Verschuur v Savannah Victoria Pty Ltd (trading as Riva St Kilda) and Anor; Jeanes v Savannah Victoria Pty Ltd (trading as Riva St Kilda) and Anor (Ruling)
[2023] VCC 199
•22 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-18-02384
| PAUL GREGORY VERSCHUUR | Plaintiff |
| v | |
| SAVANNAH VICTORIA PTY LTD (trading as Riva St Kilda) (ACN 085 552 932) | First Defendant |
| and | |
| NATIONAL SECURITY AGENCY PTY LTD | Second Defendant |
-and-
Case No. CI-18-04181
| ALLYSON JEANES | Plaintiff |
| v | |
| SAVANNAH VICTORIA PTY LTD (trading as Riva St Kilda) (ACN 085 552 932) | First Defendant |
| and | |
| NATIONAL SECURITY AGENCY PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 December 2022 | |
DATE OF JUDGMENT: | 22 February 2023 | |
CASE MAY BE CITED AS: | Verschuur v Savannah Victoria Pty Ltd (trading as Riva St Kilda) and Anor; Jeanes v Savannah Victoria Pty Ltd (trading as Riva St Kilda) and Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 199 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury ꟷ assault outside venue – application to bring claim for common law damages out of time – discoverability of cause of action – prejudice – fair trial
Legislation Cited: Limitation of Actions Act 1958 (Vic); Limitation Act 1969 (NSW), s50D
Cases Cited:Donmez v Neissa & Anor [2012] VSC 73; Spandideas v Vellar [2008] VSC 198; McLaughlan v Pun & Anor (Ruling) [2016] VCC 518; State of New South Wales v Gillett [2012] NSWCA 83; Moore v Escott & Ors [2022] VSC 353; Lagogiannis v ALH Group Pty Ltd [2016] VCC 30; Bell v SPC Ltd [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Delai v Western District Health Service & Anor [2009] VSC 151; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Transport Accident Commission v Murdoch [2020] VSCA 98; Welsh v Adecco & Ors [2017] VSC 44; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Clark v McGuinness [2005] VSCA 108; Sparkes v Hylemit Pty Ltd [2016] VSC 453; Griffiths v Nillumbik Shire Council [2022] VSCA 212; South Western Sydney Area Health Service v Gabriel & Anor [2001] NSWCA 477; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Ruling:Applications granted. Orders made extending the period of limitation to the causes of action set out in the plaintiffs’ statements of claim against the first defendant. Declaration that claim against second defendant issued within time.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff in proceeding CI-18-02384 | Mr J Brett KC with Mr E Makowski | Arnold Thomas Becker |
| For the Plaintiff in proceeding CI-18-04181 | Mr P Haddad | Arnold Thomas Becker |
| For the First Defendant in each proceeding | Mr D McWilliams | Clyde & Co |
| For the Second Defendant in each proceeding | Mr D Masel SC with Mr S Martin | Wotton Kearney |
HIS HONOUR:
1On 9 June 2014, Paul Verschuur and Allyson Jeanes were assaulted by intoxicated and/or aggressive patrons upon exiting a venue in St Kilda operated by the first defendant, Savannah Victoria Pty Ltd, trading as Riva St Kilda (“Riva”).
2Mr Verschuur and Ms Jeanes have issued separate proceedings – on 4 June 2018[1] and 21 September 2018[2] respectively – alleging that they sustained various injuries as a consequence of the negligence of Riva.
[1]Proceeding CI-18-02384
[2]Proceeding CI-18-04181
3In its Defences filed on 16 July 2019 and 30 August 2019 respectively, Riva allege that National Security was contracted by it to provide security services at the venue on the night in question.
4On 23 January 2020, the plaintiffs were granted leave to join National Security Agency Pty Ltd (“National Security”) as the second defendant.[3]
[3]See the Order of Judicial Registrar Gurry made 23 January 2020, and the Amended Writ and Statements of Claim dated 25 November 2019 in each proceeding
5Each defendant pleads to the effect that the plaintiffs’ claims cannot be maintained as they have been brought more than three years from the date upon which the cause of action accrued, and are therefore statute-barred.
6It is not in dispute that:
(a) the relevant limitation period within which to issue proceedings for personal injury under the Limitation of Actions Act 1958 (Vic) (“the LA Act”) is three years from the date of discoverability of the cause of action;
(b) both of the plaintiffs’ proceedings against Riva were commenced out of time.
7Mr Verschuur seeks, by way of summons filed 20 October 2022:
(i) an order pursuant to s23A of the LA Act that the period within which an action on the plaintiff’s cause of action against the first defendant may be brought be extended for such period as the Court determines.
(ii) a declaration that the date at which the plaintiff’s cause of action as against the second defendant was first discoverable on 16 July 2019 pursuant to s27F(1)(b) of the LA Act and that the claim made against the second defendant was brought in time pursuant to s27D(1)(a) of the LA Act.
(iii) in the alternative to the order sought in paragraph (ii), an order pursuant to s23A of the LA Act that the period within which an action on the plaintiff’s cause of action against the second defendant may be brought be extended for such period as the Court determines.
8By her Summons, also filed 20 October 2022, Ms Jeanes seeks the same relief.
9Both defendants oppose the relief sought by the plaintiffs.
10For the reasons which follow, the time within which to issue proceedings against Riva will be extended to the date of filing of the Writs in both the Verschuur and the Jeanes’ proceedings. Further, I find that both plaintiffs’ proceedings were issued against National Security within time.
The evidence
11The parties relied upon the following material:
(a) Mr Verschuur – his affidavit sworn 4 November 2022 and the affidavit of his solicitor, Ms Allanah Goodwin, sworn 4 November 2022, including exhibits;
(b) Ms Jeanes – her affidavit sworn 9 November 2022 and the affidavits of her solicitor, Ms Marita Snipe, sworn 9 November 2022 and 13 December 2022, including exhibits;
(c) Riva:
(i)in the Verschuur proceeding – the affidavit of its director, Mr Drewe Bellmaine, sworn 2 December 2022, and the affidavit of its solicitor, Ms Kelly MacDonald, sworn 5 December 2022, including exhibits;
(ii)in the Jeanes proceeding – the affidavit of its director, Mr Drewe Bellmaine, sworn 2 December 2022, and the affidavit of its solicitor, Ms Kelly MacDonald, sworn 5 December 2022, including exhibits;
(d) National Security:
(i)in the Verschuur proceeding – the affidavits of its solicitor, Mr William Patrick Gordon, affirmed 5 December 2022 and 13 December 2022, including exhibits; and
(ii)in the Jeanes proceeding – the affidavit of its solicitor, Mr William Patrick Gordon, affirmed 5 December 2022, including exhibits.
12Mr Verschuur and Ms Jeanes were called to give oral evidence. Mr Verschuur adopted his affidavit sworn 4 November 2022 and was cross-examined by both defendants for 15 minutes each, a limit I imposed due to his poor health. Ms Jeanes adopted her affidavit sworn 9 November 2022 and was cross-examined by both defendants. Ms Jeanes and both defendants relied upon written outlines of submissions.
