Williams v Reid - [2010] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
WILLIAMS v REID & ORS
[2010] SASC 264
Judgment of The Honourable Justice Gray
27 August 2010
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY - POWER OF COURT TO EXTEND LIMITATION PERIOD
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - KNOWLEDGE - GENERALLY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
Appeal against a decision of a Judge of the District Court, dismissing an appeal from a Master of the District Court declining to enter summary judgment or order disjoinder - plaintiff sustained personal injuries and issued proceedings against company operating premises at which injury sustained - plaintiff sought and obtained joinder of a number of further parties, substantially out of time - basis of joinder was plaintiff's discovery that defendant company uninsured and that premises leased from second company and discovery of identities of sole directors of each of the companies - joinder was opposed and summary judgment sought on ground that plaintiff had no reasonable basis to be granted an extension of time under the Limitation of Actions Act - whether plaintiff's claim for an extension of time within which to bring proceedings bound to fail - whether discovery that defendant company uninsured a material fact - whether sole directorship of defendant company and identity of director, material facts.
Held: appeal dismissed - on material before the Court not appropriate to find that claims of plaintiff bound to fail - pleaded facts if established at trial could arguably give rise to liability of director of defendant company - whether or not director of defendant company liable as a joint tortfeasor is a matter requiring further evidence at trial.
Limitation of Actions Act 1936 (SA) s 36 and s 48; District Court Act 1991 (SA) s 43(2)(b); Supreme Court Civil Rules 2006 (SA) r 288(1)(ii); Civil Liability Act 1936 (SA) s 21, referred to.
Lovett v Le Gall (1975) 10 SASR 479; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson [2010] SASC 71; Napolitano v Coyle (1977) 15 SASR 559; Richardson v Ioannou (1986) 127 LSJS 1; Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364; Cakebread v Henriks (1986) 128 LSJS 139; Raison v Alexoudis (1986) 130 LSJS 174; Finlay v Silcon Industries Pty Ltd (2003) 229 LSJS 14; Jackamarra v Krakouer (1998) 195 CLR 516; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered.

WILLIAMS v REID & ORS
[2010] SASC 264
Miscellaneous Appeal
GRAY J:
Introduction

This is an appeal against a decision of a Judge of the District Court, dismissing an appeal from a Master of the District Court.
Background
Christine Judith Reid, the plaintiff and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] SASC 264
Decision Date: 27 August 2010

CaseChat Overview and Summary

The appeal in Williams v Reid was heard by the Supreme Court of South Australia. Christine Judith Reid, the plaintiff, sought damages for injuries she sustained from a fall at a premises known as the "Snowdome". The defendants, Neil John Williams, Mt Thebarton Snow & Ice Pty Ltd, and Mt Thebarton Pty Ltd, were involved in the operation and ownership of the premises. The dispute centred around the plaintiff's attempts to join additional parties to the proceedings after the limitation period had expired. The defendants sought summary judgment on the grounds that the plaintiff's application for an extension of time to bring proceedings was bound to fail.

The primary legal issues were whether the plaintiff's claims were bound to fail under section 48(3)(b) of the Limitation of Actions Act 1936 (SA) and whether the discovery that the defendant company was uninsured, as well as the identity of the sole directors, constituted material facts. The court had to determine if the plaintiff had a reasonable basis to seek an extension of time and if the newly discovered facts warranted such an extension.

The Court found that the plaintiff's claims were not bound to fail and that the newly discovered facts could arguably give rise to liability on the part of the defendant, Neil John Williams. The Court noted that the pleaded facts, if established at trial, could potentially lead to a finding of breach of duty of care by Mr Williams. The Court emphasised that the question of whether Mr Williams was liable as a joint tortfeasor was a matter for the trial. Therefore, the appeal was dismissed, and the case was allowed to proceed to trial.

