Guskic v Ritchies Stores Pty Ltd (Rulings)
[2023] VCC 1722
•26 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-04716
| VIDANKA GUSKIC | Plaintiff |
| v | |
| RITCHIES STORES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 20, 23 and 24 March 2023, 19 and 26 April 2023 | |
DATE OF RULING: | 26 October 2023 | |
CASE MAY BE CITED AS: | Guskic v Ritchies Stores Pty Ltd (Rulings) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1722 | |
RULING 1 – Whether the Plaintiff should be granted leave to re-open the case;
RULING 2 – Whether the Plaintiff should be granted leave to extend time within which to bring common law proceedings
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RULING 1:
Subject:PRACTICE AND PROCEDURE
Catchwords: Application for leave to extend time under section 23A Limitation of Actions Act 1958 – leave to re-open case – application opposed – oversight of counsel – interests of justice
Legislation Cited: Limitation of Actions Act 1958; Workplace Injury Rehabilitation and Compensation Act 2013;
Cases Cited:Griffiths v Nillumbik Shire Council [2022] VSCA 212; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ruling:Application to re-open granted
RULING 2:
Subject:LIMITATIONS OF ACTION
Catchwords: Application for leave to extend time under section 23A Limitation of Actions Act 1958 – personal injury – power to extend limitation period – whether discretion should be exercised – presumptive prejudice – whether fair trial can be had
Legislation Cited: Limitation of Actions Act 1958; Civil Procedure Act 2010; County Court Civil Procedure Rules 2018
Cases Cited:Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Smith v NSW Bar Association (1992) 176 CLR 256; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 25) [2020] VSC 172
Ruling: Application to extend limitation period granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms S Bailey | Patrick Robinson & Co |
| For the Defendant | Mr A Moulds KC with Ms E Golshtein | Wisewould Mahony |
Table of Contents
Background
The hearing
Evidence sought to be tendered by the Plaintiff
Evidence sought to be tendered by the Defendant
Ruling – should leave be granted to extend time?
Statutory framework and applicable principles
The Plaintiff’s evidence
The Plaintiff – Vidanka Guskic
The Plaintiff’s evidence in support of her application for leave to bring common law proceedings
Exhibit C – Plaintiff’s affidavit in support of current application
Exhibit H – the Plaintiff’s further affidavit
The Plaintiff’s viva voce evidence
Affidavit of Samuel Butler
Affidavit of Diana Barski
Mr Patrick John Robinson
Ms Amila Destanovic
Affidavit of Dimche Talevski
The Defendant’s evidence
Affidavits of Trent Francis Vittorio
Affidavit of Jason Craig
Affidavit of Malcolm Cameron
Affidavit of Bruce Atkin
Interrogatories
Circumstance Investigation report
Remaining documentary evidence
Submissions
Defendant’s submissions
Plaintiff’s submissions
Section 23A(3)(a) – length of and reasons for the delay on the part of the Plaintiff
Plaintiff’s submissions
Defendant’s submissions
Section 23A(3)(b) – the extent to which, having regard to the delay, there is or is likely to be prejudice to the Defendant
Defendant’s submissions
Plaintiff’s submissions
Section 23A(3)(d) – the duration of any disability of the Plaintiff arising on or after the date of the accrual of the cause of action
Section 23A(3)(e) – the extent to which the Plaintiff acted promptly and reasonably once [s]he 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
Section 23A(3)(f) – the steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any such advice [s]he may have received
Factors affecting the overall discretion
Chronology
Conclusions
Loss or destruction of evidence
Ruling – should leave be granted to the Plaintiff to re-open?
Applicable principles
Civil Procedure Act 2010
County Court Civil Procedure Rules 2018
Relevant case law
Defendant’s submissions
Plaintiff’s submissions
Conclusions
Nature of the case
Whether the occasion for calling the further evidence ought to reasonably have been foreseen
The consideration of fairness that the opposing party is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence it will adduce on the matters in question.
The extent to which the party seeking leave has embarked upon calling evidence on the issue in question in its case in chief
The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case
The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time
The public interest in the timely conclusion of litigation
What explanation is offered by the party seeking leave for not having called the evidence in chief
Do the interests of justice require that the application to re-open be allowed?
HER HONOUR:
1On 5 November 2021 the plaintiff, Ms Vidanka Guskic, issued a writ against the defendant, Ritchies Stores Pty Ltd, seeking damages for personal injury said to have been sustained in two separate incidents whilst at work for the defendant, namely on or about 24 October 2008 (referred to in the pleadings as the “first incident”) and on or about 13 September 2016 (referred to in the pleadings as the “second incident”) and in the course of her employment with the defendant.[1]
[1]The Statement of Claim is entitled “DRAFT Statement of Claim”, but it constitutes the Statement of Claim as filed.
2The plaintiff now applies under s23A of the Limitation of Actions Act 1958 (“the Act”) to extend the time within which she may issue proceedings against the defendant to recover damages for injuries she claims to have sustained in the first incident while at work for the defendant on or about 24 October 2008. The application is opposed.
Background
3On 5 December 2019, the plaintiff applied for leave to bring common law proceedings against the defendant to recover damages she sustained in respect of both injuries whilst employed by the defendant (the “serious injury application”) following the WorkCover Authority’s refusal to grant a relevant certificate in respect of the claimed injuries. That hearing took place before her Honour Judge Davis on 8 June 2021. Her Honour granted leave on 18 June 2021.
The hearing
4The hearing commenced before me on 17 March 2023 and continued on 20, 23 and 24 March 2023, and on 19 and 26 April 2023.
5Mr T Tobin SC appeared with Ms S Bailey on behalf of the plaintiff. Mr A Moulds KC appeared with Ms E Golshtein on behalf of the defendant.
6On the first day of hearing, the parties stated that no viva voce evidence would be called and that they would make submissions “on the papers”. At that stage, the plaintiff had filed only limited material in support of her application:
· The plaintiff’s affidavit sworn in support of her serious injury application, dated 5 July 2019;[2]
· A further affidavit of the plaintiff in support of her serious injury application, dated 1 February 2021;[3]
· An affidavit sworn by the plaintiff in support of her application to extend time, dated 21 February 2023;[4]
· Affidavit of Samuel Butler, dated 21 February 2023;[5] and
· Affidavit of Diana Barski, dated 21 February 2023.[6]
[2]Exhibit A
[3]Exhibit B
[4]Exhibit C
[5]Exhibit D
[6]Exhibit E
7The defendant had tendered nine exhibits:
· Affidavit of Trent Francis Vittorio, dated 9 March 2023;[7]
· Further affidavit of Trent Francis Vittorio, dated 15 March 2023;[8]
· Affidavit of Jason Craig, dated 18 January 2021;[9]
· Affidavit of Malcolm Cameron, dated 18 January 2021;[10]
· Further affidavit of Malcolm Cameron, dated 6 March 2023;[11]
· Affidavit of Bruce Atkin, dated 2 February 2021;[12]
· Circumstance Investigation Report of LS Partners, dated 25 October 2016, which is part of Exhibit TFV-1 to the affidavit of Trent Vittorio dated 9 March 2023;[13]
· Attachments to the Circumstance Investigation Report of LS Partners dated 25 October 2016, which is part of Exhibit TFV-1 to the affidavit of Trent Vittorio dated 9 March 2023;[14] and
· Further affidavit of Trent Francis Vittorio, dated 17 March 2023.[15]
[7]Exhibit 1
[8]Exhibit 2
[9]Exhibit 3
[10]Exhibit 4
[11]Exhibit 5
[12]Exhibit 6
[13]Exhibit 7
[14]Exhibit 8
[15]Exhibit 9
8At the conclusion of the first day’s hearing, I directed that the parties file written submissions and adjourned the further hearing of the matter to 20 March 2023.
9By 20 March 2023, the parties had filed their written submissions,[16] which they supplemented with oral argument before me.
[16]Exhibit F, Submissions of the Plaintiff dated 19 March 2023; Exhibit 10, Defendant’s Outline of Submissions in respect of s23A Application of the Plaintiff dated 20 March 2023.
10On 20 March 2023 the defendant tendered a number of the interrogatories of the plaintiff for the examination of the defendant together with their respective answers – questions and answers 1, 2, 3, 4, 5, 6, 7, 8, 12, and 13.[17]
[17]Exhibit 11
11Mr Moulds submitted that leave should be refused because there were significant gaps in the plaintiff’s evidence, leaving insufficient or no evidence addressing the statutory and discretionary factors the Court is required to take into account.
12Ms Bailey acknowledged the plaintiff’s material was lacking and sought leave to re-open the plaintiff’s case in order to file further material. That application was opposed. I granted the application, giving an oral summary form of ruling,[18] which I stated would be elaborated upon when I deliver my ruling on the substantive application. I also granted leave to the defendant to tender or call any further evidence in response to the plaintiff’s fresh evidence.
[18]Transcript (“T”) 220 to 221.
13My reasons for allowing the plaintiff to re-open appear later.
14Suffice it to say for present purposes that during the course of hearing the application to re-open a number of exhibits were tendered and marked for identification.
Evidence sought to be tendered by the Plaintiff
15Ms Bailey sought to tender the following documents on behalf of the plaintiff:
· A further affidavit of the plaintiff, dated 22 March 2023;[19]
· Affidavit of Amila Destanovic (the plaintiff’s solicitor), dated 22 March 2023;[20]
· Affidavit of Patrick Robinson (the plaintiff’s solicitor), dated 24 March 2023;[21]
· Further affidavit of Amila Destanovic dated 24 March 2023;[22] and
· Affidavit of Dimche Talevski (the plaintiff’s former solicitor), dated 11 April 2023.[23]
[19]Initially tendered for identification, but ultimately tendered absolutely as Exhibit H
[20]Initially tendered for identification, but ultimately tendered absolutely as Exhibit J
[21]Initially tendered for identification, but ultimately tendered absolutely as Exhibit K
[22]Initially tendered for identification, but ultimately tendered absolutely as Exhibit L
[23]Initially tendered for identification, but ultimately tendered absolutely as Exhibit M
16I permitted the defendant to request that any of the deponents be made available for cross-examination.
