Philios v City of Monash
[2022] VCC 817
•15 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-02757
| CON PHILIOS | Plaintiff |
| v | |
| CITY OF MONASH | Defendant |
| DOWNER EDI ENGINEERING PTY LIMITED | Third Party |
| BIG RED CONSTRUCTIONS PTY LTD (IN ADMINISTRATION) | Fourth Party |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2022 | |
DATE OF RULING: | 15 June 2022 | |
CASE MAY BE CITED AS: | Philios v City of Monash and Ors | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 817 | |
RULING
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Subject:EXTENSION OF LIMITATION PERIOD AND JOINDER OF PARTIES
Catchwords: Application for an extension of limitation period – Sections 27D, 27F, 27K and 27L of the Limitations of Actions Act 1958 (Vic) – Joinder of parties – Rule 9.06 of the County Court Civil Procedure Rules 2018 (Vic) – Whether joinder would cause prejudice to Defendant and/or Third Party – Claim statute-barred – Unreasonable delay by Plaintiff’s solicitor – Cause of action against Plaintiff’s solicitor – Plaintiff acted prudently – Evidentiary bars and particulars – Issues of notice – Discretionary considerations
Legislation Cited: Corporations Act 2001 (Cth); County Court Civil Procedure Rules 2018 (Vic); Limitations of Actions Act 1958 (Vic); Road Management Act 2004 (Vic); Wrongs Act 1958 (Vic)
Cases Cited:Komorou v State of Victoria [1991] 2 VR 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Delai v Western District Health Service and Anor [2009] VSC 151; Wall v Toll Transport Pty Ltd [2010] VSC 522; Damman v Peninsula Health [2012] VSC 572; Murgolo v AAI Ltd (2019) NSWLR 376; Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; Pomare v Whyte and Anor (2019) 377 ALR 352
Ruling: Application for extension of time as sought by Plaintiff is granted.
Leave granted to Plaintiff to join Downer EDI Engineering Pty Limited as the Second Defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S McCredie | Carbone Lawyers |
| For the Defendant | D McWilliams | Moray & Agnew Lawyers |
| For the Third Party | F Spencer | Wotton + Kearney |
| For the Fourth Party | No appearance | Sparke Helmore Lawyers |
HIS HONOUR:
1Mr Con Philios, the Plaintiff in this action, was born in January 1952. On 13 July 2012 he allegedly sustained injury to his right ankle when he fell at Eaton Mall in Oakleigh, Victoria. The reasons for that fall are in dispute. The Plaintiff alleges that his fall resulted from loose and hazardous tiles, and inadequate lighting about the area where he fell.
2Briefly, the Plaintiff initially alleged that it was the City of Monash (“Monash CC”) that was responsible for the state of the tiles. In due course, and I will come to the chronological detail of this below, Monash CC identified Downer EDI Engineering Pty Ltd (“Downer”) as the entity responsible for performing works about the site of the allegedly loose tiles. Monash CC has sought to join Downer as a Third Party and issued a Third Party Notice against them. Subsequently, Downer identified Big Red Constructions Pty Ltd (“BRC”) as the construction entity performing the work at the relevant time and joined them as a Fourth Party. BRC went into voluntary administration in July 2021. No leave pursuant to s500(2) of the Corporations Act 2001 (Cth) (“Corporations Act”) has been made to allow proceedings against them to continue.
3This Court has before it numerous applications:
(a) The first is the Plaintiff’s Summons seeking an extension of time to issue proceedings against Monash CC. This Summons is brought pursuant to s27K of the Limitation of Actions Act 1958 (Vic) (“LAA”), on the basis that it is just and reasonable that time be extended. In this application the Plaintiff concedes that time has expired as against Monash CC.
(b) The second is the Plaintiff’s application to join Downer as the Second Defendant to the proceeding. This application is opposed by Downer on the basis that the Plaintiff’s claim against it is statute-barred and that there are no prospects of success against it because it was not engaged to perform the relevant works at or about the site where the Plaintiff fell at the relevant time. Downer broadly argues that is not just and convenient for it to be joined as a Defendant.
(c) The third is an application by Downer that the Third Party proceedings brought against it have been brought out of time and should be struck out. Intertwined with this is an application by Monash CC that it be granted an extension of time to join Downer as a Third Party.
(d) The fourth is an application by the Plaintiff to bring proceedings against Downer out of time and pursuant to s27K. On the Plaintiff’s argument this application only arises if the Court finds that it is out of time within which to bring his proceedings against Downer. His primary position is that he only discovered Downer’s involvement when Monash filed its Third Party Notice on 5 May 2020 and as such he is within the 3 years by which he must have issued proceedings against Downer. Alternatively, if he is out of time against Downer he argues that it is just and reasonable to extend the time within which he can bring proceedings against Downer.
