSWLR 632 (at [14]), another s 52(4) case, Sheller JA (Mason P and Hodgson JA agreeing) held that in speaking of “forensic diligence” and the diligence or lack of diligence shown by a plaintiff or a plaintiff’s representatives in ascertaining or asserting the plaintiff’s rights in Salido, Gleeson CJ was “speaking of diligence in the sense given to that word in the Macquarie Dictionary namely, ‘constant and earnest effort to accomplish what is undertaken’, accompanied by the exercise of reasonable care”. 

1. There is no evidence from the appellant himself as to why the respondent was not joined prior to the expiry of the limitation period. The case was approached on the basis that he was bound by his solicitor’s conduct. Any lack of forensic diligence on his part could be attributed to the appellant or, as Mr Rewell contended, a deliberate decision by the appellant’s solicitors to pursue the MAA road to recovery, constituted a deliberate decision not to sue anyone else. As the appellant now appears to appreciate, such a decision, if it can be so characterised may, with the benefit of hindsight, have been poorly advised. However, as Handley JA (Santow and Ipp JJA agreeing) said in State of New South Wales v Judd [2003] NSWCA 355:

   “43 It should not be thought that bad legal advice or lack of diligence by a plaintiff’s solicitors provides an easy road to an extension under s 60C(2) or its equivalent. Ignorance of relevant facts will support an extension, ignorance of their legal significance will not. Lack of legal knowledge is a misfortune, and not a privilege, as McHugh J said in Gallo v Dawson (1990) 64 ALJR 458, 459. Litigants are expected to be diligent in their own interests.” (emphasis added)

2. The significance of the expectation that litigants will be diligent in their own interests was brought home in Itek Graphix. That case concerned the discretion conferred on a court by s 151D(2) of the Workers Compensation Act to give a person leave to commence court proceedings for damages against an employer liable to pay compensation more than three years after the date on which the injury was received.  No criteria were identified to guide the exercise of the discretion.

3. Ipp AJA (with whom Spigelman CJ agreed) examined the authorities concerning the circumstances in which courts exercise a discretion to extend a statutory limitation period.  He summarised (at [85]) the effect of the views of Dawson, McHugh and Kirby JJ in Brisbane South as being that:

   “… generally, in a limitation statute, broad considerations of justice govern the grant of leave to bring proceedings after the limitation period has expired. These considerations include an examination of the conduct of the applicant for leave and the reasonableness of the explanation for the delay …”

4. He held (at [87]) that in the context of a broad discretion such as s 151D(2), the general question to be asked in determining whether the limitation period should be extended is “what is fair and just” (per Gleeson CJ in Salido) or “what does the justice of the case require” (per McHugh J in Brisbane South) and that these questions fell for consideration in light of the rationales of the limitation period that had barred the action, including the four rationales to which McHugh J referred in Brisbane South.

5. In Itek Graphix the respondent obtained judgment for personal injuries she sustained when she fell while descending a flight of stairs at the premises of the appellant, her then employer. She had made an informed decision not to bring an action against her employer, but, rather to pursue her workers compensation rights. After the limitation period had expired, and approximately five years after her cause of action accrued, she decided to commence proceedings thus requiring the court to exercise its discretion under s 151D(2). The primary judge gave her leave to commence the proceedings. She was successful at a subsequent trial in recovering damages against her employer. The decision granting leave was overturned on appeal.

6. Of particular relevance for present purposes is Ipp AJA’s consideration (at [88] ff) of a deliberate decision to allow a limitation period to expire, the primary significance of which he explained as follows:

   “88 I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Limited [2001] NSWCA 346 at [34] – [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.

   89 The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts….

   90 The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. …

   91 A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.” (emphasis added)

   After reviewing the authorities, Ipp JA concluded:

   “98 In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.”

7. After examining the circumstances in which the respondent had decided to allow the limitation period in s 151D(2) to expire, Ipp AJA held (at [152]) that the primary judge had erred in giving the respondent leave to proceed. In re-exercising the discretion taking into account all of the relevant circumstances including the respondent’s conduct and the reasons (or absence of reasons) for the delay as well as the fact that the trial itself was held and the respondent was successful in her claim, his Honour concluded (at [153]) that time should not be extended.

