McKay v Shire of Busselton
[2008] WADC 56
•24 APRIL 2008
MCKAY -v- SHIRE OF BUSSELTON [2008] WADC 56
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 56 | |
| Case No: | CIVO:28/2008 | 21 APRIL 2008 | |
| Coram: | BOWDEN DCJ | 24/04/08 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Plaintiff given leave to bring proposed action against the defendant | ||
| PDF Version |
| Parties: | ELIZABETH ELEANOR MCKAY SHIRE OF BUSSELTON |
Catchwords: | Limitations Actions for personal injury Delay occasion by mistake Prejudice Exercise of discretion |
Legislation: | Limitations Act 1935 |
Case References: | Blythe v The State of Western Australia [2008] WASCA 10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Ducker v The State of Western Australia [2006] WASCA 93 Hughes v Minister for Health [1999] WASCA 131 Matheson v Commissioner of Main Roads (2001) 25 WAR 269 Pascoe v Nominal Defendant (Qld) No 2 [1964] Qd R 373 Perry v City of Armadale [2004] WASC 167 Town of Kwinana v Vidovich [2004] WASCA 274 Victorian Railways Commissioners v Casaccio [1961] VR 157 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SHIRE OF BUSSELTON
Defendant
Catchwords:
Limitations - Actions for personal injury - Delay occasion by mistake - Prejudice - Exercise of discretion
Legislation:
Limitations Act 1935
Result:
Application granted
Plaintiff given leave to bring proposed action against the defendant
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A A Nolan
Defendant : Mr J Eller
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : John Eller
Case(s) referred to in judgment(s):
Blythe v The State of Western Australia [2008] WASCA 10
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ducker v The State of Western Australia [2006] WASCA 93
Hughes v Minister for Health [1999] WASCA 131
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Pascoe v Nominal Defendant (Qld) No 2 [1964] Qd R 373
Perry v City of Armadale [2004] WASC 167
Town of Kwinana v Vidovich [2004] WASCA 274
Victorian Railways Commissioners v Casaccio [1961] VR 157
(Page 3)
1 BOWDEN DCJ: The plaintiff claims that on or about 25 April 2002 she was walking through a car park adjacent to Naturaliste Terrace, Dunsborough in Western Australia when her foot became lodged in the grill of a drain at the car park, causing her to trip and fall to the ground.
2 The alleged injuries sustained by the plaintiff were a fracture to her left foot, soft tissue injury to her back, left leg, left ankle and left foot, anxiety and depression.
3 The plaintiff wishes to pursue a claim against the defendant alleging that the defendant was negligent in that it failed to take any or any adequate precautions for her safety while she was walking through the car park, exposed her to a risk of injury or damages of which it knew or ought to have known, failed to warn her of the presence of the drain in the surface of a car park on the premises, failed to repair the drain and allowed the drain to be installed at such a depth in the car park that it constituted a danger to persons such as herself who are lawfully walking through the car park.
The originating summons
4 On 17 March 2008, the plaintiff issued the present originating summons seeking leave pursuant to s 47A of the Limitations Act 1935 ("the Act") to bring the action against the defendant. The affidavit of Elizabeth Eleanor McKay, the plaintiff was filed on 25 March 2008.
5 On 2 April 2008, the defendant filed its memorandum of appearance. On 8 April 2008, the plaintiff filed their notice of appointment to hear originating summons and on 15 April 2008, filed a affidavit of Adam Anthony Nolan, it being served on the defendant's solicitors on 16 April 2008.
6 The matter was before me in chambers on 21 April 2008.
7 The plaintiff's solicitors applied orally on 21 April 2007 for an abridgement of the 14 day time limit referred to in s 47A(3)(c) of the Act. This was opposed by the defendants.
8 In Town of Kwinana v Vidovich [2004] WASCA 274, it was established that the District Court Judge does have jurisdiction to abridge the 14 day period prescribed by s 47A(3)(c) of the Act.
9 I do think that in the circumstances it is just to abridge the 14 day period. The affidavit was filed on 15 April and served on 16 April, that is, giving 5 days notice instead of 14 days. The affidavit which is one of
(Page 4)
- three documents relied upon by the plaintiff for compliance for s 47A(3)(c), the other two documents served on the defendant are in compliance with the timeframe in that section.
