Wall v Toll Transport Pty Ltd
[2010] VSC 522
•25 NOVEMBER 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 117 of 2008
| DAVID IAN WALL | Plaintiff |
| v | |
| TOLL TRANSPORT PTY LTD & OTHERS | Defendants |
---
JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 OCTOBER 2010 | |
DATE OF JUDGMENT: | 25 NOVEMBER 2010 | |
CASE MAY BE CITED AS: | WALL v TOLL TRANSPORT PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 522 | |
---
Practice and Procedure – Joinder of parties - Rule 9.06 of the Supreme Court (General CivilProcedure) Rules 2005 – Removal of a defendant joined by consent on the papers – Claim statute-barred – Unconditional appearance and defence filed - Application by plaintiff for postponement of the bar - Discretionary considerations.
Limitation of Actions – Torts – Postponement of the bar - Section 36 and section 48 of Limitations of Actions Act 1936 (SA) – Material fact under s.48(3) of Limitation of Actions Act1936 (SA) – Exercise of discretion.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley | Ryan Legal |
For the First Defendant | Sally Knott, a solicitor | Minter Ellison |
For the Second Defendant | Keiran O’Brien, a solicitor | DLA Phillips Fox |
| For the Third Defendant | Mr G Hevey | Ligeti Partners (as agents for Wallmans Lawyers) |
HIS HONOUR:
By an amended writ, dated 20 November 2009, the plaintiff claims damages for personal injuries sustained on 31 August 2005 when he fell into a manhole. The writ was originally filed on 13 June 2008.
The proceeding is being managed in the Major Torts List.
On 20 November 2009, the plaintiff obtained leave of this Court, from Kaye J, to file and serve the amended writ and an amended statement of claim joining the City of Port Adelaide Enfield as the third defendant, alleging liability to him in negligence. The like claims against the original defendants in respect of this incident are not presently relevant.
The Court file reveals that a minute of proposed consent orders, signed by the solicitors for the existing parties to the proceeding, together with a copy of the proposed amended statement of claim was provided with a request, by email, that the orders sought be made on the papers. The joinder order was made by consent, on the papers.
It appears that the amended writ was duly filed and served and on 21 January 2010 the third defendant filed a defence, having filed an unconditional appearance on 17 December 2009.
The incident, when the plaintiff was injured, occurred in South Australia. The substantive law which governs the proceeding, including the application of any relevant limitation periods, is the law of South Australia.[1]
[1]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.
The Choice of Law (Limitation Periods) Act 1993 requires this Court to characterise an interstate or territory limitation law as part of the substantive law of that State or Territory.[2] The Act also requires of a court in respect of “a discretion conferred under a limitation law of a place being another State … that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place”.[3]
[2]See s. 5.
[3]See s. 6.
Section 36(1) of the Limitation of Actions Act 1936 (SA) (“the Limitation Act”) requires the plaintiff claiming damages in respect of personal injuries to commence that action “within three years next after the cause of action accrued but not after”. There are provisions for extending time, which I shall come to.
The parties agreed that the plaintiff’s cause of action arose on 31 August 2005, the date of his injury. Accordingly, the time in which to commence proceedings in relation to the plaintiff’s injury expired on 31 August 2008. The proceeding against the first and second defendants was commenced within time on 11 June 2008. However, the proceeding against the third defendant, by the amended writ, was not commenced until 20 November 2009,[4] after the expiry of the limitation period.
[4]See Supreme Court (General Civil Procedure) Rules 2005 (Vic) R.9.11(3)(a).
The process adopted to obtain leave to amend the writ, by consent on the papers without notice to the proposed defendant, was appropriate. As the editors of Williams’ Supreme Court Practice correctly note,[5] an application by a plaintiff under the Rule is ordinarily made without notice to the defendant being joined.[6]
[5]At paragraph [I 9.06.7].
[6]See Murphy v Burns Philp & Co Ltd (VSC, Smith J, No.12377/91, 21 April 1993, unreported) 2.
