Jordan v All Tasmanian Air Conditioning Pty Ltd
[2005] TASSC 69
•28 July 2005
[2005] TASSC 69
CITATION: Jordan v All Tasmanian Air Conditioning Pty Ltd [2005] TASSC 69
PARTIES: JORDAN, Mark Owen
v
ALL TASMANIAN AIR CONDITIONING PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 655/2003
DELIVERED ON: 28 July 2005
DELIVERED AT: Hobart
HEARING DATE: 3 June, 22 and 28 July 2005
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of Actions – Extension of time – Considerations – All the circumstances of the case – Arguable Case – Explanation for delay – Prejudice – Exercise of discretion.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: C M Schokman
Defendant: L O Rheinberger
Steven Thomson & Manuela Thomson: L O Rheinberger
Solicitors:
Plaintiff: Ogilvie Jennings
Respondent: Page Seager
Judgment Number: [2005] TASSC 69
Number of paragraphs: 24
Serial No 69/2004
File No 655/2003
MARK OWEN JORDAN v ALL TASMANIAN AIR CONDITIONING PTY LTD
REASONS FOR DECISION MASTER S J HOLT
28 July 2005
The plaintiff claims damages from his employer for an injury to his lower back suffered on 5 January 2001. On 12 December 2003 a little less than a month before the three year primary limitation period expired he issued a writ against All Tasmanian Air Conditioning Pty Ltd (“ATA”). On 1 December 2004, a little less than two weeks before the writ would have become ineffective for service it was sent to ATA’s solicitors with a request that ATA enter an appearance and advise whether it will admit that it was the plaintiff’s employer at the time of the alleged injury. The request for the admission was made because in June 2004 in the course of the plaintiff prosecuting ATA for employment award breaches ATA contended that the employer was not ATA but Steven and Manuela Thomson (“the Thomsons”) trading as Associated Plastics Tasmania. On 9 March 2005, ATA’s solicitors sent a letter stating that ATA would not admit that it was the employer. On 20 May 2005 the plaintiff filed an application for an extension of time to bring proceedings against the Thomsons and have them added as defendants.
It is clear from the materials submitted in support of the application that there is doubt as to the identity of the plaintiff’s employer at the time of the alleged injury. Company and business extracts show that at the time of the alleged injury the Thomsons were the sole directors and shareholders of ATA and the sole proprietors of the business Associated Plastics Tasmania. Written contracts of employment show that on 14 January 1999 the plaintiff was employed by ATA as a plumber working “flexible hours as agreed by the parties” at a rate of $17 per hour and that on 29 September 1999 the plaintiff was employed by the Thomsons trading as Associated Plastics Tasmania as a plastic fabricator working “flexible hours as agreed by the parties” at a rate of $14 per hour. A summary of the plaintiff’s pay shows that up until the end of September 1999 he was paid $17 per hour and that for most of the period between October 1999 and March 2000 he was paid about $14 per hour. The summary indicates that thereafter the plaintiff was paid about $17 per hour. The plaintiff reported the alleged injury in writing for workers compensation purposes describing the injury as having occurred whilst he was lifting a hot water cylinder out of a ute. The employer’s report stated that the employer was ATA and stated as employment details that the plaintiff was undertaking plumbing work 40 hours per week five days per week. The employer’s report purports to have been signed on 22 January 2001 by “M Thomson Company Secretary”.
The solicitor who issued the writ on the plaintiff’s behalf in December 2003 ought to have advised the plaintiff that it was prudent to join the Thomsons as defendants when the writ was originally issued as a primary limitation period was about to expire and there were documents on the solicitor’s file giving rise to a doubt as to from whom the plaintiff ought to be seeking relief. In particular, the solicitor had on his file the plaintiff’s group certificate for the financial year ending 30 June 2001 which named as the payer of the plaintiff’s wages Associated Plastics Tasmania. The solicitor also had on his file a copy agreement dated 28 March 2003 between the plaintiff, ATA and Associated Plastics Tasmania resolving a pay dispute which indicated that Associated Plastics Tasmania may have been the employer during some of the period January 1999 to March 2003. The agreement said that: “Several complicated issues have arisen regarding … the name of the employer at stages throughout the period from 18th January 1999 until 28th March 2003”. The agreement did not resolve those issues.