Background
13On 8 June 2014, Mr Verschuur and Ms Jeanes had dinner and drinks at Riva. Upon exiting the venue in the early hours of 9 June 2014, the then-couple were subject to a violent attack (“the assault”). Mr Verschuur was punched in the side of the head by two men. Once on the floor, he was punched multiple times in the face and jaw area. Ms Jeanes was accosted by three women, pulled to the ground by her hair, and then repeatedly punched and kicked in the face and back.
14A bystander helped the couple into a taxi, and they were taken to St Kilda Road Police Station. An ambulance transported the couple to the Alfred Hospital, where both were admitted for treatment.
15Mr Verschuur and Ms Jeanes believe that the assault was carried out by a group who had previously been ejected from Riva on the night due to their levels of intoxication, and who may have been under the impression that Mr Verschuur and Ms Jeanes were responsible for their ejection. The plaintiffs believe that having been ejected, the group waited in the vicinity of the venue for them to leave before attacking.
16As a result of the assault, Mr Verschuur suffered a fractured jaw, dislodged teeth, a broken nose, cracked ribs and bruising. He has required extensive dental surgery, which included the insertion of multiple dental implants and bone grafting. He contracted sepsis in connection with the surgeries. Mr Verschuur has also suffered a mental injury as a result of the incident.
17Ms Jeanes suffered bruising to her face, an injury to her back and a mental injury.
18Mr Verschuur and Ms Jeanes consulted Mr Domenic Arvia at Menzies Arvia Lawyers in September 2014 seeking advice regarding a Victims of Crime application and a claim in negligence against Riva. Mr Verschuur was prompted to seek legal advice at the recommendation of his dentist, who was treating his assault-related injuries.
19Mr Arvia’s file was produced to the Court. The file reflects that on 17 September 2014, Mr Arvia sent Mr Verschuur four separate letters:
(a) the first confirming his instructions;
(b) a second advising on a potential public liability/Wrongs Act 1958 claim in negligence;
(c) a third advising on potential claims to the Victims of Crime Assistance Tribunal; for compensation pursuant to s85B and s86 of the Sentencing Act 1991; and at common law; and
(d) a final letter containing a costs disclosure statement.
20In his letter advising on the potential claim in negligence, Mr Arvia advised Mr Verschuur of the three-year limitation period pertaining to such a claim:
“The first and most important consideration is ensuring any claim is commenced within the appropriate time limit. In Victoria, Public Liability claims need to be commenced within 3 years of the “date of discoverability”. As a starting point, you should assume that your claim needs to be commenced within 3 years of the date the injury occurred.”[4]
[4]Paul Verschuur (“PV”) Court Book (“CB”) 28
21The letter giving general advice as to common law claims also stated:
“Victims of crime may also be entitled to commence civil proceedings directly against the perpetrator of the crime or in some cases a third party/venue etc. Damages for both pain and suffering and economic loss can be claimed and the action must be commenced within 3 years from the date of injury.”[5]
[5]PV CB 35
22The letter confirming instructions gave specific advice as follows:
“At this point in time, I believe we should pursue your Victim’s of crime claim and assess the other options at such time as:
a. The offenders are located and charged; and
b. Your injuries are “stabilised” so as we can assess the likelihood of you suffering from a “significant injury” as required in the Wrongs Act for you to be able to seek compensation for Pain and Suffering damages (subject to being able to prove negligence).”[6]
[6]PV CB 39
23Mr Verschuur deposes that he does not recall receiving or reading any of these letters. He does not deny that he may have received the letters, but says that if he did, he cannot recall it. There was some confusion regarding whether Mr Verschuur was living at the address the letters were sent to at the time. It seems most likely that Mr Verschuur would have, in his initial meeting with Mr Arvia, given his correct address for correspondence. I find that Mr Verschuur received the letter of advice notifying him of the limitation period in or about September 2014.
24Under cross-examination, Mr Verschuur denied being aware in September 2014 of a time limit attaching to his claim:
Counsel for Riva: “You knew however that there were time limits involved?”
Mr Verschuur: “No, I didn’t at that stage.”[7]
[7]Transcript (“T”) 35, Line/s (“L”) 10-11
25Ms Jeanes similarly does not recall receiving any letter from Mr Arvia dated 17 September 2014 advising on the potential claim in negligence. Ms Jeanes found a copy of the cost disclosure letter[8] in her filing cabinet, but was unable to locate the other three letters. There is no evidence that these other letters were prepared and sent by Mr Arvia to Ms Jeanes. Of these letters, Ms Jeanes said:
Ms Jeanes: “Yes, I may have received them, but I can’t find them, I can’t recall.”[9]
[8] Sent to her Brighton East address
[9]T57, L9-10
26Her evidence during cross-examination included that she did not recall Mr Arvia raising the issue of a limitation period in their initial meeting in September 2014.
27Ultimately, Ms Jeanes and Mr Verschuur both maintained that despite the existence of a file copy of a letter of advice from Mr Arvia to Mr Verschuur, they do not recall being specifically aware of time limits in September 2014. I accept that, on the balance of probabilities, each of the four letters from Mr Arvia dated 17 September 2014 were sent to Mr Verschuur.
28Around mid-2016, the plaintiffs say they were advised by Mr Arvia that he was unable to proceed with their personal injury claims.[10] Mr Arvia’s letter to Mr Verschuur dated 30 August 2016[11] sets out the following:
“We confirm that we have now received correspondence from Hunts’ Lawyers advising of your instructions to them to take over the conduct of your personal injury matter. ...
Accordingly, we confirm that we will no longer be acting on your behalf in relation to:
· …
· Your potential Sentencing Act application/public liability claim; and
· …
[10]PV’s affidavit, paragraph 23; AJ’s affidavit, paragraph 20
[11]PV CB 842
We take this opportunity to remind you that there are strict time limits with pertain to commencing a Sentencing Act application/public liability claim for which you will need to seek further advice from your new legal representatives.”
29Likewise, Arvia Lawyers sent a letter to Ms Jeanes in the same terms.[12]
[12]AJ CB 346
30There was a conflict between the evidence of Mr Verschuur and Ms Jeanes as to why they engaged Mr Julian Hunt of Hunts Lawyers later in August 2016 in preference to Menzies Arvia. Mr Verschuur said in the course of his oral evidence that Mr Arvia was not an expert in personal injuries. He claims to have been advised Mr Arvia could not assist him with his personal injury claim against Riva from their first meeting:
Counsel for Riva: “But what he makes clear to you the first time that you see him is that he doesn’t specialise in suing people like Riva?”
Mr Verschuur: “Yep. He doesn’t specialise in public liability. That’s all he said.”[13]
[13]T36, L9-12
31Ms Jeanes did not agree that it was Mr Arvia’s lack of expertise that led to him ceasing to act, but she did not offer an alternative explanation as to why she consulted Hunts Lawyers.
32Mr Brett, counsel for Mr Verschuur, submitted that Ms Jeanes’ evidence that there was no issue with Mr Arvia’s expertise in personal injury or public liability claims ought to be preferred on the basis that it is supported by the advice contained in Mr Arvia’s letters to Mr Verschuur, which appear to be drafted by a competent personal injury solicitor familiar with the jurisdiction. I accept that on the basis of Mr Arvia’s letters of 14 September 2014, the plaintiffs had no reason to question Mr Arvia’s knowledge of, or competency in, the jurisdiction.
