Hewer v Airlite Cleaning Pty Ltd
[2016] WADC 72
•20 MAY 2016
HEWER -v- AIRLITE CLEANING PTY LTD [2016] WADC 72
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 72 | |
| Case No: | CIVO:38/2015 | 18 MAY 2016 | |
| Coram: | GETHING DCJ | 20/05/16 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | CHERRIE JANE HEWER AIRLITE CLEANING PTY LTD |
Catchwords: | Tort Personal injury Limitation periods Whether leave to commence should be granted pursuant to Limitation Act 2005 (WA) s 39 |
Legislation: | Limitation Act 2005 (WA) s 39 |
Case References: | AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bouwman v Westralian Finance Company Pty Ltd [2016] WADC 49 CMA Assets Pty Ltd (formerly known as CMA Contracting Pty Ltd) v John Holland Pty Ltd [2013] WASC 77 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 Saliba v Town of Bassendean [2013] WASC 93 Smart v Prisoner Review Board (WA) [2012] WASC 48 Tobin v Dodd [2004] WASCA 288 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
AIRLITE CLEANING PTY LTD
Respondent
Catchwords:
Tort - Personal injury - Limitation periods - Whether leave to commence should be granted pursuant to Limitation Act 2005 (WA) s 39
Legislation:
Limitation Act 2005 (WA) s 39
Result:
Application dismissed
Representation:
Counsel:
Applicant : No appearance
Respondent : Mr S M Denman
Solicitors:
Applicant : Not applicable
Respondent : Denman Popperwell
Case(s) referred to in judgment(s):
AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bouwman v Westralian Finance Company Pty Ltd [2016] WADC 49
CMA Assets Pty Ltd (formerly known as CMA Contracting Pty Ltd) v John Holland Pty Ltd [2013] WASC 77
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11
Saliba v Town of Bassendean [2013] WASC 93
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
1 GETHING DCJ: By originating summons filed 13 April 2015, Cherrie Jane Hewer sought leave to commence an action for damages against Airlite Cleaning Pty Ltd (Airlite) pursuant to Limitation Act 2005 (WA) s 39 (LA). On the face of the originating summons, the action is said to be one for damages for personal injuries arising out of an incident which occurred on 15 April 2011. Pursuant to LA s 14, the limitation period for a cause of action of this type would otherwise have expired on 15 April 2014.
2 The application came on for hearing before me on 18 May 2016. This was the fifth appearance in this application before a judge of this court. Ms Hewer did not attend the hearing. For the reasons which follow, I ordered that:
1. The application be dismissed.
2. The applicant (Ms Hewer) pay the respondent's (Airlite's) costs of the application, including any reserved costs, to be taxed if not agreed.
3. There be liberty to the applicant to apply in relation to the order in par 2, that liberty to be exercised by letter to the court within 14 days of service of this order on the applicant, which service may occur by ordinary prepaid post to the address for service specified in the originating summons.
3 I advised counsel for Airlite that I would publish short written reasons for my decision, which would be provided to the parties along with the extracted order.
Background facts
4 Ms Hewer filed an affidavit in support of her application sworn 10 April 2015 (First Affidavit). In the First Affidavit, Ms Hewer deposes that she instructed the firm of Swan River Law to pursue a claim for personal injuries as a result of a fall on 15 April 2011 at Armadale City Shopping Centre (the Shopping Centre). I interpose here to note that Swan River Law was previously known as Julienne Penny & Associates. Ms Hewer says that Swan River Law issued a writ against 'Land Lease Real Estate Investments Ltd', being the owner and occupier of the Shopping Centre. (From other material on the file, it is clear that the owner/occupier was in fact Lend Lease Real Estate Investments Limited (Lend Lease)). She says that Swan River Law failed to name Airlite, the cleaners of the Shopping Centre, as the second defendant. She says that as the limitation period has now expired, she brings an application to commence the action against Airlite.
5 The application came before McCann DCJ for mention on 25 September 2015. According to counsel who attended, who also appeared before me, the judge advised Ms Hewer that there was insufficient evidence in the First Affidavit. The judge adjourned the matter for further mention on 20 November 2015, and made an order that Ms Hewer was to file and serve any further affidavit in support of the application by 6 November 2015.
6 Ms Hewer filed a second affidavit sworn 30 September 2015 in support of the application (Second Affidavit). In the Second Affidavit, Ms Hewer repeats some of what she said in the First Affidavit. She goes into more detail as to the circumstances of the accident, stating that she had a 'fall after slipping on water spilt when two girls were walking through the Armadale City shopping centre spraying each other with water bottles'. She goes on to depose that, at the time, she spoke to a cleaner who 'said he saw them walking through the centre spraying the water but did not clean the water up or ask the girls to stop or leave'. Her evidence is that she instructed Swan River Law to 'peruse [sic] damages and lost earnings against the parties involved'. On 18 March 2014 she commenced an action against Lend Lease. She repeats the assertion that Swan River Law failed to name Airlite as the second defendant. Ms Hewer also states that she received a letter from her lawyer saying that they could not represent her due to a conflict of interest. She then goes into more detail about her injuries.
