Murphy, S.J. v A Raptis & Sons

[1991] FCA 197

Re: SUSAN JANE MURPHY
And: A. RAPTIS AND SONS (A Firm)
No. WA G12 of 1991
FED No. 197
Admiralty

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Admiralty - application for extension of time to commence proceedings under Admiralty Act 1988 - delay by solicitors - prejudice to defendant - plaintiff's ability to sue solicitors.

Admiralty Act 1988 s.4(2), s.37

Navigation Act 1912 (Cwth) s.396

Workers Compensation and Assistance Act 1981

Daroczy v. B. and J. Engineering (1986) 67 ACTR 3

HEARING

PERTH

#DATE 11:4:1991

ORDER

The application is dismissed.

The plaintiff's solicitors pay the defendant's costs of the application.

A copy of these reasons to be delivered to the plaintiff by her solicitors and an affidavit of compliance with the order to be filed on or before 25 April 1991.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Susan Jane Murphy alleges that on 5 September 1985 she was working as a cook/deckhand on the fishing vessel Zaandam, which was sailing in the Bonaparte Gulf, north of the Northern Territory and the State of Western Australia. She says that on that day the boat was involved in a collision with the vessel Endeavour Pearl, owned by A. Raptis and Sons, and that the impact of the collision caused her to be thrown against a doorway resulting in injuries to her neck, shoulders and back. By a motion filed in this Court on 13 February 1991, she seeks an extension of time to enable her to commence proceedings against A. Raptis and Sons under the Admiralty Act 1988. Although no draft application or statement of claim was before the Court, it appears from correspondence exhibited to an affidavit that Ms. Murphy contends that the injuries which she suffered were caused by the negligence of that firm. Her proposed action therefore falls within the description of a "proprietary maritime claim" in s.4(2) of the Admiralty Act 1988 which includes within that class (see para.4(3)(d)):

"A claim (including a claim for loss of life or personal injury) arising out of an action or omission of:

(i) the owner or charterer of a ship;

.

.

.

being an act or omission in the navigation or management of the ship including an act or omission in connection with: .

.

.

(vi) the carriage of goods or persons on the ship."

Proprietary maritime claims are by virtue of s.4(1), a species of "maritime claim". Limitation periods for the institution of maritime claims are dealt with in s.37 of the Admiralty Act which in the relevant parts provides as follows:

"37(1) A proceeding may be brought under this Act on a maritime claim, or on a claim on a maritime lien or other charge, at any time before the end of:

(a) the limitation period that would have been applicable in relation to the claim if a proceeding on the claim had been brought otherwise than under this Act; or

(b) if no proceeding on the claim could have been so brought - a period of 3 years after the cause of action arose.

(2) Sub-section (1) does not apply if a limitation period is fixed in relation to the claim by an Act, an Imperial Act, an Act of State, or an Act or Ordinance of a Territory, including such an Act or Ordinance in its application in a part of Australia.

(3) Where:

(a) but for this sub-section, a court would not have power to extend a limitation period in respect of a maritime claim or a claim of a particular kind on a maritime lien or other charge; and

(b) the court has power to extend a limitation period in respect of a claim of the same kind;

then, by force of this sub-section, the court has power, exercisable in the same way, and in the same kinds of circumstances, as the power referred to in para.(b), to extend the period fixed by sub-section (1) in respect of maritime claims or claims on maritime liens or other charges, of a kind referred to in that sub-section."

Sub-sections (4) and (5) are not relevant for present purposes.

1. In this case a limitation period was fixed by another Act, s.396 of the Navigation Act 1912 (Cwth) as amended by s.56 of the Admiralty Act 1988. As amended the section reads, in the relevant parts:
   

"396(1) No action shall be maintainable to enforce any claim or lien against a ship or its owners in respect of any damage or loss to another ship, its cargo or freight, or any property on board the ship, or damage for loss of life or personal injuries suffered by any person on board the ship, caused by the fault of the former ship, whether such ship be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within 2 years from the date when the damage or loss or injury was caused or the salvage services were rendered.