Factual background
4After sustaining the injury in the fall on 13 July 2012, the Plaintiff then sought medical treatment. For the purposes of this application that medical treatment is not relevant.
5On 3 June 2013, the Plaintiff’s son-in‑law made a Freedom of Information (FOI) request to Monash CC.[1] That FOI request limited the documents sought to the period from 1 January 2012 to 31 May 2012. This is curious given the date of the incident was 12 July 2012 so the requested documents may not have covered any works being done on the site as at the relevant date.[2] In any event Monash CC responded seeking clarification of the request and payment of a fee. It is unclear what then happened but it appears that the payment was not made and no FOI materials were produced. However, in late 2013 (the exact date has not been identified) the Plaintiff instructed a lawyer, Mr Paul Simon of Simon Lawyers. It appears that Mr Simon also wrote making a similar FOI request (it is not in the materials) but as he too did not pay the fee no FOI documents were produced.[3] The Plaintiff deposes that Mr Simon never told him about the 3 year limitation period which operates in respect of personal injuries claims in Victoria.[4]
[1]Affidavit of Con Philios sworn on 21 April 2021, at paragraph [8]
[2] Affidavit of Eustratia Patsias sworn on 9 April 2021, at Exhibit ESP 1
[3] Affidavit of Eustratia Patsias sworn on 9 April 2021, at Exhibit ESP 3
[4] Affidavit of Con Philios sworn on 20 April 2021, at paragraph [13]
6On 15 October 2014, Mr Simon wrote to Monash CC with a copy of the medical report from the Alfred Hospital where the Plaintiff had received treatment for his right leg and ankle injury. He subsequently asked Monash CC to refer this letter and the medical report to their insurer.[5] The Affidavit of the Plaintiff’s current solicitor, Ms Eustratia Patsias, then deposes that on 12 February 2015, Mr Simon wrote seeking a response from Monash CC.[6] The Affidavit material does not disclose whether any response was ever received from Monash CC.
[5] Affidavit of Eustratia Patsias sworn on 9 April 2021, at Exhibit ESP 4
[6] Affidavit of Eustratia Patsias sworn on 9 April 2021, at paragraph [16]
7There is a lacuna in the evidence as to what occurred with the matter for almost 2.5 years from early 2015 to mid-2017. On 14 August 2017 the Plaintiff’s solicitor served prescribed information in accordance with s28LT of the Wrongs Act 1958 (Vic) (“Wrongs Act”). On 16 August 2017 Monash CC referred the Plaintiff to the Medical Panel. In its response material Monash did not identify Downer or BRC as potential tortfeasors.[7] Neither did it seek further information (such as an identification of the site of the fall) in order to assess whether or not it was the correct respondent. The Affidavit material then deposes that on 6 December 2017 the Medical Panel certified that the Plaintiff exceeded the significant injury threshold of 5 per cent.
[7] Wrongs Act 1958 (Vic), s28LW(2)(c)-(d) (“Wrongs Act”)
8Monash CC accepted that it did not identify the involvement of Downer or BRC at this stage. The reason for this was the fact that the Plaintiff had not identified the precise location of his fall.[8]
[8] Affidavit of Nigel Kemp sworn on 18 January 2022, at pages 3; 4
9On 27 June 2018, a Writ was filed in this Court by Simon Legal naming Monash CC as the only Defendant. The Writ was generally indorsed and contained very few particulars as to the site of the incident. It focused attention on the poor lighting at the scene of the fall and the uneven surface of the footpath. It made no reference to works at the site.
10On 28 June 2018, an appearance was filed by Moray & Agnew, solicitors for Monash CC.
