Tomas v Technicolor Pty Ltd
[2024] VCC 1376
•10 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-03450
| GABRIELLE TOMAS | Plaintiff |
| v | |
| TECHNICOLOR PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 July 2024 | |
DATE OF JUDGMENT: | 10 September 2024 | |
CASE MAY BE CITED AS: | Tomas v Technicolor Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1376 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL INJURY
Catchwords: Personal injury – workplace injury – worker’s cause of action statute barred – delay of ten years and one month – whether delay inordinate – effect of psychiatric condition on delay – whether delay adequately explained – where plaintiff not advised of limitation period – whether solicitors were negligent – prejudice to defendant – whether overall prospects of success are relevant to extension of limitation period – credible and reasonable explanation for delay
Legislation Cited: Limitation of Actions Act 1958 (Vic); Sex Discrimination Act 1984 (Cth)
Cases Cited:Transport Accident Commission v Murdoch [2020] VSCA 98; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Ford Motor Co (Aust) Ltd v Kulic [1988] VR 152; Lovejoy v Carp & Ors [1999] VSC 223; Myer Melbourne Ltd v Hammond [1984] VR 40; Tsiadis v Patterson (2001) 4 VR 114; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Bell v SPC Ltd [1988] VR 123; Welsh v Adecco & Ors [2017] VSC 44
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Ms R Kaye KC with Ms F Blair | Minter Ellison |
HIS HONOUR:
1The plaintiff, Gabrielle Tomas, makes application to extend the time within which to bring an action for damages against Technicolor Pty Ltd (“Technicolor”). The application is made pursuant to s23A of the Limitation of Actions Act 1958 (Vic) (“the Act”). The central question is whether Ms Tomas can prove that it is just and reasonable to order that the limitation period be extended. That determination involves answering a number of questions and sub-questions. These are in order:
(a) What is the period of delay?
(i)Is the period inordinate simply having regard to the time elapsed, or is that assessment informed by the reasons for delay;
(b) What are the reasons for delay?
(i)What role does Ms Tomas’s psychiatric condition play;
(ii)Did she have knowledge, and if so when, of:
· her common law rights;
· the application of time limits to her common law rights;
(c) Is a determination of Ms Tomas’s knowledge affected by issues as to the credit and the reliability of her evidence;
(d) Were Ms Tomas’s former solicitors:
(i)Nowicki Carbone lawyers (“Nowicki Carbone”) from 2010 to 2011; and/or
(ii)Maurice Blackburn lawyers (“Maurice Blackburn”) from 2012 to 2018;
potentially negligent and, if so, does this bear on the question of whether it is just and reasonable to extend time;
(e) What:
(i)general prejudice;
(ii)specific prejudice;
would be visited on Technicolor if time were extended;
(f) Should the prospect of success of Ms Tomas’s negligence action be factored into the overall assessment required in s23A of the Act? This requires an assessment of the potentially divergent case law in Transport Accident Commission v Murdoch[1] and Griffiths v Nillumbik Shire Council.[2]
[1][2020] VSCA 98 (“Murdoch”)
[2][2022] VSCA 212 (“Griffiths”)
2For the reasons set out below, I have found that there is a period of delay of ten years and one month. While Ms Tomas was made aware of the existence of common law rights, she was not advised to pursue them or advised of the limitation period that accompanied them until such time had expired. While I accept Technicolor will suffer prejudice both specific and general, I have concluded a fair trial can be had. While Ms Tomas may well have claims against her former solicitors, these do not tip the balance such that an extension of time to bring a claim against Technicolor ought not be granted. I will grant Ms Tomas’s application.
Brief relevant background
3Ms Tomas was born in Victoria on 20 March 1986. She completed school to Year 12 and was Dux of her high school in about 2004. She enrolled at the University of Melbourne.[3] Her father was unemployed and her mother was unwell at this time. They were evicted from their home and Ms Tomas came to work at Technicolor in 2005 as a casual employee. Technicolor manufactured DVDs and did movie reproductions onto DVDs. On 22 May 2006, she became a full-time worker there.
[3]Joint Court Book (“JCB”) 467
4She commenced at the University of Melbourne undertaking a biomedicine course in 2007. At this time she worked nightshift at Technicolor in the replicator department. Due to her work commitments she ceased studying after two months.
5Ms Tomas alleges that, at the start of 2010, a worker named Gnanasuresh Simeon (“Simeon”) began to sexually harass her. This involved brushing against her and touching her hands. On 23 February 2010, she alleges that Simeon made a comment directly to her that she had “beautiful breasts”. On another occasion it is alleged, he gave her an unwanted gift. I will come to the detail of these matters. Her workplace became aware of the issue in about March 2010.[4] By April 2010, Ms Tomas began to take days off work. She ceased work in October 2010.[5] She has not worked since this time in any capacity.
[4]JCB 340
[5]JCB 592
6She lodged a WorkCover claim shortly thereafter.[6] In December 2010, she engaged Nowicki Carbone to act on her behalf.[7] The terms of that engagement are in dispute and will be dealt with later, but for the moment it is sufficient to note that the WorkCover claim was rejected. Nowicki Carbone issued proceedings on Ms Tomas’s behalf in the Magistrates’ Court, seeking weekly payments and medical and like expenses. It is unclear exactly what occurred in 2011 in her course of dealing with that firm. However, it can be inferred that at some point Ms Tomas withdrew her instructions for Nowicki Carbone to act on her behalf and engaged Maurice Blackburn instead.[8] There is no letter in the Nowicki Carbone file setting out the advice given to her regarding the common law rights she had or the time limits associated with such rights.
