Knight v Western Power Corporation - [2005] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KNIGHT & ANOR -v- WESTERN POWER CORPORATION [2005] WADC 158

CORAM: SLEIGHT DCJ

HEARD: 12 AUGUST 2005

DELIVERED : 19 AUGUST 2005

FILE NO/S: CIVO 82 of 2005

BETWEEN: GILLIAN GAIL KNIGHT
First Plaintiff
WILLIAM PETER KNIGHT AN INFANT (formerly a minor but now of full age)
Second Plaintiff
AND
WESTERN POWER CORPORATION
Defendant

Catchwords:

Section 47A of the Limitation Act 1935 - Whether just to exercise discretion - turns on its own facts

Legislation:

Limitation Act 1935

Result:

Application granted

Representation:

Counsel:

First Plaintiff                :     Mr R R Cywicki
Second Plaintiff            :     Mr R R Cywicki
Defendant:     Mr I R Freeman

Solicitors:

First Plaintiff                :     S C Nigam & Co
Second Plaintiff            :     S C Nigam & Co
Defendant:     Phillips Fox

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

Hughes v Minister for Health [1999] WASCA 131
Victorian Railways Commissioners v Casaccio [1961] VR 157

Case(s) also cited:

Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
City of Gosnells v Roberts (1991) 74 LGRA 1
Homebase Management Pty Ltd v The City of Subiaco [2000] WASCA 212
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Matheson v Commissioner of Main Roads & Anor (2001) 25 WAR 269
Quinlivan v Portland Harbour Trust [1963] VR 25
Re JL Young Manufacturing Co Ltd [1900] 2 Ch 753
Re Juson Pty Ltd (1992) 8 WAR 13
Westpoint Management Pty Ltd v Goakes [2002] WASCA 317

