Robertson and Ors v Zakkour and Anor (Ruling)
[2013] VCC 592
•19 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-09-04069
| KYLE LEIGH ROBERTSON (an infant who sues by his Litigation Guardian DONALD ANDREW ROBERTSON) DONALD ANDREW ROBERTSON and COLLEEN MARGARET ROBERTSON | Plaintiffs |
| v | |
| ELLIAS ZAKKOUR and PERRIN HOLDINGS PTY LTD | Defendants |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2013 | |
DATE OF JUDGMENT: | 19 March 2013 | |
CASE MAY BE CITED AS: | Robertson & Ors v Zakkour & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 592 | |
RULING
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Subject: LIMITATION OF ACTIONS
CATCHWORDS: assault and battery – negligence - first defendant a bouncer - second defendant and occupier of an hotel - first defendant allegedly assaulted the deceased - discoverability of the cause of action of the plaintiffs – discoverability of the cause of action by the infant first plaintiff - prejudice alleged by the defendants - whether the limitation period should be extended
LEGISLATION CITED: section 27D, 27F, 27J and 27L of the Limitation of Actions Act 1958
CASES CITED: Bell v SPC Ltd [1989] VR 170; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Richards v The State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service [2009] VSC 151; Cowie v State Electricity Commission [1964] VR 788; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 V 614; Tsiadis v Patterson [2001] VSCA 138; Spandideas v Vellar [2008] VSC 139; Arisoy v Yoogalu Pty Ltd t/as Harvey Norman [2012] VSC 631
JUDGMENT: application for an extension of time refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Clarke | DKP Lawyers |
| For the First Defendant | Mr J Broadbent | Oakley Thompson |
| For the Second Defendant | Mr M Hooper | Lander & Rogers |
HIS HONOUR:
Introduction
1 The plaintiffs filed a writ on 28 August 2009 bearing a general endorsement that the death of Michael Andrew Robertson was caused by the actions and/or the omissions of the defendants on or about 31 August 2003. The writ is a rather shabby document. Part of the heading is in hand writing and the schedule of parties is in hand writing.
2 The filing of the writ was followed by the plaintiff filing and serving what is described as an amended statement of claim, filed and served pursuant to an order of Judge Davis made 11 November 2011.
3 Judge Davis heard an interlocutory application by the parties on 24 August 2012. It would appear that, on that day, Her Honour decided that the defence taken by the defendants that the plaintiffs proceeding was statute barred should be heard on 28 February 2013. Her Honour formalised orders dated 27 August 2012 setting that matter down for trial, and Her Honour made procedural orders for the exchange of material by the parties.
4 The application came on before me on 28 February 2013, but because of the volume of the business of the Court on that day it was adjourned to 4 March 2013 for trial.
5 Mr P Clarke of Counsel appeared for the plaintiffs, Mr J Broadbent, solicitor, appeared for the first defendant, and Mr M Hooper of Counsel appeared for the second defendant.
6 The parties agreed that the application was to be heard on the material each of the parties had filed, namely:
· The affidavit of Donald Robertson sworn 7 February 2013: Exhibit A
· The affidavit of Colleen Margaret Robertson sworn 3 December 2012: Exhibit A
· The affidavit of Colleen Margaret Robertson sworn 7 February 2013: Exhibit C
· The affidavit of Ellias Zakkour sworn 18 January 2013 with exhibits: Exhibit 1D1
· The affidavit of Antoinette Zakkour sworn 31 January 2013: Exhibit 1D2
· The affidavit of Diana Helen Costaras sworn 23 August 2012 with exhibits: Exhibit 2D1
· The affidavit of Diana Helen Costaras sworn 18 January 2013 with exhibits: Exhibit 2D2
Some Background
7 Michael Andrew Robertson died on 31 August 2003. He was born in June 1974. He was 29 years of age when he died. He died as a result of an assault at, or in or about the precincts of, an hotel conducted by the second defendant. It is alleged that the first defendant was his assailant.
8 Kyle Leigh Robertson ("Kyle") is the son of the deceased. He was born in March 2003. Donald Andrew Robertson ("Donald") is the father of the deceased. Colleen Margaret Robertson ("Colleen") is the mother of the deceased.
9 A single proceeding has been filed by the plaintiffs against the defendants. The cause of action relied upon by Kyle is a dependency claim brought pursuant to the provisions of the Wrongs Act 1958. The cause of action relied upon by Donald and Colleen is a nervous shock claim. The plaintiffs’ claims rely upon proving that the deceased was assaulted by the first defendant, and that the second defendant was responsible for the acts of the first defendant. I think that is sufficient to set out the background of the proceeding brought by the plaintiffs, and the substance the allegations made by them against the defendants.
The relevant Legislative Framework
10 Before turning to the evidence relied upon by the parties, it is necessary to set out some of the legislative framework so that the evidence can be analysed within that framework in order to determine whether the relief sought by the plaintiff should be granted or denied.