As occurred in this case, the usual procedure is that once an order is made, the writ is amended within the time specified in the order, otherwise within 10 days after making the order. The proceeding against the new defendant commences on amendment of the originating process. There was a procedural irregularity. Section 48 of the Limitation Act provides:
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
When the order for joinder of the third defendant was made, the limitation issue was not drawn to the attention of the Court in the manner required by the Limitation Act or by any other process. No submission was put to me concerning the regularity of the process when joinder was obtained, or any consequence, and I say no more about it.
It is an established rule of practice that the Court will not allow an added defendant to an existing action if the claim sought to be made against that defendant is already statute-barred and the defendant desires to rely on that circumstance as a defence to the claim. If the Court has initially permitted such joinder ex parte, it will not, on objection by the added defendant, allow the joinder to stand.[7]
[7]Ketteman v Hansel Properties Ltd [1987] AC 189; Fernance v Nominal Defendant (1989) 17 NSWLR 710, 731‑3; Saunders v Glev Franchises Pty Ltd (1995) 133 ALR 731.
Where the added defendant, on service with the amended writ, objects to being added on the ground that the claim against it was statute-barred before the writ was amended, the appropriate procedure is to enter a conditional appearance and then apply to set aside the amended writ. If it is then established that the claim was statute-barred before the writ was amended, the joined defendant may, upon broad discretionary considerations, be entitled to such relief in accordance with the rule of practice.[8] However, that did not occur here.
[8]Liff v Peasley [1980] 1 All ER 623, 639.
The application, ultimately brought by the third defendant, is for an order pursuant to R.9.06 that it be removed as a party to the proceedings. The application is made on the basis of an affidavit sworn by the third defendant’s solicitor, Jonathan Roden Cutler which deposes to these matters. There was no explanation as to why these applications were not referred back to Kaye J, otherwise dealt with in the Major Torts List, or dealt with by the usual procedure. Although there was a substantial delay in bringing this application, the limitation defence was pleaded and there was correspondence about the issue from the outset putting the plaintiff on notice of the issue. During that time, the plaintiff did nothing to put his proceeding in order.
That the third defendant has filed an unconditional appearance does not preclude it from contending that it should not have been added as a defendant in the first place, or from seeking an order that it cease to be a party. While the entry of an unconditional appearance operates as a waiver of any irregularity in the process, of which the appearing defendant was or ought to have been aware,[9] the addition of a person as defendant contrary to the rule of practice is not and should not be treated as being a mere irregularity.[10] Neither does filing an unconditional appearance preclude consideration of whether under R.9.06 the defendant has ceased to be a proper party.
[9]The cases are collected in Williams, Civil Procedure Victoria at [I 8.02.20].
[10]Liff v Peasley [1980] 1 All ER 623.
The claim against the third defendant is plainly out of time and was already statute-barred on the date of the order for joinder of the third defendant and amendment of the writ.[11] That is common ground. Applying the established rule of practice, it is open to me to order that the third defendant cease to be a party to the proceeding pursuant to R.9.06.
[11]Section 36 of the Limitation Act.
However, the power to so order is discretionary.
Relevantly to how the Court might exercise that discretion, the plaintiff has responded with a cross-application by summons, seeking an order pursuant to s.48 of the Limitation Act that the Court fix a date extending time beyond the limitation period, to enable the plaintiff to issue proceedings against the third defendant. The third defendant did not contend that the Court could not entertain the application.[12] That application is supported by an affidavit of the plaintiff sworn 11 October 2010 and two affidavits of the plaintiff’s solicitor, Stephen Geoffrey Walters, sworn 11 and 13 October 2010. No affidavits were filed in opposition and no deponents were cross-examined.
[12]Section 48(5) of the Limitation Act permits proceedings under the section to be determined at any time.
Pertinent to this application, the following matters emerge from these affidavits.
On 1 December 2006, the plaintiff’s present solicitors initially notified the third defendant of the incident by letter. On 22 January 2007, the Local Government Association Mutual Liability Scheme replied on behalf of the third defendant. The Scheme stated it had “investigated this incident in conjunction with Council and inquiries were now complete”. The Scheme contended that, having regard to the individual circumstances of the plaintiff’s claim and the protection afforded to Council by s.42 of the Civil Liability Act 1936 (SA), the Council acted reasonably in relation to their systems, policies and resources and in accordance with their legal obligations.
