Freeman v ANI Corporation

[1999] NSWSC 1257

CITATION:	Freeman v ANI Corporation [1999] NSWSC 1257
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	12070/1995
HEARING DATE(S):	14 December 1999
JUDGMENT DATE:	17 December 1999
PARTIES :	William Rostier Harcourt Freeman (Plaintiff) v ANI Corporation Limited Trading As Capitol Motors (Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr G B Hall QC/Ms E E Welsh (Plaintiff) Mr M McCulloch (Defendant)
SOLICITORS:	Brydens Law Office (Plaintiff) Phillips Fox (Defendant)
CATCHWORDS:	Extension of time fixed by Court Order; discretionary power; relevant considerations.
ACTS CITED:	Limitation Act 1969, s 60G, s 60I. Supreme Court Rules 1970, Pt 2 r 3.
CASES CITED:	Brisbane South Regional Hospital v Taylor 186 CLR 541. Gladesville RSL Club v Bartsch 44 NSWLR 674. Paino v Hofbauer 13 NSWLR 193.
DECISION:	See paragraph 31.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 17 DECEMBER 1999

12070/1995 WILLIAM ROSTIER HARCOURT FREEMAN v ANI CORPORATION LIMITED TRADING AS CAPITOL MOTORS

JUDGMENT


1   The plaintiff claims to have suffered personal injury in an incident that took place on 5 September 1986. The relevant limitation period expired in September 1992.

2 These proceedings were commenced by Summons in 1995. An application was made for an order extending the limitation period. The plaintiff relied on the provisions of s 60G of the Limitation Act 1969 (the Act).

3   The application was heard by Master Greenwood. He delivered judgment on 29 September 1995.

4 The Master was satisfied that the requirements of s 60I had been met. Also, he was satisfied that it was just and reasonable to make an order. In reaching that decision, the Master took into account matters of prejudice. The terms of the judgment do not reveal that an order was in fact made extending the limitation period.

5   The Master appears to have merely given the plaintiff leave to file a Statement of Claim on or before 27 October 1995. As the effect of what was done by the Master has not been the subject of argument I put that matter aside. No Statement of Claim was filed in this Court, but proceedings were commenced (ill advisedly) in the District Court on 23 October 1995. In July 1996, the plaintiff gave instructions to proceed with the action and his solicitors were made aware of problems related to them. The plaintiff proceeded with the action until the proceedings were summarily disposed of on 25 October 1996 (on the defendant’s application).

6   There was an appeal from the decision of the Master (it was filed on 27 October 1995). It did not come on for hearing until 16 December 1997. The appeal was heard by McInerney J. His Honour delivered judgment on 19 February 1998. The judgment contained certain observations on matters of prejudice. The appeal was dismissed with costs.

7   On 9 December 1996, prior to the hearing of the appeal, the plaintiff filed a Notice of Motion. It sought an extension of time for the filing of a Statement of Claim. It was made returnable on 17 December 1996. It was stood over. Ultimately, it came before Master Greenwood on 19 March 1997.

8 The transcript records that there was a hearing. What happened is not entirely clear. The application for extension of time may not have been successful and this may have led the plaintiff to seek leave to file an Amended Notice of Motion. Leave was given by the Master. The transcript indicates that the leave contemplated the filing of a Notice of Motion under s 60G which was to be dealt with at the time of the hearing of the appeal.

9 On 25 March 1997, an Amended Summons was filed. It sought an order under s 60G. Also, it sought an extension for the filing of the Statement of Claim.

10   On 12 May 1997, the plaintiff filed an Amended Notice of Motion. It claimed relief similar to that sought in the Amended Summons. It was made returnable on 3 July 1997.

11 The parties appear to have acted on the basis that McInerney J would also deal with another question (either the fresh application under s 60G or an extension of time). The judgment of his Honour did not deal with either of the matters. It may be that he saw the question as a fresh application which had become superfluous in the light of the determination of the appeal.

12   In April 1998, steps were taken to get the matter back before McInerney J. It was listed on 7 April 1998. On that occasion, the plaintiff did not appear. It was listed again on 7 May 1998, there was no appearance of either party due to illness on the part of counsel for the plaintiff. His Honour retired on 12 March 1999.

13   Subsequently, his Honour was appointed as an Acting Judge. In August 1999, further steps were taken to bring the matter back before McInerney AJ. On 6 August 1999, the matter came before McInerney AJ. His Honour determined that there was no part heard application before him and referred the Amended Summons to the Master’s list for directions.