SLEIGHT DCJ: The plaintiffs' application is for an order under s 47A(3) of the Limitations Act 1935 to commence proceedings against the defendant by joining the defendant as a second defendant to proceedings already in existence between the plaintiffs and the City of Bayswater (Action No 3384 of 2002).
Section 47A provides inter alia as follows:
"47A.Protection of persons acting in execution of statutory or other public duty
(1)Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
(a)the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b)the action is commenced before the expiration of one year from the date of which the cause of action accrued,
and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.
(2)A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given.
(3)(a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.
(b)Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by:
(1)mistake; or
(2)by any other reasonable cause, or
(3)that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
(c)Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made."
The second plaintiff was born on 23 July 1987. The proceedings were commenced at a time when he was an infant and therefore this application was commenced by a Next Friend on the second plaintiff's behalf. The second plaintiff has now filed a notice of adoption of the proceedings.
The plaintiffs' claim relates to an alleged accident on 8 January 2002 at the Bayswater Waves Leisure Centre in Broun Avenue Embleton ("the aquatic centre"). The second plaintiff allegedly entered an electrical transformer compound ("the Transformer Compound") which it is alleged was used by children as a hide‑out to smoke cigarettes. It is alleged the second plaintiff put his right hand inside a metal cabinet to retrieve cigarettes he had hidden away and his hand touched a live electrical cable, and as a result the second plaintiff was electrocuted and suffered injuries.
In an affidavit sworn on 9 August 2005 the second plaintiff states as follows:
"4.6at the time of the accident when I was retrieving my cigarette packet I came in contact with a live electrical wire contained somewhere in the metal cabinet and was electrocuted;
4.7at the time of the accident I was 14 years old and was not tall enough to obtain a full view of the inside of the metal cabinet and I would feel for my cigarette packet on the shelf."
After the incident the plaintiffs instructed solicitors S C Nigam & Co. The plaintiffs instructed S C Nigam & Co that the aquatic centre was owned and operated by the City of Bayswater. The plaintiffs' solicitors caused a letter dated 7 May 2002 to be sent to the City of Bayswater. The letter, in effect, gave notice of a claim and requested the matter be referred to the insurers acting on behalf of the City of Bayswater.
By letter dated 18 December 2002 the Local Government Insurance Services (WA) Pty Ltd (acting on behalf of the City of Bayswater) wrote to the plaintiffs' solicitors indicating that the City of Bayswater consented to waive the limitation period of 12 months for commencing proceedings against a Local Government Authority under s 47A of the Limitation Act. Notwithstanding this letter the plaintiffs' solicitors filed in the District Court at Perth on 18 December 2002 a writ of summons (Action No 3384 of 2002) commencing proceedings against the City of Bayswater. It appears this writ was filed to preserve the plaintiffs' rights.
An appearance to the writ was not filed by the City of Bayswater until 15 December 2003.
On or about 1 July 2004 the City of Bayswater filed a defence. In that defence the City of Bayswater pleaded (in par 3) that the Transformer Compound where it was alleged the accident took place was "under the control of Western Power who have sole authority to inspect and maintain it".
At about the same time the solicitor acting for the City of Bayswater, Mr John Eller, sent a letter to the plaintiff's solicitors stating that the "Transformer Compound is the property of Western Power who is solely responsible for inspecting and maintaining it. Do you intend joining that entity as a defendant".
The plaintiffs' solicitors promptly made an application to the District Court to join Western Power Corporation as a second defendant and obtained an order from Deputy Registrar Harman on 19 July 2004 to amend the writ of summons and statement of claim so as to join Western Power Corporation as a second defendant. Service was effected on Western Power Corporation by a letter from the plaintiffs' solicitors dated 21 July 2004.
The solicitors acting for Western Power Corporation, Phillips Fox, wrote to the plaintiffs' solicitors on 22 July 2004 correctly pointing out that the commencement of the proceedings against Western Power Corporation was outside the one year time limitation contained in s 47A of the Limitation Act 1935. Accordingly, to commence proceedings against Western Power Corporation the plaintiffs needed to make an application for leave under s 47A(3) of the Limitation Act 1935.
By letter dated 18 August 2004 the plaintiffs' solicitors sent a letter to Western Power Corporation giving notice of the plaintiffs' claim. This letter was purportedly pursuant to s 47A(3)(c) of the Limitations Act 1935.
By letter dated 26 August 2004, Phillips Fox wrote to the plaintiffs' solicitors contending that the letter of 18 August 2004 did not comply with s 47A(3)(c) in that it did not specify –
(i)Whether it was claimed that the failure to give notice was occasioned by mistake or other reasonable cause; or
(ii)Whether it was said that Western Power Corporation was not materially prejudiced.
By letter dated 21 September 2004 the plaintiffs' solicitors wrote to Phillips Fox stating that in accordance with s 47A(3)(c) of the Limitation Act the plaintiffs claimed that –
1.The failure to give notice within the time limitation was occasioned by reasonable cause due to the fact that the plaintiffs were not aware that the Transformer Compound was the property of Western Power Corporation, nor that it had the sole responsibility for inspecting and maintaining it, until advised by the City of Bayswater's solicitors in about June 2004.
2.The defendant, Western Power Corporation was not materially prejudiced in its defence, particularly as it was made aware of the incident in December 2002 by correspondence from Personal Injury Investigations.
By letter dated 27 September 2004, the solicitors acting for Western Power Corporation contended that the plaintiffs' solicitors had not complied with s 47A(1) in that the plaintiffs had failed to give "reasonable information of the circumstances upon which the proposed claim will be based". In particular Phillips Fox contended that there was insufficient information made available to allow Western Power Corporation to determine whether the location where the accident occurred was owned by it or under its control.
By letter dated 7 April 2005 the plaintiffs' solicitors gave a more detailed description of the location of the accident. (In the earlier letter dated 23 September 2004 the plaintiffs' solicitors had offered to provide a video tape of the accident scene and for this to be inspected by the representatives of Western Power Corporation).
In the letter dated 7 April 2005 the plaintiffs' solicitors also contended that Western Power Corporation was not materially prejudiced in its defence by the delay for the following reasons:
"1.A notice dated 17 December 2002 as to the circumstances of the accident was given to your client by Personal Injury Investigations Pty Ltd, the loss adjusters for the City of Bayswater and as such your client has been on notice within 12 months of the occurrence of our client's accident;
2.Most of the witnesses to the said accident are still available and your client is able to investigate the circumstances of the said accident;
3.The Transformer Compound is still the property of your client and is being maintained by it."
Again the plaintiffs' solicitors sought Western Power Corporation's consent to proceedings commencing out of time.
