Novosel v The Trustee for the Steiner Family Trust

[2024] ACTSC 111

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Novosel v The Trustee for the Steiner Family Trust
Citation:	[2024] ACTSC 111
Hearing Date:	10 November 2023
Decision Date:	17 April 2024
Before:	Curtin AJ
Decision:	(1)  The second defendant’s application in proceeding dated 20

October 2023 is dismissed.

(2)	The second defendant is to pay the plaintiff’s costs of the
application.
(3)	The plaintiff is to file and serve a Second Further Amended
Statement of Claim, removing the pleading of a claim in
contract against the second defendant within 14 days of the
date of these orders.
(4)	The plaintiff is to pay the second defendant’s costs of and
occasioned by the making of the amendment referred to in
Order 3.

Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Limitation of actions – application for summary dismissal – when time begins running for claim in tort – when time begins running for claim under s 60 of the Australian Consumer Law – consideration of when damage incurred by plaintiff became ascertainable – consideration of precise interest infringed – where very high threshold not overcome – application dismissed
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth) s 42B Competition and Consumer Act 2010 (Cth) sch 2, s 60 Court Procedures Rules 2006 (ACT) r 1147
Limitation Act 1985 (ACT) s 11 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
Cases Cited:	Argyropoulos v Layton [2002] NSWCA 183; 36 MVR 432 Cheney v Duncan [2001] NSWCA 197; 34 MVR 28 Commonwealth v Cornwell [2007] HCA 16; 229 CLR 519 Dougall v Melville [2017] NSWCA 309 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238
Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a
Calvary John James Hospital [2018] ACTSC 53 Hawkins v Clayton (1988) 164 CLR 539
Innes v Commonwealth [2015] ACTCA 33
Novosel v Comcare [2017] FCA 722; 72 AAR 269 Re Novosel and Comcare [2015] AATA 476; 66 AAR 549 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wilson v Rigg [2002] NSWCA 246; 36 MVR 451
Parties:	Anthony Novosel (Plaintiff) The Trustee for the Steiner Family Trust, the Trustee for the Crabb-Lewis Family Trust, and the Trustee for the Chen Family t/as Capital Lawyers (ABN 45 526 670 214) (First Defendant) Allan Anforth (Second Defendant)
Representation:	Counsel
B Jones (Plaintiff) J Page (First Defendant)
B Jullienne (Second Defendant)
Solicitors
MTM Legal (Plaintiff) Moray & Agnew Lawyers (First Defendant) DLA Piper (Second Defendant)
File Number:	SC 103 of 2023
CURTIN AJ:
Introduction
1․	This is an application by the second defendant for summary judgment.
2․	In short, the second defendant contends that the plaintiff commenced these proceedings
against the second defendant outside the relevant limitation period. The central issue is
whether there is sufficient known of the economic interest infringed and of the
circumstances in which it was infringed, to justify a finding, on a summary judgment
application, that the claims in negligence and under the Australian Consumer Law (ACL),
contained in sch 2 to the Competition and Consumer Act 2010 (Cth), were commenced
more than six years after those causes of action accrued.

Background

3․	The plaintiff was employed as a parking inspector with ACT Urban Services.
4․	On 7 June 2006, the plaintiff alleged that he suffered a ligamentous sprain/tear affecting
his left knee while engaged in a work-endorsed sporting activity.
5․	On 14 June 2006, he made a claim for compensation under the Safety, Rehabilitation
and Compensation Act 1988 (Cth) (SRC Act).
6․	The relevant provisions of the SRC Act and the factual background were
comprehensively described by Perry J in Novosel v Comcare [2017] FCA 722; 72 AAR
269 (Novosel v Comcare) at 274-290 [8]-[81] and need not be repeated here. This
judgment proceeds on the basis that the reader is familiar with those paragraphs. What
follows is a summary of the factual background, which is substantially taken from her
Honour’s reasons in Novosel v Comcare.
7․	After his injury, the plaintiff made a number of applications to Comcare for medical
expenses he incurred for treatment of his left knee injury under s 16 of the SRC Act, and
also from time to time sought payments under s 19 of the SRC Act. Section 19 provides
that Comcare is to pay an employee who is incapacitated for work as a result of an injury
compensation for each week during which the employee is incapacitated, in accordance
with the statutory formula found in s 19. Such payments are sometimes called incapacity
payments and are referred to as such throughout this judgment.
8․	On 29 June 2006, Comcare accepted liability under the SRC Act to pay compensation
to the plaintiff in relation to his left knee injury.
9․	On 24 September 2008, Comcare determined that compensation was not payable to the
plaintiff for his left knee injury pursuant to ss 16 and 19 of the SRC Act, based on the
evidence at that time.

10․ On 17 November 2008, Comcare issued a reviewable decision affirming the

determination of 24 September 2008 (the 2008 reviewable decision). In her reasons,

the reviewing Comcare officer found that the plaintiff had recovered from his left knee

injury.