11 The relevant limitation period is section 27D which is in the following terms:
"(1)An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a)the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
(2)This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury."
12 Subsection (2) does not apply to Donald or Colleen because neither of them was under a disability. It does apply to Kyle who was, and is, under a disability because he was a minor at the time of the death of the deceased, and is still a minor. I will return to some other provisions relevant to persons under a disability shortly.
13 The date that the cause of action is discoverable is dealt with in section 27F which is in the following terms:
"(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.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person."
14 In Spandideas v Vellar,[1] Kaye J considered what the legislature intended by reference to the concept of "fault". He said:
"In everyday discourse, it is not unusual to attribute an accident, some damage, harm or injury, to the “fault” of another. In its ordinary non-legal sense, the suggestion that an injury or accident has been caused by the “fault” of another means that the injury or damage was caused by an act, which the other person should not have done, or should have done differently, or by an omission by that person to carry out an act, which should have been done. Certainly, that meaning involves certain normative concepts of what should or should not have been done. However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the “fault” of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of “fault”; rather, what the sub-section fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done."[2]
[1][2008] VSC 139.
[2]Paragraph 35. The defendant appealed. The Court of Appeal did not interfere with Kaye J's reasoning which I have quoted: [2008] VSCA 139.
15 The proceeding became statute barred on 31 August 2006, three years after the death of the deceased. The writ was not filed until 28 August 2009, which is three days short of six years after the cause of action arose and three days short of three years after the limitation period expired. Therefore, Donald and Colleen’s proceeding is statute barred. I will return to the basis upon which they apply for an extension of time later in these reasons.
16 There are different provisions which refer to Kyle because he is a person under a disability. Section 27D (2) provides that the limitation periods referred to in subsection (1) do not apply to a person under a disability. Section 27E applies to a cause of action founded on personal injury to a person who was under a disability at the date of the act or omission, and extends that period of the limitation period referred to in subsection (1) (a) from 3 years to 6 years in subsection (2) (a), and the period referred to in subsection (1) (b) from 6 years to 12 years.
17 However, Kyle’s proceeding is subject to section 27G which is in the following terms:
" (3) In determining when a cause of action is discoverable by a person who is a minor or an incapacitated person and who is not under a legal incapacity, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the represented person are deemed to be facts that are known or ought to be known by the minor or incapacitated person.."
18 The expressions "capable parent or guardian", "guardian", "incapacitated person" and "represented person" are defined in subsection (4).
The Plaintiffs’ Evidence
19 Before turning to the evidence of the plaintiffs, it is convenient to set out a chronology of relevant events:
· 30 August 2003 - the defendant was assaulted.
· 31 August 2003 - the defendant died of injuries suffered in the assault.
· 3 August 2006 - the coroner handed down his record of investigation into the death of the deceased.
· 28 August 2009 - the plaintiffs filed their writ.
· 19 May 2011 - Judge Jenkins ordered that Perrin Holdings Pty Ltd be substituted as second defendant
· 30 May 2011 - the first defendant was served with the writ.
· 14 June 2011 - the first defendant was served with the amended statement of claim.
· 9 June 2011 - the plaintiff filed and served a statement of claim which corrected the name of the second defendant and joined NuForce Pty Ltd as the third defendant.
· 11 November 2011 - Judge Davis ordered that Meran Rise Pty Ltd be substituted for the third defendant.
· 24 August 2012 - Judge Davis ordered that the application for extension of time be heard before the trial of the proceeding.
20 The whole of the plaintiffs’ evidence was contained in three short affidavits. Donald swore an affidavit on 7 February 2013. He described some of his background and the dramatic psychological effect that the deceased's death had upon him. He began drinking heavily often engaging in binge drinking. In 2004 he was prescribed an anti-anxiety medication known as Cymbalta. He was admitted to the Melbourne Clinic for treatment as an inpatient at some stage before the inquest. He was admitted to the Victorian Drug and Rehabilitation Centre for treatment for his alcohol problem, and he has been admitted to the North Park Hospital for treatment for his psychological problems.
21 The only part of his affidavit dealing with why the proceeding was not filed until 28 August 2009 is the following:
"11.I did attend the inquest into Michael's death. I found the process confusing and complicated. There were many names mentioned. I did not receive a briefing from my solicitor or anyone else as to what was happening. Sitting in the public gallery it was difficult to work out who were witnesses to the assault, who were involved in the scuffles and what role any person played. Much of what was said was difficult to understand.
12.It was only after the coroner released his report on 3 August 2003 and I read it that I knew that Zakkour struck a blow that cause[d] Michael’s injury which resulted in his death. I had not been told of his involvement prior to that time by anyone."[3]
[3]Exhibit A. The reference in paragraph 12 to "3 August 2003" must be a typographical error. It must be a reference to 3 August 2006 which is the date when the coroner handed down his record of investigation into the death of the deceased.