17The defendant required the plaintiff and Mr Robinson to attend for cross-examination.
Evidence sought to be tendered by the Defendant
18On behalf of the defendant Mr Moulds submitted that should the plaintiff be granted leave to re-open he would seek to tender the following additional documents:
· Further affidavit of Trent Francis Vittorio, dated 18 April 2023;[24]
· Memorandum to “Raz” dated 4 December 2019;[25]
· Memorandum of a telephone attendance on Professor Richard Bittar’s rooms;[26] and
· Letter of instruction from the plaintiff’s solicitors to Professor Bittar dated 28 July 2020.[27]
[24]Initially tendered for identification, but ultimately tendered absolutely as Exhibit 12
[25]Initially tendered for identification, but ultimately tendered absolutely as Exhibit 13
[26]Initially tendered for identification, but ultimately tendered absolutely as Exhibit 14, noting the exhibit is incorrectly dated as 23 July 2019. By agreement, the correct date is 5 December 2019
[27]Initially tendered for identification, but ultimately tendered absolutely as Exhibit 15
19Upon granting leave to the plaintiff to re-open, I allowed those exhibits to be tendered absolutely. They now form part of the evidence on the substantive application for leave to extend time.
Ruling – should leave be granted to extend time?
Statutory framework and applicable principles
20The parties agree that under s5(1)(a) of the Act, the plaintiff had 6 years within which to commence common law proceedings in respect of each of the two incidents in which she claims to have sustained personal injuries during the course of her employment with the defendant and specifically in respect of the particular injuries sustained in 2008 and 2016.[28]
[28]Mr Tobin had an alternative argument about the date upon which time expired. Initially, Mr Tobin submitted that the period expired in July 2013: see T3, Line (“L”) 31 to T4, L18. He further developed the submission at T234 – 242, but abandoned the argument at T247. See also paragraphs 3–5 of the Plaintiff’s written submissions dated 23 April 2023 tendered as exhibit O.
21Despite this, the plaintiff submitted that time had expired in relation to the 2008 incident before the passing of six years:
“4. The calculation of the limitation period in this proceeding is pursuant to section 134ABA(b) of the Accident Compensation Act 1985 (Vic) and so the proceeding is taken to have commenced on 5 July 2019. Therefore any injury up to 5 July 2013 is statute barred.
5. The Plaintiff accordingly does not dispute that these proceedings were issued out of time with respect to the 2008 incident, with the limitation period expiring in respect to that incident on 24 October 2014.”[29]
[29]Exhibit O, Plaintiff’s Amended Submissions dated 23 April 2023, paragraphs 4 and 5.
22Mr Tobin explained:
“The Plaintiff made an application by way of a Form A on the 5th of July 2019. That’s an application for a serious injury. She had not previously made an impairments benefit application. In fact her workers compensation claim which was made as set out in the affidavit of Mr Vittorio has never been accepted, it was denied.
We mention the date of that application, Your Honour, because without leave of the court, the first incident being on the 24th of October 2008, is statute barred. And the period of time the Plaintiff is statute barred to, is to the 5th of July 2013. Although s.5 of the Limitation of Actions Act talks about proceedings having to be brought within six years, pursuant to s.134ABA of the Accident Compensation Act, the period of time in which to bring proceedings is not the date of the issue of the writ.
Section 134ABA is headed “Calculation of Limitation of Actions period”, and it then talks about it being six years from the date of the serious injury application being made.
So what we are seeking in effect is for the Plaintiff to have leave in nunc pro tunc to issue proceedings, but the period of time which is statute barred is from 2013. But we’re only seeking it in relation to the event of 2008.”[30]
[30]T3, L31 – T4, L18
23Howsoever calculated, the plaintiff must obtain leave to extend time to bring her common law proceeding in respect of the 2008 incident.
24Section 23A of the Act provides:
“23A Personal injuries
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) 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 of the Plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the Plaintiff acted promptly and reasonably once he 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;
(f) the steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4)The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding—
(a) that—
(i)in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and
(ii)in any other case more than 6 years has expired since the cause of action accrued; or
(b) that an action in respect of such personal injuries has been commenced.
(5)An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.
(6)Except as provided by section 27M(2), this section does not apply to an action to which Part IIA applies.”
25The relevant principles are summarised in Griffiths v Nillumbik Shire Council:[31]
“[68]The principles that apply to an application of this type are uncontroversial and can primarily be derived from the decisions of the High Court in Brisbane South and more recently in Prince Alfred College:[32]
(1)The applicant, for an extension of time, bears the onus of establishing that it is just and reasonable to order that the limitation period be extended. It is for the applicant to prove the facts which enliven the discretion to grant the extension and to show good reason for exercising the discretion in his or her favour;[33]
(2)The purpose of a discretion conferred by provisions such as s 23A is to ensure a fair trial on the merits of the case. Loss of evidence, which tends against the prospect of a fair trial, will usually be fatal to an application to extend time;[34]
(3)The relevant delay commences from the time of the accrual of the cause of action;[35]
(4)Relevant prejudice to a defendant is both that which occurs by reason of the delay (such as the demonstrable loss of documents or testimony of a relevant witness) as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period;[36]
(5)In cases of long delay, there is presumptive prejudice as important, perhaps decisive, evidence may disappear without its existence ever being apprehended;[37]
(6)The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them.”[38]
[31][2022] VSCA 212 at paragraph [68].
[32]258 CLR 134, 164-5 [99] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ).
[33]Prince Alfred College (2016) 258 CLR 134,164-5 [99] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ); Brisbane South (1996) 186 CLR 541, 544 (Dawson J), 547 (Toohey and Gummow JJ), 551, 553–554 (McHugh J), 567, 573 (Kirby J).
[34]Prince Alfred College (2016) 258 CLR 134, 165 [100] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ); Brisbane South (1996) 186 CLR 541, 544, 549–550 (Toohey and Gummow JJ), 556 (Kirby J).
[35]Delai v Western District Health Service [2009] VSC 151, [22]; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Limited v Scardamaglia [1996] 1 VR 7.
[36]Brisbane South (1996) 186 CLR 541, 544 (Dawson J).
[37]Brisbane South (1996) 186 CLR 541, 551 (McHugh J); Prince Alfred College (2016) 258 CLR 134, 165 [100] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ).
[38]Tsiadis v Patterson (2001) 4 VR 114, 123 [33] (Buchanan JA) (‘Tsiadis’). See also Bell v SPC[1988] VR 123, 125–126.
26In Prince Alfred College Inc v ADC[39] the High Court explained the principles underlying the factors relevant to the exercise of discretion as they applied to similar provisions in South Australian legislation:
“The exercise of the discretion
[99] In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court’s decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.”
[100] Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.”[40]
[39](2016) 258 CLR 134
[40]Ibid at [164]–[165], paragraphs [99]–[100] – footnotes omitted
27In Griffiths v Nillumbik Shire Council[41] the Court of Appeal also referred to the underlying purposes of the limitation period:
“[64]The statements of principle of the High Court in Brisbane South Regional Health Authority v Taylor remain the yardstick. Provisions such as s 5(1)(a) represent a judgment by the legislature that a right of a party to pursue a cause of action is not unlimited. There is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion. Delay is productive of unfairness and prejudice: evidence is lost or diluted; witnesses may not be able to be called, their memories fade and reconstruction may take over.
[65] As McHugh J stated:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
[66] To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable 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.”[42]
[41][2022] VSCA 212
[42]Ibid at paragraphs [64]–[65], footnotes omitted
The Plaintiff’s evidence
The Plaintiff – Vidanka Guskic
28Four affidavits sworn by the plaintiff were tendered:
(a) Exhibit A – Affidavit sworn 5 July 2019 in support of the plaintiff’s application to bring common law proceedings as a result of injuries sustained throughout the course of her employment with the defendant and/or in an incident that occurred on 24 October 2008 and/or in an incident that occurred on 13 September 2016;
(b) Exhibit B – Further affidavit of the plaintiff in support of her application to bring common law proceedings, sworn 1 February 2021;
(c) Exhibit C – Affidavit of the plaintiff sworn 21 February 2023 in support of her application for extension of time under the Act; and
(d) Exhibit H – Further affidavit of the plaintiff, sworn 22 March 2023.
The Plaintiff’s evidence in support of her application for leave to bring common law proceedings
29In her reasons for decision granting leave to the plaintiff to bring common law proceedings in respect of both incidents,[43] her Honour Judge Davis summarised the plaintiff’s evidence, which summary I gratefully adopt:
[43]Guskic v Ritchies Stores Pty Ltd [2021] VCC 738
“4 The Plaintiff’s evidence can be briefly summarised as follows.
5 She is 60 years old and arrived in Australia from Bosnia in 1991 at the age of 31. She had limited English skills. She stayed at home to raise her four children. She suffered from fibromyalgia in 2002 but recovered. She is right-handed.
6 Her first job in Australia was with the Defendant, for whom she commenced working in July 2006, initially as a cashier. She then worked as a cash office controller, which she performed at various supermarkets in and around Melbourne, although she worked predominantly at the West Bentleigh store. She was good at her job and when she finished her cash control duties at West Bentleigh she would stack supermarket shelves.
7 The first incident occurred on 24 October 2008 while she was stacking bottles of soft drink on the top shelf. She stood on the bottom shelf, held onto the shelves with her left arm, and used her right arm to lift a package of 24 bottles from the top shelf of the fridge, when she felt a click followed immediately by severe pain and restrictions in her neck. She was reluctant to report this incident and injury to her employer at the time because she feared she might lose her job.
8 She sought medical treatment for her neck condition and kept working. Radiological investigations in late 2008 confirmed a disc herniation at C5/6 with “mild ventral indentation without frank cord compression or central canal stenosis”, as well as “shallow relatively broad based left paracentral disc herniation which does not contact or compromise neural structures” at C6/7. On 7 January 2009, she awoke and could not walk, and on 9 January 2009 she underwent emergency surgery in the form of a C5/6 anterior cervical decompression and fusion. The Defendant’s assistant manager, Samuel Butler, visited her after surgery and she told him about how she was injured, but she could not recall whether she mentioned the employment-related circumstances of the 2008 injury to her treating doctors at the time.
