Perry v City of Armadale
[2004] WASC 167
•5 AUGUST 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PERRY -v- CITY OF ARMADALE [2004] WASC 167
CORAM: LE MIERE J
HEARD: 16 MARCH 2004
DELIVERED : 5 AUGUST 2004
FILE NO/S: CIV 2541 of 2003
BETWEEN: SANDRA ELIZABETH PERRY
Plaintiff
AND
CITY OF ARMADALE
Defendant
Catchwords:
Negligence - Damages - Application for leave to bring action under s 47A(3) of the Limitation Act 1935 - Requirements for the grant of leave
Section 47A(3) - Delay occasioned by "other reasonable cause" - No material prejudice - Discretion to grant leave - Whether just to grant leave - Not necessary for applicant seeking leave to demonstrate prima facie case - Claim must not be mala fide
Section 47A(3) - Whether plaintiff gave reasonable notice - Whether grounds sufficiently stated - Reasonable cause for delay established - Leave granted to bring proposed action
Legislation:
Limitation Act 1935 (WA), s 47A
Local Government Act 1960 (WA), s 661
Western Australian Uniform Building By-Laws, cl 33
Result:
Leave granted to the plaintiff to bring the proposed action against the defendant
Category: B
Representation:
Counsel:
Plaintiff: Mr M E Herron
Defendant: Mr I R Freeman
Solicitors:
Plaintiff: H Kremer & Co
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Baker v Albany Shire Council (1994) 14 WAR 46
Cairns v Minister for Education [1997] BC9706462
Matheson v Commissioner of Main Roads [2001] 25 WAR 269
Pascoe v The Nominal Defendant (Qld) No 2 (1964) Qd R 373
Quinlivan v Portland Harbour Trust [1963] VR 25
Victorian Railways Commissioners v Casaccio [1961] VR 157
Case(s) also cited:
Alcoa of Australia v State Energy Commission (WA) (1997) 17 WAR 112
Barker v Wingo (1972) 407 US 514
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Farr v The Shire of Manjimup, unreported; SCt of WA; Library No 930349; 15 June 1993
Gosnells, City of v Roberts (1991) 74 LGRA 1
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gugiatti v City of Stirling (2001) 116 LGERA 39
Homebase Management Pty Ltd v City of Subiaco [2000] WASC 212
Howe v City of Nedlands, unreported; SCt of WA; Library No 980128; 11 March 1998
Mole v Forests Commission of Victoria [1957] VR 583
Perry v Nicholls [2003] WASC 256
Pyrenees Shire Council v Day (1998) 192 CLR 330
Richardson v West Lindsey District Council [1990] 1 All ER 296
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Skahill v City of Wanneroo, unreported; SCt of WA; Library No 970410; 15 August 1997
Smith v Executive Director of the Department of Conservation and Land Management [1999] WASC 240
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 17 WAR 131
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Sutherland Shire Council v Heyman (1985) 157 CLR 424
WD & HO Wills (Australia) Ltd v Commissioner of State Taxation & Anor, unreported; SCt of WA; Library No 980366; 23 June 1998
LE MIERE J: The plaintiff has applied by originating summons for leave pursuant to s 47A(3) of the Limitation Act 1935 to bring an action against the defendant City of Armadale, claiming damages for negligence and interest.
The claim arises from the grant of a building licence, and the approval of footing designs and footings which were subsequently shown to be defective, by the defendant, for a residence at 9 Nasura Grove, Armadale. The plaintiff further claims that the defendant failed to inspect the footings, and failed to direct and ensure compliance with the relevant building by‑laws and conditions of licence, as they existed in or about 1984. In her originating summons, the plaintiff also sought a declaration that s 47A of the Act had no application to the proceedings proposed by the plaintiff. However, the plaintiff abandoned that claim at the hearing and it is not necessary to refer to it again.