11On 5 July 2018, Monash CC wrote to the Plaintiff’s solicitor seeking medical materials and a formal Statement of Claim, and indicating that in their view the Plaintiff’s cause of action appeared to be statute-barred.[9]
[9]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 3
12A further letter was sent by Mr Kemp, solicitor for Monash CC, in similar form to his previous letter on 22 July 2018.[10] On 25 July 2018, Monash CC sought a copy of a statement of the Plaintiff’s wife which had previously been forwarded to Monash CC’s insurer, Municipal Association of Victoria (MAV) Insurance.[11]
[10] Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 4
[11]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 5
13No response was received from the Plaintiff’s solicitor, and a follow-up from Monash CC’s solicitor was sent on 24 August 2018.[12]
[12]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 6
14On 1 October 2018, the Plaintiff’s solicitor served the statement of the Plaintiff’s wife. It referred to photographs and plans of the accident site, but these were not exchanged at that time.[13]
[13]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 11
15A purported Statement of Claim was then filed on 26 November 2018. At paragraph 3, it identified the incident and the scene in the following terms:
“On or about 13 July 2012 the plaintiff slipped and fell in an area where construction work was being undertaken and suffered injury and damage.”[14]
[14] Statement of Claim dated 21 August 2018, at paragraph [3]
16However, the lawyer for Monash CC advised immediately that it was not a correctly formulated Statement of Claim but rather an expansion on the general indorsement and required further and better particularisation. On 21 December 2018, the lawyer for Monash CC requested these Further and Better Particulars.[15]
[15]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 15
17On 11 January 2019, a Defence was filed by Monash CC. At paragraph 3 of the Defence, it denied the allegations and sought Further and Better Particulars. It went further and said that paragraph 3 was vague and should be struck out. At paragraph 9 of the Defence, it pleaded that the Plaintiff’s claim was subject to the LAA as the Plaintiff’s claim for damages was issued more than 3 years after the occurrence of the incident and was therefore statute-barred.
18On 20 March 2019, the Plaintiff’s solicitor provided a response in respect of the Request for Further and Better Particulars. The response stated that the accident had occurred in Eaton Mall close to the intersection of the roadway. It promised to provide photographs of the location and noted that the area was not well lit and was close to construction work being undertaken.[16] Monash CC continued to press for Further and Better Particulars by way of letter of 15 May 2019. They provided a map which they sought to be marked by the Plaintiff.[17]
[16]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 18
[17]Affidavit of Nigel Kemp sworn on 22 July 2019, at Exhibit NBK 19
19On 14 May 2019, consent orders were filed by the parties. That set down the interlocutory timetable and a trial date of 7 February 2020. I interpolate at this point to note that in March 2019, or thereabouts, Mr Simon had merged his firm with Carbone Lawyers. The consent orders filed were signed by Mr Simon, but as an employee of Carbone Lawyers. A formal Notice of Change of Practitioner was filed on 3 June 2019.
20On 25 June 2019, Monash CC advised that the Plaintiff’s failure to properly identify the location of the fall was hindering their ability to investigate and provide discoverable documents. They also noted that the Plaintiff’s solicitors had apparently changed from Simon Lawyers to Carbone Lawyers. Throughout July 2019, the lawyer from Monash CC continued to request a copy of the marked photograph to identify the scene of the fall.[18] This was because the lawyer for Monash CC had been instructed that the Defendant had engaged contractors who redeveloped Eaton Mall during 2012. However, on his present instructions, as at mid-2019, the redevelopment of the mall near the intersection of Chester Road did not commence until about October 2012, well after the Plaintiff’s accident.[19] This was important, because it also impacted upon whether or not Monash CC could invoke any statutory defence pursuant to the Road Management Act 2004 (Vic) or whether it was prejudiced overall by the Plaintiff’s delay in commencing proceedings.
[18] Affidavit of Nigel Kemp sworn on 22 July 2019, at paragraph [23]
[19] Affidavit of Nigel Kemp sworn on 22 July 2019, at paragraph [32]
21On 8 August 2019, Further and Better Particulars were filed which included a map which had been marked by the Plaintiff identifying the accident scene as being on the corner of the western side of the intersection between Chester Street and Eaton Mall, Oakleigh.[20] The Further and Better Particulars went on to identify the construction work causing the hazard as being the replacement of tiles in the area where the Plaintiff fell and suffered injury. On 5 September 2019, Carbone Lawyers sent correspondence to the Plaintiff advising that Mr Simon had left the firm.[21] Ms Patsias then took over conduct of the matter.
[20]Further and Better Particulars of the Plaintiff dated 8 August 2019
[21] Affidavit of Eustratia Patsias sworn on 13 August 2021, at Exhibit ESP 13
22On 24 September 2019, Ms Patsias and the Plaintiff met at Carbone Lawyers. On the same day, the Plaintiff was told by solicitors at Carbone Lawyers, namely Mr Karantzis and Ms Patsias, that the case had not been filed in Court within the requisite 3 year limitation period. Immediately thereafter, Ms Patsias filed the Affidavit of Documents, agreed in October 2019 to a new timetable, and in December 2019 filed Interrogatories.[22]
[22] Affidavit of Eustratia Patsias sworn on 13 August 2021, at paragraph [11]
23In January 2020, Ms Patsias sought to amend the Statement of Claim. In March 2020, Ms Patsias provided Answers to Interrogatories and Further and Better Particulars.[23]
[23] Ibid
24Shortly thereafter, the trial date was vacated by consent. This was on the basis that Monash CC needed time to undertake searches for documentation.