9 She had a good result from the surgery with only mild persisting symptoms of pain and restriction. She returned to work after three months on limited hours but resumed full time hours about one month later. Her position changed to that of relief worker, replacing staff at various supermarkets. She was expected to complete the cash controller work and also to stack shelves, work on the register, clean and close the stores.
10 There were complaints of neck pain to her doctor on a few occasions in 2013. During 2014 she experienced increasing neck pain and right shoulder and right arm pain. She could not manage full-time work as a cashier, and requested a reduction of hours to 23 hours per week. In early 2016, she developed increasing neck pain and recurrent right shoulder and arm pain, with some numbness in the digits of the right hand. She was to be seen as an outpatient by a neurosurgeon but her appointment was delayed.
11 The second incident occurred on Tuesday, either 6 or 13 September 2016, while she was closing a supermarket in Wantirna. Part of the closing up tasks included picking up and hanging up rubber floor mats near the register, to enable the cleaners to clean the store overnight. Each mat weighed about 6 kg. This was the first occasion that the Plaintiff was to pick up the mats. She picked up one mat from the floor. When picking up the second or third mat, she experienced a sudden onset of severe neck pain. She told her colleague, Elwyn Heald, that she had severe neck pain and arm pain. The Plaintiff conceded that this conversation could have occurred either on the day of the incident or on the following Tuesday. Elwyn Heald knew that the Plaintiff was to pick up the mats on the day she was injured, but did not see her do it. There were no supervisors at the store at the time, and two days later the Plaintiff told her manager, Bruce Enmore, and her assistant manager, Moeez Ejaz, that she had severe pain in the neck and arm. She asked Mr Ejaz whether she needed to fill in any forms concerning her work injury, but he told her not to worry. She was told to have a massage. This was the first time in her life she had been for a massage.
12 Her neck pain became progressively worse, and although she returned to work after two weeks in October 2016, she found that she could not cope. She was referred to Mr Patrick Lo, neurosurgeon, in October 2016, who diagnosed a left C6/7 disc prolapse and adjacent segment disease. Mr Lo performed two left C7 nerve sheath injections which gave her only short-term relief.
13 Her treatment was then taken over by another neurosurgeon, Mr Alex Adamides, who performed surgery on 6 May 2017 in the form of a left C6/7 posterior foraminotomy. The Plaintiff woke from that surgery with right-sided arm pain, which persisted. The surgery did relieve her left arm pain and neck pain for a while.
14 In 2018 and 2019, she underwent pain management treatment in the form of a combination of physiotherapy, hydrotherapy and psychological treatment, and found this helpful. However, she continued to have significant neck pain with referred pain into the right arm. She had further investigations which did not reveal any ongoing nerve compression in the CS, but her treating general practitioner, Dr Macaulay, considered that some of her right shoulder pain could be related to the neck injury. She has had 6 cortisone injections for her neck, right shoulder and arm symptoms and has seen her treating neurosurgeon 3 times this year. Mr Adamides has flagged the possibility of a further cortisone injection and then possibly further surgery to the CS.
15 She continues to suffer constant neck pain with referred pain into the right arm. She has restrictions in movement which cause her difficulty showering, washing her hair and dressing. She takes medication daily (Lyrica, Mobic, Panadol Osteo and Nurofen) for her symptoms, which interfere with her sleep, and which have caused her to suffer depressive symptoms. She has become socially isolated. She cannot sit, stand or walk for long periods, and is unable to do domestic cleaning or to drive more than short distances. She used to love long walks, swimming, cooking, gardening, sewing and reading, but can no longer undertake these activities. She is unable to care for her younger grandchildren and is very disappointed about this. She is no longer able to travel to Serbia to visit her children and grandchildren there.”[44]
[footnotes omitted]
[44]Ibid at paragraphs [4]-[15]
Exhibit C – Plaintiff’s affidavit in support of current application
30In a brief affidavit in support of her current application, the plaintiff deposed that initially she did not believe that she would suffer any long term problems arising from the injury sustained in 2008. She stated:
“4.When I suffered the injury on 24 October 2008, I initially did not believe it would be a long-term problem. I discussed the fact of the injury with my husband and children on the night of the injury and in the weeks thereafter. I did not make a complaint of my injury to my employer nor make a claim for compensation as I was fearful if I did so I would lose my employment.
5. I believe I was a respected employee of the Defendant as was noted by Her Honour Judge Davis in her summary of evidence of co-workers at paragraph 17, 18 and 19 of her reasons.
6. Having made up my mind I would not make a claim for compensation I underwent the surgery as a public patient.
7. Subsequent to the surgery when convalescing at home I was visited by Samuel Butler who was the Duty Manager — Assistant Manager at the West Bentleigh and East Bentleigh store with a Supervisor Karen Drummond. I explained to Mr Butler and Ms Drummond at that time how I had suffered my injury but that I did not wish to make a claim and that I hoped to be back to work in the very near future. In fact returned to work shortly thereafter wearing a cervical collar and on limited duties and built my hours up to full time.
8. I maintained employment until the occurrence of the second incident in September 2016 when I made a claim for compensation. I then advised of the first incident in the claim form noting
“I wanted to keep working. The Manager and others know. I love my job and needed the income.”
9. I knew when I made the claim in October 2016 that I was going to be significantly impaired in the future and thus made a claim for compensation.
10. I was hopeful in 2018 that I would not be significantly impaired in the future and cherished my employment and I did not make a claim at that time for fear that it would result in my termination of employment.”
(Sic)
Exhibit H – the Plaintiff’s further affidavit
31This affidavit was tendered after the plaintiff was given leave to re-open.
32In this affidavit, the plaintiff expands on the circumstances surrounding the initial decision to not pursue a claim in respect of the 2008 incident:
“1.I refer to my previous affidavit dated 21 February 2023 (“my previous affidavit”).
2. I seek to clarify paragraph 4 of my previous affidavit. In that paragraph I refer to the fact that I did not make a claim for compensation following the 2008 incident. At that time I was aware that Workcover existed in Victoria. However I did not know any of the specifics around what compensation was available or how the Workcover system worked. At that time I did not personally know anyone who worked for the Defendant who was on Workcover.
3. I refer to paragraph 8 of my previous affidavit. In fact in or around 2014 I asked my manager to reduce my hours due to the pain I was experiencing in my neck and left upper limb. At that time I still did not consider making a Workcover claim as I thought if I did less hours then my pain would settle. Also as it turned out there were still many weeks when I would work 30-40 hours as I worked for the Defendant whenever they needed me to do relief work.
4. It was only when I was unable to continue working at all that I took steps to find out what my legal rights were.
5. After the second incident in September 2016 a friend recommended I see Patrick Robinson, solicitor. I made an appointment and attended the offices of Patrick Robinson & Co (“the solicitors”) on or about 6 October 2016. This was the first time I had sought legal advice with respect to any work related injuries.
6. I had my first consultation with Patrick Robinson. During that first appointment I told Mr Robinson about the 2016 incident as well as the 2008 incident. Mr Robinson told me that I only had 6 years from the date of a work related incident to bring proceedings for what he called damages. This was the first time I was made aware that there were any time limitations. Mr Robinson told me that if we proceeded with that claim we would need to ask the Court for permission to bring proceedings out of time. At that same consultation Mr Robinson helped me to make a Workcover claim (“the claim”).
7. Not long after the claim was rejected I finally got in to see a specialist, Patrick Lo. Mr Lo told me that I would likely need urgent surgery and given the claim had been rejected he referred me to the outpatients clinic of the Royal Melbourne Hospital so that I could get the treatment that I needed.
8. After seeing Mr Lo, I contacted the solicitor and told then that I needed urgent surgery. I recall having a discussion with a different solicitor who explained to me that it could take months to challenge the insurer’s decision to reject my Workcover claim. Consequently I decided to just proceed as a public patient to get the treatment I desperately needed. The solicitor told me to keep the solicitors updated as to my injuries and the treatment I was receiving.
9. Thereafter I contacted the solicitors on a number of occasions to give them updates on my symptoms, my treatment, and investigations I was having.
10. In or around early 2019 I informed the solicitors that I had seen enough doctors and that I would not be seeking out new treatment.
11. A short time later the solicitors made an appointment for me to go see a barrister to help me draft an affidavit.
12. From the time that I first saw the solicitor in October 2016 I have followed their advice. From my first appointment with Mr Robinson I understood that at some point I would need to ask the Court to allow me to rely on the 2008 incident if I was to pursue that claim.”[45]
[45]Exhibit H, paragraphs 1–12
The Plaintiff’s viva voce evidence
33The plaintiff gave viva voce evidence with the assistance of an interpreter and adopted the contents of her four affidavits.[46]
[46]T168–178; Exhibits A, B, C and H
34When cross-examined, the plaintiff testified that after the alleged incident in 2008 she immediately returned to work full-time but only undertook office work. After the onset of pain and resulting operation in January 2009, she then had three months off work, after which she returned to her original position with the defendant. She confirmed she continued to work at the West Bentleigh and other stores, undertaking the same kind of work as prior to the incident.[47]
[47]T169–171
35The plaintiff agreed that between 2014 and 2016 she began to experience a problem with her shoulder and “a little bit” of pain in her neck. She confirmed that she “began to experience pain in [her] neck and referred pain into [her] right shoulder and arm during 2014”, and was thus “unable to cope with full time work”.[48] The defendant reduced her hours to 23 hours per week, but she commonly worked up to 40 hours per week, including her hours as a relief worker.[49] She no longer worked the register, however, because it was “too much” for her left arm.[50] The plaintiff stated that she felt she “could not refuse the repeated requests to work longer hours” as she was concerned about her long-term career.[51]
[48]T171; Exhibit A
[49]T171
[50]Ibid
[51]T173
36The plaintiff underwent physiotherapy, and had ultrasounds and a cortisone injection, although she could not recall precisely when.[52]
[52]T171, 173
37The plaintiff testified that she first consulted a solicitor, Mr Robinson, a few weeks after the second incident in 2016. At that meeting Mr Robinson informed her that “the first incident is actually a little bit old”[53] and that she had six years from the date of the incident to bring proceedings for damages, which was the first time she had been made aware of such a time limitation.[54]
[53]T173
[54]T174
38The plaintiff could not recall what other action Mr Robinson suggested in relation to the 2008 incident, but agreed that:
(a) it was clear at that meeting that the sooner she asked the court for permission to bring proceedings the better, and
(b) that there was some urgency about an application to extend time.[55]
[55]T175
39The plaintiff stated that Mr Robinson said he would “do something about the serious injury.”[56]
[56]T174
40When asked whether she had asked Mr Robinson or anyone else at the firm about an application to extend time after the first meeting in 2016, the plaintiff stated “I didn’t understand the law. I mean to this day I don’t know the law fully, so yeah.”[57]
[57]T176
41The plaintiff agreed that at the time of her consultation with Mr Robinson in 2016, it was obvious that both the 2008 and 2016 incidents were “important factors in the development of [her] neck condition”.[58]
[58]T176
42When re-examined, the plaintiff confirmed she had not sought legal advice from any other firm prior to her meeting with Mr Robinson, or since.[59] The plaintiff recalled that a worker’s compensation claim form was completed at the 2016 meeting on her behalf, perhaps by Mr Robinson, and that the writing in the claim form was not hers.[60] The plaintiff had not seen an investigation report or circumstances report from her employer after the 2016 incident.[61]
[59]T176, 177
[60]Annexure AD1 to Exhibit J; T177
[61]T177
43The plaintiff further stated that she did all that was asked of her by Mr Robinson’s firm, such as attending doctors’ appointments.[62]
[62]T177
Affidavit of Samuel Butler
44Mr Samuel Butler worked with the plaintiff at the West Bentleigh and East Bentleigh stores. His affidavit of 21 February 2023 was tendered as Exhibit D. In his affidavit Mr Butler described the plaintiff as a “workhorse”[63] and stated that the plaintiff worked in the cash office, on the floor, and at the registers.
