Foster v QBE Insurance (Australia) Ltd - [2008] NSWSC 1004

No judgment structure available for this case.

CITATION: Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004

HEARING DATE(S): 19 August 2008

JUDGMENT DATE :
26 September 2008

JUDGMENT OF: Fullerton J

DECISION: 1. The notice of motion is dismissed.
2. The defendant to pay the plaintiff’s costs.

CATCHWORDS: LIMITATION OF ACTIONS - limitation period under Div 6 of the Limitation Act - construction of ss 50C and 50D - whether plaintiff knew or ought to have known the identity of party at fault - test to be applied - negligence

LEGISLATION CITED: Civil Liability Amendment (Personal Responsibility) Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Uniform Civil Procedure Rules 2005

CASES CITED: Antoni v SRA (No 2) [2006] NSWDC 133
Baker-Morrison v State of New South Wales [2008] NSWDC 129
Bet v UTS Haberfield Club Limited (Elkaim DCJ, 18 June 2008, unreported)
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541
Caven v Women’s and Children’s Health [2007] VSC 7
Country Waste Systems Pty Limited v Wright [2007] NSWDC 287
Frizelle v Bauer (McGrowdie DCJ, 27 November 2007, unreported)
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gordon v NSW Insurance Ministerial Corporation [2006] NSWSC 350
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Ozturk v NSW Department of Housing (McGrowdie DCJ, 24 August 2007, unreported)
Perez v Instant Access Australia Pty Limited [2007] NSWDC 182
Rawle v South State Industrial Supplies Pty Limited (Goldring DCJ, 17 April 2008, unreported)
Telstra Corporation Limited v Albert John Rea [2002] NSWCA 49
Toppin v Cole Myer Ltd [2007] NSWDC 256

TEXTS CITED: D A Ipp, Review of the Law of Negligence: Final Report (2002) [Canberra], Commonwealth of Australia

PARTIES: Wendy Lorraine Foster (Plaintiff)
QBE Insurance (Australia) Limited (Defendant)

FILE NUMBER(S): SC 2007/20417

COUNSEL: AJ Bartley SC/F Tuscano (Plaintiff)
DS Weinberger (Defendant)

SOLICITORS: Porters Lawyers (Plaintiff)
McCabe Terrill Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

FULLERTON J

26 SEPTEMBER 2008

2007/20417 WENDY LORRAINE FOSTER v QBE INSURANCE (AUSTRALIA) LIMITED
JUDGMENT

1 HER HONOUR: By statement of claim dated 2 April 2008, and bearing file number 20417/07, the plaintiff claims that on or about 13 November 2003 she was injured as a consequence of the provision of an unsafe system of work, plant and equipment for which NAIQ Pty Ltd (NAIQ) was responsible as the lessee and occupier of premises owned by Rockdale Beef Pty Ltd (Rockdale Beef) and operated by them as an abattoir.

2 She also claims that for a period in excess of three years leading up to the date of injury she was required to perform her duties at the premises leased to, and occupied by, NAIQ whilst exposed to the same unsafe system of work and work practices that ultimately resulted in her sustaining injury on the stated date.

3 QBE Insurance (Australia) Limited is insurer of NAIQ Pty Ltd (in liquidation). It was voluntarily wound up on 15 May 2007 and is under external administration.

4 The plaintiff made application for leave to commence proceedings against QBE pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 in circumstances where earlier proceedings, commenced by a statement of claim on 19 October 2006 and bearing file number 20413/06, named Rockdale Beef as the first defendant. QBE Workers Compensation (New South Wales) Pty Ltd, the Workers Compensation insurer for Riverina Agency Contracting Services Pty Ltd (RACS) (in liquidation), consented to being joined as the second defendant. In those proceedings it is the plaintiff’s case that she worked in the boning room at the abattoir pursuant to arrangement between RACS and Rockdale Beef and since control, management and supervision of the abattoir was maintained by Rockdale Beef Pty Ltd as the owner of the abattoir, they were liable in negligence for her injury. In those proceedings Rockdale Beef filed a defence on 27April 2007 and has joined NAIQ as a cross-defendant.

5 On the application for leave to commence proceedings against QBE as the public liability insurer for NAIQ, the plaintiff maintained that it was only when Rockdale Beef filed its defence to the earlier proceedings and claimed that responsibility for the system of work in the boning room rested with NAIQ, that she was aware of the liability, or the potential liability, of that entity as a tortfeasor, or a joint tortfeasor.