11․	On 7 January 2009, the plaintiff filed application no. 2009/0050 in the Administrative
Appeals Tribunal (the Tribunal) for review of the 2008 reviewable decision. That
application was subsequently withdrawn, and the matter finalised on 7 December 2009.
12․	In 2010, the applicant filed a further application, application no. 2010/5559, in the
Tribunal for review of the 2008 reviewable decision.
13․	Those proceedings were settled by consent on 28 November 2011. As recorded by Perry
J in Novosel v Comcare at 280 [37], orders were made as follows:

Pursuant to subsection 34D(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that:

1. The reviewable decision dated 17 November 2008 is set aside and in substitution it is decided that from 24 September 2008 to 27 October 2009, Mr Novosel was entitled to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), in respect of

“sprain of other specified sites of knee and leg (left)” (the left knee injury).

2.        Comcare is to pay Mr Novosel’s reasonable party/party costs and

disbursements in accordance with section 67(8) of the SRC Act, to be agreed
or taxed.

14․	That decision (being the decision the parties agreed would be substituted for the decision
which was set aside) was later referred to by the Tribunal as the ‘first decision’.
15․	In the consent orders, the Tribunal noted the parties’ agreement that:

III.        As at 28 October 2009, the effects of Mr Novosel’s left knee injury resolved and

did not give rise to an entitlement to compensation for medical treatment or
incapacity to work.

IV.       Mr Novosel acknowledges that consideration of any specific claims for benefits under the SRC Act in respect of the left knee injury will occur by way of separate determination in accordance with the relevant legislative tests.

16․	Meanwhile, the plaintiff had made a further claim to Comcare in relation to his left knee
injury.
17․	On 8 December 2010, in relation to that further claim, Comcare determined that it was
not liable to pay compensation to the applicant pursuant to ss 16 and 19 of the SRC Act,
finding that “[b]ased on the evidence presented at this time I have decided that you do
not presently suffer from the effects of your compensable injury on 8 December 2010”.
18․	On 13 May 2011, Comcare issued a reviewable decision affirming the determination
made on 8 December 2010 (the 2011 reviewable decision). The effect of the 2011
reviewable decision was that the applicant had no entitlement to compensation under
ss 16 and 19 of the SRC Act for his left knee injury as at 8 December 2010.
19․	On 1 June 2011, the applicant filed application no. 2011/2195 in the Tribunal for review
of the 2011 reviewable decision.
20․	On 28 October 2011, a review of the 2011 reviewable decision was finalised in the
Tribunal pursuant to consent orders.
21․	On 5 February 2012, the plaintiff wrote to Comcare alleging that he could no longer
perform the duties of a parking inspector, and that whilst he was completing full-time
duties, he was still disadvantaged because he earned more before the injury than he did
subsequently. In basic terms, he alleged that he could no longer work overtime because
of his injury.
22․	On 29 February 2012, Comcare determined that:

[I]n view of the AAT decision dated 28 October 2011 including the medical certificates mentioned above, I am not satisfied you continue to suffer from incapacity for work due to any of your compensable condition beyond 28 October 2009. Accordingly I deny liability under section 19 in respect of your claim for ongoing overtime payments.

…

(the February 2012 reviewable decision).

23․	On 3 May 2012, Comcare issued a reviewable decision affirming the February 2012
reviewable decision.
24․	Later in 2012, the plaintiff sought a review of the February 2012 reviewable decision in
Tribunal application no. 2012/2434.
25․	On 19 October 2012, the Tribunal dismissed that application following lodgement by the
plaintiff of a written notification requesting that his application be withdrawn.
26․	On 27 July 2012, the plaintiff lodged a further claim for compensation with Comcare in
relation to his left knee injury.
27․	On 30 October 2012, Comcare determined that compensation was not payable for any
medical expenses or incapacity for the plaintiff’s claim lodged on 27 July 2012 (the
October 2012 reviewable decision). As quoted by Perry J in Novosel v Comcare at
283-284 [54], Comcare found:

…

In a determination dated 24 September 2008, it was held that you no longer suffered from the effects of your compensable left knee injury. This decision was then affirmed in a reviewable decision, dated 17 November 2008.

In a determination dated 8 December 2010, it was held that you did not presently suffer from the effects of your compensable left knee injury, or adjustment reaction, giving rise to incapacity for work or need for medical treatment. This determination was varied in a reviewable decision dated 13 May 2011 (allowing the payment of compensation for reasonable medical treatment for your adjustment reaction).

You appealed the reviewable decisions dated 17 November 2008 and 13 May 2011

to the AAT. On 28 October 2011, the [AAT] set aside Comcare’s determination of 17

November 2008 and found Comcare liable to pay compensation for reasonable medical expenses under section 16 of the SRC Act for the period 24 September 2008 to 27 October 2009, in respect of your left knee injury. It is also noted as at 28 October 2009, the effects of your left knee injury resolved and did not give rise to an entitlement to compensation for any further medical treatment.

I have reviewed all the evidence noting the primary decision, reviewable decision and the decision by the Administrative Appeals Tribunal.

I have also reviewed the medical evidence provided by Dr Kevin Woods, in his report

dated 24 July 2012. Dr Woods states in his report ‘Anthony was reviewed today.

