Lagogiannis v ALH Group Pty Ltd

[2016] VCC 30

HAct

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CIVIL DIVISION
COMMON LAW DIVISION
GENERAL LIST

Case No. CI-10-00682

NICK LAGOGIANNIS			Plaintiff
v
ALH GROUP PTY LTD			First Defendant
CORPORATE IMAGE SECURITY & SURVEILLANCE LTD			Second Defendant
ANDREW JOHN KANE			Third Defendant
JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2015
DATE OF JUDGMENT:	3 February 2016
CASE MAY BE CITED AS:	Lagogiannis v ALH Group Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2016] VCC 30

REASONS FOR JUDGMENT

Catchwords:  Limitation of Actions Act (1958) – ss23A, 27D, 27F, 27K and 27L – proposed personal injuries action as a result of “glassing” incident in hotel (first defendant) – action against first defendant commenced within time – proposed actions against contracting security firm (second defendant) and assailant (third defendant) not issued within time – delay in plaintiff discovering existence of contract between first and second defendants – whether ss27D(1)(a) and 27F applicable – delay in commencing action against third defendant due to doubts that he could satisfy any judgment – whether general or specific prejudice has occurred – effluxion of time – consideration of reasons for delay – whether an action by plaintiff might lie against his solicitors – whether plaintiff has discharged burden of proof – factors to be considered.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Forbes QC (with Mr A Hill)	Adviceline Injury Lawyers
For the First Defendant	Mr D Oldfield	Richard Mole & Associates
For the Second Defendant	Ms J Frederico	Terrill & Holmes Lawyers
For the Third Defendant	Mr P Hayes	Brand Partners Commercial Lawyers

HIS HONOUR:

Background

1 This matter comes before me by way of an application pursuant to s23A of the Limitation of Actions Act 1958, hereinafter referred to as “the Act”. The proposed action relates to an incident, hereinafter referred to as “the incident”, which occurred at the Waltzing Matilda Hotel, Heatherdale Road, Springvale, hereinafter referred to as “the Hotel”, on 1 June 2008. At the relevant time, the Hotel was owned and operated by the first defendant, ALH Group Pty Ltd. The plaintiff was a patron at the Hotel. Security was provided at the Hotel by the second defendant, Corporate Image Security & Surveillance Pty Ltd. On the date in question, the plaintiff was in attendance at the Hotel. He alleges that, whilst so there and in a bar, he was struck with a glass by the third defendant, Andrew John Kane. It should be said that any findings of fact made in relation to the incident are so made for the purposes of the present application and are not intended to be findings which are in any way determinative in relation to issues of negligence, damages and the like.

2       It should also be said at the outset that, should the plaintiff fail in this application, the possibility of an action by him against his former solicitors, Slater & Gordon Lawyers (that firm having taken over the conduct of the matter from Clark Toop & Taylor) is a real one.  In other words, this is not a situation where the plaintiff had not engaged lawyers at an appropriate time.  The plaintiff had legal representation well before the expiry of the relevant limitation period.  His case is now being conducted by a different firm.  The relevant persons at Slater & Gordon have been aware of what is occurring and of the conduct of this hearing.

3       Another important feature of the application is that the proceeding as against the first defendant was commenced within time.  Leave is neither sought nor necessary in relation to the action against it.  Whilst it was represented by Mr Oldfield of counsel at the present hearing, his contribution was, of necessity, very limited.

4       In this application, Ms J Forbes QC appeared for the plaintiff.  The name of Mr A Hill of counsel as Ms Forbes’ junior was entered on the appearance sheet, but Mr Hill was not in fact actually present during the conduct of the application.  As previously stated, Mr D Oldfield of counsel appeared on behalf of the first defendant.  Ms J Frederico of counsel appeared on behalf of the second defendant.  Mr P Hayes of counsel appeared on behalf of the third defendant.  A considerable number of affidavits and documents was tendered.  The only oral evidence was that of Mr Alois Boon, the sole director of the second defendant, who adopted his affidavit of 17 July 2015 as being true and correct and was cross-examined.  In addition, counsel made very helpful oral and written submissions. 

Factual background

(i)        The sequence of events and pleadings

5       The incident occurred on 1 June 2008.  The limitation period would have expired on 1 June 2011.  On 6 November 2013 the plaintiff obtained an order for joinder of the second defendant and an appropriate Statement of Claim was filed on the following day.  On 2 February 2015 the plaintiff obtained an order for the joinder of the third defendant and an appropriate Statement of Claim would appear to have been filed on 11 March 2015.  These are some of the fundamental dates. 

6       By way of background facts, the plaintiff is a 40 year old man, he having been born on 4 April 1975.  On 1 June 2008 he was in attendance at the Hotel.  He was in a bar which, as I understand it, was not part of a night club or dancing area.  By reason of a contract with the first defendant, the second defendant had supplied to the first defendant some five security operators.  Four of these were in the area of the Hotel generally.  One, who is not relevant for the purposes of the present application, was in the gaming room.  In the bar area in which the incident occurred, a CCTV camera was operating.  Two employees of the first defendant, one male and one female, appear to have been working behind the bar in which the incident occurred.

7       The video of the incident is available and was shown during the conduct of the present application.  It was not as clear as it might have been, but this was probably contributed to by the fact that, because of a technical problem, the video disc had to be shown on a laptop computer rather than on the much larger television-style screen in the Court.  What was occurring could be made out, but greater clarity would have been a benefit.  It is asserted by the plaintiff that he was struck with a glass in the area of his right ear and right side of his neck by the third defendant.  He suffered injuries as a result.  He first consulted solicitors on 8 July 2009.  He saw a Mr Fewster of Clark Toop & Taylor, which firm was subsequently acquired by Slater & Gordon on 26 March 2013.  At Clark Toop & Taylor, it would seem that Mr Fewster was operating under the general supervision of Ms Patsy Toop, who also seems to have had some direct input into the conduct of the case.  This continued after the acquisition of Clark Toop & Taylor by Slater & Gordon. 

8       Criminal proceedings were brought by the police against the third defendant.  I understand that he was charged with a considerable number of offences.  Ultimately, at the Magistrates’ Court, he was convicted of unlawful assault and being drunk in a public place.  This occurred on 24 August 2009.  The third defendant appealed.  On 2 December 2009 at the County Court the ultimate result was that, without a conviction being recorded, the third defendant was fined $1,000 for unlawful assault and being drunk in a public place.  It is apparent that, at all times, the third defendant pleaded “not guilty” to the charges.  Presumably he would have heard the evidence (and viewed the CCTV footage), so that the details of the case against him would have been known to him.

9       In addition, I note the following.  Paragraph 4B of the Second Further Further Amended Writ reads as follows:

“Further, the incident was an assault by the Thirdnamed Defendant and constituted conduct that was unlawful.”

In his defence, at paragraph 15, the third defendant states as follows:

“The Third Defendant denies the allegation at paragraph 4B and says further that any physical contact with the plaintiff occurred in self-defence to an attack by the plaintiff on the Third Defendant.”

10      The second limb of the above paragraph seems to me to come close to an admission that there was physical contact between the third defendant and the plaintiff.  It adds to the impression that the third defendant is well-aware of the nature of the case which he has to meet.  In addition, and as shall be discussed, effectively he makes no complaint of specific prejudice.

11      On 19 February 2010 a Writ was issued on behalf of the plaintiff.  The now first defendant, as operator of the Hotel, was the only defendant named.  As it was originally incorrectly named, an Amended Writ was required. 

12      On 10 March 2011 the solicitors for the first defendant communicated with the solicitors for the plaintiff by means of an email.  Whilst the contents of it could be described as being of general relevance, there are two paragraphs of particular interest.  These are as follows:

“2.     As you know the security contractor was Corporate Image Security and Surveillance Pty Ltd … and a copy of the apposite written contract is attached.