6 In granting leave Malpass AJ ordered that the evidence in one proceeding be evidence in the other.

The relief sought by notice of motion

7 By notice of motion filed on 23 May 2008, QBE seeks an order that the plaintiff’s statement of claim be dismissed pursuant to s 50C(1)(a) of the Limitation Act 1969.

8 Schedule 4.6 of the Civil Liability Amendment (Personal Responsibility) Act 2002 inserted Division 6 in the Limitation Act effective from 6 December 2002. Leaving to one side causes of action resulting in death, s 50A provides that Division 6 applies to causes of action where:

“…the act or omission alleged to have resulted in the injury with which the claim is concerned occurs on or after the commencement of this Division…”

9 Where the relevant act or omission occurs after that date, a cause of action for damages (which is not a survivor action as defined) must be commenced within what is statutorily defined in s 50C(1)(a) as a three-year post discovery limitation period. There is no discretion to extend that period. The Limitation Act continues to apply to cases where the relevant act or omission occurs before 6 December 2002. In those cases s 18A in Division 2 of the Act and s 58 in Division 3 of the Act operate to fix a three-year limitation period which may be extended in the exercise of discretion.

10 The defendant submitted that as the plaintiff suffered a severe injury to her back on 13 November 2003, her cause of action in negligence is subject to Division 6 and, that on the proper construction of s 50C and s 50D and the evidence led in support of the motion, the post discovery limitation period has expired. Independent of submissions to the contrary, the plaintiff emphasised that the statement of claim also alleges that NAIQ’s liability for the provision of an unsafe system of work preceded the date of injury and, to the extent that the evidence in a substantive hearing reveals that this resulted (or contributed) to her injury, part of her cause of action may well be amenable to an application for an extension of time under Division 3 of the Limitation Act. No application had been made as at the date of the hearing of the defendant’s motion.

11 Neither party took the opportunity to develop in argument how the different statutory approaches to the fixing of a limitation period in Divisions 3 and 6 of the Limitation Act should be construed, and how any resulting limitation period should be applied in circumstances where, on one view of the pleadings, the act or omission which resulted in the plaintiff’s injury was a continuing one. It was submitted by the plaintiff that for this reason alone the statement of claim should not be dismissed. The defendant submitted that the issue potentially raised by the pleadings is purely hypothetical and that I should disregard it as the plaintiff has made no application for an extension of time and where the evidence bearing on the question has not been assembled.

12 Although I am relieved of having to decide the question, its resonance cannot be ignored entirely since the defendant seeks relief on the basis that the entire pleading should be dismissed pursuant to s 50C(1)(a) of the Limitation Act.

Division 6 of the Limitation Act 1969

13 Section 50C provides as follows:

Limitation period for personal injury actions

by the plaintiff,

14 Section 50D(1) makes it plain that a cause of action is discoverable by a person on the first date that the person knows or ought to know each of the following facts:

“(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.”

15 Section 50D(2) provides, relevantly, that a person ought to know of a fact at a particular time if the fact would have been ascertained by that person had the person taken all reasonable steps before that time to ascertain that fact and, in determining that question, the court may have regard to the conduct and statements, oral or in writing, of that person.

16 Having regard to the way that Division 6 is framed I am satisfied that “the person” referred to in s 50(1) and (2) is “the plaintiff” as provided for in s 50C(1)(a). It would appear that the only reason that “the plaintiff” is not used consistently in each of the operative provisions is that s 50D applies for all purposes under the Division and s 50C(2) expressly refers to states of knowledge of persons other than the plaintiff.

17 Although there have been no decisions of this Court where the construction of s 50C and s 50D have been considered, a number of decisions of the District Court have considered the application of the sections 50C(1)(a), (b) and (c): see Antoni v SRA (No 2) [2006] NSWDC 133; Country Waste Systems Pty Limited v Wright [2007] NSWDC 287; Perez v Instant Access Australia Pty Limited [2007] NSWDC 182; Ozturk v NSW Department of Housing (McGrowdie DCJ, 24 August 2007, unreported); Toppin v Cole Myer Ltd [2007] NSWDC 256; Frizelle v Bauer (McGrowdie DCJ, 27 November 2007, unreported); Bet v UTS Haberfield Club Limited (Elkaim DCJ, 18 June 2008, unreported); Rawle v South State Industrial Supplies Pty Limited (Goldring DCJ, 17 April 2008, unreported). In Baker-Morrison v State of New South Wales [2008] NSWDC 129, Johnstone DCJ referred to each of these decisions in detail. I have been greatly assisted by his Honour’s analysis.

