Knight v Peak Goldmines
[2003] NSWSC 98
•27 February 2003
CITATION: Knight v Peak Goldmines [2003] NSWSC 98 HEARING DATE(S): 19 August 2002, 24 February 2003 JUDGMENT DATE:
27 February 2003JURISDICTION:
Common Law DivisionJUDGMENT OF: Master Malpass DECISION: The plaintiff is to have leave to amend the Statement of Claim. Any Amended Statement of Claim is to be filed within 14 days. The defendant is to have leave to bring a Cross-Claim against Roger Jackson Enterprises Pty Limited. Any such Cross-Claim is to be filed within 14 days. The costs of both applications are to be costs in the cause. CATCHWORDS: Leave to amend Statement of Claim and to file Cross-Claim - no question of principle. LEGISLATION CITED: Limitation Act 1969.
Supreme Court Rules 1970, Pt 20.CASES CITED: Itex Graphix Pty Limited v Elliott [2002] NSWCA 104. PARTIES :
Alan Knight (Plaintiff)
v
Peak Goldmines Pty Ltd (Defendant)
FILE NUMBER(S): SC 20600 of 2001 COUNSEL: Mr S Hughes (Plaintiff)
Mr K Kelleher (Defendant)SOLICITORS: Firths (Plaintiff)
Colin Biggers & Paisley (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMaster Malpass
Thursday 27 February 2003
JUDGMENT20600 of 2001 Alan Knight v Peak Goldmines Pty Ltd
1 Master: During the period from about 1 July 1997 to 24 November 1998, the plaintiff was employed by Roger Jackson Enterprises Pty Limited (the Employer). The Employer was a labour hire company which hired out the services of its employees.
2 During the said period, the plaintiff worked at a mine of the defendant. His duties included the collection of soil and the lifting of large bins. It is said that the bins were extremely heavy and weighed up to 70 kilograms. A description of the nature of the duties may be found in a report prepared by Dr Adams.
3 On 23 November 1998, he experienced symptoms whilst lifting a bin. His back injuries have been diagnosed as a lumbo-sacral disc prolapse.
4 He commenced these proceedings by Statement of Claim filed on 29 June 2001. The process brings a claim for damages arising out of injury said to have been suffered in the work incident on 24 November 1998.
5 The plaintiff now desires to amend the Statement of Claim. The amendments involve the bringing of an additional claim which alleges that his injuries were caused by the nature and conditions of his employment prior to the incident. The relevant limitation period for the bringing of such a claim has expired. It expired sometime between 1 July 2000 and 23 November 2001.
6 A Notice of Motion was filed on 2 May 2002 seeking an extension of the limitation period. It was supported by two affidavits of Mr Mickels (a solicitor having the conduct of his matter). A copy of the proposed Amended Statement of Claim is before the Court (the proposed amendment is to be found in paragraph 10).
7 The hearing commenced on 19 August 2002. The Notice of Motion was presented as an application for leave to amend pursuant to Pt 20 Supreme Court Rules 1970 rather than as an application to extend time pursuant to the Limitation Act 1969.
8 The affidavit material then before the court was relatively unhelpful. Whilst the material annexed a number of medical reports, none of them gave any support to the additional claim (rather they supported the suffering of a frank injury on 23 November 1998). Further, they showed that no problems were experienced prior to 23rd of November 1998.
9 The plaintiff bears the onus of proof. He must demonstrate an entitlement to the relief sought. The court has a discretionary power to grant the amendment. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served.
10 The defendant has opposed the application on a number of grounds (including the ground that there is no evidence to demonstrate that the plaintiff has a viable cause of action).
11 In the light of this opposition and what was said in court, the plaintiff then sought leave to re-open and an adjournment so that the evidentiary deficiency could be remedied.
12 The application was vigorously opposed. It was ultimately granted with some reluctance. It seemed to me that justice was best served by the taking of that course. The position of the defendant in this case could be appropriately protected by a costs order.