.

.

.

(3) Any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any period mentioned in this section to such an extent and on such conditions as it thinks fit..."

The combined effect of s.37 of the Admiralty Act 1988 and s.396 of the Navigation Act 1912 is to impose a time limit, extendable by the Court, of 2 years in relation to personal injury claims.

1. The background to the present application begins on 4 April 1986 when Ms. Murphy made an application for workers' compensation in the Workers' Compensation Board of Western Australia against Hunt Management Pty Ltd, which was evidently her employer. In June 1987 the solicitors presently acting for Ms. Murphy, D'Alessandro and Associates, were instructed to take over the conduct of the workers' compensation claim. A notice of discontinuance of that matter was filed on 9 February 1988 in the Workers' Compensation Board. This, according to Mr Joseph D'Alessandro, a principal of the firm D'Alessandro and Associates, was because of problems establishing that Ms. Murphy was a "worker" within the meaning of the Workers Compensation and Assistance Act 1981. In the meantime, according to his affidavit, his firm had attempted to establish the actual location at which the collision had occurred so that they might commence an action for damages for personal injury in the appropriate jurisdiction. On 13 October 1987, they were sent a letter by the Department of Transport and Works of Northern Territory headed "Collision Zaandam 5 September 1985" advising that a search of the Department's file revealed no record of the collision and indicating that the Department had not been notified of it.

2. On 11 November 1987 D'Alessandro and Associates wrote to A. Raptis and Sons in the following terms:
   

"Our abovementioned client was an employee upon a vessel named "the Zamdam" (sic) on the 5 September 1985 in the Bonaparte Gulf, Australia. We understand that you owned/occupied or controlled the "Endeavour Pearl" which collided with The Zamdam. As we understand the situation, you were negligent in so doing.

We intend instituting action on behalf of our client for damages at a later stage.

In the meanwhile kindly advise us of the following:

(a) the name of your Insurers who will be dealing with the claim;

(b) the full name and address of the owner of the Endeavour Pearl;

(c) the details of damage and repair to both vessels;

(d) the amount paid by your or on your behalf to the owners of the Zamdam for the damage occasioned to the vessel;

(e) whether or not liability is admitted.

We look forward to receiving this information from you at your earliest convenience."

By a facsimile transmission dated 24 November, Finlaysons, a firm of solicitors acting for A. Raptis and Sons, replied to D'Alessandro and Associates advising that they had instructions to act and at that stage refusing to answer the various questions posed in the D'Alessandro letter. The fax concluded with an invitation to D'Alessandro and Associates to formulate Ms. Murphy's claim. A follow up letter on 8 February 1988 did set out answers to the questions in the letter of 11 November as follows:

(a) We are the Adelaide correspondents for the P. and I. Club, which

insures the vessel.

(b) We understand that A. Raptis and Sons are the owner of the

vessel "Endeavour Pearl".

(c) and (d) We see no basis upon which we should supply this

information.

(e) Liability is denied."

In a postscript to the letter the solicitors said:

"We look forward to receiving details of the claim which your client intends to bring and would appreciate it if you could advise in which jurisdiction such claim will be brought."

Nothing appears to have happened thereafter until October 1988 when the solicitors sought counsel's advice as to the jurisdiction in which an action should be commenced for a personal injuries claim against the owners of the "Endeavour Pearl". They were advised in November 1988 that the preferred procedure would be to commence an action under the Navigation Act in the High Court. However, counsel also told them that the proclamation of the Admiralty Act 1988 was imminent and it was anticipated that from 1 January 1989 the Federal Court would have jurisdiction. D'Alessandro said his firm received advice that "whilst there appeared to be no express limitation as to the time to commence an action for personal injuries under the Navigation Act that s.37 of the Admiralty Act contained provisions which may make it necessary to apply for an extension of time to commence the action".

