Jeremiah Wade v Josa Services Pty Limited t/a Josa Constructions

[2007] NSWDC 184

CITATION:	Jeremiah Wade v Josa Services Pty Limited trading as Josa Constructions & Ors [2007] NSWDC 184 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13, 14, 23 February, 8 March, 4 May 2007; further written submissions to 28 May 2007
JUDGMENT DATE:	6 June 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Notice of Motion dismissed; (2) Plaintiff to pay the costs of the respondents to the Notice of Motion; (3) Liberty to restore re costs; (4) Exhibits retained for 28 days.
CATCHWORDS:	Limitations - work accident - application to amend claim against existing defendant after limitation period (Civil Procedure Act 2005 ss 64, 65) - application to join additional parties after expiry of limitation period - delay - plaintiff's knowledge of relevant facts and limitation periods - substantial prejudice issues including supervening accident - application dismissed
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), Part 6 ss 56-62, ss 64, 65 Construction Safety Act 1912 (NSW), rr 73, 127 Limitation Act 1969 (NSW), ss 60C, 60E Motor Accidents Compensation Act 1999 (NSW), s 109 Workers Compensation Act 1987 (NSW), s 151D
CASES CITED:	Alamdo Holdings Pty Ltd v Australian Window Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 Furnishings Pty Ltd [2006] NSWSC 1073 Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Limited v Elliott (2000-2002) 54 NSWLR 207 Martin v Abbott Australasia Pty Limited [1981] 2 NSWLR 430 Pack-Tainers Pty Limited v Moore [2005] NSWCA 43 Parsons v Doukas (2001) 52 NSWLR 162 Sargent v A S L Developments Ltd (1974) 131 CLR 634 Street & 7 Ors v Luna Park Sydney Pty Ltd & Anor [2006] NSWSC 230 Williams v The Commissioner for Aboriginal Land Rights Acts (1994) 35 NSWLR 497
PARTIES:	Plaintiff/Applicant: Jeremiah Wade Defendant/First Respondent: Josa Services Pty Limited trading as Josa Constructions Second Respondent: Apokis Third Respondent: Josa Investment Pty Limited t/as Josa Constructions Fourth Respondent: Josa Pty Limited t/as Josa Constructions Fifth Respondent: Abigroup Contractors Pty Limited
FILE NUMBER(S):	9016 of 2001
COUNSEL:	Plaintiff/Applicant: M Thompson Defendant/First Respondent: R Harrington Second, Third and Fourth Respondents: W Austron Fifth Respondent: S Kettle
SOLICITORS:	Plaintiff/Applicant: Shanahan Tudhope Lawyers Defendant/First Respondent: Goldbergs Lawyers Second, Third and Fourth Respondents: Charles Stanford & Associates Fifth Respondent: Hunt & Hunt

JUDGMENT

1 This is a complicated application for leave to commence proceedings out of time and to amend against an existing defendant to plead what is alleged to be additional particularisation.

2 The applicant to this motion is Mr Wade, the plaintiff in these proceedings (hereinafter referred to as “the plaintiff”). In his Notice of Motion filed on 7 December 2006 he seeks orders pursuant to s60C Limitation Act 1969 (NSW) to commence proceedings out of time against four respondents, together with ancillary orders including discovery from the fifth respondent. Orders are sought in the alternative against two of these respondents pursuant to section 109 Motor Accidents Compensation Act 1999 (NSW). He also seeks leave to amend his claim against the existing defendant that in the event the first defendant is not his employer, the claim should be considered on the basis that the plaintiff was an independent contractor. A claim of breach of statutory duty is also brought against all of the respondents to this motion and particulars are provided of alleged breaches of Regulation 73 and 127 of the Construction Safety Act 1912 (NSW).

3 These claims have been stated only in a very general way, because the statement of claim articulating the amendment against each of the proposed new defendants, or against the existing defendant, is very general in its terms. (I note, however, that the respondents to the motion made no objection to the generality of the proposed amended statement of claim.) It is necessary that I carefully set out the identity of each of the proposed new parties and the case which will be pleaded against each of them.

4 I should first identify each of the respondents to the motion:

(a) The first respondent is the defendant in proceedings that were commenced by the plaintiff in 2001. The plaintiff seeks to amend the Statement of Claim to claim relief on the basis that the plaintiff was working for the defendant as a subcontractor. Because of the similarity in its name with that of two of the respondents, I have referred to this respondent as “the defendant” in this judgment.
(b) The second respondent is Mr Apokis, who was driving the vehicle.
(c) The third respondent is the owner of the vehicle that Mr Apokis was driving. I have referred to this respondent as “the company owning the vehicle” because of the similarities in names of the companies.
(d) The fourth respondent, Josa Pty Ltd, is a company which paid invoices for the plaintiff’s work.
(e) The fifth respondent is Abigroup Limited. The amended pleadings assert that this company was the head contractor and in control of the site where the accident occurred.

The law relating to this application

5 As indicated above, the plaintiff seeks an extension of time pursuant to s60C Limitation Act 1969 and in the alternative (in relation to the second and third respondents) pursuant to s109 of the Motor Accidents Compensation Act 1999. The grounds for seeking leave to amend against the first respondent are different again. The applicant in his written submissions submits that “he simply seeks leave to amend” his statement of claim to “expand the allegations of fact in respect of a cause of action already before the court”. It is submitted that this does not give rise to a new cause of action.

6 I shall set out the relevant statutory provisions in relation to the application to amend against the existing defendant, the proposed addition of four new defendants and the alternative bases upon which two of those four proposed new defendants are to be joined.

The application to amend against the defendant (the first respondent to the motion)

7 The plaintiff seeks leave to amend the statement of claim to claim against the defendant in its capacity as an independent contractor as opposed to an employer. The plaintiff asserts that this is the mere addition of particulars and not a new cause of action and accordingly it is governed by section 64 Civil Procedure Act 2005 (NSW). I consider section 65 is also relevant in that it specifically provides for amendments when the time period has expired.

8 Section 65 provides as follows:

“(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.
(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as:
(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or
(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or
(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.
(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.
(4) This section does not limit the powers of the court under section 64.
(5) This section has effect despite anything to the contrary in the Limitation Act 1969.
(6) In this section, "originating process", in relation to any proceedings, includes any pleading subsequently filed in the proceedings. ”

9 The interaction between the Limitation Act and sections 64 and 65 of the Civil Procedure Act permitting amendments which may amount to a new cause of action where a limitation period has expired was examined by Brereton J in Street & 7 Ors v Luna Park Sydney Pty Ltd & Anor [2006] NSWSC 230. Brereton J noted that because the Civil Procedure Act 2005 was enacted after the Limitation Act that the provisions set out in sections 64 and 65 would prevail (at [50]).

10 The proposed amendment is not the addition of new particulars, or an expansion of allegations of fact. What is proposed is an alternative claim that the defendant was an independent contractor, with different duties of care and damages entitlements. However, by reason of the provisions of sections 64 and 65, there is power to grant leave to amend regardless of whether the amendments are particulars or a new cause of action.

11 The central question for determination is whether the amendment should not be granted because it is futile. In determining whether or not an amendment is futile, I should have regard to the provisions of the Civil Procedure Act, for the reasons explained by Barrett J (refusing an amendment application seven years after the commencement of proceedings) in Alamdo Holdings Pty Ltd v Australian Window Furnishings Pty Ltd [2006] NSWSC 1073.

12 The defendant draws my attention to two main issues. The first is the plaintiff’s deliberate decision to bring proceedings on the basis that he was an employee when all the documentation clearly showed that he was a subcontractor. He is described as such in exhibits 1 and 2. He described himself in his statement for his solicitor as a subcontractor (T 12, day 2). He discussed whether or not he was an employee with his barristers (eg Mr Quickenden, exhibit 6, and T 13, day 2) and told Mr Stone there were advantages to bringing a claim as an employee. In other words, the plaintiff always knew he was called a subcontractor.