25On 17 March 2020 the Plaintiff provided Further and Better Answers to Monash CC’s Interrogatories and a marked photograph identifying the site of the accident.
26On 31 March 2020, Monash CC sought to join Downer as a Third Party by filing consent orders with the Court. These orders were signed by the Plaintiff and Monash CC. Downer was not informed that such a step was being taken. The Court was not informed by the parties that the time to join Downer pursuant to s24(4) of the Wrongs Act had expired. The Court made orders on the papers that leave was granted to join Downer as a Third Party. The basis for the joinder was the allegation that Downer had been engaged by Telstra to fix pits and pit-lids in the area where the Plaintiff fell.
27On 5 May 2020, a Third Party Notice was filed. On 25 June 2020, the Defence of the Downer was filed. It identified that it had engaged BRC to do works at the location nominated by the Plaintiff, and further stated that Monash’s case against Downer was statute-barred because Downer had entered an appearance on 29 June 2018 and this was more than 12 months after the issue of the Third Party Notice.
28In November 2020, Ms Patsias deposes, that she called the Plaintiff in Greece and informed him that the Defendant alleged that he was out of time to issue his proceedings, and an extension should be sought.[24] It is unexplained why such a conversation did not occur immediately after Ms Patsias took over conduct of the matter in September 2019 as the Defendant had pleaded the limitations defence in its Defence filed on 11 January 2019.
[24] Affidavit of Eustratia Patsias sworn on 13 August 2021, at paragraph [11(j)]
29On 16 December 2020, the Plaintiff issued a Summons pursuant to s23A against Monash CC.[25]
[25]It is conceded by the Plaintiff that this Summons was incorrect and an extension of time pursuant to s27K of the Limitation of Actions Act 1958 (Vic) should have been sought
30In March 2021, the Plaintiff’s solicitor obtained instructions from the Plaintiff to join both Downer and BRC as Defendants.[26]
[26] Affidavit of Eustratia Patsias sworn on 8 December 2021, at paragraph [6]
31The Plaintiff’s solicitor failed to file a Summons seeking to amend the Writ and Statement of Claim to join Downer and BRC. As a result, the Court moved to hear the Plaintiff’s application for an extension of time pursuant to s27K against Monash CC. That was fixed for hearing on 21 October 2021.
32On 30 July 2021, the Plaintiff swore an Affidavit in which he deposed that Mr Simon had told him that proceedings had been filed in Court within the 3 year period after the date of the accident.[27] He did not make this assertion in his first Affidavit.
[27]Further Affidavit of Con Philios sworn on 30 July 2021, at paragraph [9]
33On 21 October 2021, orders were made for the Plaintiff to file and serve an application to join Downer as a Defendant. On 25 October 2021, this was done, when the Plaintiff filed a Summons.
34The matter came on before me on 31 January 2022. At that time the Plaintiff withdrew a concession he had made that he was out of time against Downer and needed to extend time. Rather he contended for the first time that he did not discover Downer’s involvement until March 2020 and had thus issued proceedings against them within time. As a result the matter was adjourned to a date before me to hear both the extension of time application, the application to allow the Third Party proceeding to stand and also the application to join Downer as a Defendant.
35Some 15 Affidavits have been filed in this matter and numerous sets of submissions. The Plaintiff ultimately was not cross examined. BRC filed one Affidavit of its solicitor and made no submissions.
The Plaintiff’s application to extend time in which to bring proceedings against Monash CC
36The first issue is the Plaintiff’s application for an extension of time pursuant to s27K to proceed against Monash CC.
37The Plaintiff accepts that he is out of time against Monash CC and needs leave to extend time.
38When considering such an application, the Court is required to consider the factors set out in s27L. Subparagraph (d) has no relevance to the present case.
39The delay is the time elapsed between the accrual of the cause of action (“the accrual”) and the making of the application for an extension of time.[28] Here the Plaintiff and Monash CC accept that the cause of action accrued in December 2013. The limitation period, therefore, expired in December 2016. It is undisputed that the application to extend time was made on 16 December 2020. This is 7 years after the accrual and 4 years after the expiration of the limitation period.
[28]Komorou v State of Victoria [1991] 2 VR 265; Delai v Western District Health Service and Anor [2009] VSC 151
40It was conceded by the parties that the time calculated under the LAA was suspended while the Plaintiff’s case was under assessment by the Medical Panel.[29] This suspends the time from the date of the referral being, 16 August 2018, to 60 days after the return of the certificate of assessment on 6 December 2017. The time to be deducted is from 16 August 2017 to 5 February 2018.[30] This is a period to be deducted of about 4 months. I find the delay is a period of 4 years and 8 months.
