El Abdallah v Crisafi and McLaren (trading as Chemist Warehouse DC Campbellfield)
[2024] VCC 1314
•28 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-00252
| DEMOUH EL ABDALLAH | Plaintiff |
| v | |
| BRUNO CRISAFI and KATHY McLAREN (t/as CHEMIST WAREHOUSE DC CAMPBELLFIELD) | First Defendant |
| PROVINCA PROPERTY GROUP PTY LTD | Second Defendant |
| SERACON INVESTMENTS PTY LTD | Third Defendant |
| HUME PROPERTY GROUP PTY LTD | Fourth Defendant |
| CITINOVA PTY LTD | Fifth Defendant |
| OWNERS CORPORATION 1, PS617695V | Sixth Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2024 | |
DATE OF JUDGMENT: | 28 August 2024 | |
CASE MAY BE CITED AS: | El Abdallah v Crisafi and McLaren (trading as Chemist Warehouse DC Campbellfield) and Ors | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1314 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Wrongs Act 1958 (Vic); County Court Act 1958 (Vic); Corporations Act 2001 (Cth); Acts Interpretation Act 1901 (Cth); Evidence Act 1995 (Cth); Evidence Act 2008 (Vic); Interpretation of Legislation Act 1984 (Vic); Owners Corporations Act 2006 (Vic)
Cases Cited:Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281; Phelan v Melbourne Health [2019] VSCA 205; In the Matter of Kornucopia Pty Ltd (No 1) [2019] VSC 756; Jones v Dunkel (1959) 101 CLR 298; Hope v Hope (1854) 4 De GM & G 328; Pino v Prosser [1967] VR 835
Judgment: 1. Within 14 days of this day the parties must bring in short minutes to give effect to these reasons.
2. Costs are reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Seelig | Slater and Gordon |
| For the First Defendants | HWL Ebsworth Lawyers | |
| For the Second, Third, Fourth and Fifth Defendants | Mr D A Ferrari | Oakley Thompson & Co |
| For the Sixth Defendant | Ms C Sluiter | Terrill & Holmes |
HIS HONOUR:
Background
1By her amended statement of claim dated 28 February 2023 (hereafter referred to as the “statement of claim”), Ms Demouh El Abdallah sought damages against the first defendants, Mr Crisafi and Ms McLaren, as the proprietors of Chemist Warehouse DC Campbellfield and as occupiers of premises at 1463 Sydney Road, Campbellfield, together with its car park “in front of and adjoining the pharmacy store”.
2She also sought damages against the second defendant, Provinca Property Group Pty Ltd, which was said also to be an occupier of the premises, as well as Seracon Investments Pty Ltd, another occupier of the premises, together with Hume Property Group Pty Ltd, also said to be an occupier of the premises, and Citinova Pty Ltd, which was also alleged to be an occupier of the premises. Each of those defendants was alleged to be “responsible for the care, maintenance and control of the premises”.
3The sixth defendant, Owners Corporation 1, PS617695V, apparently the owners corporation for a subdivision affecting the premises, was added as a sixth defendant on the basis that it was the “owner of the premises” and an occupier thereof (presumably a reference to the common property in the subdivision) and also said to be “responsible for the care, maintenance and control of the premises”.
4Paragraph 6 of the statement of claim said that on 26 July 2019 Ms El Abdallah was “lawfully present at the Chemist Warehouse pharmacy as a customer for the purposes of shopping”, and according to paragraph 7 exited the pharmacy and “was walking down the ramp/premises toward her car, when her left foot slid forward on the wet ramp, causing her to fall heavily onto her backside [sic], thereby suffering injury.” Each of the defendants were alleged to have been in breach of duty to Ms El Abdallah with respect to her injury. She sought damages for injuries said to have been sustained to her:
· left hip
· left quadratus impingement/ischiofemoral impingement
· left buttock
· lower back
· sleep disturbance
· pain and suffering. (Court Book (“CB”) 25)
5By their defence dated 2 May 2022, the second, third and fifth defendants made a series of admissions and denials. In particular, at paragraph 7A they said that:
“the ramp is located on common property No 1, as shown on the Plan of Subdivision, and not on the Land.”
6By paragraph 2A of the defence, these defendants said that:
“the pharmacy store is situated on part of the land known as Unit 1, 1473 Sydney Rd, Campbellfield Victoria (the Land) ...”