10 The defendant made no application to adjourn for further investigations. I do believe that it is just to allow the plaintiff's application to abridge the time and I so do.
Preliminary point
11 One of the matters raised in the course of this hearing was that the notice did not state the grounds in which the application is made. The defendant in essence, says that s 47A(3)(c) has a twofold requirement, being, both to give notice in writing and that the notice in writing should state the grounds in which the application is made. In Perry v City of Armadale [2004] WASC 167, it seems to have been accepted that the required notice may be constituted by more than one document.
12 In this case the plaintiff relies on three documents being:
(a) letter from Trewin Norman & Co (subsequently referred to as "the letter") to the Busselton Shire Council dated 4 March 2008 outlining in brief the circumstances upon which the injury was allegedly occasioned by Mrs McKay, advising that they intend to commence proceedings in the District Court of Western Australia seeking damages for personal injury and asking for the matter to be referred to the public liability insurer. There is no reference in this letter to the basis upon which it is said that the defendant is liable for the injury allegedly suffered by the plaintiff, nor is there any reference to why there has been a delay in providing notification of the accident to the defendant or the grounds upon which any subsequent application was to be made. I also note that although the month of the occurrence is referred to, the exact date is not referred to.
(b) The second document relied upon by the plaintiff is the affidavit of Elizabeth McKay sworn 20 March 2008. That affidavit in par 3 sets out the circumstances of the accident and par 4 sets out the injuries allegedly sustained by her and par 7 and 8 sets out the legal basis upon which the plaintiff claims that the defendant is liable, ie in negligence. This affidavit refers to the month of the occurrence but not the exact date. Both the letter and the McKay affidavit were provided to the defendant within the 14 day notice period as required under s 47A(3)(c).
(Page 5)
- (c) The third document relied upon by the plaintiff was the affidavit of Adam Anthony Nolan sworn 15 April 2008. This document was not served on the defendants until 16 April.
13 The plaintiff relies on the content of all three of these documents read together as constituting compliance with s 47A(3)(c) and bearing in mind that the affidavit of Anthony Nolan was not served on the defendants until 16 April 2008, the plaintiff accordingly needed the abridgement of time in relation to the 14 day requirement of s 47A(3)(c) which I have allowed.
14 In Perry's (supra) case, Justice Le Miere was faced with a similar issued saying at par 38:
"The grounds upon which an application for leave to bring an action is made must refer to the foundation or basis upon which the application is made, that is, the reasons for which the plaintiff submits the leave should be granted. What qualifies as a sufficient statement or notice of the grounds on which an application is made is a question of fact, and depends on the circumstances of each application. In some cases it may be necessary for the plaintiff to identify whether the delay in bringing the action was occasioned by mistake or by any other reasonable cause, or that the prospective defendant is not materially prejudiced by the failure or delay. However, in my view, it is not an invariable requirement that the plaintiff should characterise the basis upon which he/she seeks leave, that basis being either that the delay was occasioned by mistake, or that it was occasioned by any other reasonable cause, or that the defendant is not materially prejudiced."
15 Further, Justice Le Meire sat at par 41:
"The apparent purpose of the requirement in s 47A(3)(c) is that a person intending to apply for leave to bring an action under s 47A(3) should give notice in writing of the grounds on which the proposed application is to be made, is so as to enable the prospective defendant to decide whether or not to consent to the bringing of the action against him pursuant to s 47A(2). A further purpose of the requirements of s 47A(3)(c) may be to enable the defendant to carry out any inquiries or investigations to enable it to resist an application under s 47A(3) if it should see fit."
(Page 6)
16 In this case it is only via combination of all three documents that one is able to ascertain the incident giving rise to the claim for negligence. The letter gives details as to the occurrence, the month of the occurrence, the location and physical activity the plaintiff was involved in at the time of the occurrence and claims the plaintiff suffered injury and loss. The affidavit of Ms McKay discloses the date of the occurrence by reference to month only, not the specific date, the location, physical activity the plaintiff was involved in the bodily injury sustained and the treatment obtained. The affidavit of Mr Nolan states the grounds that the application is made, that is, that the defendant sued the wrong party. Although that is not explicitly stated, it is clearly the only implication and states the exact date of the alleged occurrence which was otherwise only ascertainable from one of the medical reports being an annexure to Mrs McKay's affidavit.
