Tomolo v Superior Meat and Poultry Supply (Aust) Pty Ltd (Ruling)
[2021] VCC 1081
•10 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-21-02328
| GIUSEPPE TOMOLO | Plaintiff |
| v | |
| SUPERIOR MEAT & POULTRY SUPPLY (AUST) PTY LTD (ACN 109 345 753) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2021 | |
DATE OF RULING: | 10 August 2021 | |
CASE MAY BE CITED AS: | Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1081 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Extension of time – application for extension of time within which to bring action — personal injury in course of employment – whether limitation period should be extended – prejudice resulting from delay – negligence by plaintiff’s former solicitor in failing to institute proceeding — whether a relevant factor
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd [2020] VCC 851; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Commonwealth of Australia v Smith [2005] NSWCA 478; Holt v Wynter (2000) 49 NSWLR 128; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Welsh v Adecco & Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Morrison v Judd [1995] NSWCA 300; Millard v State of Victoria [2006] VSCA 29; Repco Corporation v Scardamaglia [1996] 1 VR 7
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Tsikaris | GPZ Legal |
| For the Defendant | Ms F Ryan | Wisewould Mahony |
HER HONOUR:
1The plaintiff, Mr Giuseppe Tomolo, seeks an extension of the period in which he can bring a claim, pursuant to s23A of the Limitation of Actions Act 1958 (Vic) (“the Act”).
2For the reasons set out below, the plaintiff’s application is dismissed.
Background
3Mr Tomolo was born in February 1972 and is 49 years old. In 2009, he worked as a butcher and manager at a butcher shop owned by the defendant company. Mr Kostas and Mr Labrakos were the directors of the company but neither of them worked at the butcher shop with Mr Tomolo. The company was deregistered on 18 May 2011.
4Mr Tomolo says the floor surface of the butcher’s shop was “amongst the worst, if not the worst” he had worked on in his career as a butcher. He alleges that the defendant failed to ensure that the floor was not slippery by, for example, using non-slip mats as he had seen at other butcher shops he had worked in. He says that the defendant did not inspect the floor and in fact made the floor more slippery by painting it with a blue coating.
5On 15 July 2009, Mr Tomolo says he was called from the sink where he was working at the back of the shop to the front of the shop to assist at the service counter. He slipped over and fell heavily on his tailbone “on a meat slide”.
6It is not entirely clear whether he slipped on the meat slide, or landed on the meat slide. The Amended Statement of Claim makes no mention of the meat slide; however, in his affidavit sworn on 20 October 2017 in support of his serious injury application, Mr Tomolo says that “[w]hen the boners had cut down the carcass they would just drop the slides on to the floor and move on to the next carcass. They were supposed to place them in a crate, but sometimes when the shop was busy, as it often was, they would just toss them and miss the crate and they would lie on the floor”. In any event, there would appear to be some role played by the meat slide, either by causing or contributing to the fall, or causing or contributing to the damage.
7Mr Tomolo says this fall was the fourth and most serious of the falls he had whilst working at the defendant’s premises. He says it was a much more serious fall than he had experienced in the past. He says it was a busy day and “as usual the preparation section and the flooring was very slippery and wet”. He was called to assist at the service counter and “[a]s I moved off, I slipped. I was in shock and remained sitting on the ground for some time. Other workers helped me to my feet. I felt immediate pain in my low back and neck. Throughout the day I struggled, however I continued to work because as the manager it was my responsibility to continue and run the shop”.
8Mr Tomolo says other staff had also slipped and fallen but fortunately no one had a serious injury at that time. He says he believes Mr Labrakos was aware that the floor was hazardous “and I certainly mentioned this to him, and the falls also”. He said he had concerns for his job security because he “hadn’t been there that long, so I didn’t want to make a big thing of it. John’s partner George was an abrasive man so I was too intimidated to push the issue”.
9Mr Tomolo says the defendant did not respond to his previous complaints about the slippery floor, failed to provide appropriate training and failed to provide appropriate footwear.