Recent X-rays of his knee are quite satisfactory with the exception of some minor

medical joint space narrowing…I have reassured him that structurally his knee is quite

satisfactory and I cannot see any cause for his ongoing symptoms on these

investigations. I have not made arrangements to see him again…’

Having reviewed your claim, I am not satisfied that you still suffer the effects of your compensable condition. Dr Woods is of the opinion that he is unable to identify any cause for your ongoing symptoms.

Therefore, having assessed the evidence on your claim file, I have determined that compensation is not payable for medical expenses or for periods of incapacity

relating to your claimed condition of ‘Torn/ruptured ACL and Meniscus tear, left knee

injury’.

…

(Emphasis in original.)

28․	Before Perry J in Novosel v Comcare at 284 [55], the plaintiff acknowledged that this
Comcare decision dealt both with a claim under s 16 of the SRC Act for medical
expenses, and a claim for incapacity payments under s 19 of the SRC Act.
29․	On 22 November 2012, the plaintiff sought a reconsideration of the October 2012
reviewable decision. This request raised only the denial of liability to pay medical
expenses and did not raise the denial of compensation for incapacity payments under
s 19 of the SRC Act: see Novosel v Comcare at 284 [57].
30․	On 5 February 2013, Comcare affirmed the October 2012 reviewable decision, the
reviewing officer finding that she was not satisfied that the plaintiff continued to suffer the
effects of his accepted knee condition (the 2013 reviewable decision). The 2013
reviewable decision was not expressed to be limited to a reconsideration of the claim for
medical expenses: see Novosel v Comcare at 285 [59].
31․	On 3 April 2013, the plaintiff filed an application for review of the 2013 reviewable
decision in Tribunal application no. 2013/1438.
32․	On 27 November 2013, Professor Robert Oakeshott, orthopaedic surgeon, reassessed
the plaintiff at the request of Comcare’s solicitors. Professor Oakeshott had opined in
earlier reports that the plaintiff had made a complete recovery from his anterior cruciate
ligament injury to the left knee: see Novosel v Comcare at 281-282 [44].
33․	However, in his report of 27 November 2013, Professor Oakeshott opined differently. In
short, he opined that there was at that time an ongoing issue with the plaintiff’s left knee.
As quoted by Perry J in Novosel v Comcare at 286:

[63] … Professor Oakeshott considered that:

…

As a result of the medial meniscus injury, and subsequent surgery to that meniscus, he has developed joint space narrowing and osteophytes.

This development is consistent with a significant injury to the medial meniscus and the development of arthritic changes in that knee and particularly the medial compartment of that knee is likely in the future (more than 50% likely).

… He did not have significant left knee symptoms at today’s consultation and

examination of his left knee to day [sic] did not reveal any significant abnormality.

However, there was significant wasting of the left thigh muscle and now some evidence of slight weakness in the left knee.

[64] With respect to the applicant’s work capacity, Professor Oakeshott was of the opinion

that:

It is my opinion that, because of his left knee condition, he should avoid work that involves heavy lifting, pushing or pulling heavy objects or climbing ladders. He should avoid walking on uneven circumstances. These restrictions are permanent. His current work situation is ideal from the medical point of view and in regard to his left knee condition. He should be able to sit and stand at will at work.

I consider that he should avoid his pre-injury fulltime duties as a fulltime parking inspector as this involved prolonged walking and sometimes over uneven surfaces. He should be able to continue working full-time on his present job (alternative duties). His present job is described above.

In other words, his present incapacity to return to his preinjury level of work is related to his left knee condition which is described above.

34․	This report came some five months before the central events in the professional
negligence proceeding with which I am concerned.

35․ On 31 March 2014, the parties’ settled Tribunal application no. 2013/1438 at a

conciliation conference.

36․ A consent decision dated 1 May 2014 was entered in the following terms:

1.         The reviewable decision dated 5 February 2013 is set aside and in substitution it is decided that:

(i) the applicant is entitled to compensation under section 16 of the [SRC Act] for;

a.	injections to the left knee performed by Dr Renshaw on 17 November 2012 and 11 February 2013 and related Celestone Chronodose medication
b.	MRI scan left knee performed on 16 July 2012
c.	X-ray of left knee performed on 16 July 2012
d.	Consultations with Dr K Woods held on 16 and 24 July 2012
e.	Panadeine Forte tablets purchased on 15 June 2012
f.	Mobic medication purchased on 15 June 2012 and 5 January 2013
g.	Consultation with Dr Renshaw held on 2 August 2012

(ii) The applicant is not entitled to compensation under section 16 of the SRC Act for chondroitin, glucosamine preparation, or fish oil. These medical treatments are not reasonably required by the applicant in respect of his

‘sprain of other specified sites of knee and leg (left)’ deemed to have been

sustained on 7 June 2006.

2.         The respondent is to pay the applicant’s reasonable party-party costs in

application 2013/1438 as agreed or assessed under section 67 of the SRC Act

and section 6.10 of the Tribunal’s Guide to Workers Compensation Jurisdiction

dated September 2013.