[6]JCB 90 and 557
[7]JCB 541
[8]JCB 380 and JCB 384-398
7On 2 March 2011, Ms Tomas lodged an Australian Human Rights Commission (“AHRC”) claim via lawyers, MAX Legal.[9] That claim alleged that Ms Tomas had been sexually harassed while working at Technicolor.[10] In support of that application, Ms Tomas filed a statement. That, broadly, repeated the allegations of harassment referred to above and which also formed the basis of her WorkCover claim which was before the Magistrates’ Court. She detailed each instance of harassment and also her conversations with management regarding her reporting of the harassment she alleged.[11]
[9]JCB 110-114
[10]JCB 113
[11]JCB 112
8On 11 May 2012, she gave Maurice Blackburn written instructions to resolve her weekly payments and medical and like expenses dispute in the Magistrates’ Court.[12] After that resolution, it appears that Maurice Blackburn’s weekly payments and medical and like expenses claim file was closed and archived.[13] There is no letter in the Maurice Blackburn file setting out the advice given to her regarding the common law rights she had or the time limits associated with such rights.
[12]JCB 403-405
[13]JCB 415
9After an unsuccessful conciliation at the AHRC in mid-2011, Ms Tomas had sixty days to commence her proceedings in the Federal Magistrates Court (“FMC”). She did not meet this timeline. She contacted Maurice Blackburn sometime shortly afterwards and on 18 August 2011 Maurice Blackburn lodged a FMC application to extend time. The cover letter denotes that the Maurice Blackburn lawyer acting for Ms Tomas was from the Employment and Industrial Law section of the firm, as opposed to the WorkCover section which had previously represented her. The application was for an extension of time to bring a Sex Discrimination Act 1984 (Cth) claim arising from the same circumstances set out broadly above involving Simeon and Technicolor.[14]
[14]JCB 154
10This FMC application to extend time came on for hearing on 25 and 26 October 2012. For reasons which are unclear, Ms Tomas was self-represented at this stage. Her application was heard and was dismissed on 23 November 2012.[15]
[15]JCB 180
11With the conclusion of both her WorkCover claim and then the Sex Discrimination Act claim, by the end of 2012 matters then appear to have gone cold. Certainly on the evidence before me, I am unable to state what occurred legally in relation to Ms Tomas’s rights in 2013, 2014, 2015 and 2016. However, I infer from what occurred next that at some point she had retained Maurice Blackburn to act for her in respect of claims she had arising from her superannuation fund entitlements.
12On 30 January 2017, Maurice Blackburn lodged two County Court Writs on behalf of Ms Tomas against superannuation funds making total and permanent disablements claims. At some point, I infer this was in mid-2018, both matters settled. I make that inference from the emails between Ms Tomas and Maurice Blackburn at about August 2018.[16]
[16]JCB 50-54
13Then, in late 2018, Ms Tomas contacted Maurice Blackburn seeking advice about serious injury and loss of earnings claims. This was in an email of 24 August 2018.[17] On 8 November 2018, Maurice Blackburn advised Ms Tomas in writing of the serious injury and common law process and the time limits imposed by the Act.[18] They advised that they could not act for Ms Tomas in this regard.
[17]JCB 49
[18]JCB 62
14Moving quickly over the remaining relevant chronology.
15Ms Tomas then contacted Slater and Gordon in November 2018.[19] They lodged an impairment benefit claim on her behalf alleging permanent psychiatric impairment arising from the alleged workplace incidents. After assessment of that impairment benefit claim she was found to have a 32 per cent psychiatric whole person impairment. A serious injury application was made on 24 November 2020.[20] Technicolor accepts time stops running against Ms Tomas on this date. That serious injury application was granted. On 25 September 2023, Ms Tomas made an application to extend time pursuant to s23A.
[19]JCB 65
[20]JCB 84 at paragraph [38]
What is the period of delay?
Is the period of delay inordinate simply by having regard to the time elapsed or is that assessment informed by the reasons for delay?
16Some matters were not in dispute. The first is that the cause of action accrued on 14 October 2010 and expired on 13 October 2016. The relevant date to calculate the period of delay is the date the serious injury application was lodged, being 24 November 2020. The period of delay is ten years and one month.
17Technicolor relied on what his Honour Kaye J said in Ford Motor Company (Aust.) Ltd. v. Kulic,[21] that to submit the elapsed time of ten years alone meant that the delay could be classified as “inordinate”.
[21][1988] VR 152
18At page 82 of that judgment, his Honour considered the various periods that comprised the overall period of delay in that case of some eight-and-a-half years. His Honour stated:
“… Delay of such duration unexplained, was, in the circumstances, inordinate.”[22]
(Emphasis added.)
[22](Ibid) at 157
19The use of the word “unexplained” seems to contemplate that the reasons which inform the period of delay have work to do in classifying the period of delay itself. In Lovejoy v Carp & Ors,[23] O’Bryan J said that the authorities do not define what is “inordinate” delay. His Honour said:
“… The circumstances of the case will usually dictate what should be regarded as ‘inordinate’ delay.”[24]
[23][1999] VSC 223
[24](Ibid) at paragraph [65]
20He seemed to contemplate that matters extraneous to the time period alone would determine whether the term “inordinate” could be applied to the term “delay”.
21The Court of Appeal was more blunt. In Myer Melbourne Ltd v Hammond,[25] the Court was dealing with a failure to comply with court orders. While the plaintiff’s cause of action had arisen in 1973, she issued proceedings only in 1976, and then failed to comply with court orders. In 1978, her matter was struck out. Application was then made to reinstate the proceeding. However, further noncompliance with orders followed. However, ultimately in 1982, the matter was reinstated. The defendant appealed the reinstatement and the matter came before the Court of Appeal in 1983. The Court stated:
“… It is now more than 10 years since the alleged incident giving rise to the plaintiff’s cause of action occurred. That delay of itself is sufficiently demonstrably (sic) to establish significant prejudice to the defendant. … .”[26]
[25][1984] VR 40
[26](Ibid) at 49
22I consider this means that the time of delay must be isolated from the reasons for delay and determined. Here, that period is ten years and one month. I find that constitutes inordinate delay.