1. It was then decided to institute proceedings in this Court. However, it was not until May 1989 that an attempt was made to file an application for leave to commence proceedings out of time. The affidavit of Mr D'Alessandro sworn 15 February 1989, which sets out the various matters of background to which I have already referred, was lodged with the application. Both were rejected for non-compliance with the rules. No further application was filed until 12 February 1991.

2. The current application which came on for hearing on 20 March was initially supported only by the affidavit sworn on 12 February of Keith John Bradford, a member of the firm D'Alessandro and Associates. He said that following the rejection of the application "the jurisdictional question was reviewed in respect of the location of the collision with a view to commencing action in the Supreme Court". However, in the event, no further information having been obtained as to the location of the collision, it was decided that the action should proceed in the Federal Court under the Admiralty Act. And upon what were described in his affidavit as "further enquiries with Hunt Management, the agents for the owners of the Zaandam", D'Alessandro and Associates were informed of the location of the collision by a fax dated 1 February 1991. That information indicated that the collision had occurred 22.7 miles from the coast and therefore in what Mr Bradford described as "Federal waters".

3. He then contended in his affidavit that while there had been "some delay" the prospective defendant and its solicitors had been aware of the pending claim since November 1987. Further, it was said, that the defendant could not be prejudiced as it had settled the property claim of the Zaandam's owners by a payment of $13,110 on 7 July 1987. A fax message from Hunt Management Pty Ltd including that information was exhibited to the affidavit. The logical relationship between that and the claimed lack of prejudice is not clear.

4. Mr Bradford went on to say that since the accident, Ms. Murphy has suffered depression, headaches and amnesia, has psychological and emotional problems and is impecunious. She would be unable to seek alternative remedies if the present relief sought were denied.

5. The affidavit material was notably spare on the reason for the delay between the first attempt to institute proceedings in this Court in March 1989 and the current application filed nearly two years later. Counsel appearing for Ms. Murphy conceded that the affidavits did not deal expressly with the reason for delay, but submitted that it was occasioned either by negligence or lack of diligence on the part of her solicitors. He then made the observation that the instructing solicitors "of course" would not depose to that. I directed, however, that an affidavit setting out the explanation of delay in full should be filed. In the event, a further affidavit sworn by Mr Bradford on 22 March 1991 was filed and the hearing resumed on 27 March. It appeared from Mr Bradford's second affidavit that he had been handling the matter in D'Alessandro and Associates since 16 June 1987 when he first received instructions from Ms. Murphy. Following the discontinuance of the workers compensation claim on 8 February 1988, he had written to Ms. Murphy at her address in Wandi in Western Australia to get her instructions to brief counsel in respect of the personal injury claim. The letter bearing that date and two other subsequent letters were returned to his office marked either return to sender or address unknown. He attempted to locate Ms. Murphy over the next several months through her brother, her ex-boyfriend, her doctor and the Department of Social Security. However, no information was forthcoming from any of those sources. In October 1988 a Mr Daly, the husband of Ms. Murphy's mother, gave him a telephone number and box number in Kwinana through which she could be contacted. He made contact with Ms. Murphy on 4 October and received instructions to brief counsel in respect of the jurisdictional question. Counsel was briefed on the same day and his opinion received on or about 17 October 1988. The advice tendered has already been referred to. Papers were drafted by counsel and in late January 1989 Mr Bradford gave instructions for the application to be filed at the Federal Court registry. It was returned as unacceptable and, according to his second affidavit, was rejected because it had an incorrect heading and lacked provision for insertion of a date for a directions hearing. On receiving notice of the rejection of the application in February 1989 he instructed a senior law clerk of his firm to communicate with counsel to amend the application, file it and get the matter under way.