3.     At the time of the incident in question there was a further licensed security guard employed at the venue, Tom Aloua.  Tom is an employee of ALH.  His primary duty on the night in question was bar tendering but his habit was to keep an eye out for any ‘trouble’ and generally liaise with the employees of CISS.”

13      The particular relevance of the two paragraphs referred to above is that paragraph 2 clearly identifies the entity with which the first defendant had a contract relating to security.  This email was forwarded approximately 2¾ months before the expiration of the limitation period.

14      The relevance of paragraph 3 is that the licensed security guard and barman, Mr Tom Aloua, is now employed, at least on a part-time basis, by the second defendant.  In other words, Mr Aloua, who, on the evidence of the CCTV footage, would appear to have been in close proximity to and a potential eye witness of the incident, is known to the second defendant and, indeed, employed by it.

15      Thus, the argument is that the plaintiff was well-aware of the role and identity of the second defendant and of the identity of the third defendant close to three months prior to the expiration of the limitation period.  The impression gained is that the plaintiff’s then solicitors did not immediately pursue the second defendant for reasons that are not entirely clear.  Proceedings were not issued against the third defendant because of perceived difficulties in obtaining and executing a Judgment against an individual.  An affidavit of Patricia Faye Westray Toop of 4 November 2013, which is exhibited to the affidavit of Bree Yvette Knoester, the plaintiff’s present solicitor, such affidavit being dated 2 December 2015, refers to various matters.  These include an allegation that the solicitor for the first defendant had informed Ms Toop that his client did not intend joining the second defendant as a party to the proceeding.  This, together with some further discovery that had been provided, caused Ms Toop to obtain further advice from counsel and apply to this Court to join the second defendant to the proceeding.  That order was obtained on 6 November 2013 and the Further Amended Statement of Claim filed the following day.  In the meantime, Clark Toop & Taylor had been acquired by Slater & Gordon on 26 March 2013.  On 2 February 2015, the plaintiff obtained an order for the joinder of the third defendant.  The motivation for this seems to have been the discovery that the third defendant had assets – see paragraphs 7 and 8 of the affidavit of Ms Lily Boskovski of Slater & Gordon, such affidavit being dated 28 July 2015.

(ii)       Relevant evidence on behalf of the plaintiff

16      Material put into evidence on behalf of the plaintiff included an affidavit of 23 July 2015 sworn by him; the affidavit of his present solicitor, Ms Bree Knoester, sworn 2 December 2015, and to which earlier reference has been made; the affidavit of Ms Lily Boskovski of 28 July 2015; the affidavit of Ms Patricia Toop, exhibited to Ms Knoester’s affidavit; an email from a solicitor for the first defendant to Mr Fewster of Clark Toop & Taylor, such email being dated 10 March 2011; and an expert report of Mr Graeme Kelaart of 23 May 2011 (Mr Kelaart provided his report to the first defendant).  Much of this material relates to the conduct of the proceeding and the advice given.

(iii)      Relevant evidence on behalf of the second defendant

17      As earlier stated, the only oral evidence received was that of Mr Alois Boon, he giving his evidence on behalf of the second defendant.  He adopted his affidavit sworn 17 July 2015 as being true and correct.  At the time of the incident, Mr Boon was a director of the second defendant.  As stated in his affidavit, since 1999 he and Mr Allan Armstrong had been directors of it.  From approximately October 2007, Mr Armstrong had taken over and managed the relationship with the Hotel, Mr Boon having had something of a falling out with the manager of that establishment.  Thereafter, Mr Boon had no further dealings with the first defendant in relation to the Hotel. 

18      In 2010, Mr Armstrong was diagnosed with cancer.  He also had marital problems.  He worked part of the time from an office in Carlton, at times from his home and at other times from the homes of friends.  He also became somewhat erratic and unreliable in relation to documentation and communication with clients.  Mr Armstrong died in October 2013. 

19      Mr Boon’s affidavit also contains some details concerning usual security arrangements with clients.  He expanded upon this in his oral evidence.  The usual arrangement was that there would be a discussion between either Mr Boon or Mr Armstrong and the manager of the particular venue, with at times the area manager or head office of the venue in question being involved.  Ultimately, the client made a decision as to the number of security staff required.  Various factors influenced this, such as the number of patrons that might be attending, whether there was a band playing, and, if so, of what kind, and the like.  Sometimes extra staff were required at short notice if there was a particular event on.  Employees of the second defendant were allocated to a venue according to its individual requirements and their experience.  Two of the staff allocated to the Hotel on the night of the incident, namely Daniel Smith and Sumeet Singh, were experienced and had worked at that venue for some time.  All of the second defendant’s staff had current licences.

20      In relation to prejudice to the second defendant, various assertions are contained in the affidavit of Mr Boon.  He has sworn that such prejudice arises from Mr Armstrong not being available as a witness; only the documents which have been discovered are available; and he has lost contact with potential witnesses to the incident.

21      In relation to the death of Mr Armstrong, Mr Boon has only a vague recollection of being told by him about an incident at the Hotel.  He has no other memory of any relevant conversation.  He has sworn that he has no knowledge of any discussions between Mr Armstrong and the first defendant concerning security requirements on the night in question, either in terms of numbers or configuration of staff.  He has no knowledge of any recommendations that Mr Armstrong might have made or as to whether there had been any request for additional staff.  He was not aware of any subsequent investigations that Mr Armstrong might have made or of the number of patrons attending at the venue on the evening in question.

22      Mr Boon had no knowledge of a letter sent by the solicitors for the first defendant to the second defendant in September 2010.  He has been unable to find any documents other than those discovered, which include a copy of the contract between the first and second defendants, the staff register and notice of the incident.  Whilst Mr Armstrong had been a prolific note taker, Mr Boon has been unable to locate any notes which Mr Armstrong took after becoming ill in 2010.

23      In relation to witnesses, Mr Boon has made inquiries of the employees who were working at the Hotel on the night of the incident.  Daniel Smith is still employed on a casual basis by the second defendant.  He has advised Mr Boon that he did not witness the incident.  Sumeet Singh is no longer employed by the second defendant, but has informed Mr Boon that he has no recollection of the incident.  Another employee of the second defendant who was present on the evening, namely Sandeep Singh, is apparently in Western Australia, working in the mines.  Mr Boon has an email address for him, but attempts to contact him have not been successful.  Also employed by the second defendant at the Hotel on the night of the incident was Manpreet Singh.  He no longer works for the second defendant.  Mr Boon has no contact details for him.

24      I have set out the contents of Mr Boon’s affidavit at some length, as they constitute a significant portion of the foundation of the case insofar as it is based upon specific prejudice.

25      I shall now summarise the oral evidence of Mr Boon.  I shall not again go over material contained in his affidavit and which has already been outlined.  In cross-examination, Mr Boon agreed that the person behind the bar on the night in question was an employee of the first defendant who now works for the second defendant, whilst also performing some duties for the first defendant.  Mr Boon agreed that he had access to this man (Mr Tom Alou), but had not spoken to him about the events in question.  His reason for not speaking to him was “because he didn’t work for me” – see Transcript (hereinafter referred to as “T” 43).  Mr Boon did not know whether the late Mr Armstrong had taken any notes in relation to the incident or not.  All that Mr Boon could say was that he found none.  Mr Armstrong had been a very sick man who worked from home and from friends’ places.  Mr Boon had no documents from him at all regarding the incident or anything else – see T44.  He could not find any notes from the period 2007 to 2010.  He simply could not say whether there had been any notes relating to the incident.  Until recently, he had not been aware that the first defendant had sent to Mr Armstrong a letter or email relating to the incident in 2010.  He agreed that the letter had arrived before Mr Armstrong had taken ill with cancer.  Mr Boon also appeared to have no specific recollection of any discussion concerning the incident.  He was somewhat vague about any system which the second defendant may have been operating in relation to the reporting of incidents.  He stated that “all we have to do by law is ensure that the security register is filled out property and legally” – see T45.  He did not know whether it had been done in this particular case.