In conclusion, the Supreme Court of South Australia dismissed the appeal and ruled that the plaintiff's claims against Mr Williams were not bound to fail. The Court acknowledged that the newly discovered facts could arguably support a claim against Mr Williams, and thus, the case would proceed to trial to determine the merits of the plaintiff's claims and the liability of the defendants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal against a decision of a Judge of the District Court, dismissing an appeal from a Master of the District Court. Background Christine Judith Reid, the plaintiff and respondent alleges that on 16 January 2002, she slipped and fell at premises at Thebarton known as the “Snowdome” and sustained personal injury, loss and damage.On 14 January 2005, Ms Reid issued proceedings against Mt Thebarton Snow & Ice Pty Ltd, a respondent to the appeal. Those proceedings were issued immediately prior to the expiration of the limitation period prescribed by section 36 of the Limitation of Actions Act 1936 (SA). Subsequent to the issuing of those proceedings, Ms Reid became aware in or about November 2006, that Mt Thebarton Snow & Ice was uninsured. She further learnt that Neil John Williams was the sole director of Mt Thebarton Snow & Ice. It also became apparent to Ms Reid that a separate corporate entity, Mt Thebarton Pty Ltd, was the owner of the premises from which the Snowdome was operated. Pursuant to a lease dated 1 March 2001, the premises from which the Snowdome operated were leased to Mt Thebarton Snow & Ice for a period of five years. Petrus Wilhelmus Maria Zwaans was the sole director of Mt Thebarton Pty Ltd. On 4 April 2007, Ms Reid sought to join Mr Williams, Mt Thebarton Pty Ltd and Mr Zwaans, and on 5 September 2007 orders for joinder were made. The claim against those parties was substantially out of time. An amended summons and second further amended statement of claim were filed on 6 September 2007. An extension of time under section 48 of the Limitation of Actions Act was sought. On 12 October 2007, Mr Williams, Mt Thebarton Pty Ltd and Mr Zwaans sought summary judgment and disjoinder on the basis that Ms Reid had no reasonable basis to be granted an extension of time under the Limitation of Actions Act. Lengthy delays occurred in the filing of affidavits in support of and in opposition to the application. On 10 July 2009, the Master of the District Court declined to enter summary judgment or order disjoinder. An appeal from this decision was dismissed by a Judge of the District Court on 23 November 2009. The Master concluded that on the information then before the Court, she was not prepared to find that the claims of Ms Reid against Mr Williams were bound to fail. In the Master’s opinion, the pleaded facts, if established at trial, could arguably give rise to a grant of an extension of time and a finding of a breach of duty of care by Mr Williams. The District Court Judge agreed. On 23 December 2009, permission to appeal from the decision of the District Court Judge dismissing Mr Williams’ appeal[1] was granted by a Judge of this Court. There has been no appeal by Mt Thebarton Pty Ltd or Mr Zwaans.[1] Reid v Mt Thebarton Snow & Ice Pty Ltd [2009] SADC 130; Permission to appeal was required: District Court Act 1991 (SA) section 43(2)(b); Supreme Court Civil Rules 2006 (SA) rule 288(1)(ii).District Court Proceedings The new material facts relied upon by Ms Reid were that Mt Thebarton Snow & Ice, the lessee of the property, was not insured, that Mr Williams was the sole director of Mt Thebarton Snow & Ice, that Mt Thebarton Pty Ltd was the owner and lessor of the premises from which Mt Thebarton Snow & Ice operated the Snowdome and that Mr Zwaans was the sole director of Mt Thebarton Pty Ltd.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally for the purposes of this appeal, as noted above, Mr Williams accepted that the Court should proceed on the basis of the assertions of fact made by Ms Reid in her affidavit as to when she became aware of the absence of public liability insurance, aware of the sole directorships and aware of the lease arrangements. It was made plain that this concession did not extend beyond the appeal and that Mr Williams reserved his right to challenge the assertions in Ms Reid’s affidavit and those of her solicitors, at trial. I consider this to be an appropriate position to adopt. These matters are best left to the trial Judge to determine. Conclusion For these reasons, this appeal is dismissed.

