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[2025] NSWSC 1581
General information, not legal advice.
Supreme Court of NSW
2025-12-19
Harrison AsJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Alley v TELSTRA CORPORATION LIMITED [2025] NSWSC 1581
Hearing dates: 31 October 2025
Date of orders: 19 December 2025
Decision date: 19 December 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision: (1) The notice of motion filed by the plaintiff on 6 June 2025 is dismissed.
(2) The plaintiff is to pay the defendant’s costs.
Catchwords: CIVIL PROCEDURE — application for separate determination of questions — Uniform Civil Procedure Rules 2005 (NSW), r 28.2 — application to consider whether the proceedings are barred by the Limitation Act 1969 (NSW) prior to substantive hearing — application for separate determination of questions declined
LIMITATION OF ACTIONS — discoverability — personal injury — whether the plaintiff “ought to know” facts — knowledge of fault of defendant — knowledge of seriousness that warrants suing — where a solicitor failed to advise on common law claim
Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5D
Civil Procedure Act 2005 (NSW) ss 56, 57, 60
Limitation Act 1969 (NSW) ss 18A, 50C and 50D
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 28.2
Workers Compensation Act 1987 (NSW)
Cases Cited: Baggs v University of Sydney Union [2013] NSWCA 451
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Crawley v Vero Insurance Ltd [2012] NSWSC 593
Fogg v Kane Constructions (NSW) Pty Ltd [2015] NSWSC 648
Frizelle v Bauer [2009] NSWCA 239
Hogan v Thornley [2025] NSWSC 640
In the matter of Hillsea Pty Limited [2019] NSWSC 1152
Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295
Pomare v Whyte [2019] NSWCA 317; 377 ALR 352
Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666
Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496
Southwell v Bennett [2010] NSWSC 1372
State of New South Wales v Gillett [2012] NSWCA 83
Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213
Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13
Telstra Corporation Ltd v Rea [2002] NSWCA 49
Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19
Wardley Australia Ltd v Western Australia (Rothwells Loan case) (1992) 175 CLR 514; [1992] HCA 55
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Nil
Category: Procedural rulings
Parties: Ames Alley (Plaintiff)
Telstra Corporation Limited (First Defendant)
A.C.N. 142 916 970 PTY LTD previously known as ISG Management Pty Limited (Second Defendant)
Representation: Counsel:
R Goodridge (Plaintiff)
B Jones (First Defendant)
Solicitors:
Firths (Plaintiff)
Sparke Helmore (First Defendant)
File Number(s): 2024/00472947
Publication restriction: Nil
JUDGMENT
This judgment concerns a request to determine a separate question, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).
The plaintiff is Ames Alley (Alley) and is represented by R Goodridge of counsel. The first defendant is Telstra Corporation Limited (Telstra) and is represented by B Jones of counsel. The second defendant is A.C.N. 142 916 970 PTY LTD (under external administration) previously known as Infrastructure Services Group Management Pty Limited (ISGM). The second defendant is under external administration. It has not participated in these proceedings. No relevant insurance policy has been identified indemnifying the second defendant.
On 19 December 2024, Alley commenced these proceedings against Telstra.
On 6 February 2025, Alley was granted leave to file an amended statement of claim joining ISGM.
On 23 May 2025, Telstra filed its defence. In its defence, Telstra pleaded that Alley’s claim is barred by s 18A(2) of the Limitation Act 1969 (NSW). This pleading is no longer pressed. Telstra submits that the claim is barred by ss 50C and 50D of the Limitation Act.
On 6 June 2025, Alley filed a notice of motion seeking a separate determination in relation to the limitation issues contained in Telstra’s defence.
“The separate determination pursuant to UCPR rule 28.2 of whether the plaintiff’s cause of action was “discoverable” within the meaning of ss 50C and 50D of the Limitation Act 1969 or whether the proceedings are barred by reason of s18A(2) Limitation Act as pleaded by the Defendant.”