26      Mr Boon said that he had not made any inquiries of the first defendant as to conversations that might have been conducted with Mr Armstrong.  He and Mr Armstrong had their two separate areas.  Mr Armstrong was not very competent when he was ill.  Mr Boon seemed to be unaware that Mr Armstrong, prior to his death, had provided information to the first defendant’s solicitors as to the circumstances of the accident.  He had not been aware until this year that the first defendant had obtained an expert report from Mr Kelaart, which report is based in part upon a conference with Mr Armstrong – see T47.  Mr Boon agreed that, although he was not the relationship manager with the Hotel as at June 2008, he had been previously been in that capacity and was familiar generally with the arrangements for the Hotel. 

27      Mr Boon denied that he and Mr Armstrong had gone together to the Hotel in connection with the claim in 2012.  He stated that he had not been there and had not met with the solicitor for the first defendant.  He recollected hearing that “they had to go”, but he did not go because of the bad relationship with he had with the manager of the Hotel – see T51.  He recalled that there was a meeting, but does not know what was discussed or what was done.  In answer to a question of mine, Mr Boon said that the second defendant usually sees clients once a fortnight to discuss requirements and the like, because such requirements change all the time.  The meetings are usually with the venue managers.

28      In re-examination, Mr Boon stated that he was not aware of the specific arrangements at the Hotel on that evening.  He also explained how the security requirements could change depending upon whether or not a band was playing and if so, the type of band.  It is a very fluent situation.  Mr Boon said that he had checked through all files in the storage facility and as many emails as he could.  He was aware that the late Mr Armstrong kept a diary, but does not know where that is.  Because of the divorce situation with Mr Armstrong, Mr Boon did not have a good relationship with Mrs Armstrong.  When Mr Armstrong was extremely ill, it was very difficult to communicate with him, but he continued coming to work.

29      The second defendant also placed in evidence an affidavit of an expert, Mr Antony Zalewski, such report being dated 28 August 2010.  Whilst this report was in fact commissioned by the plaintiff, it was, as stated, tendered by the second defendant.

(iv)     Relevant evidence on behalf of the third defendant

30      I turn now to the evidence adduced on behalf of the third defendant.  This consisted of a number of affidavits of Mr Terrence O’Brien, the solicitor for the third defendant, along with the exhibits to such affidavits.  A considerable amount of the content of the affidavits and the exhibits concerns procedural matters relating to the service of Court documents and the like.  One matter of passing interest is that it is apparent from investigations made by the third defendant that, in approximately August 2008, the plaintiff applied to the Victims of Crime Assistance Tribunal in relation to the incident.  The application named the third defendant as the offender, referring to the offence as “attempted murder”.  Further documents amongst the material exhibited to affidavits include the Notices of Orders Made of the Dandenong Magistrates’ Court following a hearing on 12 and 13 August 2009.  It is apparent from these Notice that the third defendant pleaded “not guilty” to a number of charges.  Charges of recklessly causing serious injury, intentionally causing injury and recklessly causing injury and throwing a missile were dismissed on the merits.  The third defendant was convicted of unlawful assault and being drunk in a public place, the conviction being recorded.  He was fined a total of $1,500.  A Certified Extract from this Court reveals that the orders imposed by the Magistrates’ Court on 24 August 2009 were set aside.  The order of this Court was that, without conviction, the third defendant pay an aggregate fine in the sum of $1,000, the date of such order being 2 December 2009.  It is apparent that the hearing at the Magistrates’ Court was conducted over two days on 12 and 13 August 2009. 

31      Whilst this evidence was adduced by the third defendant, it seems to me to support an inference that the matter was fully ventilated in 2009, with a two day contested hearing in the Magistrates’ Court in addition to what transpired before this Court.  Other matters referred to in the affidavits of Mr O’Brien and the exhibits thereto essentially do not relate to the case on behalf of the third defendant as presented.  A letter of Clark Toop & Taylor to the plaintiff, such letter being dated 15 July 2009, and three diary notes of that firm, these being dated 7 August 2009, 17 August 2009 and 25 August 2009, were also put into evidence by the third defendant.

The submissions on behalf of the parties

(a)      The plaintiff

32 The submissions of Ms Forbes on behalf of the plaintiff could be summarised as follows. Firstly, the joinder of the second defendant is within three years of the cause of action being discoverable by the plaintiff. Reference is made to the time limit set by s27D of the Act. If that be so, there is no need for any application. Section 27F(1)(b) is applicable. In the present case there is no issue as to the occurrence of the incident. Accordingly, the cause of action became discoverable when the plaintiff first knew or ought to have known that the personal injury was caused by the fault of the second defendant. There has been no argument that the other factors set out in s27F(1)(a) and (c) apply. Questions of understanding the cause of fault are really matters of lay understanding – see Spandideas v Vella [2008] VSCA 198 at paragraph 32.

33      In the present case, the plaintiff was unaware that the security guards on the premises were not employees or agents of the Hotel, but were there pursuant to an agreement between the first defendant and the second defendant.  This was first communicated to the plaintiff’s then solicitors by an email of 10 March 2011, confirming a conversation previously held on that day and attaching a copy of the relevant contract.  If that be so, as against the second defendant time began to run on 10 March 2011.  The second defendant was joined as a party to the proceeding on 6 November 2013.  This was within the three year period. 

34      If the submissions on behalf of the plaintiff are not accepted in relation to discoverability, there are various general principles that need to be considered.  These are relevant in relation to the application as against both the second and third defendants.  Firstly, the onus is upon the plaintiff to show that it is just and reasonable that time be extended.  Secondly, the approach to be adopted is to synthesise the relevant considerations, as opposed to weighing competing factors against each other – see Tsiadis v Patterson [2001] VSCA 138 and Clark v McGuinness [2005] VSCA 108. Thirdly, the list of factors included in s23A and s27L is not exhaustive.

35      Other factors that are relevant, including in the present case, concern the potential of a plaintiff’s claim against the solicitors who allegedly failed to take appropriate steps prior to the expiration of the limitation period.  This is not necessarily decisive.  It is not an identical type of proceeding.  Reference is made to Tsiadis at paragraphs 27 and 28. It is also mentioned in Tsiadis that length of and reasons for delay advanced by the plaintiff come from the perspective of the plaintiff and not the perspective of the solicitors.  Finally, general prejudice due to the effluxion of time can also be considered and when so doing the whole period is looked at, rather than just the period after the expiry of the limitation period – see Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541.

36      In relation to the reasons for delay, they fall into different periods.  Firstly, there is the period between the occurrence of the assault and the plaintiff seeking legal advice.  That is approximately 14 months and there is nothing inordinate in that regard.  The legal advice that was received was that the plaintiff had a good cause of action as against the first defendant and had a cause of action against the third defendant, but that was one which had difficulties in relation to recovery.  The plaintiff received no advice in relation to the second defendant and there was no mention of it.  It was reasonable for the plaintiff to accept that advice and rely on his solicitors to prosecute the claim as they had advised.  At least initially, they did this.