The plaintiff sought the advice of senior counsel regarding the involvement of the third defendant and decided not to join the Council when the proceeding was first issued. It appears the plaintiff accepted that the participation of the Council, in causing the incident in which he was injured, may have fallen within the ambit of s.42; in June 2009, the proceeding was issued against the first and second defendants only.
On or about 29 July 2009, the solicitors for the first and second defendants served on the plaintiff a copy of a report of Mr William Keramidas, an engineer. In this report, Mr Keramidas is critical of the manner in which the manhole was constructed and installed. The plaintiff first learned of evidence which supported the following conclusion:
Given the expected design classification for this pit cover, properly installed the author would expect that it should be able to sustain a vehicle [including a heavy vehicle such as a prime mover] to run over the pit cover without causing failure of the system, nor displacing the cover and collar. It is further the present author’s opinion that the displacement of the collar and cover is as a result of the incorrect installation of these components … if properly installed, the manhole cover of the type involved in this claim would not be capable of being dislodged by a vehicle including a heavy vehicle.
It was after considering the report from Mr Keramidas that the plaintiff sought leave to join the third defendant on the basis of an amended statement of claim.
Turning to the material allegations raised on the amended statement of claim, it is alleged that the third defendant owned or had the care, control and management of the nature strip where the manhole was located. This allegation is not admitted and, more specifically, the third defendant denies that it either owned or had the care, control or management of the manhole or its cover. The plaintiff alleges that at some time before 27 or 28 August 2005 the third defendant, its employees or its agents constructed the manhole or constructed and installed the manhole cover. The third defendant also denies this allegation and alleges that the cover and the infrastructure, to which they relate, were constructed and installed by a “third party who developed the area”. The precise content of the allegation made by this phrase is unclear.
The allegation of breach of duty of care is that the third defendant, its employees or agents were negligent in constructing the manhole, and constructing and installing the manhole cover. It is alleged that the manhole was constructed in an inappropriate and unsafe manner by reason of the manhole cover and collar being positioned substantially above the level of the surface of the surrounding nature strip, rather than flush with the surface of the surrounding nature strip, greatly increasing the risk of the manhole cover and collar being displaced. There are other particulars of negligence which need not be recited here. The particulars of negligence appear to be based on Mr Keramidas’ engineering report. The third defendant denies negligence and pleads that it is not liable by reason of s.42 of the Civil Liability Act 1936 (SA). As I have already noted, it also pleads that the causes of action against the third defendant are and remain wholly statute-barred.
There arises, on these pleadings, an issue of fact for determination as to whether the third defendant, its servants or agents negligently constructed the manhole or constructed and installed the manhole cover in an inappropriate and unsafe manner. The precise extent of this factual dispute is poorly defined by the pleadings but it is plainly a matter for resolution at trial; I am not in a position to determine it.
Section 48 of the Limitation Act confers on the Court a power to extend the limitation period in specified circumstances. I set out the relevant parts of the section:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for –
(a)instituting an action; or
…
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that –
(a)the court has jurisdiction to entertain; or
(b)the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not –
…
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied –
(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
…
(3a)A fact is not to be regarded as material to the plaintiff’s case for the purposes of subsection (3)(b)(i) unless –
(a)it forms an essential element of the plaintiff’s cause of action; or
(b)it would have major significance on an assessment of the plaintiff’s loss.
In a case involving personal injury, a fact might qualify as a fact material to the plaintiff’s case if it establishes –
(a)a substantial reduction of the plaintiff’s capacity to work; or
(b)that the plaintiff will require substantially more medical care than previously expected; or
(c)a significant loss of expectation of life.
(3b)In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to-
(a)the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c)the nature and extent of the plaintiff’s loss and the conduct of the parties generally; and
…
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
In exercising my discretion under s.48 to extend time, I am required by s.6 of the Choice of Law (Limitation Periods) 1993 (Vic) to “as far as practicable” exercise the discretion conferred by the Act “in the manner in which it is exercised in comparable cases by the courts [of South Australia]”. I have been assisted by the decision in Berriman v Cricket Australia[13] when, on the exercise of the discretion by the Court to extend time pursuant to this section, Forrest J surveyed the South Australian cases in some detail.
[13](2007) 17 VR 528.