1. In Bluescope Steel Ltd v De Caires; ABB EPT Management Ltd v De Caires (at [29]) Mason P (with whom Handley JA and Hodgson JA agreed) rejected a “categorical” submission that “statements of principle” in Itek Graphix were “equally applicable” to a Subdivision 2 case. His Honour (at [38]) described “[t]he matter for enquiry thrown up by s 60E(1)(b)” as “a nuanced one which requires exploration of the particular evidence that is lost and its impact upon the trial of the substantive proceedings”. He accepted that the matter at issue was “ultimately one of a fair trial and not a perfect trial”, observing that while s 60E(1)(b) made prejudice a relevant factor it did not establish that “some prejudice” required the dismissal of an application.

2. Finally I note that s 60C manifests an intention that the court exercise “individualised justice” so that what is “just and reasonable” for the purposes of s 60C must clearly depend on the circumstances of each case: Zegarac (at 199) per Mason P. In Braca Radic (at [5]) Mason P commented that “[t]he expression [“just and reasonable” in s 60C] is probably a hendiadys” but added that “the added emphasis conveyed by the word ‘reasonable’ is critical”.

   Conclusion

3. In order to obtain an extension of time, it was incumbent on the appellant to establish that he could prove his cause of action not in the sense for which proof would be required at a final trial but, rather, that it would not be futile to extend time because, for example, an element of his cause of action was incapable of being established: Rutter v The State of New South Wales [2005] NSWCA 231 (at [31]) per McColl JA (Handley JA and Hunt AJA agreeing).

4. The application for an extension of time was made on the premise that the appellant had reasonable prospects of success in establishing that the respondent was his employer pro hac vice.  In order to do so it was necessary that he establish that Stoneglide had, “for a particular purpose or on a particular occasion temporarily transferred [the appellant’s] services … to [the respondent] so as to constitute him pro hac vice the servant of that other party with consequent liability for his negligent acts”: Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 at 13, cited with approval in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 (at 641) per Gibbs CJ; see also McDonald v Commonwealth (1945) 46 SR (NSW) 129 (at 132) per Jordan CJ; Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 (at 677) per Mason J, (at 692) per Brennan J. Whether or not another has become an employer pro hac vice is a question of fact which depends upon “the nature and extent of the control transferred to [the particular employer] and retained by [the general employer]”: McDonald (at 132)

5. If the respondent had become the appellant’s employer pro hac vice then the duty of care the respondent owed him was analogous to that owed by an employer to an employee: TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1.

6. The case the appellant sought to make against the respondent by the latter’s joinder, as apparent from the proposed amendments to his Statement of Claim, was based on the proposition that the respondent “conducted, operated and managed” the premises at which the appellant had been working and, further, that at the time of the accident the trailer was also in the “care, management and control” of the respondent.  The respondent’s duty of care was said to arise from those factors.  The respondent did not contend that the appellant’s employer pro hac vice cause of action was futile. 

7. I have considered the appellant’s application on the basis that the appellant’s employer pro hac vice cause of action is arguable.  I would observe, as will be apparent from the discussion which follows, that it was not apparent that the evidence as it stood when the extension application was made, disclosed that any person employed by the respondent actually directed the appellant in the way he performed his work, or generally directed the system of work in place at what it was at least common ground, were the respondent’s premises in which the respondent’s trailers, including that on which the appellant fell, were serviced.  By the same token, however, the respondent resisted PRD’s cross-claim on the basis that a means of entering the trailer, other than by stepping on the buffer, was provided at the premises it operated, albeit that it did not appear it employed any of the witnesses who testified as to its availability.  For the reasons I have explained, it is not necessary to resolve the cloud of obscurity which, to my mind, still hangs over the respondent’s operations.

8. In my view the primary judge erred in concluding that the respondent had established prejudice within the meaning of s 60E(1)(b). It will be recalled that that provision requires the court to consider 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. Accordingly, s 60E(1)(b) requires the court to determine whether evidence became unavailable to a defendant after the limitation period expired. In this case that required the primary judge to determine whether the respondent no longer had evidence available to it because of circumstances which occurred after 10 April 2004. The evidence as to prejudice the respondent adduced failed to establish that proposition.

9. The documents Mr Hutcheon said were no longer available were most probably destroyed in about 2001.  Mr Woolley, who unusually, and unlike his co-employees, was said to have been employed by the respondent, left the latter’s employ in February 2004 in circumstances where the respondent apparently did not retain a forwarding address.  Mr O’Sullivan left the respondent’s employ in November 2002.  His affidavit did not explain when, in the period since his departure, he had lost his diaries.  Mr Gorman merely said, in substance, with the passage of time, he was unable to recall the appellant’s induction on 6 January 2000.  He was, however, able to produce a copy of the form the appellant had signed, a document I note the respondent had not sought to rely upon before it closed its case.