37․	That decision was later referred to by the Tribunal as the ‘second decision’.
38․	No reference was made in those consent orders to resolving any claim under s 19 of the
SRC Act .
39․	Subsequently, on 10 October 2014, the plaintiff made a request to Comcare that his
entitlement to payments under s 19 of the SRC Act be reassessed and reinstated for the
period 8 December 2010 onwards, in light of Professor Oakeshott’s report dated 27
November 2013.

40․ On 17 November 2014, Comcare issued a determination denying liability to pay

incapacity payments under s 19 of the SRC Act for the period sought (the 2014

reviewable decision).

41․	On 12 February 2015, a review officer for Comcare affirmed the 2014 reviewable
decision (the 2015 reviewable decision).
42․	On 19 February 2015, the plaintiff filed an application for review of the 2015 reviewable
decision in Tribunal application no. 2015/877.
43․	Comcare then applied for those proceedings to be dismissed under s 42B(1) of the
Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That section provides that:

42B

Power of Tribunal if a proceeding is frivolous, vexatious etc.

(1)

The Tribunal may dismiss an application for the review of a decision, at any
stage of the proceeding, if the Tribunal is satisfied that the application:

(a)	is frivolous, vexatious, misconceived or lacking in substance; or
(b)	has no reasonable prospect of success; or
(c)	is otherwise an abuse of the process of the Tribunal.

(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

44․	On 2 July 2015, that application was heard and determined, with written reasons
delivered subsequently.
45․	In that decision, Senior Member Popple found in favour of Comcare: see Re Novosel
and Comcare [2015] AATA 476; 66 AAR 549 (Re Novosel).
46․	In Re Novosel, Senior Member Popple reasoned at 551-552 as follows:

[7] In this current application, Mr Novosel argues that Comcare is liable under ss 16 and 19
in respect of his left knee for the period since 28 October 2009.

[8] Mr Novosel says that he should be able to raise these issues in this review because of a report prepared by Professor Robert Oakeshott, an orthopaedic surgeon, on 27 November 2013. In that report, Mr Novosel says, Professor Oakeshott reversed his previous negative

assessment of Mr Novosel’s case. Mr Novosel says that both the first and second decisions

were substantially influenced by Professor Oakeshott’s previously expressed opinions.

[9] That may be true in relation to the first decision. But the second decision was made more

than five months after Professor Oakeshott’s report. The second decision makes no

reference to liability under s 19 in relation to Mr Novosel’s left knee. Mr Novosel says that

that issue was not before the Tribunal in a practical sense, because it was not the subject of negotiation leading to the second decision. But it was before the Tribunal in the sense that it would have been open to the Tribunal to make a decision about the issue had the relevant application proceeded to hearing. When the second decision set aside the relevant reviewable decision and substituted it with a decision that made no reference to s 19, that

issue must be taken to have been resolved in Comcare’s favour. This means that Mr Novosel

is seeking in this application to relitigate an issue that has been resolved between him and

Comcare.

[10] As the Tribunal said in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519,

“[t]he Tribunal should not generally allow relitigation of issues already decided”. I think that

Mr Novosel’s relitigation of the issue of Comcare’s liability under s 19 of the SRC Act in

relation to his left knee amounts to an abuse of process for the purposes of s 42B(1) of the

AAT Act.

[11] In any event, in my view, Mr Novosel’s application has no reasonable prospect of

success. …

(Citations omitted.)

47․	Senior Member Popple accordingly dismissed the proceeding under ss 42B(1)(b) and
42B(1)(c) of the AAT Act.
48․	The plaintiff sought judicial review of the decision in Re Novosel in the Federal Court of
Australia in Novosel v Comcare. Those proceedings were limited to determining whether
the Tribunal fell into jurisdictional error or otherwise erred in law.
49․	Justice Perry dismissed the application for judicial review, finding no error of jurisdiction
or law.

The present proceeding

50․	The plaintiff commenced the present proceeding on 14 March 2023 against his former
solicitor (the first defendant) and former barrister (the second defendant) for alleged
professional negligence.
51․	Amongst other defences, the second defendant has pleaded the limitation period set out
in s 11(1) of the Limitation Act 1985 (ACT), which says:

11            General

(1)	Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
…

52․	The plaintiff relies on three causes of action: negligence, contract, and a breach of s 60
of the ACL. Section 60 of the ACL provides that:

60            Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

53․	During the hearing, the parties assumed that time began to run in relation to the alleged
breach of s 60 of the ACL at the same time as the cause of action in negligence. I am
not sure that that is correct in relation to that section, but I will proceed on that commonly
assumed basis for the purposes of this application. In those circumstances, I shall
henceforth only refer to the cause of action in negligence for ease of expression.
54․	The alleged breaches of duty and contract were said to have occurred on or about 31
March 2014, when Tribunal proceeding no. 2013/1438 was settled at the conciliation
conference. The various breaches are differently expressed, but essentially allege
negligence (and breach of contract) in failing to advise the plaintiff that the settlement
would prevent him from making any claim pursuant to s 19 of the SRC Act in the future
and failing to advise him to include a claim for s 19 incapacity payments in Tribunal
application no. 2013/1438.
55․	The particulars provided by the plaintiff to the second defendant on 7 August 2023 put
the plaintiff’s case as against the second defendant as follows:

[The first defendant] advised he was not sure if the s 19 claim could be lodged with the AAT in light of the consent orders made in the Tribunal on 28 October 2011. [The first defendant]

indicated he would discuss the plaintiff’s enquiry with the second defendant… Subsequently,

[the first defendant] and [the second defendant] advised the plaintiff that he could not raise the s 19 incapacity in the AAT proceeding 2013/1438 as the upcoming conciliation conference scheduled for 21 March 2014 because only a s 16 claim for the left knee and the new right knee injury were before the AAT. The plaintiff was advised he would have to submit a new claim for s 19 incapacity.

Upon receiving this advice, the plaintiff advised the defendants that he wanted to lodge the s 19 incapacity claim for his left knee immediately. He was advised by the defendants to wait until the AAT matter 2013/1438 (s 16) dispute was finalized.

At the AAT Conciliation Conference on 21 March 2014, while the plaintiff was being advised

by the defendants in relation to Comcare’s position, the plaintiff asked if [the second

defendant] was a hundred per cent sure that the s 19 matter should not be raised.

[The second defendant] advised the plaintiff to finalise the s 16 dispute and then submit the

s 19 capacity claim.

56․	If time ran from 31 March 2014, then the six years to commence proceedings ended on
31 March 2020. These proceedings were not commenced until 14 March 2023, a little
under nine years from the date of the alleged breaches.
57․	A cause of action in contract accrues on the date of breach, and so the contract claim is
statute barred. In Argyropoulos v Layton [2002] NSWCA 183; 36 MVR 432, Handley JA
explained the law in that regard at 433 [5]:

A client who complains that his solicitor has been guilty of professional negligence has remedies in contract and tort. Any cause of action in contract accrues on breach, and time then begins to run for limitation purposes irrespective of the accrual of any damage: Howell v Young (1826) 5 B & C 259 at 265; 108 ER 97 at 99; Hawkins v Clayton (1986) 5 NSWLR

109 at 122. …

58․	The plaintiff submitted that the existence of any contract was denied by the second
defendant, and thus, because it was a contested factual issue, it should not be dealt with
summarily.
59․	The fact that the existence of the contract may have been denied is irrelevant to the
limitation point. On an application such as this, the application proceeds on the
assumption that the facts alleged by the plaintiff are correct. Any disputed factual issue
on this application would have to concern the facts relevant to the limitation point, and
the issue of the existence of the contract does not do so. The only real issue is the date
of breach, and there is no dispute that the alleged breaches of contract occurred some
nine years before proceedings were commenced. The claim in contract is statute barred,
the proceeding having been commenced more than six years after the date of breach.
60․	The more difficult problem is to ascertain when time began to run for the claim in tort
(and under the ACL).

Second defendant’s submissions

61․	The second defendant relied on r 1147 of the Court Procedures Rules 2006 (ACT) for
his summary judgment application. That rule says:

1147        Summary judgment—for defendant

(1) A defendant may apply to the court for summary judgment against a plaintiff at
any time after filing a notice of intention to respond or defence.

…

(2)

The court may give judgment for the defendant against the plaintiff for the

plaintiff’s claim for relief (or part of it) if satisfied—

(a)	that the claim (or part of it) is frivolous or vexatious; or
(b)	that there is a good defence to the claim (or part of it) on the merits; or
(c)	that the proceeding should be finally disposed of summarily or without pleadings.

(3)

The court may make any other order it considers appropriate.

…

62․	The second defendant referred to the oft-cited Galovac Pty Ltd v Australian Capital
Territory [2010] ACTSC 132; 19 ACTLR 238 (Galovac) for the general principles which
apply to a summary judgment application, wherein Jagot J said at 239-240 [5]:

There was no dispute about the principles that apply:

(1)	The party seeking summary judgment faces a “very high threshold” (Financial
Integrity Group Pty Ltd v Farmer [2009] ACTSC 143 at [12]).
(2)	The lack of a cause of action must be “clearly demonstrated” (General Steel
Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).
(3)	The procedure calls for “exceptional caution” (General Steel at 129).
(4)	The necessity for argument, even extensive argument, is no bar. However, as
soon as it appears that there is a “real question” to be determined on which
relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91).
(5)	Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 at [14] citing Lonrho plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).
(6)	The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v New South Wales [2007] ACTSC 43 at [9]).
(7)	The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).