10Mr Tomolo’s counsel submitted that he made a contemporaneous report of falls and the status of the floor. Mr Kostas and Mr Labrakos do not have any recollection of this report. There is no documentary evidence that such a complaint was made at the time of the incident. A WorkCover claim was not made until 31 March 2010. This was the first that the defendant says it knew about the injury.
11The WorkCover Worker’s Injury Claim Form lists Angelo Della Sabina and Allan Kukurizovic as witnesses to the incident.
12In or about June 2014, Mr Tomolo instructed Taylor Preston Lawyers to act on his behalf in relation to his WorkCover entitlements. He says that he was asked to sign a number of authorities directed to obtaining records from his treating doctors, the Australian Taxation Office and Centrelink, as well as a client agreement. He understood that his lawyers would lodge an impairment benefit on his behalf.
13It is common ground between the parties that Mr Tomolo’s limitation period expired on 15 July 2015.
14Whilst Mr Tomolo does not specifically recall requesting that his lawyers make an application for a serious injury certificate, his counsel submits that the Court can infer that his instructions included investigating and lodging a common law claim, as he was required to sign authorities to enable his solicitors to obtain documents from the Australian Taxation Office and Centrelink. Those documents would only be relevant to a common law claim.
15Mr Tomolo says that he contacted his lawyers on several occasions requesting an update on progress and, in particular, on 6 January 2015 and 30 April 2015, both dates prior to the expiration of his limitation period. He was told that after his impairment claim was finalised he would be advised about his prospects of pursuing a common law claim.
16Mr Tomolo does not recall ever receiving any advice about his limitation period. His counsel conceded that he was provided with limitation advice by the first lawyer he consulted, Barbante Lawyers, in 2010 or 2011 and prior to seeing Taylor Preston Lawyers. He has no specific recollection of this, which is unsurprising. However, it is not disputed that he instructed Taylor Preston Lawyers prior to the expiration of his limitation period.
17Notwithstanding the fact that he had consulted his lawyers more than twelve months before his limitation period expired, neither his impairment benefit claim nor his serious injury application were lodged by 15 July 2015.
18It is not clear when the impairment benefit claim was lodged but it appears to have been in August 2015. It was accepted by the WorkCover insurer on 9 December 2015.
19On 16 December 2015, Mr Tomolo had a meeting with his solicitor. She told him that she would retain $1500 from the impairment benefit entitlement to prepare the documentation required for his common law claim. Mr Tomolo instructed her to proceed. He was not aware that he was already out of time.
20At some point in 2016, his solicitor moved from Taylor Preston Lawyers to Footner McInnes Wren Lawyers, taking Mr Tomolo’s file with her.
21In October 2016, the plaintiff received a letter from Footner McInnes Wren Lawyers enclosing medical authorities for him to sign. On 17 February 2017, he met with his solicitor to discuss his serious injury affidavit. His serious injury application had still not been filed at that point. He did not hear anything further until October 2017.
22In October 2017, his solicitor telephoned the plaintiff to advise she was now working for J & N Zigouras & Co. He was asked to attend to finalise his affidavit and transfer his file. The serious injury application had still not been filed.
23Mr Tomolo’s serious injury application was served on WorkSafe Victoria on 8 January 2018 and rejected on 27 August 2018. Mr Tomolo was not informed that the insurer had, at the time of rejecting his application, indicated that it would rely on a defence that his common law claim was out of time.
24Mr Tomolo was advised that he would have to issue his application in Court and was asked to fund the cost of filing the Originating Motion. The application was filed on 8 October 2018.
25In January 2019, Mr Tomolo’s file was again transferred to Johnstone and Reimer Lawyers, where his solicitor was now working. His serious injury application was determined on 25 June 2020[1] and he was granted leave to issue proceedings for damages for pain and suffering and loss of earning capacity.