17 As in Perry's case, I do not consider that it is fatal to the notice that the plaintiff did not go on and characterise the facts and circumstances as amounting to a mistake as the reason for the delay in bringing the action.
18 The purpose of the notice is to enable the prospective defendant to decide whether or not to consent to the application and/or carry out investigations to enable it to resist the application if it was sees fit.
19 It does seem to me that the plaintiff's affidavit of 25 March 2008, together with the letter of 4 March 2008 sufficiently state the grounds of the plaintiff's proposed application to enable the defendant to decide whether or not to consent to the proposed application and to carry out any enquiries or investigations to enable it to oppose the plaintiff's application if it saw fit. The further affidavit of Mr Nichol dated 15 April 2008 clearly sets out the basis upon which the application is made and the reason for the delay. That is, that the plaintiff's solicitors had sued the wrong party.
20 For these reasons I find the plaintiff gave notice in writing of his proposed application for leave to bring an action and of the grounds on which it was to be made as required by s 47A(3)(c).
Requirements for leave
21 Section 47A of the Actreads:
"(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 on 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:
…
- (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 mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it think it is just
- to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose."
22 The Act has been repealed by s 4 of the Limitation Legislation (Amendment and Repeal) Act 2005 ("the 2005 Act"), but s 6(2) of the 2005 Act provides that if a cause of action accrues before the commencement date of the 2005 Act, the applicable limitation period is that which would have applied before the commencement of the 2005 Act whether or not that period had expired.
23 The requirements that the plaintiff needs to satisfy in order to obtain leave under s 47A(3) can be summaries as follows:
(1) The delay in bringing the action was occasioned by mistake. Mistake, of itself, qualifies as a reasonable cause: Matheson v Commissioner of Main Roads (2001) 25 WAR 269 per Justice Murray at par 47.
(2) Alternatively, the delay in bringing the action was occasioned by another reasonable cause.
(3) Alternatively, the prospective defendant is not materially prejudice in its defence or otherwise by the delay.
If one of the above conditions is satisfied then the court has a discretion to grant leave if it is just in the circumstances to do so: Matheson v Commissioner of Main Roads(supra) per Murray J at 274.
Delay
24 The plaintiff's case is that the delay to bring the action was occasioned by mistake.
25 Mistake of itself qualifies as a reasonable cause: Matheson v Commissioner of Main Roads. Mistake is, given its ordinary meaning, can mean a mistake of fact or of mixed law and fact: Hughes v Minister for Health [1999] WASCA 131.
26 The failure to bring an action against the present defendant in my opinion is attributable to a mistake or misunderstanding of a fact or circumstance surrounding the occurrence of the accident. That is, it was believed that the accident occurred on property owned by the Body Corporate of the Naturaliste Forum Shopping Centre who in fact were sued and it was only at the pre-trial conference that it was discovered that
(Page 9)
- the car park in fact belonged to the Shire of Busselton (affidavit of Mr Nolan, par 4, 5 and 6).
27 I am satisfied that the delay was occasioned by a mistake.
28 The plaintiff did give the Body Corporate of Naturaliste Forum Shopping Centre notice in writing of the occurrence on 21 January 2003 and proceeded in the Magistrate's Court against that Body on 17 October 2006 (affidavit of Mr Nolan, pars 4-5 and annexure b and c therein). The fact that the plaintiff wrote to and sued the wrong party is no comfort to the defendant however it does illustrate that the plaintiff actively pursued this matter. One the mistake was ascertained, the plaintiff acted promptly in writing to the defendant and bringing the proceedings.
Other reasonable cause
29 The plaintiff's application was not based on establishing that the delay was occasioned by "any other reasonable cause". It was brought solely on the basis that the delay was occasioned by a mistake and it is therefore unnecessary for me to deal with this point.