[63]Exhibit D, paragraph 2
45Because he was concerned for the plaintiff’s wellbeing during her absence from work, together with another co-worker, Ms Karen Drummond,[64] Mr Butler attended the plaintiff’s home. Mr Butler deposed:
“3.… During this visit Vidanka advised that she hurt herself at work in the cool room. She described that she was lifting Coco-Cola [sic] slabs to store on the shelf. I recall that it was 24 Coco-Cola [sic] bottles (600ml each).”[65]
[64]In relation to Ms Drummond’s presence at this visit, Mr Tobin submitted that the Plaintiff’s solicitors were unable to obtain an affidavit from Ms Drummond on account of her illness. This fact is supported in the affidavit of Trent Francis Vittorio dated 17 March 2023 (exhibit 9), whose affidavit confirmed that despite making contact with Ms Drummond’s husband on two occasions, the Defendant’s solicitor was also unable to obtain an affidavit from Ms Drummond on account of her illness.
[65]Exhibit D, paragraph 3
46Mr Butler stated that the plaintiff was afraid to report her injuries because she did not want to cause any trouble and she was fearful of losing her job.
47Mr Butler also noted that the plaintiff wore a neck brace for some time after she returned to work. He stated that he “could see she was in pain but given her work ethic she wanted to solider [sic] on”.[66]
[66]Exhibit D, paragraph 5
Affidavit of Diana Barski
48In her affidavit dated 21 February 2023 tendered as exhibit E, Ms Diana Barski, a close friend of the plaintiff for approximately 25 years, described the plaintiff as “the most hard-working person that I have ever met”.[67] Ms Barski also stated that the plaintiff “loved working”[68] and that she was happy and proud to be earning an income.
[67]Exhibit E, paragraph 5
[68]Ibid, paragraph 5
49The plaintiff reported to Ms Barski that she was “lifting coco-cola [sic] bottles at work and felt a click”.[69] Ms Barski stated that she could see the plaintiff was “struggling from severe neck pain”.[70]
[69]Ibid, paragraph 7
[70]Ibid, paragraph 7
50Despite being encouraged by Ms Barski to do so, the plaintiff declined to submit a WorkCover claim, saying “this country has been so good to me, I do not want to be seen as a bludger and I have worked hard to get this job”.[71]
[71]Ibid, paragraph 7
51Ms Barski deposed that the plaintiff was hopeful that she would get better but “did not realise the extent of the damage this incident caused her”.[72] After the second incident the plaintiff knew that she “could no longer continue working given the severe pain she was in”. This made the plaintiff “quite depressed”.[73] The plaintiff told Ms Barski:
“[M]y life is forever changed, I want to do just anything so that I can continue working. I do not want to lodge a WorkCover claim”.[74]
[72]Ibid, paragraph 10
[73]Ibid, paragraph 10
[74]Ibid, paragraph 10
Mr Patrick John Robinson
52Mr Patrick John Robinson, solicitor, was the first legal practitioner that the plaintiff saw in relation to her claimed injuries. His affidavit of 24 March 2023 was tendered as exhibit K, after the plaintiff was given leave to re-open. In this affidavit, Mr Robinson stated that his first consultation with the plaintiff was conducted on 6 October 2016. The plaintiff’s husband, Mr Dobric, was also present at the meeting.
53During the consultation, the plaintiff detailed the history of her work injuries. Mr Robinson advised the plaintiff as to her possible statutory entitlements and he explained the serious injury gateway to common law proceedings.
54Mr Robinson referred to his usual practice of explaining entitlements to clients:
“7.I… have a standard dialogue around each of these entitlements, what is involved in each aspect (including the serious injury thresholds that need to be met), timelines (including how long after an injury an impairment benefit can be made and the need for stabilisation before lodging a serious injury application), and limitation periods. Specifically for a work-related injury it is my practice to explain to a client that they have a 6-year window from the date of the injury to commence an action for damages. If a client is out of time, I will go on to explain the process of making application to the Court to seek leave to extend time and that there is no guarantee that the Court will grant the application. I believe that I addressed each of these matters in my initial consultation with the Plaintiff.
8. During the initial consultation the Plaintiff told me about an incident in 2008 when she was injured in a specific incident at work. She told me she had surgery and had returned to work. She also told me that she had not previously made a claim for compensation with respect to the 2008 incident, had not sought legal advice, and that she had not formally reported the incident to her workplace.
9. I asked the Plaintiff why she had not made a claim in 2008 and she told me that she just wanted to keep working. Mr Dobric told me that he did not believe in WorkCover, that he and his wife were hard workers, and were grateful for what this Country had given them, and that Workcover was not something they wished to apply for. The Plaintiff also told me that she was not aware of the intricacies of the Workcover system.
10. I explained that a claim for damages arising from injuries sustained in the 2008 incident was now out of time and statute barred unless a court granted an extension of time.
11. At that time given the instructions I had taken from the Plaintiff that she had had a successful surgery and had managed to return to work, and that she had been able to continue working until this second incident she described in 2016 I formed a preliminary view that the Plaintiff was unlikely to be granted a serious injury certificate for the injury sustained in the 2008 incident (“my preliminary view”). My view at that stage was that the strongest case for the Plaintiff was likely relying upon her 2016 incident and potentially her general work duties, depending on what medical opinions were expressed. I gave that advice to the Plaintiff verbally.
12. I recall the initial consultation was lengthy (more than an hour) with a considerable amount of time spent with the Plaintiff considering whether or not she wanted to proceed with a claim for the 2016 incident. The Plaintiff communicated to me that what she really wanted was to ensure a steady flow of income until she could find a way to get back to work.
13. Ultimately during the initial consultation, the Plaintiff instructed me to assist her with lodging a Workcover claim in respect of the 2016 incident. To be prudent I advised the Plaintiff to include reference to the 2008 incident and her general duties in the WorkCover claim form, noting that I would seek additional medical material moving forward to assist us in advising on the merits of pursuing those aspects of her claim. Further, I advised that the Plaintiff ought to put the Defendant on notice as soon as possible about the 2008 incident should she ultimately… wish to pursue a claim for injuries arising thereto.”[75]
[75]Exhibit K, paragraphs 7-13
55Mr Robinson assisted the plaintiff to complete the WorkCover claim form.
56Mr Robinson set out a chronology of the actions he took on the plaintiff’s behalf following the initial consultation, which included obtaining the plaintiff’s clinical file from her previous treating general practitioners.
57On or about 19 October 2016 the plaintiff advised that her treating specialist, Mr Patrick Lo, neurosurgeon,[76] had informed her that her condition was worse than he thought and that there was no way she could work.[77] Mr Lo advised the plaintiff that she needed surgery as a matter of urgency, which she underwent in approximately 6 May 2017. This was her second surgery.
[76]See exhibit J, affidavit of Amila Destanovic, paragraph 11
[77]See file note dated 19 October 2016, exhibit TFV-3 to exhibit 12, the further affidavit of Trent Francis Vittorio dated 18 April 2023
58The clinical notes from Dr Curran’s[78] practice were received on or about 3 November 2016. A perusal of those notes suggested that the plaintiff had made a good recovery from the fusion surgery conducted in 2009. Mr Robinson found no further complaints of relevant symptoms up until the plaintiff last attended Dr Curran in January 2012.
[78]The given name and specialty of Dr Curran does not appear in the evidence tendered by the parties.
59On 4 November 2016, the employer’s authorised agent notified the plaintiff of its decision to reject the plaintiff’s claim for compensation. In part the rejection was said to be based on a report from Dr David Barton, medical examiner, who opined that the 2008 incident had no relevance to the 2016 claim. The rejection notice also referred to a Circumstance Investigation Report noting that the plaintiff had not made a formal complaint about the 2008 incident.
60On or about 15 November 2016, Mr Robinson had a further conference with the plaintiff and her husband in which they discussed the notice of rejection, noting that two insurance doctors had provided unfavourable reports. Mr Robinson discussed the avenues that could be pursued to challenge the decision and it was agreed that a request for conciliation be lodged.
61Mr Robinson received the clinical notes of the plaintiff’s general practitioner, Dr Trung Ly, regarding the plaintiff’s treatment. Those notes included only “a handful of sporadic complaints from the first entry in January 2013 – 2016.”[79]
[79]Exhibit K, paragraph 25 after perusing the clinical files of the plaintiff’s previous treating general practitioner
62After perusing the clinical files of the plaintiff’s previous treating general practitioner, Mr Robinson was fortified in his preliminary view that the focus should be on the 2016 incident which had put the plaintiff out of work.