The joinder of the Thomsons at the time the writ issued would have been authorised by the Supreme Court Rules 2000, r178, which provides:
“A plaintiff or applicant who is in doubt as to from whom he or she is entitled to redress or against whom he or she is entitled to relief may join as defendants or respondents all persons from whom he or she might be entitled to redress or entitled to relief.”
It appears from the contents of an uncontested affidavit from the plaintiff’s former solicitor that neither the solicitor nor the plaintiff gave proper consideration to joining the Thomsons at the time the writ was issued. The evidence in the former solicitor’s affidavit is as follows:
“1Until November 2004, as a partner at Ogilvie Jennings, I had carriage of the plaintiff’s claims relating to his employment with All Tasmanian Air Conditioning Pty Ltd (ATA) and with Steven and Manuela Thomson which matters included claims relating to breach of employment conditions and to injuries he had sustained at work in January 2001 and December 2002.
2Mr Jordan first instructed me in relation to the injury he had sustained at work in December 2002 and I first saw him in January 2003. He first came to see me because ATA were disputing his entitlement to workers compensation for the injury he had sustained to his back in December 2002.
3When issuing the writ in this action in December 2003 I was not aware that there was any doubt that ATA was the plaintiff’s employer. ATA had completed the employers report in both workers compensation claims made by the plaintiff as employer. ATA conducted the disputed workers compensation proceedings relating to the December 2002 injury between December 2002 and October 2003 when it accepted liability for that claim. At no time during the workers compensation proceedings did ATA dispute that it was the employer and ATA held itself out as being the employer throughout those proceedings.
4It was not until June 2004, six months after the writ had been filed, that I became aware that ATA was disputing that it employed the plaintiff after September 1999. On the 10th June I had asked Mr Luke Harrison of Ogilvie Jennings to attend a directions hearing in the prosecution of ATA for breach of employment award conditions. Mr Harrison advised me after that directions hearing that ATA were disputing that it had employed the plaintiff after September 1999. I then raised this issue with the plaintiff for the first time and it was clear to me from my discussions with him that he was unaware that ATA may not have been his employer after September 1999.
5Having reviewed the file I believe that I had copies of the plaintiff’s group certificates and a copy of the agreement between the plaintiff and ATA and Associated Plastics dated the 28th March 2003 at the time of issuing the writ in this action. However because ATA had not, before 10th June 2004, raised with us that it did not employ the plaintiff after September 1999 and because ATA had represented through the whole of workers compensation proceedings beginning in December 2002 and settling in October 2003 that it was the plaintiffs employer I had no reason to question that ATA was the correct employer and proceeded to issue a writ against only ATA as the plaintiffs employer at the time of his injury in January 2001.”
The decision to apply to join the Thomsons was belated. The advisability of joining the Thomsons would have become apparent earlier if the writ had been issued earlier and it had been served on ATA by posting to its registered office shortly after it issued rather than service having been apparently withheld until December 2004 just before the writ was to become ineffective for service. Regardless of this the application for an extension of time and the joinder of the Thomsons could have been made shortly after 10 June 2004 when the solicitor first became that ATA disputed that it had employed the plaintiff at any time after September 1999. It appears from the affidavit of the plaintiff’s current solicitor that instead of addressing the problem in December 2004 when she took over carriage of the file she pursued settlement negotiations with ATA. Those negotiations having been unsuccessful the new solicitor repeated a request first issued in December 2004 that ATA admit that it was the employer and on 9 March 2005 the solicitor was notified that the admission would not be forthcoming. Another couple of months went by before the application for the extension of time and joinder was filed on 20 May 2005.
No statement of claim has been delivered in the proceedings against ATA. The plaintiff has not made an affidavit to be used in support of his application for an extension of time and the joinder. Besides the content of the worker’s report referred to earlier in these reasons the only information I have concerning the substance of the plaintiff’s claim for damages consists of secondary evidence of what is possibly hearsay in documents. The evidence, however, was received without objection and is contained in the following extract from the affidavit of the plaintiff’s current solicitor.