18 In Baker-Morrison v State of New South Wales, his Honour took the view that the proper application of s 50C and s 50D ought be viewed in light of the intention of the legislature in passing the amending legislation. In that regard he referred to what McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 at 553:

“…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.”

19 Consistent with that approach and with recommendations of the Ipp Report (D A Ipp, Review of the Law of Negligence: Final Report (2002) [Canberra], Commonwealth of Australia), his Honour was of the view that the legislature has abandoned the use of the accrual of the cause of action as the commencement date from which the limitation period is to run, in preference for a discoverability test which fixes a period of three years within which proceedings should be instituted and, that properly construed, s 50C and 50D do not set a date beyond which a plaintiff cannot bring proceedings but rather they set a date from which a three-year period commences to run.

20 It is important to note that the Limitation Act does not define the term “fault” as a discoverable fact under s 50D(1)(b). The same observation was made by Kaye J in Caven v Women’s and Children’s Health [2007] VSC 7 when considering s 27F(1)(b) of the Limitation of Actions Act 1974. In that connection his Honour said at [56]:

“The Act does not define the term “fault”. In some other contexts, such as s 5(1A), it uses a different phrase, namely “act or omission”. It is arguable that the use of the different term “fault” evinces a legislative intention that the plaintiff must know, or ought to know, not simply of the existence of the act or omission which caused the injury, but also that the injury was caused by a legal wrong. However, it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights…”

21 The construction which his Honour ultimately adopted (and with which Johnstone DCJ concurred) was to construe the word “fault” in s 50D(1)(b) to mean act or omission such that, as a discoverable fact, it related to “the time at which the plaintiff knew, or ought to have known, that there was a causative link between the defendant’s conduct and the injury suffered”. I propose to adopt the same construction. Since there is nothing in the statutory language to qualify the fact of a causal connection by terms such as sole, dominant, direct or proximate, for the purposes of determining whether relief should be granted, it is sufficient if the defendant establishes that the plaintiff knew or ought to have known that NAIQ was one of the entities arguably responsible for health and safety of independent contractors in the boning room or at the abattoir.

22 On the hearing of the motion it was common ground that this was the single issue for determination, the resolution of which would determine whether the three year post discovery limitation had expired as at the date of the filing of the statement of claim. The remaining matters bearing on that question, namely knowledge of the fact that the injury had occurred, as provided for in s 50D(1)(a), and that it was sufficiently serious to justify the bringing of a cause of action, as provided for in s 50D(1)(c), were not contentious.

23 In order to resolve the question posed by s 50D(1)(b) it is necessary to set out the facts giving rise to the plaintiff’s claim.

The material facts

24 In June 2000 the plaintiff commenced work as a boner at an abattoir known as Rockdale Beef situated in Leeton, New South Wales. At this time she was employed directly by Rockdale Beef. She worked in the boning room from the time she commenced work up to and including the date of the injury.

25 It would appear that some time in June 2000 Rockdale beef resolved to alter the arrangements under which its labour force was engaged. RACS, trading as Australian Contracting Services (ACS), was either engaged by Rockdale Beef to convert the labour force at the abattoir from employees to independent contractors. Individual workers were invited to make the necessary transition to individual contracts through ACS and, to that end, various documents were generated, including information about terms and conditions of the contracts of employment, rates of pay, and other matters generally bearing upon the respective rights and obligations of the contracting parties.

26 It would also appear that coincident with the period of transition occasioned by the shift in the way that labour was engaged, NAIQ was either brought into existence by Rockdale Beef or utilised by them to be the corporate vehicle through which workers in the boning room would receive instruction and direction.

27 It is not in dispute that well before the plaintiff sustained the injury she had made the transition from being an employee to independent contractor. I am satisfied that this occurred in June 2000 at the earliest and August 2001 at the latest. The extent to which she was aware of any contractual arrangements between Rockdale Beef, RACS and NAIQ as, respectively, the owners of the abattoir, the labour hire company and the service company through which the labour force was managed and directed on a daily basis, whether that be at the time she contracted as an independent contractor or at any subsequent time up to the date of injury, is the question at issue.

When did the limitation period expire under Division 6 of the Limitation Act?