[29] Wrongs Act, s28LV(c)
[30]See Interpretation of Legislation Act 1984 (Vic) (“IL Act”); Some days are not counted in this period due to the IL Act. I have factored these days in to arrive at my finding of 4 months being deducted from the period of delay
41I accept that the fault for the delay lies largely with the Plaintiff’s former solicitor, Mr Paul Simon of Simon Lawyers. I note he continued to act for the Plaintiff even after the file was transferred to Carbone Lawyers, as he retained conduct of the matter while he was employed there until September 2019. Thereafter, the failure of the Plaintiff’s current solicitors to issue proceedings for over a year was a delay of their making. The Plaintiff in his evidence clearly took steps to have his matter investigated at an early stage by lawyers. This was done initially by Mr Simon, who obtained records from the Alfred Hospital and sent them by way of a letter of demand to Monash CC. Thereafter, the Plaintiff left his claim in his solicitor’s hands. This was an undoubtedly prudent step, especially so where the uncontradicted evidence of the Plaintiff is that Mr Simon had indicated to him that proceedings had been issued. Thereafter, the Plaintiff simply trusted his solicitors to monitor his proceedings and advise him of necessary matters. I consider this to have been a prudent course and I find no fault on the Plaintiff’s behalf for adopting such a course.[31]
[31] Millard v State of Victoria VSCA (2006) at [29]
42Monash CC urged the Court to consider the fact that the Plaintiff had a claim against his former solicitor Mr Simon for his failure to issue proceedings within time. Mr McWilliams relied on Gordon v Norwegian Capricorn Line (Australia) Pty Limited (Gordon).[32] I consider that decision involved a set of circumstances far removed from those here. Those specific circumstances, where a solicitor’s negligence was not in doubt, are substantially different to this situation. The circumstances of this case are more similar to those in Davies v Nilsen.[33] This was also a decision of J Forrest J in which His Honour eschewed reliance on Gordon. I would do the same. I do not consider that the case against the solicitor is one that is of such strength as to nullify the Plaintiff’s claim to have time enlarged against Monash CC.
[32] [2007] VSC 517
[33] [2015] VSC 584
43Whilst there has been some divergence of opinion as to whether the Plaintiff’s cause of action against their solicitor is a relevant factor in this type of application, I consider that it does have some impact on whether it is just and reasonable to extend the limitation period.[34] If the prejudice to the Plaintiff is ameliorated by the likely success of an action against his solicitor, then the harshness of a refusal to grant the extension is similarly ameliorated. In the circumstances of this case, this is not a determining factor by any means, and the weight given to it must be moderated because I have heard only the Plaintiff’s account of the terms of the engagement with his solicitor. Overall I afford this factor little weight.
[34]Damman v Peninsula Health [2012] VSC 572 at [27]
Prejudice to the Defendant
44Section 27L(1)(b) requires the Court to consider the extent to which, and by having regard to the delay, there is or is likely to be prejudice to the Defendant. There is no material currently before the Court identifying any specific prejudice to the Defendant. In submissions Mr McWilliams identified no specific prejudice relied upon which works against the Plaintiff’s application.
45It was made clear in Brisbane South Regional Health Authority v Taylor[35] that general prejudice accrues simply by the elapse of time. That much may be accepted.
[35](1996) 186 CLR 541
46The Plaintiff has provided relevant discovery of all medical notes. There has been a statement from the Plaintiff’s wife – the only other person who witnessed the fall. Relevant discovery has been made by Monash CC. In addition, Monash CC has been able to obtain Further and Better Particulars and a marked map of the location of the incident which has led them to search and investigate roles of other parties. This has led them to consider that they have a proper basis to join Downer. All that material provides a solid basis for Monash CC to conduct its defence. There are no specific witnesses that Monash CC identifies who have passed away and are not able to give evidence or be discovered. The Plaintiff himself is available for cross-examination, as is his wife. It is undoubtedly true that the substantial delay in the Plaintiff in properly identifying the location of the fall has had a prejudicial effect on Monash CC’s conduct of the litigation. This delay has hampered the identification of relevant documents and witnesses. But, as conceded this has not led to the destruction of its’ relevant documents or the death of a witness which would rob Monash CC of the evidence entirely.
47The more important prejudice suffered by Monash CC has been because the late identification of the location of the fall has led to the late identification of the involvement of Downer and BRC. That late identification has meant that, even though Monash acted with all alacrity after the identification of the site, it was only in a position to issue its Third Party proceedings against Downer outside the time permitted by s24(4) of the Wrongs Act. That provides that such Third Party proceedings must be issued within 12 months of Monash CC being served with the Plaintiff’s Writ. That was on 27 June 2018 and Monash CC issued its Third Party proceedings on 5 May 2020. At the time of this application commencing, the submissions of Monash CC were that as the Court had made an Order permitting the issuing of the Third Party proceeding and the Court was now functus officio to find that the Third Party proceeding should not have been issued and should be struck out. This position was abandoned at the hearing. Ms Spencer, who appeared for Downer submitted that the orders made by the Court were simply in error as the Wrongs Act makes it plain that there is no ability to recover contribution if the Third Party proceeding were issued outside of the 12 months when proceedings were served on the Defendant. I accept this submission. I find that the Third Party Notice must be struck out.