37      Material was obtained, the matter was referred to a Medical Panel, and a Writ was issued in February 2010.  The existence of the second defendant was not made known until early 2011.  There was some delay in this regard, which seems to have been influenced by the fact that the first defendant had not joined the entity that was to become the second defendant as a third party.  There was also some information obtained as to the contractual arrangements and confusion as to whether Mr Aloua was a crowd controller or a barman.  Thirdly, there was the conveying of the information on 18 October 2013 to the effect that the first defendant did not intend to join the security provider as a party to the proceeding.

38      As a result, further advice was sought and ultimately the joinder of the second defendant occurred in November 2013.  In other words, the forensic decision of the plaintiff’s then solicitors to proceed simply against the first defendant remained unchanged, until receipt of pieces of information which led them to change that decision in late 2013.  The solicitors then acted promptly.

39      Thus, the material does not provide anything that can be visited on the plaintiff between 2011 and 2013.  There is no suggestion that there were problems in obtaining instructions from him.  However, it is clear from paragraph 10 of his affidavit that he considered communications from his solicitors to be inadequate.  Clearly, if there was any delay occasioned by lack of communication, it was not a difficulty which originated with the plaintiff, but with his then solicitors. 

40      The second defendant has raised the issue of prejudice.  The death of Mr Armstrong has been emphasised.  However, Mr Boon, as a director of the second defendant, has general experience of the nature of arrangements with venues and, previously, of this particular venue.  Further, it is apparent from the expert report of Mr Kelaart dated 23 May 2011 (Exhibit E) that Mr Kelaart had discussions with Mr Armstrong, who passed on to him various items of information concerning the Hotel.  Thus, not only did Mr Armstrong attend at the Hotel with the solicitor for the first defendant, but he also had discussions with the first defendant’s expert witness.  There is no specific prejudice caused by the death of Mr Armstrong to the second defendant.  If anything, any prejudice is occasioned to the plaintiff, who is no longer able to cross-examine Mr Armstrong.

41      Of the employees of the second defendant who were present on the night, two have been identified and interviewed and the third is contactable, but not spoken to as yet.  In relation to the fourth employee, there is no information as to what steps have been taken to locate him.  Further, there is nothing to suggest he was a direct eyewitness of what occurred.

42      In addition, the person who was working behind the bar, Mr Aloua, is someone who, it might be thought, could give evidence as to what he saw and what occurred.  He is presently an employee of the second defendant.  However, there is nothing in the affidavit material as to his evidence.  The broad argument that the effluxion of time might have affected memories is countered by the fact that there is the CCTV footage and there is the witness, Mr Aloua.

43      The third defendant makes no mention of any matters of specific prejudice.  He has sworn an affidavit of 2 April 2015.  In it, he describes what happened on two occasions when he encountered the plaintiff subsequent to the incident.  He has not sworn that he is prejudiced in any specific way.

44      There are a number of affidavits sworn by Mr O’Brien, the solicitor for the third defendant.  In none of these does he depose to any substantive factors relating to prejudice, difficulties faced by the third defendant and the like.

45      The nature of the advice received by the plaintiff was clearly to proceed initially against the first defendant.  He accepted that advice and it was reasonable for him to have done so.  It was not until approximately November 2014 and at the time of a mediation that different counsel raised with him the prospect of joining the third defendant and the need to investigate whether the prospects of recovery would justify joinder.  This may be relevant to any claim against the solicitors, but there has been no criticism of the plaintiff for accepting the original legal advice that was obtained and accepting the later advice concerning joinder of others.  There has been no delay of significance.  On each occasion that the plaintiff engaged solicitors, he has at all times accepted the advice received and pursued his original solicitors concerning information about the progress of his claim.  The affidavit of Ms Boskovski describes a number of adjournments and the like, none of which were the fault of the plaintiff himself.  It is just and reasonable that an extension of time be granted against the defendants in question. 

46      Another factor is one not specifically identified in the factors listed in the legislation.  The issues as between all potential tortfeasors should be dealt with as part of the one proceeding.  There is no challenge to the legitimacy of his action as against the first defendant.  It is clear that both the second and third defendants are relevant in terms of determination of liability.  If the extension of time is refused and the plaintiff brings proceedings against his solicitors in respect of the other two defendants, this would have the effect of the plaintiff having to fight two different cases on two different bases arising essentially out of the same factual situation.  That position should be avoided. 

(b)      The first defendant

47      As stated, the first defendant’s role in this application is minimal.  Accordingly, Mr Oldfield had little to say.  However, he did state that, insofar as the submissions on behalf of the plaintiff were relevant to the first defendant, the first defendant took no issue with them.  He agreed that, on 10 March 2011, the first defendant sent to the plaintiff’s solicitors an email disclosing a contract as between the first and second defendants.  He also agreed that, on 18 October 2013, the first defendant informed the plaintiff’s solicitors of its intention not to join the second defendant.  Thirdly, no issue was taken concerning the attendance at the premises in 2012.  Fourthly, it is agreed that the letter exhibited to the affidavit of Mr Boon was sent by the solicitors for the first defendant to the second defendant in relation to the nature of the claim and the like.  (I take this to be a letter of 10 September 2010, being Exhibit AB1 to Mr Boon’s affidavit.)

(c)      The second defendant

48      The submissions of Ms Frederico on behalf of the second defendant could be summarised as follows.  I might add that Ms Frederico spoke to written submissions and the following summary embraces both the written and oral submissions. 

49      Firstly, Ms Frederico referred to general principles, including the proposition that proceedings brought outside the time limit are contrary to the public interest.  In this regard she referred to Brisbane South Regional Health Authority and to Clark v McGuinness.  A synthesis of the various factors has to take place.  One factor to be considered is the availability of an action against the relevant solicitor – Delai v Western District Health [2009] VSC 151 and Tsiadis.  In addition, lack of a clear explanation for the delay is a relevant factor to be weighed – see Arisoy v Yoogalu Pty Ltd [2012] VSC 631. Such a clear explanation is lacking in the present case.

50      It is asserted that, on 10 March 2011, following a mediation between the plaintiff and the first defendant, the first defendant sent to the plaintiff documents relating to the contract for security with the second defendant, these including the names of personnel, the roster and the like.  They were included in the first defendant’s Affidavit of Documents of 3 June 2011.  In its Answers to Interrogatories of 17 June 2011, the first defendant stated that it had engaged the second defendant to provide security.  On 18 October 2012 the first defendant asked the plaintiff why the plaintiff had not joined the security company as a party to the proceedings.  The response on behalf of the plaintiff was that it had not been so added because the first defendant had not sought to add it as a third party.  On 16 October 2013 the first defendant served a Notice to Admit on the plaintiff in relation to the security management agreement between it and the second defendant.  The plaintiff then sought to have the hearing date of 7 November 2013 adjourned.  Counsel was briefed in relation to the proposed amendment of pleadings so that the second defendant could be added to the action.  The plaintiff then issued against the second defendant on 7 November 2013.

51      The second defendant points out that the present application is now made seven years and five months after the incident occurred; four years and five months after the limitation period expired; and five years and eight months after the plaintiff was on notice that the second defendant provide security services to the first defendant.  Further, it is more than two years since the death of Mr Armstrong, who is the primary witness for the second defendant. The delay requiring explanation is from 1 June 2008 to 7 November 2013.

52      The plaintiff was aware of the involvement of the second defendant as at 10 March 2011.  It took no steps until effectively prompted by the first defendant by reason of its Notice to Admit of 16 October 2013.  The only explanation seems to have been that there had been no such joinder because the first defendant did not join the second defendant as a third party.  This is not a satisfactory explanation and constitutes a reason why the plaintiff has a good claim against his solicitors.  In considering prejudice, the Court has regard to the entire length of time between the date of the alleged wrong and the likely date that the matter will be heard – see Brisbane South Regional Health Authority. 

