Dunmall v O'Sullivan
[2008] WADC 109
•1 AUGUST 2008
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DUNMALL -v- O'SULLIVAN & ORS [2008] WADC 109
CORAM: SCOTT DCJ
HEARD: 23 JULY 2008
DELIVERED : 1 AUGUST 2008
FILE NO/S: CIV 232 of 2006
BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
MARY O'SULLIVAN
First DefendantTERRENCE CONSTRUCTIONS PTY LTD
Second DefendantSHIRE OF MURRAY
Third Defendant
Catchwords:
Breach of duty on part of Shire - Application for leave to bring action under s 47A(3) of the Limitation Act 1935 - Requirements for grant of leave
Legislation:
Limitation Act 1935 (WA), s 47A
Result:
Application for leave to join party granted
Representation:
Counsel:
Plaintiff: Mr B P Wheatley
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Mr J Eller
Solicitors:
Plaintiff: Mossensons
First Defendant : Not applicable
Second Defendant : Not applicable
Third Defendant : John Eller
Case(s) referred to in judgment(s):
Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402
Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373
Perry v City of Armadale [2004] WASC 167
SCOTT DCJ: This is an application made by the plaintiff by chamber summons (undated) for an order (inter alia) that the Shire of Murray ("Shire") be joined as a third defendant. The plaintiff needs leave to join the Shire as a defendant.
In the chamber summons the plaintiff also sought leave to join Terrence Constructions Pty Ltd as the second defendant in the action. Although I have not sighted a copy of any order I understand that Terrence Constructions Pty Ltd was joined as the second defendant leaving the issue of the joinder of the Shire to be dealt with.
The plaintiff's claim arises out of injuries alleged to have been sustained by him as a consequence of the collapse of a balcony at the premises situate at 12 Kiap Way, South Yunderup ("premises") of which the first defendant was the occupier.
The collapse of the balcony occurred on 31 December 2004 and as a consequence the plaintiff's cause of action accrued on that date. Pursuant to s 47A(1)(a) and (b) of the Limitation Act 1935 ("Act") the plaintiff may not bring an action against the Shire unless it has given to the Shire, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based ("notice") and the action is commenced before the expiration of one year from the date on which the cause of action accrued viz by 30 December 2005.
Pursuant to s 47A(3) of the Act an application may be made to the court for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued whether or not notice as required by s 47A(1) has been given to the Shire.
Pursuant to s 47A(3)(b) of the Act where the court considers that the failure to give the required notice or the delay in bringing the action (as the case may be) was occasioned by:
(a)mistake; or
(b)by any other reasonable cause; or
(c)that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or the delay
the court may if it thinks it is just to do so, grant leave to bring the action.
In this case although it would seem that the Shire may have been aware of the collapse of the balcony in early March 2005 it was not until 29 May 2006 that the plaintiff by his solicitors gave notice to the Shire that he intended to join the Shire in the action and until 20 June 2006 when, by a notice from his solicitors, the plaintiff provided details to the Shire of the nature of the action proposed against it (affidavit of Robert Richard Ivessa sworn 14 September 2007 (Exhibits "A" and "C") ("Ivessa's affidavit"). Before those dates there is no evidence that the Shire was placed on notice that it was exposed to a claim by the plaintiff.
The periods relevant to consideration of delay are:
(a)in respect of a notice, the period 31 December 2004 to 29 May 2005; and
(b)in respect to bringing the action, the period 31 December 2004 to August 2007 when this application was made.
Mistake
The plaintiff maintains that his failure to give notice and to bring the action was occasioned by mistake. It is said by the plaintiff that:
(a)His solicitors had been in communication with the insurer of the first defendant during 2005 enquiring as to whether the insurer for the first defendant accepted liability.
(b)It was not until January 2006 that the solicitors for the plaintiff were advised by the insurer that liability was denied.
(c)A writ of summons was issued against the first defendant on 6 February 2006.