“On the basis of the documents on the file I verily believe that Mr McTaggart, who had carriage of the plaintiff’s files until December 2004, was given the following instructions by the plaintiff:
…
He was told by Steve Thomson to collect and deliver a hot water cylinder to a customer in New Town Road. The cylinder weighed approximately 95 kilogrammes [sic] and the plaintiff was not supplied by his employer with lifting equipment or assistance. When lowering the cylinder from the tray of the Ute to the ground the plaintiff suffered injury to his back.”
The Thomsons, who were represented on the hearing of the application adduced no evidence and in particular did not adduce evidence to the effect that the grant of an extension of time would or might cause them prejudice or oppression.
These are the circumstances of the case. In Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, Underwood, Evans and Blow JJ said at par23, in connection with the discretion to extend time:
“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.”
The passage which I have quoted refers specifically to the Limitation Act 1974. It is not apparent from the information available to me whether the jurisdiction to extend time arises by virtue of the Limitation Act, or by virtue of the now repealed s135 of the Workers Rehabilitation and Compensation Act 1988. Although s135 has been repealed by the Limitation Amendment Act 2004, which came into effect on 1 January 2005, the provision concerned substance not procedure (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at par100), and so the repeal did not have retrospective impact so as to deprive the plaintiff of the right to call upon the court to exercise the discretion (Maxwell v Murphy (1957) 96 CLR 261 at 270). If workers compensation had been paid to the plaintiff the Workers Rehabilitation and Compensation Act, s135, is the applicable provision. If not the Limitation Act, s5, is the applicable provision. There was no evidence regarding the payment of workers compensation and so I have no way of determining which provision should apply, but it does not matter. The discretion under each provision is the same (Woolley v Australian Newsprint Mills Ltd Tas U/R 85/1997 and Butt v Comalco Aluminium (Bell Bay) Ltd Tas U/R B9/1996).
Firstly, counsel for the Thomsons submitted that the evidence as to the existence of an arguable case was unsatisfactory. He rightly pointed out that the evidence does not disclose how the plaintiff removed the hot water cylinder from the tray of the ute. Perhaps it was or could have been pushed to the end of the tray so that about half of it was overhanging and then tilted to bring it to the ground without much weight bearing being required of the plaintiff. Counsel pointed out that there is no description of the lifting equipment or assistance which the plaintiff claims the employer should have provided. I accept that the evidence is scant and far less than might prudently have been submitted to the court for consideration, but at least the following is open on the information provided. Firstly, it is an employment case and “… an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Second, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it.” (McDermid v Nash Dredging and Reclamation Co Ltd [1987] 2 All ER 878 at 887). The evidence is that the employer sent the plaintiff to deliver an object weighing approximately 95 kgs without any lifting equipment or other assistance and in the course of carrying out that duty he injured his back.
As indicated earlier the evidence relating to liability is from the plaintiff’s current solicitor and is secondary evidence of possibly hearsay material contained in documents. However, no objection was taken to it and the position is as stated in Jones & Anor v Sutherland Shire Council (1979) 2 NSWLR 206 where Samuels JA said at 219:
“If evidence, admitted without objection, is legally admissible in proof of some issue in the case, its evidentiary use should be confined to that purpose. The testatrix’s statements in Hughes’ case provide an example. If, on the other hand, evidence, admitted without objection is not legally admissible in proof of any issue, it may, once in, be used ‘as proof to the extent of whatever rational persuasive power it may have’. Suppose a hearsay document is tendered. It is not legally admissible to prove the truth of the assertions it contains, which are, however, relevant to an issue in the case. It might none the less be legally admissible as original evidence of the making of those assertions. But suppose further that there is in fact no issue to which, as original evidence, the document is relevant. No objection is taken to the tender, and the document is admitted. It is then evidence in proof of the issue to which it is relevant, the want of objection having waived the complaint, which would have been fatal, that, being hearsay, it was legally inadmissible.”
