Rossignuolo v Nightingale Packers Pty Ltd
[2024] VCC 1540
•4 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-05368
| MICHAEL ROSSIGNUOLO | Plaintiff |
| V | |
| NIGHTINGALE PACKERS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July, 30 August 2024 | |
DATE OF JUDGMENT: | 4 October 2024 | |
CASE MAY BE CITED AS: | Rossignuolo v Nightingale Packers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1540 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of Actions – extension of time application
Legislation Cited: Limitation of Actions Act 1958, s23A; Accident Compensation Act 1985
Cases Cited: Hayes v Transport Accident Commission [2010] VSCA 104; Marceta v Efandis [2016] VSC 265; Sparkes v Hylemit [2016] VSC 453; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Inc v ADC [2016] 258 CLR 134; Welsh v Adecco Industrial Pty Ltd& Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Transport Accident Commission v Murdoch [2020] VSCA 98; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Murdoch v Transport Accident Commission [2019] VCC 1137; Van Gerven v Amaca Pty Ltd [2012] VSC 131; Lovejoy v Carp [1999] VSC 223; Millard v Transport Accident Commission [2006] VSCA 29; Bell v SPC Ltd (1989) VR 170; Delai v Western District Health Service & Anor [2009] VSC 151; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Axford v Gray 2013 VSC 664; Holcombe v Hunt & Anor [2017] VSC 666.
Ruling: Leave granted to extend time
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr G J Smith | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr S Smith KC with Ms R Matson | Wisewould Mahony |
HER HONOUR:
Background
1The plaintiff’s cause of action relies on work duties he was required to perform while employed by the defendant between 3 October 2000 and 17 July 2012 (“the period of employment”). Accordingly, the applicable period by which he was entitled to commence a proceeding was six years, which expired on 17 July 2018.[1]
[1]Transcript “T” 3
2On 16 June 2020, the plaintiff’s solicitor served a Form A serious injury application on the defendant, notifying that it sought to bring a claim for recovery of damages for pain and suffering and pecuniary loss for injuries suffered during the course of his employment.
3The serious injury application was served on 6 July 2020, with the response being served on 30 October, denying a serious injury certificate and including a draft defence pleading the statute.[2]
[2]Ms Dodgshun’s 19 July 2024 affidavit, paragraph 17
4Court proceedings were issued thereafter by originating motion. Judge Brookes heard a serious injury application on 14 June 2022. Prior to judgment, the defendant granted a Serious Injury Certificate under both heads.
5On 13 December 2022, the plaintiff’s solicitors filed a Writ to bring proceedings for damages pursuant to s134AB of the Accident Compensation Act (“the Act”) for injuries suffered by the plaintiff whilst working for the defendant, throughout the course of his employment and on 2 October 2008 (“the said date”).
6On 7 August 2023, the defendant filed a defence pleading: “the plaintiff is statute barred from bringing an action against the defendant pursuant to s134(AB) and s135(A/AC) of the Accident Compensation Act and s5 of Limitation of Actions Act”.
7By summons dated 15 July 2024, the plaintiff brought an application for an extension of the relevant limitation period.
8The plaintiff relied on three affidavits[3] and was cross-examined. He also relied upon a number of affidavits sworn by his solicitors at Slater & Gordon (“Slaters”).
[3]Two affidavits related to his serious injury application
9The defendant relied on affidavits sworn by Anna Dodgshun, solicitor for the defendant, on 19 and 30 July 2024. The defendant also relied on an affidavit sworn by Frank Rossignuolo on 22 August 2024.
10In addition, both parties relied on claim documentation, medical reports, and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11The plaintiff is nearly 50, having been born in October 1974. He is married with five children.
12He completed VCE in 1992. That year, his parents bought a farm in Shepparton (“the farm”), and his family moved there. The farm was actually owned by Nightingale, which was his parent’s company.
13After moving to Shepparton, the plaintiff studied accounting at TAFE for about 18 months, and also completed a hospitality course.
14In about 1993 or 1994, he commenced full time work for Nightingale, which grew tomatoes on the farm. His father made all the decisions about running the farm, and the plaintiff did the actual farming and organisational work, such as organising the pickers.
15While working with the defendant, the plaintiff was in charge of growing and managing the crops and controlled the pickers. He did the hands-on physical work of growing the crops.
16Throughout the course of his employment, he was required to perform heavy repetitive lifting of things like large fertilizer bags. He was required to constantly bend and work in a stooped position for extended periods. He dug soil, moved and laid pipes, and operated farm machinery.