13 Accordingly, leave was given to re-open and the Notice of Motion was stood over generally.
14 The hearing resumed on 24 February 2003. The plaintiff read a further affidavit sworn by Mr Mickels. It annexed a further report from Dr Meachin dated 23 August 2002 and a further report from Dr Patrick dated 25 September 2002.
15 At the same time, the court heard an application brought by the defendant. It had been filed on 3 May 2002. The defendant seeks to bring a Cross-Claim against the Employer. The proposed Cross-Claim is founded on negligence (inter alia breach of duty to provide proper instruction, training and supervision is alleged). The application is supported by affidavits sworn by Mr Greenhalgh (the solicitor for the defendant). A copy of the proposed Cross-Claim is an annexure to one of the affidavits.
16 The Employer is both aware of the proposed Cross-Claim and that the application was to be heard on 24 February 2003. It has chosen not to appear and defend the application.
17 Despite having had the benefit of an adjournment, the plaintiff has fallen short in taking full advantage of that opportunity. The defendant has criticised the further material placed before the court by the plaintiff. The thrust of the criticism is that the further material leaves the position much as it was before. In many respects there is force in what has been said by the defendant. The medical opinions expressed in the further reports are not that easy to comprehend.
18 The plaintiff’s case could have been improved by evidence from the plaintiff himself, less obscure medical evidence and further material from the solicitors for the plaintiff. However, there is now material before the court which gives some viability to the nature and conditions claim. Apart from the further medical reports, it seems to me that the court could have regard to evidence of the work done by the plaintiff and see it as having a potential to cause or contribute to back problems. I do not regard the proposed claim as being hopeless.
19 I should add that the work that the plaintiff was required to do at the mine was a matter already pleaded in the Statement of Claim (see paragraphs 7 – 9).
20 Apart from the issue as to whether or not there was a viable cause of action the defendant has pressed matters of delay and prejudice. It has brought to the attention of the court the relatively recent Court of Appeal Decision in Itex Graphix Pty Limited v Elliott [2002] NSWCA 104. This was a decision given in respect of an application for extension of time made pursuant to the Workers Compensation Act which inter alia drew attention to the importance to be given to a deliberate decision to allow a limitation period to expire.
21 There has been delay and the evidence offered to explain delay has its shortcomings.
22 However, the position seems to be that the legal advisers for the plaintiff failed to put their minds to the question of a nature and conditions claim until a conference was had with senior counsel in February 2002. It was at that conference that the view was taken that the plaintiff’s condition may have resulted from or been contributed to by the nature and conditions of his employment prior to 23 November 1998 and that it would be prudent to amend the Statement of Claim. The present application was brought following that conference.
23 The plaintiff lives in Cobar. He did not instruct his present solicitors until June 1999. The conference had in February 2002 was the first conference had with his legal advisers.
24 I now turn to the question of prejudice. The defendant looks inter alia to the time that has elapsed and the claim that it will have to investigate and meet involving the period (of about seventeen months) during which the plaintiff worked at the mine.
25 The defendant has not put any material before the court in opposition to the plaintiff’s application. Accordingly, there is no evidence of actual prejudice. It advances a case of presumptive prejudice. There is no evidence of loss of relevant documentation or loss of material witnesses. The court accepts that there may be some fading of memory. As has been said in the cases, the quality of justice deteriorates with delay.
26 After taking the matters of delay and consequent prejudice into account, I have come to the view that a fair trial can still be had.
27 The reaching of a decision in this application has involved considerable reflection. It was not an easy application to decide. Ultimately, I have come to the decision that the plaintiff just stumbles across the line. When regard is had to all of the circumstances of this particular case, it seems to me that justice is best served if the amendment sought by the plaintiff is allowed. I have reached a similar view in respect to the defendant’s application.
28 The plaintiff is to have leave to amend the Statement of Claim. Any Amended Statement of Claim is to be filed within 14 days. The defendant is to have leave to bring a Cross-Claim against Roger Jackson Enterprises Pty Limited. Any such Cross-Claim is to be filed within 14 days. The costs of both applications are to be costs in the cause.
Last Modified: 02/28/2003
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