7They referred to the relevant plan of subdivision, and asserted further in paragraph 2B that the land was affected by a number of leasing documents, including a 2009 lease, a deed of variation dating from 2015, an assignment and variation made 1 April 2019, and a renewal of lease dated 1 December 2020. (CB pages 14-17)
8By its defence dated 14 March 2023 the fourth defendant made a series of admissions and denials, alleging inter alia that if Ms El Abdallah had suffered injury, loss and damage, her contributory negligence had contributed to such injury, loss or damage. (Paragraph 17) It also admitted that Ms El Abdallah:
“has satisfied the threshold requirements as set out in Part VBA of the Wrongs Act 1958 ...” (CB 30-32, paragraph 15)
9By its defence dated 1 May 2023 the sixth defendant, the owners corporation, made a series of admissions and denials. It alleged:
“if the matter [viz, the accident alleged to have injured Ms El Abdallah] occurred as alleged, there was contributory negligence by the plaintiff ...” (CB 35-37, paragraph 16)
10The defence to the amended statement of claim filed on behalf of the first defendants – the proprietors of the pharmacy business – made a series of admissions and denials, and alleged contributory negligence. More pertinently, at paragraph 15 the first defendants said that:
“(a)Part VBA of the Act [that is, the Wrongs Act 1958] is applicable to the plaintiff’s claim;
(b) the plaintiff is not entitled to recover damages for non-economic loss unless she has suffered a significant injury within the meaning of Part VBA of the Act;
(c) a Medical Panel determined on 23 June 2021 that the degree of whole person impairment resulting from the injury to the plaintiff alleged in the claim does not satisfy the threshold level prescribed by section 28LB of the Act; and
(d) the plaintiff, therefore, has not suffered a significant injury within the meaning of Part VBA of the Act and is not entitled to recover damages for non-economic loss.” (CB 39-41, paragraph 15)
11In her reply to the second, third and fifth defendants’ defence, dated 4 March 2024, Ms El Abdallah alleged that on 31 March 2021:
“the Plaintiff [presumably the solicitors acting for her] sent by post to the Second and Third Defendants a certificate of assessment of Mr Craig Mills dated 6 January 2021”
as well as the prescribed information pursuant to s28LT of the Wrongs Act 1958, and that by 31 May 2021, neither the Second or Third Defendants responded in writing to those documents in accordance with s28LW of the Act, and accordingly, pursuant to ss(4) of that section, were “deemed to have accepted the assessment of Mr Craig Mills dated 6 January 2021”. She made a similar reply to the defence of the sixth defendant on 4 March 2024.
Statutory framework
12Part VBA was added to the Wrongs Act 1958 by amendment made in 2003. It is headed “Thresholds in relation to recovery of damages for non-economic loss”.
13In the 1980s, Parliament restricted the ability of those alleging injury either in road accidents or workplace accidents to recover damages for non-economic loss, save where such claimants could establish that they had suffered a “serious injury” as defined: see Accident Compensation Act 1985 and Transport Accident Act 1986. For almost two decades thereafter there were no similar restrictions on the ability of persons seeking to recover damages for personal injury occurring in other circumstances. The introduction of Part VBA to the Wrongs Act 1958 in 2003 established a similar regime for injuries suffered outside the well-established categories of the workplace and the public highway, but in materially different terms.
14Section 28LE provides:
“A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.”
15Section 28LF makes relatively elaborate provision as to what constitutes a “significant injury”. One of the modes of establishing that a plaintiff has suffered a “significant injury” is to show that, in accordance with s28LF(1)(a):
“the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5”.
16Section 28LN provides for the grant of such certificates of assessment in the following terms:
“(1)Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
(2) The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(3) If not all the injuries to a person have stabilised, a certificate of assessment can only be provided under this section in respect of the person if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.”
17Section 28LWE provides that a:
“respondent [which would include the defendants in this proceeding or any of them] on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part—
(a) within 60 days after receiving the certificate and the required information under section 28LT”.
18Section 28LT provides for service by a claimant for damages of a copy of the certificate of assessment given under s28LN on a “respondent” together with the prescribed information.
19Section 28LW gives a “respondent” such as the defendants in this proceeding 60 days to respond to the certificate after its receipt, and by ss(4):
“If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.”
20This proceeding stands fixed for trial in November. The plaintiff relies on a document styled “Claimant prescribed information form”, being Form 4 under Regulation 8 pursuant to s28LT(2) of the Wrongs Act 1958 dated 31 March 2021 covering an assessment by Mr Craig Mills dated 6 January 2021, whereby Mr Mills opines that Ms El Abdallah’s injuries meet the “threshold” for significant injury under Part VBA of the Wrongs Act 1958. (Exhibit C, CB 67-77) Via her counsel, Mr Seelig, she contends that she has secured a deemed acceptance of Mr Mills’ decision such that she is entitled to pursue her claim for non-economic damages against each of the second to fourth defendants by reason of “deemed acceptance” by the second and third defendants in failing to respond to service upon them of the notice of assessment, and an actual admission on the part of the fourth defendant. Mr Seelig concedes that there is no acceptance or deemed acceptance of the assessment relative to the fifth defendant. He contends there exists a “deemed” acceptance of the assessment by the sixth defendant, the body corporate.