The Plaintiff's Cause of Action
In July 1984, Peter James Maguire and Rita Joan Maguire were the registered proprietors of the Armadale property. In June 1992, the Armadale property was transferred to Richard John Tarnowy and Christina Maria Tarnowy. On or about 14 February 1996, the plaintiff and Randall Kenneth Perry became the registered proprietors of the Armadale property following their purchase of the property. On or about 4 April 2002, the plaintiff became the sole registered proprietor of the property after Mr Perry transferred his interest to the plaintiff pursuant to a Family Court consent order made on 19 November 2001. The plaintiff has resided on the property since February 1996.
In or about 1984, Malcolm Bell Homes Pty Ltd constructed a residence on the Armadale property on behalf of and for the then proprietors, the Maguires. During the course of preparing plans for the construction of the residence, Malcolm Bell Homes appointed David William Nicholls to design the footings for the residence, and to prepare drawings, for approval by the defendant. These drawings were prepared by Mr Nicholls on or about 26 June 1984. In approximately August 1984, Malcolm Bell Homes submitted plans and drawings which included the design for the footings and drawings prepared by Mr Nicholls, to the defendant, for the defendant's approval pursuant to s 661 of the Local Government Act 1960, for construction of the proposed residence.
The plaintiff says that on or about 28 August 1984 the defendant's building surveyor approved the drawings and designs. The defendant thereafter issued written conditions relating to the building licence, which included conditions relating to sand fill, the footings and concrete pad, and sub‑soil and surface drainage.
The plaintiff alleges that the design of the footings was defective in that it did not comply with cl 33.2 of the Western Australian Uniform Building By‑Laws. Further or alternatively, the plaintiff says that the drawings for the footings were defective in that the design did not provide footings that were suitable to the task of reducing the intensity of the pressure of the building on the foundations, and that the design was in this respect in breach of cl 33.1 of the Western Australian Uniform Building By-Laws.
In or about October 2001, the plaintiff first noticed cracking and consequential damage to the internal walls and ceilings of the residence. The cracking and damage thereafter gradually worsened, and the appearance and integrity of the internal walls and ceilings gradually deteriorated.
By approximately June 2002 some of the cracks had opened up to approximately 6 millimetres, and the largest crack measured approximately 11.5 millimetres. The plaintiff then notified her insurance company of the situation as she was concerned that the sub‑soil drainage pipe had broken, causing water to permeate the soil under the house resulting in the cracking damage.
The insurance company engaged the services of loss adjusters, who sent out their representative to inspect the damage. Following his site inspection, the representative informed the plaintiff that he was not appropriately qualified to determine the cause of the damage and that an engineer would need to carry out a site investigation.
The loss adjusters engaged the services of consulting engineers, Airey Ryan and Hill. On 25 June 2002, Mr Peter Airey conducted a site investigation at the property.
In the meantime, the plaintiff had engaged the services of a backhoe operator to excavate the sub‑soil drainage pipe near the location of a large palm tree which she suspected at the time could have caused the sub‑soil drainage pipe to be broken. The excavations revealed that the sub‑soil drainage pipe was not broken, but had ended at or near the location of the large palm tree when it should have continued to the edge of the property. On 26 August 2002 the plaintiff contacted the defendant and demanded that they send one of their building inspectors to the property. Shortly afterwards, a representative of the defendant, Mr Brameld, arrived and inspected the open pit, in the presence of the backhoe operator and the plaintiff. Mr Brameld told the plaintiff to put her complaint in writing and that her complaint would then be referred to the insurers of the defendant.
The plaintiff obtained a copy of the report of Mr Airey in late August or early September 2002. The plaintiff discussed Mr Airey's report with him. Mr Airey said to the plaintiff words to the effect, "The Shire are culpable for approving a footing system that was highly inappropriate for the site and soil conditions on which they were built."
On 13 September 2002, the plaintiff wrote to the defendant. The plaintiff's letter set out the history of her observations of cracking and damage to the property and her subsequent investigations. The letter enclosed a copy of Mr Airey's report. The letter asserted that the defendant had failed to exercise the care which it should have done, that it had been negligent, and that it was responsible for the damage to the property.