28.2 Order for decision
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 (‘Tepko’); Southwell v Bennett [2010] NSWSC 1372 at [15] (‘Southwell’); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 (‘Crawley’).
The general rule is that proceedings are listed for trial generally, for the hearing of all questions and issues arising in the proceedings: see ss 56(1) and 56(2) of the Civil Procedure Act 2005 (NSW) (CPA) reproduced later in this judgment. The court’s power to make orders for the decision of any question separately from any other question under UCPR r 28.2 arises as an exception to the general rule.
The legal principles that apply in exercising the discretion whether to make the order for separate determination are set out in the decision of Hallen J in Southwell at [15]. His Honour set out the principles as follows:
“…
(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ.
(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.
(g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be ‘just and convenient’ for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049.
(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.
(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168].
(j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).
(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.
…
(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.
(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.
…”
“[17] Second, an interlocutory order for the separate determination of issues is an exceptional measure, distinct from the ordinary course taken of determining the issues in their totality: Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5]. Consequently, the applicant bears the burden of demonstrating the appropriateness of the order, but it may be appropriate for the judge to take a more "interventionist role" in crafting the precise scope of the question*:* Intergral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 per Brereton J at [6]; Commonwealth Bank of Australia v Clune [2008] NSWSC 1125. The counter to the observations in [16] is that sometimes issues are separated in the expectation that their resolution will determine the balance of the proceedings but that proves illusory. On other occasions a matter determinative of, and fatal to, the proceedings is decided but then appealed and overturned with the outcome that the parties find themselves back in the same position they were prior to a trial but with years having passed. Kirby and Callinan JJ noted in Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168] that the benefits of a separate question order "are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory..." .
[18] Third, one real problem with ordering separate hearings is the potential for credibility findings to be made in one hearing in respect of a witness who may have to give evidence at the second hearing. This can create significant difficulties including, but not restricted to, the potential for the trial judge to disqualify themselves (see Warragamba Winery Pty Ltd v New South Wales [2010] NSWSC 66 at [10] to [14] per Harrison J).”
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
…
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
…
60 Proportionality of costs
In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
The relevant sections of the Limitation Act are set out below.
Section 18A(2) reads:
18A Personal injury
…
(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.
50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note—
The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.
…
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the 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 time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
The fact contemplated by s 50D(1)(b) of the Limitation Act is a relationship between the injury on the one hand and the fault of the defendant on the other, the relevant connection being one of causation: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 (‘Baker-Morrison’) at [1], [28] and [63].
Fault is to be ascertained by reference to legal concepts, not moral blameworthiness so that while there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, breach, nuisance, breach of duty or otherwise, the key factors necessary to establish legal liability must be known: [1], [28], [39] per Basten JA in Baker-Morrison.
In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Basten JA agreed with Beazley JA that the claim was not statute barred noting at [130] that “…the cause of action was not discoverable until the plaintiff knew or ought to have known of a reasonably arguable case involving a connection between his injury and fault on the part of the appellant”. The relevant facts included the contractual and practical relationship between his employer and the appellant.
In State of New South Wales v Gillett [2012] NSWCA 83 (‘Gillett’), Beazley JA at [70] cited Basten JA who held at [41] in Baker-Morrison that:
“a plaintiff had to know the defendant’s conduct was actionable which involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action absent appropriate legal and medical advice in respect of such matters.”
Also in Gillett, Beazley JA at [97] agreed with the submission of senior counsel for the respondent that “for the purposes of fault in s 50D(1)(b) the defendant had to establish the plaintiff knew the matter was legally actionable.”
In Fogg v Kane Constructions (NSW) Pty Ltd [2015] NSWSC 648, Johnson J noted at [82] that the word “fact” in s 50D of the Limitation Act is not a fact in the ordinary sense of something objectively observable. Instead, the word “fact” is there being used to describe a composite of inferences or the result of an evaluation of which the plaintiff must have knowledge. The question for the purposes of s 50D(1)(b), was characterised by Johnson J as whether the plaintiff knew of the key factors necessary to give rise to a legal liability on the part of the defendant.
