Wright v Optus Administration

[2013] NSWSC 1690

Supreme Court

New South Wales

Medium Neutral Citation:	Wright v Optus Administration & Anor [2013] NSWSC 1690
Hearing dates:	13/11/2013
Decision date:	15 November 2013
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005, paragraph 26 of the further amended defence of the first defendant dated 4th July 2012 is struck out
Catchwords:	PRACTICE AND PROCEDURE - application to strike out part of first defendants further amended defence relying on s18A Limitation Act 1969 (NSW) - r14.28 Uniform Civil Procedure Rules - r 2.1 UCPR - whether first defendant abandoned defence prior to trial - whether conduct amounted to abuse of process
Legislation Cited:	-Civil Procedure Act 2005 (NSW) -Limitation Act 1969 (NSW) -Uniform Civil Procedure Rules 2005 (NSW) -Workers Compensation Act 1987 (NSW) -Work Place Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	-Aon Risk Services Australia Ltd v Australian National Univeristy [2009] HCA 27; 239 CLR 175 -Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 -Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 -Dey v Victorian Railways Commissioners (1949) 78 CLR 62 -Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 -Hunter v Chief Constable of the West Midlands Police [1982] AC 529 -Ketteman v Hansel Properties Ltd [1987] AC 189 -O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 -Rogers v The Queen [1994] HCA 42; 181 CLR 251 -Walton v Gardiner [1993] HCA 77; 177 CLR 378 -Wilkinson v Perisher Blue [2012] NSWCA 250
Category:	Interlocutory applications
Parties:	Glen Wright (plaintiff) Optus Administration Pty Ltd (first defendant) IPA Personnel Pty Limited (second defendant)
Representation:	Counsel: RA Cavanagh SC with CJ Callaway (plaintiff) JB Simpkins SC with DF Villa (first defendant) W Reynolds (second defendant) Solicitors: Firths (plaintiff) Hunt & Hunt (first defendant) Sparke Helmore Lawyers (second defendant)
File Number(s):	2009/297493

Judgment

1. Mid-trial the plaintiff has moved to strike out paragraph 26 of the first defendant's further amended defence. The plaintiff relies upon r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) or alternatively r 2.1. The latter rule is an expression of the Court's general power to control the conduct of proceedings before it.

1. Paragraph 26 of the defence is in the following terms:

Further, or alternatively, the plaintiff's action for damages against the defendant was brought after the expiration of the limitation period prescribed by s.18A of the Limitation Act 1969 (NSW), or Part 2 of that Act generally.

Section 18A of the Limitation Act 1969 (NSW) applies to certain causes of action for damages for personal injury accruing between 1st September 1990 and 6th December 2002. It is not in dispute that it applies to the present case. It fixes a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff.

1. The plaintiff's cause of action is for pure mental harm. It relates to an incident which occurred on 15th March 2001, and must have accrued, at the latest, by the time he was admitted to the Sydney Clinic for inpatient treatment on 28th August 2001.

1. His cause of action is founded in negligence. At the time he was employed by the second defendant, which lent his services to the first defendant to work in the latter's call centre. He had been in this job for four days undergoing training when a fellow trainee employed by another labour hire company attempted to murder him by throwing him off the rooftop balcony of the first defendant's premises. His case against the first defendant, in broad terms, is that it negligently put him in harm's way, and it failed to take steps to control the conduct of the assailant who was under its supervision and control. It is not necessary to consider the circumstances said to give rise to the cause of action any further for the purpose of this interlocutory judgment.

1. The plaintiff's statement of claim was not filed until 11th March 2009. As the onset of his recognised psychiatric condition in respect of which he sues must have happened between March and August 2001, the limitation period had by then long since expired. In fact the expiry of the maximum longstop extension period available under s.60C of the Limitation Act was imminent. No motion seeking an available extension of time was filed with the statement of claim, nor since. On 10th December 2009 the first defendant filed its defence pleading the statutory bar. This was followed on 17th December 2009 by the filing of a reply pleading the suspension of the limitation period under s.52 of the Limitation Act. The gravamen of the averment is that the plaintiff was under a disability as defined by s.11 of that legislation by reason of his recognised psychiatric condition during the whole of the limitation period. On these facts, by reference to these pleadings, the plaintiff's claim must fail unless he makes good the exception established by s.52.