No material prejudice
30 The plaintiff's application was not based on establishing that the prospective defendant was not materially prejudiced in its defence or otherwise by the delay. It was solely on the basis that the delay was occasioned by mistake and it is therefore unnecessary for me to deal with this point.
Discretion
31 It is clear that the decision as to whether to grant or refuse leave under s 47A of the Act involves the exercise of a judicial discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 , Ducker v The State of Western Australia [2006] WASCA 93, Blythe v The State of Western Australia [2008] WASCA 10.
32 In deciding whether to exercise the discretion, the prejudice to the defendant is a relevant and important consideration: Blythe(supra) at par 39. It bears upon the question whether or not the discretion should be exercised in favour of the prospective plaintiff: Matheson (supra) at par 56.
33 The defendant submits that even if the conditions for granting leave to bring an action are satisfied, the court should decline to exercise its
(Page 10)
- discretion to grant leave. Mr Eller advised me from the bar table that the affidavit of Mr Nolan which discloses the grounds of the basis of the application, ie the delay, was not received by the Shire of Busselton until 16 April 2008 and there had been insufficient time to enable any investigation. He further advised that the configuration of the car park had in fact changed and therefore investigations were not able to be made. The defendant also says that leave should be refused because the plaintiff's claim is speculative or a "try-on" and it would not be in the interest of justice for leave to be granted to commence an action against the defendant.
34 The plaintiff points out that the defendant has not filed any affidavit in this matter. The plaintiff says that the defendant has known since 4 March 2008 when the letter was faxed to the defendant, the factual base of the plaintiff's claim and the plaintiff's desire to commence proceedings.
35 It was not disputed by Mr Eller that the facsimile had been received. Although the facsimile letter was not in fact annexed to the affidavit of Mr Nolan, as in my opinion it should have been, a copy was provided to me and Mr Eller very fairly advised that he had no objection to it being provided to me. That letter is exhibit 1 in these proceedings.
36 The plaintiff further submitted that the originating summons and the affidavit of the plaintiff filed on 25 March 2008 indicated the legal basis (negligence) upon which the plaintiff intended to proceed and that the defendant had in those circumstances approximately three weeks from service within which to prepare appropriate affidavits and had not done so and there is therefore no evidentiary basis upon which I could reach the conclusion that the defendant and had insufficient time to investigate or that the configuration of the shopping centre had changed or the defendant was in any other way prejudiced.
37 At the hearing of this matter on 21 April 2008, I did adjourn the matter until Thursday 24 April 2008 at 9.30 am (this being the last court sitting date before the limitation period expires), however I gave liberty to both parties to file any additional affidavits that they wished, provided that was done by Wednesday 23 April 2008 by 4 pm.
38 Neither party has availed themselves of that opportunity. In those circumstances, the only evidence put before me is the evidence in affidavit form from the plaintiff, coupled with the letter (Exhibit 1).
39 In deciding whether to exercise the discretion, I have considered the decision of Brisbane South Regional Health Authority v Taylor(supra).
(Page 11)
40 In his judgment McHugh J said at p 551 that the discretion to extend time in such circumstances must be exercised in the context of the rationales for the existence of limitation periods. The enactment of time limitations, he said, have been driven by the general perception that where there is delay the whole quality of justice deteriorates and sometimes that deterioration in quality is palpable where a crucial witness is dead or an important document has been destroyed. His Honour was of the view that an applicant for extension must show that justice will be best served by accepting the particular proceedings from the general prohibition imposed. In that context, he said, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved.
41 Dawson J, expressing agreement with McHugh J, took the view that the relevant section of the Queensland Act did not confer upon an applicant for an extension of time a presumptive right to an order once the two conditions laid down by that section were satisfied.
42 The four rationales referred to by McHugh J for the enactment of limitation periods are firstly, that as time goes by, relevant evidence is likely to be lost, secondly, that it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed, thirdly, that people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them and finally, that the public interest requires that disputes be settled as quickly as possible.
43 The plaintiff must show that justice will be best served by exempting the particular proceedings from the general prohibition imposed.