10. While I accept that this evidence went to general prejudice, in the sense that it underscored the proposition that limitation periods are imposed, in part, to ensure trials are conducted before relevant evidence is likely to be lost (Brisbane South, at 552), it was not, as the primary judge concluded, the sort of prejudice to which s 60E(1)(b) of the Act looks.

11. Further, the primary judge also erred in concluding that Mr Morris, and those to whom the appellant complained about the unavailability of a ladder, were employed by the respondent.  The appellant had said he did not know who employed Mr Morris or Mr Hutcheon.  Although Mr Hutcheon said in chief that the appellant was directed in his employment by the respondent’s employees, when cross-examined by Mr Stone he said that while “Scotts Refrigerated Freightways is the name of the company we work for”, he did not believe it had any employees.  It was also never established as I understand the evidence, that any of those who worked at the respondent’s yard were actually employed by the respondent, although it is apparent that many shared the appellant’s belief that the respondent was their employer. 

12. The primary judge concluded from the appellant’s evidence and his various assertions that those with whom he worked were employed by the respondent, that “proper and diligent inquiries” of the appellant would have given his solicitors the evidence necessary to press the employer pro hac vice case against the respondent.  However, as was apparent when the respondent called its witnesses, the appellant’s belief about the employment status of his colleagues was as fragile as his belief about his own employment status.  In truth the employment status of the appellant’s colleagues appears to be buried in a labyrinthine corporate edifice which revolved around Mr Scott.

1. It is apparent therefore that the primary judge’s exercise of his discretion miscarried in that he took irrelevant matters into account. It is necessary, therefore, to re-exercise the s 60C discretion.

1. Despite the obscurity of the employment status of the appellant’s colleagues, the primary judge’s conclusion that the reason for the delay in the application to join the respondent was a lack of diligence by the appellant’s solicitors in investigating the matter was, in my view, an available one. 

2. The appellant’s solicitors were aware at the time they took the appellant’s original instructions that he believed the respondent employed him. When Mr Hagipantelis ascertained that Stoneglide was his employer, he appears to have made no inquiries thereafter as to why the appellant believed the respondent was his employer. Rather, it is apparent, he focused on pursuing PRD relying on the provisions of the MAA.

3. I am conscious that in making the observations which follow that the Court should be cautious about making observations apparently critical of the standard of a person’s conduct unless the occasion for explanation by the person concerned had arisen: Smith v Grant (at [32]) per Basten JA, (Handley and McColl JJA agreeing). However where, as here, the appellant’s solicitor has assumed the burden of explaining the delay in making the extension application, critical analysis of that explanation is inevitable. Certainly it is open to the Court to infer that that solicitor has disclosed all the information which might have assisted the extension application: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 (at [11]) per Gleeson CJ.

4. In my view had Mr Hagipantelis made further inquiries of the appellant about the reason the latter believed he was employed by the respondent, it is apparent from the appellant’s evidence at trial that he would have become aware of a number of cogent factors which induced the appellant’s belief that he was employed by the respondent.  Those matters could, as I understand the basis on which the extension application was advanced below, arguably have supported the case the appellant sought to raise on the fourth day of the trial. 

5. Some of these matters were adduced in chief, others in cross-examination, but all were readily forthcoming from the appellant.  Without expressing any view about whether or not these matters would in fact have established the employer pro hac vice case, they included the facts that the appellant believed he applied to work at “Scotts”, that he worked at premises apparently operated by the respondent, that when he was employed he received a driver’s handbook from the respondent which set out the policies and procedures which were in force in the premises and that he was required to clean out trailers bearing the respondent’s insignia.  The appellant was aware there was a workshop at those premises which appeared to be serviced by Scotts’ representatives, an activity which included replacing the buffers on which he said he had slipped. 

6. This summary of the appellant’s evidence indicates the extent to which the appellant understood himself to have been part of the respondent’s enterprise.  It was information which, in my view, a solicitor exercising reasonable care would have extracted from the appellant when pursuing his understanding that he was employed by the respondent to determine whether legal liability for the appellant’s injury could arise from that circumstance: Blackburn v Allianz Australia Insurance Ltd (at [14]). This is particularly the case in circumstances where the solicitor had ascertained that Stoneglide, a company in which he established a Mr Bruce Scott was involved, formally employed the appellant. The apparent link between the name of the gentleman said to have been involved in Stoneglide, and the organisation the appellant believed was his employer, should have been immediately apparent. It should, in my view have led the solicitor to make further investigations into the connection between what his affidavit disclosed he knew, namely that “numerous companies related to Scotts … may have operated from the subject premises”.