1. However, the basis of the present application is that the plaintiff says that the defendant abandoned its limitation defence no later than 3rd May 2010 and since then the plaintiff has prepared for and conducted the case on the basis that the statutory bar has been conceded by the first defendant, at least until 9:55 am on 11th November 2013, the first day of the trial before me, when Mr. JB Simpkins SC, who appears with Mr DF Villa, for the first defendant informed Mr RA Cavanagh SC, who appears with Mr CJ Callaway for the plaintiff, that the defendant intended to rely upon the statutory bar.

Relevant principles and counsel's submissions

1. Before dealing with the evidence led in relation to the motion, I will briefly deal with the relevant principles relied upon by the parties. So far as is relevant, r 14.28 provides as follows:

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

1. The plaintiff does not say that paragraph 26 discloses no defence appropriate to the nature of the pleading; that is to say the plaintiff is not seeking, as it were, summary judgment on the limitation issue. Rather it says that the maintenance of the defence in the circumstances that have occurred is an abuse of process.

1. The case the plaintiff sought to make essentially was that the defendant had, as long ago as 3rd May 2010, made a procedural choice not to rely on its s.18A defence, and this choice engaged the principles discussed in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364, as discussed by Hoeben JA (as his Honour then was) in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [77] - [90]. It is necessary to set out in full some passages from Berowra Holdings:

[13] There also is a very real difficulty in characterising proceedings as "invalid". The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.

[14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

[15] In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.

...

[28] Counsel for the employer expressly eschewed a "jurisdictional analysis" of s 151C, and conceded that in terms the section is not addressed as a command to the court but to the litigants. However, the question of statutory construction cannot easily be severed from that of jurisdiction because s 151C concerns the submission of contested rights to a court for curial adjudication in an adversarial system. This is to be distinguished from the situation in Project Blue Sky Inc v Australian Broadcasting Authority was not concerned with questions relating to the jurisdiction of courts.

...

[34] The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.

[35] The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The "right" which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.

[36] Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a "nullity". Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject matter with which the statute deals is "rights" in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.

[37] The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms.

[39] It is one thing to speak of the waiver of a legal, equitable or statutory right or privilege. However, once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as "waiver" (and acquiescence and estoppel) are confusing and imprecise. This was pointed out by Dawson J in Verwayen and Lord Browne-Wilkinson in Roebuck v Mungovin. The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court. The decision of the court often will depend upon many different factors. An outcome favourable to one party cannot be described adequately in terms of the waiver of the legal, equitable or statutory rights of the unsuccessful party.

1. As Hoeben JA pointed out [79] in Wilkinson:

Although those observations are couched in terms of the rights of a plaintiff to bring proceedings, they are equally applicable to the right of a defendant to defend proceedings. The choice which was offered to the appellant as plaintiff in these proceedings, was one which is typically to be made by the parties and not by the court, ie would he consent to service of a document by a particular date. Such consent was given unconditionally.

1. As I understood the argument, the plaintiff placed special emphasis upon paragraph 39 from Berowra, and especially to the extent to which it lays emphasis upon the application of adjectival law, that is to say the exercise by the Court of a discretionary power rather than the exercise by a party of a substantive right. To this extent, it was not necessary to invoke "concepts such as "waiver" (and acquiescence and estoppel)".

1. In this context, so far as the idea of abuse of process is concerned, the plaintiff relied upon Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392 - 393. In particular, reliance was placed on what Mason CJ, Deane and Dawson JJ, said at 393:

...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings [citations omitted].

By reference to the speech of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, the majority described this "jurisdiction" as part of a court's inherent power, as Lord Diplock put it:

...to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

1. The plaintiff also relied upon the Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 at 456 - 459 per Dawson J at page 458 his Honour said:

...the distinction between being allowed to raise an issue and the determination of an issue once raised is important because the two things are governed by different considerations.