On 26 September 2002, the defendant wrote to its insurer, enclosing a copy of the plaintiff's letter of 13 September 2002, and requesting that the insurer process the claim on behalf of the defendant. On the same date, the defendant completed an “Overseer's/Engineer's Incident Report” and a public liability claim form in relation to the plaintiff's claim concerning damage to the Armadale property.
History of Court Proceedings
On 22 August 2003, the plaintiff issued a writ of summons in this Court against Mr Nicholls and the defendant. The writ was served on the defendant on 3 September 2003. On 18 September 2003, the defendant filed a defence. On 21 October 2003, the defendant issued a chamber summons for summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court, or alternatively to strike out the statement of claim pursuant to O 20 r 19. The defendant's chamber summons was heard by Master Sanderson on 5 December 2003.
On 18 December 2003, Master Sanderson ordered that judgment be entered for the defendant against the plaintiff. The Master found that the plaintiff's cause of action accrued in October 2001. Section 47A(1) of the Limitation Act provides that subject to the provisions of subs (2) and subs (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 the action is commenced before the expiration of 1 year from the date on which the cause of action accrued. The action had not been commenced within 1 year from the date on which the cause of action accrued and hence the action was not maintainable.
The Originating Summons
As I have said, on 15 December 2003, the plaintiff issued the present originating summons, seeking leave pursuant to s 47A(3) of the Act, to bring the action against the defendant.
Subsection 47A(3) of the Act provides:
(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 thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
(c)Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made."
Requirements for Leave
The requirements that the plaintiff needs to satisfy in order to obtain leave under s 47A(3) can be summarised as follows:
(a)The delay in bringing the action was occasioned by mistake.
(b)Alternatively, the delay in bringing the action was occasioned by any other reasonable cause.
(c)Alternatively, the prospective defendant is not materially prejudiced in its defence or otherwise by the delay.
(d)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 [2001] 25 WAR 269, per Murray J at 274.
Other Reasonable Cause
The plaintiff's case is that the delay in bringing the action was occasioned by reasonable cause. The meaning of "other reasonable cause" was set out by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28, being:
"…a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
In my view, the matters set out in the plaintiff's affidavit of 20 November 2003 together constitute reasonable cause for the delay in bringing the action. The cause of action did not accrue until October 2001. It was then that the plaintiff first noticed cracking and consequential damage to the wall of the house. By approximately June 2002, the cracks had enlarged and she notified her insurance company. At that time she thought that a broken sub‑soil drainage pipe may have caused water to permeate the soil under the house and cause the cracking damage. The plaintiff then took reasonable steps to investigate the cause of the damage. It was not until she read Mr Airey's report and discussed it with him in late August or early September 2002 that she first became aware that the cause of the damage was faulty footings and that she may have a claim for damages against the defendant. The plaintiff then took the reasonable step of notifying the defendant of her claim and awaiting a response from the defendant before instructing solicitors and subsequently commencing the action. That action was dismissed for the reasons I have referred to. In my view, a reasonable person would regard those circumstances as a reasonable cause for the delay in bringing the action.
No Material Prejudice
I will next consider the alternative ground, that is, that there is no material prejudice to the prospective defendant in its defence or otherwise by reason of the delay, though it is not strictly necessary for me to do so.
The relevant time for considering the issue of prejudice is the period between the date of the cause of action arising and the date of the application for leave to bring the action: Cairns v Minister for Education, unreported, Supreme Court of WA, SCL No: 970679, 21 November 1997 . The defendant bears an evidentiary onus which it must discharge as to material prejudice, but if it does so, the ultimate onus to show the absence of material prejudice rests upon the plaintiff: Baker v Albany Shire Council (1994) 14 WAR 46.
In my view, there is no material prejudice to the defendant. None has been demonstrated.