21The effect therefore is that if Ms El Abdallah’s contentions are accepted, the trial will proceed upon the basis that whilst she is precluded from pursuing non-economic damages as against the first defendants or the fifth defendant, she is at liberty to seek those damages against the second to fourth and the sixth defendant. The surprising consequence in which the same plaintiff seeking redress for the same personal injury is entitled to recover non-economic loss against some defendants but not others is the consequence of the structure and effect of Part VBA as interpreted by the Court of Appeal in Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281. This means that one and the same injury to one and the same plaintiff will be regarded as “significant” for the purposes of Part VBA as against some defendants but not as against others.
22On the plaintiff’s case, the findings of the Medical Panel absolve the first defendants from any liability for non-economic loss. Counsel for the second to fifth defendants, Mr Ferrari, contended that as regards the second, third and fifth defendants there was no deemed acceptance of Mr Mills’ assessment. He sought leave to withdraw the admission made on behalf of the fourth defendant that the “threshold” requirement of Part VBA had been met.
23Counsel for the sixth defendant, Ms Sluiter, likewise contended that there had been no service of Mr Mills’ assessment on her client at least until June 2024, at which time it sought referral of the issue of the plaintiff’s impairment to a Medical Panel.
Factual issues
24Mr Seelig relied on a number of affidavits filed on behalf of the plaintiff. First, an affidavit of Ms Muscara. (Exhibit C, CB 57-139)
25Ms Muscara, who describes herself as a legal assistant in the employ of the plaintiff’s solicitors Slater and Gordon, though on maternity leave at present, said that as at 31 March 2021 she was employed as a receptionist at Slater and Gordon’s Epping office. This was during the period of COVID “lockdown”. In viva voce evidence she said she attended the Epping office five days per week, and her duties then included “the sending of letters to various people and entities, including letters serving formal notices under the Wrongs Act (“WA Prescribed Information Material”)”. (CB 97, paragraphs 1-5) She said that in the period from October 2019 to 31 March 2021 she estimated that she “sent out approximately 20 to 30 letters on average each day”. She described her usual practice as follows:
“a.Read the email when I received it and confirm whether it was requesting me to send out a single letter or multiple letters;
b. Print out all of the letters and any attachments;
c. Read the instructions about postage to check whether each letter could be sent by ordinary post or needed to go by registered post;
d. If it needed to be sent by registered post, I would obtain an Australia Post ‘Registered Post’ sticker from the office stationary drawer which I would attach to the relevant envelope;
e. I would fold the letter and/or place the letter, including any attachments, into an envelope.
f. I then sealed the envelope and put a stamp on it or if pre/paid registered post, no stamp was necessary
g. I then placed the sealed envelope into the outgoing mailbox located at reception in the office.
h. If there was more than one letter required to be sent as part of any matter at that time, I would send all of the letters as part of the same process. I would not send some letters on one day, and others on another day.
i. If the letter was required to be sent by registered post, it was my usual practice, after I had completed the task, to convey that tracking number to the person who had asked me to post the documents.” (CB 57-58, paragraph 7)
26At 12.37pm on 31 March 2021, Ms Kellie Wright, a legal assistant now a legal practitioner in the sole employ of Slater and Gordon, sent her five attachments by email covering the assessment and prescribed information for service on the then five defendants. The email asked Ms Muscara:
“Can you please print and send out each of these five ltrs via registered post?
I would be grateful if you could pls provide me with the tracking number for each letter.” (CB 63)
27A few minutes later, at 12.44, Ms Wright sent a follow-up email stating:
“Can you hold off sending these for the moment pls.
I have to speak to Lily about something. I will re-send if I need you to.
Thank you!!” (CB 64)
28Later that afternoon Ms Muscara received a further email at 3.42pm covering the same attachments and requesting them to be printed out and sent by registered post. Ms Wright asked to be provided with the tracking number “for each letter”. (CB 64) Ms Muscara said:
“Although I have no recollection of arranging these specific letters to be posted, I have no reason to doubt that I would have followed the instructions given to me to send out the letters and attachments. However, I cannot recall what I did with the tracking numbers.” (CB 59, paragraph 18)
29Mr Seelig also relied on an affidavit from the practitioner at Slater and Gordon in charge of the matter at that time, Ms Wright. (Exhibit D, CB 140-280) As at 31 March 2021, Ms Wright said that she had “been a Legal Assistant with the Firm [Slater and Gordon] for approximately 6 years.” (CB 140, paragraph 3) She said that as at 27 January 2021 she carried out ASIC searches of the then four corporate defendants. (CB 141, paragraph 8) The registered office in each case was “C/- SP Solutions Pty Ltd, Suite 201, Level 2, 1473 Sydney Road, CAMPBELLFIELD VIC 3061”, save for the fifth defendant, Citinova Pty Ltd, whose registered office was shown as “ ‘Hume Business Centre’, Suite 201, Level 2, 1473 Sydney Road, CAMPBELLFIELD VIC 3061”. According to Ms Wright, the “stop” which she placed on the initial dispatch of the relevant material occurred because she “realised that the first defendants’ name and address details were incorrect”. (CB 142, paragraph 16) She said the further dispatch of material entailed the correction of the first defendants’ address, with materials redispatched at 3.42pm. (Ibid, paragraph 17) According to Ms Wright, on the same day she:
“emailed Mr Gibson, of Vero Insurance, a copy of the WA Prescribed Information Material addressed to the Fourth Defendant, Hume Property Group Ltd. This was in light of Mr Gibson’s email of 19 February 2021 in which he identified the Fourth defendant as the relevant owner of the property and requested that future correspondence be directed to him.” (CB 142-3; CB 233-244)
30The notice addressed to Citinova Pty Ltd was returned to sender, 18 June 2021. (CB 268)
31At 5.49pm, Mr Bell of HWL Ebsworth, apparently on behalf of the first defendants, sent an email to Ms Wright stating:
“Thanks for your email earlier today.