63Reports from treating practitioners received relatively soon thereafter did not change Mr Robinson’s preliminary view.
64On or about 3 April 2017 Mr Robinson had a further conference with the plaintiff, her husband, and Mr Ryan Licastro, another solicitor employed by the firm to whom Mr Robinson handed over carriage of the plaintiff’s file. During that conference, Mr Robinson advised the plaintiff to pursue her income protection payments and to consider serious injury/common law proceedings in relation to the 2016 incident if that becomes an option, depending on the outcome of the surgery. He advised that this would be the preferable course to challenging the notice of rejection. The plaintiff instructed Mr Robinson to act accordingly and agreed to keep his firm informed about her medical progress so that further advice could be given regarding the 2016 incident and injuries arising in the course of her employment.
65Mr Robinson deposed:
“32.Based on the material to hand at the time I had conduct of the Plaintiff’s file I did not advise the Plaintiff to pursue her claim for the injuries she sustained in the 2008 incident. I did however explain her potential rights and the process for seeking leave to pursue that claim if she wanted to.”[80]
[80]Ibid paragraph 32
66When cross-examined, Mr Robinson testified that the time limit within which to bring proceedings in respect of the 2008 injury had expired. His initial belief was that the plaintiff’s claim in respect of this injury would not likely be successful. He explained why this was so:
“On the face of it, we’re dealing with a client who comes in, she’s had an injury at work in 2008, which is out of time. She’s had an operation, but to all intents and purposes, she’s – her instructions to me were that she’d had very little, if any, medical treatment for it. She’d returned to work on a full time basis. And then she’d had the 2016 incident when she was working 23 hours a week, but being asked to do a fair bit of overtime on a regular basis. I did not think there was very much hope of that being successful at that time.”[81]
[81]T145-144
67Although he had been instructed about the 2008 injury, he felt that there was no proper basis to bring a serious injury claim in respect of it until he had sound evidence to support it. He did not have that evidence until much later in the piece when he obtained a report from Professor Richard Bittar, neurosurgeon, who opined that there was a nexus between the 2008 and 2016 incidents resulting in the plaintiff’s current injuries. Mr Robinson explained:
“I thought … there was simply not enough material there at that moment in time for that to be the basis of a proper serious injury application, with the requirements that are there when you make such an application. You don’t … decide on a case on the first initial conference. You collect material and you see where that takes you.
…
There are many, many people who come in who have had earlier injuries, where they are not going to come within a bull’s roar of a serious injury application. And then there are others that you choose a different path to go down. It all depends on the material.… [U]ltimately the medical material leads you to where you end up, and this is the way this case developed. The medical material came out, and eventually there was enough material to lodge a serious injury application with both incidents in the course of employment [3 years later in 2019].… During that three years, this lady’s medical condition was very uncertain.… You need a period of time after an operation to determine – for the specialists to determine whether there is – it’s been successful or it hasn’t been successful.
… If you’re conducting yourself properly and in accordance with the Civil Procedure Act, you should not be issuing a serious injury application while a person’s condition is not stable. It’s a one-shot situation, you get one chance at it. And you can’t muck it up.”[82]
[82]T145-146
68Mr Robinson eschewed any suggestion that it would be appropriate to lodge a “Form A” before there was medical evidence that could support it.[83] He noted that the medical evidence emerged over time and was not necessarily consistent:[84]
“I think the whole thing about this case was the medical opinion was all over the park. Initially it wasn’t very helpful but as time went on it began to get more helpful and when it came to the time to draw the serious injury application and the affidavit in support, it was wide enough for the barrister who prepared the papers to include both incidents and general course of employment in the – in the material.”[85]
[83]T148
[84]T152-153
[85]T152
69Mr Robinson considered it to be a waste of time and money to seek expert medical opinions until such time as the injuries settled.[86]
[86]T157
70Although he was aware that it might be necessary to seek an extension of time under the Act, at the relevant time he might not have been concerned about this because in the past the WorkCover Authority did not usually press the limitation point.[87]
[87]T160-161
71Mr Robinson initially had carriage of the plaintiff’s file, but then it was handed over to other solicitors in the firm, including Mr Ryan Licastro,[88] Mr Dimche Talevski and Ms Amila Destanovic.
[88]T151; Mr Licastro took over carriage of the file in around April 2017 – Exhibit K paragraph 31.
Ms Amila Destanovic
72Ms Amila Destanovic, a solicitor employed by the firm Patrick Robinson & Co, made two affidavits. These affidavits were tendered after the plaintiff was given leave to re-open.
73In her affidavit of 22 March 2023, tendered as exhibit J, Ms Destanovic deposed that she has had carriage of the plaintiff’s file since July 2020.
74Ms Destanovic’s perusal of the file revealed the following history:
75On or about 6 May 2017 the plaintiff had her second surgery by way of left foraminotomy as a public patient. Following the second surgery, the plaintiff instructed that although some minor improvement resulted in her neck and left side, she was suffering a worsening of her symptoms and had developed new symptoms in her right shoulder and upper limb that she planned to investigate and have treatment for.
76The file records that in the period 2017 to 2018 the plaintiff underwent a number of investigations regarding her right upper limb symptoms which included:
(a) MRI scan of her cervical spine performed on 29 June 2017;
(b) X-ray of the right shoulder on 21 June 2017;
(c) Ultrasound of the right shoulder on 10 July 2017;
(d) MRI of the right shoulder performed 23 November 2017;
(e) A further MRI scan of her cervical spine performed on 19 January 2018;
(f) X-ray and ultrasound of the right shoulder on 8 February 2018; and
(g) Nerve conduction studies in early 2018 at Dr Rollingson’s neurological clinic.
77The plaintiff also sought the following further treatment:
(a) Rehabilitation through Community Health in Dandenong for approximately 12 months or so following the second surgery;
(b) Appointments with Dr Gassin, musculoskeletal and interventional pain management specialist (from 17 January 2018 — February 2018);
(c) A cortisone injection into the right shoulder on 19 July 2017;
(d) Attendances upon Mr Khan, orthopaedic surgeon, for opinion with respect to the right shoulder and upper limb symptoms (attendances on 25 October 2017, 15 December 2017 when Mr Khan referred the plaintiff for a pain management course and to the Neurosurgical Outpatients Clinic at Monash, 11 February 2018); and
(e) Attendances upon the Caulfield Pain Management Course at the Caulfield Pain Management and Rehabilitation Clinic which the plaintiff completed in October 2019.
78In or around late 2017 the plaintiff reported having some problems with her hip and lower back.
79In or around December 2018 the firm received a report from the plaintiff’s treating general practitioner, Dr Macauley, who opined that the majority of the plaintiff’s symptoms related to the 2016 incident, with only some of the symptoms referable to the 2008 incident.[89]
[89]See exhibit AD-3 to Ms Destanovic’s affidavit, exhibit J
80In approximately February 2019 the plaintiff instructed the firm that she was also now experiencing symptoms in her legs. She was advised to return to the firm after those symptoms and treatment options had been explored. Not long after that, the plaintiff confirmed that she would not be seeking out new medical treatment over and above what she was then having. As a consequence, on or about 9 May 2019, the firm briefed counsel to prepare documentation in support of an application for leave to bring common law proceedings.
81Counsel advised that reference to the 2008 incident should be included in the draft Statement of Claim. As a result, the plaintiff’s serious injury application was made in respect of impairment of the spine alleged to have been sustained in the course of the plaintiff’s employment with the defendant, or in the alternative, as a result of injuries she sustained on 24 October 2008 and on 6 or 13 September 2016.
82In preparation for the serious injury application, an expert report was obtained from Professor Richard Bittar. In his report dated 7 August 2020,[90] on the question of causation, Mr Bittar opined:
[90]Exhibit AD-4 to the affidavit of Amila Destanovic, exhibit J
“In my opinion, [the Plaintiff’s] employment has been a significant contributing factor. Specifically, the following workplace activities have been a significant contributing factor to her ongoing pain, disability and requirement for treatment:
1.Her repetitive and often heavy workplace activities, frequently carried out at fast pace over a number of years since 2006.
2.The injury at work on October 24, 2008 which led to a requirement for her to undergo a cervical spine fusion.
3.The injury which occurred at work on September 13, 2016, which arose when she was lifting a mat.
4.The fusion undertaken in 2009 has almost certainly contributed to the development of adjacent segment disease at C6/7, which became symptomatic in 2016.
In my opinion, her employment remains a significant contributing factor to her ongoing neck pain, arm pain and headaches, and to her ongoing requirements for treatment.”[91]
[91]Exhibit AD-4 to the affidavit of Amila Destanovic, exhibit J
83By July 2020, Ms Destanovic had the care and conduct of the plaintiff’s file. The serious injury application was heard by her Honour Judge Davis on 8 June 2021, with judgment being delivered in favour of the plaintiff on 18 June 2021.
84Common law proceedings were issued on or about 5 November 2021.
85Ms Destanovic did not immediately thereafter apply for an extension of time within which to bring the common law proceedings in respect of the 2008 incident because, as she deposed:
“32.Unfortunately I was of the mistaken belief that extension of time applications were heard at the commencement of the substantive hearing.
33. On or about 12 January 2023 I received communication from the solicitor for the Defendant confirming that they will be maintain[ing] the limitations defence and an application to seek extension of time is required.”[92]
[92]Exhibit J, paragraphs 32 – 33; and exhibit AD-5 to exhibit J
86Following receipt of the advice from the defendant’s solicitor, Mr Vittorio, that an application to extend time was required, on 14 February 2023 Ms Destanovic filed the summons to bring the current application before the Court.
87In her second affidavit,[93] Ms Destanovic deposed to her efforts to obtain evidence from Mr Ryan Licastro, a solicitor, who had the carriage of the plaintiff’s file when he was employed by Patrick Robinson & Co in 2017. These efforts came to nought as Mr Licastro advised “that he is no longer practising and does not wish to have any dealings with the firm.”[94]
[93]Exhibit L, further affidavit of Amila Destanovic dated 24 March 2023
[94]Exhibit L, paragraph 4
88I accept this unchallenged evidence and draw no inference adverse to the plaintiff arising from the failure to call Mr Licastro as a witness.[95]
[95]I was not invited to make any such inference.