In Gillett, Beazley JA stated at [104]:
“…For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case”
“There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending on the advice of professional persons, but, having been given the wrong advice does not have the necessary state of mind.”
“As was pointed out by Basten JA in Baker-Morrison at [58], in most cases the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking "all reasonable steps" for the purposes of s 50D(2).”
The “ought to know” limb namely, s 50D (2) of the Limitation Act is assessed by reference to the steps a reasonable person in the plaintiff's position would take. The knowledge is personal not constructive.
As explained by Simpson AJA with Kirk and Meagher JJA agreeing in Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 (‘Synergy’) at [59]:
“[59] [50D subsection] (2) nevertheless has significance because:
‘...it contains implications that some facts may only be reasonably ascertainable land thus known] with professional assistance and that there may be facts which involve an element of professional judgment’: Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295 at [40] (Basten JA)
[50D subsection] (2) thus throws some light on the proper construction of, or approach to, subs (1).”
“[69] The fact contemplated by s 50D(1)(b) is:
‘...a relationship between two things, namely, the injury ... on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.’: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 at [28].’
To "know" that an injury is caused by the fault of the defendant is to know "the key factors necessary to establish liability": Baker-Morrison at [39]. That may involve knowledge of a number of anterior facts, from which a conclusion that the injury was caused by the fault of the defendant may be drawn. The s50D(1)(b) "fact" is, in reality, a conclusion drawn from known (or supposed) facts. The anterior facts sufficient to justify such a conclusion may, as Leeming JA said in Murgolo, became known to the plaintiff at different times.
[70] Whether the anterior facts known to the putative plaintiff are such as to constitute knowledge that the injury was caused by the fault of the putative defendant depends upon a "legal evaluative judgment": Baker-Morrison at [41]. In particular, having regard to the provisions of the Civil Liability Act, notably ss 5B and 5D, the putative plaintiff needs an appreciation of the principles applicable to a claim for damages based on negligence. Similarly, where the putative plaintiff is an employee of the putative defendant, an appreciation of the provisions of the Workers Compensation Act is necessary. Ordinarily, the lay person will not have either of those appreciations without legal advice, and sometimes specialist expert advice. That is not to say that legal advice will be required in every case: see, for example, Pomare [v Whyte [2019] NSWCA 317 at [19]] (Basten JA).”
A client is entitled to assume that legal advice and actions are legally sufficient: Baggs at [36].
The three Limitation Act s 50D(1) “facts” (injury; fault; seriousness) need not arise together and knowledge may accrete over time as anterior facts become known. Synergy at [67] quoted Leeming JA in Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295 (‘Murgolo’):
“[67] In [Murgolo] Leeming JA said:
‘[100] Secondly, the primary facts which contribute to the conclusions of causation, fault and identity may not all become known to a plaintiff at the same time. They may become known over a period of time. Where the primary facts point in different directions, the conclusion which is fairly to be drawn from those known at any particular point in time may differ from the conclusion to be drawn at a different time.
[101] Thirdly, the ‘facts’ identified in s 50D include conclusions which are apt to be in issue in many cases. …
[102] Fourthly, there are large questions as to the legal meaning to be given to ‘know’ in s 50D. …
[103] In some contexts, knowledge may be contrasted with belief and expectation. …
…
[107] Sometimes ‘know’ and ‘knowledge’ are binary. It is commonplace to say that a person either knows or doesn’t know a particular fact. A plaintiff may either know or not know the occupier of a building, or whether a structure which collapsed causing injury had been built in accordance with the applicable standards. But ‘know’ and ‘knowledge’ can also refer to an opinion or belief, and in such cases there may be considerable refinements. …’”
It is asserted that Alley knew he suffered injury on 7 February 2013, but he continued to work and did not initially seek legal advice. He later lodged a workers compensation claim in mid-2016 because he could no longer cope with work.