14   In August 1999, steps were then taken to have the matter brought before a Master. On 24 August 1999, the plaintiff filed another Notice of Motion. It claimed relief similar to that sought in the Amended Summons. Yet a further Notice of Motion was filed on 14 September 1999. It claimed an extension of time. Ultimately, a fixture was given for a hearing to take place on 14 December 1999. It may have been given in respect of all of the various processes before the court.

15   There was a hearing on 14 December 1999. The plaintiff relied on three affidavits sworn by his solicitor (Mr Hagipantelis). The defendant has relied on affidavits sworn by Robyn Maree Simpson (a solicitor) and William Brown (a loss adjustor). There was no cross-examination.

16   At the commencement of the hearing, some confusion ensued by reason of the proliferation of process. After some preliminary skirmishing, the plaintiff identified the Notice of Motion filed on 9 December 1996 and the Amended Summons filed on 25 March 1997 as the only process upon which he was moving. Further, the plaintiff identified that he was seeking only an order extending the time fixed by the order of Master Greenwood.

17 The plaintiff relies on the provisions of Pt 2 r 3 of the Supreme Court Rules 1970. This provision confers a discretionary power. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The onus rests with the party seeking relief.

18   The parties have referred the court to a number of decided cases (including Paino v Hofbauer 13 NSWLR 193; Brisbane South Regional Hospital v Taylor 186 CLR 541 and Gladesville RSL Club v Bartsch 44 NSWLR 674).

19   In opposing the application, the defendant has agitated a number of discretionary considerations (including delay, lack of explanation for delay and prejudice).

20   I do not propose to embark on an exercise of exhaustively reciting all of the relevant material. Such as has been placed before the court may be found in the affidavits. Although the plaintiff has relied on a number of affidavits, the evidence falls short of being satisfactory in a number of respects. The court can only act on the material placed before it.

21   The present application has become necessary because of default on the part of the plaintiff. He failed to take the opportunity conferred by the granting of leave on 29 September 1998. The delay that ensued is significant. Not all of it is the fault of the plaintiff and/or his legal advisers. However, it is his application and it was up to him to expeditiously obtain relief.

22   Generally speaking, there has been a lack of any sense of urgency or expedition. There seems to have been significant periods of inactivity. Whilst proceedings were commenced prior to 27 October 1995, this was the abortive and misconceived exercise involving the filing of process in the wrong court. It remained on foot for about one year until it was disposed of summarily on the defendant’s application. This exercise may be seen in the category of a self inflicted wound (see Bartsch at 68). How it came about has been largely left unexplained.

23   The explanation proffered for both default and delay falls well short of being satisfactory. In some respects, no explanation is offered at all. There was explanation which had to be derived by way of inference. The court has been informed, in general terms, that it is accepted that there has been negligence on the part of legal advisers. On any view, the matter has been handled with a lack of competence and diligence. The plaintiff himself has not given evidence. There is not much to suggest that he has been putting pressure on his legal advisers to act with competence and diligence.

24   The judgments of Master Greenwood and McInerney J record the suffering of prejudice. More than four years have now passed since the matter was dealt with by Master Greenwood. Whilst there is no evidence of additional actual prejudice since that time, the further delay can be expected to have magnified at least some of the problems. The magnification is of the presumptive type (see Taylor ).

25   If the matter were allowed to proceed to trial, it could be expected that some years would elapse in the future before the matter came on for hearing. The accident itself is now an event that took place more then 13 years ago.

26   The plaintiff may well have a good cause of action against certain of his legal advisers. This matter was raised during submissions. There is some conflicting authority on it. Generally speaking, the authorities make it clear that this is a matter which should not be accorded great weight. There is some authority to the effect that it is irrelevant.

27 If the plaintiff is unsuccessful in this application, it would seem that he may have lost the opportunity to prosecute his claim for damages (whatever the potential may be). It would seem that his legal advisers see it as a District Court claim. His prospects of obtaining a further order under s 60G would not seem good (see Bartsch ).

28   If the plaintiff is successful, the defendant will once again be deprived of the benefit of the limitation defence despite the default and further delay on the part of the plaintiff.

29   The court is left to make a decision on the material placed before it. I have already mentioned the deficiencies. The plaintiff is seeking an indulgence in circumstances where inter alia his legal advisers have created the problem and there has been a failure to act promptly to rectify it. The decision is not an easy one. It has caused considerable deliberation.

30   As I said, the plaintiff bears the onus of demonstrating an entitlement to an order. I am not satisfied that he has discharged that onus. I am not satisfied that the interests of justice would be best served by the granting of the application.

31   I dismiss the Notice of Motion and Amended Summons. The plaintiff is to pay the costs of the Notice of Motion and Amended Summons. The exhibit may be returned.
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Last Modified: 12/22/1999