13 Secondly, and more importantly, all the documentary evidence not only supports the assertion that he is a subcontractor, but that he subcontracted with the fourth respondent, Josa Pty Ltd. The documentation supporting this fact consists of the plaintiff’s invoices (exhibit 1), his pay declarations form (exhibit 2), the plaintiff’s tax returns (exhibit 3) and his own evidence (T 26, day 1 and T 12, day 2). This documentation establishes that the plaintiff never had any actual or specific contractual relationship with the defendant Josa Services Pty Limited.

14 The plaintiff’s answer to this is that the contract came into existence with an offer from Mr Apokis for the applicant to come and work for “Josa Constructions”. It is asserted that there is no reason in law why a contract of employment cannot be entered into with more than one person, eg if a partnership employs a receptionist, the fact that only one person’s name appeared on the employment documentation would not amount to a contractual agreement with that person to the exclusion of the others.

15 However, the laws relating to employment are designed to ensure that an employee, as opposed to an independent contractor, knows who his employer is. This is because the parties to employment contracts incur obligations under taxation, industrial and workers compensation laws designed to protect not only the worker, ranging from superannuation obligations to obligations to provide pay slips, but also the employer.

16 To use the plaintiff’s analogy, a receptionist may be entitled to sue her employer if she suffers an accident at work, including one or all of the partners who employed her, but that does not entitle her to sue a variety of companies used to run the partnership (or to own the partnership assets), on the basis that one or all of them may have been her employer, on the factual basis that she was told “come and work for Hunts” (to use the name of one of the firms in this litigation). To permit the bringing of this kind of claim against a range of companies and/or natural persons on the basis that it must have been at least one of them is contrary to the “just, quick and cheap” provisions in ss56-65 Civil Procedure Act 2005 (NSW).

17 The plaintiff cannot point to any evidence that the first defendant employed him beyond his own evidence that Mr Apokis asked him to come and work for “Josa Constructions”, which he says entitles him to sue all the Josa companies (except the company actually named Josa Constructions Pty Limited, which has been inactive for many years).

18 The plaintiff complains that the defendant “myopically” looks at the documentation after the accident rather than the words spoken at the time the contract was entered into. However, the defendant did not generate the invoices for payment of the plaintiff, either before or after the accident. In making these submissions, the defendant is looking at the totality of the documentary evidence, which conflicts with the plaintiff’s oral testimony.

19 The plaintiff submits that because his statement that Mr Apokis asked him to work for “Josa Constructions” is not challenged by the oral evidence of Mr Apokis to the contrary, I should accept this evidence as unchallenged.

20 This is an interlocutory application. In my view, some flexibility should be shown when dealing with evidence on these issues. To assert that there must be oral evidence by Mr Apokis on this point in interlocutory proceedings or the evidence is unchallenged is to misconceive the nature of interlocutory proceedings. Even if Mr Apokis did say these words, this does not mean that both he and all of the Josa companies can be regarded as having offered the plaintiff employment. Further, the evidence is challenged by all of the respondents by other means, in that the documentation clearly shows that Mr Apokis did not enter into a contract with the defendant, or with “Josa Constructions”, but with the fourth respondent. This evidence was put to the plaintiff in cross-examination and I must decide this question on the basis of the conflict between the plaintiff’s assertions and the documentary evidence. Given the lateness with which this claim of employment by “Josa Constructions” is brought, the unsatisfactory explanations given by the plaintiff in his evidence about this issue (including his concession that he knew about other Josa companies as a result of a visit to Workcover) and his statements to the contrary in instructions to his solicitors (set out in more detail below), I am of the view that I should regard the documentary evidence as a more reliable guide.

21 The second basis upon which it is asserted on behalf of the plaintiff that the amendment is not futile is that the plaintiff may indeed have been an employee of one or more or all of the respondents (except Abigroup). The matters pointed to by the plaintiff as being evidence of employment (paragraph 23 of the written submissions) are wholly unpersuasive. All of the matters set out therein are equally likely to apply to a subcontractor situation. The factors listed in paragraph 24 as indicating a subcontractor arrangement are, by comparison, all matters inconsistent with the plaintiff being an employee. These include the taxation arrangements, the fact that the plaintiff brought some of his own tools, the temporary nature of the work and that the parties gave the arrangement the label of independent contractor.

22 However, all of this is largely irrelevant to the proposed amended claim against the defendant; the real issue is whether the contracting party was the defendant or some other company. Whatever slender evidence there may be of employment, there is no evidence of the defendant having any role of any kind as a subcontractor.

23 Whether a claim of being an independent subcontractor should be made against a party needs to be looked at on the basis of the merits of the case against the individual or company sued. The plaintiff cannot adduce any evidence that the defendant ever entered into a relationship as an independent contractor with him. In fact, all the evidence points to the contrary and it is only by giving an unrealistically broad interpretation to the plaintiff’s assertion that he was hired by “Josa Constructions” that any claim could include the defendant. I find that any statement made by Mr Apokis inviting the plaintiff to come and work at “Josa Constructions” was not a contract of employment or subcontracting on behalf of all of the Josa companies. The company which received and paid invoices is the contracting company that the plaintiff ought to have sued. Granting leave to amend these proceedings against the defendant on the basis that the invitation to work for “Josa Constructions” included an offer on behalf of all “Josa” companies, without any other connecting factor, would be an exercise in futility.

24 The defendant also made submissions concerning prejudice. The defendant has been indemnified by workers compensation insurers and if the amendment is allowed it is submitted that the solicitors for the defendant would no longer be able to act. However, it is my understanding from the plaintiff’s proposed amended pleading that it is not intended to abandon the employment claim; it is intended to add the subcontract claim to it. This may result in the involvement of another insurer or a change of solicitors. These are matters going more to the administration of justice than to prejudice. Were the amendment a meritorious one, they are not matters that should outweigh the granting of leave.

25 The defendant also drew to my attention the lengthy delays in the conduct of the litigation against it. Section 64(2) Civil Procedure Act provides that amendment applications must have regard to section 58. Section 58 requires the court to have regard to “the dictates of justice” and specifies matters to be taken into account. Exercise of the discretion is not solely determined by regard to the interests of the parties. The court may take into account the desirability of efficiency in litigation, including failure to comply with directions or bringing the application at a very late stage. However, while the courts have frequently given warnings to this effect, it is an order rarely made. The plaintiff’s delay in this litigation is substantial and he offers no satisfactory explanation for the pleading of these particulars so late in the day. Questions of fact such as the defendant’s role (if any) in directing the activities of the workmen at the site would need to be answered. The unavailability of the witness “George” would be of greater importance than it is to the employment claim, where there is a non-delegable duty of care. I note that the plaintiff is in no position to comply with any costs order I may make as a condition of the amendment.

26 The defendant filed a defence on 5 April 2002 denying it was the defendant. The plaintiff had been on notice of this denial for nearly five years before bringing this application to amend.

27 If despite the plaintiff’s delay he could point to a meritorious case, leave to amend would be appropriate. I have held that his claim against the defendant is so hopeless that it would be futile to amend. If the plaintiff’s case were not hopeless but merely weak, in circumstances where the evidence of the missing sole eyewitness could be important, then leave to amend should not be granted in that to do so, seven years later, in conditions of difficulty for the defendant, is contrary to the administration of justice. Accordingly, if I have erred in holding that plaintiff’s amendments are hopeless and that these factual matters should be determined at the trial, I would refuse leave to amend on this basis.