[1]Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd [2020] VCC 851
26On 13 August 2020, he attended a settlement conference pursuant to s134AB(12) of the Accident Compensation Act 1985. This is the first time he was aware that his common law claim was out of time. Mr Tomolo’s solicitor issued a generally endorsed Writ on 28 October 2020 to preserve his rights in relation to his common law claim and Mr Tomolo’s current lawyers, GPZ Legal, commenced acting for him. As foreshadowed by the defendant insurer, the defendant pleaded the expiration of his limitation period in its Defence, and, accordingly, the plaintiff brought this application.
The applicable law
27The Act provides the Court with the discretion to extend the time period in which a claim can be made if it is “just and reasonable” to do so. In exercising its discretion, the Court shall have regard to all the circumstances of the case, including (without derogating form the generality of the foregoing):
(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.
28The High Court case of Brisbane South Regional Health Authority v Taylor[2] establishes that there are four broad rationales for the enactment of limitation periods. Firstly, as time passes, relevant evidence is likely to be lost. Secondly, 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. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be brought against them, and finally, it is in the public interest to have disputes settled as quickly as possible.
[2] (1996) 186 CLR 541
29The following principles apply:
(a)It is for the plaintiff to show that the discretion ought to be enlivened;[3]
(b)A claim that proceeds outside the limitation period is, prima facie, prejudicial to the defendant (“presumptive prejudice”);[4]
(c)Presumptive prejudice is to be taken into account but may not, of itself, disentitle a plaintiff. However, if there is “significant” prejudice, an extension should not be granted.[5] Even without significant prejudice, the plaintiff must discharge the persuasive onus;[6]
(d)In determining whether there is significant prejudice, one must consider whether there can be a fair trial. A fair trial is not a perfect trial.[7] The key factor in determining the question of significant prejudice is that of an acceptably fair trial;[8]
(e)Whether the asserted prejudice will prevent an acceptably fair trial is to be determined by the prejudice that exists at the time of the application, not the prejudice that existed at the time the limitation period expired. The prejudice caused by the whole of the period of time, from the date of the accrual of the cause of action, is relevant to the exercise of the discretion;[9]
(f)The existence of a cause of action by the plaintiff against their solicitors by reason of the conduct of the claim is a matter to be taken into consideration.[10]
[3] (Ibid) at 554; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 at paragraph [99]
[4]Brisbane South Regional Health Authority v Taylor (supra) at 554; Commonwealth of Australia v Smith [2005] NSWCA 478 at paragraph [123]
[5] Holt v Wynter (2000) 49 NSWLR 128 at paragraph [116]
[6] Commonwealth of Australia v Smith (supra) at paragraph [129]
[7] South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at paragraph [33]
[8] Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 (“Gordon”) at paragraph [79]
[9]Welsh v Adecco & Ors [2017] VSC 44; Brisbane South Regional Health Authority v Taylor (supra) at 548
[10]Tsiadis v Patterson (2001) 4 VR 114 at paragraph [28]; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (supra) at paragraph [82]; Morrison & Anor v Judd [1995] NSWCA 300
30In enshrining in legislation a limitation period, the legislature has decided that the period of time in which a plaintiff can bring a claim is not open ended. The purpose of the limitation period is to ensure, as far as is possible, that a fair trial can take place. Even when a claim is brought within the limitation period, the passage of time can cause prejudice to a party – memories fade, witnesses die or cannot be found, documents get destroyed. Once a plaintiff seeks to go beyond what the legislature has determined is a reasonable period in which to bring a claim, the plaintiff must persuade the court that it is both just and reasonable to do so.
31As it is a very serious matter for a plaintiff to be shut out from having their case heard, regardless of the merits of that case, the bar for a plaintiff to establish that it is “just and reasonable” to extend time is not, and should not be, unattainably high.
32The relevant considerations in this application are the length and reasons for the delay and the extent to which there is, or is likely to be, prejudice to the defendant. The other matters required to be considered are not relevant in these circumstances and are dealt with only briefly below.
Length of and reasons for the delay
33Mr Tomolo submits, and the defendant accepts, that he is not at fault in the delay. He engaged solicitors well within time and instructed them to pursue his claim. The parties agree that the length of the delay is eight years and five months.
34In his decision granting Mr Tomolo a serious injury certificate, Judge Bowman described Mr Tomolo as “not a sophisticated man”. I consider it entirely reasonable for Mr Tomolo, having engaged solicitors to act for him to pursue his entitlements, to rely on those solicitors to take whatever steps were required to preserve his rights in relation to a common law claim. Whilst a plaintiff who instructs solicitors and hears nothing for years and makes no enquiries may, by their own conduct, be found to have contributed to the delay, Mr Tomolo cannot be criticised for his actions. He contacted his solicitor from time to time, and attended when requested to do so. Through no fault of his, his solicitor changed firms several times during the time she managed his case, but that does not confer on him any greater responsibility for ensuring that proceedings were issued in time. I accept that he was not aware that his limitation period had expired and that this provided the defendant with a defence, until after his common law proceedings were issued.
Prejudice caused or likely to be caused to the Defendant
35Mr Tomolo says that there is no or very little actual prejudice to the defendant occasioned by the delay for the following reasons:
(a)The company was deregistered in 2011 and the premises were sold at that time. Any prejudice arising from this would have manifested even if the proceedings were brought in time;
(b)Although the defendant company has been deregistered, the directors, Mr Kostas and Mr Labrakos, are available to provide instructions;
(c)The unavailability of any witnesses to the incident, or employees who can give evidence about the state of the floor at the time and the propensity for boners to leave meat slides on the floor, will be a disadvantage primarily to the plaintiff, who must prove his claim;
(d)There is no dispute that the injury occurred in the course of employment and the WorkCover insurer has accepted the claim;
(e)The Claim Form was submitted in 2010 and the defendant had the opportunity at that time to obtain medical records. The Claim Form referred to other incidents and the defendant could have investigated those incidents at that time, before records were lost or unavailable. To the extent that medical records are now lost or unavailable, they do not deprive the defendant of a fair trial;
(f)The defendant has not been deprived of its ability to undertake proper investigations.
36The defendant says that, contrary to the plaintiff’s submissions, there is “overwhelming” prejudice to the defendant caused by the passage of time:
(a)The premises have been sold and all documentation relating to the company has been destroyed. It is no answer to say that the premises were sold prior to the expiration of the limitation period. As a matter of policy, the legislature has decided that, where a claim is brought within time, any prejudice suffered arising from the passage of time is borne by the defendant. After that time, the court must determine who bears that prejudice.
(b)There are no photographs of the floor in existence. The defendant’s solicitor has spoken with the current occupants of the premises and examined the floor. The floor is now a tile floor and the current occupants say that it was a tile floor at the time they moved in, about five years ago.
(c)The plaintiff named two witnesses to the incident on 15 July 2009. The defendant has undertaken extensive investigations to try to locate these witnesses, including electoral roll searches and engaging the services of a private investigator. The witnesses have not been located and it is believed that one of them may have died. The plaintiff concedes that these witnesses cannot be located.
(d)The defendant employed other people at the premises, including two women who worked at the service counter, but has retained no records and does not know their identity. Accordingly, they cannot be located.
(e)On the day of the injury, the plaintiff attended his general practitioner. There is a record of that date that simply says, “LOWER BACK”. The plaintiff did not attend his general practitioner again until 18 March 2010. From 6 August 2009, he primarily sought treatment from his chiropractor, Dr Jonathan Richardson. Dr Richardson’s records from this period are not available.
(f)The defendant has attempted to obtain medical records for the plaintiff from 36 treating medical practitioners and clinics. It has only been successful in obtaining records from 17 of those doctors and clinics. A number of records have been destroyed or are simply not available. A number of medical practices have subsequently closed.
(g)Where records have been obtained, they demonstrate potential further prejudice. The exact date of Mr Tomolo’s employment is not known. There is evidence that he may have sustained injuries prior to his employment but this cannot be ascertained for certain.
37In relation to the final point, the records of Northern Health indicate that the plaintiff attended Northern Hospital on 30 April 2008 and gave a history that he had fallen onto his backside in 2007. The plaintiff has no recollection of this incident. On 30 April 2008, his general practitioner notes that he has constant lower back pain, occasionally severe. On 1 September 2008, the plaintiff gave a history to his general practitioner that he had had back pain for six months and that it was worse more recently. His general practitioner notes that he is tender at S1 and his coccyx.
38In his affidavit sworn in support of his serious injury application, Mr Tomolo said he commenced working with the defendant in 2007. At the hearing of that application, Mr Tomolo gave evidence, and the Judge accepted, that he commenced working for the defendant on approximately 15 December 2008. This is also consistent with his evidence that he did not want to press the issue of the poor floor surface with Mr Labrakos around the time of his injury as he “had not been there that long”. In his Worker’s Injury Claim Form, he says his employment commenced on 15 December 2009. This would appear to clearly be an error which has been repeated on the Employer Claim Form and should have referred to 2008. On 19 April 2009, the notes of North Western Osteopath recorded “change jobs, Butcher! same hours, slightly more physical”. This could suggest that the plaintiff had changed jobs in or around April 2009, or could suggest that this was the first attendance on his osteopath since his change of job in about December 2008. The plaintiff’s tax returns indicate that he commenced work with the defendant in the 2009 financial year, that is, between 1 July 2008 and 30 June 2009. This is consistent with him commencing work in December 2008.
39Between 26 September 2007 and 19 April 2008, Mr Tomolo attended North Western Osteopathy complaining of neck and lower back pain. It is possible that these attendances occurred prior to the commencement of his employment with the defendant but, due to the lack of documents, it is not possible to be certain.
40On 1 September 2008, Mr Tomolo presented to Northern Hospital. The notes of that attendance record “fall onto backside 8/12 ago, developed LBP 2/12 later”. This suggests that Mr Tomolo had a fall in about January 2008 and developed lower back pain around March 2008. The defendant says that this is relevant because it is unable to establish whether, at the time of the fall which resulted in Mr Tomolo presenting at Northern Hospital in September 2008, he was employed by the defendant. This attendance clearly pre-dated the fall which caused him to ultimately make this claim.
41I am satisfied that there is clear evidence of actual prejudice to the defendant, that goes beyond presumptive prejudice. The actual prejudice includes the unavailability of witnesses to the alleged incident who could be expected to give evidence about the circumstances of the fall and the state of the floor at the time, including the presence of a meat slide on the floor. The prejudice also includes the unavailability of other people who worked at the premises to give evidence about the general condition of the floor, including whether it was regularly hazardous, as suggested by the defendant, and whether other staff had also fallen or complained about the state of the floor. To the extent that the plaintiff says that this prejudice impacts his case more heavily than the defendant’s, I note that the test is not a weighing up of the respective prejudice, but an examination of whether a fair trial is possible. Having said that, I do not accept that the prejudice weighs more heavily on the plaintiff than the defendant. The defendant will be met with the plaintiff’s evidence and, in the absence of other witnesses, be unable to call any positive evidence to refute it. The plaintiff is prejudiced only to the extent that the witnesses would have corroborated his evidence, something which we can now never know.
42I am satisfied that the fact that all documentation has now been destroyed, and there is no photographic or other evidence available about the state of the floor and whether the floor coating was in compliance with Australian Standards as alleged by the defendant, or “one of the worst floors” as alleged by the plaintiff, is also the cause of actual prejudice to the defendant.
43I am satisfied that the unavailability of witnesses who observed the incident is the cause of actual prejudice to the defendant.