48It was argued that this leaves Monash CC in a position of specific prejudice in that it has lost its right to recover contribution against Downer. When looked at closely however it is not the delay in the issuing of proceedings that has caused this situation. In reality it is the failure by the Plaintiff to specifically identify where the fall occurred that has delayed the issue of the Third Party proceedings. This was a matter over which Monash CC had some control. Despite there being much uncertainty of the location of the fall prior to the issuing of proceedings once they were issued Monash CC did not bring on an application for Further and Better particularisation (its Summons for such particulars was filed on 22 July 2019, some 13 months after proceedings were issued and served) in time to ensure it could comply with the 12 month limitation period. That is a fault of its own making, though aided and abetted by the Plaintiff’s approach. I do not consider this a factor of specific prejudice on which Monash CC can rely.
49Section 27L(1)(c). This factor is not relevant, given that the Defendant has provided some relevant material via FOI but is accepted that it was limited because the plaintiff did not precisely define the area of the fall.
50Subparagraph 27L(1)(d) is not relevant.
51Subparagraph 27L(1)(e) relates to the date of discoverability. I have addressed that above.
52Section 27L(1)(f). I have set out above why I consider that Mr Philios acted in a prudent fashion after the incident in July 2012.
53The terms of s27K require a synthesis of matters in considering whether it is just and reasonable to order an extension of the period of limitation. It is not a situation of playing one factor off against another, but rather considering whether in all the circumstances it is just and reasonable to extend time.
54In summation, I consider that a synthesis of all the factors leads me to a conclusion that in circumstances where the Plaintiff has acted prudently, but his solicitor has not, where the Defendant can point to no specific prejudice, and further where there is a plethora of material available to the Defendant in the course of its defence of the action, a fair trial can be had.
55For these reasons I will extend the time as sought by the Plaintiff in his Summons.
Second issue: The Plaintiff’s application to join Downer as the Second Defendant
56Turning to the second issue in these applications. Here the Plaintiff seeks to join Downer, the extant Third Party, as a Defendant. Downer objects on several bases. It argues that the Plaintiff’s claim against it is statute-barred, and joinder in such circumstances should not be permitted.[36] It particularly argues that the significant delay in issuing proceedings and identifying the location of the fall (which occurred on 17 March 2020) has led to such significant prejudice, general and specific, that joinder should not be permitted.
[36]Wall v Toll Transport Pty Ltd [2010] VSC 522 at [12]-[13]; [16]
57Further, it argues that the Plaintiff has no claim against it, because on the facts it was simply not involved in works at the site of the Plaintiff’s fall at the relevant time. As part of this argument it says the pleading is inadequate in identifying its involvement.
58Downer also joined with Monash CC in arguing that as the Plaintiff had a claim against his former solicitor this was a matter which should weigh against the grant of leave to join. For the reasons set out above I do not consider this point carries much weight.
Is the Plaintiff’s claim against Downer statute barred?
59Turning to examine whether the Plaintiff’s claim against Downer is statute-barred. I find that it is not. Section 27D of the LAA states that the Plaintiff has 3 years from the date on which a cause of action is discoverable within which to bring proceedings. As to what is discoverable s27F states that:
“Date cause of action is discoverable
(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts --
(a) the fact that the death or personal injury concerned has occurred;
(b) the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
… .”
60The section requires the Court to determine the “first date” that the Plaintiff knew something. It does not necessarily mean finding the first date on which the Plaintiff believed that he knew something.[37] This focuses attention on when the Plaintiff actually knew the identity of Downer.
[37]Murgolo v AAI Ltd (2019) NSWLR 376 at [46] (“Murgolo”)
61There is no reference to Downer in the FOI material or in the s28LT response material. The first mention of their involvement occurs in the discoverable material of Monash CC around 18 November 2019 when the Affidavit of Documents was filed. I find this was the time when the cause of action accrued. The Plaintiff had 3 years from that date to issue proceedings against Downer,[38] or alternatively to make application to join Downer, as was done on 25 October 2021 by the Plaintiff. This was within the 3 year limitation period. Accordingly, the Plaintiff’s cause of action against Downer is not out of time as Downer submits.