7 It is apparent from the records of the court that on 27 March 2014 Ms Hewer commenced an action against Lend Lease in relation to the accident on 15 April 2011 at the Shopping Centre, being CIV 930 of 2014. It is also apparent from the records of the court that this action is yet to be concluded, though it was placed on the inactive cases list on 18 January 2016.
8 The hearing on 20 November 2015 was before Bowden DCJ. Again according to counsel who attended, the judge advised Ms Hewer that her further affidavit, being the Second Affidavit, was defective and insufficient. The judge adjourned the matter to 4 December 2015, again in judge's chambers. The judge made an order that Ms Hewer file an affidavit in support of the application by 4 pm on Tuesday, 1 December 2015.
9 Ms Hewer filed a third affidavit, sworn 24 November 2015 (Third Affidavit). In the Third Affidavit, Ms Hewer relevantly states that (par 5):
After going through my paperwork from my previous Lawyer the first correspondence between my previous lawyer and QBE regarding Airlite was 13 September 2012. this [sic] was not brought to my attention.
10 Annexed to the Third Affidavit is a letter dated 1 November 2012 from QBE, who identify themselves as 'the public liability insurer of Airlite', to Ms Hewer's lawyers (then known as Julienne Penny & Associates) (QBE Letter). The QBE Letter is marked 'without prejudice except as to costs'. By annexing the QBE Letter to the Third Affidavit, Ms Hewer has waived privilege over the letter: CMA Assets Pty Ltd (formerly known as CMA Contracting Pty Ltd) v John Holland Pty Ltd [2013] WASC 77 [8] – [12] (Allanson J). Specifically, by annexing the QBE Letter to her affidavit, Ms Hewer has acted inconsistently with the maintenance of the confidentiality of the communication; QBE, Airlite's insurer, has not asserted any prejudice as a result of the disclosure; and it would be unfair for the present application to proceed without the information contained in the QBE Letter being before the court. In any event, the justice of the case requires that the court have the opportunity to consider the QBE Letter: Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 [94] (McLure J, with whom Murray and Parker JJ agreed).
11 The QBE Letter states, among other things, that a letter dated 13 September 2012 from Julienne Penny & Associates 'has been passed on to us'. The QBE letter continues:
Our insured denies your client's allegations that they had any prior knowledge of water being sprayed from water bottles and of the water spill in front of Volona & Associates.
Accordingly, we advise that our insured has not failed in their duty of care, therefore, liability for your client's accident is denied.
12 The hearing on 4 December 2015 was before Birmingham DCJ. The transcript of this hearing is on the court file. The judge observed that it was apparent that the affidavit evidence, at that time, did not address the issues that are required under LA s 39 in order to obtain leave against Airlite. The judge respectfully recommended that Ms Hewer give consideration to finding an alternate lawyer. The judge adjourned the application for further mention on 15 January 2016.
13 On 15 January 2016, the application came on for mention before Petrusa DCJ. The transcript of this hearing is also on the court file. On this occasion, the judge adjourned the matter sine die with a view to the parties contacting the registry to organise a special appointment. On this occasion, counsel for Airlite explained to the court that on each of the past three occasions, Ms Hewer had it explained to her that her affidavits in support of the application were defective. Counsel stated that the defects had not been cured. Counsel queried the merit of sending the application to a special appointment. The judge remained of the view that the most appropriate course was to list the matter to a special appointment for determination.
14 By letter dated 24 March 2016, the court listed the application for a directions hearing before a registrar on 6 April 2016. This letter was issued by the court in response to a letter from Airlite's lawyers dated 23 March 2016 in which they advised the court that Ms Hewer had failed to respond to their communication proposing programming orders and requesting her unsuitable dates for the special appointment.
15 Ms Hewer did not attend the directions hearing on 6 April 2016. Aside from proposing how the appeal was to be listed for hearing, no specific directions were made at this directions hearing.
16 By letter dated 15 April 2016, Airlite's lawyers wrote to the court advising of their unavailable dates. This letter, as with the previous letter, was copied to Ms Hewer at the address for service she gave in the originating summons.
17 By letter dated 22 April 2016, the court advised Ms Hewer that the special appointment was listed for hearing before a judge in chambers on 18 May 2016 at 10.30 am. Again, this letter was sent to Ms Hewer at the address for service which she provided on the originating summons. The court may serve a document on a party by letter, in which case the document is deemed to have been delivered to the address in the ordinary course of the post, unless the contrary is proved: District Court Rules 2005 (WA) r 21. 'The meaning of the words "in the ordinary course of the post" are not concerned with idiosyncrasies of a particular addressee but rather with the general delivery practice of the postal service': Saliba v Town of Bassendean [2013] WASC 93[11] (Hall J); Bouwman v Westralian Finance Company Pty Ltd [2016] WADC 49 [14] – [17] (Wager DCJ).