The defendant has a microfiche copy of the plans submitted to the defendant for the construction of the residence. Mr Moralee, the safety/insurance officer of the defendant, has deposed that the building surveyor employed by the defendant at the time that the plans for construction of the residence were approved was Mr Paul Monkhouse. Mr Monkhouse left the City of Armadale in or around July 1990. There is no evidence that Mr Monkhouse is not available to give evidence. Mr Moralee further deposes that on or around 28 August 2002, the defendant's relief building surveyor, Mr Brameld, inspected the dwelling. Mr Brameld left the City in or around late 2002 and is now employed as a relief building surveyor at the City of Cockburn. There is nothing to suggest that Mr Brameld is not available to give evidence.
Discretion
The defendant submits that even if the conditions for granting leave to bring an action are satisfied, the Court should decline to exercise its discretion to grant leave. The defendant says that leave should be refused because the plaintiff's claim is speculative or a “try‑on” and it would not be in the interests of justice for leave to be granted to commence an action against the defendant.
In Victorian Railways Commissioners v Casaccio [1961] VR 157, the plaintiff applied under s 34(4) of the Limitation of Actions Act (1958) (Vic) for leave to commence an action against a public authority, notwithstanding that he had failed to give the notice required by s 34(1) to be given not more than 6 months after the accrual of the cause of action. A Judge having granted the respondent leave to commence an action against the appellant, the appellant appealed to the Full Court of the Supreme Court of Victoria. The appellant argued that the respondent had not given sufficient notice of the grounds of his application as required by s 34(5) of the Victorian Act. The Full Court found that the respondent had given sufficient notice. The Court said, at 160:
"It was said … that the notice of 28 April did not refer to the facts that the respondent was an Italian migrant labourer, that his circumstances were modest, that his wife was an Italian also, or that he received full pay until January 1960. The letter which gave notice under s 34(5) referred back to previous correspondence which sufficiently asserted that the respondent was a new Australian, but in any event most of the matters referred to … were merely matters of elaboration. The 'grounds' required by s 34(5) to be stated do not include the whole of the applicant's evidence, but merely the general gist of the case, and the main substance of those additional matters was, we think, sufficiently related to the allegations in the notice to be covered by its tenor. So far as any was not so covered, that is, in our view, immaterial since what was notified amounted in itself to substantial cause."
The appellant in Victorian Railways Commissioners v Casaccio also contended that leave should not have been granted because it was not just to do so. 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 the respondent's intended cause of action was not sufficiently made out. The Full Court rejected that submission and said, at 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(4) 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 writ, 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."
A similar approach was taken by the Full Court of the Supreme Court of Queensland in Pascoe v The Nominal Defendant (Qld) No 2 (1964) Qd R 373. Speaking of a not dissimilar statutory provision, Staple J said, at p 381 to 382, that there was nothing in the section to indicate that the legislature intended that on a mere application to extend time to make a claim, there should be a trial of an issue in an action which at that time has not even been commenced. Staple J postulates the problem which would arise if it were necessary to establish a prima facie case of liability. In the course of this discussion, his Honour said:
"And where is the scope of the hearing to stop? Is it to be a trial by affidavit upon motion, or a full‑scale hearing with all the attributes of the trial of an action, perhaps for some days, to determine whether there is a prima facie case of negligence so that the claimant may make his claim so that he may, in the words of the Act, enforce such claims by action against the Nominal Defendant (Qld)?"
Having considered the section itself, the authorities to which I have referred and the fact that the section merely permits leave to be given to bring an action, I am of the opinion 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.
The plaintiff's proposed action is not without difficulty. However, in my view, the plaintiff's claim cannot be characterised as mala fide, merely speculative or absurd, or in the words of the Supreme Court of Victoria, "a try‑on".
For the reasons I have stated, the delay in bringing the action was occasioned by reasonable cause. Further, the delay has not caused any material prejudice to the defendant.
In my view, the Court should exercise its discretion to grant leave to the plaintiff to bring the proposed action against the defendant. However, the defendant has raised a preliminary issue going to the power of the Court to grant leave. I will now turn to that preliminary point.