What are the reasons for delay?
(a) What role does Ms Tomas’s psychiatric condition play?
23The Court does not have before it medical evidence contemporaneous with the initial allegations and the WorkCover claim, save for some brief reporting from the treating psychologist, AnnMaree Eddy.[27]
[27]JCB 96, Exhibit JM3
24Her first report is dated 23 October 2010, just prior to Ms Tomas ceasing work at Technicolor. It recorded Ms Tomas was suffering from extremely severe anxiety and severe depression.[28] Her second report of 29 December 2011 occurred after one year of treatment and concluded Ms Tomas was suffering Post-Traumatic Stress Disorder.
[28]JCB 98
25The first medical report of substance in time is that of medico legal psychiatrist, Dr Nigel Strauss, who examined the plaintiff on 3 February 2016.[29] He noted a past medical history involving a period of hospitalisation for ten days for psychiatric illness related to turmoil in her life in around 2005.[30] She was taking Epilim after that time. However, after the alleged harassment in 2010, he took a history that she became increasingly isolated at home, had a psychological deterioration and came under the care of the psychologist, Ms Eddy.[31]
[29]JCB 466
[30]JCB 467
[31]JCB 431
26By the date of his examination, all treatment and medication had stopped. Ms Tomas told him that she was not working, not socialising, sleeping a great deal and was essentially housebound. As part of his consideration of the case formulation, he was provided with a 2010 report of Ms Eddy. He recorded her as opining that she had become extremely emotional as a result of the alleged workplace harassment.
27Dr Strauss also had a report of Ms Tomas’s treating doctor, Dr Derek Wong, from February 2011. He recorded Dr Wong as opining that Ms Tomas had become anxious and depressed as a result of the alleged workplace harassment. Dr Strauss also had a medio-legal report of consultant psychiatrist, Dr Paul Kornan, who considered she had an adjustment disorder.
28After considering these matters and conducting his own examination and taking a history, he concluded:
“… she was very vulnerable to developing an extreme distress reaction which obviously ultimately took place.”[32]
[32]JCB 472
29He commented that her condition deteriorated after onset in 2010.[33] He concluded that she:
“…suffers from a major depressive illness, a social anxiety disorder or a social phobia and very high levels of anxiety.”[34]
[33]Ibid
[34]Ibid
30He concluded that she had a very poor prognosis.
31She was examined by a clinical medico legal neuropsychologist, Mr Martin Jackson, in the course of her TPD claim. He saw her on 12 January 2018. I note there is a very large volume of medical material, which ranges from 2005 onwards, which was provided to Mr Jackson. That contained a large amount of treating medical material, only some of which was in evidence before the Court. Given Mr Jackson had this material quite recently, I consider it would be available to the parties in this case. I find this reporting would assist greatly in understanding Ms Tomas’s psychiatric state from 2010 onwards. This ultimately is also likely to be relevant in assessing whether or not Technicolor can properly explore and test any aspect of Ms Tomas’s claim for damages.
32Of most relevance is Mr Jackson’s recordings of the reporting from Ms Eddy and Dr Wong. He reported that Ms Eddy, in 2010, had considered that Ms Tomas had at times severe anxiety and extremely severe depression,[35] was struggling with flashbacks to the incident and exhibiting signs of post-traumatic stress.[36] Particularly in her 2012 reporting, Ms Eddy is recorded as writing that Ms Tomas was struggling with her legal advisers, in that having to constantly describe her harassment was causing great distress. Dr Wong is recorded as saying she had extreme anxiety and depression.
[35]JCB 436
[36]JCB 437
33Mr Jackson also recorded a report of a general practitioner, Dr Peter Yang, dated 5 May 2012, describing the medications Ms Tomas had been taking to that point, being Temazepam, Stilnox, Effexor, Avanza, Cymbalta and Epilim.[37] He also referred to Dr Kornan’s report of 18 February 2014.
[37]JCB 438
34Mr Jackson reported on the general practitioner reports of Dr Jenny Harindran in 2015, which recorded Ms Tomas’s diagnoses as severe anxiety and depression.
35On direct questioning, Mr Jackson recorded Ms Tomas as saying that she was “not as sharp” as she used to be. On examination, he found signs of depression and anxiety. He diagnosed her with Major Depressive Disorder and Post-Traumatic Stress Disorder. He essentially concluded that her condition deteriorated after onset in 2010 and was of such severity that she became totally and permanently disabled thereafter.[38]
[38]JCB 464
36His conclusion was that, as at 2011, she suffered from “the severe, chronic and intractable nature of her mental health condition”,[39] which he described as “a genuine severe psychiatric condition (with aspects of depression- and anxiety-based disorders)”.[40]
[39]Ibid
[40]JCB 465
37Mr Anthony Sheehan, medico legal psychiatrist, reported on 14 February 2018. Once again, he considered in some detail a historical trove of medical material which was not before this Court. His access to this material and careful assessment of it, as is the case with Mr Jackson, makes his reporting both useful and illuminating. As at the time of reporting, he recorded her symptoms as being stable and constant since onset in 2010.[41] That state, he considered, was significant and moderately severe. He diagnosed Major Depressive Disorder and Severe Panic Disorder with Agoraphobia since 2010.[42] Once again, I consider the fact his reporting is reasonably recent and based on such comprehensive material, it will be of great assistance in exploring Ms Tomas’s damages claim and testing her version of events, given she has provided histories to so many doctors.