Affidavit of Dimche Talevski
89This affidavit was tendered after the plaintiff was given leave to re-open.
90Mr Dimche Talevski worked as a solicitor at Patrick Robinson & Co, between 2009 and March 2020. His affidavit sworn 11 April 2023 was tendered as Exhibit M.
91Mr Talevski took over conduct of the plaintiff’s file around May 2018 from Mr Ryan Licastro without the benefit of a handover discussion as Mr Licastro “left the firm abruptly”.[96]
[96]Exhibit M, paragraph 4
92After receiving the file Mr Talevski conducted a “lengthy review of the file”.[97] He paid regard to the file note taken by Mr Robinson on 6 October 2016, which Mr Talevski described as containing “a good summary”.[98]
[97]Ibid, paragraph 4
[98]Ibid, paragraph 4
93On or about 3 May 2018, Mr Talevski asked his assistant to obtain a Medicare claim history check, a Victorian WorkCover Authority claim check and a Freedom of Information request for the plaintiff’s WorkCover claim.
94Mr Talevski then met with the plaintiff on or about 2 November 2018. That day he also asked his assistant to obtain tax returns and medical reports and records from the “Plaintiff’s treaters”.[99]
[99]Ibid, paragraph 6
95On or about 14 March 2019, Mr Talevski briefed counsel to “prepare the Plaintiff’s serious injury paperwork”.[100]
[100]Ibid, paragraph 7
96Mr Talevski met with the plaintiff again on or about 5 July 2019 so that she could swear her affidavit. At this meeting Mr Talevski explained to the plaintiff that although he was of the view that the case should focus on the 2016 incident given the plaintiff’s successful surgery and her subsequent return to work until the 2016 incident, counsel had, however, included both the 2008 and 2016 incidents in the draft Statement of Claim. Mr Talevski advised the plaintiff that he would be guided by counsel, and sought the plaintiff’s instructions to include the 2008 incident in the draft pleadings. Mr Talevski reiterated to the plaintiff that she was out of time to claim damages in respect of the 2008 incident, however any necessary application to extend time could be made should her serious injury application be granted.
97Mr Talevski reviewed the clinical notes of the plaintiff’s treating general practitioners on or about 16 July 2019, and noted complaints of neck pain following the fusion surgery. Mr Talevski noted that Mr Patrick Lo, the treating neurosurgeon, “was supportive of the 2016 injury as being compensable”.[101] Mr Talevski deposed that he still believed that the strongest case was an “aggravation case” arising out of the 2016 incident.[102]
[101]Ibid, paragraph 9
[102]Ibid, paragraph 9
98Mr Talevski also noted that a report was received from the plaintiff’s treating general practitioner in or around December 2018. In this report the general practitioner opined that “the majority of the plaintiff’s then current symptoms related to the 2016 injury, with only some of the symptoms being from the 2008 injury”.[103]
[103]Ibid, paragraph 13
99The plaintiff lodged an application for a serious injury certificate on or about 18 July 2019, which was rejected by notification received on or about 18 November 2019. Accordingly, an Originating Motion seeking leave to bring common law proceedings in respect of both incidents was filed with the Court on 5 December 2019. Mr Talevski continued his preparation for the serious injury hearing up until March 2020 when he left the firm.
The Defendant’s evidence
100The defendant filed a number of exhibits and called no viva voce evidence.
Affidavits of Trent Francis Vittorio
101Mr Trent Vittorio is the solicitor who has carriage of the matter on behalf of the defendant.
102In his first affidavit, dated 9 March 2023, tendered as Exhibit 1, Mr Vittorio outlined the history of the plaintiff’s employment with the defendant, the alleged incidents, injuries and resulting surgery. Mr Vittorio also set out the history of the plaintiff’s initial WorkCover claim made on 6 October 2016 (which was refused) and her request for conciliation, which conciliation was also unsuccessful.
103Regarding the plaintiff’s knowledge of her legal rights and the steps she took to press them, Mr Vittorio noted:
(a) On 6 October 2016, Patrick Robinson & Co wrote to the defendant and advised that they were acting on behalf of the plaintiff;
(b) At the time of the Circumstance Investigation Report of 25 October 2016 prepared by LS Partners,[104] Patrick Robinson & Co were effectively then acting on behalf of the plaintiff;
(c) On 6 December 2016, Patrick Robinson & Co wrote to Dr M Curran and advised that they were acting on behalf of the plaintiff;
(d) On 2, 15 and 16 December 2016, Patrick Robinson & Co wrote to Outlook Drive Medical Centre, on each occasion advising that they acted on behalf of the plaintiff; and
(e) On 16 December 2016, Patrick Robinson & Co wrote to Mr Patrick Lo and advised they were acting on behalf of the plaintiff.
[104]Exhibit 7
104Mr Vittorio set out the procedural history of the matter. That procedural history is not in dispute and is set out in the chronology below.
105Mr Vittorio listed the medical records requested by the defendant, noting all records were received aside from those of Dr Robert Gassin. Of the documents received, and based on his examination of the notes of her consultations with Drs Curran, Phillips, Byrne and Drnda, Mr Vittorio observed that between 28 October 2008 and 23 December 2008 the plaintiff made no mention of the 2008 incident to those practitioners.
106Based on his examination of the medical records in the defendant’s possession, Mr Vittorio noted it appears that the plaintiff first mentioned the 2008 incident in a consultation with Dr Trung Ly on 3 October 2016.[105]
[105]Ibid, pages 4 – 5
107Mr Vittorio then considered the state of the evidence to support or contradict the plaintiff’s account of the incident. Mr Vittorio described the extensive efforts he had made to locate a potential witness, Ms Karen Drummond, a former work colleague of the plaintiff, who, with Mr Samuel Butler, also a former work-colleague, was said to have visited the plaintiff after her neck surgery in 2009.[106] Unfortunately, Mr Vittorio’s attempts to locate Ms Drummond were frustrated.[107]
[106]Exhibit C, paragraph 7
[107]In his affidavit of 17 March 2023, Mr Vittorio refers to the further attempts made to contact Ms Drummond since his last affidavit.
108Mr Vittorio also deposed as to his searches to determine whether the plaintiff had made any contemporaneous reports of her 2008 injury. In this regard, Mr Vittorio was informed that the only employee still currently employed by the defendant who was employed at the West Bentleigh store in 2008 is Mr Socrates Sotiropoulos. On 8 March 2023 Mr Sotiropoulos informed Mr Vittorio that he has no recollection of the 2008 incident being reported by the plaintiff, and believes that he would have filed an incident report if she had.
109Mr Vittorio referred to the affidavits of Mr Malcolm Cameron, Chief Financial Controller of Ritchies, Mr Jason Craig, Cash Office Administrator for the defendant, and Mr Bruce Atkin, store manager, all of whom have sworn affidavits (the contents of which are summarised below).
110Based on the documentation to hand, Mr Vittorio stated that he could find no record of injury reports or other reports mentioning the 2008 incident.
111Mr Vittorio referred to the defendant’s answers to interrogatories completed by Ms Kuys, which are summarised below.
112On the question of potential prejudice to the defendant should leave be granted to the plaintiff to bring proceedings out of time, Mr Vittorio stated that the employer has been unable to confirm what ladders or platforms were available at the West Bentleigh store, how the shelves in the cool room were stocked, or which Coca-Cola products were stocked at the time of the alleged incident.
113In his affidavit of 15 March 2023, tendered as Exhibit 2, Mr Vittorio deposed that the West Bentleigh store was sold in 2012 and is no longer under the defendant’s control.[108] That store is now operated by Aldi Foods Pty Ltd.[109] Mr Christian D’Urbano of Aldi Stores Pty Ltd told Mr Vittorio that the chiller in question was demolished and the current chiller at the West Bentleigh Aldi store was built in 2013.[110]
[108]Ibid, page 7; Exhibit 2, page 1
[109]Ibid
[110]Ibid, TFV-2
114In his further affidavit dated 18 April 2023, tendered as Exhibit 12 after the plaintiff was given leave to re-open, Mr Vittorio referred to documents provided to him by the plaintiff’s solicitors extracted from their files.[111] These file notes and documents are summarised in the chronology below, in the evidence of Mr Robinson and in the affidavits of Mr Talevski and Ms Destanovic.
[111]Copies of the relevant file notes are exhibited to the affidavit.
Affidavit of Jason Craig
115In his affidavit of 18 January 2021, tendered as exhibit 3, Mr Jason Craig deposed that he knew that the plaintiff had a problem with her neck or back, but does not recall the plaintiff ever mentioning the cause.[112] In exhibit JC-4 to his affidavit, the statement he made to LS Partners referred to earlier, Mr Craig stated:
[112]Exhibit 3
“28.Every store has occupational health and safety processes and food safety processes. There are various state-based territory managers responsible for these processes.
29. There are training courses arranged through outside companies, such as manual handling training and first aid courses. This would generally be managed at store level.
…
41. I knew [the Plaintiff] had a problem with her neck or with her back, but I did not know what the problem was exactly.
42. [The Plaintiff] never mentioned the cause of the problem with her neck or back.