Ratio Decidendi

Legal Principle Established

In adopting the approach outlined, the Court in Sola Optical expanded the test to be met pursuant to section 48 of the Limitation of Actions Act. This expansion was recognised by the Full Court in Finlay v Silcon Industries Pty Ltd,[22] where following extraction of the relevant observations in Sola Optical, Doyle CJ observed:This reflects a liberal approach to the meaning of s 48(3)(b)(i), and makes the exercise of the ultimate discretion all the more important.[22] Finlay v Silcon Industries Pty Ltd (2003) 229 LSJS 14 at [73] (Doyle CJ, with whom Nyland and Lander JJ agreed).Consideration of the Appeal Ms Reid asserts that following the expiration of the limitation period, she became aware for the first time that Mt Thebarton Snow & Ice was uninsured. At this time the solicitors for Mt Thebarton Snow & Ice suggested that if Ms Reid were to pursue her action and recover judgment, the judgment would be unsatisfied. Unsurprisingly in this circumstance, Ms Reid instructed her solicitors to make enquires as to whether there were any other parties who would be liable as tortfeasors. Consequent enquires led to the discovery that Mt Thebarton Snow & Ice had a sole director, Mr Williams, that the premises were leased by Mt Thebarton Snow & Ice from Mt Thebarton Pty Ltd and that the sole director of that company was Mr Zwaans. Ms Reid pleads that Mr Williams was the manager of Mt Thebarton Snow & Ice and was responsible for all management decisions in relation to the operation of Mt Thebarton Snow & Ice. Ms Reid then further pleads:The second defendant, in his capacity as sole director of the first defendant and the person solely responsible for the management of, and all management decisions in relation to the operation of the first defendant (‘the controller of the first defendant”), was negligent in that, knowing that members of the public were being invited to attend at the Snowdome and the nature of the recreational facilities being offered to the public at the Snowdome, failed to ensure that the first defendant took all reasonable steps were taken to ensure that the Snowdome premises were maintained in good and safe condition. The plaintiff refers to relies upon and repeats the matters set out in sub-paragraphs 10.1 to 10.13 above.[23]In the alternative, the second defendant was at all material times present at the Snowdome premises on a day to day basis and made all management decisions regarding the operation of the business conducted as the Snowdome including all decisions as to the maintenance and repair of the Snowdome premises. The second defendant was solely responsible for authorising expenditure and overseeing work for maintenance and repairs to the Snowdome premises.The second defendant, in his capacity as a controller of the first defendant, was negligent in that, knowing that members of the public were being invited to attend at the Snowdome premises and the nature of the recreational facilities being offered to the public at the Snowdome, he failed to ensure that the Snowdome premises were maintained in a good and safe condition. The plaintiff relies upon and repeats the matters set out in sub-paragraphs 10.1 to 10.3 above.[23] 10 The first defendant was negligent in that it:10.1failed to take any or any reasonable care to see that the plaintiff would be safe in using the shorter east/west ramp.10.2caused or permitted the shorter east/west ramp to become or remain a danger.10.3failed to ensure that the shorter east/west ramp complied with the Building Regulations 1973 (“Building Regulations”) and AS1428-1977 referred to therein (“Code Rules”).10.3.1The shorter east/west ramp does not comply with Code Rules 7.2(a) to 7.2(d), 7.5, 7.6, 7.9 and 16 and therefore does not comply with the Building Regulations, in that:(a) it has a full slope gradient of approximately 1:4.7 and has incremental gradients varying between 1:4.7 up to 1:6.4, which are in excess of the prescribed 1:8;(b) the northern side of the shorter east/west ramp does not have a hand rail;(c) the kerb along the northern side of the shorter east/west ramp is less than 100 millimetres along the northern edge;(d) there is no level rest area not less than 1200 millimetres long at the change of direction from the longer north/south ramp to the shorter east/west ramp;(e) the southern edge of the shorter east/west ramp, where there are concrete steps leading down to the underground car park, does not have a balustrade with an opening in excess of 125 millimetres;(f) it does not have a non slip finish.10.4failed to ensure that the shorter east/west ramp complied with AS/NZS 2661.1:1993 “Slip Resistance of Pedestrian Surfaces, Part 1: Requirements” (“the Slip Resistance Standard”):10.4.1The shorter east/west ramp does not comply with the Slip Resistance Standard in that the shorter east/west ramp achieved measured wet and dry coefficients of friction of 0.57 and 0.59 respectively, which do not comply with the Slip Resistance Standard which requires the coefficient of friction to be not less than 0.62 for a surface with a slope of 18% and not less than 0.78 for a surface with a slope of 29%;10.5permitted the plaintiff to walk along the ramp when they it knew or ought to have known that it was unsafe and dangerous for her to do so.10.6caused or permitted the shorter east/west ramp to be constructed and/or remain with two [sic] steep a gradient for safe use by pedestrians;10.7failed to maintain the ramp in a safe condition;10.8failed to repair displaced paving bricks in the ramp to ensure they did not present as a tripping hazard;10.9failed to apply a non-slip finish and/or protection to the shorter east/west ramp; or alternatively failed to re-apply a non-slip finish or protection to that ramp when it had worn off;10.10caused or permitted the shorter east/west ramp to be constructed and/or remain without a handrail on its northern side;10.11in construction or occupation of the shorter east/west ramp failed to take account of the fact that users of, and visitors to, the Snowdome would be leaving the premises with wet and icy clothing and shoes;10.12failed to warn users of the ramp of the excessively steep gradient and/or the slipperiness of the shorter east/west ramp;10.13failed to reasonably maintain the shorter east/west ramp and to regularly inspect its condition.