17While the plaintiff’s father deposed he ran the basic aspects of the office, but otherwise his accountant managed admin such as WorkCover, etc, it was not the situation that his father’s role was so limited.[4] It extended beyond that. Basically, his father told them whatever they had to do, even though he was a retired public servant who had no experience of growing tomatoes. It was his father’s decision to grow tomatoes on the farm.[5]
[4]Anthony Frank Rossignuolo’s affidavit sworn 22 August 2024
[5]T8
18The plaintiff was given no training to work on the farm, nor were the pickers. They usually had experienced pickers. There was no induction.[6]
[6]T11
19The plaintiff did the irrigating. He never ran the shed, which was run by his brother Joseph. He did the “field stuff” and watched over the pickers. He did not collect the bins.[7]
[7]T12
20Nightingale went into liquidation and was deregistered in about July 2012. The plaintiff bought the assets of Nightingale Farms through MPR Produce P/L and continued trading, growing tomatoes and broccolini, although he did not personally do the hands-on labouring work.
Back pain
21In 2009, the plaintiff started to develop worsening lower back pain.
22He first saw Dr Atkins in about September 2009 and was referred for investigations and medication prescribed. He was also referred to a surgeon, Mr Brighton-Knight, who organised an MRI scan in December 2009.
23Mr Brighton-Knight operated later that year. The plaintiff’s back felt pretty good after that surgery, which eased his leg and back pain. He continued working in his labouring role.
24In about January 2011, he saw Dr Atkins again, as lifting a pipe at work led to a new pain on the left side. He was sent back to Mr Brighton-Knight.
25In about August 2011, he saw Dr Atkins again following lifting something on the farm, and was referred for a CT scan. He saw Mr Brighton-Knight again, who operated on his back in 2011. However, the plaintiff did not get any real benefit from the surgery.
26In his serious injury affidavit, sworn in June 2020, the plaintiff described his ongoing pain and leg problems, leading up to further back surgery at the Royal Melbourne Hospital on 18 February 2020. He detailed his subsequent treatment and symptoms, and the pain and suffering and loss of enjoyment of life consequences at that time.
27He also described his return to work and rehabilitation, and details of his economic loss between 2004 and 2018. He had not worked since about 2016 or 2017. He had intended to continue to work until 65, had he not been injured.
28In a further affidavit in support of his serious injury application sworn in June 2022, the plaintiff updated his treatment, symptoms, and ongoing restrictions.
Extension of time affidavit
29The plaintiff swore an affidavit on 2 May 2024 in support of his application for an extension of time.
30On about 24 June 2019, he conferenced with Nada Breik from Slaters regarding his lower back injury. She then informed him of the six-year limitation period that applied to claims for damages for injuries arising out of or in the course of a person’s employment. She also advised him that the six-year time limit applicable to his lower back injury had expired and informed him of the process for seeking an extension of time.
31To his recollection, it was during this conference he first became aware of the six-year limit.
32He had been previously represented with respect to his lower back injury by another solicitor, Carolyn McInnes. However, he did not recall her telling him of the time limit, nor did he recall her advising him about any time limit expiry or the importance of lodging a serious injury application for the purpose of addressing this issue.
33He could not recall when exactly he retained Ms McInnes. It might have been in early 2017, when she was principal of Footner McInnes Wren.
34He did not seek legal advice earlier regarding his lower back injury, as he was still working and had private health insurance to cover his medical expenses.
35However, by 2016 and early 2017, he was really struggling to work. He was also dissatisfied with the outcome of his second surgery performed by Mr Brighton-Knight and that was why he sought legal advice from Ms McInnes at that time.
36With respect to Ms McInnes’ representation, he understood the following:
(a) he provided her firm with a signed medical records authority dated 16 March 2017;
(b) that by letter dated 22 March, she requested his clinical file from the Tatura Medical Centre;
(c) that by letter dated 14 June 2017, she requested his GP, Dr Atkins, provide a medical certificate for submission with a WorkCover claim; and
(d) that by letter dated 27 June 2017, Dr Atkins stated she had not seen him since 10 August 2015 and needed to do so before providing a certificate.
37Ms McInnes did not assist him to lodge a WorkCover claim then or at any other time, and beyond that described in the above paragraph, he was unaware of any additional work performed by her on his behalf.
38During the period in which Ms McInnes represented him, he was reliant on her expertise and advice to protect his interests with respect to his potential WorkCover entitlements, as well as his potential entitlement to damages.
39To his recollection, Ms McInnes ceased contacting him from the time of his arrest in about early July 2017. He understood it was also about this time she left the firm.
40In cross examination, the plaintiff agreed the first letter he received from Ms McInnes, dated 21 March 2017, contained a reference to WorkCover. He had no idea about WorkCover, “to be honest.” Obviously he received the letter, but honestly he did not lodge a claim “or nothing”. Possibly he did not read the letter properly – he was not sure.[8]
[8]T15
41Whilst the plaintiff initially said there might have been one worker who made a claim during the period of employment, he was not sure when that was. He had no idea of the workers compensation process. He then said he did not know if that worker put in a claim.[9]
[9]T13
42He received a second letter from Ms McInnes, which again mentioned WorkCover. He agreed he received advice about WorkCover twice in three months, but he did not lodge a claim until 2019.[10] He did not lodge a claim when he saw Ms McInnes because he was pursuing a negligence claim against his doctor. He thought she would have done the WorkCover claim then. He did chase her up in the two years before he saw Slaters, but he could not remember when. There was no further contact with her beyond the middle of 2017, because she would not answer her phone.[11]
[10]T16
[11]T17
43Doing the best he could, he did not think he actually spoke to Ms McInnes after he was arrested in July 2017.[12] He confirmed the last time he spoke to her was in July 2017, just before he was arrested. He never called her firm. He had her mobile number.[13]
[12]T18
[13]T20
44He understood that, according to an email from Ms McInnes’ firm to Slaters dated 11 November 2020, his file was transferred to J N Zigouras & Co in September 2017. However, he could not recall any contact thereafter with Ms McInnes or anyone from Zigouras.