Are you able to tell me if any of the other respondents have appointed lawyers and, if so, who?”
32Ms Wright had sent an email to Mr Bell at 3.52pm, stating inter alia:
“I confirm that I have been instructed to serve your client with a Certificate of Assessment pursuant to s28LT of the Wrongs Act 1958 (Vic).
I enclose, by way of courtesy, a copy of the documents served on your client.” (CB 259)
33As previously noted, the solicitors for the first defendants sought and obtained a referral to the Medical Panel. Ms Wright said:
“I did not receive a copy of the tracking information from Ms Muscara, and it appears due to an oversight on my part I did not follow up Ms Muscara for those details. I have since learned that the tracking information was not stored or retained in the usual way.” (CB 143, paragraph 21)
34Mr Seelig also relied on an affidavit from a Ms Meliza Ludowyke (Exhibit E, CB 281-371) which was generally supportive of the narrative given by Ms Muscara and Ms Wright. Ms Ludowyke expressed these views based on having:
“reviewed the Plaintiff’s file regarding the service upon the Defendants of the section 28LT Wrongs Act materials.” (CB 288, paragraph 4)
35Ms Ludowyke swore a second affidavit dated 2 August 2024. (Exhibit F, CB 417-463) She produced a search report from the Department of Environment, Land, Water & Planning described as “Owners Corporation Search Report” produced 12 April 2022, showing the postal address for service of notices of the sixth defendant, the owners corporation, as “Suite 201 Level 2 1473 Sydney Road CAMPBELLFIELD VIC 3061”. (CB 435-6) She produced tracking information for registered post dated 30 August 2022 for “Owners Corp”, though the printout of the tracking number did not include an address. (CB 437) Ms Ludowyke said:
“I have reviewed the file and noted that the letter and enclosures exhibited was addressed to Sixth Defendant at their Postal Address For Services of Notices, according to their Owners Corporation Search Report.” (CB 416, paragraph 8)
36Ms Ludowyke said that she had been told by one of the receptionists from the Epping office that following the closure of Slater and Gordon’s Reservoir office and relocation to Epping the postal regime had been varied:
“whereby we now use a form which would be signed by a member of staff (usually a receptionist) to record outgoing mail. This form is then signed by the Australia Post representative upon collection.”
37She said the relevant document was signed by the Australia Post representative. (CB 417, paragraph 10)
38The issue as to whether or not service had been effected upon the second to fifth defendants of the assessment by Mr Mills was referred to me for hearing as a separate issue on 23 August 2024.
Contentions on behalf of second to fifth defendants
39Mr Ferrari, on behalf of the second to fifth defendants, sought to rely upon an affidavit by Ms Rinella Calzone sworn 20 August 2024. Ms Calzone deposed that she was a property manager of the company Citinova Management Services Pty Ltd. This is a different company from the fifth defendant, though it is presumably related thereto. She deposed to her understanding as to how the registered office kept by the third, fourth and fifth defendants at the accountancy office of SP Solutions would have been conducted. I upheld an objection on behalf of the plaintiffs to the receipt of that affidavit, on the basis that whilst it made assertions as to what might be the usual practice relative to the conduct of registered offices by the accountants, it disclosed no direct means of knowledge of those matters, nor any hearsay connection to the accountants: viz that the accountants had informed Ms Calzone and that she “verily believed” what she had been told.