[41]JCB 497
[42]JCB 500
38He considered Dr Kornan’s diagnosis inapt.[43] He agreed with the conclusions of Dr Strauss.
[43]JCB 504
39Dr Matthew Tagkalidis, a medico-legal consultant psychiatrist, examined Ms Tomas on 18 November 2019 for the purposes of an impairment benefit assessment.[44] At that time, he considered her to have intact cognition. He considered she had a Major Depressive Disorder and chronic features of traumatisation that was stable, but did not satisfy a full diagnosis of Post-Traumatic Stress Disorder.[45]
[44]JCB 507
[45]JCB 514
40I have set this material out, as it is necessary context to answer the question as to what role Ms Tomas’s psychological state played in explaining the reason for the delay.
41Technicolor contended that Ms Tomas was an intelligent woman who displayed a level of sophistication in disposing of her various legal rights in sequence. Technicolor pointed to her being able to engage lawyers – Nowicki Carbone, MAX Legal and Maurice Blackburn – specific to various specialisations in respect of different causes of actions. So, for example, she engaged WorkCover lawyers, Nowicki Carbone, to prosecute her WorkCover rights, and then Maurice Blackburn. She then engaged different lawyers – MAX Legal – and the industrial employment lawyers at Maurice Blackburn ꟷ to prosecute her sexual discrimination claim in the AHRC and then the FMC. In addition, she engaged Maurice Blackburn specifically to issue proceedings for her superannuation claims. In all of these proceedings, she was able to give instructions and never had a litigation guardian.
42Those matters, Technicolor submitted, furthered the notion that Ms Tomas had the mental acuity to prosecute and act on her common law rights.
43Starting with the medical evidence.
44I consider it all points to Ms Tomas suffering from a, to adopt Mr Jackson’s phraseology, “severe … intractable … health condition”.[46] Particularly, that is a Major Depressive Disorder and severe panic disorder with agoraphobia, which has been present since 2010.[47]
[46]JCB 464
[47]JCB 500, Dr Sheehan
45I accept those opinions of Mr Jackson and Dr Sheehan because they had access to a wide range of background materials, assessed Ms Tomas on clinical examination, and provided extremely comprehensive, logical, well-written assessments. It was necessary to consider this material given the significant past medical history and the complex reaction to the alleged events of 2010. It is also supported by Dr Strauss’s opinion, largely consistent with Dr Tagkalidis and the Medical Panel. Their opinions are somewhat closer in time to onset than the latter two opinions and I prefer them for that reason as well. I do not accept Dr Kornan’s opinion. It is an isolated opinion against a body of very detailed and considered medico-legal reporting.
46I find that Ms Tomas’s severe intractable psychiatric condition existed from the end of 2010 and had some effect on her ability to comprehend advice she received and was required to act on. The degree of this effect is difficult to quantify. This is for the reasons that Technicolor advances. Perhaps the most informative evidence on this point comes from Mr Jackson, who conducted neuropsychological testing. That revealed superior intelligence, good memory and superior processing and executive skills.[48] This was Ms Tomas’s state as at the date of assessment, I find.[49]
[48]JCB 443-445
[49]JCB 455-456
47The testing revealed that there had been a decrease in Ms Tomas’s intellectual functioning from her premorbid state. This meant she had sustained a decrease in her functioning from superior to the average range.[50] I accept this, and it is consistent with Ms Tomas’s view of herself that she was not “as sharp” as she used to be.
[50]JCB 456
48Balancing that with the matters Technicolor draws attention to, I do not find Ms Tomas’s psychiatric injury had a substantial effect on her ability to understand legal information provided to her by her lawyers. I find her mental state played little to no role which explains the reasons for the inordinate delay. This is consistent with the fact that she was able to give instructions to lawyers, change lawyers, and resolve cases on advice, without the need for a litigation guardian. I find that she had the ability to make relevant decisions as to her legal rights in an informed manner even with her impaired mental state.
(b) Did Ms Tomas have knowledge, and if so when, of her (i) common law rights; and (ii) the application of time limits to her common law rights?
49The first thing to note is that, despite seeing Nowicki Carbone, MAX Legal and Maurice Blackburn, there is no written advice setting out what is a common law right or what time limits apply to such rights. There is reference to “common law rights” in legal costs agreements, emails and file notes, but that is the closest to what that term means contained in the files produced from the various firms who represented Ms Tomas.[51]
[51]JCB 351, email; JCB 357, email; JCB 360, legal costs agreement
50Into this vacuum, Technicolor submits that it should be inferred that Ms Tomas was given such common law advice that experienced personal injury lawyers, such as Nowicki Carbone and Maurice Blackburn, would give.[52] To this, Ms Tomas submitted that she was completely inexperienced in legal matters and assumed common law rights were to do with sexual harassment.
[52]Transcript (“T”) 69
51There is some support for Ms Tomas’s submission in the contemporaneous emails she exchanged with Ms Carolyn McInnes, a senior associate at Nowicki Carbone. However, Ms Tomas did write to Ms McInnes after their initial consultation on 5 November 2010, and it appears they had had some discussion of common law rights in the initial client interview, as Ms Tomas begins her email by saying:
“Regarding a common law suit against Technicolor, and the cap on damages in Victoria (i.e, $1.5 million), I was wondering if my case can be tried in New South Wales.”[53]
[53]JCB 351
52Ms McInnes responded three days later, advising that the claim had to be brought in Victoria, but was a good claim, and she provided the maximum loss of earnings and pain and suffering amounts.[54]
[54]Ibid
53All this suggests there was more than passing reference to common law rights. Ms Tomas suggested in evidence that she understood and believed this was all about a sexual harassment claim – which she ultimately made through MAX Legal.[55] This claim that her discussions with Nowicki Carbone were limited to a sexual harassment claim and not potential common law rights cannot be accepted.