On 12 March 2019, the late Mr Willis of counsel (Willis) gave a general advice (the Willis advice) to Alley’s solicitor. Willis did not express any final view. He advised:
various entities may have exposure;
it was “extremely difficult at this stage to provide an accurate opinion”; and
urgent investigations were required, and a further conference should occur after responses were received from Telstra and/or ISGM.
The Willis advice did not indicate to Alley’s solicitor that a viable civil claim existed. The advice identified to Alley’s solicitor, not to Alley, that a potential claim existed contingent on investigation.
Alley contacted his solicitors on 13 February 2020 seeking advice. He was told a further counsel conference would be arranged. It was not. He again asked for an update on 18 August 2020.
A letter dated 2 September 2020 (said to explain potential third-party claims) was placed on the solicitor’s file but never sent to Alley. Slater & Gordon expressly admitted on 17 April 2025 that this letter “was not mailed to Mr Alley”.
After 19 December 2021, the previous solicitor’s file notes show Alley again complained about lack of progress and sought updates on 4 May 2022 and 25 August 2022, yet he still received no substantive civil liability advice.
On 11 January 2023, Mr Young of counsel (Young) warned of “a probable limitations defence” but said, “Arguably, the action is yet ‘discoverable’...”, reinforcing that, even then, the material facts to find a viable civil claim had not been nailed down.
Mr Brian Dooley SC (Dooley) provided an advice dated 13 September 2024 which was prepared following a conference on 12 September 2024 between Dooley, Alley and his then-solicitors at Slater & Gordon.
The brief to Dooley was expressly headed “Brief to Advise and Appear on Work Injury Damages Claim”. The brief did not include instructions or material seeking advice on a potential civil liability claim against third parties such as Telstra or ISGM.
Dooley’s opinion addressed difficulties that Alley would have proceeding with a work injury damages claim. He also advised the solicitors that they should contact Alley and recommend he obtain other legal advice promptly to pursue any further rights.
Slater & Gordon later sent a letter dated 4 October 2024 to Alley conveying Dooley’s advice namely, that he may have other rights and should see different solicitors regarding them. That letter was the trigger for Alley’s later instruction of Firths on 17 October 2024.
The s 50D(1)(b) “fact” that the injury was “caused by the fault of the defendant” is a legal evaluative conclusion drawn from anterior facts. “To ‘know’ that an injury is caused by the fault of the defendant is to know ‘the key factors necessary to establish liability’,” often requiring appreciation of Civil Liability Act principles (ss 5B, 5D) and, in many cases, professional advice: Synergy at [70].
Synergy also clarifies that knowledge of a defendant’s capacity (for example, employer vs occupier) is not itself required to satisfy s 50D(1)(b); what matters is whether the circumstances are such that legal liability could be established. But the antecedent identity or control materials often bear centrally on ss 50D(1)(b) and 50D(1)(c) especially in non-obvious, system-of-work or occupier/contractor settings like this.
Before October 2024, Alley did not know the facts that established that his injury was attributable to the fault of Telstra (as owner/occupier) or of ISGM (as managing contractor), rather than to an unidentified cleaner’s act. The 2019 Willis advice identified only a possibility of exposure and demanded urgent investigations precisely because liability could not then be assessed. That is not knowledge of attributability; it is knowledge that more facts were needed.
The Slater & Gordon letter dated 2 September 2020 that might have articulated a potential civil claim was never sent, so Alley remained uninformed.
The statement of Young dated 11 January 2023, that “Arguably, the action is yet ‘discoverable’” confirms that, even from the lawyer’s vantage point, the material facts had not crystallised as at early 2023.
The first clear communication to Alley that he may have other rights and should act on them was Slater & Gordon’s letter dated 4 October 2024. Even then it could not be said that he knew facts that made the civil claim viable. The letter did put him on the path to acquiring that knowledge and he immediately changed solicitors.