[38]Murgolo at [10]; the usual practice being to issue without notice to the prospective Defendant
62Ms Spencer submitted that the date the cause of action against Downer was discoverable had to be considered having regard to the words of s27F(2) which set the date of discoverability according to when a “person ought to know of a fact at particular date”. She submitted this was a date close on to the date of the fall itself. I have found that the Plaintiff took the prudent step of engaging lawyers from early on. It is accepted that lawyer acted poorly in obtaining FOI material or properly identifying the site of the fall which would have allowed Monash CC to identify the involvement of Downer. However I do not consider this an error of the Plaintiff. This is an error of the lawyer he engaged to represent him. I consider s27F draws a distinction between “a person”, here Mr Philios, and those that may represent him. I consider the correct interpretation as s27F(2) makes clear that a person can take reasonable steps to ensure that facts are ascertained. One of those reasonable steps must be the engaging of a solicitor to obtain those facts. There is then a distinction drawn between the behaviour of “the person” and the solicitor so engaged.
63The New South Wales Court of Appeal has drawn such a distinction in relation to equivalent provisions.[39] In Baker-Morrison, the New South Wales Court of Appeal held that “the step of instructing a solicitor will be sufficient for a prospective plaintiff… to satisfy the element of taking ‘all reasonable steps’”.[40] The Court has also made clear that the relevant inquiry is as to the substance of what a solicitor communicates to their client, not what that the solicitor ought to have known had they made further inquiries.[41]
[39]Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 (“Baker-Morrison”); Pomare v Whyte and Anor (2019) 377 ALR 352 (“Pomare”)
[40] Baker-Morrison at [58]
[41]Pomare at [13]
64I do not consider that the Plaintiff ought to have made further inquiries regarding the FOI request after he entrusted his legal affairs to the hands of his solicitor.[42]
[42]Pomare at [57]
65I find that the Plaintiff did not know of the involvement of Downer until the filing of the Third Party Notice.[43] The Plaintiff engaged lawyers to investigate the claim for him. I find this was the taking of all reasonable steps within the meaning of s27F(2). The failings of his solicitors to pursue the FOI request and then serve material precisely identifying the site were the failures of the lawyer and not the Plaintiff.
[43]Pomare at [16]; in that the bare identification of Downer in the Affidavit of Documents of Monash CC was not enough for the Plaintiff to understand that his injury may have been caused by the “fault” of Downer
Should the Plaintiff be allowed to join Downer as the Second Defendant?
66Downer’s next argument is that on the facts, the case against it is hopeless because, on the limited material available, Downer did work at the site only through BRC, which did not start until after the date of the injury. I accept the test for what the Plaintiff must demonstrate to succeed in the joinder application is as set out in Wimmera-Mallee Rural Water Authority v FCH Consulting.[44] I find that the Plaintiff here brings a conventional personal injuries action in which duty clearly arises on the pleading. The amended pleading sets out how the footpath was involved in the fall, but in discussions with Plaintiff’s Counsel it was conceded that further particularisation maybe required to specify the breach. Causation and damage are not difficult to ascertain from the pleading. I do not consider it to be a hopeless case against Downer on the pleading. Rather it is a conventional personal injuries pleading routinely seen.
[44] [2000] VSC 102 at [8]
67Allied to this point is what Downer refers to as the specific prejudice it would suffer because of the sorry way this litigation has been conducted. That specific prejudice stems from the fact that Downer and BRC destroyed all documents 7 years after the fall in accordance with their policies. Second, BRC went into administration as of July 2021 meaning witnesses and documents associated with it are difficult to find and third, a search for Downer witnesses to the construction works has proved largely fruitless. The one witness found had only broad general knowledge of the works at Eaton Mall. [45]
[45] Further Affidavit of Genelle Hopkins sworn on 13 May 2022, at paragraphs [18]-[22]
68Downer essentially submits that a fair trial cannot be had because of such prejudice. I do not accept that argument. If, as I have found, the Plaintiff is within time to issue proceedings against Downer then he starts with a right to bring an action against whomsoever he chooses to join. Often in personal injuries litigation parties are joined in a situation where the Plaintiff knows little of the Defendant’s document retention policies or what witnesses they have access to. While Downer starts its case without immediate access to many witnesses or documents this may not be the situation by the end of all the interlocutory process. The fact that Downer was in a position to join BRC as Third Party and had a proper basis to do so supports my findings that Downer has information sufficient to, at this stage, attribute liability to others and deny its own liability. It is also clear from the Affidavit of Ms Naidu, the solicitor for BRC, that she is able to obtain instructions as to when the work that it did started on site.[46] Whoever she obtained instructions from has some detailed knowledge of the site and the relationship with Downer. That person, on the evidence, will either be available for cross examination if leave to proceed against BRC is sought and they remain a party or alternatively if they are not then that person can be conferenced by Downer’s lawyers.