44I am also satisfied that the unavailability of a significant number of medical records, particularly the chiropractor’s notes from August 2009 until 2010, may cause actual prejudice to the defendant in defending the case. It may be that the available medical material is sufficient to enable a fair trial; however, the lack of records is clearly a cause of some actual prejudice to the defendant. I do not accept that the defendant had an obligation to initiate investigations in 2010 when the WorkCover claim was lodged and thus bears some responsibility for the subsequent lack of available records. Whilst an employer could undertake those investigations, including obtaining treating medical records and witness statements from co-workers, it is reasonable for an employer not to incur the costs involved in doing this until and unless it is satisfied that those costs are necessary and justified.
45Finally, I am satisfied that the uncertainty and inability to conclusively determine the date of the plaintiff’s employment with the defendant may give rise to some actual prejudice in establishing whether complaints about falls and back pain pre-dated his employment with the defendant. I expect, however, that the evidence available, including the tax records, would be sufficient to enable a court to come to a conclusion on the balance of probabilities as to the likely date of employment, as his Honour Judge Bowman did, and, accordingly, I give little weight to this consideration.
46However, considering all the above, I am satisfied that due to the passage of time, there is significant prejudice to the defendant which would mitigate against the granting of the application.
Availability of a claim against the Plaintiff’s solicitor
47There is a further matter to consider in assessing whether, in all the circumstances, it is just and reasonable to grant the application.
48Mr Tomolo engaged lawyers to act for him in June 2014. His limitation period expired in July 2015. The Originating Motion for the serious injury application was not issued until 8 October 2018, more than four years after he first instructed his solicitor.
49Some cases, for example those involving medical negligence claims, involve circumstances that are so complicated, the medical evidence so voluminous and expert opinion so difficult to obtain that a solicitor cannot provide advice to a client about their prospects of success until they have undertaken extensive and time consuming investigations. That is not this case.
50Mr Tomolo’s claim is relatively straightforward, at least as far as the serious injury application goes. He says he fell at work because the floor was slippery and suffered an injury as a result. Questions of negligence and the liability of the defendant are not of particular relevance at the serious injury stage. What is relevant is whether the injury was caused by the workplace incident and whether it meets the “serious injury” test in terms of the consequences for the plaintiff. There is no suggestion that there is anything out of the ordinary about the plaintiff’s condition, or anything particularly complicated or unusual about his claim which would warrant a four-year gap between obtaining instructions and issuing proceedings.
51The Court of Appeal considered, in Millard v State of Victoria,[11] that the plaintiff should not be held responsible for the neglect and defaults of his solicitors, even when such defaults were “glaringly obvious”.
[11] [2006] VSCA 29
52In Repco Corporation Ltd v Scardamaglia,[12] Smith J said:
“… In the present case, if the section does require consideration of the possibility of Mr Scardamaglia’s right to sue his legal representatives, I am not persuaded that that possibility is something that should affect my view that on balance it would otherwise be just and reasonable to exercise the discretion in his favour. While it might be said that on the evidence before the court the rights against the legal representatives appear to be strong, there is no admission of negligence by the legal representatives and the issues that may arise in any such action have not been investigated or pursued fully in these proceedings. In any event, confining Mr Scardamaglia to an action against the legal representatives would carry with it its own prejudice. He would be able to seek compensation not in respect of his injuries, but for his loss of his right to sue Repco. He would find himself having to prove two cases - the original case against Repco and a further case, the case against the legal representatives. The proceeding would, therefore, be more time consuming and more costly. There would also be a real risk, that, if successful, any sum recovered would be less than any sum that he would have recovered in the original proceeding; for any damages awarded would be for the lost chance to recover damages in the proceedings against Repco: Johnson v Perez (1988) 166 CLR 351; Nikolaou v Papasavas Philips and Co (1989) 166 CLR 394.”