Although Alley worked at a Telstra exchange, the identity of the responsible legal entity or entities at fault (whether including owner/occupier; facilities/cleaning controllers; contracting structure) remained opaque. Firths sought that information on 4 November 2024. Telstra only confirmed its role on 16 December 2024 and required subpoenas for contracts.
Subpoena access was granted on 31 January 2025, leading to the joinder of ISGM on 6 February 2025. That sequence shows identity and control facts were being diligently uncovered and actioned as soon as they were reasonably accessible.
Alley repeatedly sought information and updates (on 13 February 2020, 18 August 2020, 4 May 2022 and 25 August 2022), but his lawyers did not advise him that he had a viable civil claim; the letter dated 2 September 2020 was not sent; and even counsel in January 2023 regarded the action as “yet discoverable”. In those circumstances, a reasonable person in his position – already instructing specialist lawyers and actively chasing them – could not have discovered the necessary facts earlier by exercising reasonable diligence.
Section 50D(2) confirms the reasonable steps standard and that some facts are only reasonably ascertainable with professional assistance; it informs, rather than displaces, the s 50D(1) test.
Section 50D(1) has been said to be deceptively simple: see Synergy at [62] per Simpson AJA (Meagher and Kirk JJA agreeing), her Honour noting it has been authoritatively considered in Baker-Morrison, Frizelle, Gillett*,* Murgolo and Pomare v Whyte [2019] NSWCA 317; 377 ALR 352 (‘Pomare’).
The onus is on Telstra to prove that Alley knew each of the factual matters identified in ss 50D(1)(a) through (c). Each are addressed in turn below.
As to the concept of knowledge, see the summary of cases by Simpson AJA in Synergy from [64] to [67].
“In par (b), the word “fault” is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as “discoverable” for the purposes of s 50C is “the cause of action”. The “fact” contemplated by par (b) is a relationship between two things, namely the 6 injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.”
“Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but “sufficiently serious to justify” a course of action. Further, that course is “the bringing of an action on the cause of action”, an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being “of a decisive character” for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one “knowing those facts and having taken the appropriate advice on those facts” would hold the identified opinion.”
“[18] There is a question as to whether “fault” in this context can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may be sufficient to amount to a causal link between the breach of duty and the injury. As noted in Murgolo, s 50D(2) permits an inference that some of the facts identified in subs (1) may only be ascertainable by taking reasonable steps which will often include obtaining legal advice. Assuming that the concept of “reasonable steps” does not exclude that step, and there is no basis upon which to infer that it does, then it may be accepted that the statutory scheme is consistent with some facts being dependent upon legal (and other professional) advice. Certainly, the fact identified in subs (1)(c) would appear generally to fall within that category.
[19] There will be cases, such as a motor vehicle accident, where professional advice is not required to know there is actionable fault on the part of another driver. In many cases fault will be obvious to a lay person who, as a driver, will understand the rules of the road. Each case will turn on its own circumstances. (citations omitted).”
Alley’s case is that he did not know the facts establishing fault in Telstra as the owner/occupier. That is disputed.
According to the Willis advice, Alley knew about the contractual arrangements between ISGM and Telstra, including how the work was structured and gave clear instructions to that effect:
“On 7 February 2013 the client was allocated a job that required him to work at the Telstra telephone exchange in South Strathfield. The client was required to work on a ladder provided by Telstra for use by the technicians (of which he was seemingly one) within the telephone exchange.”
According to the Willis advice, Alley also referred to what he considered deficiencies in the ladder he was on, and the system employed generally. In addition, Alley was aware of and identified a precaution taken after his incident, suggesting he suspected some fault.
While there was some uncertainty about who employed the cleaner who made contact with the ladder Alley was on, he was able to say that they ‘were granted permission to work within Telstra’s facility’.