53      The Court ought have regard to general prejudice caused by significant delay on the basis of “what has been forgotten can rarely be shown” – see Brisbane South Regional Health Authority and Clark v McGuinness.  In the present case there has been an inordinate delay with the hearing taking place some eight years after the incident.  Inordinate delay is evidence of prejudice – see Ford Motor Co Australia Ltd v Kulic [1988] VR 152.

54      In relation to specific prejudice, Mr Armstrong, the joint director of the second defendant, was responsible for dealings with the Hotel.  Because of his ill-health and marital difficulties, he seems to have kept no notes of his business dealings during the years leading up to his death.  Mr Boon has searched the records and found none.  Accordingly, the second defendant is not able to rely on any records relating to the provision of security at the time of the incident, other than those which have been discovered.  They do not address the allegation by the plaintiff that the second defendant did not provide a reasonable security system.  Thus, the second defendant is not able to rely on the records of any investigations of the incident.

55      Critically, because of the death of Mr Armstrong, the second defendant is not able to adduce evidence which would meet the allegations of negligence and breach of duty of care made by the plaintiff.  Such evidence includes Mr Armstrong’s experience in developing systems of security and his assessment of the Hotel security requirements.  The second defendant is not able to adduce evidence as to the matters he took into account in relation to assessing security requirements and why such matters were important.  Another example of missing evidence is the security measures that the security personnel, as advised by Mr Armstrong, had in place and why the system of security was adequate, appropriate and reasonable, in addition to why he positioned his staff as he did.  The second defendant cannot adduce evidence as to Mr Armstrong’s interactions with the first defendant and how they impacted upon his decisions concerning security or his assessment of the risk of danger of injury to the plaintiff.  It cannot adduce evidence as to what, based upon his knowledge and experience, was a reasonable risk of injury at the Hotel, having regard to the profile of the patrons.  It cannot adduce evidence as to whether he was aware of previous incidents of “glassing” in the months prior to the incident and whether he had any awareness of whether the third defendant previously attended the venue or whether any behavioural aspects relating to the third defendant may have been demonstrated.

56      All of this is specifically prejudicial to the second defendant, as it will not be able to meet the plaintiff’s case that the system of security provided was not reasonable or adequate.  It will not be able to adduce evidence from Mr Armstrong concerning enquiries he made about the incident when first notified of the plaintiff’s claim.  Had the proceeding been issued within time, the second defendant could have obtained instructions from Mr Armstrong, even if he did not survive until the hearing of the case.  Employees who were there on the night would not have been involved in the particular planning for security at the Hotel.  In any event, only two such employees have been able to be found and neither of them seems to have witnessed the incident.

57 The plaintiff possessed the requisite knowledge within three years of the occurrence of the incident. It possessed the CCTV footage from 21 May 2010. Having possessed knowledge concerning the contract and the CCTV footage, the plaintiff should have been able to join the second defendant within the limitation period. Section 27L(1)(c) is relevant in this regard.

58 In addition, in relation to s27L(1)(f), which corresponds with s23A(3)(e), the second defendant alleges that the plaintiff did not act promptly or reasonably. The second defendant was not joined until November 2013. The plaintiff had been advised on a number of occasions by the first defendant as to the second defendant’s potential involvement and this included advice given before the expiration of the limitation period and before the death of Mr Armstrong. It had received such advice on at least three occasions, including Answers to Interrogatories in April 2011.

59      The plaintiff clearly has a cause of action against his original solicitors.  They were advised by the first defendant that it was the second defendant which provided security as early as March 2011, but failed to join the second defendant to the action.  In summary, the second defendant submits that it is not just and reasonable to extend the limitation period against it.  It will be deprived of a fair trial because of the delay and length of time since the incident.  There is specific prejudice because of the death of Mr Armstrong.   There is general prejudice, as the trial will not be heard until approximately eight years after the incident and five years after the expiration of the limitation period.  No proper explanation or reason has been given.  The plaintiff has a claim against his solicitors.  He also has an action against the first defendant and the third defendant and will not be denied a cause of action completely. 

60 In relation to the argument advanced by the plaintiff based on the date of discoverability (s27L(1)(e)), the defendant relies upon s27F(2) and submits that the plaintiff did not take all reasonable steps to ascertain the fact that the second defendant provided security services to the first defendant. Had the plaintiff done so, the fact of the provision of such service by the second defendant would have been ascertained by him.

61      The plaintiff was represented by specialist personal injury solicitors.  In his original Statement of Claim, the plaintiff alleged that the first defendant failed to have in place adequate security measures and asserted that the first defendant was responsible for the provision of security services.  This was not admitted by the first defendant.  This should have at least prompted an expert personal injury firm to make its own enquiries about who in fact provided such services. 

62      The letter of 15 July 2009 shows that the solicitors for the plaintiff advised him that he may be able to establish negligence against the proprietor of the Hotel for failing to provide adequate security.  This was very much an issue at the time that the plaintiff’s solicitors first received instructions.  In addition, there was a note of 17 August 2009 to the effect that there was no security guard in the area.  Ultimately, an expert report was obtained from Mr Zalewski, this being dated 28 August 2010.  It specifically provided that a venue does not necessarily provide security services, referring to the possibility of security staff being employed either in-house or through a contractor.  This was another prompt for the plaintiff to investigate as to who provided the security services.  In the circumstances, the plaintiff should not have simply relied upon the first defendant to feed it information concerning the provider of security services.

63      When the plaintiff was specifically made aware that it was the second defendant that was the provider of security, this being on 10 March 2011, if he had acted promptly he could have joined the second defendant within time and whilst Mr Armstrong was still alive.  The second defendant could then have obtained instructions from Mr Armstrong, along with any notes that may have been available. 

64      Mr Armstrong was very experienced in the security industry.  The second defendant can no longer produce his evidence as to the needs of the first defendant’s particular venue or the plan that he would have recommended.  Security requirements vary considerably.  His evidence as to his plan and its priorities can no longer be obtained.  His evidence as to any advice concerning priorities to be allocated is not available.  The issue relates to the measures that the second defendant put in place or advised.  The plaintiff did not act promptly or reasonably.  Some witnesses are no longer available.  The plaintiff ignored various prompts which should have alerted him to the joinder of the second defendant.

65 In summary, it is not just and reasonable to extend the limitation period against the second defendant. Further, the plaintiff should not succeed in relation to reliance upon s27L(1)(e) – that is, on the basis of discoverability.

(d)      The third defendant

66      The submissions of Mr Hayes on behalf of the third defendant could be summarised as follows.  Mr Hayes also spoke to written submissions, and the following summary is based upon his oral and written submissions.

67      The plaintiff has failed to discharge his onus to demonstrate that it is just and reasonable for the extension period to be extended as against the third defendant.  The plaintiff was at no time unaware as to whom he considered his assailant to be.  He alleged he was assaulted by the third defendant.  He complained to the police.  The third defendant was charged.  The plaintiff was aware of the CCTV footage approximately one week after the incident.  Within two months he made an application to the Victims of Crimes Assistance Tribunal in relation to the assault.  On 15 July 2008 the plaintiff was advised by Clark Toop & Taylor to sue the first defendant and not the third defendant. 

68      On 15 July 2009, Clark Toop & Taylor wrote to the plaintiff.  This was a detailed letter in clear terms.  The existence of a three year limitation period is clearly set out.  The plaintiff is warned about it.  He is told to maintain regular contact with the solicitor’s office so as to ensure that the appropriate steps are taken on his behalf.  He is given sound advice.  He is also told that, on the basis of the information currently available, he may be able to establish negligence against the Hotel and against the person who assaulted him.  It is also asserted by his then solicitors that judgment against an individual is rarely ever met and that the plaintiff should pursue a claim against the Hotel.  There is no mention of taking any steps to ascertain the financial position of the alleged assailant.  The ultimate advice given is to pursue a claim against the Hotel.

