Radeka v Registrar General of New South Wales

[1999] NSWSC 1260

CITATION:	RADEKA v REGISTRAR GENERAL OF NEW SOUTH WALES [1999] NSWSC 1260
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	11631/86
HEARING DATE(S):	22 September 1998
JUDGMENT DATE:	22 September 1998
PARTIES :	William Veljko Radeka (Plaintiff) Registrar General for the State of New South Wales (Defendant)
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr C P Heazlewood (Plaintiff) Mr E G Petersen (Second cross-defendant) Mr M Jenkins (Defendant) M C Felsman (First cross-defendant, second cross-claimant)
SOLICITORS:	Shephard & Shephard (Plaintiff) Eleonora G Scarparo (Defendant/Cross Claimant)
CATCHWORDS:	Amendment to add cause of action ; expiry of limitation period; SCR Pt 20 R 4 ; cause of action earlier propounded in other litigation betweeen parties; prejudice; amendment permitted
ACTS CITED:	Suitors Fund Act 1951
CASES CITED:	McGee v Yeomans (1977 1 NSWLR 273 Fernance v The Nominal Defendant (1989) 17 NSWLR 711 Jones v Dunkel (1959) 101 CLR 298 Brisbane South Regional Authority v Taylor (1996) 18 CLR 541
DECISION:	Leave granted to amend statement of claim.

Revised
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

TUESDAY 22 SEPTEMBER 1998

11631/86

RADEKA v REGISTRAR GENERAL OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is an appeal from a decision of Master Malpass made on 17 November 1989 following an amended Notice of Motion filed on 20 October 1989 seeking leave to amend the statement of claim to add an additional cause of action which arose on 3 May 1983.
2 Notice of appeal was filed on 5 December 1989 and the appeal was listed before Sully J, who, on 23 March 1990, directed the appellant to seek a statement of reasons from the Master for the purpose of the appeal.
3 Reasons were provided by the Master in a timely fashion on 23 April 1990 but for some reason the appeal was never listed for hearing. It comes before me today.
4 The initial statement of claim, which was filed within time on 27 February 1986, alleged an accident that occurred on 16 January 1986. Although the earlier accident that occurred on 3 May 1983 had been the subject of proceedings in the Workers Compensation Commission, commenced by application filed in 1986, a matter which appears from the reply filed by the plaintiff on 31 July 1989, it was not included in the statement of claim.
5 On 8 July 1987, well within the limitation period, an amended statement of claim was forwarded to the solicitors for the Government Insurance Office of New South Wales, then, of course, conducting the proceedings on behalf of the defendant. Consent to its being filed was sought, presumably under Part 20 Rule 2. Consent to the filing of an amended statement of claim was rejected, although there could be no doubt that had leave been sought within time the amendment would have been granted. Thereafter the history is silent. The matter before the Master fell for consideration under Part 20 Rules (1) and (4). It had first been submitted that the application for leave to make the amendment adding the new cause of action arose "out of the same or substantially the same facts" as the action already on foot within the meaning of Part 20 Rule (5). It is clear that there was no proper basis for that submission to be made.
6 It is submitted before me that the only circumstances in which amendment having the effect of enlarging the limitation period can be allowed must be of the kinds referred to in Part 20 Rule 4 subrules (3), (4) and (5).
7 The difficulty with this submission, as I see it, is that it is contrary to the judgment of the Court of Appeal in McGee v Yeomans (1977)1 NSW LR 273, especially per Glass JA (at 280). His Honour, whose judgment was agreed to by Moffitt P, said:
"Counsel for the respondent conceded that these different provisions [in particular Part 20 Rule 11 and Rule 4(7)] furnished an undeniable indication that the situation described in Rule 4(3) to (5) did not exhaust the category of amendment which might be made after the expiry of the periods of limitation. But he submitted that, in the exercise of the general power of amendment, the discretion of the Court was still bound by the settled rule of practice. I cannot agree. By providing in r4(3)-(5) that an amendment may be authorised which allows the substitution of a new party, the suing by the plaintiff in a new capacity and the substitution of a new cause of action, the rule was, in those circumstances, totally destroyed. I am unable to accept that it continued, nonetheless, to operate in circumstances outside their terms with undiminished vigour. When it is further provided that an abrogation of the settled rule of practice in certain defined situations shall not in any way abridge the width of the general power to amend, there is in my view an implication that other amendments might in the exercise of discretion be properly allowed in situations not expressly dealt with by the rule, notwithstanding that they introduce causes of action then barred by the expiry of a period of limitation".
8 The submission of counsel for the defendant that McGee v Yeomans should be regarded as confined to a case which in any way fell within subrule (5) is decisively answered by Gleeson CJ in Fernance v The Nominal Defendant (1989) 17 NSW LR 711 at 719.
9 The Master correctly accepted that the court had a general discretion to allow an amendment wherever justice so required, and in particular whereby so doing a cause of action which would otherwise be barred by the Limitation Act would be permitted to be litigated. The Master referred to the exiguous evidence before him and it is fair to categorise it, as the Master did, as a "history of neglect". However, in presuming that the claim had not been propounded before July 1987 it is clear the Master was mistaken, since it had been propounded in the proceedings before the Workers’ Compensation Court in terms, at least, that should have excited, and very properly did excite, investigation.
10 The applicant has sought to be admitted into evidence the application for determination filed in that Court and the judgment made pursuant to it. The extent to which either of these documents is admissible is not altogether clear, and if leave were necessary I would be inclined to grant it. However, in my opinion this matter can be disposed of without reference to those documents, simply by reference to the pleadings before the Master. The Master observed, rightly in my view, that the inactivity of the plaintiff or his legal advisers had not been satisfactorily explained. He pointed out the defendant had no opportunity to investigate the claim prior to 1987 but this, as I have already mentioned, was an error. However, it is correct that prior to 1987 it had not been formulated as a case seeking relief under the Common Law.
11 The Master correctly stated that in exercising the unfettered discretion of the court he should have regard to the hardship to the plaintiff and the prejudice to the defendant.
12 There was no evidence before him of any prejudice to the defendant, and indeed it is difficult to imagine how the defendant suffered any prejudice having received notice well within time of the proposal to sue in this court, and in the preceding year that there was an injury which plainly raised the issue of negligence on the part of the employer, the defendant in these proceedings.
13 It is hardly surprising, therefore, that no evidence suggesting that the defendant was prejudiced came before the Master. In my opinion this issue should be decided by having regard to not only a common sense appreciation of the defendant's position, but also to the inference one is entitled to draw from the application of what is called the rule in Jones v Dunkel (1959) 101 CLR 298, namely, that any evidence upon this point would not have assisted the defendant. That leaves the mere fact that the defendant had acquired a statute barred right (see Brisbane South Regional Authority v Taylor (1996) 18 CLR 541, especially per McHugh J at 555).
14 The matter should have been determined on the basis that there was no prejudice to the defendant at all. I consider therefore the Master's supposition that the defendant was prejudiced by virtue of the fact that it was not aware of the claim until 1987, and had no opportunity to investigate the claim prior thereto, was an error sufficient to justify the allowing of the appeal. This was not only a mistake of fact but in taking this supposition into account I am satisfied, with respect, his discretion miscarried. Accordingly, leave is allowed and leave is granted to amend the statement of claim in accordance with the proposed amended statement of claim.
15 I order costs be paid by the defendant to the plaintiff and I grant the defendant a certificate under the Suitors Fund Act 1951.

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Last Modified: 06/26/2000