The Court may exercise its discretion to extend the time in which to institute the proceeding where, relevantly to this application, the plaintiff has established the following matters:
(a)The Court would, if the action were not out of time, have jurisdiction to entertain it;
(b)Facts material to the plaintiff’s case were not ascertained by the plaintiff until some point in time after expiry of the limitation period;
(c)The action was instituted by the plaintiff within 12 months after ascertaining those facts; and
(d)In all the circumstances of the case, it is just to grant the extension of time.
Here, there is no issue that the Court would have jurisdiction to entertain the action, but for the action being out of time.
The plaintiff points to the expert opinion of Mr Keramidas, as expressed in his report, as being the relevant facts material to the plaintiff’s case, which the plaintiff did not ascertain until after the limitation period had expired on 31 August 2008; the plaintiff received a copy of Mr Keramidas’ engineering report on 29 July 2009. The amended writ was filed on 20 November 2009, which is within 12 months of the plaintiff becoming aware of the report.
The third defendant submitted that there is no evidence before the court of any fact material to the plaintiff’s case, of which the plaintiff learned within the relevant time period that he did not know beforehand. It was submitted that the engineering report could not constitute the relevant material fact, as it post dated the amended writ. I do not agree. I find that the report is dated 28 July 2009 and that it was faxed to the plaintiff’s solicitors on 29 July 2009.
Did the report disclose material facts?
In Lovett v Le Gall[14] Bray CJ, with whom Walters J agreed, concluded:
… a fact is material within the meaning of the sub-section [referring to s. 48(3)] if it is of such significance as to be able to influence the determination of the case.
[14](1975) 10 SASR 479.
In Sola Optical Australia Pty Ltd v Mills[15] the High Court considered s.48 of the Limitation Act and stated:
A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word "material", inter alia, to mean "Of such significance as to be likely to influence the determination of a cause". Although a definition attributed to the 16th century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to "facts material to the plaintiff's case".
[15](1987) 163 CLR 628, 636-7.
In Finlay v Silcon Industrial Pty Ltd & Anor[16] Doyle CJ described the Sola Optical decision as inviting a “liberal approach to the meaning of s.48(3)(b)(i)”. Indeed, in Wright v Donatelli[17] Cox J remarked:
Perhaps one might be permitted a general observation about these s. 48 applications. Everyone now understands that the test for an ascertained material fact under s. 48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out-of-time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensic energies in more rewarding ways.
[16](2003) 229 LSJS 14.
[17](1995) 65 SASR 307.
Wright v Donatelli was a proceeding in which the plaintiff discovered, within the relevant period, an expert opinion in support of the plaintiff’s cause of action. In that case, the plaintiff had discovered the fact of a medical practitioner’s opinion, the fact that the medical practitioner’s opinion was of a permanent residual disability and the fact of the medical practitioner’s report itself. Lander J[18] stated:
Whilst it may be that Mr Cohen's opinion is in accord with the appellant's own knowledge, that does not mean that Mr Cohen's opinion is not a material fact. I think the learning of Mr Cohen's opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.
Much was made of the proposition that all of this was contrived. In truth, it was put, this appellant always intended to bring proceedings, but did not because of the appellant's solicitors' default, and for no other reason. It was further put that efforts were made, on the advice of counsel, for the obtaining of a material fact and of informing the appellant of that material fact, only for the purpose of qualifying the appellant under the section. I think all of that is so, but there is nothing sinister in that. If it is a matter which would make it unjust, in the circumstances, to extend time, that is a matter which can be taken into account in the exercise of the discretion, after the plaintiff has first qualified by establishing the ascertainment of the material fact.
[18]With whom Cox and Perry JJ agreed at 321.
In the present circumstances I accept that it was only after the engineering report was received that the plaintiff ascertained that a cause of the incident may have been negligence by the third defendant in constructing the manhole and constructing and installing the manhole cover in an inappropriate and unsafe manner, such that the risk of displacing the manhole cover and collar was greatly increased. It seems that, originally, the plaintiff had counsel’s advice that the third defendant could successfully plead the nonfeasance defence under s.42 of the Civil Liability Act1936 (SA). On receiving the report from Mr Keramidas, the plaintiff now knew or had ascertained the fact that he has expert evidence to support the contention that the fault of Council did not relate to a failure to “maintain, repair or renew”, but rather that there is evidence of negligence in the construction of the drain. This matter is material to the plaintiff’s case, being relevant to the allegation that the third defendant, its servants or agents constructed the manhole and constructed and installed the manhole cover negligently. If s.42 has no application, because the impugned conduct of the Council is found to be misfeasance, rather than nonfeasance, facts which are relevant to this issue are of such significance as to be able to influence the determination of the case.