If this were the trial of the action the solicitor’s evidence concerning liability may have had little weight attached to it. Further, the failure of the applicant to give evidence and submit to cross-examination affects weight (re O’Neil (1972) VR 327 and Shaw & Anor v Harris & Ors(No 2) (1993) Tas R 167), but this is not the trial of the action, it is an application for an extension of time so that a trial on the merits can ultimately take place. The evidence is there not to support an argument that the applicant will succeed at trial or to enable a classification to be made as to whether the case appears to be weak or strong. It is there solely for the purpose demonstrating that there is at least an argument. Although possibly in some circumstances on an application for an extension of time a judge may give consideration to whether a case is weak or strong, generally such an enquiry would not be embarked upon. As Cox J (as he then was) warned in Soul v Soul Tas U/R 23/1982 at p6 in relation to “skeletal” evidence on an application of this kind: “It may be that at a subsequent trial additional evidence might alter its complexion to such an extent that the conclusion no longer remains open.” In Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497, Kirby P said at 508: “… it is obviously unnecessary for a claimant to establish a case in the detail that would be required at trial …”.
Having regard to the fact that the applicant is not required to present his case in the detail that would be required at trial and having regard to the fact that the absence of evidence from the applicant concerning the merits of the case can, at least in part, be explained by counsel for the Thomsons not taking an objection which could have been taken regarding the solicitor’s affidavit, I am not prepared to make a Jones v Dunkel inference that any evidence given by the applicant would not have assisted him.
The evidence as to merits, although scant, is sufficient to persuade me that the plaintiff has a viable claim against his employer and that his employer was either ATA or the Thomsons.
Next, counsel for the Thomsons pointed out that there was no evidence to show whether the claim was in respect of a trivial injury or a substantial injury. As indicated earlier, there is nothing in the evidence to even indicate whether the injury was such as to attract a workers compensation payment. The alleged back injury might have merely occasioned a short period of discomfort or it might have had and might continue to have consequences of importance. I infer from the fact that a writ has already issued against ATA and that this application is being pursued that the injury the subject of the claim was more than trivial.
If the Thomsons are joined now the action against them will have been brought more than 4½ years after the cause of action arose. They were not sued within the three year primary limitation period because the plaintiff had already issued a writ against ATA and up until June 2004, according to the uncontested affidavit of the plaintiff’s former solicitor, neither the solicitor nor the plaintiff appears to have given proper consideration to the possibility that the employment may have been with the Thomsons rather than ATA. There is no explanation provided for the plaintiff leaving it until December 2004 to request an admission that ATA was the employer. The explanation for not following up the request for the admission in December 2004 is that there was a change of the practitioner having carriage of the matter and in early 2005 there were settlement negotiations with ATA. When those negotiations had not produced a settlement by early March 2005 the matter of the requested admission was followed up and ATA’s solicitors advised on 9 March 2005 that ATA would not admit that it was the employer. No explanation has been provided for the delay between March 2005 and the filing of the application on 20 May 2005. I have no evidence as to why proceedings against ATA were not issued until shortly prior to the expiry of the three year primary limitation period and no explanation as to why service of the writ was withheld for almost a year. If the writ had been promptly issued and served and a statement of claim promptly delivered following appearance as required by the rules, the fact that ATA disputed that it was the employer would have been known much earlier with the realistic chance that proceedings would have been commenced against the Thomsons before the expiry of the primary limitation period or at least that this application for an extension of time would have been made much earlier.
Counsel for the Thomsons referred to what I said in Rush v Skilled Engineering Ltd & Ors [2002] TASSC 80, at par10, namely:
“A plaintiff who does not condescend to set out fully the reasons for the delay deprives the court of an ability to properly consider the matters relevant to the discretion and should generally expect that such a failure will mitigate strongly against a favourable exercise of the discretion. A plaintiff who does give an explanation which shows fault on his part will not necessarily fail. The fault will simply be a factor to be taken into account with the other considerations: Knight v Smith (1975) Tas SR 83.”
Counsel for the plaintiff did not dispute the correctness of this proposition.