[46] Affidavit of Vanessa Naidu affirmed on 11 June 2021, at paragraph [14]
69In the Affidavits of Ms Hopkins, the solicitor for Downer, she deposes to Downer having undertaken the following steps in the course of its investigations: it obtained a copy of Downer’s quotations for the relevant works to Telstra,[47] it obtained a copy of a Land Access and Activity Notice dated 3 July 2012 which it sent to Monash.[48] It also located a former Downer employee who was involved in attending the site and it identified that those who signed the pre-start Worksite Management Form relating to the works would have been BRC staff.[49]
[47] Affidavit of Genelle Hopkins sworn on 16 November 2021, at paragraph [15]
[48] Ibid
[49] Further Affidavit of Genelle Hopkins, sworn on 13 May 2022, at paragraphs [19]; [20]
70In her Affidavit, Ms Naidu, solicitor for BRC, deposes to BRC having made unsuccessful attempts to locate employees who worked on the Eaton Mall job.[50] I note that the Affidavit does not specify the nature of the attempts to locate employees.
[50] Affidavit of Vanessa Naidu affirmed on 11 June 2021
71These Affidavits did not state, for example, that Downer or BRC had pursued further Third Party discovery with parties such as the relevant superannuation fund or the Australian Taxation Office to determine superannuation contributions and payments made to workers subcontracted to BRC at the time of the works. From such information, it could be possible to ascertain names of potential witnesses and further information regarding dates and details of the works. This in turn would have the potential to open up further lines of inquiry. It is not the case that the accident occurred several decades ago prior to the digitisation of information or at a time where further witnesses are more likely than not to have passed away or be otherwise unavailable. Where incidents have occurred within the past decade, there exist multiple methods of investigation notwithstanding the effluxion of time. I refer to these matters to support my finding that the Affidavit material does not indicate that Downer, and for that matter BRC, have exhausted attempts to locate information and witnesses at this time. I do not accept the submission of Downer to the contrary.
72I also make the point that simply because BRC is in voluntary administration if leave to proceed against them is obtained pursuant to s500(2) of the Corporations Act then they will remain a party. The external administrator will have obligations to fulfil as a company officer of the party to the litigation. Downer may well opt to pursue rights of contribution against them.
73On the pleadings, including a consideration of the Monash CC Third Party Statement of Claim against Downer and its Defence, there are significant factual disputes as to the involvement of Monash CC, Downer, and BRC, as to who was responsible for the construction about the site where the Plaintiff fell as at 12 July 2012. These are plainly matters for resolution at trial. I am not in a position to prejudge this dispute on the limited material before me such as to determine that the case against Downer is so hopeless that it should not proceed.[51] Further even on the present material I consider that Downer can have a fair trial, even with the prejudice it will suffer both general and specific.
[51]Affidavit of Genelle Hopkins sworn 13 May 2022, at paragraph [25]
74As I have found against Downer on both grounds it advanced to resist joinder, I consider that in accordance with rule 9.06 it is just and convenient that Downer be joined as a Defendant. In summary, this is because:
(a) The Plaintiff is within time to issue proceedings against Downer;
(b) These are conventional pleadings involving a well traversed area of personal injuries law;
(c) There is a real dispute over who was involved in the construction of works at the site of the fall that can only be resolved by the involvement of Downer as a Defendant;
(d) Given Downer’s participation as a Third Party already to date, it is just and convenient that issues of their potential primary liability to the Plaintiff be dealt with in the hearing;
(e) The Plaintiff’s cause of action is conventional, and Downer is able to deal expeditiously with the Plaintiff’s claim, given Downer has been involved in the case as a Third Party for nearly two years and completed all interlocutory steps;
(f) There is a significant saving in time, cost and convenience in having all liability and quantum questions dealt with at once.
75I will grant leave to the Plaintiff to join Downer as the Second Defendant.
76I will list the matter in 7 days time for a directions hearing to allow parties time to draft Minutes giving effect to the ruling above. I will record my findings that the Plaintiff’s lawyers have acted in a manner which has resulted in them seeking a significant indulgence from the Court. This can be seen from the following matters:
a)the failure to issue proceedings within 3 years of December 2013;
b)the failure to respond to the repeated requests of Monash CC for identification of the exact location of the fall;
c)the failure to seek instructions in respect of the limitations defence immediately on Mr Simon ceasing as the solicitor with the conduct of the matter – a delay of over a year;
d)the withdrawal of the concession made that the Plaintiff was out of time against Downer and did not need an extension of time.
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