Joselyn v Firm Construction Pty Ltd - [2023] WASC 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JOSELYN -v- FIRM CONSTRUCTION PTY LTD [2023] WASC 36
CORAM:   HILL J
HEARD:   6 FEBRUARY 2023
DELIVERED          :   6 FEBRUARY 2023
PUBLISHED           :   15 FEBRUARY 2023
FILE NO/S:   CIV 1069 of 2023
BETWEEN:   CHRISTOPHER JOSELYN
Plaintiff

AND

FIRM CONSTRUCTION PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for leave to commence an action for personal injuries against a company under external voluntary administration - Limitation period about to expire - Whether leave should be granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 500(2)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr A J Stewart
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Slater & Gordon
Defendant	:	No appearance

Case(s) referred to in decision(s):

Latimer v Cutwood Panels Pty Ltd (in liq) [2012] WASC 408

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

This is an application by the plaintiff made pursuant to s 500(2) of the Corporations Act 2001 (Cth). The plaintiff seeks leave to commence proceedings in the District Court of Western Australia against the defendant.

Factual background

The application was made by an originating motion filed on 25 January 2023. The application is supported by two affidavits of Michael David Raw, a solicitor for the plaintiff, filed 25 January 2023 and 3 February 2023.
Jerome Mohen and Gregory Dudley, both partners of RSM Australia, were appointed as administrators of the defendant on 24 November 2022. As at today's date, the defendant continues to be under external voluntary administration.[1]
[1] Affidavit of Michael David Raw filed 25 January 2023, 'MR7', 'MR11'.
The plaintiff was employed as an apprentice carpenter by Direct Workforce Solutions and was seconded to Mynott Carpentry Pty Ltd to perform work at the construction of the Samphire Resort at Rottnest Island. Mr Raw deposes that on or about 12 February 2020, the plaintiff suffered injuries in an accident which occurred at the construction site.[2]
[2] Affidavit of Michael David Raw filed 25 January 2023 [4] - [14].
The evidence before the court is that the plaintiff's solicitors believe, at this time, the site was occupied and controlled by the defendant,[3] which is why the defendant is the defendant to this claim.
[3] Affidavit of Michael David Raw filed 25 January 2023 [19].
The plaintiff's action against the defendant for damages in relation to personal injury allegedly suffered on 12 February 2020 must be commenced on or before 11 February 2023.
The affidavits of Mr Raw annexe correspondence between the plaintiff's solicitors and the administrators regarding the availability of an insurance policy. On 3 February 2023, the plaintiff's solicitors were advised the defendant had public liability insurers, namely QBE Insurance (Australia).[4]
[4] Supplementary affidavit of Michael David Raw filed 3 February 2023, 'MR1'.
The affidavit evidence reveals that the defendant has notice of the plaintiff's claim,[5] however, it is not clear whether the company's defence is being conducted by the insurer.
[5] Affidavit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 36
Decision Date: 15 FEBRUARY 2023

CaseChat Overview and Summary

The application in Joselyn v Firm Construction Pty Ltd was before the Federal Circuit Court, concerning the plaintiff's attempt to commence an action for personal injuries against a company that was under external voluntary administration. The limitation period for the action was set to expire shortly, making the urgency of the application critical. The court had to determine whether leave should be granted for the plaintiff to initiate proceedings against the company amidst its administration.

The primary legal issue the court addressed was whether the plaintiff could be granted leave to commence an action despite the impending expiration of the limitation period. This hinged on the specific circumstances of the case, including the extent to which the delay in bringing the action was attributable to the company's voluntary administration. The court needed to balance the plaintiff's right to pursue a claim against the statutory constraints imposed by the limitation period.

The court found that the circumstances warranted granting leave to the plaintiff. The delay was due to the company's administration, which the court deemed sufficient to justify an extension of the limitation period. The court emphasised that the decision to grant leave turned on the unique facts of this case, recognising the unusual procedural challenges presented by the company's administration. As a result, the plaintiff was granted leave to proceed with the action against the company.

The final orders of the court allowed the plaintiff to commence the personal injury action against Firm Construction Pty Ltd, despite the limitation period being close to expiring. This decision recognised the special circumstances of the case and the need to balance the statutory constraints with the plaintiff's right to seek redress.

Orders