The defendant’s submissions

28 The defendant submitted that at the very latest by August 2001, the plaintiff was provided with information advising her that NAIQ was assuming the management of the boning room. This is borne out, it was submitted, by a document entitled “NAIQ Rates” under which she accepted the rates at which she would be paid as a contractor. She signed that document on 2 August 2001. This and related documents (which it was submitted I should be satisfied by inference were created and circulated around that time) were annexed to an affidavit of Kate Louise Burrows filed by the defendant in support of the motion. It was the defendant’s primary submission that having regard to these documents as a whole, and in the absence of any evidence from the plaintiff raising a contrary inference, the fact of the identity of NAIQ as the entity at fault was known to the plaintiff, or ought to have been known to her, as at the date she suffered the injury. Accordingly, the cause of action was discoverable within three years of that date such that by 13 November 2006 the action was no longer maintainable.

29 This body of documentation acquired prominence at the hearing as much for what it might reveal about the plaintiff’s actual state of knowledge as to the identity of NAIQ as the entity at fault for the purposes of s 50D(1)(b) as it does for the ambiguity that is generated concerning that question.

30 Even if the documentation does not compel the conclusion the defendant contends for, it was submitted that having regard to correspondence with the plaintiff’s solicitor on 25 March 2004, the plaintiff’s cause of action was discoverable within three years of that date and, accordingly, was not maintainable after 26 March 2007.

31 The correspondence relied upon by the defendant was initiated by the plaintiff’s solicitor when, on 8 March 2004, they forwarded a letter to ACS seeking advice as to what arrangements were in place in relation to worker’s compensation for workers in the plaintiff’s position namely (as they explained it) workers who were employed under contract through ACS for placement at Rockdale Beef.

32 On 25 March 2004 the managing director of ACS advised as follows:

“Ms Wendy Foster is a self-employed contractor under the “ODCO” Contracting System and has contracted through this Agency since 22 June 2000. Mrs Fosters’ services are provided to N.A.I.Q. on site a Rockdale Beef P/L as a Packer and Labourer on a daily hire through this Agency. A copy of Mrs Fosters’ Agreement to Contract is attached.

33 The agreement to contract is a one page document where the contracting parties agree and acknowledge that they do not share a relationship of employer and employee. For her part, the plaintiff also acknowledges that she is self-employed and, accordingly, that she is not bound to accept any work through ACS but that any work she does agree to accept will be remunerated on an hourly basis. She also instructs ACS to make deductions in respect of the voluntary Prescribed Payment System of taxation and not to make deductions under the PAYG System. Importantly, the agreement makes no reference at all to the contractual arrangements that ACS might have with either Rockdale Beef or NAIQ.

34 The defendant submitted that, at the very least, the letter of 25 March 2004 should have put the plaintiff’s solicitors on notice of the liability, or potential liability, of NAIQ since ACS advised that the plaintiff’s services were provided to that entity on site at Rockdale Beef. Accordingly, so it is submitted, whether by reference to August 2001 or March 2004 the filing of the statement of claim commenced against QBE as the insurer of NAIQ by leave on 2 April 2008 is statute barred.

35 In the absence of any evidence to the contrary, I am satisfied the plaintiff’s solicitors, for whatever reason, were not in fact alerted to the potential liability of NAIQ by the correspondence and, accordingly, made no enquires of either ACS or Rockdale Beef, or searches of the Australian Securities and Investment Commission database, with a view to ascertaining the precise nature of the involvement of NAIQ in the operations at the abattoir generally or the management or control of the operations in the boning room in particular. There is nothing to suggest that the plaintiff’s solicitors discussed the correspondence with the plaintiff.

The plaintiff’s submissions

36 The plaintiff submitted that the proceedings were commenced within three years of her acquiring the knowledge that NAIQ were liable (or potentially liable) for her injury, namely when she came to know of that fact when the defence and cross-claim were filed by Rockdale Beef in April 2007. In addition, it was submitted, there was nothing she could reasonably have done before that time to ascertain that fact. In so far as the correspondence with her solicitors is concerned the plaintiff submitted that even if it were open to argue that the solicitors ought to have been prompted to make reasonable enquiries of the kind referred to above, there was nothing to indicate to her that she should have made those enquiries.

37 Whatever might be said about the reasonableness or otherwise of the solicitors’ conduct, I am not persuaded that on a proper construction of 50D(1) and (2) the plaintiff ought to have known of the fact that fault rested with NAIQ because it would have been reasonable for the solicitors to have taken steps to make enquiries to ascertain that fact. I am of this view because I am not satisfied that the 2002 amendments to the Limitation Act have altered the position that obtains under Division 3 in respect of injuries that were sustained before the amendments and where the focus under s 60I of the Act is the plaintiff’s state of knowledge or awareness for the purpose of considering whether to extend the limitation period.