33The plaintiffs each depose that, when they first consulted Mr Hunt in August 2016, they do not recall being advised of any limitation period. Of this, Mr Verschuur said:
Counsel for Riva: “When you first saw Mr Hunt, did you have any discussion with him about any time limits or any time in which you had to bring the proceeding?”
Mr Verschuur: “No. No.”[14]
[14]T38, L15-17
34In August 2017, Martin Verschuur wrote to Mr Hunt regarding his son’s Victims of Crime claim, and also sought an update on the personal injury proceedings.[15]
[15]PV CB 55
35There was no reply to this email, until Mr Hunt informed the plaintiffs by letter dated 17 May 2018 that he had made an error in relation to the limitation period on their claim in negligence against Riva. Mr Hunt’s letter relevantly stated:
“Until a few days ago, I was unaware that the 6 year limitation period in relation to a claim for damages for personal injury had been amended by legislation in 2003 by reducing the period to to (sic) 3 years.”[16]
[16]JV CB 56; AJ CB 82
36Both plaintiffs depose that this letter was the first time that they became aware of the limitation period applying to their personal injury claim. Ms Jeanes stated under cross-examination:
Counsel for Riva: “So when were you informed of this time limitation?”
Ms Jeanes: “Via correspondence from Julian Hunt. That was the first time that I was even alerted to that.”[17]
[17]T56, L19-21
37Mr Verschuur’s evidence was that:[18]
Counsel for Riva: “You knew however that there were time limits involved?”
Mr Verschuur: “No, I didn’t at that stage.”
Counsel for Riva: “When did you learn that, do you say?”
Mr Verschuur: “When I got told by Mr Hunt after about two years of toing and froing, or what have you.”[19]
[18]T35, L10
[19]T35, 10-14
Procedural history
Verschuur
38On 4 June 2018, Mr Verschuur issued a generally indorsed writ in respect of his personal injury claim against Riva, and on 7 January 2019 served the Writ and his Statement of Claim.[20]
[20]JV CB 61
39On 16 July 2019, Riva filed its defence to Mr Verschuur’s claim, alleging that it had an oral contract with National Security to provide security services at Riva on the night of the assault.
Jeanes
40On 21 September 2018, Ms Jeanes issued a generally indorsed writ in respect of her personal injury claim against Riva. She served her Writ and Statement of Claim on or about 3 July 2019.[21]
[21]AJ CB 92
41On 30 August 2019, Riva similarly filed its defence to Ms Jeanes’ claim, pleading the same facts as in the Verschuur proceeding regarding the existence of an oral contract with National Security.
Verschuur and Jeanes
42On 31 January 2020, in accordance with leave granted on 23 January 2020, the plaintiffs served amended writs joining National Security Agency Pty Ltd as the second defendant, together with amended statements of claim dated 25 November 2019.
43Mutual contribution notices have been filed and served in each proceeding as between Riva[22] and National Security.[23]
[22]See Notices filed 15 December 2020 by Riva
[23]See Notices filed 20 July 2020 by National Security
44On 8 November 2021, the Court ordered that the proceedings be heard together and that all evidence given or tendered in one proceeding stand as evidence given or tendered in the other proceeding.
45With respect to the claims against Riva, both plaintiffs seek an order pursuant to the LA Act extending the time within which they may bring proceedings. Whilst both summonses filed 20 October 2022 specified relief sought under s23A, the applications were conducted on the basis that, in so far as it was required, leave was sought under s27K.
46With respect to the claims against National Security, the plaintiffs each submit that it was only upon receipt of Riva’s defence in 2019 that the fault of National Security became discoverable to them for the purposes of s27F(1)(b) of the LA Act. If this is accepted, the plaintiffs’ proceedings against National Security were commenced within time and they are entitled to the declarations sought.
47For reasons which will become apparent, I will consider the applications as against National Security first.
The claim against National Security
48The plaintiffs allege that National Security:
(a) was subject to an oral contract with Riva, entered into by its venue manager at the time, to provide security and crowd control services at Riva; and
(b) breached its duty to take reasonable care to prevent foreseeable risk of injury in that it failed to monitor and remove intoxicated patrons; to accompany the plaintiffs out of the premises; and to communicate or coordinate with Riva with regard to security requirements.
49National Security says that it was not engaged to provide security service at Riva at any time, and otherwise denies negligence.
50A register of security personnel at the premises produced by Riva (“Security Register”) lists nine personnel recorded as working at the venue on 8 and 9 June 2014.[24] Each of those entries within the Security Register specify National Security (also known as NSA Security) as the employer of the relevant security guard. A copy of the relevant page is reproduced below:[25]
[24]AJ CB 222-325
[25]AJ CB 270
51On 5 December 2022, National Security’s solicitor, William Gordon, swore affidavits in each proceeding. He deposed to his instructions that:
(a) National Security did not supply security services to Riva;
(b) the Security Register was not recognised as something that National Security ever used;
(c) the names of the nine persons recorded in the Security Register as being on duty on 8 June 2014 at Riva were not recognised as security personnel that were sub-contracted or employed by National Security;
(d) at the time of the assault, National Security kept employee records on a computer, and invoices were rendered for all work done;
(e) National Security deny that it ever accepted “cash in hand” payments.
52National Security does not have in its possession any invoices or records relating to Riva, and a computer with employee records from 2014 could not be located.
53Mr Gordon does not say when National Security first became aware of the assault or the claims made against it.
Relevant principles – discoverability of the cause of action
54The LA Act relevantly provides:
“27D Limitation period for personal injury actions—general
(1)An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a)the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)...
(2)...
27E ...
27F Date cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.”
55The principal issue in contest in so far as the claims against National Security are concerned is when the plaintiffs knew or ought to have known “the fact that ... [the injury] ... was caused by the fault of” National Security within the meaning of s27F(1)(b).
56In determining when the plaintiffs knew or ought to have known their injuries were caused by the fault of National Security, the onus of proof rests on the defendant. In Donmez v Neissa & Anor,[26] his Honour Kaye J observed the following:
“[T]he defendants must prove, on the balance of probabilities, that the plaintiff knew, or ought to have known, before 18 December 2005, each of the three matters specified in s 27F(1)(a)-(c). The legal onus of proof should not, of course, be confused with the evidential onus, which may well require that, in a case such as this, the plaintiff introduce evidence as to what he or she knew, or ought to have known, in relation to each of the three matters specified in s 27F(1). However, in determining this application, it is necessary to bear in mind that the legal onus of proof, in relation to each of those matters, rests on the defendant.”[27]
(emphasis added)
[26][2012] VSC 73
[27]Ibid at paragraph [33]
57His Honour Kaye J explained the concept of fault for the purposes of s27F(b) in the following terms in the case of Spandideas v Vellar:[28]
“The meaning of “fault” is plain and unambiguous, both in ordinary parlance, and in its context in Part 2A of the Act. Its usual everyday meaning connotes culpability or blameworthiness. In particular, where injury or damage is said to be the result of the “fault” of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage.”