22 Colleen swore two affidavits. In her first affidavit sworn 3 December 2012, in paragraphs 6-9, she swore that the first defendant struck the deceased a blow which knocked him to the ground. That resulted in the deceased striking his head on the ground which caused him an irreparable and fatal brain injury. It is as if she witnessed all of those events, but it is very apparent that she did not because of what she said in her second affidavit. In that affidavit she said the following:
"11.I was not at Bridie O'Reilly's when Ellias Zakkour ("Zakkour") struck Michael on the morning of 31 August 2003. I had returned home from Bridie O'Reilly's earlier that morning. I received a phone call from one of my son Adrian's friends, Paul McCallum ("Paul"), in the early morning of 31 August 2003. To the best of my recollection Paul said "you had best come to the hospital. Michael is pretty bad" or words to that effect. He must have described which hospital because I left immediately and was at Michael’s bedside at the Royal Melbourne Hospital until his life-support was switched off at 7 PM on 31 August 2003. Neither Paul or anyone else described who had hit Michael.
12.After Michael died I was informed that Victoria Police were investigating what had happened. I relied on them to undertake the investigation and did not want to interfere. From September 2003 until June 2006 I received occasional updates from members of Victoria Police, by telephone conversation as to what they were doing. The person who rang me spoke in very general terms and did not name any suspect. The conversations tended to discuss how involved the investigation was. I relied upon them to keep me informed.
13.Donald Robertson ("Donald"), my husband, and I have very limited financial means and no experience in investigation.
14.After Michael's death I engaged Allan McMonnies ("Allan") to act on the family's behalf. He was recommended by an uncle who was a retired barrister. Allan appeared for the family at the inquest. He did not provide us with a briefing in the lead up to the inquest as to who the main parties work, who might have been a person of interest or [what] the likely outcome would be. We did not have access to transcript. We relied on Allan to look after our best interests during the inquest. I attended every day of the hearing and tried to keep up as best I could. It was however quite confusing. Alan would occasionally speak to Donald and I during the hearing, telling us that it was going well.
15.It was only when the coroner's report was published on 3 August 2006 that I had an understanding of who struck my son, Ellias Zakkour ("Zakkour"), and was responsible for his injury and death. I recall Zakkour's name being mentioned during the inquest however it was just one of a large number of names referred to by the lawyers and witnesses. Zakkour did not give evidence at the inquest.
…
18.After the coroner's report was published I asked Allan to issue proceedings on mine, and Donald’s behalf as well as on behalf of Kyle Robertson, our grandson and Michael’s son. Allan said he would do so. I understand a writ was filed on 28 August 2009."
The Defendants’ Evidence
23 The first defendant swore an affidavit on 18 January 2013. He admitted that he pushed the deceased with the result that he fell to the ground hitting his head on the roadway. However, that admission was made in an affidavit just over nine years after the deceased died.
24 The first defendant exhibited a number of documents to his affidavit. The first is a witness list prepared by the Coroner. It refers to 75 witnesses who had the potential to be called by the Coroner to give evidence at the Inquest. Both Mr Cooper and Mr Broadbent referred to the witness list to demonstrate that there were a significant number of witnesses who at least identified that a crowd controller punched or assaulted or pushed the deceased.[4] Most of the witnesses I have referred to in the witness list identified the first defendant as the deceased's assailant.
[4]Exhibit "EZ 1". I will identify the witnesses only by their number on the witness list - witnesses 19-23, 27, 29, 31-34, 39-41, 43, 53, 55-61.
25 The witness list is not dated. There was no evidence of the date on which it was prepared and served on interested parties to the Inquest.
26 The Coroner, Mr L P Byrne, handed down his record of investigation into the death of the deceased on 3 August 2006. In some preliminary remarks he made the following observation of the evidence:
"At the inquest I chose from the list of 85 potential witnesses in a total cross-section of observers. Some could be seen as from the "Robertson camp", others from the "bouncer’s (Zakkour") camp", others from the hotel staff and management and others unaligned.
My difficulty was compounded because even within the accounts of those who could be seen as unaligned, there were significant variations, even glaring, contradictions. It is in that climate I have to try to make sense of the contradictions and establish the facts."
27 After reading the whole of the record it is clear enough to me that this was a difficult forensic exercise for the Coroner to unravel the evidence and make findings. In the end he concluded by saying:
"I have earnestly examined the body of evidence, much of which is contradictory. As previously stated there are various versions of events. I have carefully considered which witnesses can, to some extent at least, be relied upon."
28 Following that observation he found that the deceased was verbally threatened and abused a group of bouncers. He found that the deceased stepped forward, presumably towards the group of bouncers, at which time the first defendant struck a pre-emptive blow which knocked the deceased to the ground.