40Mr Seelig conceded on behalf of the defendants, however, that Ms Calzone had not received the certificate of assessment at the material time on behalf of the relevant defendants or at all. (CB 474-545)
41Having surveyed the statutory framework established by Part VBA of the Wrongs Act, Mr Ferrari said:
“The Second, Third, Fourth and Fifth Defendants submit the current proceeding should be stayed pursuant to s28LZMA of the Wrongs Act.” (CB 468, paragraph 23)
42He noted the concession on behalf of the plaintiff that the fifth defendant had not been served, continuing:
“As a result, the Plaintiff’s claim should be stayed against the Fifth Defendant until it is properly served with the COA Documents.” (CB 468, paragraph 24)
43As regards the fourth defendant, he said that this defendant’s admission as to the meeting of the threshold ought not to be treated as an admission that it had been served with the relevant material. This admission was made, he said, when the fourth defendant was separately represented, and was now contrary to instructions. He contended that leave ought be granted for the withdrawal of the admission. (CB 469)
44Ms Sluiter’s contention, as previously reserved, was that this issue should be seen through the prism of the Court’s Rules. The Court’s Rules are made pursuant to s78 of the County Court Act 1958. That section grants “a majority of the judges” power to make rules as to a wide variety of matters.
45Failure of service of the assessment notice as regards the fifth defendant was conceded. As regards the fourth defendant, he said that its admission that Ms El Abdallah “has satisfied the threshold requirement set out in Part VBA of the Wrongs Act” was ambiguous. He said it ought not to be regarded as an admission that the service requirements “under s28LT” had been satisfied. (Closing submissions, paragraph 26) If the admission were regarded as covering this latter matter, he said:
“Should it be necessary, the Fourth Defendant will seek leave to amend its Defence to withdraw the admission. It was an admission made when the Fourth Defendant had different representation. The Fourth Defendant is unaware why this admission has been made but it is now contrary to its instructions.” (Closing submissions, paragraph 27)
46Mr Ferrari conceded that documents could effectually be served upon a company by posting them to the company’s registered office. He referred to s109X of the Corporations Act 2001 and s29(1) of the Acts Interpretation Act 1901 (both Cth enactments). He referred also to s160(1) of the Commonwealth Evidence Act 1995 and the Victorian Evidence Act 2008 which creates a presumption:
“that a postal article sent by prepaid post addressed to a person at a specified address in Australia ... was received at that address on the seventh working day after having been posted”.
which presumption operated:
“unless evidence sufficient to raise doubt about the presumption is adduced”.
47Mr Ferrari contended that the evidence relied on by the plaintiff was insufficient to trigger this statutory presumption. He noted that Ms Muscara referred to instructions which she had received from Ms Kellie Wright, also an employee of the plaintiff’s solicitors, and continued:
“However, she does not depose to any direct knowledge or memory as to having mailed those items. Instead, Ms Muscara relies upon her usual practice when receiving a request to send out such information.” (Closing submissions, paragraph 32)
48The key assertion in that regard was paragraph 18 of Ms Muscara’s affidavit. He noted, however, that the plaintiff could adduce no record of the tracking number, despite their retention being part of the usual practice deposed to by Ms Muscara and despite the request or direction from Ms Wright that she (Ms Wright) be provided with the tracking numbers for the letters. Since the “usual practice” was not followed in this regard, Mr Ferrari said the Court should have “no confidence that [Ms Muscara], in fact, followed the remainder of those practices”. He said the “failed delivery” to the fifth defendant was an insufficient basis to raise the presumption. (Closing submissions, paragraph 37) He noted the concession that Ms Calzone of the property management company did not receive the relevant document. This concession, he said, was sufficient to rebut the presumption of delivery. Therefore, said Mr Ferrari, the proceeding as against his clients ought to be stayed “until the plaintiff properly serves the [assessment] Documents”. (Closing submissions, paragraph 42)
49Mr Ferrari cross-examined Ms Muscara upon the affidavit which she had sworn, bringing out and highlighting in the course of his cross-examination the matters upon which he relied and the deficiency he said existed in the plaintiff’s proofs.
Sixth defendant’s contentions
50Ms Sluiter, counsel for the sixth defendant, broadly endorsed Mr Ferrari’s critique of the plaintiff’s contention that she had served all defendants with the impairment assessment.
51Ms Sluiter summarised the law as to service through the prism of the Court’s Rules, specifically Order 6 thereof. She referred to s49(2) of the Interpretation of Legislation Act 1984 and s60(1) of the Evidence Act 2008. She said that in so far as the plaintiff relied on “systems and inferences that the letter would have been sent as addressed and requested”, there is no evidence that it actually was. (Closing submissions, paragraph 39) She said the plaintiff had “failed to produce evidence sufficient for the Court to draw an inference of ‘deemed’ service within the provisions of s49 of the Interpretation of Legislation Act 1984.” (Ibid, paragraph 40). She said there was no evidence which could lead to a finding that there was an envelope with her client’s correct name and address which contained the certificate of assessment letter and the serious injury material, bore the correct cost of postage, and was placed in the post. Even if these inferences were drawn, she said, the evidence of Ms Calzone provided a sufficient basis:
“on which an inference is open that the most likely scenario, was that the Certificate of Assessment Letter was not, in fact, delivered to the Sixth Defendant until 21 June 2024, when it was sent to Mr Holmes [the sixth defendant’s solicitor] by email.” (Ibid, paragraph 45)
52She said that a finding should be made that no service of the relevant material had been effected on her client until 21 June 2024.