[55]T33 Lines (“L”) 4-7
54The emails of 5 and 8 November 2010[56] make clear that Ms Tomas was told that a group of rights were available to her after stabilisation of her injury (being common law rights), that it was a good claim and it was housed under the Victorian worker’s compensation law which dealt with injuries arising in the course of her employment.[57]
[56]JCB 351
[57]Ibid
55She was told such a claim may result in a loss of earnings and pain and suffering compensation.
56Her evidence in cross-examination attempting to say otherwise is not reliable on this point and I put it aside because it conflicts with the contemporaneous email exchange. It is therefore possible to make the inference sought by Technicolor, as I find the email exchanges of 5 and 8 November 2010, communicated in combination with the obvious discussion with Ms McInnes on 5 November 2010, that Ms Tomas had common law rights. This information was communicated by Nowicki Carbone to Ms Tomas.
57I find, however, that there is no evidence to support an inference in similar terms that Maurice Blackburn advised Ms Tomas of her common law rights: Ms Tomas denies it, there are no emails or file notes, or legal costs agreements or letters of advice to this effect, in the period where Maurice Blackburn were acting for her from late 2011 to 2018. The same can be said in respect of MAX Legal, though it must be said they were engaged, it appears, simply for the purposes of the discrimination claim in the AHRC. However, since Ms Tomas was advised of her common law rights at an earlier point and had the capacity to understand this advice, I find she possessed the requisite knowledge in this regard from the time she consulted Nowicki Carbone and discussed these matters with Ms McInnes in November 2010.
58Turning to the issue of whether Ms Tomas was advised of time limits associated with common law rights.
59In her email of 8 November 2010, Ms McInnes noted that eighteen months had to elapse before common law rights could be advanced. Save for that, there is no evidence that time limits, particularly the six-year limitation period applying to Ms Tomas’s claim, were discussed with her. Ms Tomas denies she was ever told of a limitation period.[58]
[58]JCB 31-32
60Technicolor says it should be inferred. Given the state of the evidence, I am not prepared to make such an inference. Simply because the issue of common law rights was discussed by Ms McInnes, it does not lead to a finding that time limits were also discussed. In fact, Ms McInnes’s and Ms Tomas’s discussion can be seen to be focused on jurisdiction, caps on damages, and viability of the claim. This suggests the focus was on those topics associated with any such claim, not time limits. I also note that, at this stage, Ms McInnes had advised that eighteen months needed to elapse before common law rights could be acted upon and that proceedings were on foot for statutory benefits. These matters work against the inference Technicolor says should be made that time limits must have been discussed. This is because Ms McInnes would obviously have been concerned with the statutory rights, first knowing that the issue of common law rights were at least eighteen months away.
61Technicolor also raised the issue of the reliability of Ms Tomas’s evidence and suggested her denial of receiving such limitation advice should not be believed.
62As I have set out above, Ms Tomas’s evidence on not receiving common law advice was not reliable. Other than that, however, I consider she answered questions in a straightforward and direct manner. While my impression of the witness is hampered by Ms Tomas only being present via Zoom, I did consider that she was an honest witness and I accept her evidence, save for on that point above. Overall, then, I do not consider Ms Tomas received advice about time limits associated with common law rights.
63It follows that both Nowicki Carbone and Maurice Blackburn were quite possibly negligent: Nowicki Carbone in respect of not advising her about time limits. Maurice Blackburn in respect of not advising her about common law rights and time limits associated with such rights.
What effect does the former solicitors’ potential negligence have on whether it is just and reasonable to extend time?
64Were Ms Tomas’s former solicitors:
(a) Nowicki Carbone, from 2010-2011 and/or;
(b) Maurice Blackburn, from 2012-2018
negligent, and if so, does this bear on the question of whether it is just and reasonable to extend time?
65On the evidence in this case, I find Ms Tomas has some prospects in demonstrating that both her solicitors, Nowicki Carbone and Maurice Blackburn, have been negligent. This becomes a relevant factor in assessing whether it is just and reasonable to extend time.[59] The strength of the case(s) is difficult to assess for the reasons that his Honour Buchanan JA set out in Tsiadis v Paterson (“Tsiadis”).[60] I will return to an assessment of this factor in due course.
[59]Tsiadis v Patterson (2001) 4 VR 114 (“Tsiadis”) (per Ormiston JA at paragraph [4], Callaway JA at paragraph [6] and Buchanan JA at paragraphs [27]-[29])
[60](Ibid) at paragraph [28]
66In Tsiadis, 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 likelihood that the applicant will succeed in an action against his or her solicitor cannot be known without any precision when an application under s 23A of the Act is decided. … .”[61]
[61] Ibid
67In Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[62] J Forrest J stated:
“… 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.”[63]
[62][2007] VSC 517 (“Gordon”)
[63] (Ibid) at paragraph [86]
68In Gordon, the existence of a strong cause of action against the plaintiff’s solicitors was a significant consideration. This was because the Court had available before it a comprehensive review letter by the Legal Practitioner’s Liability Committee surrounding the original solicitor’s handling of the matter.[64] Such detailed evidence against the two separate solicitors engaged by Ms Tomas is not present in this case. Although I assess there is a case with some prospects against Ms Tomas’s previous legal representation, I find it is not sufficiently substantiated to the standard set out in Gordon to consider it a significant consideration in the circumstances that it is just and reasonable to refuse the extension of time. I therefore give minimal weight to this factor in respect of the limitation application.