By letter dated 28 April 2005 the defendant's solicitors wrote to the plaintiffs' solicitors indicating that an application for leave to proceed would be opposed on the basis that it would not be "just for the court to exercise its discretion to grant leave and that the claim was 'speculative or absurd' ".
Significantly it was not disputed by the defendant's solicitors that the delay had occurred due to mistake or other reasonable cause, or that the defendant was not materially prejudiced by the delay.
The plaintiffs filed an application in this matter on 5 May 2005 seeking leave pursuant to s 47A(3) of the Limitation Act 1935 to commence proceedings against Western Power Corporation.
Affidavits were filed by the defendant in response to the application, being affidavits sworn by a Mr John Paul Zanello on 5 July 2005 and 29 July 2005 respectively.
The affidavit of 5 July 2005 ("Mr Zanello's first affidavit") states that the first notice that Western Power Corporation received of the alleged accident was by letter from Personal Injury Investigations Pty Ltd dated 17 December 2002. A copy of this letter is annexed to the affidavit. The letter reads as follows:
"We act for Municipal Liability Scheme, the insurers of the City of Bayswater.
It is alleged that Knight, a 14 year old male, entered the transformer compound of Bayswater Waves on 8 January 2002.
It is alleged that having gained entry into the compound he placed his hand inside a metal cabinet and sustained an electric shock.
Can you please advise if you investigated this accident, if in fact it has been reported to you?
Can you advise who is responsible for the control of access to the transformer area of the Bayswater Waves Leisure Centre and who owns this area?
Can you please advise what, if any, regulations are in place in relation to access control and the barrier requirements for this type of transformer/power supply area, including door and lock type required to secure this type of area?
Would you please respond in writing to this request for information on this matter."
Mr Zanello's first affidavit described various installations in the Transformer Compound including equipment owned by the City of Bayswater and Western Power Corporation. He also stated the Compound contained equipment of Alinta Gas.
In Mr Zanello's first affidavit he describes in detail the contents of a metal cabinet containing a switchboard owned by the City of Bayswater and a meter owned by Western Power Corporation. It is now conceded that this is not the metal cabinet in which the plaintiff claims that he was electrocuted.
There is no description in Mr Zanello's affidavit of the content of the white cabinet where the second plaintiff says he was electrocuted.
Annexed to Mr Zanello's first affidavit is what he describes as "a list of all Western Power assets at the aquatic centre". Mr Zanello expresses the opinion that the Transformer Compound (described by him as the "utility compound") is owned by the City of Bayswater, but gives no reason for this conclusion.
In the second affidavit of Mr Zanello sworn 27 July 2005, Mr Zanello expresses the opinion that the cabinet which is identified by the second plaintiff as the cabinet in which he was electrocuted, houses part of a switchboard owned by the City of Bayswater. He concludes that the cabinet is owned by the City of Bayswater. However, no inspection is made by him of the interior of the cabinet to identify the contents of the cabinet.
Neither of the two affidavits of Mr Zanello addresses the issue raised by the City of Bayswater that the Transformer Compound is under the control of Western Power Corporation and that Western Power Corporation has the sole authority to inspect and maintain it.
A minute of a proposed amended statement of claim attached to the affidavit of Mr Sharad Chandra Nigam, solicitor acting for the plaintiffs, sworn 5 May 2005 contains a pleading of liability against Western Power Corporation dependent upon the contention that the Western Power Corporation "at all material time was the owner of the metal cabinets and electrical cables installed in the Transformer Compound situated beside the pool area at the aquatic centre". However, there is also an alternative claim pleaded under the Occupiers Liability Act 1985. The duty which arises under the Occupiers Liability Act 1985 attaches to the "occupier of the premises" which is defined in the Act as meaning "persons occupying or having control of land or other premises".
It may well be that the second plaintiffs' solicitors will need to consider amendments to the proposed amended statement of claim to specifically plead that Western Power Corporation was in control of the Transformer Compound.
However, the real issue is whether the plaintiffs ought to be allowed to pursue an alternative claim against Western Power Corporation to cover the situation that the claim against the City of Bayswater is dismissed on the basis that the City of Bayswater establishes its defence that the Transformer Compound is under the control of Western Power Corporation who has sole authority to inspect and maintain it.
It is clear under the provisions of s 47A(3)(b) that there exists two pre‑conditions to the court exercising its discretion to grant leave to proceed out of time. These pre‑conditions are –
1.That the court considers the failure to give the required notice or the delay in bringing the action as the case may be was occasioned by mistake or by any other reasonable cause; or
2.That the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay.
Mistake of itself qualifies as a reasonable cause. In Hughes v Minister for Health [1999] WASCA 131 at 42 Malcolm CJ gave the word "mistake" its ordinary meaning and referred to a mistake of fact or of mixed law and fact.
In my opinion a mistake of fact or of mixed law and fact occurred in that the plaintiffs were under the impression that location of the accident was owned and under the control of the City of Bayswater and not Western Power Corporation. The position now is that there is material which suggests that Western Power Corporation may have the ownership and/or control of the area of the location of the accident.
In relation to the issue of whether the defendants were materially prejudiced by the delay, the ultimate burden to establish the absence of material prejudice lay upon the prospective plaintiff. However, it is accepted that the issue would not need to be specifically addressed unless the evidence raised the question that material prejudice might exist. That might be put in terms of the prospective defendant carrying an initial evidentiary onus to raise the question, but once the evidence reached that stage, the ultimate onus to displace the inference of material prejudice would rest upon the prospective plaintiff (see Matheson v Commissioner of Main Roads (2001) 25 WAR 269 at 281).
In this matter the defendant has not contended that it was materially prejudiced. In any event I am satisfied that it was not materially prejudiced, even taking into account the inherent difficulties that are caused by delay.
Accordingly I am satisfied that one or both of the pre‑conditions has been satisfied, and the only issue to be then considered is whether it is just for me to exercise my discretion.
In Matheson v The Commissioner of Main Roads (supra) Murray J at 282 stated as follows:
"In considering that question, matters bearing upon the establishment of the statutory precautions will continue to be relevant. For example, the question of material prejudice to the prospective defendant will continue to have a bearing upon the question whether or not the discretion should be exercised in favour of the prospective plaintiff. See Bingham per Kennedy J (at 232). In addition, such matters as the strength of the cause of action and the question whether the prospective plaintiff would be materially prejudiced by an incapacity to pursue it will continue to be relevant."
It is the defendant's contention that as a result of the affidavit of Mr Zanello it has been established that the injuries were not caused by equipment that was owned by the defendant. Accordingly, it is submitted that leave should not be granted to allow the plaintiffs to bring an action as such an action would not be bona fide and would be a "try on".