28 As the proposed amendment against the defendant is futile, I decline to grant leave to amend the statement of claim in relation to the plaintiff’s claim against the defendant.

The second to fifth respondents

29 The applicant seeks an extension of time against these proposed new defendants pursuant to s60C Limitation Act 1969. Section 60C provides as follows:

“If an application is made to a Court by a person claiming to have a cause of action to which this section applies, the Court, after hearing such persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.”

30 Section 60C is subject to section 60E of the Limitation Act which provides:

“In exercising the powers conferred on it by Section 60C …, a Court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the Court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:-
(a) the length of and reasons for the delay,
(b) the extent to which having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,
(c) the time at which the injury became known to the plaintiff,
(d) the time at which the nature and extent of the injury became known to the plaintiff,
(e) the time at which the plaintiff became aware of the connection between the injury and the defendant’s act or omission,
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,
(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h) the extent of the plaintiff’s injury or loss.”

31 The test of whether it is just and reasonable to extend the limitation period will depend upon the plaintiff, who bears the onus, establishing that there is evidence available to the claimant to assert his cause of action: Martin v Abbott Australasia Pty Limited [1981] 2 NSWLR 430; Williams v The Commissioner for Aboriginal Land Rights Acts (1994) 35 NSWLR 497; Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195. Even if there is such evidence, any application for an extension should be refused if the effect of granting the extension would result in significant prejudice to a potential defendant: Holt v Wynter (2000) 49 NSWLR 128 at [147]. The absence of proof of actual or significant prejudice is not sufficient; the claimant must satisfy the court that grounds exist for the exercise of the discretion in his favour: Parsons v Doukas (2001) 52 NSWLR 162 at [163] and [191]. In particular, whether or not there is prejudice, a deliberate decision by a plaintiff with knowledge of the limitation period to permit it to expire quite deliberately on an informed basis is a circumstance which may weigh heavily against the granting of any extension of time; Itek Graphix Pty Limited v Elliott (2000-2002) 54 NSWLR 207.

The case pleaded in the alternative against the second and third respondents

32 In the alternative, in the event that the proceedings should be brought under the statutory regime for motor vehicle accident, leave is sought pursuant to s109 Motor Accidents Compensation Act 1999. Section 109 of the Motor Accidents Compensation Act 1999 provides as follows:

“(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person—the date of death,
except with the leave of the court in which the proceedings are to be taken.
(2) Time does not run for the purposes of this section from the time that a claim has been referred to a claims assessor for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
(3) The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.
(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.
(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”

The factual background

33 It is necessary to consider the factual background to the proceedings in order to carry out the factual analysis of the matters in section 60C.

34 Mr Wade (to whom I shall continue to refer as “the plaintiff”) alleges that on 2 June 2000 he was struck by a hopper which fell from a hook on an excavator whilst he was working in a trench. He commenced proceedings against the defendant on 5 September 2001 alleging, inter alia, that the defendant was his employer. On 5 April 2002 the defendant filed a defence denying that it employed the defendant.

35 The proceedings between the plaintiff and the defendant thereafter had an unfortunate history of neglect and delay. In addition to the delays in conducting these proceedings, the plaintiff’s Notice of Motion to join additional defendants and to replead his case against the defendant is brought more than six years after the date of injury and three years and eight months after the limitation period expired on 2 June 2003.

36 None of this neglect and delay can be put at the feet of the defendant, or of the respondents. Nor can any blame attach to the solicitors and barristers consulted by the plaintiff. To the contrary, all of them, including the solicitor and barrister who are currently retained by the plaintiff, have given clear, concise and accurate advice to the plaintiff at all relevant times. The respondents to this motion submit that the real reason for delay is plaintiff’s refusal to accept this advice and his termination of the services of solicitors and barristers whose advice was not to his liking, and that at all relevant times he well knew not only what his legal rights were, but also what his obligations were as a litigant.

37 I shall first set out the case pleaded by the plaintiff in the Statement of Claim. The claim is that while the plaintiff was “in the course of his employment with the defendant” he was performing pipe-laying at a subdivision in Kellyville, Sydney, New South Wales. It is alleged that while performing this work he sustained injury whilst working in a trench when he was struck by a hopper attached to the end of a boom of an excavator. The particulars of negligence which were pleaded in that Statement of Claim are as follows:

PARTICULARS OF NEGLIGENCE

(a) Failure to take adequate precautions for the safety of the plaintiff.
(b) Failure to ensure that the hopper which had been attached to the end of the excavator was firmly attached and there was no possible risk of it coming free from the boom of the excavator.
(c) Failure to take adequate precautions for the safety of the plaintiff.
(d) Failure to provide the plaintiff with adequate gear, plant and equipment so that he could perform the duties required of him by the defendant without unnecessary risk of injury.
(e) Failure to devise, institute and maintain a safe system of work.
(f) Failure to manoeuvre the boom of the excavator which had the hopper attached to it in such a manner that it did not come in close proximity of the plaintiff.
(g) Failure to keep a proper lookout for the presence of and position of the plaintiff, having regard to the movement of the hopper above the trench.
(h) Failure to warn the plaintiff of the impending danger of the hopper becoming free from the boom
(i) Res Ipsa Loquitur.

38 The proposed new particulars of negligence are:

(j) Making a hook from a material of insufficient strength to support the weight of a laden hopper.
(k) Manoeuvring the hopper so that the throat of the hook became positioned on the horizontal plane.
(l) Causing the boom of the excavator to be so moved that the hook went from a vertical position to a position approximating the horizontal.
(m) Causing the boom of the excavator to be so moved as to release the hopper from its hook when it was above the plaintiff.
(n) Using a hook of incorrect type, it being capable of being moved with an orientation such that the throat of the hook can point lower than the horizontal.
(o) Contrary to Regulation 73(6) of the Regulations made under the Act the Defendants failed to provide overhead protection for persons working below other persons or where there is a likelihood of persons being injured by timber or other material of strength and construction reasonably adequate to catch, deflect or hold any reasonable weight of material or objects that may fall upon such protective construction.
(p) Contrary to Regulation 73(7) of the Regulations made under the Act the Defendants failed to provide head protective helmets, of an approved type, for the use of persons working in places over which it was impracticable to fix overhead protection.
(q) Contrary to Regulation 73(14) of the Regulations made under the Act the Defendants failed to cause measures to be taken to ensure that scaffolding materials, tools and other objects and materials shall not be thrown, tipped or shot down from a height where they are liable to cause injury, but shall be properly lowered.
(r) Contrary to Regulation 73(14) of the Regulations made under the Act the Defendants failed to protect the plaintiff from falling or flying debris.
(s) Contrary to Regulation 127(70) of the Regulations made under the Act the Defendants, where loads are raised, lowered, handled or transported on hooks, or other media, under circumstances in which it is necessary or desirable to prevent them becoming unshipped or displaced therefrom, failed to adopt approved safety hooks, or other approved means to prevent such unshipping or displacement, and/or to prevent injury to any person in the vicinity.

The evidence in this application

39 In evidence before me, the plaintiff (who was born on 16 May 1957 in New Zealand) said that he had commenced working for the defendant on or about 2 May 2000. On or about Monday 15 May 2000, Mr Sam Apokis had a hook fixed to an excavator which had recently been purchased by the Josa company, that is the fourth respondent. The plaintiff said to Mr Apokis that this did not seem to be a particularly safe device but Mr Apokis replied “Don’t worry, it will be fine.”

40 On the day of the accident (2 June 2000) Mr Apokis was driving this vehicle and the plaintiff was giving him visual instructions as to the location and position of the skip so that Mr Apokis could dump his load. After signalling the appropriate position to Mr Apokis, the plaintiff moved in and started to unload the gravel. Without warning the skip fell off the hook and fell onto him, striking him on the left side and forcing him onto the ground. A person named “George” allegedly witnessed the accident.