1. Reliance is also placed upon the speech of Lord Griffith in Ketteman v Hansel Properties Ltd [1987] AC 189 at 219:

A defendant does not invariably wish to rely on a defence of limitation and may prefer to contest the issue on the merits. If, therefore, no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties. If both parties on this assumption prepare their cases to contest the factual and legal issues arising in the dispute and they are litigated to the point of judgment, the issues will by this time have been fully investigated and a plea of limitation no longer serves its purpose as a procedural bar

The point being made, as I understood it, is that in the circumstances the first defendant chose not to rely upon the available plea in bar, and both parties prepared their case on that assumption until learned senior counsel sought to resuscitate the plea just before the commencement of the trial. By referring to the common assumption, reference is made to the use of that word in the context of the speech of Lord Griffith from Ketteman, not in the context, at least for present purposes, of the election or an estoppel by convention. But effectively, the plaintiff says the defendant's position, notwithstanding its plea remaining in its defence, is analogous to that of a defendant who requires leave to amend by the application of relevant procedural law including the efficiency provisions of the Civil Procedure Act 2005 (NSW) (ss.56 to 60), and the first defendant should not be given that "leave".

1. The first defendant argued that despite his disclaimer, the plaintiff was seeking summary relief and in that regard well-known, settled principles arising out of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied. In particular, it was argued I could not strike out paragraph 26 in the absence of satisfaction to "a high degree of certainty about the ultimate outcome" of the limitation issue. The first defendant accepts that the "concept of 'abuse of process' is not restricted to defined or closed categories" (submissions page 414) - but submits that "it is not 'at large' or without meaning". Reliance was placed upon the categories identified by McHugh J in Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286. In the present case there could be no question about the Court's procedures being invoked for an illegitimate purpose or for a purpose that would bring the administration of justice into disrepute. For the plaintiff to succeed it was necessary that it demonstrated that "the use of the Court's procedures is unjustifiably oppressive" to him. Disposing of the limitation defence summarily as an abuse of process was a power which must be "exercised with caution" and "only in the most exceptional or extreme case": O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [99] - [111]. In the circumstances of the present case, it was argued, the Court could not be satisfied that the maintenance of the limitation defence was "unjustifiably oppressive" unless it was satisfied to the requisite high degree of certainty that by its conduct of the proceedings the first defendant had a high degree of responsibility for consequences that made it impossible for there to be a fair hearing of the limitation question.

Factual findings

1. The basic factual question is whether I am satisfied that the first defendant abandoned its limitation defence in May 2010, notwithstanding the consideration that it continued to plead it in subsequent versions of its defence as amended thereafter, and referred to it in the statement of issues it filed on 10th November 2010.

1. The plaintiff read the affidavit of Andrew McQuilkin sworn on 13th November 2013. Mr McQuilkin is a solicitor in the employ of the solicitor of the plaintiff who had the carriage of this matter from 2009 to 2011. Additionally the emailed letter from the plaintiff's solicitor to the solicitors for the first defendant of 1st November 2013, and the emailed in response of the same date, were tendered. The first defendant tendered a bundle consisting of pleadings, correspondence and a previous affidavit running to 40 pages, and also a bundle of correspondence written on behalf of the plaintiff between 25th March 2002 and 17th July 2006 by solicitors previously acting for him in relation to the injuries suffered by the plaintiff because of the incident of 15th March 2001. Mr McQuilkin was not cross-examined on his affidavit and no affidavit was read from the solicitor for the defendant.

1. From Mr McQuilkin's affidavit I am satisfied that after issue was joined on the limitation defence on 27th January 2010, the plaintiff's solicitors served two psychiatric experts reports supporting the plaintiff's claim of disability suspending time in accordance with s.52. I have been informed by Mr. Cavanagh from the bar table, without objection by Mr Simpkins, that the defendant has not served any expert psychiatric evidence contradicting the plaintiff's medical case, or at all. In his report of 24th June 2009, Dr Gordon Davies concluded as follows (page 5):

Mr. Wright is a twenty eight year old man who has suffered from a severe posttraumatic stress disorder following an incident at work in 2001. Since that time he has had problems in coping with day-to-day life and has really only shown lasting improvement over the last few months. It is my opinion that because of his ongoing illness, Mr. Wright has certainly suffered from a mental impairment that has impeded the management of his affairs in general and in particular in seeking legal remedies related to his trauma.