There can be no doubt Alley was aware that Telstra was the relevant entity and that they were the owner or at least occupier of the premises where he claims to have been injured. By extension, Alley would know that any problems with the premises, including the ladder, must fall at the feet of Telstra.
Alley also signed a cost agreement with Slater & Gordon in ‘relation to civil liability claims’. Reiterating that the cost agreement nor any file notes related to that have been provided, despite the claims to the contrary, it is reasonably open to the Court to infer that Alley was given advice that there was a cause of action against Telstra and it was through their ‘fault’ that he was injured. Otherwise, one asks rhetorically, why would a cost agreement be necessary?
That the cost agreement was signed after the conference with Willis and in the context, he had ‘asked the plaintiff to attend to a number of matters’, further favours the finding Alley was aware that, on his case, Telstra was at fault around that time.
“[70] Whether the anterior facts known to the putative plaintiff are such as to constitute knowledge that the injury was caused by the fault of the putative defendant depends upon a “legal evaluative judgment”: Baker-Morrison at [41]. In particular, having regard to the provisions of the Civil Liability Act, notably ss 5B and 5D, the putative plaintiff needs an appreciation of the principles applicable to a claim for damages based on negligence. Similarly, where the putative plaintiff is an employee of the putative defendant, an appreciation of the provisions of the Workers Compensation Act is necessary. Ordinarily, the lay person will not have either of those appreciations without legal advice, and sometimes specialist expert advice. That is not to say that legal advice will be required in every case: see, for example, Pomare at [19] (Basten JA)
…
[73] A particular complexity arises in respect of s 50D(1)(c) where an injured person (the putative plaintiff) is faced with a choice of bringing common law proceedings claiming damages from his or her employer, or contenting himself or herself with the lesser, but more certain, benefits provided under the Workers Compensation Act. This is a classic example where it might be said that a putative plaintiff does not have the necessary knowledge unless and until he or she has received appropriate legal advice.
[74] In Gillett, in which a five-judge bench was convened in order to entertain an argument that Baker-Morrison was wrongly decided, Beazley JA, with whom McColl, Campbell, Young and Whealy JJA agreed, adopted the view expressed by Basten JA in Baker-Morrison that a proper view could not be formed about the justification for bringing an action absent appropriate legal and medical advice in respect of such matters. (The Court unanimously declined the invitation to declare that Baker-Morrison was wrongly decided.)”
By the time Alley saw Willis, he had been unemployed since 2016, thus, having suffered a total wage loss over that period. It would be patently obvious there was merit in pursuing a claim for that loss; which is to say nothing about the medical expenses and time off before then.
Alley was also having treatment for and continued to be impacted by his claimed injuries and disabilities.
While there was a concurrent workers compensation claim, liability had not been accepted for that (with liability being denied in a letter dated 23 August 2016, so there was no choice between one cause of action of the other. Indeed, one set of workers compensation proceedings had been discontinued in December 2017 and on the material before the Court, it was not being agitated. That is evident by the fact the evidence discloses that the next time any such rights were pressed was on 21 December 2022 when a lump sum claim was made.
That Alley had signed a cost agreement and described a course of conduct whereby he left matters to his solicitors suggests he had elected to go down that path. The rights and matters being investigated, read in the context of what is said by Alley, pertained to the claim against Telstra and not in respect of any workers compensation rights.
In determining whether Alley took reasonable steps, the enquiry is whether he personally took reasonable steps rather than considering the state of knowledge of his legal advisers, see Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666 at [172].
Recently in Hogan v Thornley [2025] NSWSC 640 at [57] Ierace J said:
“As to how s 50D(2) is to be understood in the context of this case, the appropriate test, in my view, is what Alley knew or ought to have known; not what a reasonable person in his position ought to have known: Telstra Corporation Ltd v Rea [2002] NSWCA 49 per Foster AJA, Mason P and Einstein J agreeing, at [37]. As noted by Faulkner J in Doughty v Hillier [2024] NSWSC 1220 at [90]:
‘Although Telstra Corporation Ltd v Rea [2002] NSWCA 49 was primarily concerned with imputing to a plaintiff the knowledge of his or her agent (ie, the solicitor) the Court’s emphasis on the subjective position of the plaintiff is relevant to whether a particular plaintiff ought to have become aware of a relevant matter.’”