(d)A defence to the plaintiff's claim was filed on 15 March 2006.
(e)After the defence was filed there were discussions between the solicitors for the plaintiff and for the first defendant during the course of which it was raised (for the first time) that there was a prospect that the Shire may be liable – affidavit of Steven Cohen sworn on 26 July 2007 (Cohen's first affidavit) par 4.
(f)Notice was given to the Shire on 29 May 2006 and details of the claim were given to the Shire on 20 June 2006.
The plaintiff then says that his solicitors received a facsimile on 13 December 2006 from the first defendant's solicitors indicating that the first defendant agreed to join Terrence Constructions Pty Ltd and the Shire as third parties (Cohen's first affidavit par 5) and that the solicitors for the plaintiff sent subsequent correspondence to the solicitors for the first defendant requesting the first defendant to join those additional parties.
I do not consider that there is any evidence that the delay in giving the notice or making this application was occasioned by mistake. Insofar as the failure to give notice until 29 May 2006 is concerned it would seem to me that that delay was occasioned by the fact that neither the plaintiff nor his advisors gave consideration, beforehand, as to whether there might be any right of action against the Shire. There was no misunderstanding of any facts or circumstances surrounding the collapse of the balcony or any other mistaken belief (Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402 at [48]).
The same applies to the delay in bringing the action.
Reasonable cause
The term reasonable cause was explained by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28 in the following manner:
"… a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
In my view there was reasonable cause for any delay in giving the notice. The plaintiff's injuries had not (by at least October 2005) stabilised, the plaintiff was awaiting advice from the insurers of the first defendant as to whether liability was accepted or denied and that position was not made known to his solicitors until January 2006 whereupon the writ of summons was, shortly thereafter, issued. The plaintiff was not made aware of the prospect of liability on the part of the Shire for his injuries until sometime after March 2006 consequent upon discussions between his advisors and the solicitors for the first defendant whereupon notice was then given to the Shire.
The same, however, cannot be said with respect to the delay in making this application to join the Shire. There is no explanation for the delay between May 2006 and August 2007 when this application was made. The fact that there was communication between the solicitors for the plaintiff and the solicitors for the first defendant in and after December 2006 pertaining to the joinder of (inter alia) the Shire by the first defendant does not assist the plaintiff in this regard.
The joinder by the first defendant of the Shire would only result in potential liability for the Shire in favour of the first defendant and only then upon the plaintiff's claim against the first defendant being successful. That joinder would not result in any liability of the Shire to the plaintiff. That would only arise if the Shire was joined as a defendant in the action.
Material prejudice
The Shire bears an evidentiary onus which it must discharge as to material prejudice, but if it does so, the ultimate onus to show the absence of material prejudice rests upon the plaintiff (Perry v City of Armadale [2004] WASC 167 at [23]).
The relevant timeframe for considering the issue of prejudice is the period between the date of the cause of action arising and the date upon which the application for leave to bring the action is made. Relevant in that consideration however is the extent to which, within that period, the Shire was aware of the intention of the plaintiff to make a claim against it and the nature of that claim so that the Shire would be put on notice of its exposure and would then be in a position to make what inquiries were available to it so as to meet any claim which was pursued against it.
In the affidavit of Dale Burton sworn 29 May 2008 ("Burton's affidavit") Mr Burton exhibits a copy of the building licence dated 3 March 1983 (Exhibit "A") and the conditions of approval and footings inspection certificate (Exhibits "B" and "C").
Mr Burton deposes to the fact that: "The Shire is severely prejudiced in that it is impossible to carry out any investigations as to the cause of the plaintiff's alleged accident, or indeed, interview builders, workers or (sic) other parties who may have been involved in the construction of the relevant premises."
Any difficulties experienced by the Shire in interviewing those involved in the initial construction of the premises is not a relevant consideration. That difficulty would in any event have arisen given the passage of time between the date of construction and the date of the balcony collapse.