53Ms Sluiter, in her oral presentation, said:
“Those addresses can be seen to be the same address to which the sixth defendant’s material was sent, and that address is – and the annexure to Mr Homes’ affidavit at MH1. There is no evidence that there was personal service. We do not say that there ought to have been personal service, but personal service could have overcome this problem. There could have been an affidavit of service.” (Transcript (“T”) 78, Lines (“L”) 8-15)
54Ms Sluiter said that even if “delivery” were to be inferred:
“It does not show delivery to an address. Because there were multiple tenants at this building, it is possible that the mail was simply left. Someone else might have taken it, it could have blown away in the wind. It could have been lost in the post, it could have been collected by another tenant.
So there are other inferences available, and in the face of the 6th defendant’s property manager coming along and saying, ‘We have procedure, that procedure, in my experience, was reliable. I didn’t receive it’, the strong inference for Your Honour on our case is that Your Honour should find that there simply was not delivery to the 6th defendant and therefore not service, and therefore there cannot be any deeming of a serious injury against the 6th defendant pursuant to the provisions of the Wrongs Act.
As I said before, we concede that the service was in fact and that is the informal service provision under the County Court Rules, and we have made appropriate referrals as a consequence of that.” (T79, L23 – T80, L11)
Plaintiff’s contentions
55Mr Seelig, on behalf of the plaintiff, filed a lengthy written outline of contentions and elaborated upon them in the course of his presentation to the Court. He surveyed the statutory framework and the provisions as to service on corporations and service by post. As regards all of these matters, there was no substantial disagreement between him and counsel for the defendants. Rather, the basis for his contention that, contrary to what was said on behalf of the defendants, the plaintiff should be regarded as having effected service as deposed to by the plaintiff’s witnesses, was based upon the proper inferences to be drawn from the proven facts.
56Since no witness for the plaintiff could distinctly swear to a recollection of dispatching the assessment materials by prepaid post, the plaintiff relied on evidence as to her solicitor’s “usual practice”. According to Mr Seelig, evidence in that respect was admissible and was available to the Court and might properly be preferred to distinct denials based upon apparently specific recollections to the contrary. He referred to a decision of the Court of Appeal in Phelan v Melbourne Health [2019] VSCA 205 [79]-[84]. He also placed particular reliance on a decision of In the Matter of Kornucopia Pty Ltd (No 1) [2019] VSC 756 per Sifris J which was also cited and relied upon by Ms Sluiter in support of her contention that either no inference of delivery ought be drawn or that an inference of non-delivery should be made. Mr Seelig relied in particular on [44] and [46].
Conclusions
57It is highly regrettable that so much time, industry, and costs have been incurred arguing over technicalities remote from the substantial merits of this dispute, which must be regarded as residing in the circumstances of Ms El Abdallah’s fall and the pain and restrictions, if any, which she suffered and which continue to afflict her. Had the plaintiff’s solicitors retained the tracking numbers which their normal practice required to be retained, either proof of service could confidently have been established, or there would have been a basis for enquiry which might have invalidated it. As it is, we are left very much in the realm of inference.
58An important matter to keep in mind is that the postal service provided for in the Corporations Act and the allied inferences to be drawn in accordance with the provisions of the Evidence Act and the Interpretation of Legislation Act relate to proof of delivery to the relevant corporation’s registered office. Once such delivery is established, the person relying on “service” does not have to prove that the relevant documents came to the attention of any particular person. To put it another way, proof simply of the documents not having come to the attention of the relevant corporate officer or officers in itself does not establish non-delivery, though it may lead to such an inference in all the circumstances.
59As to the issue of the probative value of proof of a litigant’s “usual practice”, the Court of Appeal (Tate AP, Kaye JA and Zammit AJA) said in the context of a dispute as to what treatment or advice had or had not been offered by a medical practitioner to the plaintiff in the course of a hospital visit, said:
“[79]As mentioned, the medical practitioners, who attended the applicant while he was an inpatient at the hospital, and during his two visits to the outpatient clinic, were unable to recall the applicant, or to have a specific recollection of the advice that they gave to him. The lack of recollection of those witnesses is understandable, as the trial in the proceeding took place more than five and a half years after the events with which the case is concerned. As a consequence, the medical practitioners were permitted to, and did, give evidence as to their usual practice, and the usual practice of medical practitioners at the hospital, in relation to the treatment given by them to the applicant, and in relation to the advice and information which was given to him concerning his injuries and the treatment options available to him. As part of ground 1, the applicant alleges that the judge erred in preferring the evidence of the ‘usual practice’ of the respondent’s medical staff over the specific evidence of the applicant that he was not given any advice as to the surgical option that was available to him.