69      There have also been discovered notes of conversations between his solicitor and the plaintiff in August 2009.  It is clear from these notes that the plaintiff was fully aware of the full name of the person who “glassed” him.  (The note of 17 August 2009 appears to indicate that the bartender allegedly saw everything that occurred.)  Further, the note of 25 August 2009 indicates that the solicitor told the plaintiff that he had a claim against the Hotel and potentially against the third defendant, this being despite the outcome of the criminal proceedings.

70      On 5 February 2010, counsel drew and settled the Statement of Claim, with proceedings solely against the first defendant.  The proceedings were issued on 19 February 2010.  It is apparent that the CCTV footage was viewed by the plaintiff in June 2010.  In July 2010 the plaintiff filed an Amended Statement of Claim, correctly identifying the title of the first defendant, but not joining the third defendant, despite the information then possessed.  It is also apparent from the report of Mr Zalewski and from the plaintiff’s answers to the first defendant’s interrogatories that he knew the identity of the third defendant and was claiming to have been assaulted by him.  If there was any doubt, the affidavit of the third defendant makes it clear that he was approached by the plaintiff in 2010, alleging that he was threatened by him.  The contents of the third defendant’s affidavit are not challenged.  Clearly the plaintiff was able to bring his action within the relevant three year period.  However, he did not. 

71      Following this, effectively nothing of relevance happened for almost three and a half years, when orders were made permitting the plaintiff to amend his Writ by adding the third defendant, such orders being made on 2 February 2015.  In essence, the plaintiff had everything he needed to commence proceedings against the third defendant within time, but did not do so.  In effect, nothing occurred for three and a half years.

72 Reference is made to the non-exhaustive criteria set out in s23A(3) and is repeated, with the addition of the discoverability consideration (which does not apply in the case of the third defendant) in s27L. Of those factors, the two most relevant from the point of view of the third defendant are s23A(3)(e) and (f). In terms of general principles, reference is made to the recent decision of J Forrest J in Davies v Nilsen [2015] VSC 584. In that case, his Honour stated as follows:

“A limitation period is imposed by the legislature for good reasons of public policy and should not be regarded as a mere signpost.”

73      Further, the various considerations have to be synthesised.

74 In the present case, the plaintiff had every practical and reasonable ingredient at his disposal to commence proceedings at least by the middle of 2010. The Court should look at the prejudice which has accrued over the whole period. The claim which he now brings is based upon the same ingredients as were available in mid-2010 or even mid-2009. There is no explanation as to the missing five years. When the plaintiff did take action, it was more than three and a half years after the expiry of the limitation period. He had elected to seek compensation against the third defendant, but not to bring common law proceedings against him. He had been advised in the clearest of terms as to the limitation period applicable. At no earlier time did the plaintiff make an application for an extension of the limitation period pursuant to s27K of the Act.

75      In relation to the question of prejudice, whilst there is no affidavit evidence of any prejudice suffered, the whole issue is one for general consideration.  The third defendant can hardly be expected to try to identify and track down witnesses that he might never need in circumstances where there has been an inordinate delay, which delay has not been appropriately explained.  Public policy would suggest otherwise.  Furthermore, reference is made to the decisions in Brisbane South Regional Health Authority and in Clark v McGuinness.  Regard should be had to the general prejudice caused by significant periods of delay.  The Court can readily infer prejudice. The recollection of witnesses would have been affected, particularly in relation to an event that took approximately 10 seconds in a crowded bar in excess of seven years ago.  It is doubtful now if the third defendant could even identify witnesses who might assist his case.

76      The legislature would not have intended or foreseen that someone in the third defendant’s position, in circumstances where a proceeding has been commenced well outside the limitation period, should be added as a party.  He could quite easily have been joined within the limitation period.  It is not just and reasonable that the plaintiff be permitted to have the limitation period extended against the third defendant.

The reply on behalf of the plaintiff

77      Ms Forbes was permitted to reply briefly in relation to two matters.  One of them, as to whether I should accept that the plaintiff threatened the third defendant when they encountered each other at a later date, does not essentially go to the heart of the matters which I have to consider. The only relevant aspect of this seems to me to be that it is clear, on the basis of that unchallenged evidence, that the plaintiff knew who his alleged assailant was.  However, there is little or no argument concerning this in any event.

78      Secondly, it was argued by Ms Forbes that the letter of 15 July 2009, including the advice in relation to the limitation period, simply impressed upon the plaintiff that the proceedings must be commenced within three years.  This occurred.  The Court should look at the situation on the basis of what the plaintiff knew or ought to have known, and not what his solicitors knew or ought to have known.

Ruling

79      I now turn to my Ruling.  I shall deal firstly with my decision in relation to the application against the second defendant.

(a)      Ruling as against the second defendant

80      I am of the view that the plaintiff has discharged the burden of proof as against the second defendant.  His application is successful.  I have come to that conclusion for the following reasons. 

(i)        The discoverability argument

It seems to me that the first argument advanced by Ms Forbes and summarised in paragraph 32 above has merit. It is based upon s27D of the Act, the relevant portions of which read as follows:

“(1)     An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—

(a)     the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;…

There is no argument but that the solicitor for the first defendant supplied to the plaintiff’s solicitors a copy of the written contract between the first and second defendants on 10 March 2011.  Save that there may have been some discussion concerning the existence of a contracting security company at a mediation which was apparently conducted on 9 March 2011, it is not argued that the plaintiff or his then solicitors were previously aware that the security staff consisted of employees of anyone other than the first defendant.  That there was a contract between the first defendant and the second defendant was not previously known to the plaintiff or his solicitors.  As stated, that contract was forwarded by the first defendant on 10 March 2011.  Findings of fact in this regard were scarcely in dispute. 

The argument of the plaintiff is that, given that the joinder of the second defendant was ordered on 6 November 2013 and a Further Further Amended Statement of Claim was filed and served the following day, the action against the second defendant had been commenced within time.  It had been commenced approximately two and a half years after the existence of the contract and the second defendant became known to the plaintiff’s solicitors.  Thus, the argument goes, an extension of time is not necessary, because the proceeding was issued within three years from the date upon which the cause of action was discoverable.

There are two subsidiary arguments involved in this consideration. One concerns the word “discoverable” and its meaning in the context of the present case. An understanding of that meaning is assisted by s27F. It reads as follows:

“(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—

(a)the fact that the death or personal injury concerned has occurred;

(b)the fact that the death or personal injury was caused by the fault of the defendant;

(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.

(3)   In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.”

In the present case, s27F(1)(b) is of particular relevance. That neither the plaintiff nor his solicitors had actual knowledge of the existence of a contract for the performance of security work between the first defendant and the second defendant, or indeed had actual knowledge of the relevant existence of the second defendant, is something that I accept.

The question then becomes whether the plaintiff or, arguably, his solicitors ought to have known that it was the second defendant and not the first defendant that was responsible for security at the Hotel.  The first issue to be determined in this regard is where the onus lies.  This was discussed by Kaye J in Donmez v Neissa & Anor [2012] VSC 73. At paragraphs 32 and 33, his Honour stated as follows:

“32.In determining the first issue, whether the proceeding is statute barred, it is important to identify, at the outset, which party bears the legal onus of proof. A plea based on the statute of limitations is not a denial of an essential ingredient of a cause of action. Rather, it is a plea by way of confession and avoidance of the plaintiff’s claim. It follows that the legal onus rests on the defendant to prove that the plaintiff’s claim is barred under s27D(1) of the Act. Mr Murdoch accepted that the defendants bear the legal onus of proof in relation to the first issue raised in this application.