[12] [1996] 1 VR 7 at 15
53I am conscious of the caution expressed by the Court of Appeal in Repco[13] and Millard,[14] as well as the case of Tsiadis,[15] where Buchanan JA stated that usually the likelihood of success in such a claim will not be known. In that case, no evidence had been led or submissions made on behalf of the solicitor to give the Court comfort that a viable case against the solicitor existed. In those circumstances, the existence of a potential case against the solicitor was not sufficient to persuade the Court to dismiss the application.
[13] Ibid
[14] Supra
[15] Supra
54In Gordon[16] J Forrest J noted that the considerations in Tsiadis[17] in relation to the unknowability of the strength of the case against the solicitor did not arise. The solicitor had sworn a comprehensive affidavit detailing the firm’s handling of the file and the Legal Professional Liability Committee (“LPLC”) had written a letter which minutely detailed the handling of the file. In that letter, the LPLC had expressed its opinion that the plaintiff had a good claim in negligence against the firm, Slater and Gordon. His Honour expressed the opinion that “as against Slater and Gordon, the plaintiff has a powerful, if not overwhelming, case”.[18]
[16] Supra
[17]Supra
[18]Gordon (ibid) at paragraph [107]
55This is not a case in which there is any evidence at all from the former solicitor, or any of the four firms at which she worked during the period in which she had conduct of Mr Tomolo’s claim.
56It is submitted by his current solicitors that Mr Tomolo has done nothing wrong in the conduct of his claim, and his own evidence supports this proposition. I accept that this is so. This is not a case where he failed to give instructions, missed medico-legal appointments, or did not make himself available when required.
57However, the lack of evidence before the Court from the solicitor against whom Mr Tomolo appears to have a prima facie claim is not the same as a finding that the prospects of that claim are unknown or unknowable. The sworn evidence of Mr Tomolo’s current solicitor sets out the steps taken by his former solicitor. There is an unexplained delay in issuing the serious injury application. That, combined with Mr Tomolo’s own evidence that he has always been cooperative and compliant with advice given, and that he gave instructions to pursue common law proceedings, leads me to conclude that he has a potentially strong case against his former solicitor.
58It would be contrary to the interests of justice to allow a solicitor to avoid a potential claim against them by not putting before the Court any evidence about their conduct of the file and reasons for the delay, and then relying on the absence of that evidence as an argument that the case against them is unknowable and therefore the extension should be granted.
59I consider that the plaintiff has a prima facie claim against his former solicitors and this is a factor to consider in exercising my discretion to grant the extension of time.
Conclusion
60In Gordon,[19] J Forrest J was not satisfied that there was more than presumptive prejudice, but that this, combined with the “powerful” case against the solicitor, was sufficient to dismiss the application.
[19] Supra
61In this case, I am satisfied that there is both actual, significant prejudice to the defendant due to the passage of time and that the plaintiff has a prima facie case against his former solicitor.
62Turning briefly to the other matters I am required to consider:
(a)Section 23A(3)(c) of the Act:
“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.”
There is no evidence that the defendant has taken any steps to withhold information from the plaintiff or has been in any way a cause of the delay by the plaintiff. None has been suggested by the plaintiff;
(b)Section 23A(d) of the Act:
“the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action.”
There is no relevant disability that has caused any delay.
(c) Section 23A(e) of the Act:
“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.”
The plaintiff sought legal advice within the limitation period.
63Mr Tomolo carries the onus of persuading me it is just and reasonable to extend time. I have taken into account the purposes which underlie the statutory prescription of limitation periods. I accept that he has acted reasonably. However, I am persuaded that the defendant has suffered significant prejudice and I attribute that considerable weight. I also consider the existence of a potential claim against his former solicitors as a matter of some weight, though I weigh this less heavily than the actual prejudice caused to the defendant. The defendant played no part in contributing to the delay. Ultimately, I am not persuaded, in all the circumstances, that it is just and reasonable to extend the time for the plaintiff to bring a claim against the defendant.
64The plaintiff’s application will be dismissed and I will consider any submission the parties wish to make about costs.
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