6. Mr Bradford heard nothing more of the matter until September 1990 when Mr Daly advised him that Ms. Murphy had been ill and wanted to know what was happening in relation to her claim. It transpired that counsel had been briefed in August 1989 to settle the application and had done so, but that nothing further had happened. The law clerk instructed to brief counsel had further delegated responsibility for Ms. Murphy's file to a junior law clerk in January 1990 but no other action had been taken on the file since August 1989. In September 1990 Mr. Bradford passed the matter over to a staff member, Mr Cook, an English barrister awaiting admission in Western Australia, who was to look at the jurisdictional question and make investigations as to the location of the accident and to consult with counsel as to what action should be taken. Mr Cook attended to those matters, but did not receive counsel's advice until late December 1990 and "was obliged to wait for counsel to return from leave to settle the application and supporting affidavits which was done in early February 1991". The affidavit concluded:
   

"18. The foregoing chronicles this conduct or lack of conduct of this application. Although I have deposed to the facts that the action ground to a halt because of the inaction of persons to whom I had delegated the responsibility, I of course am the solicitor responsible for the conduct of this matter and must accept responsibility for the delay which has prejudiced the plaintiff's cause of action. I can offer no excuse as responsibility is not delegable. I can only entreat the court to view the plaintiff's application with some degree of sympathy in spite of the manner in which her application has been handled by her legal representative."

Following the filing of that affidavit on 22 March 1991, the matter came on again on 27 March. A copy of an affidavit sworn by the treasury/manager of A. Raptis and Sons, Mr Peter O'Malley, 26 March was handed up in Court and read, although not formally filed until 3 April.

1. O'Malley was not employed by A. Raptis and Sons when the collision occurred, but was able to confirm by reference to his firm's records that there was a collision and that a claim made by the owners of the Zaandam for property damage was settled in 1987. After receiving notice of the present application he searched the records and made enquiries of other persons who he thought might have some recollection of the matter. He was able to elicit no information or recollection of Ms. Murphy's injury. After the past four to five years the offices of A. Raptis and Sons have changed on several occasions and records transferred to different locations. A substantial number of documents have been destroyed in these moves.

2. Mr O'Malley did not believe that any investigation was carried out at the time of the incident and says it is very unlikely that his firm has any information relating to the incident, other than details of the property damage claim. He considers it unlikely that he will be able to ascertain the names of witnesses or any details as to the circumstances of the alleged injuries. He contends that A. Raptis and Sons will be prejudiced in defending the claim as no investigation has been undertaken, witnesses are not likely to be available and any relevant records will almost certainly have been lost or destroyed. A copy of a letter from D'Alessandro and Associates was not on file, but Finlaysons, the firm of solicitors acting for A. Raptis and Sons, had the original on their file. The solicitors had indicated that they received no further correspondence from D'Alessandro and Associates in relation to Ms. Murphy's claim.

3. In this case the time limited by the Navigation Act for commencing these proceedings expired in September 1987. It was two months after that time had elapsed that the prospective defendant was given notice of Ms. Murphy's intention to institute proceedings. A further three years and three months elapsed before notice of an application to extend time was received. In the event, some five years and four months had elapsed between the date of the collision and the institution of these proceedings.

4. On the facts disclosed by the affidavit evidence to which I have referred, there has been inordinate and inexcusable delay on the part of the plaintiff's solicitors generally in relation to her claim. And I am satisfied on the evidence that by reason of that delay there has been prejudice to the prospective defendant. Even assuming that it were now possible to trace and interview witnesses to the events, the cogency of their evidence, particularly in the absence of any early requirement to commit their recollection to written form, would be seriously compromised. The ability of the defendant to defend the action in my opinion has been prejudiced by delay which must be imputed to the plaintiff. The plaintiff on the other hand has the possibility of a remedy against her solicitors for their admitted negligence in the handling of her claim - Daroczy v. B.and J. Engineering (1986) 67 ACTR 3. In the circumstances I propose to dismiss the application, but direct that a copy of the reasons be delivered to the plaintiff by her solicitors and that an affidavit to that effect be filed in Court.