[28][2008] VSC 198 at paragraph [32]
58In McLaughlan v Pun & Anor (Ruling),[29] his Honour Judge O’Neill considered the notion of what it means to know fault has caused injury, noting that it requires “more than some vague possibility that someone may be at fault” and “objective knowledge that there is the real prospect that a person or class of person’s act or omission caused injury”.[30]
[29][2016] VCC 518
[30]Ibid at paragraph [42]
59An inquiry about whether a plaintiff ought to have had that knowledge[31] must take into consideration actual knowledge, capacity and all relevant circumstances.[32]
[31]Having regard to the matters in s27F(2) and (3) of the Act.
[32]Spandideas at paragraph [65]
60The Spandideas approach is no longer settled authority in Victoria. The New South Wales equivalent provision[33] has come under consideration by the New South Wales Court of Appeal which has led to a different interpretation of the meaning of fault. In State of New South Wales v Gillett,[34] her Honour Beazley JA (with whom all members of the Court of Appeal agreed), held:
“[F]or the purposes of ‘fault’ in s 50D(1)(b), a defendant had to establish that the plaintiff knew the matter was legally actionable. What that involved in a particular case would depend upon the relevant facts and circumstances.”
[33]See Limitation Act 1969 (NSW), s50D
[34][2012] NSWCA 83 at paragraph [97]
61The broader Spandideas approach equating fault with a wider, more commonsense notion of blameworthiness was rejected in favour of knowledge of legal actionability.
62This latter approach was adopted in the Supreme Court of Victoria by his Honour O’Meara J in Moore v Escott & Ors.[35] His Honour traversed the conflict between the two approaches, ultimately following the construction approved by the New South Wales Court of Appeal,[36] emphasising the importance of consistent construction of practically-identical legislative provisions across states. His Honour expanded on the approach as follows:
“[E]stablishing knowledge of ‘legal liability’ or ‘actionability’ is directed only to the ‘key factors necessary to give rise to liability’ and ‘would depend upon the relevant facts and circumstances’ and ‘may not always be straightforward’. It follows that it will not be necessary for there to be knowledge or constructive knowledge of the precise cause of action in order to engage the statutory notion of ‘discoverability’.”[37]
[35][2022] VSC 353 (“Moore”)
[36]Ibid at paragraphs [65]-[66]
[37]Ibid at paragraph [70]
When was the cause of action against National Security discoverable?
63In their application, the plaintiffs each seek a declaration that their causes of action against National Security were discoverable upon receipt of the first defendant’s defence, being:
· in relation to Mr Verschuur’s claim against National Security, 16 July 2019;
· in relation to Ms Jeanes’ claim against National Security, 30 August 2019.
64The plaintiffs each concede the fact that the personal injury occurred (s 27F(1)(b)); and it was not in dispute that the injuries were sufficiently serious to justify the bringing of an action. The question is when the plaintiffs knew, or ought to have known, that their injury was caused by the fault of National Security. Both Mr Verschuur and Ms Jeanes deposed that they were unaware that Riva had engaged an external security company. Mr Verschuur and Ms Jeanes both stated:[38]
“Initially I was not aware that Riva St Kilda had engaged another company to provide security personnel at Riva St Kilda on the night of my assault. Arnold Thomas and Becker lawyers subsequently advised me that Riva St Kilda were believed to have engaged National Security Agency Pty Ltd to provide the security personnel.”
[38]PJ CB 26; AJ CB 38
65Despite the challenge to this evidence in cross-examination, I accept that both Mr Verschuur and Ms Jeanes believed that the security staff at the venue were employees of Riva.
66Whilst the Moore requirement to prove the plaintiffs knew or ought to have known the matter was legally actionable is a more difficult task for National Security than under Spandideas, the difference is probably not material in this case. The plaintiffs submit that they were not aware of the existence of National Security, or any potential legal liability attributable to it, until receiving Riva’s defence, and that their causes of action only then became discoverable.
67I accept as a matter of fact that it was unknown to either plaintiff at the time of the assault that security contractors were or may have been at fault for the relevant injuries.
68I note that in the Statements of Claim,[39] both plaintiffs plead that Riva was the employer of the security personnel working at the venue.
[39]Verschuur Statement of Claim 7 January 2019, paragraph 1; Jeanes Statement of Claim 25 June 2019, paragraph 1
69On the basis of the plaintiffs’ evidence, as well as the initial statements of claim, I can readily accept that neither plaintiff had actual knowledge of the existence of the external security entity until National Security served its defence. They certainly did not have knowledge of the legal actionability of a claim against National Security.
70The question therefore becomes whether or not the plaintiffs ought to have known the identity of the security provider at a date earlier than when the defences were filed in 2019.
71Whether the plaintiffs ought to have known of that fact at a particular date depends on whether the fact would have been ascertained by one or both plaintiffs had they taken all reasonable steps before that date to ascertain the fact.
72I reject National Security’s submission, advanced by Mr Masel SC, that the plaintiffs’ failure to “maintain” the representation of Menzies Arvia was a failure by the plaintiffs to take all reasonable steps.[40] The evidence does not support this submission.
[40]Second defendant’s outline of submissions, paragraph 29
73In my view, whatever the reason may have been for the change, it is of marginal relevance because promptly after Mr Arvia ceased acting, the plaintiffs retained Mr Hunt of Hunts Lawyers.
74Counsel for National Security hypothesised a number of other possible steps that the plaintiffs ought to have taken, including:
(a) seeking out security personnel at Riva directly to ask about the nature of their employment, and
(b) asking Riva directly about the arrangements with respect to their security.
75Counsel submitted that, if these steps were taken, the date of discoverability of the security provider would have been “shortly” after the incident:
“It follows that the identity of the alleged supplier of security services is a ‘fact’ each Plaintiff ought to have known shortly after the occurrence of the alleged incident, or in any event much earlier than occurred.”[41]
[41]National Security submissions dated 14 December 2022, paragraph 30
76National Security submitted that whilst the plaintiffs may not have known about the existence of National Security, they equally did not know with any certainty that the security personnel were definitely employees of Riva. It was submitted that this uncertainty should have propelled the plaintiffs to investigate further.
77This submission lacks force. On the night of the attack, the plaintiffs attended on police, gave statements and made a report. Within three months, they had engaged solicitors to act on their behalf. As Mr Verschuur said, to make their own enquiries at this stage would have directly contradicted police advice:[42]
Counsel for National Security: “It would have been a simple matter for you to contact Riva or go there and ask, ‘Who are your security’?”
Mr Verschuur: “No, because it had become a police matter by then. … It had become a police matter and I was told under no circumstances was I to go near the place or try to find out who did it.”
[42]T46, L1-7
78I reject the submission that Mr Verschuur’s particular familiarity with the security at Riva meant that he ought to have sought the security out in order to elicit details of the commercial relationship between the security guards and Riva. I accept Mr Brett’s submission that if the fact of Mr Verschuur’s familiarity with the security personnel is significant, it is only in so far as it supports Mr Verschuur’s belief that the security personnel that he saw on a regular basis there were employees of Riva.