45The following few years were challenging for him. In the second half of 2017, he was preoccupied with the criminal charges that had been brought against him.[14] He found this to be very stressful. He pleaded guilty to the charges and as part of his community corrections order (CCO) was required to do four hundred hours of community service.
[14]Drug possession and firearm offences, per the affidavit sworn June 2020
46He did about three hundred or so of those hours before successfully applying for an alteration to his CCO. He was also trying to overcome his drug addiction and come to terms with the guilt and shame he felt about his actions and their impact on his family.
47During that time, his potential legal entitlements for his lower back injury were not at the forefront of his mind. By 2019, the issues associated with his drug addiction and criminal sanctions were under control.
48Furthermore, his lower back symptoms were continuing to deteriorate and had a significant impact on his lifestyle and work capacity. His mother encouraged him to seek further legal advice regarding his lower back injury and that was why he contacted Slaters.
49He did not see another solicitor before 2019 because he was ‘just tired;’ other things were going on in his life at that time, and it just was not at the forefront of his mind. He agreed he did nothing to prosecute a claim for two years until the middle of 2019. He was on a CCO during that time over two years, for four hours a week. He also had a problem with drugs and “just had some mental challenges”. Those two years were pretty stressful for him.[15] In that time, he saw psychologists Phillip Blackwood and Matthew Joseph.[16]
[15]T22
[16]T24
50In re‑examination, the plaintiff confirmed it was very stressful during that period: “…cos I got arrested and it shamed my family, you know what I mean ... drugs and guns and stuff like that ... I pleaded guilty to methamphetamine and cocaine”. He was using methamphetamine.[17]
[17]T24
51He wanted to “keep it [his mental health] under the radar”. He had lost his gun licence when he was arrested. He wanted to get his license back, because he loved to use his gun with the kids on the farm. He did not want any issues when he applied to get his licence back.[18]
[18]T25
52Drugs had been an issue for him for a couple of years, but “mainly seasonal.” He stopped using at the time, then lapsed a little bit, but “now she’s all good”.[19]
[19]T26
53During the entirety of his employment with the defendant, the company was operated by his father, who remains alive and capable of giving evidence.
Solicitors’ affidavits
54The plaintiff’s current solicitor, Joanna Varvarigos from Slaters, swore an affidavit on 26 June 2024.
55On or about 24 June 2019, the plaintiff retained Slaters in relation to his work injuries. He instructed Slaters that, throughout the course of his employment, he was required to perform work duties which involved:
(a) repetitive bending, heavy lifting, and manual lifting;
(b) lifting fertiliser bags;
(c) truck and tractor driving; and
(d) growing crops.
56The plaintiff signed a Worker’s Injury Claim Form during this meeting. The claim was lodged either that day or the following day.
57The claim was rejected in July 2019, and the decision was referred to the Accident Compensation Conciliation Service later that month. On 27 October 2019, a Conciliation officer certified the plaintiff as having taken all reasonable steps to resolve the dispute.
58Given the expiration of his common law limitations period, it was recommended to the plaintiff (who gave instructions accordingly) that he lodge a serious injury application as a matter of urgency, rather than challenge the decision at court or pursue a claim for impairment benefits.
59Ms Bradey of Counsel was briefed to draft the serious injury documents, and arrangements were made for the plaintiff to be examined by Dr Kennedy.
60The plaintiff underwent back surgery in February 2020.
61The plaintiff swore his serious injury affidavit on 11 June 2020, and the application was issued five days later.
62The plaintiff’s instructions were that, prior to contacting Slaters, he had been represented with respect to his lumbar spine injuries by a lawyer named Carolyn McInnes. He was unable to provide much in the way of instructions or details as to where Ms McInnes worked, the period of her representation, or the advice she had given him. However, his instructions were that he did not recollect being informed of the six-year time limit that applied to commencing a claim for damages for his injuries.
63Inquiries revealed Ms McInnes had spent a period of time working for Taylor Preston Lawyers, which was in liquidation as of early February 2020. Further inquiries were made of the Legal Services Board, which was able to provide only very limited material.
64A request was also made of Wren Legal, who advised they had transferred the plaintiff’s file to J N Zigouras in September 2017. Having requested J N Zigouras in February 2022 provide the plaintiff’s file, that firm advised in April that year it did not have the file.
65Ms McInnes is now the principal of McInnes Legal, having operated that practice since about October 2020.
66In April 2024, Slaters wrote to her and requested she advise whether she had in her possession a copy of the plaintiff’s file and whether she had provided him with any written advice.
67In April 2023, orders were made to reinstate the defendant which had by that time become deregistered. There was subsequently an amendment of the pleadings in terms of the proposed Amended Statement of Claim to further particularise the work duties the plaintiff was performing at the time of his injury. An order was sought to make an amendment in those terms.
Ms Alisha Muscara
68Ms Muscara, Senior Practice Leader at Slaters, swore an affidavit in July 2024.
69She detailed Slaters’ handling of the plaintiff’s claim since obtaining the file on or about 24 November 2019, including the preparation of the serious injury application and attempts to obtain the plaintiff’s file from his previous solicitors.
70In terms of the availability of witnesses, a search of the ASIC register performed on or about 17 December 2019 revealed:
(a) the defendant was registered on or about 30 October 2000 and deregistered on or about 17 July 2012; and
(b) one of the directors of the defendant for the entire period of its registration was Anthony Frank Rossignuolo.
71Slaters were instructed that Anthony Rossignuolo is the plaintiff’s father. They were further instructed that Mr Rossignuolo remains alive and available to give evidence at the trial of the plaintiff’s claim.
72In Ms Muscara’s most recent affidavit sworn 26 July 2024, she deposed that on or about 25 July 2014 her legal assistant spoke with John Zigouras, who informed her that his firm does not have a file, or any records or documents, with respect to the plaintiff. He also informed her that no-one from his firm knows or recollects speaking to the plaintiff.
Mr Curt Cauchi
73Mr Cauchi, solicitor from Slaters, swore an affidavit on 29 August 2024. He then had the care and conduct of the matter while Ms Muscara was on sick leave.
74As a result of a subpoena served on the plaintiff’s previous firms, letters of advice from Ms McInnes to the plaintiff, dated 21 March and also 14 June 2017, were obtained and exhibited in his affidavit.
75In her letter of 27 March 2017, under the heading “Our Advice to You”, Ms McInnes advised:
“We’ve also suggested you make an application for WorkCover. Given the physical nature of your work, it is possible that your back injury arose out the course of employment. If the claim is accepted, you may qualify for loss of earnings and importantly an impairment benefit. To pursue this, we have enclosed a WorkCover claim form which you should submit with a certificate from your treating doctor. Given the delay in lodging the claim, we anticipate WorkCover will not accept the claim outright and may fight you on this. This is not, however, a reason not to lodge the claim and we recommend you do so”.
76In her further letter of 14 June 2017, under the heading, “Our Advice”, following a discussion about a potential for a negligence claim against his former surgeon, Ms McInnes advised:
“Otherwise, you should lodge a claim for WorkCover given the nature of your duties on the farm. Your treating doctor would need to be supportive that you had suffered an injury arising out of the course of your employment. Given that you were not complying with the lighter lifting restrictions suggested by Mr Brighton-Knight in 2009, in the period up to 2011, we could put a case that your injury and incapacity is work-related.
If your claim is accepted, we will need to show incapacity arising from the injury. You say that your earnings have dropped over time due to the injuries and the need to engage staff to take over many of your duties. Can you please provide us with tax returns showing this.”
77J N Zigouras emailed the plaintiff’s solicitors on 29 August 2024, confirming that they do not have a file in this matter and have so advised the parties.
Defendant’s affidavit evidence
Ms Anna Dodgshun, defendant’s solicitor
78Ms Dodgshun, partner at Wisewould Mahony, swore her first affidavit on 19 July 2024 in which she provided background details of the claim and proceeding. The claim form, dated 24 June 2019, was received by the insurer the following day. By letter dated 23 July 2019, EML rejected the plaintiff’s claim.
79On 25 July 2019, the plaintiff made a request for conciliation to challenge that decision. On 27 October 2019, a conciliation outcome Certificate of General Dispute was issued.
80The serious injury application was served on 6 July 2020, with the response being served on 30 October, denying a serious injury certificate and including a draft defence pleading the statute.
81An originating motion was issued by the plaintiff and the hearing listed on 14 June 2022, with a certificate ultimately being granted prior to receiving judgment.
82The plaintiff filed a damages writ on 13 December 2022, which was served over six months later on the defendant on 27 June 2023.
83By letter dated 4 August 2023, the plaintiff was provided with a copy of the orders of 17 and 20 April 2023 regarding the re-instatement of the defendant company, which had previously been in liquidation and deregistered.
84Ms Dodgshun wrote to the plaintiff’s solicitors regarding the upcoming hearing date and their application to extend the limitation period on 28 August and 7 December 2023; and 10 April, 23 April, and 27 May 2024.
85On 5 July 2024, Wisewould Mahoney was served a copy of the plaintiff’s affidavit, sworn 2 May 2024, which set out his reasons for delay.
86On 4 and 17 July 2024, Ms Dodgshun wrote to the plaintiff’s solicitors asking, among other things, whether they had made contact with McInnes Legal regarding the plaintiff’s file, and whether they intended to subpoena that file.
87On 18 July 2024, she was served with copies of three subpoenas filed by the plaintiff’s solicitors on 9 July 2014. The subpoenas were addressed to Footner Wren Legal, JM Zigouras & Co, and McInnes Legal.
88Ms Dodgshun swore a further affidavit on 30 July 2024, in which she deposed to her conversation with Mr Rossignuolo.[20]
[20]Mr Rossignulo’s affidavit, sworn 22 August 2024, is in identical terms
89Ms Dodgshun telephoned Carolyn McInnes of McInnes Legal on 29 July 2024, who said:
(a) she was unaware the plaintiff had a s23A application on foot and that it was listed on 30 July 2024;
(b) Slaters had only written to her once in April 2024 and had not attempted to make telephone contact with her;
(c) she had recently received a subpoena from Slaters;
(d) she remembered the plaintiff, because she had acted for his brother-in-law in a serious injury application;
(e) when she saw the plaintiff, his injury was already “old and he had seen her primarily because of his botched surgery with Dr Brighton-Knight”;
(f) it was a practise to write to clients after meeting with them, and that correspondence contained advice about the limitation period, but she no longer has correspondence or advice to the plaintiff, as it was sent from Footner McInnes Wren Lawyers to Zigouras Lawyers;
(g) she was going to provide the file transfer documents she had in her possession or electronically to the Court to answer the subpoena.
Anthony Rossignuolo
90Mr Rossignuolo, the plaintiff’s father and former director of the defendant, swore an affidavit on 22 August 2024. He is presently aged seventy-nine.
91He purchased the farm at 2210 Rushworth Road, Tatura (“the farm”) as a hobby farm and had never intended on being a farmer. He had had a good job as a public servant.
92The plaintiff and his brother, Joseph, began working the farm to grow tomatoes in about 1993.
93The defendant company was formally registered in 2000. As to records and documents that might have existed:
(a) in the early days of the farm, Michael and Joseph might have had thirty to forty casual staff to assist them. There were a couple of permanent staff in the late 1990s, but this was not the case early on, as the bulk of the staff were casual;
(b) when they did trellising of tomatoes, they could have up to one hundred staff, with some of the permanent staff running machines, about twenty people working in the shed, forty to fifty seasonal staff and later on, when growing gourmet and cherry tomatoes, sixty to seventy seasonal staff;
(c) he ran the basic aspects of the office, but otherwise his accountant managed administration, such as WorkCover insurance, payments to the ATO, and superannuation payments for staff;
(d) most of the seasonal workers were backpackers who were paid with cash after they submitted a group certificate. He had to draw a cheque and calculate their wages each week. Each worker’s records were kept within his filing system;
(e) at the time the farm was running, he believed there were records regarding staffing and items purchased for the farm. Everything was paid for by cheque and he used to pay all the bills; for example, expenditure was divided into categories such as labour, fertiliser, petrol, et cetera.
(f) he had all the receipts of everything paid out, kept a breakdown of costs and items on his computer, and provided a printout for his accountant to manage;
(g) documentation had to be kept, as GST was claimed every three months and group certificates had to be retained for auditing purposes (the business did get audited on a number of occasions).
Legislation
94Section 23A of the Limitation of Actions Act (LAA) provides:
“23A Personal injuries
(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.”
95Section 23A(2) of the LAA empowers a court to extend the limitation period within which an action for personal injury may be brought. The Court must be satisfied that it is “just and reasonable to do so”.
96In determining whether it is so satisfied, s23A(3) of the LAA requires that the Court have regard to all the circumstances of the case, including:
“(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 of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he 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;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
Legal principles
97Limitation periods are enacted as a matter of public policy and are founded on the proposition that delay produces a general deterioration in the quality of justice.[21]
[21]Per Beach JA in Marceta v Efandis [2016] VSC 265; per J Forrest J in Sparkes v Hylemit [2016] VSC 453 at paragraph [33]
98In Brisbane South Regional Health Authority v Taylor,[22] McHugh J described the reasons for the limitation regime:
“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 … 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.
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”
[22] (1996) 186 CLR 541 (“Brisbane South”) at paragraphs [551]-[552]
99The onus is on the plaintiff to satisfy the Court that it is “just and reasonable” to extend the period. As McHugh J stated in Brisbane South:[23]
“A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”
[23] (supra) at 553
100In Prince Alfred College Inc v ADC,[24] the High Court identified two fundamental propositions established by its decision in Brisbane South which guide the exercise of the Court’s discretion on an application for an extension of time:
“First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time.
The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision.
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.”[25]
(citations omitted)
[24] [2016] 258 CLR 134 at paragraphs [99]-[100]
[25] Brisbane South (supra) at paragraphs [544], [549]-[550] and [556]
101In Brisbane South, McHugh J also said:
“The justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced.
… The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.”[26]
[26] Supra at paragraph [555]
102In Arisoy v Yoogalu Pty Ltd,[27] Macaulay J set out the rationale for limitation periods: that litigants were entitled to expect finality in litigation and an end to their liabilities, and that there was an important policy rule behind the limitation legislation:
“In this context, what was said by Ipp AJA in Itex Graphix Pty Ltd v Elliott has particular cogency:
The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts.
…
The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament.”[28]
[27][2012] VSC 631
[28]Arisoy at paragraph [27]
103In Welsh v Adecco Industrial Pty Ltd& Ors,[29] T Forrest J conveniently set out the applicable legal principles in extension of time applications:
“The principles that apply to this application are uncontroversial:
(a) The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[30]
(b) Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.
(c) The considerations referred to in s 23A(3)(a) and (b) of the Act are not to be weighed against each other; the Court must endeavour to ‘synthesise’ the competing considerations ‘in arriving at a conclusion that account of them all’.
(d) The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.
(e)Relevant prejudice to a defendant is that which actually occurred by reason of the delay, as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period.
(f)The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.”
[29] [2017] VSC 44
[30] Per Toohey and Gummow in Brisbane South (supra) at paragraph [547]
104In Tsiadis v Patterson,[31] Buchanan JA, with whom Ormiston and Callaway JJA, agreed, said:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”
[31] [2001] VSCA 138 at paragraph [33]
105The considerations referred to in s23A of the LAA are not to be weighed against each other. The Court must instead endeavour to synthesise the competing considerations in arriving at a conclusion that takes account of them all.[32]
[32]Tsiadis v Patterson (supra), Welsh v Adecco Industrial Pty Ltd & Ors (supra) and Transport Accident Commission v Murdoch (supra)
106The consequences to an applicant in not being able to bring a proceeding for a time barred cause of action are thus relevant – albeit they must be weighed in the synthesis with any consequences to a respondent in permitting a time barred claim to proceed.[33]
[33]Transport Accident Commission v Murdoch [2020] VSCA 98
107In consideration of the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Limited,[34] J Forrest J stated:
“… in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. … .”
[34] [2007] VSC 517 (“Gordon”) at paragraph [79]
108Finally in the context of this case, there is the issue of the weight if any to the cause of action the plaintiff may possess against his solicitors for their conduct of his claim.
109The right to sue his former solicitor is a relevant consideration in an application for an extension of time.[35] In Tsiadis v Patterson, Buchanan JA stated:
“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.”[36]
[35]Per Buchanan JA in Tsiadis v Patterson (2001) 4 VR at paragraph [122]
[36]4 VR 114 at 122, paragraph [28]
110As J Forrest J stated in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:
“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against solicitors, as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms, including diminution in the value of the claim, as well as any added costs and the complexity of the proceeding against the former solicitor.”[37]
[37]At paragraph [86]
Overview – Is it just and reasonable to extend time?
111The granting of an extension of time requires “synthesising” the relevant factors set out in s 23A of the Act. In exercising its discretion, the Court must be satisfied it is just and reasonable to do so.
112The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[38] He therefore has “the positive burden of demonstrating that the justice of the case requires the extension”.[39]
[38]Bell v SPC Ltd (1989) VR 170 at paragraphs [174]-[175]; Brisbane South (supra) at paragraph [547]
[39] Brisbane South (supra) per McHugh J at paragraph [553]
Section 23A(3)(a) – length and reasons for delay
113The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.[40]
[40]Delai v Western District Health Service& Anor [2009] VSC 151 at paragraph [22]
114From the defendant’s perspective, as the application to extend time was finally made in the middle of 2024, “on any view there was an extension of some six years beyond when the cause of action was extinguished in 2018”.[41]
[41]T26
115However, counsel for the plaintiff submitted the length of delay was not particularly long, being a period of only twenty-three months from July 2018 to 16 June 2020, when the serious injury application was served. The response of 30 October 2020 denying a certificate also included a Draft Defence pleading the plaintiff was barred from bringing an action against the defendant pursuant to Section 5 of the LAA.[42]
[42]Ms Dodgshun’s July 2024 affidavit at paragraph 17.
116For present purposes, I accept that the making of the application for an extension of time is upon the submission of the s134AB serious injury application to the VWA in June 2020.[43]
[43]See T Forrest J in Welsh v Adecco Industrial Pty Ltd& Ors [2017] VSC 44 at paragraph [6(d)]
117The relevant delay is therefore nearly 2 years, not 6 years as the defendant argued.
Reasons for delay
118The defendant’s principal submission was that the plaintiff should not, on a consideration of the factors in s 23A, be granted an extension of time because it is not just and reasonable to do so, principally having regard to his failure to take diligent action to prosecute his rights.[44]
[44]T34
119The plaintiff has been aware of his rights since the middle of 2017, albeit only for workers compensation. If he had attempted to contact his solicitor or another legal practitioner, that solicitor would have given him advice about common law entitlements and the limitation period.[45]
[45]T33
120It was submitted the plaintiff “fell at the preliminary hurdle”, which was justifying why he was an exception to the six-year time limit rule established by the legislation. He had been far from diligent in protecting his own interests. Having initially sought advice in 2017 and did not follow it up with Ms McInnes or contact another solicitor.[46]
[46]T34
121There was also a further delay when “absolutely nothing was done” from the later part of 2022 until the application for an extension of time was finally issued in mid-2024.[47]
[47]T34
122It was submitted Ms McInnes’ correspondence, or lack thereof, “should have rung alarm bells”, as should the fact that the plaintiff had two bouts of back surgery, that there was very much potential for a common law claim against the defendant.[48]
[48]T30
123Further, it was submitted that the plaintiff’s explanation that he was just too affected by other things “made absolutely no sense”; that he was only doing four hours of community work a week; and seeing a psychologist on an indeterminate number of occasions during that time.[49]
[49]T31
124The plaintiff’s case was that he was not aware of the six-year limitation period before seeing Slaters in June 2019.[50] He saw Ms McInnes in relation to a medical negligence claim as he has deposed and her correspondence to him confirms. Prior to 2017, he did not seek legal advice because he was working and also because he had private health insurance.
[50]T37
125There is no evidence that the advice given by Ms McInnes included time-limited advice or advice regarding prospects for a damages claim under the Accident Compensation Act 1985:
(a) her letters of advice, dated 21 March and 14 June 2017 are absent any time-limited advice;
(b) her handwritten file note of the conference with the plaintiff on 15 March 2017 failed to record any mention of any time limit having been given;
(c) the plaintiff’s evidence is that he cannot recall being given any time-limited advice.
126At the time he saw Ms McInnes in March 2017, the plaintiff had psychological issues, issues with drugs and criminal charges, and that was “also going to play into what sort of attention the plaintiff is paying to the throw away paragraphs about lodging a Workcover claim.”[51]
[51]T38
127I accept that the plaintiff first became aware of the six-year limitation period when he saw Slaters in June 2019. In 2017, Ms McInnes in 2017 did not give him any advice about his common law rights or the expiration of the limitation period. The focus of her advice was on a negligence claim against the plaintiff’s surgeon and in that context, she made only brief references to a possible Workcover claim; nothing more.
128I accept also that in 2017, the plaintiff was focussed on the criminal charges he was facing and for which he was arrested in July that year. Around that time, he attempted to contact Ms McInnes but was not successful, having only her mobile number which she did not answer.
129From 2017 to June 2019, the plaintiff had issues with addiction. This and the criminal charges impacted significantly on his relationship with his family – “shaming” as he described with visible distress in the witness box in re-examination. Although it was for only four hours a week, he also had commitments under the CCO.
130I accept that by 2019 these issues were under control.
131In all the circumstances, I am satisfied the plaintiff has provided a reasonable explanation for his delay; a delay of only 23 months.
ss3(e) – How promptly the Plaintiff acted upon learning of the potential cause of action
132While the defendant submitted the plaintiff did not act promptly and reasonably once he knew that the act or omission of the defendant might be capable of giving rise to an action for damages, that submission was based on the argument that there was a delay of 6 years until an application for an extension was made – a submission I have rejected.
133The true situation was that, having engaged Slaters and being advised by them in June 2019 of his potential cause of action, the plaintiff had done all that was reasonably practicable in the circumstances.
134Any further delay between his retention of Slaters in June 2019 and the lodgement of his serious injury was a result of:
(a) time incurred preparing his application, including obtaining medico-legal evidence at counsel’s request and the time taken for counsel to draft the serious injury affidavit and other documents;
(b) the plaintiff’s third spinal surgery in about February 2020.
135It cannot be said that once becoming aware of his common law rights, the plaintiff unduly delayed the lodgement of his serious injury application.
136In the circumstances, I accept the plaintiff acted appropriately upon becoming aware of his rights to bring common law proceedings and that minimal fault rested with him for not knowing of his entitlements earlier.
137Further, the plaintiff acted as promptly as reasonably practicable:
(a) he retained Slaters on the day he was advised of a potential course of action and the expiration of the limitation period;
(b) he signed a WorkCover form that day;
(c) he elected not to challenge the rejection of his WorkCover claim and to bypass the claim for impairment benefits.
138I accept that Slaters gave reasonable advice and acted promptly on the plaintiff’s behalf:
(a) advised him of the potential cause of action and limitation expiry date;
(b) advised him of the bypass of an impairment claim;
(c) acted with reasonable haste in obtaining relevant medical evidence and had briefed counsel within about six months;
(d) refused counsel’s request for further documentation on the basis of limitations expiry;
(e) exerted pressure upon counsel to return the serious injury affidavit as promptly as possible.
ss3(b) – The extent to which having regard to the delay, there is or is likely to be prejudice to the defendant
139While the defendant could point to no specific prejudice, the defendant submitted of course there was generally presumptive prejudice.[52]
[52]T28
140There would have once been documents relating to the defendant’s employment of workers and the use of machinery, but these had been destroyed or were no longer in Mr Rossignuolo’s possession. They could illuminate the defence of the claim in a number of ways, including identifying potential witnesses, in relation to the incidents of injury.[53]
[53]T28
141Those records would help to demonstrate which people were present at the farm, and might disclose potential witnesses. In any event, even if these witnesses were identified, the prospect of them having a recollection of these matters was highly unlikely.[54]
[54]T29
142Counsel for the plaintiff conceded that there is delay, though not unreasonable, and from that flows general prejudice to the defendant.
