Conray v Scotts Refrigerated Freightways Pty Ltd

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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…

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Details
Case
[2008] NSWCA 60
Decision Date

CaseChat Overview and Summary

The case of *Conray v Scotts Refrigerated Freightways Pty Ltd* was heard in the Court of Appeal of New South Wales. The appellant sought an extension of time to join the respondent as a defendant in proceedings arising from an accident. The primary judge had dismissed the appellant's application for this extension, finding the delay unacceptable and attributable to a lack of diligence by the appellant's solicitors.

The central legal issue before the Court of Appeal was whether the primary judge had erred in exercising his discretion by refusing to grant an extension of time under section 60C of the *Limitation Act 1969* (NSW) to join the respondent as a defendant. This required the court to consider the principles governing the exercise of such discretion, particularly in circumstances where the application was made late in the trial process, and to assess whether it was "just and reasonable" to grant the extension.

The Court of Appeal allowed the appeal, finding that the primary judge had misapplied the relevant principles. The court noted that the proposed amended statement of claim alleged that the respondent had care, management, and control of the trailer at the time of the accident and was negligent in failing to provide a safe system of work. While acknowledging the delay, the Court of Appeal considered that the prejudice to the respondent, if any, could be managed, and that the interests of justice favoured allowing the appellant to pursue its claim against the respondent. The court therefore set aside the order of the primary judge and extended the limitation period to allow the joinder.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

His Honour delivered his judgment dismissing the Motion the following morning then resumed the part-heard main proceedings.The judgment below 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) His Honour reached that decision in the following manner. 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. 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. 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.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.