The Shire does however raise a very real issue as to the disadvantage to it to carry out any investigations as to the cause of the balcony collapse, it having not been placed on notice of potential exposure until late May/June 2006 nearly 18 months after the collapse of the balcony. The Shire has not however given any evidence as to the nature of the inquiries which it did make, after notice was given to it and the extent to which those inquiries or investigations were hampered or made impossible by the passage of time from the date upon which the balcony collapsed.
It is evident that the Shire engaged an investigator (Western Investigations) to undertake relevant inquiries (affidavit of Ian Mossenson sworn 4 January 2008, par 22 Exhibit "H"). There is no evidence from the investigator that the delay occasioned prejudice.
I cannot speculate as to the nature of any disadvantage to the Shire caused by the delay in giving notice or in this application being made. Whilst there was a delay between notice being given and this application being made, in respect to which I have already determined that there was not reasonable cause, there is no evidence which would lead me to the view that there was any material prejudice to the Shire consequent upon any such delay.
On the evidence before me I am satisfied there is no material prejudice to the Shire occasioned by the delay in giving the notice or making this application.
Justice of the case
Having been satisfied that there is no material prejudice to the Shire I must also consider whether the justice of the case requires leave to be granted to the plaintiff to join the Shire in this action.
To that end the Shire points to the fact that there is no evidence advanced by the plaintiff as to the cause of the collapse of the balcony. In the proposed minute of amended statement of claim, the thrust of the plaintiff's claim against the Shire is that the Shire was negligent in approving the design of the balcony and in particular failed to satisfy itself that the design included fastening devices selected and designed to resist corrosion over time. There are no material facts, however, as to the cause of the collapse.
Nor is there any other evidence before me in support of this application in which there is any opinion expressed or fact relied on pertaining to the cause of the collapse.
Absent that evidence the Shire submits that any claim against it is hopeless. Without identifying the cause of the collapse it will be impossible for the plaintiff to demonstrate any breach of duty on the part of the Shire.
In addition the Shire submits that the relevant statutory requirement cast on it at the time of the submission of the plans to it for approval for the construction of the premises was to inspect the footings which, by its certificate, it did and that it had no other obligation which would require it to inspect the premises as constructed or give any detailed consideration of the plans for the purposes of approval.
The plaintiff's counsel submitted that this was essentially a case of res ipsa loquitur, although he conceded that the minute of proposed amended statement of claim did not contain such a plea. He also contended that the plaintiff ought not be shut out of pursuing its claim against the Shire, administering interrogatories and seeking discovery which may assist the plaintiff's case.
In my view, on the evidence before me the plaintiff's claim against the Shire will face substantial hurdles. Even if the plaintiff is able to establish that there was a duty owed by the Shire to inspect the building and/or to make a detailed examination of the plans submitted for approval, unless the plaintiff is able to establish the cause of the collapse of the balcony it is difficult to see how the plaintiff could prove, on the balance of probabilities, that any duty owed by the Shire was breached.
The authorities make clear, however, that it is not necessary for a plaintiff to establish a prima facie case of liability on an application under this section of the act to extend time to make a claim (Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373) and it is enough if it appears that the plaintiff's claim is not mala fide, not merely speculative or absurd (Perry v Shire of Armadale (supra) at [30]).
To that end the Shire does not submit that the plaintiff's claim against it is mala fide and, notwithstanding the difficulties to which I have referred above, I am unable to find that the plaintiff's claim is merely speculative or absurd.
Further, counsel for the plaintiff submitted during the course of argument that the builder (Terrence Constructions Pty Ltd) no longer trades and if leave is not granted then the plaintiff will be shut out of any claim he may (effectively) have other than against the first defendant in respect to whom the nature of the plaintiff's claim is materially different from that which it is proposed to be asserted against the Shire.
As a consequence I am of the view that leave ought to be granted to the plaintiff to join the Shire as a third defendant in this action.
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