79Judge Bowman of this Court considered a very similar factual scenario in Lagogiannis v ALH Group Pty Ltd.[43] In particular he considered an argument advanced by a security company that the plaintiff’s solicitors ought to have known that it was the second defendant (being the security company) and not the first defendant (the hotel) that was responsible for security at the hotel where the assault occurred. The second defendant argued that the plaintiff, via his solicitors, being a firm that specialises in personal injuries, should have made enquiries about who provided the security at the time of the incident.
[43][2016] VCC 30
80His Honour said:[44]
“In my opinion, this argument fails. Whilst the affidavit material in relation to this particular point may be skimpy, the fundamental facts are not in dispute. For example, in paragraph 9 of her written submissions, Ms Frederico refers to the fact that, on 10 March 2011, the first defendant sent to the plaintiff documents relating to the contract for security with the second defendant, these including the security personnel, security roster, the contract and the like. I see no reason why the plaintiff ought to have known about the contract or the existence of the second defendant prior to approximately that date. I do not see why the plaintiff’s solicitors should have so known. Section 27F(2) refers to the facts that would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the facts.
Was the existence of the contract with the second defendant something which would have been ascertained had the plaintiff taken all reasonable steps? If the person referred to in that question is the plaintiff himself, the answer seems to me clearly to be ‘No’. The plaintiff knew that he had been assaulted by the third defendant. He knew that he had been in the Hotel operated by the first defendant at the time. He engaged solicitors virtually from the outset. There is no suggestion but that he complied with any instructions given to him by his solicitors and followed their advice. He kept in contact with them. He can hardly be expected to have initiated all sorts of independent investigations and this was not suggested.
Further, I am not of the view that his solicitors had failed to take all reasonable steps before the date when the solicitor for the first defendant informed them of the existence of the contract and of the second defendant.
...
Nor do I regard the fact that, in its Defence, the first defendant did not admit it was responsible for the provision of security services as being something that should have prompted the plaintiff to take further steps. Widespread denials and non-admissions are not uncommon in Defences. The Particulars of Negligence in the original Writ include such matters as failing to have in place any or adequate security measures, failing to heed the risk of injury to patrons as a result of misbehaviour of other patrons, failing to comply with industry standards for the safe service of alcohol and the like. Denials or non-admissions in response are hardly surprising. It does not seem to me that the failure to institute investigations after receipt of the Defence represents a failure to take all reasonable steps.
Similarly, I am not convinced by the argument that, because the plaintiff’s solicitors are specialist personal injury solicitors, they should have made further enquiries. They had issued proceedings against the occupier of the venue. Thus, they had a logical and apparently substantial defendant.”
[44]Ibid at paragraph [80]
81This reasoning is apposite. I also note that in these applications, the plaintiff’s solicitors in fact did make a telephone enquiry of Riva on 31 October 2018 as to who the security company was at the time. The Riva employee informed the plaintiff’s solicitors that she “didn’t know”.[45]
[45]PV CB 845
82Further, as the Court in Moore confirms, a “wondering”, or “uncertainty” as National Security frames it, does not constitute a knowledge of legal liability. His Honour stated:[46]
“More broadly, the evidence to which the third, fifth and sixth defendants respectively point in the period shortly after Corey’s birth did not connect with any clear notion of legal liability against any identified defendant. It is one thing for the first plaintiff to have ‘wondered’ about what had occurred and be angry. However, in the present case it was a long journey from concerns of that kind to the identification by Professor Hyett of the key factors in the causes of action now sought to be advanced by the plaintiff against the third, fifth and sixth defendants.”
(emphasis added)
[46]Ibid at paragraph [135]
83What his Honour makes clear in Moore is that the Court must look carefully at the subjective circumstances of the plaintiff and assess what reasonable knowledge is for that particular individual.[47] With this in mind, I note the following facts:
(a) the plaintiffs were violently assaulted. This assault led to significant injury which required significant treatment, particularly for Mr Verschuur;
(b) immediately after the assault, the plaintiffs attended on police and gave comprehensive statements;
(c) the police advised Mr Verschuur not to conduct his own enquiries;[48]
(d) the plaintiffs retained solicitors to represent them in proceedings relating to the assault a matter of months after it occurred;
(e) when informed that Mr Hunt was conflicted out due to his own error, they promptly sought alternative legal representation; and
(f) neither plaintiff has a legal background, nor was any evidence tendered that suggested that they should have knowledge of the nature of the contractual relationships between Riva and their security staff.
[47]Ibid at paragraphs [31]-[32]
[48]T46, L6-7
84With these facts in mind, I do not accept that the identity of the security company was a fact that the plaintiffs ought to have known any earlier than the time that the defences were filed. The fact that the plaintiffs instructed solicitors to prosecute their claim is significant. It is entirely reasonable that the plaintiffs would leave the prosecution of each claim, including such matters as against whom the claim was to be brought, to their solicitors.
85I do not accept the general proposition that a plaintiff, having engaged solicitors, is required to take proactive steps to protect his, her, or its rights; or in this case that reasonable steps extend to making independent enquiries as to the identity of the entity which employed the security on duty on the night in question.
86Further, there was a reasonable basis for the plaintiffs to proceed on the basis that the security were employed by the venue, Riva, having regard to the fact that there were regular guards known to Mr Verschuur in the course of his attendance at the venue over some years.
87I find that National Security has not discharged its burden with respect to establishing that the proceedings were not issued within time having regard to the date of discoverability of the fact that the personal injury was caused by it.
88I find that the date upon which the cause of action against National Security was discoverable for the purposes of s27D was the date in each proceeding Riva served its defence alleging an oral contract with National Security to provide security services at the venue:
(a) in the Verschuur proceeding – 16 July 2019; and
(b) in the Jeanes proceeding – 30 August 2019.
89In the alternative, I find that the date on which the cause of action was discoverable in each proceeding was not earlier than 23 January 2017, being three years prior to the joinder of National Security.[49]
[49]See orders in Moore (supra)
90Accordingly, each proceeding against National Security was issued within time.
The claim against Riva
91The plaintiffs claim that Riva breached its duty to take reasonable care to ensure that no person was injured on the premises. Riva does not admit that incident occurred, and says that if the incident did occur, it is not liable and that it was caused by the criminal acts of third parties.
Relevant principles – extension of time
92The principles which apply in this matter are well known, and not in dispute.
93The extension application falls for determination pursuant to s27K of the LA Act, by which the Court may make an order extending the time for commencement of the proceeding if it determines “it is just and reasonable to do so”. The Court’s discretion is guided by the matters set out in ss27L(1)(a) to (g), and (2).