[64] (Ibid) at paragraph [105]
69If I were wrong about that, I refer to what the Court of Appeal stated in Griffiths that:
“The existence of a cause of action against a solicitor is a relevant matter; but only in determining if it is appropriate to refuse an application to extend time”.[65]
[65] [2022] VSCA 212 at paragraph [82]
70In this case, I balance Ms Tomas’s right to sue her previous solicitors and its relevance to my discretion to refuse the application. However, there is simply not enough evidence before me to consider the real prospects of her negligence claim(s) against her solicitors and therefore I cannot give it real weight in the application before me.
What specific prejudice would be visited on Technicolor if an extension of time were to be granted?
71Technicolor asserts that it will be specifically prejudiced by reason of the following matters:
(a) that the premises were altered after 2010 and then closed. Technicolor submits that a view is necessary, given the allegations of Ms Tomas are contested and the layout of the factory assumes importance in establishing the veracity of one witness’s version of truth versus another. A view is said to be challenging in the existing circumstances;[66]
(b) CCTV footage of the premises, including the carpark, was not retained beyond ninety days;
(c) while statements from relevant witnesses were obtained by the employer in about November 2010 regarding the allegations made to that point in time, further allegations have since emerged. These allegations are contained in the FMC application based on the sex discrimination allegations, and dated 17 August 2011, and state that:
(i)Ms Tomas carried a metal pole to act as a barrier between her and the perpetrator;[67]
(ii)Ms Tomas made barriers around her machine with trolleys and bins to prevent the alleged perpetrator harassing and touching her.[68]
[66]JCB 18, paragraph [57] of Technicolor’s submissions
[67]JCB 148-149 at paragraph [54] of Ms Tomas’s Statement of Allegations
[68]Ibid
72Technicolor submits that such “newer” allegations cannot be properly explored with witnesses given the likely deterioration of their memory over time. In particular, they draw attention to a witness (Mr Joseph Vass (“Vass”)) who they contacted in 2021, but who was unable to recall the detail of Ms Tomas’s allegations at all.[69]
[69]Second affidavit of Ms McMurray at paragraph [21]; JCB 17 at paragraph [49]
73I do note, however, that this is the only witness that Technicolor refers to in this manner. Otherwise, all that is said in respect of the evidence witnesses may or may not give is:
“Whilst witnesses can be located, the effluxion of time will have inevitably impacted their recollection of events, particularly in circumstances where they have had no cause to consider [Ms Tomas’s] allegations for many years. … .”[70]
[70]JCB 17 at paragraph [49]
74In the circumstances of this case, it is clear that the witness evidence is critical. This is because Ms Tomas’s allegations of inappropriate behaviour by Simeon are wholly contested, there is no CCTV and it is unclear if any other witness saw the alleged behaviour.
75When regard is had to the witnesses who had statements taken in 2010, they are Simeon, Alastair Jacobs (“Jacobs”), Virinder Singh (“Singh”), Trevor Scott Smith (“Smith”) and Vass.[71] The Circumstance Investigation Report conducted in November 2010 identifies two other workers, Thanh Lwu and Thuat Nguyen. Both of these workers denied knowledge of matters the subject of Ms Tomas’s allegations.[72]
[71]JCB 320, Exhibit JM-17
[72]JCB 292, Circumstance Investigation Report, JCB 283, Exhibit JM-16
76From Technicolor’s submission, I am unclear whether Simeon, Jacobs, Singh and Smith are able to, or not able to, comment on the allegations that are said to arise after the initial statements were taken. Only witness Vass is referred to specifically in the affidavit material of Ms Jessica McMurray.
77I accept that, in any event, the remaining witnesses’ memories will have faded. This is not a mere possibility, but presumptive prejudice occasioned by a delay of this magnitude. However, the “newer” allegations were in fact made in the FMC application dated 17 August 2011.[73] At that time, Technicolor was well aware of these allegations because they were in the Court documents and Technicolor was named and clearly served with proceedings.
[73]JCB 148
78Technicolor appeared to contest Ms Tomas being granted an extension of time to proceed with her FMC proceeding. That defence was conducted by solicitors who acted on behalf of all three named defendants, Technicolor, Jacobs and Simeon. That solicitor briefed counsel. It is clear, then, that Technicolor knew well before the expiry of any limitation period of the full breadth of the allegations Ms Tomas was making, and had access to at least both Jacobs and Simeon in order to take instructions on those allegations. I do not accept specific prejudice accrues to Technicolor on this ground.
79The specific prejudice alleged as to the witnesses not making statements regarding the “newer” allegations is more in the nature of general prejudice and I accept it as such. Similar are her allegations that supervisors and managers did not act appropriately.[74] While there are some contemporaneous documents, such as the Circumstance Investigation Report, this case is clearly heavily dependent on witness evidence. This means the critical evidence contained within the minds of the relevant witnesses has been fading.
[74]JCB 587-588
80I find there is specific prejudice to Technicolor, particularly as to the loss of access to the premises. In circumstances where the location of witnesses at the time certain alleged behaviour occurs is critical, then the inability to view the premises assumes real importance. It is true that diagrams can ameliorate this deficiency, but not entirely.
81The access to the CCTV was lost well prior to the statements being taken in November 2010 and has not been caused by the delay.
Should the prospects of success of Ms Tomas’s cause of action bear on an assessment under s23A?
