Monforte v Kmart
[2018] VCC 1305
•24 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPLICATION
Case No. CI-16-02028
| VICTOR MONFORTE | Plaintiff |
| v | |
| KMART AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2018 | |
DATE OF JUDGMENT: | 24 August 2018 | |
CASE MAY BE CITED AS: | Monforte v Kmart | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1305 | |
REASONS FOR JUDGMENT
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Subject: Transport accident
Catchwords: Limitation period; Extension of time
Legislation Cited: Limitation of Actions Act 1958; s 23A
Cases Cited: Bell v SPC Limited [1989] VR 170; Brisbane South Regional
Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Delai v Western District Health Service & Anor [2009] VSC 151; Axford v Gray & Anor [2013] VSC 664; Tsiadis v Patterson [2001] VSCA 138; Richards v State of Victoria & Ors [2001] VSC 52
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Muller | Goddard Elliott |
| For the Defendant | Ms N. Wolski | Legetti Partners |
HIS HONOUR:
1 This is an application on summons dated 30 May 2018 whereby the plaintiff, Victor Monforte, seeks leave to extend time to commence a proceeding against the defendant in accordance with the provisions of section 23A of the Limitation of Actions Act 1958 (“the Act”).
2 The application relates to a claim for damages in respect of personal injuries suffered by Mr Monforte as a result of a single vehicle collision which occurred on 28 May 2008 in Tootgarook. His claim against the defendant is based upon allegations of negligence in performing servicing or repairs to the motor vehicle being driven by him at the time.
3 The present application relies upon two affidavits sworn by Mr Monforte’s solicitor on 8 March 2018 and 30 May 2018. There is no affidavit material or other evidence from Mr Monforte in support of the application.
4 In the hearing before me these affidavits from Ms Pippa Rosalind Sampson were tendered in evidence.[1]
[1]Exhibits A & B
5 Mr Muller, who appeared on behalf of the plaintiff, also tendered the statement of claim dated 11 May 2016,[2] and a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 30 June 2016.[3]
[2]Exhibit C
[3]Exhibit D
6 Ms Wolski, who appeared on behalf of the defendant, tendered into evidence the defence dated 30 June 2016.[4]
[4]Exhibit 1
7 There was no oral evidence called in the application and both counsel provided outlines of submissions to assist the court.
8 In the first affidavit sworn by Ms Sampson she set out a history of relevant events. I note in particular that she initially took instructions from Mr Monforte on 27 June 2011, at which time she became aware that a claim in respect of Mr Monforte’s injuries had been made to the Transport Accident Commission (“TAC”) on 8 June 2008, less than two weeks after the date of the motor vehicle accident.[5] Ms Sampson also deposed to being aware of correspondence exchanged between the defendant’s solicitors and Mr Monforte’s earlier solicitors, Slater and Gordon.
[5]Exhibit A [2] to [5]
9 Her affidavit set out further matters relevant to investigations being conducted in relation to causation, negligence and quantum of damage insofar as the property damage claim was concerned.[6]
[6]Exhibit A [6] to [9]
10 Ms Sampson’s first affidavit refers to notice being given to the defendant’s solicitors advising of a property damage claim, and also noting an application to be made for a serious injury certificate relevant to any personal injury claim. This occurred on 27 May 2014,[7] the day prior to the expiration of the limitation period.
[7]Exhibit A [10]
11 I note that a serious injury certificate was received in July 2015, and on 13 May 2016 the present proceeding was issued. Ms Sampson’s affidavit notes a property damage claim also being issued in May 2016. Ms Sampson’s affidavit notes those proceedings issued in the Magistrates’ Court were subsequently resolved.[8]
[8]Exhibit A [19]
12 It is clear from the contents of Ms Sampson’s first affidavit that some delay occurred while Mr Monforte’s proposed proceedings were being managed within her legal firm. In particular the letter to the defendant’s solicitors on 27 May 2014, the day prior to the expiration of the limitation period, strongly suggests that the solicitor handling the matter was aware of the six year time limit, and was seeking at that stage to protect the plaintiff’s rights without actually issuing a proceeding as required by the statute. Proceedings were not actually issued until approximately a further two years had elapsed.