1. Dr Peter Sternhell was the psychiatrist who treated Mr Wright between August 2001 and 8th of September 2006. In his report of 30th June 2009 (page 1) he expressed the following opinion:

In short, I consider that Mr Wright was substantially impeded for most of the time by his multiple mental conditions during the time he saw me from 2001 to 2006. Due to this his life was quite chaotic for long periods and he would have been incapable of instructing a solicitor in a consistent manner to pursue litigation against his former employer. As well, the degree of permanent disability would have been difficult to ascertain after only three years.

I express no conclusion about whether Mr Wright suffered a relevant disability for the purpose of s.52. I find simply that this evidence in conjunction with relevant lay evidence is capable of supporting such a finding.

1. It is not disputed that following the service of this material, it was contemplated by the parties that the limitation issue would be determined early, in advance of the trial in the context of either a "strikeout" application or perhaps, had it been fully thought through, the determination of a separate question. And to this end when the matter was first before the Court on 4th February 2010, the Common Law Case Management Registrar made orders by consent, which included an order that the defendant "file and serve any notice of motion seeking to strike out the statement of claim as being statute barred by 1st April 2010". The first defendant was not able to adhere to this timetable because of delays in obtaining access to subpoenaed documents, and on 26th February 2010 sought an extension of time for it to file the motion, until 3rd May 2010. Consent orders, including that order, were filed in the Registry. The parties further amended those consent orders, in a manner presently immaterial, following which the Common Law Case Management Registrar of his own motion listed the matter for directions on 3rd May 2010 to enable the parties to provide an explanation "as to what is happening in respect of the action".

1. Mr McQuilkin gave the following evidence in his affidavit concerning the events of 3rd May 2010:

18. On 3 May 2010 I attended the Supreme Court before Registrar Bradford. At that time Mr Campbell appeared on behalf of the Defendant. Prior to the matter being called on I had a conversation with Mr Campbell. Mr Campbell said words to the following effect:

"We are not going to file a notice of motion seeking to strike out the statement of claim in this matter. We are not going to pursue the limitation point"

19. The matter was then called on and I heard Mr Campbell inform Registrar Bradford, in similar terms to that which he informed me, that the Defendant was not going to pursue the limitation point and thus would not be filing a notice of motion seeking to strike out the statement of claim. Annexed hereto and marked with the letter "J" is a file note I made on 3 May 2009 (sic) confirming my appearance and what happened at Court on that day. Annexed hereto and marked with the letter "K" is a copy of the consent orders made by Registrar Bradford on 3 May 2010.

20. If the Defendant had proceeded with a motion to strike out the statement of claim, I would have briefed counsel and sought advice as to what action to take, including whether to pursue an extension of time application at that time. When the limitation point was abandoned I did not consider this issue further.

1. Mr. McQuilkin's file note (which I accept was erroneously dated 3rd May 2009) is confirmatory of this at least to the extent that includes the words "Mr Campbell informed me that they were not going to pursue the limitation point and the matter was called".

1. The Mr. Campbell referred to is a Mr Andrew Campbell, a solicitor employed in the Sydney office of the defendant's solicitors. No affidavit of Mr Campbell has been read, but a printout of his email of 3rd May 2010 to the solicitor in the Melbourne office handing the matter is page 16 of exhibit 1D2. Concerning this point, he states:

I informed the Registrar that the defendant no longer intended to pursue the motion on the limitation issue....

1. The difference between Mr McQuilkin and Mr Campbell, to my mind is critical. There was a clear and significant difference in meaning between "we are not going to file a motion to strike out the statement of claim and we are not going to pursue the limitation point", on the one hand, and simply "we are not going to pursue the motion on the limitation issue", on the other. If the former were correct, the reasonable reader, or listener, privy to the circumstances known to both parties, would conclude that the first defendant was conceding the limitation point, presumably on the basis that it accepted the opinions expressed by the psychiatrists. If the latter version were correct, the reasonable reader or listener in the same position would conclude simply that the defendant had decided, presumably in light of the medical evidence, the case was not a suitable vehicle for a strike out application because there was a triable issue about disability. Neither version is inherently more probable than the other. I am not suggesting for a moment that either solicitor in making his record was doing anything other than attempting to accurately record what was said, not strictly contemporaneously, but sometime shortly after the matter was mentioned in court. For instance, Mr. Campbell sent his email at 10:11 am Mr McQuilkin did not record the time at which he made his record but I accept it was made on the same day probably shortly after he returned to the office.