7. Further, as the primary judge concluded, the appellant’s solicitors could have been in no doubt about the ownership of the trailer.  Mr Hagipantelis knew, even before PRD’s solicitors so informed him, that PRD did not own the trailer.  If he had not worked it out before, he was aware of it by the time PRD’s solicitors wrote the first of three letters informing him of that fact.  Although that chain of correspondence commenced on 29 July 2004, shortly after the limitation period expired, and formal notification that PRD did not own the trailer did not arrive until 25 January 2005 (accompanied by a defence asserting the respondent was responsible for the trailer), it still did not trigger a response from the appellant’s solicitor. 

1. Once again, in my view, the coincidence between the appellant’s belief about his employer and the ownership of the trailer ought, in my view, to have triggered a concern on the appellant’s solicitor’s part as to the nature of the respondent’s involvement in the activities the appellant was undertaking when he said he was injured. 

2. Next, PRD cross-claimed against the respondent on the basis, inter alia, that it controlled the system of work being undertaken by the appellant.  Although this was denied by the respondent, it was consistent with the appellant’s belief that he was employed by the respondent.  Inquiries of the appellant as to the significance of the respondent owning the trailer the appellant was cleaning, or as to why it might be said the respondent controlled his system of work would undoubtedly have elicited the information which appears to have persuaded his legal representatives to make the extension application.

3. Apart from the evidence elicited from the appellant in chief and in cross-examination, it is difficult, in my view, to identify the information the appellant’s legal representatives said they identified in the course of the proceedings which prompted the decision to make the extension application.  As I have said, by the time Mr Lidden foreshadowed the application the respondent’s case had reached the stage where its first witness, Mr Hutcheon, was being cross-examined by Mr Lidden.  The employment status of those with whom the appellant worked was still clouded in obscurity.  True the appellant had been cross-examined by counsel for the respondent on the basis that there was an available alternative means of accessing the trailer available at the premises, but that counsel had also established through Mr Hutcheon that as far as he was aware the respondent did not employ anyone.  Mr Petrache’s evidence (including his reference to “Scotts’ people”) did not appear to have added to the bundle of information potentially available from when instructions were received as to the respondent’s potential involvement.  Mr Watts’ evidence, did not, in my view, add to the information readily available from the appellant.

4. In short, in my view, the evidence adduced at trial, which apparently motivated the extension application, was information which could have been obtained from the appellant when instructions were first obtained. Mr Hagipantelis said in his affidavit that it was not until PRD and the respondent went into evidence that he had information available to him “sufficient to sign a solicitor’s certificate as to the prospects of success of a claim against [the respondent]” i.e. that there were “reasonable prospects of success”: cf s 198J Legal Profession Act 1987, which was inserted in that Act by Schedule 2.2[2] of the Civil Liability Act 2002 with effect from March 2002: see Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 (at [15]).

5. However that statement, in my view, begged the question.  It was critical to the extension application that the appellant advance a reason for the delay in commencing proceedings against the opponent which made it just and reasonable that the application be granted.  Unless he chose to distance himself from his solicitor’s conduct (cf Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 (at [35]) per Ipp JA), which he did not, that explanation had to be consistent with forensic diligence. Here there was simply no evidence which demonstrated any endeavour on Mr Hagipantelis’s part to ascertain whether or not the respondent bore any possible legal liability for the appellant’s accident. Rather, as he clearly stated, he made the decision, properly described in my view by the primary judge as a “considered forensic choice”, to limit the appellant’s action to one against PRD in reliance upon the MAA. That decision was not consistent with forensic diligence in pursuing whatever rights the appellant may have against the respondent. It was not a satisfactory explanation for the delay in pursuing the respondent: s 60E(1)(a).

6. While I appreciate that a failure satisfactorily to explain the delay will not be decisive and that the issue of prejudice may be of paramount importance (Itek, at [88]), here the appellant’s solicitor’s in my view, made a deliberate decision to allow the limitation period to expire in circumstances where they had determined to confine his case to one against PRD. They chose to maintain that stance despite PRD’s entreaties to join the respondent. They only changed their position more than five years after the appellant’s cause of action accrued after, in substance, using the trial as a dress rehearsal to glean information which, as I have said, ought to have been apparent to them by obtaining instructions from the appellant.