63․	The second defendant acknowledged that Wardley Australia Ltd v Western Australia
(1992) 175 CLR 514 (Wardley) stands for the proposition that it is undesirable to
determine limitation points in interlocutory proceedings except in the clearest of cases.
64․	The second defendant submitted that there will be a clear case when the facts relevant
to the question of a limitation period expiring are uncontested, citing Hassan v Calvary
Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital [2018]
ACTSC 53 at [17].
65․	The second defendant submitted that in this case there was no relevant factual dispute.
The plaintiff alleges he was given negligent advice on or before the conciliation
conference on 31 March 2014, which then resulted in orders being entered which
substituted a decision which did not include any amount for incapacity payments. The
second defendant contended that the plaintiff pleaded that he lost the right to seek
incapacity payments under s 19 of the SRC Act because it was not raised at or before
that conference on 31 March 2014.
66․	In terms of identifying the “precise interest infringed by the negligent act or omission”,
per Gaudron J in Hawkins v Clayton (1988) 164 CLR 539 at 601, the second defendant
submitted that the precise interested infringed was “the right to bring an entitlement to
incapacity payments”. That is, by entering into the agreement reached at the conciliation
conference on 31 March 2014, the plaintiff had lost those rights to bring the s 19 claim
for those periods.
67․	In relation to the claim in negligence (and the claim pursuant to section 60 of the ACL),
the second defendant submitted that the loss was ‘ascertainable’ at the time of the
allegedly negligent advice given on or before:

(a)	31 March 2014;
(b)	17 November 2014, being the date of the 2014 reviewable decision when

Comcare denied the subsequent claim for s 19 entitlements; or

(c) at the latest, 2 July 2015, when the Tribunal dismissed application no.

2015/877.

The plaintiff’s submissions

68․	The plaintiff submitted that the limitation defence should not be determined at an
interlocutory stage.
69․	The plaintiff submitted that what he lost was the “chance to commence proceeding[s]”
for incapacity payments under s 19 of the SRC Act.
70․	The plaintiff disagreed with the second defendant’s submission that there was no
relevant factual contest. He submitted that there were factual disputes about key matters
which would have a bearing on whether the claim is statute barred, and there was a
factual dispute as to whether the plaintiff suffered any loss at all.
71․	This submission had a number of problems. First, it failed to acknowledge that on an
application such as this, the application proceeds on the assumption that the factual
matters pleaded by the plaintiff are correct. Second, it did not identify what contested
factual matters existed relevant to the question of when damage was first suffered. Third,
it did not identify what those factual contests were.
72․	Be that as it may, the conciliation conference, the entry of the subsequent consent
orders, the subsequent denial by Comcare of liability for incapacity payments under s 19
of the SRC Act, and the decision in Re Novosel of 2 July 2015, were all more than six
years before this proceeding was commenced. Justice Perry’s decision was within the
six years.

Decision

73․	As the argument developed, the contest evolved into the question of whether the plaintiff
first suffered loss at the time of Perry J’s orders in Novosel v Comcare, or at one of the
earlier points in time mentioned above.
74․	The critical question is whether the plaintiff had incurred any damage at or before the
time orders were made in Re Novosel. If so, the proceeding would be out of time. If, on
the other hand, damage occurred at the time of Perry J’s decision, the proceeding would
be in time.
75․	By reference to cases such as Commonwealth v Cornwell [2007] HCA 16; 229 CLR 519,
Innes v Commonwealth [2015] ACTCA 33, and Dougall v Melville [2017] NSWCA 309
(Dougall), the second defendant submitted that the damage incurred by the plaintiff
became ‘ascertainable’ at the time the consent orders were entered on 1 May 2014, after
the conciliation conference of 31 March 2014.
76․	The word ‘ascertainable’ was used in those authorities, although it is pregnant with
notions of knowledge, and both parties expressly (and correctly) disavowed any reliance
on notions of knowledge by the plaintiff of the fact of damage.
77․	In Dougall, the words “became ‘known or apparent’” were used by McColl JA at [76],
citing Wardley at 527, perhaps suggesting to an unwary reader that knowledge of
damage was necessary for time to commence running. That is not correct, and nor is it
a correct reading of the passage her Honour cited. The relevant passage in Wardley is
from the judgment of Mason CJ, Dawson, Gaudron, and McHugh JJ, who said at 527:

Economic loss may take a variety of forms and, as Gaudron J noted in Hawkins v Clayton, the answer to the question when a cause of action for negligence causing economic loss accrues may require consideration of the precise interest infringed by the negligent act or omission. The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. With economic loss, as with other forms of damage, there has to be some actual damage. Prospective loss is not enough.

When a plaintiff is induced by a misrepresentation to enter into an agreement which is, or proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on entry into the agreement. That is because the agreement subjects the plaintiff to obligations and liabilities which exceed the value or worth of the rights and benefits which it confers upon the plaintiff. But, as will appear shortly, detriment in this general sense has not universally been equated with the legal concept of "loss or damage". And that is just as well. In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceeding before the existence of his or her loss is ascertained or

ascertainable would be unjust. …

(Citations omitted.)