18 Prior to the hearing, Ms Hewer telephoned the court to advise that she would not be attending the hearing as she was unwell. At the hearing, counsel for Airlite advised the court that he had spoken to Ms Hewer about the hearing on 18 May 2016. Counsel advised the court of a number of matters discussed. Ms Hewer told counsel that she never intended to attend the 18 May 2016 hearing. She also confirmed to counsel receipt of the letter from the District Court listing the hearing. In any event, for the purposes of DCR r 21, there is no evidence before me contrary to the deemed application of that rule as regards service by post.
19 Accordingly, I am satisfied that Ms Hewer had notice, and had sufficient notice, of the hearing on 18 May 2016.
20 The court had available a telephone contact number for Ms Hewer. I considered whether to conduct a hearing by telephone, but in the end did not do so. This is because Ms Hewer was unwell and, in any event, she had not filed any additional evidence following the Third Affidavit and the hearing on 15 January 2016.
21 I also considered whether to grant a further adjournment. There are, however, limits to the extent of the opportunity to be given to Ms Hewer to file further affidavit evidence; she is only entitled to an opportunity sufficient to ensure the just resolution of the case: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102] (Gummow, Hayne, Crennan, Kiefel & Bell JJ). In my view, she has had more than a sufficient opportunity to file additional affidavit evidence.
22 In the end, I formed the view that any further hearing would merely postpone the inevitable dismissal of the application, and unnecessarily increasing Airlite's costs, costs which Ms Hewer would ultimately be obliged to pay.
Determination of the application
23 As Ms Hewer is a litigant in person, I have approached the documents in which she articulates her case with some flexibility: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). She is entitled to, and has been given on previous occasions, some leniency in relation to compliance with the court rules: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court). I need to be astute to ensure that, in a poorly expressed or unstructured document setting out her case, there is no case which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, Murray & Le Miere JJ agreeing); Wentworth (536 - 537). At the same time, I also need to ensure that any latitude given to Ms Hewer is not unfair to Airlite: Glew [10].
24 The court does have the power in LA s 39 to grant a plaintiff leave to commence an action for damages for personal injury even though the limitation period under the LA has expired. In order to do so, by LA s 39(3) the court needs to be satisfied that, when the limitation period expired, a person to whom the cause of action accrues:
(a) was not aware of the physical cause of the injury;
(b) was aware of the physical cause of the injury, but was not aware that the injury was attributable to the conduct of a person; or
(c) was aware of the physical cause of the injury and that the injury was attributable to the conduct of a person, but, after reasonable enquiry, had been unable to establish that person's identity.
25 On the affidavit evidence filed by Ms Hewer, par (a) is not relevant; she knew that the physical cause of her injury was the slip. Nor is par (b) relevant; she knew that the injury was attributable to the conduct of 'a person', either the girls she says dropped the water or the entity responsible for ensuring the cleanliness of the Shopping Centre.
26 That leaves the issue of whether, after reasonable inquiry, Ms Hewer has been unable to ascertain the person's identity.
27 The ability of the court to extend time pursuant to LA s 39 was considered by the Court of Appeal in AME Hospitals Pty Ltd v Dixon [2015] WASCA 63. President McLure, with whom Newnes JA agreed, stated [18] - [19]:
[T]o enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness of the person to whom the cause of action accrues, at the time when the limitation period expired, of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person.
The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person).
28 It is clear from the QBE Letter that as at November 2012, well prior to the expiry of the limitation period in April 2014, Ms Hewer's lawyers knew that the cleaner was Airlite. At its highest, Ms Hewer's case is that her lawyers did not tell her that Airlite was the cleaning contractor for the Shopping Centre at the time of her accident. It is clear, however, that her lawyers had made sufficient inquiries to ascertain that Airlite was the relevant cleaning contractor.
29 All that Ms Hewer states is that the QBE Letter was not brought to her attention. She does not state when she first became aware that Airlite was the relevant cleaning contractor, save to refer to a letter dated 17 December 2014 from her lawyer stating that the lawyer had failed to sue Airlite as well as Lend Lease.
30 I can leave to one side the issue of whether the knowledge of Ms Hewer's lawyers can be attributed to her for the purposes of LA s 39. It is sufficient for me to find that, as Ms Hewer's lawyers were able to establish the identity of the cleaning contractor as early as September 2012, Ms Hewer has not satisfied me that 'after reasonable inquiry', when the limitation period expired in April 2014, she had not been able to establish the identity of the cleaning contractor for the purposes of LA s 39(3). She has not proven one of the 'negatives' required by that subsection.
31 Ms Hewer, as the plaintiff in an extension application, has the burden of proving that a court should extend the relevant limitation period: LA s 79(3). On the evidence before me, she has failed to do so.
32 It is for these reasons, I ordered that the application be dismissed with costs, though with a mechanism to allow Ms Hewer to make submissions on costs should she wish to do so.
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