The defendant in using the expression "try on" adopts wording from the decision of Victorian Railways Commissioners v Casaccio [1961] VR 157. At p 160 the court stated as follows in relation to an application for leave to commence an action against a public authority out of time:
"… it is not essential for an applicant under s 34(4) to show a prima facie case of liability. In other words, the fact that he does not do so does not mean that it must be held to be unjust to give the leave sought. It may be a material consideration that such proof appears, and a sufficient ground for holding that it is just to grant leave, and that was all that Sholl J said in Akermanis' case, supra, at p 116. On the other hand, it may be quite enough if it appears that the claim is not mala fide, nor merely speculative or absurd. All that the applicant seeks is leave to institute proceedings, with all the risks which attend the suit of any plaintiff. It is no doubt true that the reference in the sub‑section to the 'justice' of an order gives the court a power which it has not got in the case of an ordinary writ, to refuse leave if the action is, e.g., a 'try‑on' (to use a popular phrase). But the view that every applicant must prove a prima facie case of liability is misconceived and would impose an altogether unreasonable burden on applicants. It might in some cases involve a very lengthy and difficult task."
In my opinion the plaintiffs' application to join Western Power Corporation as a defendant to the existing proceedings is not a "try on". If Western Power Corporation is not joined and the City of Bayswater establishes its defence that the compound was under the control of Western Power Corporation then the plaintiffs' claim would almost certainly be defeated. Accordingly, in my opinion, it is just that the plaintiffs be given the opportunity to join Western Power Corporation as an alternative defendant so that if the City of Bayswater is successful in its defence, then the plaintiffs will have an alternative claim against Western Power Corporation.
Accordingly, I will make orders pursuant to s 47A(3) granting leave to the plaintiffs to commence proceedings against Western Power Corporation.