82There was considerable contest between the parties on this point. Technicolor relied on the decision in Murdoch.[75] In Murdoch, the plaintiff sustained injury in a transport accident in 2008. He saw Maurice Blackburn and then Slater and Gordon. In 2012, Slater and Gordon advised him his prospects for obtaining serious injury certification was borderline, but his claim in negligence had reasonable prospects. They also specifically advised him of the applicable limitation period and the date such period was to expire in 2014. The plaintiff let the time limit expire and only sought to agitate the serious injury application in 2017. In considering Ground 1 of the appeal, the Court examined whether the trial judge erred in granting the extension of time by considering the consequences to the plaintiff if the extension of time was refused. In finding the trial judge had not erred, the court stated, in respect of s23A:
“… The section requires the Court hearing an application under s 23A to have regard to all the circumstances of the case. That in turn requires the Court to consider the strength of the proposed cause of action and the extent of an applicant’s alleged injury, loss and damage. … .” [76]
(Emphasis added.)
[75]JCB 724 at paragraph [72] of the judgment
[76]Murdoch at paragraph [72]
83Here, Technicolor submits that Ms Tomas’s cause of action is weak because of the finding of the FMC magistrate and the advice more recently of counsel who drew her serious injury affidavit. Neither document, in my view, sheds any real light on the strength or otherwise of Ms Tomas’s cause of action. Both were made without any real reference to the underlying facts and only a cursory eye on the negligence aspect to the case. The Ruling in the FMC dealt with extension-of-time principles. Counsel’s advice dealt with the serious injury application. As will be set out in the following paragraphs, I consider the Court of Appeal made comments confined to the circumstances of Murdoch which were obiter and not designed to disturb long-established principle.
84In contrast, Ms Tomas relied on the Court of Appeal decision in Griffiths. In that case, too, the plaintiff’s former solicitors provided advice on common law damages, including limitation periods, as well as advising the plaintiff may have trouble succeeding in a negligence claim.[77] The Court stated:
“… if it was thought that [the former solicitor’s] advice as to the dismal prospects of his claim might, in some fashion, count in Mr Griffith’s favour … then this misconstrues the law.
…
[77]Griffiths at paragraphs [8]-[16]
… in the context of this case (i.e. the knowledge of Mr Griffiths as to both the existence of his right to claim damages and the force of the limitations provisions) we regard the question of the viability of the common law claim for damages as fundamentally irrelevant to the judge’s task. … .” [78]
Immediately thereafter the Court referred to his Honour Buchanan JA’s comments in Tsiadis, that the viability of the original claim or a claim against a solicitor “cannot be known with any precision when an application under s 23A of the Act is decided”.[79]
[78](Ibid) at paragraphs [82] and [84]
[79](Ibid) at paragraph [86] citing Tsiadis at paragraph [28]
85Technicolor submitted the Court should apply Murdoch and take into account the allegedly weak case on liability Ms Tomas has. While Griffiths was decided two years after Murdoch, it makes no mention of that case. In this matter, I consider the statements of principle in Griffiths are to be applied rather than Murdoch. To the extent there is any conflict with Murdoch, I consider the established line of authority from Bell v SPC Ltd[80] and Tsiadis ought be followed, as the Court did in Griffiths. For this reason, I do not consider that the underlying strength of Ms Tomas’s cause of action is to be brought to bear in my consideration of whether it is just and reasonable to extend time.
[80][1988] VR 123 at 259, where his Honour set out the change in the legislation that underpinned this principle.
Application of s23A
86I now turn to a more detailed examination of each of the factors set out in s23A.
(a) The length of and reasons for the delay on the part of Ms Tomas
87It is accepted already that the delay is a period of ten years and one month. That is, in my assessment, an inordinate delay.
88She undoubtedly engaged Nowicki Carbone and received some advice in respect of potential common law rights, but was never advised to proceed with such rights or the time limit that she had to progress that claim. As to Maurice Blackburn, I find she was not given advice about common law rights, nor the time limit in which to action those rights, while she was a client of theirs in the period from 2011 to 2018. I find that, during this period, Ms Tomas was able to give instructions and there is no evidence to suggest she did not act in accordance with her solicitors’ advice. During this time, she entrusted her legal rights to her solicitors and complied with their advice. I find that, through no fault of her own, they did not advise her or progress her common law rights within time. I find that the limitation period elapsed without her being given any advice as to the expiry of the limitation period or its effect. I accept her evidence that it was by chance in 2018 that she understood that there might be a time limitation on her common law rights. I reject the suggestion that she acted in a manner that was calculating in the way that she moved through each of the claims and rights that she had. On Technicolor’s submission, that involves beginning with her statutory compensation rights, then moving through the discrimination claim and the superannuation claims. Rather, I find that the evidence discloses clearly that, during this period, she had engaged competent solicitors whose advice she accepted.
89In addition, Technicolor pointed to delay which occurred from August 2018 to about November 2018, when Ms Tomas was unable to proceed with Maurice Blackburn, but then came to engage Slater and Gordon. I consider this to be a short period of time during which Ms Tomas has adequately explained how she cast about, and then came to engage, other personal injury lawyers. I accept that, in late 2018, she discovered the fact that she had a limitation period in respect to her common law rights and acted promptly after that time by engaging Slater and Gordon, who then recommended a course of action to her, which she once again followed. I accept that perhaps Slater and Gordon should have acted with more alacrity and not waited to exhaust the s98C statutory process. There was delay caused by that strategy, but I consider it was reasonable that Ms Tomas left the broad pursuit of compensation to her solicitors.[81]
[81] Welsh v Adecco & Ors [2017] VSC 44 at paragraph [22]
90Overall, while I consider the delay in actioning her common law rights to be inordinate, I consider that the delay is well explained by her lack of knowledge of limitation periods running in respect of any common law rights she was initially advised about by Nowicki Carbone. The failure by her solicitors to reinforce the fact she had those rights, or give her any advice in respect to time limits or the need to progress those rights, explains clearly why she did not act on those rights.
(b) The extent to which, having regard to the delay, there is likely to be prejudice to Technicolor?