[80] It is well established that, in a case such as this, evidence as to usual practice is both admissible, and, on occasions, can be decisive. The relevance and admissibility of such evidence is of long standing pedigree. In Joy v Phillips Mills & Co Ltd, the deceased workman, who was employed by the respondents as a stable boy, was found with a halter in his hand and severely injured in their stable, suffering from a kick behind the ear from a horse. There was evidence that at the time of the accident the workman had no occasion to be in the stable. In addition, there was also evidence that the workman had the habit of teasing horses by hitting them with a halter. That evidence was admitted in the proceeding. The Court of Appeal held that the evidence was admissible and persuasive. Phillimore LJ stated:
Wherever an inquiry has to be made into the cause of the death of a person, and, there being no direct evidence, recourse must be had to circumstantial evidence, any evidence as to the habits and ordinary doings of the deceased which may contribute to the circumstances by throwing light upon the probable cause of death is admissible …
[81] In Eichsteadt v Lahrs, the plaintiff, a cyclist, and the defendant, a motorist, came into collision in an intersection. The plaintiff had no recollection of the accident. A critical issue, at trial, was whether he was riding or wheeling his bicycle at the time of the collision. Evidence was admitted, on behalf of the plaintiff, to establish that he had a usual practice of wheeling his bicycle in the particular location and not riding it. Justice Townley, who heard the trial, admitted the evidence, and relied on it. On appeal, the High Court, comprising Dixon CJ and Windeyer J, agreed that the evidence was admissible and relevant.
[82] In Connor v Blacktown District Hospital, the trial judge rejected, as inadmissible, evidence as to the usual practice of the cleaning staff employed by the defendant hospital. On appeal, the Court of Appeal held that that evidence was relevant and admissible. Asprey JA (with whom Mason JA agreed) stated:
In my opinion, evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence.
[83] Those principles have been applied in a number of subsequent cases, including decisions before and after the introduction of the Uniform Evidence Act. In some cases, the evidence that was given as to the usual practice of a particular person or party was considered to have been of considerable weight. It might be observed that evidence of usual practice has a marked similarity to tendency evidence. Like tendency evidence, the evidence of the usual practice of a party or person is relevant as bearing on the probability of a particular fact in issue in a case. It has not been suggested, in the authorities that have dealt with usual practice evidence since the introduction of the Uniform Evidence Act, that that evidence has been assimilated with, or is identical to, tendency evidence.
[84] It follows that there is nothing which is intrinsic to the evidence of usual practice that necessitates a conclusion, in a particular case, that that evidence may not be preferred, or at least be given equal weight, to contrary evidence given by a witness who has, or professes to have, a specific recollection of the event in question. Plainly, the weight to be given to the evidence of usual practice, and the question whether that evidence is to be preferred, must depend upon the specific nature and quality of the evidence that is given in the particular case.” (Phelan v Melbourne Health [2019] VSCA 205 [79]-[84])
60Ms Muscara was firm in her evidence that she observed Slater and Gordon’s normal practice as regards the dispatch of the material. She produced the form of “window” envelope which she said was employed in accordance with the usual practice and the prepaid sticker to be applied. She gave evidence as to the customary attendance at around 4pm of an Australia Post representative to collect outgoing items. Granted that evidence may not be entirely reliable, in circumstances where Ms Muscara was in receipt of email directions to dispatch the material and one of the items “boomeranged” (the communication to the fifth defendant), no inference ought to be drawn, as defendants’ counsel invited me to do, that the relevant documentation had not left Slater and Gordon’s Epping office addressed to the appropriate office. In accordance with Ms Muscara’s evidence, the firm’s usual practice, the email direction, and the “boomerang” of the notice to the fifth defendant, I infer that the material was dispatched as alleged by the plaintiff to the second to fifth defendants.