78․	'Known’ and ‘apparent’ were not used in that passage in Wardley in the sense of the
plaintiff’s knowledge of the occurrence of damage. Rather, their Honours were conveying
that various contingencies had to have played out, so that it could then be determined
whether or not the entry into the agreement had been disadvantageous. That is what
their Honours meant by the expression “when its impact upon events as they unfold
becomes known or apparent”: Wardley at 527.
79․	Alternatively, the second defendant submitted that damage had occurred at the time of
Re Novosel, or otherwise on 17 November 2014, being the date of the 2014 reviewable
decision when Comcare denied the further claim for incapacity payments under s 19 of
the SRC Act.
80․	The plaintiff contended that no damage was incurred until, at the earliest, the date of
Perry J’s decision in Novosel v Comcare, because it was only at that time that the
plaintiff’s appeal rights were exhausted. Therefore, any damage arising as a result of Re
Novosel (or the preceding denial by Comcare) was contingent on the decision in Novosel
v Comcare, in the sense that Perry J may have upheld that appeal.
81․	I am unpersuaded that either party is correct.
82․	Both parties agreed with the general propositions set out by Ipp AJA, with whom
Meagher and Handley JJA agreed, in Cheney v Duncan [2001] NSWCA 197; 34 MVR
28 (Cheney), wherein his Honour said at 32:

[24] A cause of action is not complete until the plaintiff suffers actual (and not contingent or

prospective) loss or damage: Hawkins v Clayton at CLR 561–2, 588, 600–601; Wardley

Australia Limited v Western Australia (1992) 175 CLR 514 at 530-531; Scarcella v Lettice
Aust Torts Reports 81-589.

[25] For a plaintiff’s cause of action to be complete, the actual damage must be “measurable” (Wardley at CLR 531), or “beyond what can be regarded as negligible” (per

Handley JA in Scarcella).

83․	The plaintiff incorrectly submitted that ‘measurable’ meant something like ‘assessable’,
meaning that everything necessary was known in order to assess damages. This is
incorrect. Time runs in tort from when damage first occurs, even if later damage occurs.
It is the fact of the first occurrence of damage, rather than its full extent, that triggers the
running of time.
84․	In Cheney, Ipp AJA also said the following about the accrual of a cause of action in tort
in claims against solicitors at 32:

[28] Generally, where, through the negligence of solicitors, a client’s cause of action becomes statute barred, the client’s right of action in negligence against those solicitors

accrues at the time the action becomes statute barred, and damages are to be assessed at that time: Nikolaou; Scarcella; Sampson v Zucker; Registrar-General v Cleaver (1996) 41 NSWLR 713 per Clarke JA at 719; Hetherington v Mirvac Pty Ltd (1999) Aust Torts Reports 81-514; Crisp v Blake (1992) Aust Torts Reports 81-158; Toomey v Western Aboriginal Legal Services [1999] NSWSC 560; BC9903585; Wilson v Rigg [2000] NSWSC 16; BC200000230; Di Sante v Camando Nominees Pty Ltd [2000] VSC 211; BC200003166; Doundoulakis v Antony Sdrinis & Co [1989] VR 781.

[29] There is no “general overriding qualification” to the effect that a limitation period does not begin to run “until the stage is reached when the plaintiff discovers, or could on any

reasonable inquiry have discovered, that the loss has been sustained”: Wardley at CLR 540

per Deane J; Hawkins v Clayton at CLR 561–2 per Brennan J, at 587–8 per Deane J, at

599–601 per Gaudron J; Sampson v Zucker; Scarcella.

85․	I at first considered that the holding in Cheney at 32 [28], together with the holding in
Wilson v Rigg [2002] NSWCA 246; 36 MVR 451, may be applicable in this case, being
that time begins to run in a case against solicitors when their client’s cause of action
becomes statute barred (as a result of the solicitor’s negligence), rather than a later time
when the client’s application to extend time failed.
86․	However, on reflection, I do not consider those cases to be applicable, at least directly,
because in the present case, the plaintiff’s case (against Comcare) did not become
statute barred. Rather, the plaintiff’s proceeding against Comcare regarding application
no. 2015/877 was dismissed as being an abuse of process: see Re Novosel at 552 [12].
87․	Senior Member Popple made clear that that decision did not prevent the plaintiff from
bringing a further claim under s 19 of the SRC Act in the future if he obtained new
evidence. Senior Member Popple said at 552 [13]:

It is open to Mr Novosel, armed with new evidence in the future, to relitigate the question of incapacity payments in relation to his left knee injury, even though he has no reasonable prospect of successfully doing so in this current application.

88․	Thus, the plaintiff did not lose, for all time, all entitlements under s 19 of the SRC Act.
89․	The question which arises then is, what did the plaintiff lose by reason of the alleged
negligence at or about the time of the conciliation conference, if he did not lose, for all
time, all entitlements under s 19 of the SRC Act?
90․	I also note that Senior Member Popple held, in the alternative, that the plaintiff’s
application had no reasonable prospects of success. Senior Member Popple said at 552
[11] :

In any event, in my view, Mr Novosel’s application has no reasonable prospect of success.