When was Allan McMonnies Instructed?
29 The only evidence from the plaintiffs relevant to when instructions were given to Allan McMonnies to act on their behalf in a common law claim came from Colleen. In her first affidavit, sworn 3 December 2012, she said that shortly after the deceased’s death, which she estimates to be two or three months, she and Donald engaged Allan McMonnies to act on their behalf. He was given instructions to commence "civil proceedings". He represented the plaintiffs at the Inquest.
30 The plaintiffs are now represented by Mr Murati, solicitor of DKP Lawyers. The Court file discloses that DKP Lawyers filed a notice of change of solicitor on 23 April 2012. Ms Costaras said, in her affidavit sworn 18 January 2013, that, despite the change of solicitor, Mr Murati had been a solicitor in the employ of Allan McMonnies before the change of solicitor and apparently had the care and conduct of the plaintiffs file while in the employ of Allan McMonnies.
31 What is clear from the evidence is that the plaintiffs engaged Allan McMonnies some two or three months following the death of the deceased. The plaintiffs gave him instructions to act on their behalf. According to Colleen, that encompassed a number of matters, including making an application under Victims of Crime Assistance Act 1986, representing them at the Inquest, and bringing a common law claim.
32 What is also clear is that from the time when Allan McMonnies was engaged he took no notice step to advance the plaintiffs’ common law claim. In the absence of any affidavits from Allan McMonnies and Mr Murati, there is no other sensible conclusion that I can draw. Indeed, the only persons who could explain the delay between obtaining instructions and why the writ was filed on 28 August 2009 is Allan McMonnies, and perhaps Mr Murati.
33 It is difficult to understand why there was such inaction on the part of the plaintiffs. What was known was that the deceased had been assaulted. It was witnessed by Paul McCallum ("McCallum"), the person who rang Colleen to inform her that the deceased had admitted to the Royal Melbourne Hospital following the assault. The list of witnesses exhibited to the first defendant affidavit discloses that McCallum was witness number 19. The short description of his evidence is that he was described as a friend of the deceased and would give the following evidence:
"Will give evidence of observations of the deceased being punched once by Crowd Controller at the face."
34 It seems to me that the steps which the plaintiffs could have taken should have been :
· Interview McCallum, and other potential witnesses.
· Determine the corporate owner of Bridie O'Reilly's hotel.
· Make enquiries as to whether the second defendant was an employee of the corporate owner of Bridie O'Reilly's hotel, or was employed by some other corporation.
· Obtain evidence of the injury suffered by Donald and Colleen.
· Obtain evidence of the deceased's earnings to set up the claim for Kyle.
35 The evidence relevant to the injury suffered by Donald and Colleen, and the evidence needed to set up Kyle’s claim would have been relatively straightforward and could have been obtained within the limitation period.
36 The evidence relevant to the corporate owner of Bridie O'Reilly's hotel could have been obtained with some ease. Corporate affairs searches are now a simple affair, and were a simple affair in 2003.
37 It may have been more difficult to identify the first defendant as the assailant, but there was evidence available to the plaintiffs which positively identified him as the assailant. If there was some doubt, an experienced pleader would have pleaded that the corporate owner of Bridie O'Reilly's hotel was the employer of the first defendant, or a crowd controller in the absence of knowing the actual employer of the first defendant.
38 Following the filing of a writ, discovery and careful interrogation would have disclosed what is now known. The corporate owner of Bridie O'Reilly's hotel has been discovered. The fact that the first defendant was employed by a different corporation has been discovered. Simple interrogatories asking the corporate owner of Bridie O'Reilly's hotel whether the first defendant was an employee or not would have put the plaintiffs well and truly in the picture as to the identity of the actual defendants to their common law claim.
39 In the absence of any affidavits from Allan McMonnies or Mr Murati there is no explanation of any kind at all whether any of those steps were taken. What the plaintiffs claim has been left with are affidavits from Donald and Colleen which do not disclose any occasion on which they conferred with either Allan McMonnies or Mr Murati to give instructions in relation to their own cases and that of Kyle, whether they were informed of the limitation period, and what steps Allan McMonnies or Mr Murati had taken to determine the potential liability of the corporate owner of Bridie O'Reilly's hotel, whether the first defendant was the deceased's actual assailant, and whether he was an employee of the corporate owner of Bridie O'Reilly's hotel or of some other corporation.
40 The evidence of the plaintiffs collapses down into a simple proposition. Allan McMonnies, or Mr Murati, was awaiting the outcome of the Inquest to determine whether there was a basis for a common law claim. However, even after the Coroner handed down his record of investigation into the death of the deceased, nothing was done until the writ was filed on 28 August 2009. At that stage, the first defendant was identified, but not the corporate owner of Bridie O'Reilly's hotel. It was only when the statement of claim and the amended statement of claim were filed that efforts had been made to discover the corporate owner Bridie O'Reilly's hotel and whether the first defendant was an employee of the corporate owner of Bridie O'Reilly's hotel or was an employee of some other corporation.