The fact that the evidence regarding delay is imprecise, confusing and incomplete is a factor which I will take into account as weighing heavily against a favourable exercise of the discretion for the plaintiff. However, I will also take into account the fact that ATA, being a company of which the Thomsons were the sole directors and shareholders represented in the workers compensation employer’s report that ATA was the employer. I agree with counsel for the plaintiff that the Thomsons are responsible for the confusion as to who the employer was and, accordingly, are in part responsible for the plaintiff’s solicitor apparently relying on the workers compensation employer’s report in naming ATA as the sole defendant when the writ issued. Accordingly, the failure to commence earlier against the Thomsons is partly the fault of the Thomsons.
The Thomsons have not placed in evidence facts indicating that because of delay a fair trial against them cannot now occur. They have not said that the incident the subject of the January 2001 worker’s report and employer’s report was not investigated. They have not said that they did not investigate the nature, cause and extent of the plaintiff’s injury following the report and it appears the plaintiff continued to be employed either by ATA or the Thomsons for considerable length of time following the alleged injury. On the question of specific prejudice Toohey and Gummow JJ said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547:
“There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. … Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.’”
I infer from the lack of evidence from the Thomsons that the chances of a fair trial have not been lost. Of course, however, in considering the application I will take into account the rationales for the enactment of limitation periods as set out in Hill v Iluka at par21 and in particular I will take into account the general prejudice which accrues with the passage of time.
I have found that the plaintiff has an arguable case against the Thomsons and inferred that a fair trial can still occur. I have found that the Thomsons are responsible for the confusion which led to them not being named as defendants when the writ first issued within the primary limitation period. Against these factors I attach considerable weight to the fact that a precise and complete explanation for the delay has not been given and attach weight to the rationales for the enactment of limitation periods and the general prejudice which accrues with delay. Having undertaken this weighing exercise I am positively persuaded that in all the circumstances of the case it is just to extend time.
As to the application for an order that the Thomsons be added as defendants to the existing action counsel for ATA and the Thomsons rightly conceded that if an extension of time was appropriate so to was the joinder. Rule 181 provides: “A proceeding is not defeated by reason of the misjoinder or non-joinder of parties …”. Rule 1841(1)(b) provides: “At any stage of a proceeding and whether or not any relevant limitation period has expired, the court or a judge, either on or without application, may order … that the name of the person who ought to have been joined as a party or whose presence may be necessary for the court or judge to adjudicate on and settle all the questions involved in the proceeding be added …” [emphasis added]. Conversely, if I had found that an extension of time was not appropriate, I would not have allowed the joinder unless satisfied that the plaintiff had a prospect of overcoming a limitation defence. As Dawson J said in Bridge Shipping Pty Ltd v Grant Shipping SA & Anor (1991) 173 CLR 231 at 236:
“The accepted view now is – particularly having regard to the form of the relevant rule (r9.11(3)) – that the substitution or addition of a defendant by amendment does not relate back to the commencement of proceedings but takes effect from the time of the amendment. That means that the amendment cannot prejudice any existing rights under a statute of limitations (or any other limitation period). Accordingly, leave to amend to substitute or add a defendant who has a good defence under a period of limitation will generally be refused as serving no useful purpose”.
Because the writ issued more than twelve months ago it may have been arguable that even if the Thomsons are added as defendants the writ will be ineffective for service on them unless orders are also made extending time for applying to have the writ renewed and renewing the writ. In the circumstances counsel agreed that if I were to determine that an extension of time is appropriate that the following orders should be made. These are the orders which I make:
(1)The time limited for the plaintiff to bring proceedings against Steven Richard Thomson and Manuela Juanita Thomson trading as Associated Plastics Tasmania is extended for fourteen days from today.
(2)Steven Richard Thomson and Manuela Juanita Thomson trading as Associated Plastics Tasmania be added as second defendants with leave to amend the writ accordingly.
(3)The proceeding against the second defendants is taken to have begun on the day the amended writ is filed.
(4)The time for the plaintiff to apply for renewal of the writ is extended to today.
(5)The writ is renewed for six months.
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