41 The plaintiff in his affidavit deposed to having reported his accident to the fifth respondent, Abigroup, and says in paragraph 14 of his affidavit of 13 November 2006 that a record of the accident was entered into the Site Log, which he said was maintained by the site supervisor, Mr Polito. He said that at the request of Mr Apokis he returned to work the following day as there was no one else with his qualifications to do the work (paragraph 15 of the affidavit). He remained on site for another three weeks.

42 On 14 June 2000 the plaintiff had X-rays of his pelvis, lumbosacral spine and thoracic spine and on Saturday 17 June he saw his GP, Dr Ray Pallath at Castle Hill Medical Centre.

43 The plaintiff ceased work on or about 30 June 2000 and travelled overseas on a trip booked before the accident (paragraph 21 of his affidavit). He was away for seven weeks and returned to Australia in August 2000. Thereafter he attended Castle Hill Medical Centre where he saw Dr John Miller and had some treatment from the chiropractor, John Cice.

44 The plaintiff first saw a solicitor a few weeks after the accident, when he consulted Cornock & Co. By April 2001 he felt that they had done “minimal” work (paragraph 32 of his affidavit) and he consulted a firm AP Quinn & Associates who completed a workers compensation form for him on or about 2 July 2001 claiming compensation from a company which he understood to have been “Josa Constructions Pty Ltd” whose insurers were Allianz (paragraph 33). . This document was served on Allianz Insurance and on 3 August 2001 the plaintiff had a telephone conference with Mr Mooney of counsel who drafted a Statement of Claim. On 13 August 2001 the plaintiff was seen by an orthopaedic surgeon, Dr Robert G Smith, in a visit arranged by his doctor, who noted that he suffered from moderate pain in the neck, mild thoracic and lumbar regional pain, disturbed sleep and restriction of social and sexual activities.

45 The plaintiff was seen by Dr Mastroianni for Allianz Insurance on 23 August 2001 and on 5 September 2001 AP Quinn filed a Statement of Claim. The plaintiff could not afford to pay AP Quinn and he briefly instructed another firm known as Low Doherty Stratford. However, after his decision to return to New Zealand, where his family resided, he consulted (in April 2002) a firm named Gibsons in suburban Sydney.

46 In the meantime, the matter had come on for a directions hearing on 28 May 2002. The plaintiff’s claim was struck out by the District Court. The firm of Gibsons secured the file from AP Quinn on 12 August 2002 and contacted the District Court two days later, to learn that the claim had been struck out. The plaintiff was informed of this shortly thereafter.

47 The claimant has offered no evidence as to what was done between learning of his claim being struck out in September 2002 and bringing his Notice of Motion in December 2003 (see the claimant’s first affidavit and in particular paragraphs 39 to 41). Gibsons arranged for him to see Dr Weisz, an orthopaedic surgeon, who noted the plaintiff suffered from back pain and night time discomfort. On 22 December 2003, more than a year after the plaintiff had learned his Statement of Claim was struck out, a Notice of Motion was filed seeking restoration of the claim. He saw a Dr Malloy in Auckland and he had an ultrasound of his right shoulder on April 2004 which showed a torn tendon.

48 The plaintiff’s motion came before me, by a coincidence, on 7 October 2004. The plaintiff had commenced to instruct his present solicitors, Shanahan Tudhope, in July 2004. When the motion came before me there was no hearing of it on its merits because by consent the Notice of Motion was dismissed with each party to pay his or its own costs.

49 While the plaintiff was in Sydney for this motion, he filled out some forms to be served under the Motor Accidents Compensation Act 1999 (NSW).

50 When the plaintiff returned to New Zealand he said he learned for the first time that Mr Apokis was claiming that he worked for the fourth respondent and that the company which was the defendant in these proceedings was a company for employing staff. He said that as far as he had been aware, he had been engaged by Mr Apokis to work for “Josa Constructions” (paragraph 48 of the plaintiff’s affidavit). I note however that the plaintiff had in his possession invoices which clearly identified the company that paid him as being the third respondent.

51 There is no explanation for the plaintiff’s failure to pursue the restoration of these proceedings between 7 October 2004 and the date of this Notice of Motion apart from the change in the law relating to the Motor Accidents Compensation Act, which the plaintiff said caused him (in June 2005) to tell his solicitors to bring a fresh application to restore his case. However, the change in the law does not explain why he would want to bring a fresh application to restore his case against the company that owned the excavator. Nor does it explain his inaction against Abigroup (which controlled the site) or the failure to explore which Josa company had retained him, or the joinder of Mr Apokis personally. I note the plaintiff deposes in his affidavit (paragraph 51) that on 1 October 2006 he had a telephone conversation with Mr Polito, who told him “I remember your accident” and “if you want a copy of the accident report from the Site Log you should contact Abigroup’s Legal Department”.

52 The plaintiff in evidence made a number of admissions. He gave evidence that he had some knowledge of the role of other potential defendants such as Abigroup, approximately four or five years in the past (T-7), when he discussed it with Mr McCulloch, a friend who had a law degree. He also agreed that in or about September 2000 he knew the names of the other companies associated with Josa Services because someone at Workcover provided this information to him. The plaintiff said that “right after the accident, someone in Workcover told me that Sam had an umbrella of companies, so I just, that was what I told any solicitors.” He was asked if he was aware of this in September 2000 and he repeated this (T17). He was then asked:

Q Because at that time you’d spoken to Workcover and found out the name of an insurance company called Allianz Australia Workers Compensation Insurance Company. Do you remember that?
A Yes

Q And a policy number?
A No, I don’t, not a policy number.

Q And you told someone at Cornock & Co that the people from Workcover advised you to put in a claim for compensation and you wanted to do that?
A Yes

Q By September 2000 you knew of Jjosa [sic] Constructions, you knew of Jjosa [sic] Services Pty Limited, you knew of other companies that Sam was in control of and you knew Sam, didn’t you?
A I knew Sam, I didn’t know the details of these other companies.

Q But it’s information you could readily get from Workcover, isn’t that so?
A That’s for the solicitor to do…. About those companies, they would have found that out.
…
Q If you have a look at this note, sir. That appears to be a copy of a file note from Cornock & Co in September 2000 and it provides information about Jjosa [sic] Constructions and Allianz Insurance Company. That’s information that you provided to Cornock & Co, isn’t it?
A Yeah.

Q And sir, I suggest to you, that Cornock & Co asked you to provide your tax returns to endeavour to show whether or not you were an employee?
[Objection]
A I can’t remember. I don’t think so.

53 The plaintiff was asked about whether he had told Cornock & Co that his car had been stolen and that all his documents were missing. He was asked:

Q And that included your tax returns?
A Well I hadn’t done a tax return.

Q Did you tell the people at Cornock & Co that because your car had been stolen you couldn’t produce your tax returns?
A Sorry, maybe I had done a tax return. Yeah I had done a tax return then. (T 21 – 22)
…
Q That’s what you told them isn’t it?
A They would have been in the car but I could have got copies from my accountant if they needed them.

Q So they wrote to the tax department didn’t they to see if they could get copies, didn’t they?
A I don’t know.

Q And they got a letter back in about August 2001 saying that you’d never lodged any tax returns for the years 1996 – 2000?
A Yeah, I can’t remember exactly when. (T 22).

54 The plaintiff was also cross-examined about the advice he received from the solicitors and barristers he consulted. It is clear from the correspondence (which is summarised below) that the plaintiff received advice of a most careful and considered nature including lengthy and detailed advices from barristers who specialise in this area of the law. These advices covered everything from whether or not the plaintiff was an employee to whether or not it was a motor vehicle accident to clear and concise information about the limitation periods. In particular, the plaintiff conceded in his evidence (T-78) that he was well aware of limitation periods by December 2004.