33.Thus, it follows that, in order to establish the defence, pleaded by the defendants, under s27D(1) of the Act, the defendants must prove, on the balance of probabilities, that the plaintiff knew, or ought to have known before 18 December 2005, each of the three matters specified in s27F(1)(a) – (c). The legal onus of proof should not, of course, be confused with the evidentiary onus, which may well require that, in a case such as this, the plaintiff introduce evidence as to what he or she knew, or ought to have known, in relation to each of the three matters specified in s27F(1). However, in determining this application, is it necessary to bear in mind that the legal onus of proof, in relation to each of those matters, rests on the defendant.”

Wherever the burden might lie, as previously stated it is not suggested that the plaintiff or his solicitors had any knowledge of a contract between the first defendant and the second defendant prior to March 2011.

In relation to what the plaintiff “ought to have known”, the second defendant, in essence, has argued that the plaintiff, via his solicitors, being a firm that specialises in personal injuries, should have made, but did not make, any enquiries about who provided the security at the time of the incident. 

Further, it is argued by the second defendant in its defence of 14 May 2010 that the first defendant did not admit it was responsible for the provision of security services.  Further, the plaintiff had obtained an expert report from Mr Zalewski, such report being dated 28 August 2010.  In paragraph 37 of that report, Mr Zalewski stated:

“Whether security staff are employed in-house or through a contractor, management still retained control of the system of security.”

If the plaintiff or his advisers had not previously turned their minds towards the question of whether security was provided by an entity separate from the first defendant, the non-admission in the defence and the remark of Mr Zalewski should have prompted the plaintiff to make further enquiries.

In my opinion, this argument fails. Whilst the affidavit material in relation to this particular point may be skimpy, the fundamental facts are not in dispute. For example, in paragraph 9 of her written submissions, Ms Frederico refers to the fact that, on 10 March 2011, the first defendant sent to the plaintiff documents relating to the contract for security with the second defendant, these including the security personnel, security roster, the contract and the like. I see no reason why the plaintiff ought to have known about the contract or the existence of the second defendant prior to approximately that date. I do not see why the plaintiff’s solicitors should have so known. Section 27F(2) refers to the facts that would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the facts.

Was the existence of the contract with the second defendant something which would have been ascertained had the plaintiff taken all reasonable steps?  If the person referred to in that question is the plaintiff himself, the answer seems to me clearly to be “No”.  The plaintiff knew that he had been assaulted by the third defendant.  He knew that he had been in the Hotel operated by the first defendant at the time.  He engaged solicitors virtually from the outset.  There is no suggestion but that he complied with any instructions given to him by his solicitors and followed their advice.  He kept in contact with them.  He can hardly be expected to have initiated all sorts of independent investigations and this was not suggested. 

Further, I am not of the view that his solicitors had failed to take all reasonable steps before the date when the solicitor for the first defendant informed them of the existence of the contract and of the second defendant.  I am not convinced that the almost fleeting non-specific reference to contractors in paragraph 37 of the report of Mr Zalewski should have prompted the plaintiff’s solicitors to take further investigative steps.  It is to be remembered that this paragraph, which comes under the heading “The Influence of Venue Management”, commences as follows:

“Whether the security staff are employed in-house or through a contractor, management still retained control of the system of security.  Typically a venue will dictate: …”

There then follows a list of some eight matters which, typically, management of the venue would still dictate, whether security staff were employed in-house or through a contractor.  These matters include how many security staff will be engaged; the profile of suitable staff; the venue’s rules and policies, along with its capacity; behavioural standards; special requirements or conditions attaching to the liquor licence; importantly, incident response strategies; and general security issues such as communication and conflict management.

Given that the expert’s report which he had obtained effectively advised the plaintiff’s solicitors that matters such as incident report strategies and conflict management were typically dictated by the venue, it is perhaps not surprising that the plaintiff’s solicitors did not look beyond the first defendant as a party to the proceeding (leaving to one side the third defendant).

Nor do I regard the fact that, in its Defence, the first defendant did not admit it was responsible for the provision of security services as being something that should have prompted the plaintiff to take further steps.  Widespread denials and non-admissions are not uncommon in Defences.  The Particulars of Negligence in the original Writ include such matters as failing to have in place any or adequate security measures, failing to heed the risk of injury to patrons as a result of misbehaviour of other patrons, failing to comply with industry standards for the safe service of alcohol and the like.  Denials or non-admissions in response are hardly surprising.  It does not seem to me that the failure to institute investigations after receipt of the Defence represents a failure to take all reasonable steps.

Similarly, I am not convinced by the argument that, because the plaintiff’s solicitors are specialist personal injury solicitors, they should have made further enquiries.  They had issued proceedings against the occupier of the venue.  Thus, they had a logical and apparently substantial defendant.  They had obtained an expert’s report.  If anything, that report confirmed that the plaintiff had a viable action against that defendant.  Again leaving to one side the third defendant, in my opinion, there was nothing in the expert’s report that rang particular warning bells concerning suing any other prospective defendant, whether or not the plaintiff’s solicitors held themselves out as specialists in relation to personal injury claims.

When all of the above is taken into account, it seems to me that, during the relevant period prior to March 2011, neither the plaintiff nor his solicitors knew or ought to have known that the personal injury was caused by the fault of the second defendant. Bearing in mind the requirements of s27F, it seems to me that the date upon which the cause of action was discoverable for the purposes of s27D was either 10 or 11 March 2011. If that be so, the proceeding against the second defendant was issued within time. No extension of time is required. I presume that the plaintiff seeks a declaration to this effect, but I shall hear the parties in this regard.

(ii)       The argument in relation to an extension of time

The alternative argument advanced by Ms Forbes was that, in any event, and bearing in mind the factors set out in s27L, the plaintiff is entitled to an extension of time as against the second defendant. I agree with a couple of fundamental propositions advanced by counsel. The lists of factors contained in s23A and s27L are not exhaustive. The approach to be taken is one of synthesising those various factors. Secondly, the public interest is served by proceedings being commenced within the period specified. Next, there is at least an evidentiary burden upon the plaintiff to persuade me that it is in the interests of justice to extend time. Further, the availability of an action against the relevant solicitor is a factor to be considered. Also to be taken into account is whether there is a lack of a clear explanation for the delay. It has long been recognised that the effluxion of time, on its own, can be an important, if not decisive, factor. There are numerous authorities for this proposition.

In relation to these matters, the length of the delay is not inconsiderable.  Almost seven and a half years have passed since the occurrence of the incident and four and a half years since the expiration of the limitation period.  This is a factor which I bear in mind, although I do not regard it as decisive in the present case.  I also accept that in excess of two and a half years passed between the plaintiff becoming aware of the second defendant’s involvement in March 2011 and the issuing of proceedings against the second defendant on 6 November 2013.  I appreciate that, with the passage of time, the memories of people may fade or become distorted.  In engaging in the synthesising process, I shall bear these matters in mind, but, as is probably apparent, they are not of such magnitude as to tilt the balance in favour of the second defendant.

In relation to the reasons for the delay, I have already discussed the situation prior to the plaintiff’s solicitors becoming aware in March 2011 of the contract between the first and second defendants.  True it is that not a great deal seems to have occurred between then and November 2013, when the plaintiff actually joined the second defendant to the action.  It is apparent from the affidavit of Ms Toop of 4 November 2013 and from the chronology provided that further reports were obtained from Mr Zalewski.  In addition, other documents were obtained.

Overall, the fact of the matter is that not an enormous amount of progress seems to have occurred between March 2011 and November 2013.  The service of a Notice to Admit by the first defendant upon the plaintiff on 16 October 2013 may well have hurried things along.  I take into account the delay between March 2011 and November 2013, but, again, the existence or consequences of this, whilst leaving to one side matters such as specific prejudice, do not seem to me to be of sufficient gravity for me to find, in the interests of justice, that the application should fail.

