Dewick v Baladi Investments
[2002] NSWSC 98
•27 February 2002
CITATION: Dewick v Baladi Investments & Anor [2002] NSWSC 98 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 20698 of 2001 HEARING DATE(S): 13 February 2002 JUDGMENT DATE: 27 February 2002 PARTIES :
Steven Dewick (Plaintiff)
v
Baladi Investments Pty Limited (Defendant/Cross-Claimant)
Austcorp No 457 Pty Limited (Cross-Defendant/Proposed Second Defendant)
JUDGMENT OF: Master Malpass
COUNSEL : Mr M Papallo (Plaintiff)
N/A (Defendant/Cross-Claimant)
N/A (Cross-Defendant/Proposed Second
Defendant)SOLICITORS: Watkins Tapsell (Plaintiff)
N/A (Defendant/Cross-Claimant)
McCulloch & Buggy (Cross-Defendant/Proposed Second Defendant)
CATCHWORDS: Extension of relevant limitation period - viable cause of action - delay and explanation for delay. LEGISLATION CITED: Limitation Act 1969, s 58, s 60C, s 60E. CASES CITED: N/A DECISION: See paragraph 26.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMaster Malpass
Wednesday 27 February 2002
JUDGMENT20698 of 2001 Steven Dewick v Baladi Investments Pty Limited & Anor
1 Master Malpass: The proceedings were commenced in the District Court in October 1999. In about November 2000, it was decided to seek a transfer of the proceedings to this Court. A Summons was filed on 14 December 2000. The proceedings were removed into this Court in July 2001.
2 Prior to the time of his injury, the plaintiff had participated as a backstroke swimmer competing at national and international levels.
3 The defendant was the owner of property at West Gosford.
4 On 25 October 1996, the plaintiff attended the property for the purposes of swimming training. The defendant had contracted to ICM 2000 Pty Limited, to carry out building and construction work on the property.
5 A part of the property had been leased to Forrester’s Swim Centre Pty Limited for the purposes of an indoor swimming centre.
6 The plaintiff suffered injury when he stumbled over a slab of concrete and he fell twisting his right knee. He has since had surgery and continues to have problems.
7 On 12 July 2001, the plaintiff filed a Notice of Motion. It sought to have Austcorp No 457 Pty Limited (the cross-defendant) added as a second defendant in the proceedings. As the relevant limitation period had expired in October 1999, an extension of that period pursuant to s 58 of the Limitation Act 1969 (the Act) was sought. Subsequently, on 7 November 2001, a further Notice of Motion was filed seeking an order under s 60C. This is the application that is now pursued.
8 Some time prior to this application, in May 2000, the defendant had filed a Cross-Claim against the cross-defendant. It was amended in December 2000 to add inter alia an allegation of failure to heed complaints about the danger created by the presence of building debris upon the property. It appears that this action led the plaintiff to bringing the application to join the cross-defendant as a second defendant in the proceedings.
9 The hearing took place on 13 February 2002. The plaintiff relies on a number of affidavits. One of them was sworn by the plaintiff himself. The others were sworn by solicitors of the firm acting on behalf of the plaintiff. One of these was a lengthy document filed in court at the commencement of the hearing (the affidavit of Mr Hartcher). The filing of this affidavit was followed by a tender of a large bundle of documents (Exhibit A).
10 Section 60C, provides inter alia that the court may, if it decides that it is just and reasonable to do so, order an extension of the limitation period. In exercising the powers conferred on the court by that section, s 60E requires the court to have regard to all the circumstances of the case (including the circumstances enumerated therein). The onus of demonstrating an entitlement to relief is borne by the plaintiff.
11 This is a case which was not ready for hearing (despite what was said to the court to the contrary) when the special fixture was sought and obtained. When the hearing commenced the material earlier referred to (which had not been prior to the hearing date brought to the attention of the proposed second defendant) was tendered.
12 The proposed second defendant has resisted the application on two bases. Firstly, it is said that the evidence fails to disclose the existence of a viable cause of action. Secondly, it is said that the application should be refused by reason of delay and deficiencies in the explanation offered for the delay.
13 There is considerable force in what is put forward by the proposed second defendant. The evidence put forward on the first matter is certainly on the thin side. The delay is significant. What is offered to explain delay has unsatisfactory aspects. Also, there are periods of delay which are left without explanation.
14 The proposed second defendant is already involved in the proceedings. In defending the Cross-Claim, it will be called upon to deal with matters which could be expected to arise in defending the proposed claim by the plaintiff.
15 A proposed Statement of Claim is an annexure to the affidavit sworn by Mr Hartcher. It discloses that the particulars of negligence alleged against the defendant include those alleged against the proposed second defendant.
16 The material discloses that the proposed second defendant was a contractor on the site at or about the time of the injury. There has been much debate concerning the evidence or lack of it relating to when the proposed second defendant was on the site. There was concrete on the site at the time of injury which may be described as building debris. The evidence of the plaintiff is that he stumbled over it. There are no admissions from the proposed second defendant as to responsibility in relation to the building debris. Inferences may be drawn from the limited material before the court. At the very least, the position of the plaintiff as thrown up by the material is that he may well be in doubt as to which of the two entities can be regarded as responsible for his injuries. It can be added that apart from matters that were debated, it may well be that there are other real problems confronting the plaintiff’s claim. However, in any event, I am not satisfied that the claim against the proposed second defendant is hopeless.
17 The accident took place in October 1996. This present application did not come on for hearing until 13 February 2002.
18 Despite the many affidavits, the content has many shortcomings. I do not propose to refer to all of the material. For present purposes, it suffices just to make a brief comment.
19 It seems that at least by April 1998, the plaintiff’s solicitors were aware of the proposed second defendant and its construction activities. The solicitors had been acting since November 1997 (when they took over the conduct of the matter from another firm). Although notice of the claim was given, there was limited investigation of it. In October 1999, shortly prior to the expiration of the limitation period, a decision was made not to join the proposed second defendant as a party to the proceedings.
20 At about November 2000, a decision was made to make application for removal of proceedings into this Court. It was also decided to defer any application to join the proposed second defendant until the proceedings had been removed into this Court.
21 Following their removal, a misconceived Notice of Motion was filed in July 2001. Many months then passed before the present application was brought. Little is offered to explain what has happened between July 2001 and now.
22 The evidentiary deficiencies create difficulty for the plaintiff in this application. The end result is a pretty close call for him. It was reached only after considerable reflection.
23 It is not in issue that the plaintiff has suffered a serious injury and that if he is successful on the question of liability he may recover substantial damages.
24 There is no evidence of prejudice. No submissions have been made in relation to prejudice. In the circumstances of this case, despite the significant delay, it seems to me that a fair trial can still be had.
25 In the circumstances of this case, I have come to the view that the plaintiff just stumbles across the line. I am satisfied that a decision should be made that it is just and reasonable to make an order and that an order should be made.
26 The plaintiff is to have leave to add the proposed second defendant as a party to the proceedings. Leave is granted to file an Amended Statement of Claim in the form of the annexure to the affidavit of Mr Hartcher. I direct that any such Amended Statement of Claim be filed on or before 6 March 2002. The relevant limitation period for the causes of action alleged in the proposed Amended Statement of Claim is extended up to and including 6 March 2002. The plaintiff is to pay the costs of the Notice of Motion and any costs thrown away by reason of the amendment of the Statement of Claim. The Exhibit may be returned.
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