Hill v Beau's Promotions Pty Ltd
[2007] VSC 61
•27 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No 5837 of 2003
| SHANE HILL | Plaintiff/Applicant |
| v | |
| BEAU'S PROMOTIONS PTY LTD THOMAS PAUL SECURITY SERVICES PTY LTD | Defendant Respondent |
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JUDGE: | WARREN CJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2007 | |
DATE OF JUDGMENT: | 27 February 2007 | |
CASE MAY BE CITED AS: | Hill v Beau’s Promotions | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 61 | |
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PRATICE AND PROCEDURE – Application for an extension of time to commence proceedings –Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 applicable in Tasmania - Hill v Iluka Corporation Limited [2002] TASSC 113 applied – Applicant ignorant of existence of respondent – Significant delay by applicant – Extension of time granted.
CONFLICT OF LAWS - Tasmanian law applicable - Choice of Law (Limitations Periods) Act 1993 (Vic), s 5.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr ADB Ingram | Clark & Toop |
| For the Defendant For Thomas Paul Security Services Pty Ltd | Mr C Harran, a solicitor Mr M J Corrigan | Dibbs Abbott Stillman Moray & Agnew |
HER HONOUR:
The applicant seeks an extension of time in which to bring proceedings against the respondent.
The circumstances of the claim arise from when the applicant was in a hotel, O’Keefe’s, Launceston, Tasmania, and was hit by a glass projected by a female patron on 28 February 2001. The defendant was the licensee of the hotel. At the time, the respondent provided security services to the defendant. The plaintiff allegedly suffered serious injuries to his left hand and arm as well as consequential psychological injuries that have required ongoing medical treatment, including surgery.
There was no issue that whilst the proceeding runs within a Victorian court, it is subject to Tasmanian law. This is so in accordance with statute,[1] authority[2] and in the interests of comity between superior courts.[3]
[1]Choice of Law (Limitations Periods) Act 1993 (Vic), s 5.
[2]John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36.
[3]Commonwealth Bank of Australia v White (No 3) [2000] VSC 259, [44-49]; Commonwealth Bank of Australia v White (No 4) [2001] VSC 511, [11-15].
Accordingly, the applicable limitation statute is the Limitation Act 1974 (Tas), in particular s 5(3). It provides:
Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued.
The parties on the application observed that whilst the Tasmanian statute had been amended, the section as recited is the relevant provision as the event occurred on 28 February 2001.
Under s 5(1) of the Act, a party must bring a proceeding within 3 years from the date on which the cause of action accrued. Under s 5(3), an extension of time may be granted but so that the period does not exceed 6 years from the date on which the cause of action accrued. Thus, there is some urgency attached to this application as the limitation for all intents and purposes appears to expire within a matter of hours.
The application is opposed by the respondent on the basis that the applicable authority is Brisbane South Regional Health Authority v Taylor.[4] The Tasmanian courts have applied that case in the context of the pertinent provision s 5(3).[5] The approach of the Tasmanian Court in considering the ‘just and reasonable’ discretion conferred by s 5(3) of the Act was stated by the Full Court of Tasmania in Hill v Iluka Corporation Limited:[6]
In any event, it is clear that although the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor, it is certainly not the only relevant factor in the exercise of the discretion. The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced.
[4](1996) 186 CLR 541.
[5]See Boon v Seba Sheetmetal Pty Ltd (Unreported, Supreme Court of Tasmania, Cox CJ, 22 August 1997); Edwards v State of Tasmania [2000] TASSC 31; Hill v Iluka Corporation Limited [2002] TASSC 113; Davie v State of Tasmania [2002] TASSC 65; Rush v Skilled Engineering Limited [2002] TASSC 80; Donnellan v Skilled Engineering Limited [2005] TASSC 98; Grace v Mullins [2006] TASSC 88.
[6]See Ibid.
Affidavits were filed by the applicant setting out the basis for seeking the exercise of the discretion. The respondent filed an affidavit of his solicitor in opposition. In essence, the applicant asserts that it was only upon receiving the affidavit of further discovery of Mr Beaumont that his solicitors became aware of the existence of the entity known as T.P. Security and that such an entity was responsible for the provision of security services at O'Keefe's Hotel on the relevant date. The applicant also emphasises that the affidavit of Mr Beaumont produced records identifying payments made by the defendant to T.P. Security for the provision of security services. These matters came to light for the first time in Mr Beaumont's affidavit. Emphasis is also placed by the applicant upon the aspect of Mr Beaumont's affidavit of further discovery, where he deposes to evidence available to T.P. Security as to arrangements for the limited number of security personnel provided to O'Keefe's Hotel at the relevant time.
Furthermore, the applicant submits that from the time this proceeding was commenced, on 16 May 2003 - and I observe that the defence was filed on 13 November 2003 - the plaintiff has raised allegations which included the inadequate training of security staff, the inadequate numbers of security staff to control activities of patrons present at the hotel, the inadequate provision of security measures to prevent the plaintiff sustaining injury, and permitting what was described as a situation of danger having regard to the numbers of patrons and relative security staff numbers present.
It was further submitted by the applicant that it would constitute significant prejudice to him if his application was to be refused, because the potential liability of T.P. Security to him in damages would remain untested in this Court, despite the fact that the plaintiff was only aware of the existence of this entity on or about 2 February 2007.
For the respondent it is submitted that there has been inexplicable delay in the applicant making the application. There are aspects of the affidavit material that are less than satisfactory. However, it is apparent that the haste with which the application has been made may provide the explanation for that state of affairs. It is also apparent that the plaintiff has been prosecuting his case with reasonable application in all the circumstances.
For the respondent it is also submitted that he faces the prejudice of defending an allegation of an injury that occurred almost six years ago, where he has subsequently lost track of the relevant employees, has little or no recollection of surrounding circumstances and has changed the structure and nature of the respondent business. The respondent finds itself in a position very similar to prospective defendants in these circumstances. However, at trial the applicant, as the plaintiff, would bear the burden of proof and may share some of those difficulties.
Ultimately, these applications are a matter of balancing the prejudice to the respondent against the legitimate aspects of the applicant’s claim.[7] In the circumstances before me, as they arise under s 5(3) of the Act, I am satisfied that the requirements are met and that the discretion ought to be exercised in favour of the applicant. In reaching that conclusion, I have paid particular attention to the matters set out by the Full Court of the Supreme Court of Tasmania in Iluka; namely, whether there is an arguable case (and it seems to me at least there is so far as the applicant is concerned); the length of delay; the explanation for the delay (which I have already addressed); and the potential degree of prejudice to the defendant caused by the delay (this matter I have also addressed in the course of my reasons).
[7]Clark v McGuinness [2005] VSCA 108, [26].
In all the circumstances, I will exercise the discretion in favour of the plaintiff and make orders accordingly.
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