55 Some of the evidence given by the plaintiff strained credibility. He did not remember his solicitors asking him to provide tax returns (T 16), although he was asked this question by every solicitor he consulted, as the chronology below shows. While I must exercise great caution on issues such as credibility and demeanour, particularly in an interlocutory application, I find his explanations in relation to the delays implausible. Where his evidence is contradicted by contemporaneous documentation such as his payment invoices or the advices by his solicitors and barristers, I prefer to accept these documents as being correct.

56 What facts are not in dispute? The plaintiff submits (written submissions, p.2) that the following facts are not in issue:

(a) The plaintiff came to work for Mr Apokis, the second respondent, in or about April 2000, after Mr Apokis said “I need a pipe-layer. Come and work for Josa Constructions”. Mr Apokis was the sole director and shareholder of four companies, namely the defendant and the third and fourth respondent. He was also the sole director of another company, Josa Constructions Pty Limited, which has been inactive for many years and no suggestion was made by the respondents that this was the correct company.

However, I do not accept that these facts are not in dispute. Whatever Mr Apokis may have said, the documentation at the time shows the identity of the company to whom the plaintiff sent his invoices and the identity of the company that paid the invoices. While the plaintiff submitted that I should have regard to the failure to call Mr Apokis to challenge this evidence, this evidence is inconsistent with the documentation. There is no relevant company called “Josa Constructions”.

(b) The existence of “Josa” companies other than the defendant was unknown to the applicant’s solicitors until May 2005. It is also claimed that the plaintiff did not know that the excavator which caused his injury was owned by the third respondent.

This is demonstrably incorrect, as the chronology shows. In his evidence, the plaintiff conceded he knew of the existence of other Josa companies as early as 2000, when he was told about them by a Workcover officer.

(c) The plaintiff suffered an injury on 2 June 2000 when Mr Apokis was operating an excavator and a skip attached to the excavator fell on the plaintiff.

However, the fact that the accident occurred at all was not the subject of admission by the defendants.

(d) The plaintiff consulted his present solicitors in July 2004 and thereafter his claim was confounded by changes in interpretations by the courts of the Motor Accidents Compensation Act.

There is no doubt the plaintiff’s claim was both delayed and complicated by the changes in interpretations by the courts of the Motor Accidents Compensation Act . However, before this had become an issue in the case, the plaintiff had so neglected the action that it had been struck out, he had failed to take the necessary steps to have the action ready to be restored, the limitation period had expired and he had suffered another accident. After the interpretation by the courts of this provision had been resolved by a series of High Court and NSW Court of Appeal decisions, he continued to delay.

The basis of the opposition to the plaintiff’s application

57 I now set out the basis upon which the application is opposed by the second to fourth respondents. It is submitted firstly that there is substantial evidence in relation to prejudice; secondly that the amendment is futile and thirdly that the plaintiff deliberately allowed limitation periods to elapse because his own solicitors had advised him that he had a weak case and that he manipulated his lawyers and the system with the intention of putting his opponents at a disadvantage.

Evidence of prejudice

58 The second to fourth respondents submit that the evidence of prejudice falls into the following categories:

(a) Causation issues

59 It is clear from the medical evidence which is before me that a significant issue at any trial of these proceedings would relate to causation. Dr Miller assessed the claimant on 23 July 2001. He considered that he had suffered a possible compression fracture of his thoracic vertebrae and strain of his right shoulder, cervical spine, thoracic spine and lumbar spine and that these symptoms were entirely consistent with the accident. However, Dr Mastroianni, in his report of 23 August 2001, considered that the claimant had a long-standing degenerative spinal disease affecting his neck and back, that his condition was constitutional and that “I believe he has fully recovered from the effects of the fall (Exhibit B, Annexure Q). Dr Otto in a report of 10 July 2003 diagnosed degenerative arthritis involving the cervical and thoracic spine and considered that this was significant. More importantly, since that time the plaintiff has suffered a further injury while falling out of a bus he was driving, in which he suffered an injury to his neck and right shoulder requiring an operation some time in 2004 (T-77).

60 The evidence concerning this injury and subsequent treatment is unsatisfactory. The plaintiff first said he was injured in January 2004 and underwent surgery in June 2004 (T-76-77) but on the second day of evidence he said his injury occurred in either November 2003 or November 2004 (T-2), that his shoulder had been operated upon by a Dr Caughey from whom no reports have been obtained (T-3).

61 By reason of this quite serious intervening accident, it is submitted that the second to fourth (and fifth) respondents are at a serious evidentiary disadvantage when assessing medical evidence that was already contradictory prior to the supervening accident.

(b) Other prejudice

62 The second to fourth respondents rely on the failure to locate “George”, the missing witness, and point to the difficulties and expense of responding so many years later, especially in the case of Mr Apokis.

The amendments are futile

63 The second and third respondents repeat the defendant’s submission that the amendment is futile. Further, in relation to the alternative claim in relation to the motor vehicle claim, this is a very weak claim where there has been failure to provide a full and satisfactory explanation.

64 The fourth respondent cannot argue the amendments are against it futile. There is a clear factual basis for a contractual claim between the fourth respondent and the plaintiff. However, there are other grounds upon which the fourth respondent relies, namely the plaintiff’s neglect of his entitlement to sue, which the second to fourth respondents say was deliberate.

Did the plaintiff know about limitation periods, who to sue and what his cause of action was?

65 All respondents claim that the plaintiff received comprehensive advice at an early stage about the correct identity of the defendants who should be sued, the form that the cause of action should take and his prospects of success. They claim he chose to frame his cause of action as an employee and that his changes of solicitor came about when he received advice he did not like.

66 In order to determine this issue it is necessary to pay very careful attention to the chronology of events. In addition, it must be borne in mind that during this period of time there was considerable uncertainty about whether claims involving injury in the workplace where a vehicle was involved should be brought as a motor accident claim or as a workplace injury claim (or public liability claim, if the injured person was an independent contractor), uncertainty that was not resolved until the High Court handed down its decision in Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26 on 19 May 2005.

67 A chronology of the advice the plaintiff sought is as follows:

27 June 2000 Collins Cornock write to Mr Quickenden of Counsel noting they had been consulted by the plaintiff for the first time that day. They advised the plaintiff while working as a subcontractor he suffered what they call “only a soft tissue injury”. They seek urgent advice as the plaintiff is going overseas for six months.

25 September 2000 Collins Cornock write again to Mr Quickenden enclosing a statement taken on 7 September from the plaintiff and other documents, adding “we are instructed this is not a worker’s compensation claim. On our instructions our client was an independent contractor and if a claim lies it lies in negligence as opposed to workers compensation.” The plaintiff described himself in the statement as a “subcontractor”.

15 January 2001 Collins Cornock note the plaintiff’s instructions that all his records, including his tax records, were stolen from his car.

7 March 2001 Mr Quickenden confirms that the plaintiff was probably not an employee but recommends obtaining documents such as tax returns and group certificates. He notes that the delay in reports the accident is “of real concern”.

2 August 2001 – The ATO advises the plaintiff had not lodged tax returns for the years 1996 to 2000.

18 September 2001 – Allianz rings and says liability declined.

14 April 2003 – In the first of a series of long and careful advices, Andrew Stone of Counsel advises on the possibility of setting aside the preliminary dismissal order, noting that it was made almost two years beforehand.