…

91․	That statement might suggest, and I emphasise the word might, that the plaintiff lost
nothing, because it was only those proceedings (and whatever value they had to the
plaintiff) that was lost, as distinct from some wider loss relating to incapacity payments
for all time.
92․	On the other hand, he may have lost something because he could no longer proceed
with that particular proceeding. If that is so, the fact that there was an appeal may mean
that the appeal was a contingency in relation to that ‘lost’ proceeding, so that damage
was not suffered until the date of Perry J’s orders in Novosel v Comcare, or perhaps
even later because it was open to the plaintiff to appeal Perry J’s orders.
93․	At one point, the plaintiff suggested that he may have lost the opportunity to “enjoy a
favourable settlement” by reason of the negligence, but that is a matter that has not been
pleaded and so will not be considered. If a plaintiff wishes to put a case before the Court,
then the plaintiff is required to plead that case.
94․	The second defendant’s position, and understandably so, was that it did not really matter
what the precise loss was, because on an application such as this, I should assume the
plaintiff’s pleaded case was made out and I should proceed on that basis.
95․	Whilst I accept the submission that I am to assume the plaintiff’s factual pleadings are
correct for the purposes of an application like this, the position is a little more nuanced
because modern pleadings are not precise as to exactly what damage is suffered, and
exactly how that damage was caused.

96․ In addition, and importantly in this case, Galovac requires me to determine the

application on the substance, not the mere form or expression, of the pleadings.

97․	In many cases, that lack of precision is not problematic in terms of defendants being on
notice of the case they have to meet. However, on an application of this type, I bear in
mind the principles set out in Galovac and the principles set out in Wardley.
98․	At 239-40 [5], Galovac speaks of the “very high threshold” the second defendant must
overcome, that the relevant point must be “clearly demonstrated”, that I should exercise
“exceptional caution”, and that “mere implausibility of the claim or improbability of
success is insufficient”.
99․	In Wardley at 527, the plurality said that in an economic loss case (which is the plaintiff’s
case before me) it was important to identify the “precise interest infringed by the negligent
act or omission”. In this case, given what I have said at [89]-[94] above, I am not satisfied
to the necessary high standard that either party has identified the precise interest infringed, nor am I satisfied that I could do so in the absence of more fulsome evidence
than was available on this application.

100․ That is not to say that the second defendant was deficient in its evidence. Rather, my

point is that it seems to me that identifying the precise interest infringed in this case could

only properly be done at the final hearing when all the evidence has been led.

101․	The other matter of note from Wardley is the holding that the kind of economic loss which
was sustained (if any) and the time when it is first sustained depend upon the nature of
the interest infringed and, perhaps, the nature of the interference to which it is subjected:
see Wardley at 527.
102․	I am not satisfied to the necessary standard that the precise interest infringed has been
correctly identified, and it seems to me that in this case, the nature of the interference
with that interest may also be a factor going to the issue of when damage was first
sustained.
103․	In my view, not enough is known of the facts relevant to those issues to say that it has
been ‘clearly demonstrated’ that the plaintiff’s action against the second defendant in tort
(and under the ACL, if time runs as for the action in tort) is out of time.
104․	Accordingly, I dismiss the application, other than in relation to the pleadings in contract.
Costs
105․	Although the second defendant was successful in relation to the contractual count, that
aspect of the application took up little time at the hearing of the application and received
little attention in the written submissions. This was appropriate because the second
defendant was clearly correct that that count was out of time.
106․	The second defendant was otherwise unsuccessful on the application.

107․ In substance, the second defendant failed in his application. In my view, the second

defendant should pay the plaintiff’s costs of the application. There should be no order as

to costs of the first defendant who was not an active party on the application.

Miscellaneous

108․ On more than one occasion, the plaintiff made submissions on matters not pleaded. I

mentioned one occasion at [93] above. Another was in written submissions delivered

(with leave) after judgment was reserved, wherein the plaintiff submitted:

It could reasonably be found that a further cause of action arises by reason of the advice given to appeal the AAT Decision and that resulted in distinct loss.

109․ No such allegation is pleaded.

110․	I will make no orders at this point, but the plaintiff would be well advised to decide what
his case is, and to plead that case sooner rather than later. The defendants are entitled
to know the case they have to meet.
111․	The second point is another criticism of the plaintiff and his approach to this application.
In oral submissions, the plaintiff said that he considered that the limitation point should
not be considered at an interlocutory stage (what he described as a “threshold” issue),
but if I was against that submission, he required an adjournment to put on some
evidence.
112․	That approach is misconceived and should be discouraged.

113․ First, it is clear on the authorities that limitation points may be determined on an

interlocutory application. Therefore, there was no “threshold” issue as described.

114․	Second, applications to the Court are not to be split into parts at the behest of one of the
parties. If an application is to be dealt with by the Court, then, absent exceptional
circumstances, the whole of the application will be dealt with on the one occasion.
Experience has shown that splitting applications in the manner suggested by the plaintiff
more often than not increases costs and complexities and is certainly productive of
delays.

Orders

115․ I make the following orders:

(1)	The second defendant’s application in proceeding dated 20 October 2023 is
dismissed.
(2)	The second defendant is to pay the plaintiff’s costs of the application.
(3)	The plaintiff is to file and serve a Second Further Amended Statement of
Claim, removing the pleading of a claim in contract against the second
defendant within 14 days of the date of these orders.
(4)	The plaintiff is to pay the second defendant’s costs of and occasioned by the
making of the amendment referred to in Order 3.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin

Associate:

Date: