Sly, Powderly and Cunnington v State of New South Wales
[2015] NSWSC 129
•27 February 2015
|
New South Wales |
Case Name: | Hofman; Sly, Powderly & Cunnington v State of New South Wales |
Medium Neutral Citation: | [2015] NSWSC 129 |
Hearing Date(s): | 27 February 2015 |
Date of Orders: | 27 February 2015 |
Decision Date: | 27 February 2015 |
Jurisdiction: | Common Law |
Before: | Davies J |
Decision: | 1. Second Defendant’s application to vacate hearing of Notices of Motion today is refused. |
Catchwords: | LIMITATION OF ACTIONS – claim by joint tortfeasor – when time begins to run – judgment given against one tortfeasor in May 2014 – application by cross-claimant to amend cross-claim to plead the judgment – cross-claim not statute-barred – leave given to amend |
Legislation Cited: | Limitation Act 1969 (NSW) |
Category: | Procedural and other rulings |
Parties: | State of New South Wales (Cross-Claimant) |
Representation: | Counsel: |
File Number(s): | 2011/407322; 2011/402501; 2013/38200; 2013/66329 |
JUDGMENT
This is the hearing of four identical Notices of Motion, one in each of the proceedings that are travelling together. The Notice of Motion in each case was filed 12 February 2015 filed pursuant to orders that I made on 1 December 2014. The Motion in each case by the State of New South Wales, the First Defendant in the proceedings, is to amend the Cross-Claims filed in the proceedings on 24 January 2014.
The proceedings are claims by four Plaintiffs alleging assault including sexual assault and mistreatment of them by the Second Defendant when they were students at Young Public School for which the State of New South Wales has a liability.
Each of the four matters was settled as between the Plaintiffs and the State of New South Wales, and judgment entered in favour of each of the Plaintiffs on 23 May 2014 for the amounts specified in those judgments together with an amount in each case for costs. The judgments in each case were entered against the First Defendant only. As a result of the entry of those judgments, the First Defendant, which is pursuing its Cross-Claims, wishes to make clear the proper basis of the claim already made in the cross-claim against the Second Defendant.
I have been case-managing the proceedings since 28 October 2014 when the matter was first listed before me for hearing. On that date I gave leave to the parties to obtain a fresh hearing date for the determination of the Cross-Claims. By that time the Second Defendant, who had previously been legally represented in the matter, was acting for himself. He appeared on that day. Because the Second Defendant lives in Queensland, I gave him leave to appear by way of telephone on 1 December 2014 being the next date appointed for directions in the matter.
The directions made on 1 December provided for service of draft amended Cross-Claims, time for the Second Defendant to indicate whether or not he consented to them and, in the event that he did not, provision for the filing by the First Defendant of the present notices of motion. The First Defendant did not consent to the filing of the proposed amended Cross-Claims with the result that the present motions were filed.
My Associate received a contact from the Second Defendant by way of telephone yesterday, 26 February, where he indicated that he would be seeking an adjournment of the hearing of the Motions today. My Associate asked that he put his application into an email, copied to the First Defendant’s solcitors, and forward it to her. Such an email was not received until 11.44 am today, 27 February.
In that email the Second Defendant says this:
In the first instance I did not receive a copy of Justice Davies’ orders of 1/12/14 from either the court or any other person…
Due to me not receiving any correspondence of the orders I was not aware that his Honour had ordered that the matter be listed for 27 February originally at 9.30 am for directions and was also available for the hearing of any motion that may be filed by the State seeking orders to permit it to amend its cross-claims. I opposed amendment to the cross-claims mainly on the grounds that the State had plenty of opportunity to write their cross-claims and to allow the State to amend them disadvantages me.
The change of this date to be used to hear the Motion that was only filed in the court on 12 February, has not given me enough time to one (sic) seek advice on this motion and two (sic) arrange to fly to Sydney to represent myself in person. I did not think this was needed as Justice Davies granted me leave to appear by telephone conference…
Added to this I have applied for Legal Aid in NSW as the Means Test Indicator on the Legal Aid website confirms I am eligible from a financial perspective and from my readings this matter is able to be granted Legal Aid. …[F]or these reasons I ask his Honour to adjourn this hearing for one month that will allow time for my application, that has been received by Legal Aid to be processed and if successful for their lawyer to have time to go through all the documents given to me from Athena Touriki solicitors, after they ceased to act on my behalf, when I was unable to continue to pay their legal fees.
Subsequent to receiving that email my Associate spoke to Mr Taylor to inform him that his matter was not the only matter listed at 2 o'clock this afternoon and that he should wait until he was telephoned from 2 o'clock onwards.
The matter was reached at about twenty past two and a call was made to Mr Taylor’s mobile phone. He answered the phone but despite efforts on my behalf, Mr Taylor’s continued repeating of “hello” indicated to me that he may not be able to hear me. Accordingly, I instructed that a further call be made to his mobile telephone. That call went to voicemail. I then instructed a call to be made to his landline but that call also went to voicemail. A further call was made to his mobile phone and that went to voicemail as well.
In those circumstances I considered that there was no appearance of the Second Defendant when the matter was called and I proceeded to deal with the matters notwithstanding the absence of the Second Defendant.
I considered whether I should, on the basis of the email received from the Second Defendant, grant an adjournment. However, a number of matters persuaded me I should not do that. The first was that on 1 December 2014 at 1.34 pm an email was sent from my Associate to Mr Taylor at the email address that he provided on that day and which was also the email address h appearing as the sender’s address on the email received today, informing him of the orders that were made on 1 December 2014.