143However, Ms Dodgshun’s affidavits do not refer to prejudice, general or specific. It was submitted there was just a complete lack of detail on the defendant’s part in terms of any specific prejudice.[55]
[55]T39
144The director of the defendant, Frank Rossignuolo, is alive and has given evidence on affidavit for the purposes of this application. His affidavit makes no reference to any documents that might have been destroyed, lost or no longer in existence that might be relevant to the defence of the plaintiff’s allegations of negligence.
145Further, from about 10 June 2022, the defendant has had in its possession clinical records from Tatura Medical Clinic, where the plaintiff attended for the subject injury from about 2009 to January 2022.
146It was submitted the defendant’s affidavit evidence failed to identify a degree of specific prejudice which would prevent there being a fair trial. Instead, potential prejudice to a plaintiff in refusing an application to extend the limitation period is undoubtedly a relevant and powerful consideration in the synthesis exercise to be undertaken.[56]
[56]T39; Axford v Gray 2013 VSC 664 at paragraph [27];Delai v Western District Health Service & Anor [2009] VSC 151, Holcombe v Hunt & Anor [2017] VSC 666 at paragraph [56].
147If there is any prejudice, obviously that needs to be considered, but it is also necessary to consider the potential prejudice to a plaintiff in refusing an application, and that would be clearly the case here.[57]
[57]T39
148In all the circumstances, I am satisfied there can be an acceptably fair trial notwithstanding the delay.[58]
[58]See J Forrest J in Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517 at paragraphs [79] to [80]
149The defendant has not pointed to any specific prejudice. Prejudice here is nothing more than the ordinary general prejudice that flows from delay. The plaintiff’s father, a director of the defendant is still alive and capable of giving evidence, having sworn an application in this proceeding in which he deposed there are no documents relevant to the plaintiff’s potential action that are no longer available.
A claim against the plaintiff’s solicitor
150The “second component” of the defendant’s case was that, while the plaintiff had not been given advice by Ms McInnes specifically in relation to common law, he had clearly been given advice about his workers compensation entitlements. That advice was “seriously deficient”. In those circumstances, he has a strong potential cause of action against his former solicitor.[59]
[59]T34
151It was submitted any competent solicitor whom the plaintiff saw would refer to common law and limitation periods.[60]
[60]T29
152It was submitted there was a strong potential cause of action against Ms McInnes, as shown by the correspondence exhibited to in the affidavit.
153While the plaintiff was seeing Ms McInnes for medical negligence, her advice extended to his potential entitlements under the compensation process. It was submitted there could not be a more clear-cut instance of a failure on the part of a solicitor to discharge their professional obligations to advise their client about their common law entitlements. In those circumstances the plaintiff had “a walk-up start” against his solicitor.[61]
[61]T35
154Further, Ms McInnes was completely deficient in discharging her professional obligations towards the plaintiff by not answering the phone when he called her.[62]
[62]T30
155It was submitted there was no real prejudice to the plaintiff from being disallowed to extend the time, because he had a very valuable and very solid claim against his solicitors, and that liability for the injury should not be imposed on the defendant.[63]
[63]T36
156Counsel for the plaintiff disputed the defendant’s suggestion that the plaintiff has a “walk up start” in terms of a professional negligence claim against his former solicitor.[64]
[64]T39
157It was submitted Ms McInnes was not formally engaged by the plaintiff and it appears she only provided preliminary advice, following one attendance and sending two letters. Further, even if there was a claim against her, there is likely be arguments about time limits as well. [65]
[65]T39
158In reality there was one attendance, two letters, and no evidence of any formal retainer being signed. It was submitted that it is farfetched to say that there is going to be a walk up start in a claim in professional negligence.
159While I accept that Ms McInnes firm had been formally retained by the plaintiff as counsel for the defendant submitted in reply,[66] she gave only limited preliminary advice having only seen him once, written to him twice and requested his medical records. She was retained in relation to a potential medical negligence claim only.
[66]T40
160In these circumstances, Ms McInnes’ failure to advise the plaintiff of any common law entitlements or the limitation period is a matter of little, if any, weight. The likelihood that the plaintiff will succeed in an action against her cannot be known with any precision. It is not a situation where the prospect of a successful claim against this former solicitor must be given real consideration.[67]
[67]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
161Taking into account all the evidence and having synthesised the relevant factors under Section 23A, including the ability to achieve an acceptably fair trial, I am persuaded it is just and reasonable to extend the time for bringing the claim against the defendant.
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