13 Ms Sampson’s second affidavit sets out in further details matters relevant to the reasons for the delay in the proceeding being issued. She exhibits various pieces of correspondence sent to the defendant’s solicitors prior to the expiration of the limitation period. The first of these was a letter dated 10 April 2013 confirming arrangements for the defendant to have access to the motor vehicle for the purpose of an inspection.[9]
[9]Exhibit B [6]
14 The affidavit exhibits an initial letter of demand dated 7 October 2013 and also refers to a further letter of demand sent on 27 May 2014.[10]
[10]Exhibit B [7] & [8]
15 Ms Sampson’s second affidavit refers to briefing counsel and ongoing discussions with him noting that an affidavit for the purposes of a serious injury application was returned by counsel on or about 20 September 2014.
16 Of some significance in the second affidavit is a reference to the plaintiff standing trial in March 2016 on sexual assault charges. Ms Sampson deposes that she had not previously been aware of anything concerning these matters prior to February 2016.[11]
[11]Exhibit B [14]
17 Ms Sampson concludes her affidavit by noting that the defendant’s solicitors had inspected the motor vehicle being driven by Mr Monforte in April 2013, and had been aware of the intention to claim damages for personal injury “since at least May 2014.”[12]
[12]Exhibit B [18]
The legislation
18 Notwithstanding the summons in this proceeding seeking an extension of time in accordance with section 27K of the Act, it was agreed that section 23A was the appropriate vehicle in the present case. Section 23A(2) gives the court power to extend the period within which an action may be brought if it decides that it is just and reasonable to do so. An application can only be granted after hearing such that the persons likely to be affected by that application as it sees fit. The power set out in s 23A(2) can be exercised only subject to sub-section (3) which requires a court to have regard to all of the circumstances of the case and a non‑exhaustive list including –
“(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
19 Applications to extend time in circumstances similar to the present case have been the subject of much debate, both in trial courts and in the appellate jurisdictions.
20 The following principles are relevant and were not the subject of argument between counsel.
i.The plaintiff bears the onus of establishing that it is just and reasonable in order that the limitation period be extended.[13]
ii.Should the defendant establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that the evidence does not demonstrate prejudice.[14]
iii.The relevant delay is the delay between the accrual of the cause of action and the making of an application for an extension of time.[15]
iv.Relevant prejudice to a defendant is that which has actually occurred by reason of the relevant delay as well as general prejudice to a defendant who would otherwise have the benefit of the limitation period. Generally the delay itself will indicate that the quality of justice available to the defendant deteriorates.[16]
[13]Bell v SPC Limited [1989] VR 170 at 174-175 & Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547
[14]Brisbane South Regional Health Authority v Taylor [1996] 186 CLR at 547
[15]Delai v Western District Health Service & Anor [2009] VSC 151 at [22]
[16]Brisbane South Regional Health Authority v Taylor [1996] 186 CLR at 544 & 551
21 The factors set out in sub-section 3 of section 23A are not to be weighed against each other, but must be synthesised in order to give consideration to those which are relevant together with any other circumstances which are relevant.
22 In the present application paragraphs (c) and (d) of section 23A(3) have no relevance.
23 Further, the matters set out in paragraphs (e) and (f) are of minimal weight, noting that the first affidavit of Ms Sampson satisfies me that the plaintiff had made a claim on the TAC by his former lawyers less than two weeks after the occurrence of the transport accident. Further, Ms Sampson described matters as being “well advanced” at the time she took over the carriage of the matter on 27 June 2011.[17]
[17]Exhibit A [2] & [5]