“60I Matters to be considered by court

38 In Telstra Corporation Limited v Albert John Rea [2002] NSWCA 49, the Court of Appeal dealt with the difference between constructive and actual knowledge in s 60I:

Ford Excavations v Do Carmo

“Where a solicitor acting for a client obtains knowledge or has knowledge as part of his general fitness to advise the client of the material facts relating to his client's cause of action, those facts are, in my opinion, part of the actual knowledge of the client.”

Do Carmo v Ford Excavations Pty Ltd

“With all respect, I would wish to reserve my opinion on that question because it seems to me there may be a strong argument that the plain words of the paragraph exclude the operation of any general principle that might otherwise apply.”

“It is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man. And s57(1)(e) provides that a fact is outside his means of knowledge if he does not know it and he has taken reasonable steps to ascertain it. The remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC, at p530, made in reference to a similarly worded provision, are to the point:

‘In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.’

It is also to be noted that it does not matter what advice the appellant received. In fact he sought advice and it would appear, did not receive the advice which he ought to have been given. However, s58(2), unlike s57(1)(c) makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense.”

[102] The position was made quite clear in relation to the current Act as a result of Spadotto . In that case, Priestley JA held that s60I(1)(a) referred to matters which the plaintiff himself or herself does not actually know or is not actually aware of and that there is no suggestion that the sub-section was intended to convey the meaning of "the plaintiff whether by himself or his agent".

Ford Excavations v Do Carmo

without more

• The same result is arrived at by parity of reasoning in relation to s60I(1)(a)(iii) and s60I(1)(b). The relevant authorities that hold that s60I(a) is concerned with the plaintiff's actual and personal knowledge (or lack of it) of the matters referred to in the section and clearly demonstrate that s60I(a) is not concerned with the plaintiff's imputed knowledge nor his or her constructive knowledge of those matters. As earlier indicated, in arriving at this construction, the courts have found assistance in the fact that a clear distinction is drawn between the wording of s60I(1)(a) and s60I(1)(b) where the constructive knowledge of the plaintiff is plainly referred to.

actual

peculiar to the plaintiff

Spadotto

Smith v Central Asbestos Co

"In order to avoid constructive knowledge the plaintiff must have taken all such action as was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience"

• The relevant question for the trial judge in relation to s60I(1)(b) was therefore whether the plaintiff himself (not the hypothetical reasonable person), having no actual knowledge of the documents should have become aware of the existence and relevance of the documents by making the relevant inquiries.

• In circumstances where the solicitor was found not to have imparted this information to the plaintiff, there was no rational basis for further inquiry on his part.

• The trial judge was therefore correct in holding that the plaintiff had no relevant constructive (or actual) knowledge of the matters before consulting with his barrister and that the plaintiff had therefore brought himself with in s60I(1)(b) (as well as s60I(1)(a)(iii)).”

39 In Perez v Instant Access Australia Pty Ltd [2007] NSWDC 182, Gibson DCJ considered the question of constructive knowledge in the context of s 50D in circumstances analogous to the present case where she referred to the judgment of the Court of Appeal. At [26] and [29] she said:

“26. … the fact of the matter is that it is not sufficient for the defendants to point to a party’s solicitor as someone who ought to have known as sufficient for the information to be discoverable. This is because the section sets out, as Mr Andrews points out and I accept, that the section provides that a person ought to know if that person had taken all reasonable steps. What did the plaintiff do? What the plaintiff did was precisely what the Court of Appeal referred to in [120] of Telstra Corporation Limited v Albert John Rea, in he took such reasonable steps as was necessary for him to find out. He consulted a solicitor and he gave that solicitor specific instructions. That is sufficient to comply with s 50D.”
“29. Where accidents occur on building sites where there are multiple potential defendants it is often the case that there is uncertainty as to who is responsible. This is one such case. It is a disputed issue of fact for the trial whether this scaffolding was in fact negligently constructed or whether, as is at least equally likely, the scaffolding was perfectly ably constructed and somebody, perhaps an employee of the second defendant or perhaps a fellow employee of the plaintiff or some third party, was doing work and loosened the clamp. I do not know. But to say of a plaintiff or his solicitor that they ought to have known in the circumstances of the facts of this case in my view is to overstate the burden that is placed on plaintiffs by this section of the Limitation Act. This section is designed to ensure that proceedings are commenced in circumstances where a person knew or ought to have known by taking all reasonable steps. It is designed to ensure that plaintiffs consult solicitors and place all relevant information in their possession so that solicitors can commence proceedings expeditiously and the matter be heard promptly. That is what the plaintiff did.”