Further, if it is not already apparent, I am not of the view that the total delay, when viewed in the context of what has occurred, is sufficient to sustain a submission of general or indemonstrable prejudice or that it is inordinate to this extent.  In addition, as is probably apparent from what I have previously said, overall the plaintiff’s explanation for the delay seems to me to be reasonable.

As regards specific prejudice, the second defendant placed considerable prejudice upon the death of Mr Armstrong.  I accept that Mr Armstrong may have been a witness whom the second defendant may have called.  He was the officer of the second defendant who provided to the first defendant security staff and advice and liaised with it concerning its requirements.  However, perhaps because of his ill-health, it is uncertain whether he took any notes regarding these matters.  What is clear is that he had some discussions with Mr Kelaart, the expert retained by the first defendant.  He was able to give to Mr Kelaart advice concerning the possible number of patrons, the usual number of patrons and the fact that the local police had never expressed any issues in relation to it.  There is no suggestion that Mr Armstrong was present on the night.  The existence of the CCTV footage is also to be remembered.

Further, Mr Boon, Mr Armstrong’s partner, had previously been the person liaising with the manager of the Hotel concerning security matters.

In Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517, J Forrest J pointed out that, in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. He stated that a fair trial does not mean an ideal trial, but one that is “acceptably fair”. His Honour went on to say that the Court has to make an assessment of what might occur at the trial in determining whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. His Honour referred to the decision in South Western Sydney Area Health Service v Gabriel (2001) NSWCA 477.

When, in the present case, the various factors are balanced, the plaintiff has satisfied me that, whilst there may not be an ideal trial, the trial that could be conducted is acceptably fair.  The level of prejudice demonstrated does not lead to the contrary result.  The CCTV footage is available.  The barman who was on duty and seems to have played a role in what occurred is now at least a part-time employee of the second defendant.  It is far from clear as to whether there are any missing notes or records.  It is not clear whether Mr Armstrong, because of his ill-health and matrimonial problems, was taking or keeping any notes at this time.  He was not an eyewitness to what occurred.  He subsequently took part in discussions with the first defendant’s expert, who has recorded details of this.

When these various matters are taken into account, it does not seem to me that the death of Mr Armstrong represents sufficient prejudice, either on its own or as part of a synthesis, to defeat the plaintiff’s application.

The second defendant has also referred to its employees who were working at the Hotel on the night and whose evidence may no longer be available due to the passage of time.  Two of these employees have been located and are unable to assist.  Whether that is so because the passage of time has affected their memories, or simply because they were not in the vicinity of what was a fairly rapid incident, is not clear.  An email address for a third employee has been found.  A fourth employee cannot be located.  The barman, who, judging from the CCTV footage, seems to have played a comparatively prominent role in what occurred, is now an employee of the second defendant.  I am not of the view that prejudice in relation to the absence of witnesses (other than Mr Armstrong, who has been discussed) has been demonstrated.

In relation to other arguments advanced on behalf of the second defendant, I accept that the plaintiff could have acted more promptly in seeking to join the second defendant after the existence of the contract was revealed to it by the first defendant and that such joinder could theoretically have taken place before the death of Mr Armstrong. However, I have discussed the impact of his death above. I am not of the view that the factors referred to in s27L(c) and (f) are of sufficient weight to tilt the balance in favour of the second defendant.

Another matter raised by the second defendant concerns the availability of a cause of action by the plaintiff against his solicitors.  Whilst the existence of such a potential claim exists, it seems to me to be far from a prospective cause of action that could be described as a certain win for the plaintiff and particularly in regard to the involvement of the second defendant.

Further, there is some merit in the argument of Ms Forbes to the effect that, if the plaintiff’s present application failed and proceedings were instituted against his solicitors, this would essentially involve a splitting of the case, which would be undesirable.  The first defendant is not, in reality, involved in the present application, because proceedings against it were issued within time.  Thus, the argument goes, there would be a case brought against it.  There would then be another case brought against the solicitors.  Such case would involve consideration of many of the same facts.  I agree that this is not a particularly attractive outcome and is one which can be borne in mind when considering the availability of a cause of action by the plaintiff against his solicitors.

(b)      The application as against the third defendant

81 The application as against the third defendant is considerably simpler than that against the second defendant. No issue arises as to discoverability. Consideration of ss27D(1)(a) and 27F is not required. Further, as I understand the submissions of Mr Hayes, no specific prejudice is being alleged. Indeed, he argued that, given the passage of time and the plaintiff’s apparent inactivity, it would be unreasonable to have expected the third defendant to expend time and money attempting to track down witnesses. This had not occurred and thus no specific prejudice was being alleged. Further, in his written submissions, Mr Hayes referred to the fact that it would be most unlikely that the defendant would now be able to track down witnesses who might support his account of the incident. There is no affidavit material as to any efforts that he has made in this regard or as to difficulties which he has encountered.

82      As indicated in the above summary of the submissions of Mr Hayes, it was argued forcefully that the plaintiff possessed all the requisite information necessary to commence proceedings against the third defendant well within the three year limitation period.  He asserted that, effectively, nothing of relevance happened for almost three and a half years prior to the plaintiff commencing proceedings against the third defendant.  I would refer again to my summary of the submissions on behalf of that defendant.  I would also refer to my earlier observations concerning general prejudice.

83      When the various relevant factors are synthesised, it seems to me to be in the interests of justice that the plaintiff be granted an extension of time to bring proceedings against the third defendant.  It does not seem to me that the ability to conduct a fair trial has been prejudiced.  I would refer to and repeat what was said by J Forrest J in Davies concerning the distinction between an ideal trial and a fair trial.  Certainly, on the basis of the material before me for the purposes of this application, there is no dispute on the part of the third defendant but that he is the alleged assailant.  The CCTV footage is available to him.  Whilst it was not spelt out, I would assume that he either gave evidence at the two day contested Magistrates’ Court hearing or was present when that case was conducted.  I would also assume that he was present or provided some evidence for the appeal.  Whatever the situation, there seems to be no reason to suggest that the plaintiff does not possess at least a fundamental knowledge of the case that is brought against him and it may well be that he possesses quite detailed information.

84      I agree that the plaintiff’s solicitors seem to have been tardy in initiating the action against the third defendant.  Clearly it was contemplated earlier, but ruled out.  The application to join the third defendant seems to have been provoked by the discovery that he may possess sufficient assets to satisfy a judgment.  I would refer to the affidavit of Ms Boskovski.  In any event, the reasons for the delay, whilst understandable, are not particularly compelling.

85      However, and particularly in the absence of any evidence of specific prejudice, it seems to me that, when the process of synthesis takes place, the plaintiff is entitled to an extension of time.  Further, I would repeat the point earlier made in relation to the application as against the second defendant to the effect that the splitting of the case, so that one trial would be conducted against the first defendant and, potentially, a second trial conducted against the plaintiff’s former solicitors in relation to the second and third defendants and involving the same basic facts, is not a particularly desirable outcome and not one in accordance with the general approach adopted in the Civil Procedure Act 2010.

Conclusion

86 The plaintiff is successful. He is entitled to a declaration against the second defendant to the effect that his proceeding against that defendant was commenced within three years of the date on which the cause of action was discoverable. Alternatively, he is entitled to an extension of time pursuant to the provisions of s23A or ss27K and 27L of the Act. Pursuant to those provisions, he is successful against the third defendant and similarly is entitled to an extension of time.

87      I shall hear from the parties as to the precise wording of the orders to be made and as to any ancillary orders that are required.