The Relevant Authorities
41 The legal principles relevant to this application which I must apply in considering the plaintiff's application can be summarised as follows:
· The onus in establishing that it is just and reasonable to grant the plaintiff's application is borne by the plaintiff.[5]
[5]Bell v SPC Ltd [1989] VR 170 at 174-175; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; Richards v State of Victoria & Ors [2001] VSC 52 at paragraph 11, and Delai (supra) at paragraph 21.
· If the defendants place evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendants evidence does not demonstrate prejudice.[6]
[6]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South Regional Health Authority (supra) at 547.
· The competing considerations referred to in section 27L are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that is just and reasonable to extend the limitation period.[7]
[7]Bell (supra) at 125-126; Tsiadis (supra) at 123, and Delai (supra) at paragraph 21-22
· The delay referred to in section 27L(1)(a) is the delay between the accrual the cause of action and the making of the application for an extension of time.[8]
[8]Koumorou v The State of Victoria [1991] 2 VR 265 at 271; Repco (supra) at 11 and Delai (supra) at paragraph 22.
· The plaintiff cannot avoid any delay period resulting from the conduct of her legal representatives being considered as delay for which they are liable.[9]
[9]See paragraph 49.
· If the defendants place evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, the prejudice of which account can be taken is prejudice – which has come about by reason of a lapse of time involved in that period of delay;[10] which can be established by the defendants; the extent to which there is likely to be prejudice, and mere delay in itself, when it is inordinate, may be taken as evidence of prejudice.[11]
[10]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622.
[11]Tsiadis (supra) at 123-124; Delai (supra) at paragraph 23, and Brisbane South Regional Health Authority (supra) at 551.
· The test of prejudice must not include whether an order extending time would make the defendants any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendants’ potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendants.[12]
· In relation to the passage of time in connection with resulting prejudice, section 27L (2)(a) expressly requires the considerations enumerated in subsection (1) to be treated in the following way – for the purpose of avoidance of doubt, that the considerations just mentioned include whether the passage of time has prejudiced a fair trial of the claim.
[12]Brisbane South Regional Health Authority (supra) at 554-555.
42 Both Mr Hooper and Mr Broadbent criticised the conduct of Allan McMonnies. Essentially, their criticism was based on the inaction of Allan McMonnies in failing to take any steps to investigate and prosecute the plaintiffs common law claim, and the failure of the plaintiffs and Allan McMonnies to explain the delay between the time when he was given instructions by Donald and Colleen and the time when the writ was issued on 28 August 2009.
43 That submission brings into play whether the availability of an alternative cause of action against the negligent solicitor is a relevant consideration in the exercise of the discretion to extend time. It was considered in Tsiadis v Patterson.[13] Buchanan JA, with whom Ormiston and Callaway JJA agreed, said:
“In my opinion it is appropriate in determining an application pursuant to s 23Aof the Act to have regard to the ability of an applicant to recover damages from a former solicitor whose default has made the application necessary. The existence of a cause of action against a solicitor may enable the respondent to recover compensation partly as a consequence of the original wrongdoing. That may not be sufficient. An insurance policy availing the wronged person could have a like effect, and yet I do not think such a benefit should be taken into account in the exercise of the discretion created by s 23A of the Act. In my view, the additional element which renders the availability of a cause of action against a solicitor relevant to the exercise of the discretion is that the cause of action arises from the barring of the right of action in respect of which an extension of time is sought. The court is required by the section to have regard to all the circumstances of the case. The prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case, and in my view is one that is relevant to the exercise of the court’s discretion. An applicant with the ability to recover compensation from a solicitor responsible for allowing the limitation period to expire is not relevantly in the same position as an applicant who has no such prospect."[14]
[emphasis added]
[13](2001) 4 VR 114.
[14]At 121, and Arisoy v Yoogalu Pty Ltd t/as Harvey Norman [2012] VSC 631 paragraph 36-38.
44 However, Buchanan JA sounded a cautionary note when he added:
"The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith J in Repco Corporation Ltd v Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action."[15]
[15]At 121-122.
45 The principle enunciated in Tsiadis was applied by Forrest J in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[16] and Beach J in Delai v Western District Health Service.[17]
[16][2007] VSC 517, at paragraph 86.
[17][2009] VSC 151, at paragraphs 26-27.
46 Both Mr Hooper and Mr Broadbent also referred me to the observations made by McHugh J in Brisbane South Regional Health Authority in connection with delay where it is inordinate :[18]
"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."[19]
[18]Supra.
[19]at 551.