94The Court’s approach to a s27K application for an extension of time is the same as would be taken in a s23A application. The relevant general principles may be summarised as follows:
(a) the onus of satisfying the Court that it is just and reasonable to extend the limitation period rests with the applicants;[50]
[50]Bell v SPC Ltd [1989] VR 170 at 174
(b) in determining an application for extension of time, the competing considerations referred to in s27L are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that accounts for them all;[51]
(c) one factor to be considered is the availability of an action against the relevant solicitor;[52]
(d) it is prima facie prejudicial to the defendant to allow the commencement of an action outside the limitation period;[53]
(e) specific prejudice is not necessarily an absolute bar to a plaintiff succeeding on a s27L application. The exercise of the discretion is a synthesis of all the competing considerations of s27L(1), and prejudice is one of a number of competing factors to be taken into account. If the prejudice is such that a fair trial cannot be had, then it may be compelling on the issue of what is just and reasonable in the circumstances;[54]
(f) should the defendant establish by evidence that it may suffer prejudice by granting the relief of an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice;[55]
(g) it is in the public interest that proceedings be issued within limitation periods and that parties, including insurers, be able to arrange their affairs in the knowledge that they have no liabilities beyond a certain period;[56]
(h) it is not essential to the Court, in refusing to exercise its discretion to extend the limitation period, to require there to be specific prejudice to a defendant;[57]
(i) an inordinate delay may be taken as evidence of prejudice;[58]
(j) the prospects of a fair trial being materially impacted by the loss of evidence or other significant prejudice to the defendant attributable to the delay in bringing a claim will usually be a “fatal deficit” in the discretion to grant an extension of time;[59]
(k) the Court has a wide discretion to extend time if it is satisfied that it is in the interests of justice to do so.[60]
[51]Tsiadis v Patterson (2001) 4 VR 114 (“Tsiadis”) at paragraphs [31] and [33]
[52]Tsiadis at paragraphs [27] and [28]; Delai v Western District Health Service & Anor [2009] VSC 151
[53]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”) at 544 and 554-555
[54]Transport Accident Commission v Murdoch [2020] VSCA 98 at paragraphs [67]-[73] and [75]-[79]
[55]Welsh v Adecco & Ors [2017] VSC 44
[56]Brisbane South at 552 per McHugh J
[57]Arisoy v Yoogalu Pty Ltd [2012] VSC 631
[58]Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152 at 157
[59]Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 at paragraphs [99]-[100] citing with approval Brisbane South at 544, 544-550 and 556
[60]Brisbane South; see also discussion in Clark v McGuinness [2005] VSCA 108 at paragraphs [37]-[42] and [61]-[65]
95In addition, the following principles are relevant in determining these applications:
(a) should the defendant establish by evidence that it may suffer prejudice by granting the relief of an extension of time, then it falls on the plaintiff to demonstrate that that evidence does not demonstrate prejudice;[61]
(b) the longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections;[62]
(c) for the purposes of the calculation of the delay, the following remarks of his Honour J Forrest J in Sparkes v Hylemit Pty Ltd[63] apply:
“The period, for the purpose of determining the effect of the delay, is that between the date of accrual of the cause of action – in this case, 24 May 2002 – and the date of issue of the writ or application to extend time.”
[61]Brisbane South at 547 per Toohey and Gummow
[62]Brisbane South at 552 per McHugh J
[63][2016] VSC 453 at paragraph [30]
96The Honourable T Forrest J’s summary in Welsh v Adecco & Ors[64] of the approach to s23A applications in relation to prejudice is also helpful:
“Relevant prejudice to a defendant is that which actually occurred by reason of the delay, as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period.”[65]
[64]Supra
[65]Supra at paragraph [6]
97In the recent decision in Griffiths v Nillumbik Shire Council,[66] the Court of Appeal reiterated that:
“The statements of principle of the High Court in Brisbane South Regional Health Authority v Taylor remain the yardstick. Provisions such as s 5(1)(a) represent a judgment by the legislature that a right of a party to pursue a cause of action is not unlimited. There is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion. Delay is productive of unfairness and prejudice: evidence is lost or diluted; witnesses may not be able to be called, their memories fade and reconstruction may take over.
...
To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”[67]
[66][2022] VSCA 212
[67]Ibid at paragraphs [64] and [66]
98The plaintiffs must show that their case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.[68] - As was said by Hodgson JA in South Western Sydney Area Health Service v Gabriel & Anor:[69]
“[T]he true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”
[68]Brisbane South at 553
[69][2001] NSWCA 477 at paragraph [33]
Should the time for issuing the claims against Riva be extended?
99The period of delay is approximately four years from the date of the assault to the issue of proceedings; or eight years, if the date is calculated to the time of the application for the extension of time by summons dated 20 October 2022.
100Riva appear to accept that the relevant period of delay is calculated by reference to the date proceedings were commenced, being four or four and a half years depending on when the cause of action against Riva was discoverable.[70]
[70]Submissions of Riva at paragraph 16
101Counsel for Riva, Mr McWilliams, described the commencement of proceeding approximately one and a quarter years after the limitation period had expired as “tardy”. In the circumstances of this case such delay is not inordinate. The statements of claim were served on Riva in January 2019. Being on notice of the claims, Riva then commenced making the relevant enquiries.
102By the time these applications came before me, all interlocutory steps had substantially been completed. Those steps included exchange of expert evidence in relation to circumstances of the assault. National Security expressly conceded that the consequences of any further delay between the period of service of the proceedings against it and the making of the application for leave were not relied upon.[71]
[71]Submissions of National Security at paragraph 38
103In those circumstances, the conduct of the parties since at least January 2019 appears to have ameliorated much of the prejudice which may occur due to effluxion of time, such that I do not regard it as significant that the plaintiffs delayed issue of their applications under the LA Act until October 2022.
104The evidence establishes the reason for the delay in the issue of proceedings. It was explained by the plaintiffs’ solicitor at the time, Mr Hunt, in his letter dated 17 May 2018 (set out above). I accept the evidence of Mr Verschuur and Ms Jeanes that they relied upon their solicitors to protect their interests including issuing the proceedings within time. I find that the reasons for the delay on the part of the plaintiffs are that they had entrusted the case to seemingly competent solicitors.
105In his letter, Mr Hunt also advised the plaintiffs of their potential claim against him in negligence for failing to issue the proceedings against Riva within time, and urged them to seek independent legal advice immediately.
106Mr Verschuur engaged the plaintiffs’ current solicitors, Arnold Thomas & Becker, on 30 May 2018, who issued a generally indorsed writ on 4 June 2018.
107Ms Jeanes engaged Arnold Thomas & Becker on 19 September 2018, which resulted in her proceedings being issued on 21 September 2018. I accept Ms Jeanes’ explanation for the further delay of three and a half months that she experienced a worsening of back pain in September 2018 and sought medical advice from her neurosurgeon Mr Lu Ton in relation to her injuries prior to instructing Arnold Thomas & Becker. Mr Ton suggested her back pain may have been caused by the assault, which was the first time Ms Jeanes recalled a doctor drawing a link between her back problems and the assault, and she decided to seek further legal advice.[72]
[72]Jeanes affidavit at paragraphs 27-29
108I find there was no material delay on the part of the plaintiffs in instructing their current solicitors, or in issuing proceedings following receipt of Mr Hunt’s letter of 17 May 2018.
109The circumstances referred to in ss27L(c), (d) and (e) do not appear to be relevant to the disposition of these applications.
110In relation to ss27L(f) and (g), I find that the plaintiffs reacted promptly and reasonably once they knew the assault might be capable of giving rise to an action for damages because they obtained legal advice from Mr Arvia within three months of the date of the incident; and instructed their current solicitors to issue proceedings without delay upon being notified that Mr Hunt had missed the limitations date.
111I do not accept that the plaintiffs acted unreasonably in engaging Hunts Lawyers to represent them rather than their previous solicitors, Menzies Arvia. The plaintiffs were entitled to assume that Hunts Lawyers, in accepting their instructions, were competent.