7. Although the respondent did not establish s 60E(1)(b) prejudice, it nevertheless established some general prejudice by reason of the passage of time which is relevant to a consideration of the circumstances of the case.

8. In my view the appellant failed to establish his case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Brisbane South (at 553). It is not just and reasonable that the appellant be given leave to join the opponent.

9. I propose the following orders:

   (1)          Grant leave to appeal.

   (2)          Notice of appeal to be filed within seven days.

   (3)          Appeal dismissed.

   (4)          Appellant to pay the respondent’s costs of the appeal.

10. SIMPSON J:       I have read, in draft, the judgment of McColl JA.  I agree, for the reasons given by her Honour, that the exercise of discretion by the primary Judge miscarried, and that it is necessary that this Court proceed to exercise its own discretion.

11. I have come to a different view as to what the outcome of that process ought to be.

12. I acknowledge that the respondent (to which I will refer as “Scotts”) made out a persuasive case that the delay on the part of the plaintiff in bringing proceedings against it was attributable to a lack of forensic diligence by those representing him. The possibility of bringing such proceedings was brought to their attention by the second defendant (“PRD”) on no less than three occasions before PRD itself took the step of joining Scotts as a cross-defendant. Even that joinder did not, at the time, prompt the solicitors into action or, it seems, to make relevant enquiries about the availability of action against Scotts. Accordingly, the considerations specified in s 60E(1)(a)(e) of the Limitation Act 1969 do not operate in favour of the appellant. However, they do not, in my opinion, operate against him with the force that is implicit in the judgment of McColl JA. I do not read those provisions as being punitive, although I recognise that the promotion of forensic diligence is intrinsic to the construction of the Limitation Act generally.  A satisfactory explanation for delay may well go a long way towards entitling an applicant for extension to such an order;  an unsatisfactory explanation may well operate in the opposite direction.  Where, for example, a tactical decision has been made not to commence proceedings within the statutory time-frame, that circumstance may be decisive.

13. Nevertheless, the over-riding test is that stated in s 60C(2) – the inquiry is whether it is just and reasonable to extend the period.

14. Against the established lack of forensic diligence must be balanced the consideration stated in s 60E(1)(b): any prejudice that has accrued to Scotts by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available.  That requires identification of evidence that has been lost since the expiration of the limitation period.  In this case, that was 10 April 2004.  Any evidence lost prior to that date is not, for this purpose, relevant.

15. Scotts did adduce evidence of prejudice.  Naughton DCJ accepted the facts asserted by Scotts’ witnesses, and there is no reason that this Court ought not to do the same.  The question is, whether and/or the extent to which those circumstances affect the justice and reasonableness of granting the appellant an extension of time.  That is, essentially, to be determined by the extent (if any) to which Scotts’ capacity to meet the appellant’s claim is diminished.

16. The evidence of prejudice came from three witnesses, Mr John Hutcheon, Scotts’ General Manager – Equipment;  Mr Stephen O’Sullivan, formerly Scotts’ Human Relations Manager;  and Mr Michael Gorman, formerly Human Relations Officer with Scotts, with responsibility for undertaking the induction of new employees.  Mr Hutcheon deposed that it was Scotts’ practice to retain records, for taxation purposes, for seven years before destruction; and that one employee, Mr Matthew Woolley, who had been present in the vicinity at the time of the appellant’s injury, had left Scotts’ employment in February 2004 when he was believed to have moved to Queensland.  Mr Hutcheon said that no other information was available to Scotts which would enable it to locate Mr Woolley.

17. In this context, it is of some significance that Mr Hutcheon also identified another employee, Mr Petrache, who had also been present in the vicinity at the time of the appellant’s injury.  Mr Petrache is available:  he gave evidence in the principal proceedings.

18. Mr O’Sullivan’s evidence was that, as Human Relations Manager at the time of the appellant’s injury, his duties included recording complaints or incidents relating to safety issues.  He recorded the appellant’s injury and that he (Mr O’Sullivan) attended the scene immediately and made an entry in his diary.  He left Scotts’ employment in November 2002, taking with him his diaries.  Despite efforts, he has been unable to locate the diaries.  Without his diaries he has no specific recollection of the incident or any complaint which may have been made by the appellant.