44 The onus on satisfying the Court that the discretion should be exercised in favour of the plaintiff lies on the plaintiff.
45 In Brisbane South Regional Health Authority v Taylor (supra), McHugh J observed at p 555:
"When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation
(Page 12)
- periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability re-imposed upon it."
46 Applying those factors to this case, it is clear that the defendant has not shown actual prejudice. I accept entirely the natural inference that as time goes by evidence is likely to be lost. However, the defendant has not provided any evidence of actual prejudice. There is nothing to establish for example that witnesses for the defendant are unavailable. There is nothing to establish that it is oppressive to a defendant to allow the action to be brought long after the circumstance which gave rise to it has passed and while accepting that people should be able to arrange their affairs and resources on the basis that claims can no longer be made against them and that the public interest requires that disputes are settled as quickly as possible, there is also a public interest in the plaintiff's cause of action be determined by a court on its merits. There is simply nothing to establish the fact or the real possibility of significant prejudice other than the lapse of time
47 Nothing before the court indicates that witnesses cannot be located or that the configuration of the car park has changed. On the evidence before me I am unable to conclude that there is a real possibility of significant prejudice to the defence. The defendant has not adduced any evidence by way of affidavit. The appropriate O 58, r 21 requires such evidence to be adduced by affidavit. This defendant has been on notice since the letter of 4 March 2008 of the likelihood of these proceedings. I accept that it was not until the affidavit of Mr Nolan, served on the defendant on 16 April 2008 that the exact date of the occurrence was made abundantly clear to the defendant, however, there was no evidence before me that the defendant made any enquiry of the plaintiff seeking any further particulars of the occurrence.
48 The defendant further submitted that leave should be refused because the plaintiff's claim was a "try-on" and it would not be in the interest of justice for leave to be granted to commence an action against the defendant.
49 In Victorian Railways Commissioners v Casaccio [1961] VR 157 it was contended that leave should not have been granted because it was not just to do so. In that case the appellant argued that there was no prima facie proof of agency or negligence on the part of the person alleged to have been driving the crane which injured the respondent and hence that
(Page 13)
- the respondent's intended cause of action was not sufficiently made out. The Full Court rejected that submission and said, at p 160:
"We think that there probably was such evidence, but even if there was not, it is not essential for an applicant under s 34 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 is sufficient ground for holding that it is just to grant leave, and that was all that Sholl J said in Akermanis's case. On the other hand, it may be quite enough, 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 that attend the suit of any plaintiff. It is no doubt true that the reference in the subsection to the 'justice' of an order gives the Court a power which it has not got in the case of an ordinary write, to refuse leave if the action is, eg, 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."
51 Justice Le Miere in Perry v City of Armadale (supra) at par 50 held that:
" … it is not essential that an applicant should show a prima facie case of liability. It is enough if it appears that the claim is not mala fide, not merely speculative or absurd. Commenting about the section merely permits leave to be given to bring an action."
52 The section merely permits leave to be given to bring an action. In my opinion the plaintiff's claim cannot be characterised as mala fide nor speculative nor absurd, or in the words of one of the cases, a "try-on".
(Page 14)
53 The plaintiff may or may not be successful, in commencing this action she is open to all the risks of the action.
Conclusion
54 I am satisfied that the delay in this matter was occasioned by mistake. The plaintiff has not sought to satisfy me that the delay was caused by any other reasonable cause or has not caused material prejudice to the defendant. However, having satisfied me that the delay was occasioned by a mistake, it does enliven my discretion and considering all the circumstances of this case, I believe the court should exercise a discretion to grant the plaintiff to bring the proposed action against the defendant.
55 The court hereby grants leave for the plaintiff to bring the proposed action against the defendant. However, in my opinion, in the circumstances of this case, bearing in mind that the delay was occasioned by mistakes in bringing proceedings against the wrong party, and it was necessary for the plaintiff to apply for abridgement of time and it is only by a combination of three documents that the factual basis and legal basis of the plaintiff's claim and the reasons for the delay are explained, I believe that the plaintiff ought pay the defendant's costs incurred in this application including the costs of the appearance on 21 April 2008 and today's date.
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