112The most significant consideration under s27L is the extent to which, having regard to the delay, there is or is likely to be prejudice to Riva if time is extended.
Prejudice to Riva
113Mr Brett for Mr Verschuur submitted that:
“[T]here are contribution proceedings going both ways between defendants, which means that if the cause of action is going ahead against the second defendant, then it’s going ahead, effectively, against the first defendant as well, in which case there’s going to be no prejudice by granting the application of … [Mr Verschuur] with respect to the first defendant because if we’re going ahead against the second defendant, they’re going to be involved anyway.”[73]
[73]T79, L20-28
114I accept Mr Brett’s submission, at least to the extent that the proceeding against National Security having been issued within time is a consideration which I may take into account in determining the applications.
115The plaintiffs accept that there will be a degree of general prejudice having regard to the effluxion of time, such as with respect to witnesses’ recollection of events.
116Riva submitted that it has suffered specific prejudice in relation to the unavailability of records. This submission must be considered in the context of the allegations in its pleadings in both proceedings that:
(a) there was an oral contract between it and National Security – without particulars – for National Security to provide security personnel at Riva;[74] and
(b) there were no records in relation to payments made because such payments were effected in cash.[75]
[74]Riva’s Defences in the Verschuur proceedings dated 16 July 2019; and the Jeanes proceedings dated 30 August 2019
[75]Riva’s Response to National Security’s request for Further and Better Particulars dated 14 January 2021
117In its further particulars, Riva alleges that it engaged National Security by oral contract to provide security services at Riva from around 2013. The terms of this contract gave National Security responsibility for monitoring the behaviour of patrons, and identifying and removing intoxicated or unruly patrons. Riva paid National Security cash in hand on the night that services were provided. A representative of National Security would visit Riva weekly to discuss rosters and payment.[76]
[76]Ibid
118Whilst the Security Register does not record any incidents on the night at Riva, it includes the names and identification numbers for the security on duty on the night of the assault. Other documents produced under subpoena record further personal details of those security personnel.
119Riva relies upon the affidavits of Kelly Anne MacDonald, an employee of its solicitors, sworn 5 December 2022, filed in both proceedings. Ms MacDonald has not deposed to the steps taken to make contact with such potential witnesses. Her evidence is that her firm has been “unable to locate or speak with” five of the nine security personnel “in any detail about relevant matters”.[77] I infer that someone at her firm has located and spoken to the other four personnel in detail about the circumstances of the assault. I accept the submissions of Mr Haddad for Ms Jeanes that it is likely that a reasonable search will be able to identify many of these witnesses for trial.
[77]MacDonald affidavit at paragraph 16: PV CB 211
120Ms MacDonald deposes to speaking by telephone with the venue manager of Riva on the night in question. She states that Ms Pinks[78] “does not recall the alleged assault and could not recall whether she was working at Riva at the time of the alleged assault.”[79] Ms Pinks has not sworn an affidavit in relation to any of the issues in these proceedings, and in particular there is no evidence from her as to when she became aware of the assault, or the security arrangements on 9 June 2104, including payments made to National Security, pursuant to the alleged oral contract.
[78]Formerly known as Ms Cattanach
[79]MacDonald affidavit at paragraph 17; PV CB 211
121Mr Bellmaine’s evidence that was it was Ms Pinks’ job as the venue manager to employ staff and security.[80]
[80]Bellmaine affidavit at paragraph 3; PV CB 57
122Ms MacDonald also deposes to the searches undertaken to identify and/or locate copies of invoices or payment records between Riva and National Security in relation to security services provided at the premises, yet there was no evidence in the materials that any such documents ever existed. The affidavit evidence filed on behalf of Riva does not extend to any system or practice which on the balance of probabilities would have resulted in the production of records such as invoices or other accounting for cash payments in relation to the engagement of National Security on the night in question or otherwise.
123Riva has not established that specific prejudice exists in relation to the unavailability of contract documents, payment records and invoices because the evidence does not establish the existence of those documents at the relevant time.
124I reject the submissions of Riva that it was not aware of the assault until early January 2019 when it received the writ.
125A Victoria Police “Investigation Full Response Report” dated 30 December 2016 records that on 18 July 2014, a police officer attended the venue and spoke with the manager.[81] If, as seems unlikely, Riva was not aware of the assault on the night in question, I find that by the time the police attended its premises on 18 July 2014, Riva was aware the assault had occurred.
[81]AJ Supplementary Court Book (“AJ SCB”) 13
126Both Riva and National Security presently have access to corroborative evidence of the circumstances of the assault including:
(a) Alfred Health emergency trauma report dated 9 April 2014;[82]
(b) the medical notes of all of the plaintiffs’ treating doctors including New Street Medical Centre general practitioner attendance note of 11 June 2014, which refers to the assault;[83]
(c) the investigation file of Victoria Police which includes:
(i)the investigation report referred to above;
(ii)LEAP notes;
(iii)statements taken from Ms Jeanes (12 June 2014), Mr Verschuur (12 June 2014) and an independent lay witness, Mr John Adamopoulos (30 August 2014); and
(iv)various photographs.[84]
[82]AJ SCB 8
[83]Ibid
[84]AJ SCB 13
127Riva also relies upon the following specific prejudice:
(a) inability to produce a liquor license; however, I place no weight on this as it does not seem relevant; and
(b) inability to locate CCTV footage. In this regard the Police Report records that on 18 July 2014, investigating member Detective Senior Constable Gentner:[85]
“... attended at the Riva and spoke with the manager. Here I viewed the CCTV but was unable to find the incident at the given times. I burnt the footage from the entire night.”
[85]Ibid
The absence of such footage – if indeed the Police cannot produce it – does not establish specific prejudice.
128The affidavits of Mr Bellmaine and Ms MacDonald lack appropriate detail and specificity to meet the relevant burden of proof in establishing actual prejudice.
129There is no evidence as to the nature and extent of attempts by Riva to contact its witnesses. It has not produced an affidavit of the manager on the night in question, Ms Pinks, and there is no evidence as to her recollection and understanding of the security arrangements at Riva on 8 June 2014.
130The absence of some of Mr Verschuur’s historical medical records which deal with depression and alcoholism[86] is accepted by his counsel. This circumstance is not unusual, and may or may not have been the product of the delay.
[86]See Ms MacDonald’s affidavit filed in the Verschuur proceeding
131As Keogh J said in WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2),[87] the defendant is entitled to a fair trial, not a perfect one.
[87][2020] VSC 639
132In that context, the claims involve a frank assault, which I accept occurred on 9 June 2014 at approximately 1.30am. Critical witnesses appear to be available, including the manager on the night in question, and probably several of the security guards. Whilst no records of the incident appear to have ever been created by either defendant, a police investigation was conducted. Riva’s security register appears to record the presence of security staff employed by National Security. No substantive specific prejudice has been established.
133The accepted presumptive or general prejudice in the Brisbane South sense is a factor to be synthesised in the exercise of the discretion of the Court under s27L of the LA Act. The evidence overall concerning the circumstances of this case is such that this prejudice does not make the chances of an acceptably fair trial unlikely. In my view a fair trial is possible.