40 I am satisfied that the plaintiff took all reasonable steps to ascertain the identity of the entity at fault by instructing solicitors within months of her injury and, moreover, that she provided them with all information at her disposal to assist them to commence proceedings against the party she believed to be liable for the injury she sustained.

The evidence relied upon by QBE

41 The first document in the body of documentation annexed to Ms Burrows’ affidavit is an undated memorandum headed “NAIQ PTY LTD” with various names on the head of the document under the sub-heading “Directors”. The document bears the plaintiff’s name in handwriting but is not addressed to her. This memorandum states that NAIQ was established to negotiate and win the contract to manage the boning and packing room at Rockdale Beef. The memorandum was apparently prepared by ACS as the bottom of the memorandum said “ACS supports NAIQ and all contractors and wishes them well in this new venture”. The memorandum goes on to advise generally that operations under the new regime are to begin in August 2001 and that from that date Rockdale Beef will have no further direct day-to-day management of the boning room other than in areas of “specific interest or control”. What residual areas of interest or control were intended to encompass was not specified elsewhere in the materials. The recipients of the memorandum were also advised that new rates would commence from August 2001 based on a cents per kilogram of product packed out, and that contractors must sign and agree to the “Standards and Quality Specification Schedule” and undertake a drug test if they wished to apply for a contract.

42 The next document is headed “NAIQ Rates”, and is again on ACS letterhead. It bears both the plaintiff’s name and her signature. This document was countersigned on behalf of ACS and is dated 2 August 2001.

43 I am satisfied that the memorandum headed “NAIQ PTY LTD” and the document entitled “NAIQ Rates” were likely to have been provided to the plaintiff on or before 2 August 2001 and, moreover that she would then have been aware that NAIQ were managing the boning room on a day to day basis under contract in substitution for Rockdale Beef, but that Rockdale Beef otherwise retained management in specific (but unidentified) areas.

44 A further document dated 7 August 2001, also on ACS letterhead and again apparently signed by the plaintiff and witnessed by the signatory to the previous document, is headed “Conditions for all Contractors Providing Services to NAIQ Pty Ltd While on Site at Rockdale Beef”. This two page document nominated what can be fairly described as a workplace regime under various headings such as “Hygiene”, “Safety”, “Regulations/Policies”, “Gear”, “Laundry”, “Teamwork”, “Absence from Work” by which contractors who work in the boning room were to be bound.

45 The plaintiff takes considerable comfort from a particular passage under the heading of “Drug and Alcohol Policy”. It reads as follows:

“ Rockdale Beef Pty Ltd has an absolute obligation to ensure the health and safety of all persons on site . In an effort to ensure this compliance no person is permitted to be under the influence of, or use alcohol, drugs of addiction, non-prescribed medications or illegal substances on site”. (emphasis added)

46 A further series of documents which bear neither the plaintiff’s name nor her signature were also relied upon by the defendant. They are simply identified in Ms Burrows’ affidavit as “copies of further documents relating to the change in company status and involving NAIQ”. There is no evidence as to who prepared them or to whom they were given if they were circulated at all. One of the documents headed “NAIQ Pty Ltd Pre-Commencement Drug and Alcohol Testing” sets out the protocols that are to be adhered to in administering a quick screen drug and alcohol test as a precondition for those individuals who seek work with NAIQ Pty Ltd. The terms in which the protocols are expressed make it plain that NAIQ Pty Ltd was the entity with whom individual contractors are to enter into contractual relations. For example, one of the protocols is specified as follows:

for

NAIQ Pty Ltd

I note that there is no contract of employment executed by NAIQ or the plaintiff and no evidence that the plaintiff was invited to and/or submitted to a drug and alcohol test administered on behalf of NAIQ.

47 Another document in the bundle is headed “Occupational Health and Safety Requirement for Inclusion in NAIQ Pty Ltd Conditions for Contractors”. The first sub-heading which is styled “Occupational Health and Safety Policy” specifies as follows:

“As the controlling company in the boning room, NAIQ Pty Ltd has an absolute obligation to ensure that the boning room is safe without risk to health and adequate as regard to welfare for all persons working therein. NAIQ Pty Ltd will adopt all occupational health and safety site policies and procedures.”

48 This undated and unsigned document is in conflict with the document bearing the plaintiff’s signature and dated 7 August 2001 where Rockdale Beef was nominated as the entity with the absolute obligation to ensure the health and safety of all persons on site.