21 July 2003 – In his second advice, Mr Stone notes that material he asked for in his earlier advice which had been forwarded to him “raises even more difficulties”. Dr Otto’s report says the plaintiff has a degenerative back and his symptoms are equally as likely to be the result of a lifetime of hard work as the result of a traumatic injury and there is unexplained delay by the solicitors.

25 July 2003 – Gibsons, note the plaintiff is correcting his affidavit and agrees with counsel’s opinion that Dr Otto’s report is “no good to us”.

5 November 2003 – The solicitor notes the plaintiff worked “on contract – hourly rate” and that he had not worked since the accident. The solicitor noted two problems, firstly that the law had changed in Australia since December 2001 and any cases after that were “not good”. The proceedings had been commenced and the plaintiff “can apply to have proceedings restored” but that because of all the time gone this could be difficult to do. The second problem was the absence of objective evidence and no immediate (visual) evidence. There was therefore no point in getting the proceedings restored. Counsel advised it would be hard to find grounds to have the proceedings restored. “With medical evidence as it can’t really make all pieces fit together and have good chance of winning case”. The concluding note is “not easy and no great prospect of success”.

5 November 2003 – The plaintiff and his solicitor conferred with Mr Stone, who said he could not understand how the accident could have occurred and repeated there were problems with the delay and changes to the law. The failure to obtain a medical report after the accident meant it was difficult to establish that injury resulted from the accident, especially since the plaintiff returned to the site the following day and remained there for three weeks.

11 February 2004 - Mr Stone provided an advice saying that the Motor Accidents Compensation Act creates serious difficulties for the plaintiff’s claim. The claim as it stood could be dismissed because it should have been commenced as a motor accident claim. If the proceedings had to be started again he would fall under the 15% threshold for post December 2001 workers compensation. The contents of this and other letters from Mr Stone strongly support the plaintiff’s contention that the confusion caused in relation to personal injury claims involving workers using vehicles was a substantial and serious problem for litigation that was already in trouble.

6 April 2004 – In a further advice Mr Stone says the proceedings are “doomed” because the accident clearly fell within the parameters of the Motor Accidents Compensation Act and the plaintiff, if forced to sue under that act, would be unlikely to get over the 10% threshold.

28 May 2004 – Andrew Stone gives a further advice about the Motor Accidents Compensation Act problem. He commented that the plaintiff’s claim “looks an increasingly long and difficult road” and refused to act any further on a speculative basis.

15 June 2004 – Mr Stone sends Gibsons a fax he received from the plaintiff, pointing out that he raised the “valid point” that he still had residual workers’ compensation rights. The attached fax sets out the plaintiff’s opinion as to why it is appropriate for the matter to be heard under the Workers Compensation Act. He states that he was “an employee of Josa Construction Pty Limited” and that the accident occurred because of the attachment of an unsafe assembly not the motor vehicle or its driver or its operation.

30 September 2004 – Shanahan Tudehope, the plaintiff’s new solicitors, wrote to the plaintiff’ advising about the Motor Accidents Compensation Act legislation problem.

11 October 2004 – Shanahan Tudehope wrote to the plaintiff again about problems concerning the Motor Accidents Compensation Act legislation and give a comprehensive advice about the quantum of his claim. This follows signed instructions he gave them on 7 October to withdraw his Notice of Motion.

5 September 2005 – Shanahan Tudehope asked Mr McCullough about the plaintiff’s employment status, pointing out that if he was an independent contractor “he would almost certainly not be subject to the workers compensation legislation” and asking what he meant by calling the plaintiff a “sole trader”. The plaintiff told Mr McCullough that he invoiced Josa Services Pty Limited for his services and that withholding tax was taken from his invoices. Josa Services Pty Limited did not make PAYE payments on his behalf. “This would suggest the relationship was Contractor – Sub Contractor rather than Employer – Employee”.

15 March 2006 – The plaintiff’s present solicitors note that there is no further specificity about who engaged the plaintiff “in that you were not aware whether you were contracted with Josa Services Pty Limited, Josa Investments Pty Limited or Josa Pty Limited”. It is noted that the statement of claim currently pleaded that the plaintiff was suing only Josa Services Pty Limited on the basis of being an employee, that this was “probably not correct” and that if he claimed negligence on the basis that this company was his employer “you would probably not succeed”. The issue remained whether this company could be sued on a contractor basis “an perhaps be indemnified by another insurer if there is one.” The letter goes on to note that it was Josa Pty Limited which engaged him as a subcontractor and paid him as the plaintiff’s invoices of 25 and 29 June 2000 demonstrate. Josa Investments Pty Ltd is the owner of the vehicle involved in the accident and this company would be the company to sue if a Motor Accidents Compensation Act claim was brought. The vehicle was not insured and did not have compulsory third party insurance. In ordinary circumstances this could be overcome by suing the Nominal Defendant but this option was not available because the accident had not happened on a public road. There were other difficulties in bringing a claim “well out of time” under the motor accidents legislation, which would involve a lot of expense; in fact, there was “probably little point” in doing so. Finally, it was noted that “it is possible that Mr Apokis could be sued personally”.

16 March 2006 – Mr Thompson of counsel sent an email in similar terms to the plaintiff. He said the plaintiff would probably not succeed in claiming status as an employee, that the grounds for claiming negligence as an independent contractor were “less certain than were you its employee”, that there was “little point” in pursuing the claim against Josa Investments Pty Limited under the motor accident legislation, and that it was possible that Mr Apokis could be sued personally.

Deliberate decisions to allow limitation periods to expire

68 In Itek Graphix Pty Limited v Elliott (2000-2002) 54 NSWLR 207, Ipp A-JA explained the particular significance of a deliberate decision to allow a limitation period to expire and the particular place that such a decision holds in applications of its nature.

69 The justice of each case is decided by its own individual circumstances. A failure to explain the delay adequately may not be decisive, and issues of prejudice about while of paramount importance, are not an automatic bar to the granting of leave. However, as Ipp A-JA explains in Itek Graphix at [88] ff:

“the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.”

70 The reason for this is that limitation periods contain an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtaining leave. In obtaining leave, a party is in effect obtaining an indulgence and when parties had been careless of their rights and careless of a need to pursue their dispute within the limitation period, this may in certain circumstances be contrary to the justice of the case and would subvert the intent of Parliament.

71 In Itek Graphix at [91], Ipp A-JA described a deliberate decision to allow a statutory limitation period to expire as “a powerful factor against the grant of leave”. Where a deliberate decision has been made to allow the period to expire, ordinarily it would be “difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave” (at [91]). Ipp A-JA noted at [98]:

“In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.”

72 The facts in Itek Graphix were as follows. The plaintiff brought a claim for personal injury after she fells a descending flight of stairs at the premises of her employer. She brought proceedings in the District Court more than three years after the date on which the injury was received. After leave was granted, pursuant to s151D(2) Workers Compensation Act 1987, she also commenced a second action for reimbursement of workers compensation benefits. Prior to her fall, she had been involved in a motor vehicle accident in which she sustained injuries; this case was settled. It was during the course of conducting the motor vehicle accident proceedings that Mrs Elliot received advice about her rights.

73 After reviewing the facts, Ipp A-JA then noted that there was “some complexity” in Mrs Elliot’s legal position (at [143]). Ipp A-JA noted as follows:

“143 While there was some complexity in the respondent's legal position, by the time her claim against Mr Johnson had been settled, she was able to get clear advice from Mr Lidden and her solicitors. She was told that she had to elect between workers compensation and a common law claim against the appellant. She received an explanation as to what this involved during a conference involving much discussion on the topic. True it is that there seems to have been a difference of opinion between Mr Lidden and the solicitors as to whether the fall constituted an event that interrupted the chain of causation flowing from the motor vehicle accident, but the risks involved could readily be understood and were no doubt explained to her. As Patten DCJ found:

"She has throughout received very full advice from both Mr Lidden and her solicitor".