134I accept the plaintiffs’ submission that a key issue at trial will be the dispute between the two defendants as to whether National Security was engaged at all. This is not a product of any conduct or delay on the part of the plaintiffs. As Mr Brett said, this “was always going to be in issue and still is”.[88]
[88]T92, L14
135Although I accept on the balance of probabilities that it is likely that at least Mr Verschuur received the letter dated 17 September 2014 from Menzies Arvia Lawyers[89] providing general advice as to existence of the relevant time limit, I do not accept that the plaintiffs made some sort of deliberate decision not to issue proceedings within time, however, because:
(a) this advice must be seen in the context of other general advice in the letters pointing out that “how the law specifically interacts with the circumstances of your claim is something which we will need to discuss in conference”.[90] As at September 2014, it was too early to make a decision in relation to the issue of proceedings to recover common law damages; and
(b) the obligation was squarely upon Hunts Lawyers – not Mr Verschuur and Ms Jeanes – to ensure that the plaintiffs’ interests were protected by issuing proceedings within time.
[89]PV CB 28
[90]Ibid
The cause of action in negligence against Hunts Lawyers
136The extent of prejudice which might flow to the plaintiffs if the applications are not granted with respect to Riva is one of the relevant circumstances which I must consider. This question may be answered in part by reference to the existence of a cause of action against their previous solicitors, Hunts Lawyers.
137The fact that the plaintiffs have the prospect of recovering damages from Hunts Lawyers for their failure to institute proceedings within time is a relevant consideration in determining whether to exercise the discretion.[91] Relevantly, Hunts Lawyers have admitted a possible cause of action against them.[92]
[91]Tsiadis
[92]Verschuur CB 56
138The defendants submit:
(a) the plaintiffs have a “watertight” claim against Hunts Lawyers;[93]
(b) due to Hunts’ admission, this claim would run as an assessment and would therefore be an easy trial to run;[94]
(c) the value of the claim against Hunts Lawyers is exactly the same as a claim against the first and second defendant, if not more due to a potential loss of use or interest claim. [95]
[93]T122, L6-11
[94]T129, L14-31
[95]T123, L1-12
139I accept that the nature and effect of a trial against the solicitors following their negligence in failing to issue the proceedings within time is different in character to a proceeding against the original tortfeasors.[96] Whilst the existence of a clear cause of action as exists here[97] is a very significant factor which might be said to militate against a grant of leave, it is not determinative.
[96]For example an award of damages in the proceeding against Hunts Solicitors might be reduced by reason of the risks of litigation, “traditionally by something like 20 per cent”: submissions on behalf of Mr Verschuur, T87
[97]Said to constitute “an assessment”: T10, L17-25
140As Judge Bowman said in Lagogiannis v ALH Group Pty Ltd:[98]
“Other factors that are relevant, including in the present case, concern the potential of a plaintiff’s claim against the solicitors who allegedly failed to take appropriate steps prior to the expiration of the limitation period. This is not necessarily decisive. It is not an identical type of proceeding. Reference is made to Tsiadis at paragraphs 27 and 28.”
[98]Supra at paragraph [35]
141The Victorian Court of Appeal has cautioned against overweighing the availability of a remedy against a solicitor. As Buchanan JA (with whom his Honour Ormiston JA agreed) explained in Tsiadis:[99]
“The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. ... Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s.23A of the Act is decided.”
[99]Supra at paragraph [28]
142I further note the differences between a cause of action against a solicitor as compared to the tortfeasor, as explained by Buchanan JA in Tsiadis:[100]
“If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer.”
[100]Supra
143However, it is important to distinguish the facts in Tsiadis. Unlike in Tsiadis, I have evidence of an admission from Hunts before me. I accept that this is a strong claim, and probably an assessment. These are both relevant facts. I see these circumstances as closer to the case of Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[101] where the Court had before it affidavit evidence from two firms of solicitors detailing alleged negligence of the third firm, Slater and Gordon. His Honour Forrest J said:[102]
“I am conscious of the cautionary remarks of both the New South Wales and Victorian Courts of Appeal in relation to assessing the likely prospects of success of the plaintiff in a potential claim against Slater and Gordon.
This case, however, is very different.
...
I am by no means satisfied that the prosecution of a claim against Slater & Gordon will be significantly more complex or costly than the prosecution of the claim against the defendant. If I am correct in my assessment of the strength of the claim against Slater and Gordon, that part of the claim against the firm will only take a short period of Court time, if any. Whilst I accept that the forensic processes may be more difficult, what will take up the substance of the hearing will be the same evidence which would be led against the defendant if this hearing was to proceed ...
I have formed the view that in the circumstances of this case rather than being a matter of little, if any weight, as it was in Scardamaglia and Tsiadis, the prospect of a successful claim against the former solicitors must be given real consideration.”
[101][2007] VSC 517
[102]Ibid at paragraphs [104]-[105] and [112]-[113]
144Mr Verschuur and Ms Jeanes arguably have an even stronger case than the plaintiff in Gordon, as in that case there was no admission. On this basis, whilst I do not consider that the potential remedy against Hunts ameliorates any prejudice to the plaintiffs of refusing to extend the limitation period, I find that it must be given very real consideration.
145In this regard, Mr Brett submitted that if the proceeding as against National Security was issued within time:
“... the circumstances of the case would include the fact that the plaintiffs would then be in a position where they had to conduct two cases quite separately; one against a half a defendant, or a half a potential pool of defendants, namely the National Security Agency, and the other half against Hunts Lawyers. That’s got to be an undesirable outcome and one of the circumstances of the case which Your Honour is permitted to take into account under the expressed terms of the section.[103]
[103]T85, L31 – T86, L8
146I accept that submission.
147A further relevant circumstance is the existence of a claim against National Security issued within time. I do not regard it as being in the interests of justice for the plaintiffs to have to pursue a common law claim against one defendant, and a separate negligence claim against their former solicitors, relating to the same factual matrix and with overlapping claims. The inefficiencies afforded by a multiplicity of proceedings should be avoided where possible.
Conclusion
148The cause of action against National Security could not have been reasonably discovered by the plaintiffs prior to Riva serving its defences. The plaintiffs commenced the proceeding against National Security within time.
149Upon the necessary synthesis of all the competing considerations, whilst there has been a delay in the commencement of the plaintiffs’ case against Riva, this delay has been explained and there is material available to ensure that a fair trial may be conducted. My finding that the proceeding was commenced within time against National Security supports this finding in the sense that the contribution proceedings indicate that Riva will inevitably be involved in that proceeding as a third party, so to some extent the issue of prejudice falls away.
150Whilst there is some prejudice, it is predominantly of a general nature only. The extent of prejudice is not sufficient to preclude the Court from extending time on the grounds that it is just and reasonable to do so.
151While there is a cause of action available against the plaintiffs’ former solicitors, in the circumstances of this case that is not determinative of the applications.
152I find that it is just and reasonable to extend the period within which an action on the plaintiffs’ causes of action against Riva may be brought to the date of the Writ in each proceeding.
153In the event, I grant the plaintiffs’ applications, and shall hear from the parties as to the form of final orders, and costs.
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