…
50. In response to the claim that the physical and psychological injuries developed throughout the course of employment and as a result of incidents in 2008 and 2016:
a.I cannot recall any reference [the Plaintiff) may have made to an incident in 2008.
b.Boxes of Coca-Cola would have been a stocked item in 2008. This may have been a box of eight 2L or 12 1.25L bottles of Coca-Cola. There were also 30 can blocks with handles but I do not believe this was a job she would have done. … If she was just stacking shelves it would have been the 2L or 1.25L boxes of bottles.
c.… The West Bentleigh store was set up in a similar way to other stores. …”
Affidavit of Malcolm Cameron
116Mr Malcolm Cameron, employed by the defendant as Chief Financial Director, made his first affidavit on 18 January 2021, tendered as exhibit 4. Mr Cameron did not meet the plaintiff until 2010.[113]
[113]Exhibit 4
117In his further affidavit, made 6 March 2023, Mr Cameron deposed that while he can recall the plaintiff complaining at times of neck and back pain, he cannot recall her complaining that her neck pain was caused by a work-related incident nor an incident where she took a 24-pack of Coca-Cola bottles from the top shelf of a fridge.[114]
[114]Exhibit 5
Affidavit of Bruce Atkin
118Prior to his retirement, Mr Bruce Atkin was employed by the defendant as Store Manager from 2010.[115] In his affidavit dated 2 February 2021, tendered as exhibit 6, Mr Atkin referred to the statement he declared for LS Partners. In exhibit BA-1 to his affidavit (the statement to LS Partners), Mr Atkin stated that he recalls discussing the plaintiff’s neck operation with her:
“13.… She did tell me how she got the injury but I cannot remember the details now.
…
24. The correct way of lifting and handling items falls under the manual handling training.
25. There is an annual occupational health and safety audit. Leigh Jameson is the Occupational Health and Safety Officer. Leigh … does the audits on a regular basis.
…
29. There was an occupational health and safety induction and also there was manual handling training provided.”
[115]Exhibit 6
Interrogatories
119The defendant tendered a number of interrogatories of the plaintiff for the examination of the defendant together with their respective answers.[116] The evidence emerging from the relevant interrogatories is to the effect that:
[116]Exhibit 11, selected interrogatories 1, 2, 3, 4, 5, 6, 7, 8, 12 and 13
1. When she commenced employment with the defendant the plaintiff undertook induction and training.
2. On commencement of employment the plaintiff was provided with general instruction in relation to her duties. All staff are inducted and instructed in relation to the defendant’s occupational health and safety and manual handling procedures over the course of their employment.
(2)Whether the occasion for calling the further evidence ought to reasonably have been foreseen.
(3)The consideration of fairness that the opposing party is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence it will adduce on the matters in question.
(4)The extent to which the party seeking leave has embarked upon calling evidence on the issue in question in its case in chief.
(5)The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case.
(6)The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time.
(7)The prejudice to the opposing party in terms of delay in the completion of the proceeding and the consequential costs.
(8)The public interest in the timely conclusion of litigation.
(9)What explanation is offered by the party seeking leave for not having called the evidence in chief.
50 On the importance of the evidence to be called if leave were granted, the court will be less likely to grant leave if the evidence could not possibly affect the outcome of the trial or is peripheral to the main issue. Further, if inadvertent error is identified as the reason for the application, the nature and reasons for the error must be considered in determining whether it is in the interests of justice to give leave.
51 If an application to re-open is made after the trial has concluded and judgment is reserved, then the circumstances must be exceptional for leave to be granted. In addition to the requirement for discipline in the presentation of a case and the need for finality of litigation, the rationale for this approach is that the court should not be “bedevilled” with arguments about the scope of any re-opening, or whether a party is using the step to “polish” or “enlarge” its case.
52 In considering how to exercise its discretion, the court must seek to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. In so doing, the court must have regard to certain objects, including: the just and the timely determination of the proceeding; the efficient conduct of the business of the court; and the efficient use of judicial and administrative resources.
53 Additional considerations may apply when leave is sought to belatedly introduce expert evidence. In recently refusing an application for leave to file expert evidence, McDonald J, in Fonterra Brands (Australia) Pty Ltd v Bega Cheese Ltd (No 5), noted that the party seeking leave had failed to notify the court of its intention to adduce expert evidence at the trial, and accordingly had not complied with the requirement of s 65G of the Civil Procedure Act.
54 Further, McDonald J referred to the objects of the court’s power in relation to expert witnesses, including to enhance the court’s case management powers and restrict expert evidence to that which is reasonably required to resolve a civil proceeding.
55 Furthermore, the applicability of the principles underlying the overarching purpose identified in the Civil Procedure Act means that any resolution of this application is not determined simply by reference to an absence of prejudice or by the Viterra Parties agreeing to pay any costs thrown away. The reasoning of the High Court, in Aon Risk Services Australia Ltd v Australian National University, to the effect that there is no entitlement to run an arguable point simply by paying the costs thrown away by reason of any late amendment, applies equally to the late service of an expert report.
56 Lastly, it is relevant to consider the resources available to the party seeking to re-open. It may also be relevant to consider the resources of the opposing party.”[250]
(Footnotes omitted)
[250]Ibid at paragraphs [46]-[56]
Defendant’s submissions
201In essence, the defendant submitted that the plaintiff’s solicitors should have foreseen that their supporting material was lacking and that they ought to have gathered the necessary material in time for the defendant to be able to meet it. Here the application to re-open was made after the evidence had been tendered, the defendant’s counsel had made final submissions, and the plaintiff’s counsel was in the process of making final oral submissions.
202I now set out the defendant’s arguments:
“Factors Relevant to Exercise of Discretion
11. In determining ‘whether, taken as a whole, the justice of the case favours the grant of leave to re -open’,[251] the defendant submits the following matters are critical to the exercise of the Court’s discretion in this case, relevant to the factors outlined by Elliott J in Cargill:
[251]Spotlight at 7, [26].
The nature of the proceeding
12. The outcome of this Application will determine whether the defendant needs to (or will be in a position to) mount a defence to an unwitnessed 2008 incident. Although the Application is interlocutory, its resolution will plainly be of high importance to both parties.
Whether the occasion for calling the further evidence ought to reasonably have been foreseen
13. The defendant submits that the occasion for calling further evidence ought to have been foreseen by the plaintiff, having regard to the fact that:
(a)the plaintiff’s affidavit material was lacking in many critical respects; and
(b)the critical evidence of the plaintiff’s engagement of legal representation arises in the defendant’s own evidence.
The consideration of fairness that the opposing party is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence it will adduce on the matters in question
14. The defendant ought to know the case it must meet in a clear and timely manner.
15. It is manifestly unfair that the plaintiff be afforded an opportunity to polish her case at this late juncture in circumstances where forensic decisions and concessions have already been made on the defendant’s behalf, in relation to the examination and cross-examination of witnesses, and the formulation of the case more broadly.
The extent to which the party seeking leave has embarked upon calling evidence on the issue in question in its case in chief
16. The defendant submits that the plaintiff closed its case without filing any evidence relevant to a number of critical issues concerning the exercise of the Court’s discretion in a s 23A application.
17. The plaintiff has made no application(s) to either adjourn its case to source further and better evidence, or to call or cross-examine any witnesses to answer the fundamental questions about delay and prejudice.
The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case
18. The evidence now sought to be adduced, by way of a re-opening of the plaintiff’s case, is fundamentally important in answering each of the questions concerning:
(a)the plaintiff’s reasons for delay (s23A(3)(a));
(b)the extent to which the plaintiff took prompt and reasonable action (s23A(3)(e));
(c)the steps taken by the plaintiff to obtain legal or other expert advice (s23A(3)(f); and
(d)ultimately, the effect of such matters upon the requested exercise of the Court’s discretion.
The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time
19. The defendant submits that the evidence now sought to be adduced, by way of a reopening of the plaintiff’s case, is likely to be both relevant and probative, it will almost certainly trigger the issuing of subpoenas, namely of the file of the plaintiff’s solicitors, Patrick Robinson & Co, and possibly the cross-examination of deponents.
The prejudice to the opposing party in terms of delay in the completion of the proceeding and the consequential costs
20. The defendant submits that there ought to be finality of litigation and discipline exercised in the preparation and presentation of a case.
21. Moreover, the applicability of the principles underlying the overarching purpose identified in the CPA mean that any resolution of this application is not determined simply by reference to an absence of prejudice or by plaintiff agreeing to pay any costs thrown away.[252]
22. The defendant submits that the reasoning of the High Court, in Aon Risk Services Australia Ltd v Australian National University[253] – to the effect that there is no entitlement to run an arguable point simply by paying the costs thrown away by reason of any late amendment – applies equally to the plaintiff’s belated attempt to polish or enlarge its case through a re-opening following the close of the defendant’s case.
The public interest in the timely conclusion of litigation
23. In exercising its discretion, the Court must seek to give effect to the overarching purpose of the CPA, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
24. It is in the public interest that interlocutory applications, like trials, are thoroughly prepared and responsibly litigated. The effect of the plaintiff’s belated s 23A application, and current application to re-open, will likely be the unfortunate and avoidable adjournment of the plaintiff’s proceeding for some time.
What explanation is offered by the party seeking leave for not having called the evidence in chief
25. No reasonable or fulsome explanation is proffered by the plaintiff’s solicitors as to why evidence, critical to a s 23A application, was not adduced sooner.
26. In all of the circumstances, the Court ought not exercise its discretion in the plaintiff’s favour.”[254]
[252]See Cargill, [55].
[253](2009) 239 CLR 175, 217 [111]-[113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[254]Defendant’s Outline of Submissions in respect of Plaintiff’s Application to Re-open s23A Application dated 23 March 2023 (not tendered)
Plaintiff’s submissions
203The plaintiff concedes that the evidence sought to be introduced was available prior to the hearing of the application; however, submits that the overriding consideration is that of ensuring a just decision on the merits.
204I now set out the plaintiff’s arguments:
“11.Ultimately the overriding consideration for the court is whether the justice of the case favours the grant of leave to re-open[255].
[255]Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, [26] (Kenny J).
The Nature of the Proceeding
12. The application to re-open the case has been made in an interlocutory application.
Whether the occasion for calling the further evidence ought to reasonably have been foreseen
13. It is conceded that the calling of the additional material ought to have been foreseen.
Consideration of fairness to the other party
14. The matters contained in the additional material sought to be relied upon by the Plaintiff go to matters to which there was inferential evidence already before the Court, or to matters which were already within the knowledge of the Defendant.
15. The proposed further affidavit of the Plaintiff, primarily confirms the inference from Exhibit C, that the Plaintiff had not sought legal advice until attending upon the offices of Patrick Robinson & Co in October 2016.
16. As set out in paragraph 4 of Exhibit C the Plaintiff deposed to discussing the fact of her injury following the 2008 incident with her husband and children and that she did not make a (formal) complaint of her injury to her employer nor a claim for compensation.