144 The fact is that the decision initially taken not to proceed at common law, and the decision to allow the three year period under s 151D(2) of the Workers Compensation Act to expire, were taken quite deliberately on a fully informed basis.

145 The fact that there was some risk in establishing negligence on the part of the appellant was not a significant factor. This was an issue that often arises when a person has to elect between claiming workers compensation and a claim for common law damages.

146 The potential problems in relation to the pursuit of the claim against Mr Johnson were erroneously taken into account. That action had been settled some three weeks before the three year period expired.

147 All in all I do not agree that the respondent's decision to allow the three year period to expire on 23 October 1997 and then to do nothing about bringing common law proceedings until she made her application for an extension of time on 16 September 1999 was "reasonable" conduct on her part.

148 The respondent's decision not to sue before the expiry of the limitation period was not an irrevocable election (in the sense of Sargent v A S L Developments Ltd (1974) 131 CLR 634) but, as I have explained, it was a powerful factor tending against the grant of leave. It was for the respondent to provide a satisfactory explanation for her decision. This she failed to do.

149 Additionally, after the expiry of the limitation period, the respondent persisted in the course she had taken for nearly two years before making the application for an extension of time. No explanation (reasonable or otherwise) for this delay was given.

150 Finally, the respondent, as I have attempted to demonstrate, gave no satisfactory reason for her change of mind.

151 In taking the various decisions that her course of conduct involved, the respondent was not under any duress of any kind and there were no compelling external pressures that she had to face. The respondent was faced with a choice between the advice she received from Mr Lidden and the advice she apparently received from her solicitors. The simple fact is that she chose to claim workers compensation and not common law damages. Some 20 months later she changed her mind and a further two months elapsed before she took steps to implement her decision. Until then she had persisted in taking steps to bring her claim for workers compensation. Patten DCJ did not regard the respondent's decision against this background.

152 In my view, the learned judge erred in that he failed to evaluate the respondent's conduct against the rationales for the limitation period contained in s 151D(2), and in particular, failed to have regard to the public interest in requiring claims to be brought within the statutory period and then to be proceeded with as quickly as possible. He did not attach adequate weight to her deliberate decision to allow the limitation period to expire. He appears not to have applied his mind to the long delay between the expiry of the three year period and the date on which the respondent applied for an extension of time. He erred in holding that the respondent's explanation for her conduct was reasonable.

153 In my opinion, this Court is required to exercise its discretion afresh. In so doing the respondent's conduct and the reasons (or absence of reasons) for the delay must be considered as part of all of the relevant circumstances. Taking all relevant matters into account, including the fact that the trial itself was held and Graham DCJ held the respondent to be successful in her claim, I would not extend time.”

74 Having considered these principles, I now apply them to the disputed issues of fact in this case.

75 What were the facts in the present case? The plaintiff knew there was a statutory period and he knew the action should then be proceeded with “as quickly as possible” (per Ipp A-JA at [152]). Did he have the right information? Did he know whether he was an employee or a subcontractor, or the relevant time periods, or which legislative regime was most appropriate?

Did the plaintiff know which company to sue?

76 It would appear that at all relevant times the plaintiff had copies of his invoices of 25 and 29 June 2000 and knew that he invoiced, and was paid by, Josa Pty Limited. These invoices were sighted by the plaintiff’s current solicitors (see the email 5 September 2005). They were asked for (as were the plaintiff’s tax returns) by his previous solicitors. It is not clear to me why the proceedings were commenced against the defendant rather than the fourth respondent.

What information did the plaintiff have about whether or not he was an employee or an independent contractor?

77 In his written submissions (pp 7 – 10) counsel for the second to fourth respondents has set out more than a dozen occasions since the plaintiff commenced proceedings where the plaintiff has shown knowledge that he is an independent contractor. This includes calling himself a subcontractor in correspondence with his solicitors and instructing them it was not a workers compensation claim (eg. his 7 September 2000 letter to his solicitors and their note of his instructions in their letter to counsel of 25 September 2000, see also his instructions to Gibsons in their handwritten notes of 5 November 2003), receiving advice after the statement of claim was filed that although the pleading described him as an employee “it appears he in fact was a subcontractor” and calling himself a sole trader on the Motor Accidents Claim Form. In addition, it is pointed out that he did not report any injury despite knowing injured workers were entitled to compensation payments, having sought legal advice whilst working at the site (T 41 – 43), did not provide medical certificates or apply for workers compensation benefits although he was seeing lawyers over this period of time (T 46).

78 The plaintiff gave varying answers to his solicitors about his tax returns. He told one solicitor that all his tax returns had been stolen from his car. When another solicitor wrote to the Australian Tax Office the solicitor learned that the plaintiff had lodged no tax returns from 1996 – 2000.

79 All the evidence points to the plaintiff receiving comprehensive advice on this topic and to his being well aware he was not an employee.

Did the plaintiff know about limitation periods and if so, did he deliberately let them lapse?

80 The plaintiff submits that there is no evidence of any such deliberate course of conduct and that it was never put to the plaintiff or to his witnesses (ie his present solicitor) that this was his intention.

81 By any objective standard, the plaintiff has been both careless of his rights and careless of the need to proceed with his dispute, in the manner warned against by Ipp A-JA in Itek. The limitation period expired during the time that the plaintiff was consulting Gibsons, solicitors and Mr Stone of counsel. The plaintiff agreed in his evidence that he was advised by them of the time limits for the bringing of proceedings (T 69). He was given an article by Mr Stone from “Civil Procedure in New South Wales” which warned (at paragraph 8) that an extension of time to commence proceedings would be difficult to obtain if an application to restore had to be brought as well. He in fact did this by bringing an application to restore his matter to the list first, and then bringing this application to extend time later.

82 The plaintiff was advised about the limitation periods in motor vehicle accidents in a letter from his present solicitors dated 30 September 2004.

83 The plaintiff was also advised by his lawyers of many other substantial problems with his claim. These included that there was a notice of motion filed by the defendant that his proceedings be struck out as invalid due to non-compliance with workers compensation legislation, whether his damages would reach the threshold (and whether they were caused by the accident, or a lifetime of hard work, or his bus accident), whether his action should be framed in the alternative as a motor vehicle claim and problems in proving economic loss. So extensive and serious were these problems that the limitation issue was just another problem.

84 The plaintiff received constant and careful advice but he refused to provide documentation or instructions on many occasions to those seeking to advise him, and when he did not like the advice he received he sacked the lawyers who gave it to him. He moved to New Zealand against legal advice and left himself without legal representation; he could have informed the court of his movements but instead let his action be struck out. His claims in his evidence that his solicitors were unsatisfactory or not doing anything should be rejected. Some of the requests they made (eg Collins Cornock’s request for his tax returns) were given answers that were untrue (eg telling Collins Cornock in January 2001 he could not provide his tax returns because they were stolen from his car when in fact he had not lodged tax returns). In about mid-2001 he began to consult an unqualified person named Mr McCullough, who “vetted” every decision the plaintiff made.

85 I find that the plaintiff deliberately allowed limitation periods to expire in circumstances where he was aware that there were very serious problems with the quantum of his claim (“only a soft tissue injury” – Collins Cornock letter 4 March 2000), and in proving the accident happened in the way he said it did (see Mr Stone’s file notes of 5 November 2003 noting he “does not understand how the skip fell to the ground” and it is “difficult to make all the pieces of the puzzle fit together”). There were substantial delays leading to the case being struck out; I also note the length of time it took for the matter to be relisted; Mr Stone refers to this in his advice of 14 April 2003.