1. To determine which version is more likely on the probabilities it is necessary to consider the matter in the light of the whole of the evidence.

1. On 18th May 2010, the plaintiff's solicitors wrote to the defendant's solicitors stating, inter alia, "We note that you will not be pursuing the limitation point in this matter". Apparently in February, the first defendant's solicitors had pointed out that the plaintiff had named the wrong entity in a statement of claim. On 24th May 2010, the plaintiff's solicitors wrote advising that they would amend accordingly "on the understanding that you will not take any issue with the amendment nor take any limitation points as a result of the amendment". The defendant's solicitor replied on 28th May 2010 in the following terms:

We confirm that we will not take issue with amendment to the statement of claim, or the limitation issue.

1. The plaintiff having filed the contemplated amended statement of claim, the first defendant filed an amended defence which recited its pleading of the statutory bar. A further amended defence was filed on 26th July 2010, endorsed with the consent of the plaintiff's solicitor, again reiterating the pleading of the statutory bar. A statement of issues in dispute filed on 10th November 2010 again referred to the statutory bar and disputed that the plaintiff was under disability for the purpose of s.52 of the Limitation Act.

1. By paragraph 23 of his affidavit McQuilkin, who continued to handle the matter throughout this period, did not recall "seeing" the reiteration of the pleading of the statutory bar and has no recollection of any other communication from the solicitors for the first defendant purporting to raise it again. He qualified Dr Peter Klug, psychiatrist, in mid 2011, but did not ask him to comment or express an opinion on the disability issue because, he says, "I believed, based on what I have been told by the defendant, that there was no limitation issue being pursued by the defendant in these proceedings" (affidavit [24]).

1. Mr McQuilkin relinquished the carriage of the matter some time in 2011, and it was taken over by Mr Evan Griffith. An affidavit by Mr Griffith has not been read in these proceedings. However, as part of exhibit 1D2 (pp. 43-48), Optus has tendered a notice of motion with an affidavit in support by Mr Griffith seeking leave to join the plaintiff's employer as a defendant under r 6.24 of the rules and deferring the determination of leave under s.151D of the Workers Compensation Act 1987 (NSW) to the trial.

1. In his affidavit in support sworn 18th July 2012, Mr Griffith refers to the original defence filed on 10th December 2009 raising the statutory bar, but not any of the subsequent pleadings or court documents reiterating that matter. The balance of the affidavit is taken up with explaining the steps taken by the plaintiff to comply with the pre-litigation requirements of the Work Place Injury Management and Workers Compensation Act 1998 (NSW). By paragraph [17] (page 48 exhibit 1D2), he said:

It is submitted by the plaintiff that, given the Limitation Act issue raised by the defendant, there are obvious overlapping issues which ought to be determined together in order to save the Court's valuable resources, as well as time and cost to the parties.

The reference to the defendant was clearly a reference to the first defendant, and as the first defendant says, this is compelling evidence, for what it is worth, that as at July 2012, Mr Griffith, the new solicitor handling the matter, believed that the Limitation Act issue remained alive, and therefore not abandoned by the first defendant.

1. On 1st November 2013, I infer on the advice of counsel, Mr Griffith wrote to the solicitors for the defendant. The letter pointed out that in the course of preparing briefs for counsel it had been picked up that subsequent versions of the defence had continued to maintain the statutory bar. It asserted "this is clearly inconsistent with the waiver of the limitation defence brought to the attention of the court by your Mr Campbell on 3rd May 2010". It set out the subsequent narrative, the history of the matter, excluding Mr Griffith's previous belief, and concluded as follows:

Could you kindly confirm by return, as a matter of urgency, that you will not be pressing paragraph 26 of your further amended defence at the hearing of this matter. Failing any such concession, we will seek to file a notice of motion returnable at the hearing, consistent with the correspondence referred to, seeking to strike out that part of your defence with costs.

The letter was sent attached to an email dispatched at 10:15 am (exhibit D). At 11:56 am on the same day the defendant's solicitor replied by email (exhibit "E"):

Our client will not be pursuing the limitation issue.

I infer that final preparation for hearing occurred on this basis. However, it is common ground that just before the commencement of the hearing before me, senior counsel for the first defendant informed senior counsel for the plaintiff that he would be pressing the statutory bar.