The Preliminary Point
The defendant says that the plaintiff did not give the notice required by s 47A(3)(c) and consequently the present application is not maintainable. The plaintiff makes three answers. First, the plaintiff says that she gave the requisite notice by a letter of 21 November 2003 from her solicitors to the defendant's solicitors. I will set out the letter in full:
"Re S E Perry v D W Nicholls v the City of Armadale, Supreme Court, Perth, No: CIV 2036 of 2003.
We enclose by way of service the Plaintiff's Affidavit sworn 20 November 2003, filed today.
Further, we give notice that our client proposes to file an Application by way of Originating Summons for leave to bring her action against your client pursuant to s 47A(3) of the Limitation Act in the event that it may become necessary to do so by reason of your client's Application for Summary Judgment.
Please advise whether pursuant to s 47A(2) your client would consent to the bringing of the action, in such eventuality."
The plaintiff's affidavit sworn 20 November 2003 deposes to the matters I have relied on to decide that leave should be given to bring the proposed action. The plaintiff in her affidavit deposes that it was not until she received the report of Mr Airey and discussed its findings with him that she first became aware of the cause of the damage to her residence and the possibility of a claim of damages being made against the defendant. The plaintiff further deposes that by a letter dated 13 November 2002 and marked "without prejudice", the Local Government Insurance Service WA, on behalf of the defendant, responded to her letter of 13 September 2002, denying that it was liable in respect of the damage to the property. Thereafter, the plaintiff says she instructed her present solicitors in relation to the matter.
The defendant accepts that the letter of 21 November 2003 gave notice in writing of the proposed application, notwithstanding that it was conditional in the sense that the plaintiff said she intended to bring an application if it became necessary to do so by reason of the defendant's application for summary judgment. The defendant accepts that the required notice may be constituted by more than one document. The defendant accepts that if the plaintiff's affidavit of 20 November 2003 sufficiently states the grounds on which the plaintiff's application for leave to bring an action is made, then the requirements of s 47A(3)(c) are met. However, the defendant says that the plaintiff's affidavit does not sufficiently state the grounds on which the plaintiff's application for leave to bring an action is made.
If the defendant is right, the plaintiff's application must be dismissed. The plaintiff may then bring a fresh application for leave to bring the action. The plaintiff may then rely at the hearing of that application on the same material that is now before me. I am reluctant to accede to the defendant's submission unless I am compelled to do so. Such a course appears to me to serve only to delay matters further and add to the costs of both parties.
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 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.
The affidavit of the plaintiff, sworn 20 November 2003, states that she first noticed cracking and consequential damage to the walls of the Armadale property in or about October 2001. The defendant accepts that if the cracking and damage first occurred in October 2001, then the plaintiff's putative cause of action then arose.
The plaintiff's affidavit then sets out the inquiries and investigations she made concerning the cracks. The plaintiff deposes that it was not until she received the report of Mr Airey, in late August or early September 2002, and discussed his findings with him, that she first became aware of the cause of the damage to the house and the possibility of a claim of damages being made against the defendant. The plaintiff then wrote, on 13 September 2002, to the defendant, in effect, stating her claim and seeking a response. On 13 November 2002, the defendant's insurer responded to the plaintiff's letter, denying that the defendant was liable. Those facts and circumstances, in substance, are the basis upon which the plaintiff seeks leave to bring the action. I have found that those facts and circumstances constitute reasonable cause for the delay in bringing the action. In my view, it is not fatal to the notice in this case that the plaintiff, or her solicitor, did not go on and characterise those facts and circumstances as amounting to “other reasonable cause” for the delay in bringing the action.
The apparent purpose of the requirement in s 47A(3)(c) 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.
In this case, the plaintiff's affidavit of 20 November 2003 sufficiently stated 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 inquiries or investigations to enable it to oppose the plaintiff's application, if it saw fit.
For the reasons stated, I find that the plaintiff gave notice in writing of her 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).
Conclusion
The Court will give leave for the plaintiff to bring the proposed action against the defendant.
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