Franghis v Salafia & Anor (Ruling)
[2023] VCC 148
•15 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne common law DIVISION | Revised Not Restricted Suitable for Publication |
| general list |
Case No. CI-21-02798
| DIMITRI (“JIM”) FRANGHIS | Plaintiff |
| v | |
| JOHN RAYMOND SALAFIA | First Defendant |
| and | |
| TAMRAH ANN SALAFIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2023 | |
DATE OF RULING: | 15 February 2023 | |
CASE MAY BE CITED AS: | Franghis v Salafia & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 148 | |
RULING
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Subject:Limitation of ActionS
Catchwords: Negligence – whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic), s27D, s23K and s23L
Cases Cited: Tsiadis v Patterson (2001) 4 VR 114; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ruling: Order extending the period of limitation to the cause of action in the plaintiff’s statement of claim to 9 July 2021.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey | Margalit Injury Lawyers |
| For the Defendants | Mr N S Barron | MinterEllison |
HIS HONOUR:
Introduction
1Glenrowan is a town located some 236 kilometres north-east of Melbourne and may be most famous as the site of the final siege and capture of the notorious bushranger, Ned Kelly, in 1880.
2Nowadays, Glenrowan is known not only for the historical significance associated with the capture of Ned Kelly, but also for its proximity to scenic national parks, including Mount Glenrowan, as well as a developing food and wine scene. For those looking for a tree change, it is a peaceful and idyllic setting.
3In 2010, Dimitri Franghis (“the plaintiff”) moved to a rural property at Glenrowan to establish a life for himself.[1] The plaintiff’s property in Glenrowan bordered a property owned by John and Tamrah Salafia (“the defendants”) who had moved to Glenrowan in 2005.[2]
[1]Affidavit of plaintiff, sworn 17 November 2022, Joint Court Book (“CB”) 19.
[2]Affidavit of second defendant, sworn 5 December 2022, CB 34.
4The evidence, limited as it is, is of the plaintiff and the defendants living a full and happy life on their rural properties. The plaintiff was seeking to establish a small business. The defendants were raising their children and enjoying the opportunities afforded by living in a rural environment, including the ability to keep numerous pet animals.
An incident with a goat on 2 October 2013
5One such pet owned by the defendants was a male goat named “Buck”. Buck was born in 2011, had been reared in the company of five pet dogs and was treated as if he was also a pet dog.
6There is no dispute that, from time to time, Buck would move from the defendants’ property and onto the plaintiff’s property, although there is a factual dispute about whether Buck was permitted by the plaintiff to do that, or mischievously travelled from the defendants’ property. Nothing turns on that for the purpose of this ruling.
7On 2 October 2013, the plaintiff was on his property using a chainsaw to cut up a fallen tree, when Buck ran into him (“the incident”). There is no dispute that the incident occurred, and that Buck collided with the plaintiff. There was no other witness to the incident. What is very much in dispute is the factual matrix around the incident and whether the defendants have any liability in negligence for the collision between the plaintiff and Buck.
8In some scenarios, it might be humorous to visualise a goat colliding with a person, but this is not such a scenario. Unfortunately for the plaintiff, he was hit by Buck in a “sweet spot” in his right leg, sufficient to cause fractures requiring multiple surgical procedures, culminating in a right total knee replacement. At least for the purpose of this ruling, there is no dispute that the plaintiff suffered the right leg injuries complained of as a consequence of the incident.
Events after the incident
9Immediately after the incident, the plaintiff was taken to hospital and underwent surgery. On or about 15 October 2013, he was discharged back home. The evidence is limited, but he continued to live at the Glenrowan property until sometime in 2015, when his marriage broke down and he returned to Melbourne to live with his mother.
10The second defendant says that she and her husband remained friends with the plaintiff for some time after the incident and that she cannot recall exactly when the friendship deteriorated.[3] There is no clear evidence from the plaintiff about the deterioration in the friendship. From the limited evidence, it is open to infer that the defendants remained on good terms with the plaintiff’s ex-wife, and perhaps that contributed to the deterioration in neighbourly relations, but again nothing turns on that. In any event, the point is that for some time after the incident the plaintiff and the defendants remained as neighbours, the incident did not impact that relationship and perhaps nothing much more was thought about it.
[3]CB 37.
11I note in passing that the collision with the plaintiff produced a very bad outcome for Buck. Like Ned Kelly, it was a last stand, as the defendants had him euthanised shortly after the incident.
The plaintiff seeks legal advice
12Returning to a timeline of relevant events, after moving to Melbourne in 2015, the plaintiff decided to seek legal advice with respect to the incident. He attended Mr Stephen Prior, a solicitor at Prior Law in Bentleigh. The objective evidence of the plaintiff’s attendances on Mr Prior, or the legal advice provided by Mr Prior, is also limited.
13Mr Prior’s file is not in evidence. The documentary evidence of any legal advice provided by Mr Prior is confined to what is exhibited to the affidavits filed in this proceeding, namely a handful of items of correspondence. What is clear is that, by 17 September 2015, Mr Prior had been retained by the plaintiff to act in respect to personal injury caused in the incident on 4 October 2013. Initially the defendants took issue about the extent of that retainer, although, as I will come to, that point was not pursed as a relevant consideration to refuse an extension of the relevant period of limitation.
14The evidence discloses that after the initial attendance on Mr Prior, there was a flurry of activity in which letters of demand were sent to the defendants and Mr Prior corresponded with AAMI, the public liability insurer of the defendants. That culminated in a letter from AAMI to the defendants in December 2015, in which indemnity for the incident was denied.[4] The plaintiff said he was advised verbally by Mr Prior that the defendants’ insurance company had denied coverage for his injuries.[5] The plaintiff said in response that he asked Mr Prior what the next course of action was.[6] The evidence is unclear as to what, if any, response Mr Prior had to the question of the next course of action. Nothing turns on this point, as it seems that Mr Prior did not chart any next course of action.
[4] CB 43.
[5] Transcript (“T”) 18, Line (“L”) 3-6.
[6] T 18, L 8.
15After being advised by Mr Prior that insurance had been denied for his injuries, the plaintiff did not take any steps to pursue a claim in respect to the incident until well after the expiry of the relevant limitation period. There was no further correspondence between Mr Prior and the defendants or their insurer, or indeed between Mr Prior and the plaintiff.
16The parties (ultimately) agreed that Mr Prior did not provide the plaintiff with any advice regarding the limitation period and effectively did nothing to advance the plaintiff’s personal injury claim.
17In approximately June 2021, Mr Prior informed the plaintiff that he had missed a limitation date and that the plaintiff should seek alternate legal advice, although yet again the evidence around that is limited. The plaintiff then promptly consulted his current solicitors, Margalit Injury Lawyers, also in approximately June 2021.
18Next in time, the plaintiff’s current solicitors commenced a common law proceeding by way of a writ filed 9 July 2021. The writ was accompanied by a very poor general endorsement that does not set out any meaningful cause of action. In any event, the writ and general endorsement was not served at that time. Eventually, on 5 July 2022, the writ and statement of claim was served on the defendants, some eight years and nine months after the incident.
19It was agreed that by reason of s27D of the Limitation of Actions Act 1958 (‘the Act’), the relevant limitation period was three years and expired on 2 October 2016.
20It is not in dispute that the plaintiff commenced proceedings out of time. By their defences, the defendants raised as an issue the fact that the plaintiff’s claim is statute barred.
21By summons dated 7 November 2022, the plaintiff made application to extend the relevant period of limitation.
Extension of time – legal principles
22It is agreed that s27K of the Act provides the power for the Court to extend the period of limitation if it is just and reasonable to do so.
23Further, s27L sets out matters to be considered in determining applications for extension of limitation period. It is convenient to set out the relevant provisions of s27L in full—
“(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant’s conduct.”
24Shortly, I shall set out the parties’ contentions and the relevant evidence. Broadly, the legal principles are uncontroversial and are also agreed between the parties.
25The consideration of this application to extend the period of limitation is to be approached in the way set out by Buchanan JA in Tsiadis v Patterson,[7] as recently confirmed by the Court of Appeal in Griffiths v Nillumbik Shire Council,[8] but, for the avoidance of doubt, I acknowledge that the resolution of this application involves a synthesis of all relevant competing considerations, including but not limited to those set out in s27L.
[7](2001) 4 VR 114 at paragraph 31.
[8][2022] VSCA 212.
26The synthesis of all relevant competing considerations must be undertaken against the backdrop of the purpose and effect of limitation periods, with the statement of principle as set out in the High Court in Brisbane South Regional Health Authority v Taylor[9] as described in Griffiths[10] as remaining the yardstick. As was said in Griffiths[11] a limitation period in a proceeding –
“is not just some easily moveable line in the sand. Rather it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions”.
[9] (1996) 186 CLR 541, in particular 552-553 (McHugh J).
[10] Paragraph 64.
[11] Paragraph 66.
The conduct of the defendants
27Returning next to the theme of what is not in dispute, the plaintiff made no complaint about the defendants’ conduct and, indeed, it would be impossible to do so. When confronted with a letter of demand from Mr Prior, they provided that to their insurer and acted appropriately. The second defendant provided a comprehensive and candid affidavit for the purpose of this application, which in no way sought to obfuscate or play down the incident involving the goat. Candidly, she described her memory of particular events back in 2013 and 2015 as “quite good” and that her husband “tells me that he feels the same way about his own memory” although she herself struggled to remember exact dates that events occurred on.[12]
[12] CB 38, exhibit D1 at paragraph 35.
Evidence
28The plaintiff tendered an affidavit sworn by him on 17 November 2022.[13] On behalf of the defendants, an affidavit was tendered that was sworn by the second defendant on 5 December 2022.[14] Counsel each provided comprehensive written submissions which were accepted as exhibits in circumstances where oral submissions were truncated on the (correct) assumption that the written submissions would be considered. This sensible course of action meant that the oral evidence was confined to that of the plaintiff, who now resides in Queensland and gave his evidence by videolink.
[13] Exhibit P1.
[14] Exhibit D1.
29I have considered all of the tendered evidence, the written submissions, and the transcript of the plaintiff’s oral evidence.
30At the outset, I note that most of the relevant evidence is not in dispute. There was no dispute as to the key facts or timeline of events. There are no real factual disputes that need to be resolved. Simply, this is an application that falls to be determined by a consideration of whether it is “just and reasonable” to extend the period of limitation after the synthesis of mostly agreed facts, by reference to agreed legal principles.
The claim against the previous solicitor
31Turning, then, to a synthesis of the relevant evidence and all relevant competing considerations, it is convenient to commence by considering the failure by the previous solicitor to inform the plaintiff about the limitation period, or to take steps to bring a claim within time. That issue was front and centre in the submissions and during the oral evidence.
32First, as already mentioned, the parties agreed that the plaintiff’s previous solicitor failed to provide him with adequate advice regarding the applicable limitation period.[15] Both counsel submitted that there would be a strong negligence action against the previous solicitor for failing to advise the plaintiff as to the relevant limitation period, or to undertake reasonable steps to prosecute the plaintiff’s common law claim in a timely manner.
[15] T 68, L 30-31; T 69, L 1-26.
33Second, I will consider this application on the basis of the submissions of the parties, namely that the previous solicitor was negligent.
34Third, I have not heard from the previous solicitor, and I only have in evidence limited documents from his file. The fact that I proceed on that basis that the parties urged on me does not equate to a positive determination that the previous solicitor was negligent. For the avoidance of doubt, I do not express that conclusion.
35Fourth, for the purpose of this ruling only, I proceed on the basis that the cause of action against the previous solicitor can be conclusively determined as a strong cause of action.
36Fifth, it would be wrong to conflate the proceeding against the defendants as the same as the proceeding against the former solicitor. It is not as simple as substituting one defendant for another.
37Sixth, the fact that there may be a strong cause of action against the previous solicitor is a relevant consideration and I take it into account.
38In short, on this point, the plaintiff submitted that the negligence of the previous solicitor was not in isolation a reason to refuse to extend the period of limitation. The defendants, on the other hand, submitted that in a synthesis of all relevant considerations it did support a refusal to extend the limitation period. But, the defendants did not point to any specific prejudice suffered by them as a consequence of the negligence of the solicitor save for the loss of the ‘shield’ of the limitation period.
39Bearing in mind that I am required to engage in a synthesis of all relevant competing considerations and not a weighing of individual considerations against each other, I accept that the fact the plaintiff has an apparently strong cause of action against the previous solicitor is a relevant consideration but is not decisive.[16] But, it is a more relevant consideration than, say, in an application where the strength of the cause of action against a previous solicitor cannot be ascertained.
[16] Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517.
Section 27L of the Act
40Bearing in mind that the matters in s27L of the Act are not exhaustive, I shall now consider the remaining matters set out in that section by reference to the facts of this application.
(a) The length of and reasons for the delay on the part of the plaintiff
41In my opinion, the length of the delay in this proceeding is significant. The cause of action occurred on 2 October 2013, the limitation period expired on 2 October 2016, and the first that the defendants were aware of the proceeding was when the writ and statement of claim were served on 5 July 2022. At that point, the plaintiff was some eight years and nine months out of time. A further few months passed until the summons was taken out seeking to extend the period of limitation, but nothing much turns on that further period.
42The plaintiff’s explanation for the delay is that his previous solicitor did not advise him of time limits and somehow led him to believe that steps were being taken. The plaintiff gave evidence of various excuses that were proffered by Mr Prior, such as the backlog in the courts, for why nothing was happening.
43To an astute or legally-qualified person, the explanations apparently proffered by Mr Prior would not stand scrutiny. But, of course, the plaintiff is not a lawyer and is not legally educated.
44For completeness, I note that in his affidavit, the plaintiff described comorbidities, including a neck fusion in the 1990s following a workplace accident, and also psychological symptoms related to his service in the Defence Force. He was not asked to elaborate on that evidence during his oral evidence, so other than that he had pre-existing “work” related injuries, there was no suggestion he had ever consulted lawyers or obtained knowledge of common law because of those pre-existing conditions.
45Accordingly, I consider the length of delay to be significant, but that the reason for the delay to lay at the feet of the previous solicitor, and not at the feet of the plaintiff.
(b) The extent to which, having regard to the delay, there is, or likely to be, prejudice to the defendant
46It is trite to note that, due to the passage of time, there will be prejudice to the defendants in the general sense. I accept the evidence from the defendants about difficulty with a recall of relevant chronological dates. I also accept that the passage of time will impact memory.
47But, on the other hand, the evidence reveals that the defendants have a clear memory of Buck, and his journeys onto the plaintiff’s property in 2013 and the broad circumstances around the incident, bearing in mind that there was only ever the plaintiff himself as an eyewitness to the incident.
48Accordingly, I accept there is general prejudice to the defendants and some failure of memory due to the passage of time, but, in my view, a fair trial is still possible. There is no specific prejudice that would make it unfair for the trial of this proceeding to continue.
(c) The extent, if any, to which the Defendants had taken steps to make available to the Plaintiff means of ascertaining facts which were, or might be, relevant to the cause of action of the Plaintiff against the Defendants
49This provision does not appear to be relevant. There is no criticism of any action on behalf of the defendants.
(d) The duration of any disability or legal incapacity of the Plaintiff arising on or after the date of discoverability
50This provision does not appear to be relevant.
(e) The time in which the cause of action was discoverable
51Again, this provision does not appear to be relevant.
(f) The extent to which the Plaintiff acted promptly and reasonably once the Plaintiff knew that the act or omission of the Defendants to which the injury of the Plaintiff was attributable, might be capable at that time of giving rise to an action for damages
52As mentioned, once informed by Mr Prior that he was out of time, the plaintiff quickly consulted his current solicitors. There is no suggestion that he has not acted promptly or reasonably since.
(g) The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice, and the nature of the advice he or she may have received
53To some extent, I have already discussed the issues relevant to this provision. The plaintiff has obtained medico-legal opinion since consulting his current solicitors. Again, the evidence is limited, but it appears that relevant medical material is available. This is not a situation in which the defendants’ claim to be unable to consider the extent of the plaintiff’s injuries due to the passage of time. It is relevant, in my opinion, that he was injured in a frank event, requiring multiple surgical procedures and, on the face of it, his injuries appear capable of consideration and assessment.
A resolution of the application
54As mentioned, the matters set out in s27L of the Act are not exhaustive. A decision to extend the period of limitation is to be made based on relevant considerations.
55I do consider it relevant that the plaintiff was injured in a discrete event and suffered a discrete fracture requiring multiple surgical procedures. As mentioned, the defendants do not raise any real specific prejudice, other than the general passage of time. It was not suggested that they cannot get a fair trial.
56The real consideration in this case, in my opinion, is the conduct of Mr Prior and whether, when synthesised, that leads to a conclusion not to extend the relevant period of limitation.
57The existence of a viable, indeed, strong, cause of action against his previous solicitor, is a significant consideration[17] but, relevantly, the negligence of the previous solicitor has caused no real (specific) prejudice to the defendants in this proceeding, other than as already referred to, that is, the passage of time and some deterioration in memory recall and the loss of the shield of the period of limitation.
[17]Ibid.
58What was forcibly submitted on behalf of the defendants was that the plaintiff’s negligent action is so strong against Mr Prior that the strength of that claim is such that the Court should not extend the period of limitation and effectively shift the burden of the claim from one tortfeasor to another. But, in my opinion, there needs to be some caution exercised, because the plaintiff’s claim against Mr Prior is not the same as the claim he has arising out of the incident.
59The decision to extend a period of limitation involves a synthesis of all relevant competing considerations. I must only exercise my discretion if I am persuaded it is just and reasonable to do so.
60On one view this is a relatively simple application. But sometimes it is the simple that is actually complex. This is such an example and the buck stops with me to resolve the application.
61Limitation periods are not some easily moveable lines in the sand and despite the force in the submission of the defendants as to the relevance of the (admitted) strong claim against the previous solicitor, on this occasion I am persuaded that it is just and reasonable to extend the period of limitation. I do so after a synthesis of all competing considerations including that –
(i)The delay is significant but not what I consider to be inordinate;
(ii)The plaintiff was unaware of the limitation period. He sought legal advice when in time and not unreasonably placed his faith in the expected skill of a legally qualified person;
(iii)While there may potentially be a strong claim in negligence against the previous solicitor, that is not the same as the cause of action in this proceeding. Further, the negligence of the solicitor in allowing the limitation period to expire does not appear to have caused any further specific prejudice to the defendants, other than the passage of time;
(iv)The incident was not independently witnessed, or documented and so there is no relevant document or the like that would have been available even if he issued proceedings in time, or which has been lost;
(v)There is no specific prejudice to the defendants such that a fair trial is no longer possible;
(vi)The plaintiff suffered frank injuries in a discrete incident. Relevant medical material and reports are available, and the injuries are capable of assessment;
(vii)the negligence action turns, at least in part, on why Buck was on the plaintiff’s property and the defendants and the plaintiff’s ex-wife are all available to give evidence about that issue and have a reliable memory for those events and discussions during 2013 and leading up to the incident.
62There will be an order extending the limitation period to the causes of action set out in the plaintiff statement of claim against the defendant to 9 July 2021.
63I will hear from the parties as to consequential orders including orders for costs.
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