86 I find that the plaintiff knew he had a very weak case, and that instead of getting on with his case he deliberately delayed. Reading the advices of the new solicitors and barristers he sees, he is being asked the same questions, yet he was never able to get on with the case. This was put to the plaintiff in cross-examination and I do not accept his explanations for delay as being the incompetence of his solicitors.

87 Similarly, in relation to the obligation of the plaintiff to provide a full and satisfactory explanation for the purpose of proceedings under the Motor Accidents Compensation Act, the plaintiff has failed to provide a satisfactory or full explanation for taking no steps between his solicitors’ letter of 30 September 2004 and the filing of this Notice of Motion two years later. This is looking at the plaintiff’s case at its highest, because he was clearly informed of the motor vehicle legislation problem by his lawyers when his application to restore was put before the court when the Notice of Motion was filed on 22 December 2003 (see the advice of Andrew Stone of 28 May 2004).

88 Section 60E requires me to examine a number of issues. There is no dispute that the nature and extent of the plaintiff’s injury and its connection to the accident were known almost immediately. The matters which are in dispute are the length and reasons for delay, prejudice, the nature of the advice the plaintiff received and the extent of the plaintiff’s loss. There was no conduct by the defendant or respondents inducing the plaintiff to delay.

89 I have set out in detail above the years of delay by the plaintiff for which there is no satisfactory explanation, the prejudice to the respondents by reason of evidence on liability and quantum no longer available and the unsatisfactory medical evidence which demonstrates a real likelihood that the plaintiff’s injuries were only a soft tissue injury.

90 I am satisfied that the plaintiff should not be granted leave to bring these proceedings out of time against the second to fourth respondents by reason of his carelessness of his rights and obligations to proceed with diligence during the limitation period, and that he deliberately permitted the limitation period to lapse.

91 A question arises, given the interaction between the Civil Procedure Act and the Limitation Act, as to whether by reason of the provisions of sections 64 and 65, actions against the second to fourth respondents, by reason of Mr Apokis being the controlling mind, should be in substitution or addition to the action already pleaded against the defendant. This was not a matter that was argued before me but after reserving judgment I invited written submissions from the parties, which I received on 28 May 2007.

92 Having read those submissions I am of the view that the reference to the interests of the administration of justice in section 64 and the overriding requirement for justice to be just, quick and cheap do in fact pick up the concerns of Ipp A-JA in Itek and that the wide discretion conferred under the Civil Procedure Act should be exercised by having regard to Ipp A-JA’s warnings. I note that in Street Brereton J had regard to the “just, cheap and quick” requirement when rejecting an application to amend made after the limitation period had expired.

93 I should also note the additional submissions made by the second to fourth respondents (and also the fifth respondent) that they are at a significant disadvantage and that the witness George is missing. These are substantial matters which would of themselves strongly mutilate against the granting of leave.

94 I dismiss the application to amend against the second to fourth respondents’ submissions.

The fifth respondent

95 The proposed amended statement of claim brings proceedings against Abigroup on the basis that it is the “head contractor” of the site. No claim is made that Abigroup was the employer of the plaintiff. Breaches of the Construction Safety Act 1912 and negligence are pleaded.

96 The relevant law is sections 60C and 60E Limitation Act 1969.

97 The fifth respondent makes the following submissions:

(a) the fifth respondent notes the notice of motion was filed in excess of 6 years after the injury and 3 years and 8 months after expiry of the limitation period. The submission is made that the plaintiff has had plenty of time to gather evidence supportive of his case against Abigroup but no such evidence has been forthcoming.
(b) the plaintiff has not demonstrated a real case to advance against Abigroup. In particular:
(i) the expert’s report is silent as to Abigroup (and the plaintiff’s statement of 7 September 2000, which was provided to him, makes no mention of Abigroup or Mr Polito, whom the plaintiff claimed in his evidence before me was the supervisor and whom he said saw the hook on the excavator)
(ii) in cross-examination the plaintiff conceded that Mr Polito was not the site supervisor but a labourer and that he could not be sure how far away he was from the excavator to have noticed the hook (T 82 – 83)
(iii) this is very much a case where the plaintiff, a specialist sole trader drain layer, was in a better position to exercise his own judgment and carry out the work safely: Pack-Tainers Pty Limited v Moore [2005] NSWCA 43.
(c) the plaintiff has no excuse for delay against Abigroup arising from complexity of motor vehicle statutory regime interpretations or uncertainty about which company to sue. The facts of any claim against Abigroup would have been known to the claimant in a very short time and in fact his evidence was that he mentioned the role of Abigroup to Mr Shaun McCullough “maybe four or five years ago” (T 7) and that his discussions with Mr McCullough were what led to his decision to bring proceedings against Abigroup (T 54). The plaintiff knew about limitation periods from his advice from solicitors over this period of time; I have set out the details of this advice in some detail above.
(d) Abigroup faces substantial prejudice as follows:
(i) it has had no prior notification of the claim. No report was provided to Abigroup on the day of the injury (T 36) although the plaintiff was aware that there was an accident book to be filled in if an accident occurred (T 36). The plaintiff also said in his evidence at T 36 that he knew that if he wanted a copy of any accident report from the site log he should do so yet there is no evidence he ever did. The opportunity for Abigroup to locate any documentation or witnesses six years later, or to have the benefit of interviewing Mr Polito when he had some memory of these events, has been lost.
(ii) It is at a disadvantage on the medical evidence, for the same reasons as those put forward by the second to fourth respondents.
(iii) The absence of contemporaneous documentation to challenge the plaintiff’s version of events is a substantial prejudice. The fifth respondent also noted the absence of the alleged eyewitness “George”.
(iv) There was no other reference to Abigroup in the legal advice tendered (see Exhibit 13), although the plaintiff was clearly discussing this issue with Mr McCullough some years beforehand.

98 The plaintiff submits that “for reasons unexplained” the fifth respondent did not adduce any evidence from Mr Polito. The plaintiff in written submissions points to an alleged conversation between the plaintiff and Mr Polito on 1 October 2006 in the course of which Mr Polito said “I remember your accident” and “If you want a copy of the accident report from the Site Log you should contact Abigroup’s Legal Department.” The plaintiff put this in his affidavit of 13 November 2006.

99 The onus in these matters lies on the plaintiff: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. If the plaintiff was aware of there being a copy of an accident report he should have taken steps to obtain it. It is not clear to me why this was not done, if such a report ever existed. It may be that the plaintiff hoped by this statement in his affidavit that Mr Polito would get into the witness box and make some admissions, but if he does not do so, that does not discharge the plaintiff’s onus, nor should an inference be drawn that the failure to call him is a matter akin to failing to call a witness at a trial.

100 The failure of the plaintiff to refer to the conduct of Mr Polito in any of his earlier statements or in his instructions to his solicitors, despite his discussions with his friend Mr McCullough four or five years beforehand, in circumstances where he knew there were limitation periods, is the conduct of a plaintiff who is careless of his rights. I am satisfied from the evidence set out on this issue elsewhere in this judgment that the prejudice to Abigroup arising from the delay is substantial and serious and goes not only to issues of liability but also to quantum.

101 This is not an appropriate case for the extension of time to commence proceedings and I refuse to grant the extension of time sought.

102 Orders were also sought for the discovery of material from Abigroup. Discovery orders are not made in personal injury proceedings unless there is some reason for departing from the general rule. The plaintiff’s application is essentially a fishing expedition. As I have rejected the application to join Abigroup, the plaintiff can issue a subpoena to Abigroup for any documents they need in this litigation.

(1) Notice of Motion dismissed.

(2) Plaintiff to pay the costs of the respondents to the Notice of Motion.

(3) Liberty to restore re costs.

(4) Exhibits retained for 28 days.

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