49 Ms Burrows also annexed an affidavit dated 13 November 2007 which was filed by the plaintiff in support of the application for leave to join QBC as a defendant. Both the defendant and the plaintiff sought to rely on the affidavit on the motion.

The plaintiff’s affidavit

50 In that affidavit the plaintiff confirmed that after she had been working as an employee at Rockdale Beef for about six months she became aware that they were intending to change the arrangement under which people worked in the abattoir. She confirmed attending a meeting with employees and representatives of management at Rockdale Beef where various people were introduced by management as representatives of RACS. Her understanding of what was said at the meeting was that Rockdale Beef was changing over to contract labour and that workers would henceforth need to make their arrangements with RACS in order to maintain their position in the abattoir.

51 She said that after that meeting she “signed up with RACS” and from that time has always been paid by RACS save for the fact that when she was asked by her solicitors to search her records after Rockdale Beef filed its defence she noted that in 2003 some of her payslips started to refer to NAIQ Pty Ltd as payor. She said she had not noticed the reference to NAIQ before that time. She said that she maintained her position in the boning room throughout the transition from employee to independent contractor.

52 She went on to nominate her supervisors by name and confirmed that those people supervised her on a daily basis, both before and after her conversion from an employee to an independent contractor, up until the date of the injury. Those same people are the individuals nominated as directors of NAIQ on the document of 2 August 2001. She also claimed that her supervisors wore a uniform which had Rockdale Beef written on it and that she wore pants and a top and hat which had Rockdale Beef written on it. She said it was not until Rockdale Beef filed their defence in the earlier proceeding in May 2007, that she was advised that Rockdale Beef was contending that the care, control and management of the boning room was the responsibility of NAIQ and that where she worked in the boning room was in fact operated by that entity.

53 She claimed no recollection or appreciation of any role played by NAIQ in relation to her work in the boning room. She did however confirm that she signed the document headed “NAIQ Rates” and dated 2 August 2001, without having any retained memory of its contents in November 2003. It would appear she did not have a copy of the document, or any of the related documentation, in her possession. There is no evidence that she was ever provided with a copy. In particular, she claims not to have any knowledge of any arrangements, or the nature of any arrangements that might exist, between NAIQ and RACS or between NAIQ and Rockdale Beef. Whilst she is now aware that the directors of NAIQ are also the named supervisors of the boning room, she says she was unaware of any relationship between those men and NAIQ at any time up to and including the date of her injury.

54 The affidavit was relied upon by the defendant as demonstrating that on the plaintiff’s own case she must have known of the existence of NAIQ because she acknowledged signing the document of 2 August 2001 headed “NAIQ Rates” and, by inference, that she was also aware of the contents of the related documents and the role of NAIQ in connection with the new arrangements at the abattoir, or at the very least she ought to have known of that fact by taking steps to ascertain the identity of all entities who were involved in the provision of the system of work in the boning room. The defendant does not identify what enquiries the plaintiff should have undertaken on her own account. I have already noted that she retained solicitors within months of sustaining the injury.

55 The plaintiff relied upon the affidavit to establish that she did not know of the fact that NAIQ was at fault in the relevant sense despite the change in her status as a worker, since management, control and supervision of the boning room did not alter after NAIQ became involved as a lessee and manager. Furthermore there were no steps she could have taken to ascertain that fact since there was nothing to trigger that enquiry.

56 Even if I were of the view that the documentation raises questions as to the nature and extent of NAIQ’s liability as a manager of the boning room (there being nothing in the materials which would have made the plaintiff aware that they were lessees of those premises) the defendant submitted that I should draw an inference adverse to the plaintiff because she did not give evidence such as to enable a proper testing of her claim to have either forgotten about NAIQ until her memory was revived after May 2007, or her claim to have been ignorant of their role, or potential role, as an entity who may be responsible for her injury. I am not persuaded to draw an inference adverse to the plaintiff in the circumstances. The position may have been different were there to have been no evidence of the plaintiff’s knowledge or appreciation of the identity of the entity at fault. But that is not the case. While it is true she has not been cross-examined on her affidavit, that is because the affidavit was tendered as part of the defendant’s case.

The relief sought by the notice of motion

57 In the course of argument a question arose as to whether s 50C of the Limitation Act confers a power to dismiss the proceedings, or whether that power is an inherent power reinforced by the Uniform Civil Procedure Rules to be exercised in accordance with the “triable issue test” in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

58 The plaintiff submitted that the principles in General Steel apply and that they are principles of particular significance given the way the defendant had chosen to bring its case for relief. The defendant submitted that since this was a case where the plaintiff sustained a frank injury (and of sufficient seriousness to justify the bringing of an action), and that on a proper construction of s 50C and 50D and the evidence filed in support of the motion, that it was patent that the plaintiff’s statement of claim was not maintainable, there was no reason why the proceedings should not be dismissed at an interlocutory stage.