17. In Exhibit 1 (paragraphs 15-21), Mr Vittorio sets out in the documentary evidence which confirms the Plaintiff’s engagement of Patrick Robinson & Co at least from October 2016.
18. Consequently the evidence before the Court at the commencement of the Plaintiff’s application on Friday morning was that by October 2016 the Plaintiff had legal representation in respect of her work related injuries. It is acknowledged that that evidence came from the affidavit of the solicitor for the Defendant. Nevertheless the Plaintiff was available for the Defendant to cross-examine to explore the possibility that the Plaintiff had in fact sought legal advice prior to the representation the Defendant was aware of from October 2016. The Defendant chose not to do so.
19. The Plaintiff’s proposed further affidavit confirms the above matters.
20. It appears unlikely that the Plaintiff’s confirmation of the above would lead to the Defendant adducing any further evidence going to this aspect of the Plaintiff’s application.
21. As for the content of the affidavit of Amila Destanovic, it largely goes to matters which were already within the knowledge of the Defendant. For instance:
a.The Defendant was aware that the solicitors were acting for the Plaintiff from October 2016 (as confirmed by Exhibit 1). Although it is absolutely accepted that the Defendant could not have known what advice was provided to the Plaintiff as to limitations.
b.The Defendant had in its possession the medical reports relied upon by the parties for the purposes of the Plaintiff’s serious injury application. Included within those reports is the treatment history that is set out at paragraphs 11-22 of the affidavit of Amila Destanovic. Consequently the matters contained therein ought not come as a surprise to the Defendant.
The extent to which the party seeking leave has embarked upon calling evidence on the issue in question in its case in chief
22. As stated above there was inferential evidence within Exhibit C as to the Plaintiff not seeking legal advice until October 2016.
23. It is accepted that the Court however had no evidence before it at all as to what occurred between the time the Plaintiff engaged solicitors in October 2016 and when her serious injury application was lodged in July 2019.
The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case
24. The additional material is extremely relevant to the Court’s consideration as to whether to extend time. In particular the additional material goes to the matters set out in subsection (e) and (f) of section 23A(3) of the Limitations of Actions Act, namely:
(e) the extent to which the plaintiff acted promptly and reasonably once she 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;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
25. Subsections (e) and (f) are matters which the Court must take into account in determining whether to grant an application to extend time. Consequently the evidence contained in the additional material is central to the main issues in this application.
The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time
26. The Plaintiff refers to and repeats its submissions contained at paragraphs 24-25 above.
27. As for the potential waste of time, it is accepted that the Defendant would need to be given an opportunity to cross-examine the deponents of the two affidavits, and that revised closing submissions be made.
The prejudice to the opposing party in terms of delay in the completion of the proceeding and the consequential costs.
28. The Plaintiff accepts that the Defendant would need to be given an opportunity to cross-examine the deponents of the two affidavits if it wanted to do so, and that revised closing submissions might be made by the Defendant. Any cross-examination would likely be of limited scope, and if the Defendant was in a position to make any revised submissions on the same day, the matter could potentially conclude on the same day.
The public interest in the timely conclusion of litigation
29. It is accepted that this matter has been dragged into an additional sitting day for the Court to consider the Plaintiff’s application to re-open its case. If the Court was minded to allow the Plaintiff’s application, it is highly probable that the matter could still be completed on the next sitting day.
What explanation is offered by the party seeking leave for not having called that evidence in chief
30. Counsel for the Plaintiff accepted in open Court that there was no express evidence before the Court as to the nature of the legal advice received by the Plaintiff, and what occurred in the years between when the Plaintiff engaged legal representation in October 2016 and July 2019 when the Plaintiff’s serious injury application was made and that that evidence ought to have been before the Court.
31. Counsel for the Plaintiff, who ultimately took leadership of the case on Monday 20 March 2023, formed the opinion that the Plaintiff would be significantly disadvantaged if the matter proceeded without putting further available evidence before the Court.
32. Counsel for the Plaintiff will accept responsibility in open court for not seeking to adduce the additional material at an earlier time.
Closing Submissions
33. In the Plaintiff’s 23A application there has been an omission to place relevant probative available material before the Court in support of the Plaintiff’s case.
34. That is through no fault of the Plaintiff.
35. The evidence is such that it has the potential to affect the result of the Plaintiff’s extension of time application[256].
36. The material that is being sought to be placed before the Court is material which was in large part known to, or suspected by, the Defendant.
37. It is certainly accepted and acknowledged that most regrettably this application and the calling of further evidence if permitted has increased the length of the application by at least 1 day.
38. However given the relevant nature of the evidence to be called, and the lack of fault on the part of the Plaintiff, it is respectfully submitted that the interests of justice would be best served by the Court considering the further affidavits as part of the overall evidence.”[257]
[256]See Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, 476-77 (Clarke JA, Mahoney and Meagher JJA agreeing).
[257]Exhibit N
Conclusions
205The burden of proof rests with the plaintiff and the standard of proof is the balance of probabilities.
206I note that on the first day of the hearing both Senior Counsel and Junior Counsel appeared for the plaintiff. Senior Counsel for the plaintiff did not attend on 20, 23 and 24 March 2023.
207During the course of the defendant’s final submissions, it became apparent that evidence was lacking to support the plaintiff’s application under s23A to extend time. Junior Counsel for the plaintiff made full and frank admissions on behalf of the plaintiff’s legal representatives, accepting responsibility for failing to gather the necessary additional evidence and produce it prior to the commencement of the hearing. She then sought leave to re-open.
208I was impressed with counsel’s candour. I adjourned the proceeding to enable the plaintiff to gather further evidence and reserved the defendant the right to also call any further evidence and cross-examine any witness.
209When the additional evidence was produced, it was tendered for identification. As mentioned earlier, witnesses were cross-examined.
210The defendant also produced additional material.
211I was satisfied that both parties had the opportunity to address the additional evidence relevant to the s23A application.
212Having regard to the additional written material and having heard the witnesses’ oral testimony, I was of the view that the interests of justice were best served by allowing the evidence to be admitted absolutely so that the s23A application could be determined on its merits. Apart from losing the opportunity to submit that there was insufficient evidence to enliven the discretion to extend time, there was no other significant prejudice suffered by the defendant.
213The discretion to allow a party to re-open requires consideration of many factors, including the matters referred to by the parties, noting that these factors are all directed to the overarching purpose of determining whether the interests of justice are better served by allowing the application for leave to re-open. I now turn to consider each of those factors:
Nature of the case
214The application under s23A is interlocutory in nature and is heard by Judge alone. It is nevertheless an important application, since if leave is refused the plaintiff will be deprived of the right to bring her common law proceedings in respect of the 2008 incident. If the plaintiff is successful, the defendant will be facing defending a case where the incident occurred in 2008.
215I respectfully agree with the defendant that in this regard the outcome of the s23A application has important implications for both parties.
Whether the occasion for calling the further evidence ought to reasonably have been foreseen
216As mentioned, counsel for the plaintiff conceded that the further evidence ought to reasonably have been foreseen, particularly as Senior Counsel was involved up to the first day of hearing.
The consideration of fairness that the opposing party is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence it will adduce on the matters in question
217Although the application to re-open came late in the proceedings, I respectfully agree with the plaintiff that much of the evidence that later emerged was already known to the defendant, at least in summary form. In any event, once the additional evidence was presented in a coherent fashion, the defendant was given the opportunity of an adjournment to consider its position and to gather any rebutting evidence and to cross-examine any relevant witness.
218The defendant availed itself of that opportunity and ultimately presented detailed final submissions on the merits of the s23A application.
The extent to which the party seeking leave has embarked upon calling evidence on the issue in question in its case in chief
219Initially, both parties were content to rely on the written material filed without requiring any witness to attend for cross-examination.
220It was only when the defendant’s counsel was in the process of making final oral submissions that the plaintiff’s counsel appreciated the magnitude of the gap in the evidence and sought to fill it.
The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case
221Both parties agree that the additional evidence is critical to the questions the Court is required to consider when determining whether to grant leave under s23A to extend time. I also agree.
The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time
222Both parties agree that the additional evidence is relevant and probative. I also agree.
223The plaintiff concedes that if admitted, there is likely to be delay and additional cost.
224I did not consider that any delay would involve an undue waste of time. Having allowed the plaintiff to re-open, I can now say with the benefit of hindsight that little time was wasted and that both parties were in a position to meet the merits of the s23A application.
The public interest in the timely conclusion of litigation
225It is true that the late application to re-open has extended the time necessary to hear and determine the s23A application. That application has not, in my judgment, resulted in adding significantly to the delay of the commencement of the common law trial. It is the late filing of the s23A application that has caused the common law trial to be adjourned, likely to next year.
What explanation is offered by the party seeking leave for not having called the evidence in chief?
226The plaintiff’s counsel has taken full responsibility for the failure to identify that the additional evidence ought to have been gathered. I accept counsel’s explanation.
Do the interests of justice require that the application to re-open be allowed?
227The plaintiff is not personally responsible for the failure to identify that further evidence was required to support her s23A application. She is not a lawyer; she is an immigrant whose evidence was given with the assistance of an interpreter. She consulted solicitors and engaged experienced Senior Counsel. She left the running of her case to her lawyers.
228The additional evidence was available in the sense that had it been sought it could have been gathered and presented to the Court on the first day of the hearing. It is illogical however to think that there could be any conceivable forensic advantage in not obtaining and producing such cogent evidence in support of the plaintiff’s s23A application. I am satisfied that it was not a tactical or forensic decision to not gather such critical evidence. This is clearly a case of mistake; one that can, and has been, rectified by allowing the plaintiff leave to re-open and by allowing the defendant to test the additional evidence and to call or tender any further evidence in response.
229To refuse the plaintiff leave to re-open would be to effectively punish her for the mistake of her lawyers.
230I was satisfied that any prejudice to the defendant as a result of granting leave could be mitigated by allowing the defendant time to respond to the additional evidence.
231Taking account of all matters referred to, I was satisfied that the interests of justice were best served by allowing the plaintiff leave to re-open.
232I so rule.
233I will hear the parties on the question of costs.
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