Secondly a perusal of the transcript of 1 December 2014 relevantly discloses the following exchanges:
HIS HONOUR: When would you be able to let Makinson & d'Apice know whether or not you agree to these amended cross‑claims being filed?
SECOND DEFENDANT: I suppose I would need to read them first, and then see if I needed to seek any advice. I would think I would at least need four weeks.
HIS HONOUR: Mr Hutchings, it's probably not realistic to expect this to be resolved before the new term, given where we are. You've got your hearing date. It is not going to be vacated again.
HUTCHINGS: Your Honour, I untroubled by this. If Mr Taylor indicates his concern one way or the other by the end of January I would be content.
HIS HONOUR: Mr Taylor, I will give you until the end of January to make your decision about this. If you are going to resist the state being able to file these amended cross‑claims you must let them know that by the end of January, because it will be necessary for them to file notices of motion seeking leave to be allowed to amend them. Do you understand?
SECOND DEFENDANT: Yes I do.
HIS HONOUR: And I would like to be able to deal with that early in the new term so that the matter can be ready at the time of the new hearing date.
SECOND DEFENDANT: Yes.
…
HIS HONOUR: Mr Taylor, the State of New South Wales has to file a motion, to file its amended cross‑claims, would it be convenient to you if that was dealt with on 27 February? That's a Friday?
SECOND DEFENDANT: Yes, that would be fine.
HIS HONOUR: All right. Do you want to deal with it on the phone?
SECOND DEFENDANT: Oh yes, I think so. I think this works out very well.
HIS HONOUR: All right. Well you will need to tell me by 27 February where you are with the witness statements and affidavits for those who are to give evidence for you, because they have to be finalised by, I will say, 2 March, which is the following Monday. Do you understand?
SECOND DEFENDANT: Yes, yes, that's good.
HIS HONOUR: All right.
The cross‑defendant is to notify the cross‑claimant's solicitors by 30 January whether or not he consents to the proposed amended cross‑claims which are to be served on the cross‑defendant by 5 December.
If it is necessary for a motion to be filed by the state that is to be filed by 13 February, made returnable before me on the 27th at 9.30, and I will, as far as possible, deal with that motion on that day.
The cross defendant is to serve all evidence upon which he relies by Monday 2 March 2015.
I will stand the matter over to 27 February at 9.30 before me. Liberty to apply on two days’ notice.
I am entirely satisfied from that material that the Second Defendant was aware that these Motions would be filed and when they would be filed, and that they would be returnable today and dealt with today. He was agreeable to that course of action as the transcript demonstrates.
Finally, no indication is provided in the Second Defendant’s email when it was that the sought Legal Aid. He did not give any indication on 1 December 2014 that he had done so prior to that date nor that he intended to do so. His previous solicitors ceased to act for him on 5 June 2014.
For those reasons I declined to grant the adjournment that the Second Defendant seeks in his email.
The First Defendant seeks leave to amend the Cross-Claims and calls in aid s 26 of the Limitation Act 1969 (NSW) of its right to do so.
26 Contribution between tort-feasors
(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of:
(a) a limitation period of two years running from the date on which the
cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and
(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.
(2) For the purposes of paragraph (a) of subsection (1), the date on which a
cause of action for contribution first accrues is:
(a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which the judgment is given or the award is made, whether or not, in the case of a judgment, the judgment is afterwards varied as to quantum of damages,
It is clear that the First Defendant is not, contrary to what the Second Defendant has previously asserted, statute-barred from bringing or amending the cross-claims that are sought now to be filed. In any event there was not any application on the Second Defendant’s part to strike out the Cross-Claims filed on 24 January 2014.
The judgments entered on 23 May 2014 mean that any limitation period is a period of two years running from the date of judgment, which by s 26(2)(a) is defined as being when the cause of action for contribution first accrues to the person relevantly claiming.
I am comfortably satisfied that there is nothing in the Limitation Act which prevents the present Cross-Claims being pursued. The proposed amended Cross-Claims set out the material facts that provide the proper basis for the cross-claim being made so that any issues of limitation can be clearly identified. I am satisfied that the Limitation Act does not prevent the claims being brought. No other basis is suggested for the amendments being futile.
The complaint about delay does not appear to go anywhere. The proceedings are not listed for hearing for some months. The Second Defendant needs to understand precisely the claim being made against him in each case. The amendments do not give rise to new claims nor disputed factual assertions. The First Defendant agreed that he would have his evidence to answer the matters in the Cross-Claims by the end of February. He has not been recently joined to these proceedings. He has known from the outset what the allegations against him are.
Accordingly leave is given to the First Defendant in each matter to file an amended cross-claim.
The draft cross-claim attached to each Notice of Motion includes a paragraph that seeks an extension of time for the bringing of the cross-claim. For the reasons I have given I do not consider any extension of time is required. Accordingly, the form of the cross-claim to be filed will be the form annexed to the Notices of Motion omitting para 5A.
I will extend the time for the Second Defendant to file and serve any evidence he wishes to rely upon in relation to the hearing on Monday 23 March 2015. Any evidence not filed and served by that date will not be permitted to be relied upon without my leave or the leave of the Judge hearing the matter. I also direct that any defences to the Amended Cross-Claims are to be filed and served by 23 March 2015.
Ordinarily leave to amend is given on the basis that costs thrown away by reason of the amendment should be paid by the party seeking leave to amend. In the present case the respondent to the application should not have refused consent to the amendments because there was no proper basis for doing so. In those circumstances, the costs of the Motion should be the First Defendant’s costs in the cause.
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