61Once that inference is drawn, a further inference of delivery follows unless there are any countervailing considerations that would lead to the contrary inference. In that respect, the analysis by Sifris J (as he then was) in the Kornucopia case is relevant:
“Furthermore, as Colvin J also said in Melking Holdings, ‘[t]he registered office of a company must be a location that accommodates the possibility of service by post’. In Partners of Piper Alderman v Sharjade Pty Ltd, Barrett J said there is, implicit in the statutory regime ‘an expectation that there will be in place at the registered office a system for the safe and secure reception of documents delivered by post.’ In that case, the defendant company’s mailbox was located outside the confines of the registered office itself and of the relevant building, such that it were accessible by anyone passing by and that ‘anything might happen to documents put into a letter box situated on the public walkway’. Non-receipt of the statutory demands would not, therefore, have been a solid foundation upon which an inference of non-delivery could have been drawn. The demand might not have been delivered, or it might have been and then removed from the letter box by any person passing by. There were there, as I said in relation to the scenario in AXF Group, ‘an infinite number of possibilities’ and each of which was ‘equally likely’. Where there are numerous such possibilities, but no evidence tending to suggest which is most likely, the Court may inevitably hold that service (that is, delivery) has been effective, for that is the default position by virtue of the presumption, and no evidence has been adduced to suggest that it has not occurred.” (In the Matter of Kornucopia Pty Ltd (No 1) [2019] VSC 756 [46])
62In oral submissions, Mr Seelig noted that the dispatch of assessment material deposed to on behalf of the plaintiff was seen to be effective as regards the first defendants, because those persons sought and obtained a referral to the Medical Panel. The narrative given above, however, indicates that this material was separately dispatched to a solicitor acting for the first defendants. Accordingly, no firm inference in this regard may be drawn.
63The basis for an inference of non-delivery urged on behalf of the second to fifth defendants was non-receipt of the documentation by Ms Calzone of the property management company. Given that the registered offices of each of the second to fifth defendants was located at the offices of an accountancy practice, SP Solutions, the crucial source of evidence as to non-delivery might be expected to come from someone involved in the receipt of mail at this office. No evidence, viva voce or upon affidavit, in this regard was adduced. A person from the accountant’s office would have been a crucial witness. There was no explanation as to why no evidence was adduced from such a person. In the absence of any explanation, whilst one cannot speculate as to what a representative of the accountant’s firm might have said, I may infer that that evidence would not have been helpful to the defendants’ case: Jones v Dunkel (1959) 101 CLR 298, 308, per Kitto J; and inferences against those defendants may more confidently be drawn.
64In those circumstances I conclude that as regards the second to fourth defendants the certificate of assessment and associated documentation was served as contended by the plaintiff. In light of the plaintiff’s concession, no such service was effected on the fifth defendant.
65As regards all defendants, service was effected this year when the plaintiff’s affidavits, in particular that made by Ms Muscara, were served on the solicitors for the defendants:
“The object of all service is of course only to give notice to the party to whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.” (Hope v Hope (1854) 4 De GM & G 328, 342),
adopted by McInerney J in Pino v Prosser [1967] VR 835, 838-9.
66I turn finally to the situation of the sixth defendant, which is an owners corporation under the Owners Corporations Act 2006 rather than a corporation under the Corporations Act. In her affidavit sworn 2 August 2024, Ms Meliza Ludowyke (Exhibit F) produced an extract from an owners corporation search conducted of the Department of Environment, Land, Water & Planning, showing the sixth defendant’s “postal address for service of notices” as Suite 201 Level 2 1473 Sydney Road Campbellfield VIC 3061 (CB 435). At CB 437 also as part of the annexures to her affidavit she produced tracking numbers for material dispatched to “Owners Corp” in relation to Ms El Abdallah’s case.
67Ms Sluiter observed a lack of particularity as to the address to which this material was sent and precisely what that material was. According to Ms Ludowyke, material was delivered at the nominated address on 5 September 2022 (CB 418, paragraph 12; CB 441) Once again, whilst not nominated as the accountant’s office, this is in fact the address of the accountant’s office. There is no plausible inference as to what, other than the relevant assessment material, might at that stage be being dispatched. The failure on behalf of the sixth defendant to call anyone from the accountant’s office allows the same adverse inference to be drawn against the sixth defendant as I have drawn against the second, third and fourth defendants.
68Section 78 of the County Court Act empowers “a majority of the judges” to make rules as to a large number of things, all of which concern the conduct of proceedings in the court. In so far as the Wrongs Act Part VBA makes provision for the service of certificates of assessment, the right and the duty in certain circumstances to effect such service is placed upon a “claimant”, which expression is defined in s28LB as follows:
“claimant means a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person”.
69The provisions do not suppose necessarily that any proceedings are on foot relative to the injury. In my view therefore it is the general provisions as to service on bodies corporate and provisions as to presumption of receipt of documents sent by mail that govern these issues, rather than the Rules of this Court.
70I conclude therefore that service of the relevant certificate of assessment under s28LT of the Wrongs Act was effected as alleged by the plaintiff, save in respect of the fifth defendant.
71As regards the admission by the fourth defendant that the plaintiff’s injuries meet the “threshold”, I agree with Mr Seelig that any question of withdrawal of that admission should be made on the basis of a separate application supported by appropriate affidavit material.
Disposition
72There is no occasion in the circumstances to stay the proceeding or vacate the scheduled trial. No non-economic damages may be recovered from either of the first defendants or the fifth defendant. I will direct the parties to bring in short minutes to give effect to these reasons.
Costs
73I have heard no submissions on the question of costs, and so I will reserve them.
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