47 The similar observations were made by Buchanan JA in Tsiadis:[20]
"In my opinion para (b) of s 23A(3) does not limit the court’s attention to prejudice which is present or is likely to occur in the sense that it is more probable than not that it will occur7 and the word ‘extent’ in the paragraph requires the court to have regard to the degree to which prejudice is likely to eventuate. Thus, while it may be concluded that Mr Tsiadis could not have given direct evidence as to the circumstances of the alleged accident, the possibility that he may have been able to give evidence as to the layout of the reception centre, whether like accidents had occurred in the course of the business and the way in which its business was conducted should have been considered. Similarly, the potential difficulties in obtaining evidence from Mr Christopoulos should have been considered. Of course the influence of potential prejudice will decrease as its likelihood is reduced." [21]
[20]Supra.
[21]at 120.
Discoverability
48 I am in little doubt that Donald and Colleen knew that the deceased died on 31 August 2003, that his death was caused by the fault of the defendant, and that the injuries which they suffered and the claim available to Kyle justified bringing the proceeding.[22]
[22]Section 27F (1) (a)-(c).
49 Firstly, Donald and Colleen knew that the deceased had been at Bridie O'Reilly's hotel on 30 August 2003, and that he had been assaulted at the hotel. That information was provided to them by McCallum, and otherwise would have been available to them had they undertaken all reasonable steps to ascertain a number of matters relevant to the formulation of the common law claim and the persons against which it would be brought.
50 Secondly, Colleen instructed Allan McMonnies to bring a common law claim. Although she did not say when she gave those instructions to Allan McMonnies, it is probable those instructions were given within the limitation period. She could only have given those instructions if she had a well founded belief that the death of the deceased was caused by the fault of the corporate owner of Bridie O'Reilly's hotel, and the first defendant. I am satisfied that their level of knowledge of fault is consistent with what Kaye J referred to in Spandideas.
51 Section 27F (1) refers to the first date that the person "ought to have known" of all of the facts referred to in paragraphs (a)-(c). Subsection (2) defines the ambit of what "ought to know" encompasses in the following terms:
" 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.”
52 I return to the observations I made in paragraph 33 above, that if those simple and routine steps had been taken then Donald and Colleen would have not only known of the facts referred to in paragraphs (a)-(c), but it is likely they would also of known of the identity of the proposed defendants sufficient to have been able to file a writ within the limitation period.
53 I am satisfied that the cause of action available to Donald and Colleen was discoverable by them within the limitation period referred to in section 27D.
54 I am likewise satisfied that it was discoverable by Kyle within the same limitation period because of the effect of section 27J (3). Donald and Colleen have not said anything material regarding the domestic circumstances of Kyle or regarding who the capable parent or guardian of Kyle was at the time when the writ was filed nor who that person is now. The only evidence in that respect is from the writ itself which discloses that Donald is Kyle’s litigation guardian.
55 If Donald and Colleen collectively have the knowledge which I have found they must have had, when regard is had to the question of discoverability under sections 27D, and in particular section 27F, it is difficult to accept that Kyle also did not also have that degree of knowledge and is subject to the relevant limitation period by reason of section 27J (3).
The Submissions of the Defendants
56 There was a commonality in the submissions made by Mr Hooper and Mr Broadbent. They can be summarised as follows:
· The causes of action relied upon by Donald and Colleen were discoverable within the limitation period.
· Kyle's cause of action was discoverable within the limitation period.
· There is no explanation for the delay between the time when the cause of action was discoverable and the time when the writ was issued on 28 August 2009.
· Even if the cause of action and the identity of the proposed defendants was discoverable only after the coroner handed down his record of investigation into the death of the deceased there is an unexplained further delay from 3 August 2006 to the time the writ was filed on 28 August 2009.
· Each of the defendants can point to specific prejudice.
· Each of the defendants rely upon the prejudice referred to by McHugh J in Brisbane South Regional Health Authority.
57 Both Mr Hooper and Mr Broadbent referred to section 27L which contains the matters to be considered in determining an application for extension of the limitation period. It is in the following terms:
"(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2) To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
(3) In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(4) In the application of this section to a cause of action that arises under Part III of the Wrongs Act1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances."
58 In relation to subsection (1) (a), the length of delay between the death of the deceased on 31 August 2003 and when the writ was filed on 28 August 2009 amounts is three days short of six years. There are no reasons advanced for the delay, save for the almost irresistible conclusion that it was as a result of the failure of Allan McMonnies and/or Mr Murati to file any affidavits explaining the delay.
59 I will return to subsection (1) (b) and subsection (2) later in these reasons. In relation to subsection (1) (c), there is no evidence to suggest that the defendants had available to them material which they could have or should have made available to the plaintiff for the purpose of the plaintiff ascertaining facts which were relevant to the causes of action relied upon by the plaintiffs. Again, nothing is said about that by the plaintiffs themselves, and if there was material of that kind in the position of the defendants, then I would have expected that Allan McMonnies or Mr Murati would have sworn affidavits specifically pointing to a failure by the defendants to meet their obligation under subsection (1) (c).