24 The real issues between the parties concern delay and prejudice.
25 It is common ground that the length of the delay from the accrual of the cause of action is almost eight years, noting that the writ was issued on 13 May 2016. The defendant in argument referred me to Axford v Gray & Anor[18] on the basis that the reasons for the delay in the present case remain unsatisfactorily explained “and the defendants are entitled to point to them as a significant circumstance relevant to a just and reasonable disposition of this application.”[19]
[18][2013] VSC 664
[19]Ibid at [19]
26 Ms Wolski submitted that the plaintiff himself had not provided any affidavit addressing the relevant factors to be taken into account. She pointed in particular to a delay of nearly four years between the date of instructions being taken by Ms Sampson’s firm (27 June 2011) and the date when an application was made to the TAC for a serious injury certificate (27 March 2015). Ms Wolski also identified a further delay of ten months between the date when the serious injury certificate was granted in July 2015 and the date when the statement of claim was filed.
27 The defendant further submitted that in the absence of any sufficient affidavit material, the court may conclude that the plaintiff would have a good cause of action in negligence against his present solicitors which would be a relevant factor for the court’s consideration.[20]
[20]Tsiadis v Patterson [2001] VSCA 138 at [27] to [29]
28 Ms Wolski submitted that the inadequacy of the plaintiff’s material, and in particular the absence of any affidavit from the plaintiff himself, would be relevant not only for the purposes of a consideration of paragraph (a), but also relevant to questions of any disability of the plaintiff or the extent to which he had acted promptly and reasonably once he knew of a potential cause of action.
29 I accept that the absence of material is relevant to the issue concerning the reasons for the delay, but there is no evidence before me which suggests that the plaintiff was under any disability. I am also confident on the basis of Ms Sampson’s first affidavit, that the plaintiff’s former solicitors had instructed an expert on the question of liability in February 2010, presumably on the basis of instructions received from Mr Monforte.
30 I do accept that it is unusual in an application of this type for there to be no direct affidavit evidence from the plaintiff himself. Nevertheless the two affidavits from Ms Sampson candidly accept that one or other of the legal practitioners involved in Ms Monforte’s claim had failed to ensure that proceedings were issued within the relevant time.
31 I am satisfied that the delay in the present case is not one which could be described as excessive or extraordinary. Although it is relevant to take into account whether the plaintiff would have an alternative cause of action against his lawyers, it is not clear that any such action would be particularly straight forward.
32 Ms Sampson acknowledges her carriage of the matter from a particular point in time, but also makes reference to an employee solicitor and a member of counsel who seemed to have significant input into the preparation of what would otherwise appear to have been a relatively straight forward common law proceeding, notwithstanding a very significant argument looming as to liability.
33 I am satisfied that the defendant has had an opportunity to obtain relevant expert opinion on the issue of liability. I am further satisfied that given the plaintiff’s early notification to the TAC there is no real prejudice arising from the delay in terms of the defendant being unable to obtain appropriate medical examinations and opinions.
34 In my view the prejudice flowing to the defendant, apart from its obvious loss of the limitation defence, is no more than the general prejudice that must necessarily arise from the efflux of time.
35 Limitation periods are enacted by Parliament for good reason. A party who faces the prospect of being sued must ordinarily expect any potential plaintiff to comply with the relevant statutory time limit. It is in the interest of the community that this principle not be ignored. I accept as submitted by Ms Wolski on behalf of the defendant, that the onus upon a plaintiff is a heavy one.[21] As the court pointed out in that case:
“There has to be an end to litigation, and one of the objects of the Limitation of Actions Act 1958 is to bring an end to litigation and potential litigation after a period of time.”[22]
[21]Richards v State of Victoria & Ors [2001] VSC 52 at [11]
[22]Ibid at [11]
36 Notwithstanding the arguments advanced by Ms Wolski, I must balance those considerations with the knowledge that a refusal of this application will deprive the plaintiff of any prospect of litigating what would appear to be at least an arguable case in negligence productive of injury which has satisfied the TAC as being a serious one.
37 In view of my findings in relation to the questions of delay and prejudice, I am satisfied that it is just and reasonable to extend the time to permit the plaintiff to litigate his proceeding against the defendant.
38 I will hear from the parties as to the precise form of orders sought and in respect of the question of costs.
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