19. Mr Gorman’s evidence was that his records showed that, when the appellant commenced employment with Scotts, he, (Mr Gorman) was responsible for his induction, but that he has no specific recollection of that process.  (Presumably, the details of the appellant’s induction are said to be relevant to the particularisation, on his behalf, of the negligence alleged against Scotts, especially an allegation that Scotts failed to provide, plan and manage a safe system of work.)

20. Absent critical analysis, these circumstances might appear to establish a case in prejudice.   Critical analysis diminishes that appearance. 

21. One important factual matter to note is that Scotts has been aware, since 9 June 2005, when PRD filed its cross-claim against Scotts, that its liability (or otherwise) for the appellant’s injury was in issue.  It can hardly complain about the loss of evidence after that date.

22. Another circumstance not to be over-looked is that s 60E(1)(b) focuses upon the period between the expiration of the limitation period and the date of the application for extension: in this case, the period between 10 April 2004 and 6 February 2006. But because of the date of the filing of PRD’s cross-claim, there remains only a period between 10 April 2004 and 9 June 2005 as the period during which the loss of any evidence may operate to defeat the appellant’s claim. Mr Woolley left Scotts’ employment on 6 February 2004, two months before the expiration of the limitation period, but the other employee said to have been working with the appellant is available and, indeed, has given evidence. The loss of Mr Woolley’s evidence did not occur during the relevant period.

23. Mr O’Sullivan left Scotts’ employment in November 2002, well before the expiration of the limitation period.  Of course, it cannot be known when his diaries were lost or destroyed, but there is no reason to think that that happened between 10 April 2004 and 9 June 2005.

24. Annexed to Mr Gorman’s affidavit is the document from which he concluded that it was he who had carried out the appellant’s induction process.  This takes the form of a check list recording what has been explained to the employee.  It is signed by the appellant.  In the substantive proceedings the appellant was cross-examined about his introduction to his employment at Scotts, although this induction document was not shown to him, nor tendered in evidence.

25. Counsel who appeared for Scotts at the trial does not appear to have felt unduly hampered in his cross-examination of the appellant by the inability of Mr Gorman to recall the details of the appellant’s induction.

26. The existence of the document goes a long way, if not all the way, to overcoming any prejudice occasioned by Mr Gorman’s lack of clear recollection.  It is unlikely, also, that Mr Gorman lost that recollection during the critical period.  I infer that the induction of new employees was a routine process for him, and that he would have been unlikely to have had any specific recall of the actual process, even if the appellant had brought proceedings against Scotts within the three year period.  I discount Mr Gorman’s evidence as establishing any significant prejudice.

27. McColl JA has extracted the well known passage in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541. His Honour identified “four broad rationales” for the enactment of limitation periods. The first is the likelihood of loss of relevant evidence with the passage of time; the second is oppressiveness, even cruelty, to a defendant in allowing a long-dormant potential action to be brought; the third is the need for people to be able to arrange their affairs and utilise their resources on the assumption that claims can no longer be brought against them; and the fourth is the public interest in the early settlement of disputes. None of these assists Scotts. The first, the likelihood of lost evidence, I have already dealt with. As to the second, it can hardly be held to be oppressive to Scotts to allow the appellant to pursue a claim which is, in effect, parallel to the claim brought by PRD against Scotts and which exposes Scotts to no greater liability or hardship than that cross-claim. The same applies to McHugh J’s third consideration, the need to arrange affairs on the basis that no claims can be brought. Finally the public interest would not be affected by permitting the appellant to pursue his claim against Scotts. Again, that is (if for no other reason) because of the existence of PRD’s cross-claim.

28. In my opinion, to the extent that any prejudice is established on behalf of Scotts, it is, at best, minimal.  It is not capable of affecting, in any real way, Scotts’ capacity to defend the proceedings if the appellant is permitted to bring them.

1. The appellant is not to be punished for the lack of diligence of his solicitor. In my opinion, the “just and reasonable” test ought to be resolved in favour of the appellant.

2. I propose the following orders:

   Orders

   (1)          Grant leave to appeal.

   (2)          Notice of appeal to be filed within seven days.

   (3)Appeal allowed. 

   (4)          Orders of Naughton DCJ made on 7 March 2006 set aside.

   (5)          Limitation period extended to expire on 5 May 2008.

   (6)Respondent to pay the appellant’s costs of the appeal and of the application for leave to appeal.

   (7)Costs of the application for an extension of time before Naughton DCJ to be costs in the cause.

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AMENDMENTS:

16/04/2008 - Front cover sheet - Paragraph(s) Category: Principal judgment

LAST UPDATED:
16 April 2008