1. Mr Cavanagh drew this matter to my attention at the very outset and I directed that the matter should proceed, but that I would give the plaintiff the opportunity to treat any limitation point as a separate issue to be determined during the courset of the trial. On the second day of the trial, I was informed that the plaintiff proposed to bring forward the motion foreshadowed in the plaintiff's solicitor's letter on 1st November 2013. It was in these unusual circumstances that I interrupted the hearing to allow that motion to be heard.

1. The previous solicitors correspondence, which is exhibit 1D3, was tendered to show that there is a triable issue about disability in as much as clearly a solicitor was acting on behalf of the plaintiff for various purposes arising out of the incident of 15th March 2001, not only during the running of the primary limitation period but also into the longstop period until mid-2006.

Resolution of factual issue

1. It seems to me that the question is not whether there is a triable issue in relation to the limitation point, because the plaintiff is not seeking summary judgment. It follows that I do not have to be persuaded to the high degree of certainty referred to in the cases that the defendant's limitation case is clearly untenable for the plaintiff's motion to succeed. Those principles are simply not applicable to the current area of discourse. Rather, it seems to me that to succeed on his motion the plaintiff need only satisfy me on the balance of probabilities:

(a)   That the first defendant had abandoned its limitation defence, and

(b)   That it would be unjustifiably oppressive to permit it to resuscitate the defence.

1. In deciding these questions it is not necessary for me to decide as a separate question whether the plaintiff has made good a case of waiver, acquiescence or estoppel, to borrow the language from Berowra Holdings at [39]; rather I am being asked to exercise the Court's procedural powers under r 14.28 having regard to the overriding purpose established, and given content, by the efficiency provisions of the Civil Procedure Act. The important consideration is that I am not so much applying substantive law to established facts, as identifying choices made by the parties in the course of their litigation, and if the dictates of justice require it, keeping them to those choices.

1. I have decided that Mr McQuilkin's account is probably correct for a number of reasons. First, but not foremost, I have given weight to the consideration that he has given evidence on his oath. This is not to criticise any of the other solicitors. But I have not heard from them, and in a situation where there is room for ambiguity in the contemporaneous records, Mr McQuilkin's unchallenged account on oath is worthy of weight.

1. Secondly, the probabilities favour, in my judgment (always accepting that minds may differ), Mr McQuilkin's account. When it is applicable, the statutory bar is decisive. And in this case where proceedings were commenced nearly eight years after the event, it was an obvious and central issue. No application for extension of time was filed with the statement of claim. Rather the plaintiff's position was that time was suspended under s.52 by virtue of his disability. He does not sue by a tutor. Even so, in a case of pure mental harm the question of disability seems an obvious one to ask. The issues were defined by January 2010, about a month after the defence was filed pleading the statutory bar. It seems to have been within the contemplation of the parties that that issue ought to be resolved early to avoid them both wasting costs. The prospect of an early determination was raised when the matter was first before the Court. The suggestion was that the defendant move to strike out the statement of claim, even if the determination of a separate question might have been a more satisfactory approach. The Court in case management "approved" of this approach. Indeed, when the parties agreed to delay prosecuting the early determination of the limitation question, the Registrar restored the matter to the List to find out what was happening. In this context it seems much less likely that the parties simply let the matter drop leaving it for determination at the trial. To my mind it seems much more likely that the matter was dropped because the first defendant, which has never served any medical evidence of any type, in the light of the apparent strength of the plaintiff's case on disability, chose to fight the case on the merits: Ketteman at 219.

1. Thirdly, when the plaintiff's solicitor realised the ambiguity in the first defendant's position by reference to the reiteration of the limitation defence in successive versions of its pleading, he sent the letter of 1st November 2013 seeking confirmation that the limitation defence was not to be pursued. He received a very prompt response, which in plain language provided the confirmation he sought, i.e. the first defendant "will not be pursuing the limitation issue" (exhibit E). This confirmed the assumption on which the plaintiff's camp had been mostly working since May 2010. I say mostly working because I am conscious that Mr Griffith made a different, and in view of my finding, erroneous assumption when he assumed conduct of the matter and sought leave to join the second defendant to the proceedings. But in my view at that time he was simply mistaken. It is notable that he referred to the original defence of December 2009 and not the subsequent reiterations. This suggests to me that he was at that stage not fully on top of all the material. As there is no affidavit from Mr Griffith, it is hard to be dogmatic about this. However, doing the best I can with the material available to me, this seems the more likely explanation. It is important to my way of thinking that what was sought on 1st November, as I have said, and provided, was confirmation of what the plaintiff's solicitors took to be the status quo. That confirmation was necessary because of the ambiguity in the first defendant's conduct, which on the surface may have involved a degree of approbation and reprobation.