60 In relation to subsection (1) (d), I have already dealt with the disability and legal incapacity of Kyle in paragraphs 54-55 above.
61 In relation to subsection (1) (e), I have already dealt with the time within which the cause of action was discoverable by the plaintiffs in paragraphs 48-53 above.
62 In relation to subsection (1) (f), I have already dealt with whether the plaintiff acted promptly and reasonably. Quite simply they did not. Donald and Colleen say that they were basically in the hands of Allan McMonnies and Mr Murati whose inaction between when instructions were given to Allan McMonnies two or three months after the death of the deceased and the filing of the writ on 28 August 2009 is not explained, and is quite extraordinary. I make similar observations in relation to subsection (1) (g). There is no evidence of what the plaintiffs have done relevant to obtaining medical advice (that applies only to Donald and Colleen) and what steps they have taken in relation to obtaining legal advice regarding the strengths and weaknesses in their causes of action, and whether this is a proceeding which would require expert evidence on whether they have obtained it. The affidavits relied upon by the plaintiffs contained scant detail on most of the matters which one would expect affidavits to condescend to.
63 I will now return to subsection (1) (b). The primary submission made by both Mr Hooper and Mr Broadbent was based upon Brisbane South Regional Health Authority, although, Mr Hooper did refer to evidence of specific prejudice to the second defendant which has occurred as a consequence of the effluxion of time since the cause of action arose.
64 Mr Broadbent summarised the prejudice to the first defendant as follows:
· The time which has passed since the cause of action arose on 31 August 2003 - given that there will be a trial on 25 November 2013 - is 10 years and 3 months, or as 9 years and 7 months to the date of the hearing of the application before me.
· The problems facing the first defendant in locating witnesses given that the effluxion of time will make that difficult, and furthermore, the effluxion of time is very likely to have played on the recollections of the witnesses of the events which occurred on 30 August 2003. The comments of the Coroner provide some insight into that difficulty.
· The first defendant was employed by Nu Force Security. His PAYG payment summary for the period from 1 July 2003 to 30 November 2003 discloses that he was employed by a company known as New Force North Pty Ltd. After he was served with the writ his solicitors undertook searches of Nu Force Security to find that it is a business name registered in the name of Meran Rise Pty Ltd. An attempt by his solicitors to determine whether a policy of insurance exists in the name of Nu Force Security, New Force North Pty Ltd and Meran Rise Pty Ltd has disclosed that Meran Rise Pty Ltd was deregistered on 5 October 2006, however, another search reveals that it is now registered. I am not sure what to make of the legal person who was the employer of the first defendant, but in any event his solicitors have not unable to discover whether a policy of insurance exists covering him. Allan McMonnies wrote to the solicitors for the second defendant by letter dated 31 January 2012 informing them that his searches revealed that the insurer for the second defendant went into liquidation in 2009. It should be noted that the first defendant's employer (whoever that was) paid for his legal representation at the Inquest.[23]
· The first defendant now suffers from depression which had its onset after he was served with the writ.[24] He said not been able to move on with his life now that he faces the plaintiffs proceeding.
[23]Paragraphs 14 and 15 of the defendant affidavit sworn 18 June 2013 and exhibits "EZ 4"-"EZ 7".
[24]Paragraph 25-26, and the affidavit of his mother, Antoinette Zakkour sworn 31 January 2013.
65 Mr Hooper summarised the prejudice to the first defendant[25] as follows:
[25]The third defendant is said to have been engaged by the second defendant to provide crowd control services and was the employer of the first defendant.
· He made the same submissions as Mr Broadbent in relation to the effluxion of time, difficulty locating witnesses and the part the effluxion of time would play on their memories, and the fact that Meran Rise Pty Ltd has no insurance cover.[26]
· Although, there is confusion about the position of New Force North Pty Ltd in connection with the first defendant, and whether it was his employer or not, what is clear is that it was wound up with the finalisation of the winding up occurring on 30 June 2006. The liquidator, Barry Keith Taylor, is deceased and the books and records of New Force North Pty Ltd have been destroyed.[27]
· The position of Meran Rise Pty Ltd and New Force North Pty Ltd were clarified by Mr Lucas Gordon, who was a director of Meran Rise Pty Ltd,[28] in a letter dated 19 December 2012. He said that he has no records, but they are in the posession of someone else. He confirmed that Meran Rise Pty Ltd had insurance. He said nothing about it no longer having insurance. He confirmed that New Force North Pty Ltd has been liquidated.[29]
[26]Mr Hooper referred me to the affidavit of Ms Costaras sworn 18 January 2013, and in particular, Exhibit "DHC5" which refers to letters from DMA Insurance Brokers Pty Ltd dated 21 September 2011 and BRI Ferrier dated 16 September 2011 advising that the insurer for Meran Rise Pty Ltd known as Trans-Pacific Insurance Corporation went into liquidation, and that indemnity offered to Meran Rise Pty Ltd was withdrawn. BRI Ferrier was appointed liquidator on 23 April 2009.