91I accept that there is general presumptive prejudice to Technicolor caused by the very significant length of time that has elapsed since these events occurred in 2010. However, there is a large amount of material which was made available to Technicolor in 2010 regarding witness memory by the taking of statements in the Circumstance Investigation Report that ameliorates much of this prejudice. In addition, it appears that nearly all of the relevant witnesses are alive and able to give evidence. I do not accept there is specific prejudice to Technicolor flowing from the newer allegations, as I find these were made shortly after Ms Tomas ceased work, and Technicolor was in a position, at that stage, to at least take some instruction in respect of them from Jacobs and Simeon, who are the key witnesses. I do accept there is some specific prejudice from the closure of the factory, but I do not accept there was specific prejudice occasioned by the delay in the loss of the CCTV footage. As I set out above, there is a considerable body of medical material that appears to be available both pre- and post-2010, which will make the investigation of the claims for damages relatively straightforward. Such material may also illuminate the liability case.
(c) The extent, if any, to which Technicolor had taken steps to make available to Ms Tomas means of ascertaining facts which were, or might be, relevant to the course of action of Ms Tomas against Technicolour
92It is unclear if Technicolor has made available to Ms Tomas or her previous solicitors, Slater and Gordon, the witness details in respect of the relevant witnesses named in the Circumstance Investigation Report. However, it appears the Circumstance Investigation Report was disclosed during the course of earlier proceedings and the means to track down those witnesses remains available to Ms Tomas and Technicolor.
(d) The duration of any disability of Ms Tomas arising on or after the date of the accrual of the course of action
93I have set out above the medical evidence in relation to Ms Tomas and her current mental state. While I find that Ms Tomas suffers from significant mental health problems, those do not affect her ability to make forensic decisions in respect of this proceeding. Nor has it affected her ability to progress her claim since the accrual of the course of action.
(e) The extent to which Ms Tomas acted promptly and reasonably once she knew that the act or omission of Technicolor, to which the injury to Ms Tomas was attributable, might be capable at that time of giving rise to an action of damages
94As I have set out above, Ms Tomas has always acted by entrusting her rights to solicitors such as Nowicki Carbone, Maurice Blackburn and then later Slater and Gordon. She has done so promptly, I find, in 2010 and again in 2011 with Maurice Blackburn. I accept she became aware of the limitation period regarding her common law rights following a Google search and contacted Maurice Blackburn, supported by her email of 24 August 2018.[82] However, it was not until 7 September 2018 that they replied, informing they were unable to assist her.[83] It appears that she then contacted another solicitor at Maurice Blackburn who had assisted with her TPD claim on 17 October 2018.[84] As she did not receive a response for two weeks, she advised them she would “enquire elsewhere”.[85] By 1 November 2018, she had contacted Slater and Gordon and booked an appointment on 8 November 2018.[86] The timeframe then becomes less clear, however it is evident she consulted a solicitor at Slater and Gordon on 9 November 2018.[87] An impairment benefit claim was then lodged. It was resolved at a 32 per cent whole person impairment. A serious injury application was recommended and pursued.[88] I consider she acted both reasonably and promptly in order to advance her common law rights by entrusting competent lawyers with relevant expertise in workplace injury law. She followed their advice. This adequately explains any delay.
(f) The steps, if any, taken by Ms Tomas to obtain medical, legal or other expert advice and the nature of any such advice she may have received
[82]JCB 49 and 57
[83]JCB 50
[84]JCB 55
[85]JCB 56
[86]JCB 65-66
[87]JCB 75
[88] JCB 75-76
95As I have set out above, Ms Tomas obtained relevant expert legal advice at the appropriate times. In turn, they obtained medico-legal psychiatric material, which is of benefit in the overall assessment of the case. She has acted in accordance with the advice of her solicitors at all times.
Whether Technicolor can obtain a fair trial
96In balancing these matters, I also must consider whether or not Technicolor can obtain a fair trial. It is relevant to note that Simeon, in particular, is an individual citizen who no doubt put these allegations behind him well over a decade ago. To have to re-agitate these matters, in his mind, would impose a cost and burden. This is also a factor to balance.
97Similarly, while they are not directly involved, the other witnesses would also have to dredge their memories in respect of those matters.
98However, in this case, the initial Circumstance Investigation Report provides a solid basis from which all witnesses can work. It contains the statements of Simeon, Jacobs, Singh, Smith and Vass. While this is not a case built heavily on documents, there is some part of the case that is built on the failure on the response of Technicolor to the allegations. Mr Jacobs was the relevant HR manager and it appears he took notes and documented various steps taken in the process. This emerges from the Circumstance Investigation Report and also some of the statements of Ms Tomas. These matters will help to jog his memory and also to assist in Technicolor’s defence. There is also material which it appears Technicolor obtained when it commissioned, first Norton Rose and then Justitia Lawyers, to become engaged in respect of the allegations. What that material is, is unclear, as it is no doubt privileged. However, the fact that law firms were involved at this early stage suggests there is likely to be a good documentary trail on which Technicolor and its likely witnesses can draw. These materials substantially ameliorate the general prejudice suffered by Technicolor as to liability.
99There are also the medical notes and histories which I have referred to in part above, and WorkCover documents collected in the course of the statutory compensation claim, which were contested in the Magistrates’ Court. In my assessment that provides a trove of information on which the defence can draw, and witnesses’ memories can be jogged. It also greatly assists Technicolor in its exploration of injury, loss and damage. The specific prejudice occasioned by the loss of the ability to have a view is ameliorated by being able to draw on diagrams of the factory layout. I assess this specific prejudice as slight.
100Overall, then, while the delay is a long period, it is my assessment that Technicolor can obtain a fair trial. In all these circumstances, I will grant Ms Tomas the extension of time that she seeks.
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