1. Fourthly, in the light of the other matters I have referred to I am of the view that the reiteration of the limitation defence in the various versions of the first defendant's defence and other Court documents is no more than that. It was not the assertion of a contrary assumption by the first defendant that the limitation issue could be dealt with at the trial; it was a mere, mechanical repetition of something on the original defence which had been given up on by 3rd May 2010.

1. I find that on 3rd May 2010 the first defendant's solicitors informed the plaintiff's solicitors that the first defendant did not intend to bring forward a motion for the early determination of the limitation issue because it was not pursuing that issue. I accept Mr McQuilkin's evidence that the Registrar was told the same thing on that day. That there is no record of what was said in Court available on the file does not dissuade me from this conclusion. It is simply a neutral consideration.

1. My second question really needs to be considered in the light of that finding. Effectively, although the application is to strike out paragraph 26 of the current defence, in substance the first defendant is seeking to reassert a defence it previously disavowed. The question is whether it would be unjustifiably oppressive to the plaintiff to permit this to occur. In this regard I bear in mind the passages from Berowra Holdings and Ketteman I have set out above. To adapt the language of Lord Griffiths, both parties have brought the case to trial on the assumption that the limitation issue is spent. They have come to court to contest the factual and legal issues arising in the dispute, and they have fully prepared for this contest in open court. In this context "a plea of limitation no longer serves its purpose as a procedural bar".

1. In deciding this issue, I bear in mind that the plaintiff has not prepared a case based upon the limitation point being in issue. No additional evidence has been sought to bolster the case under s.52, and the plaintiff is not in a position to pursue an application for an extension of time because he has not prepared such an application by gathering the necessary evidence in support. The plaintiff cannot know what course the defendant would take should such an application be advanced.

1. Importantly, I am informed that there have been two mediations in the matter since May 2010. The plaintiff may have lost the opportunity to achieve a favourable settlement, should the defendant now be entitled to reassert its limitation defence. Had the plaintiff known at mediation that there was still a risk of losing the case on that ground, that consideration would obviously have been factored in to his settlement posture. Moreover, the evidence I have seen so far suggests that he is severely psychiatrically disturbed, and allowing the defendant to reassert a previously abandoned defence, which may be a trump card, has the potential to adversely impact on his mental health.

1. These considerations then bring me to the consideration of the efficiency provisions of the Civil Procedure Act. As French CJ said in Aon Risk Services Australia Ltd v Australian National Univeristy [2009] HCA 27; 239 CLR 175 at 182 [5], applications for adjournment and amendment are not to be considered solely by reference to whether any prejudice to the opposing party could be compensated by costs. His Honour said that a Judge should take into account that:

...whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.

The overriding purpose of adjectival law in this State is "to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings": s.56(1) Civil Procedure Act. That consideration must underpin the exercise by the Court of its procedural powers. As the High Court pointed out in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [57], the civil procedure legislation assumes that facilitating the overriding purpose "to a large extent, will coincide with the dictates of justice".

1. Permitting the first defendant to now reassert its limitation defence, it seems to me, will inevitably result in the need for an adjournment, involving wasted costs, further delay in an old case, and the infliction of further anguish upon the plaintiff, who seems to be, on the evidence I have seen so far, significantly, psychiatrically unwell. Effectively, the case may have to start again.

1. For these reasons I am satisfied that to allow the defendant to reassert the limitation defence would be unjustifiably oppressive in the circumstances. I have found the first defendant made a choice about the limitation defence in May 2010. The dictates of justice require that it should be kept to it.

1. For these reasons, I order:

(1) Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), paragraph 26 of the further amended defence of the first defendant dated 4th July 2012 is struck out.

Decision last updated: 15 November 2013