[27]The affidavit of Ms Costaras sworn 18 January 2013, and in particular, Exhibit "DHC15".
[28]The affidavit of the first defendant, and in particular, Exhibit "EZ 5".
[29]The affidavit of Ms Costaras sworn 18 January 2013, and in particular, Exhibit "DHC18".
Disposition
66 On the basis of the evidence and my analysis of it, I make the following findings:
· The deceased died on 31 August 2003.
· The causes of action open to the plaintiffs became known to them on the death of the deceased, and certainly within a relatively short period following his death, and most certainly by the time the plaintiffs sought advice from Allan McMonnies instructing him to bring a common law proceeding for their benefit.
· The causes of action open to the plaintiffs were discoverable within the limitation period.
· There is no explanation for the plaintiffs’ delay in not filing the writ before the relevant limitation period ran its course. The failure to explain the delay can be fatal, and that was considered to be the case by Macaulay J in Arisoy.[30] His Honour observed that granting an extension of time is an indulgence and that the lack of any clear explanation for the delay, when combined with all other factors, was fatal to the case before him.[31]
[30]At paragraphs 26-29 and 41.
[31]Paragraphs 26-29 and 41.
· The reason why there was delay appears to be reasonably clear, and that is, it was the failure of Allan McMonnies to take any step to investigate the substance of the common law claim which the plaintiffs wanted to bring, and to be in a position to file a writ within the limitation period, or alternatively, to seek an extension of time before the limitation period expired.
· Time commenced running against the plaintiffs from 31 August 2003 when the cause of action accrued and continued running after the writ was filed on 28 August 2009. It stopped running against them on 24 August 2012, at the time when Judge Davis ordered that the issue of extension of time would be heard before the trial of the proceeding. That order stood as if it were the summons seeking an extension of time. The effluxion of time by then amounted to about 8 years and 3 months.
· Both the defendants are seriously prejudiced by the loss of insurance cover. If the proceeding had been brought in a timely way before 2009 (say five years following the accrual of the cause of action) then both defendants would have had insurance cover. Furthermore, although Meran Rise Pty Ltd appears now to be registered, it is not trading, and New Force North Pty Ltd has been liquidated.
67 I think that the defendants have suffered irreparable prejudice. Neither are now insured. That position cannot be rectified. It affects the first defendant more than the second defendant in the sense that the second defendant appears to be a shell which is not trading and which has no assets. That appears to be the effect of the evidence as I read the relevant exhibits to the affidavits of first defendant and Ms Costaras. It leaves the first defendant personally exposed in circumstances where he now does not have an insurer, or, for that matter, an employer which can pay for his legal costs as was the case when he was represented at the Inquest.
68 Furthermore, the delay is inordinate. The defendants now face the very issues referred to by McHugh J in Brisbane South Regional Health Authority. The effluxion of time in this case has the potential to result in to witnesses not being found, documents lost, memories of witnesses being so seriously affected as to reduce or destroy their recollection of relevant events, and ultimately the loss of evidence with the parties not knowing that it ever existed. I think this is a case where the reasoning of McHugh J must be applied because the effluxion of time has inevitably diminished the significance of known facts and circumstances. Their relationship to the causes of action relied on by the plaintiffs are no longer as apparent as it would have been had the proceeding had been brought in a timely way.
69 Additionally, I think this is a glaring example of where the inaction of Allan McMonnies appears to have caused the delay. I have no option but to accept the plaintiffs evidence that they were ignorant of what was going on even at the Inquest and were reliant upon advice given by Allan McMonnies which was apparently not forthcoming. On the basis of the evidence before me the plaintiffs appeared to me to have a cause of action against Allan McMonnies which will enable them to recover compensation for the original wrongdoing, that is, the assault on the deceased which led to his death.
70 I am acutely aware of the cautionary note sounded by Buchanan JA in Tsiadis: that the liability of Allan McMonnies will be determined on establishing liability on the part of the original wrongdoer, by reference to the terms of Allan McMonnies retainer, and what instructions were given by the plaintiffs to Allan McMonnies. However, in the absence of any evidence from Allan McMonnies or Mr Murati, the only conclusion I can reach is that there is some likelihood that the first defendant assaulted the deceased wrongfully resulting in injury to Donald and Colleen, and loss to Kyle. It may be a proceeding with liability problems but it has potential.
Conclusion
71 For the reasons which I have set out above, I refuse the plaintiffs application to extend time with the result that it must follow that the plaintiffs proceedings must be dismissed with costs.
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