Having regard to the approach of South Australian courts in determining what constitutes a material fact, I find that the plaintiff has satisfied the test laid down by s.48(3)(b). It is open to the Court to exercise the power to extend time under s.48.
In exercising the Court’s discretion, is it just to grant an extension? Again, adopting the approach taken by the South Australian courts, I am assisted by the analysis in Berriman v Cricket Australia.[19] The discretion is virtually unrestricted, and, once enlivened, the only requirement is that it be “just to grant the extension of time”.
[19](2007) 17 VR 528 at [48]-[53]. Counsel referred me to the more recent decision of Kourakis J in Bradman v Allens Arthur Robinson [2009] SASC 80, which was decided on the basis that there was no reasonable prospect of establishing circumstances which enliven the discretion to extend time.
The third defendant points to the following matters to dissuade me from extending time:
·The plaintiff was aware, during the three-year period prior to the expiry of the time limit, that the third defendant was a potential party in these proceedings and turned his mind to whether or not action lay against the third defendant.
·The plaintiff had clearly given consideration to the third defendant’s possible involvement in the proceeding but on legal advice had decided against joining it.
·Between 27 January 2010 and 30 August 2010 the plaintiff’s solicitors did not respond to correspondence from the solicitors for the third defendant, which asserted that the action was statute-barred and requested clarification of whether the plaintiff had sought an extension of time for commencing the proceeding.
For his part, the plaintiff submits the following factors support a favourable exercise of the discretion:
·No specific prejudice is alleged by the third defendant, and none is evident.
·The third defendant has known about the plaintiff’s potential claim against it since at least 8 November 2005,[20] or alternatively 1 December 2006, and conducted, to conclusion, investigations into the circumstances of the claim at that time.
·The delay between accruing the cause of action and filing the amended writ does not permit an inference of prejudice by reason of “its insidious effect on the memory of witnesses”.
·The injuries allegedly sustained by the plaintiff are serious; were the plaintiff shut out from litigating his cause of action against the third defendant, this might result in significant prejudice to the plaintiff.
·The expert report of Mr Keramidas indicates the claim against the third defendant has merit.
[20]There was evidence of earlier correspondence from the plaintiff’s former solicitors.
The explanation proffered by the plaintiff for his failure to comply with s.48 in November 2009, or to respond promptly to correspondence from the solicitors for the third defendant seeking clarification of the plaintiff’s intentions in relation to the limitation defence, is a frank admission of inadvertence on the part of his solicitors.
In Berriman, Forrest J described the primary consideration as being “can there be a fair trial?” Taking into account all of the considerations which have been put to me I cannot find any foundation for a conclusion that there cannot be a fair trial. I agree with the submission put on behalf of the plaintiff that the delay has not been sufficiently inordinate to warrant a presumption of prejudice. Perhaps more importantly, the absence of any suggestion by the third defendant that it is prejudiced in terms of establishing the facts surrounding the construction of the manhole, or the consequences for its as constructed performance, in relation to the risk posed to the safety of the plaintiff leads me to conclude that there can be a fair trial. Furthermore, I consider that the disputed factual issues raised in the pleadings need ultimately to be determined in a trial.
I will allow the application and grant the plaintiff leave to commence proceedings out of time. I will order that the time within which the proceeding in this Court against the third defendant may be instituted, be extended to 20 November 2009.
In the light of this conclusion it is inappropriate, in all of the circumstances, to exercise a discretion pursuant to R.9.06 ordering removal of the third defendant as a party to the proceedings. The foundation for such an order will now be removed. I will order that the summons filed on behalf of the third defendant on 21 September 2010 be dismissed.
I will hear further from the parties in respect of the costs of each application.
---
3
5
0