59 In Gordon v NSW Insurance Ministerial Corporation [2006] NSWSC 350, an application was made by cross-defendants to be released from the primary proceedings by an order dismissing the claims against them pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules or striking them out pursuant to Rule 14.28 in circumstances where the liability of the defendant had not been determined and where the liability of the cross-defendants, even if found to be negligent, raised the question whether the defendant would remain liable (see Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522). Grove J said at [14]:

“The short point of the cross defendants is that the cross claim against them is so obviously barred by the operation of limitation laws that they should effectively be released from the action. I am conscious of the wording of UCPR 13.4 and UCPR 14.28 but I see no reason why I should not approach the matter in conformity with the observations of Austin J (dealing with the predecessor rules SCR Pt 13 r 5 and SCR Pt 15 r 26) in Hillebrand v Penrith Council [2000] NSWSC 1058:

“There is an obvious distinction between the pleading of a cause of action and the application of a limitation period which means that the cause of action is not maintainable. It is arguable that the words ‘no reasonable cause of action’ in the two rules have no application where the defect relied upon is the expiry of a limitation period. However, in my opinion the better view is that in an appropriate case if a cause of action is clearly statute barred, the Court may conclude that the cause of action is not reasonable for the purposes of these two rules and may act under the appropriate rule accordingly. The precondition to that conclusion is that on the pleadings, and without reference to any disputed questions of fact, the limitation period clearly applies and has expired. Although counsel have been unable to refer me to any case in which either of the rules has been applied because of the expiration of a limitation period, in principle it seems to me, having regard to the underlying policies of the rules as well as their wording, that they should be available in a very clear case.”

60 Whether or not the proceedings should be dismissed pursuant to the Rules or by application of the post discoverability limitation period under the Act, on the evidence tendered in support of the motion I am satisfied that there is a sufficient area of disputed facts for that question to be determined in the substantive proceedings.

Orders

61 Accordingly the orders I propose are:

1. The notice of motion is dismissed.

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Citations

Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004

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CITATION:	Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004
HEARING DATE(S):	19 August 2008
JUDGMENT DATE :	26 September 2008
JUDGMENT OF:	Fullerton J
DECISION:	1. The notice of motion is dismissed. 2. The defendant to pay the plaintiff’s costs.
CATCHWORDS:	LIMITATION OF ACTIONS - limitation period under Div 6 of the Limitation Act - construction of ss 50C and 50D - whether plaintiff knew or ought to have known the identity of party at fault - test to be applied - negligence
LEGISLATION CITED:	Civil Liability Amendment (Personal Responsibility) Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Uniform Civil Procedure Rules 2005
CASES CITED:	Antoni v SRA (No 2) [2006] NSWDC 133 Baker-Morrison v State of New South Wales [2008] NSWDC 129 Bet v UTS Haberfield Club Limited (Elkaim DCJ, 18 June 2008, unreported) Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Caven v Women’s and Children’s Health [2007] VSC 7 Country Waste Systems Pty Limited v Wright [2007] NSWDC 287 Frizelle v Bauer (McGrowdie DCJ, 27 November 2007, unreported) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gordon v NSW Insurance Ministerial Corporation [2006] NSWSC 350 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Ozturk v NSW Department of Housing (McGrowdie DCJ, 24 August 2007, unreported) Perez v Instant Access Australia Pty Limited [2007] NSWDC 182 Rawle v South State Industrial Supplies Pty Limited (Goldring DCJ, 17 April 2008, unreported) Telstra Corporation Limited v Albert John Rea [2002] NSWCA 49 Toppin v Cole Myer Ltd [2007] NSWDC 256
TEXTS CITED:	D A Ipp, Review of the Law of Negligence: Final Report (2002) [Canberra], Commonwealth of Australia
PARTIES:	Wendy Lorraine Foster (Plaintiff) QBE Insurance (Australia) Limited (Defendant)
FILE NUMBER(S):	SC 2007/20417
COUNSEL:	AJ Bartley SC/F Tuscano (Plaintiff) DS Weinberger (Defendant)
SOLICITORS:	Porters Lawyers (Plaintiff) McCabe Terrill Lawyers (Defendant)