It is submitted that Alley ought to have known of both facts under ss 50D(1)(b) and 50D(1)(c).
Having attended a conference with Willis, been given matters to look in to regarding his claim against Telstra and signed a cost agreement, after months of inactivity Alley did nothing. That the relevant event and injury had, by that stage, occurred at least six years earlier means it is not enough for Alley to say he left matters to his solicitors.
Contrary to what Alley asserts, Telstra also contends that Alley must have been aware of the limitation issue as it seems to have been squarely raised during the conference with Willis. It might be that was the very reason Alley saw fit to contact his solicitors to see what was occurring otherwise, why bother calling if he had trusted matters to them.
Despite the above, on the history in Alley’s affidavit and that in the affidavit of Mr McKean, after the conference with Willis nothing was done by Alley in 2020 save for two follow up calls on 13 February 2020 and 18 August 2020, followed by an extended period of inactivity through to 4 May 2022 when he chased his solicitors up. Had Alley taken all reasonable steps before 12 December 2021, he would have undoubtedly ascertained the facts provided for in ss 50D(1)(b) and 50D(1)(c).
“Arguably, viewed favourably for the client, discoverability started on the day of my conference! For abundant caution the enquires referred to below should be carried out as a matter of urgency.”
Willis also stated that, “I confirm in conference I requested that the client attend to the following matters”.
While Willis also advised that at the time of his advice there were “various entities that may have an exposure to a claim for damages, but it is extremely difficult at this stage to provide an accurate opinion”, a proper reading of the Willis advice does not suggest that applied in respect of Telstra. For example, the view expressed above evidences a view that there was a claim otherwise it would not have been discoverable. While Willis did recommend some further investigations, that was merely to clarify matters rather than confirm his view there was a cause of action.
To that end, Willis was in no doubt a duty of care was owed, stating:
“[i]t could not be controversial that the duty owed by Telstra to the client was to exercise reasonable care and provide our client with a safe place of work, whilst he was required to work at its premises.”
Willis continued to address the issue of breach, noting Alley has himself identified a precaution which would have avoided the incident. Causation would be straight forward in those circumstances, with the consideration of the medical evidence earlier in the Willis advice sufficient to show as much.
Armed with that information at the conference and given the view expressed in the Willis advice, the overwhelming inference is Alley was aware he had a claim against the first defendant that was worth pursuing.
Willis went on to say that:
“Without additional instructions and a view, together with the expert liability report, it is impossible at this stage to provide a definitive opinion with respect to any liability on the part of Telstra.”
However, that is not to say there was no claim for the purposes of s 50D(1)(b) of the Limitation Act, merely that absent that information he could not say definitively how strong the case was.
If there was any doubt about the above, it is settled with the cost agreement between Alley and Willis, which was entered into in respect of the claim against Telstra.
That cost agreement was signed by Alley on 28 June 2019, including in the context of the acknowledgement that he had “been advised of my right to seek independent legal advice before signing this agreement. I acknowledge that I have been provided with advice by my solicitors as set out in your Fees Agreement and I will pay your fees in accordance with the Fees Disclosure”.
The advice given to Alley at that stage, which is some months after the Willis advice was prepared, must have included that there was a claim against Telstra which he should pursue. If not, why would the cost agreement be signed by Alley?
The cost agreement is also significant because while the letter dated 2 September 2020 was not sent to Alley, it is not true that he was not advised about the opinion of Willis as outlined in the Willis advice.
In Dooley’s advice dated 13 September 2024 (the Dooley advice), he stated that:
“I am advised that the plaintiff was provided details of the Advice [that is the Willis advice] in August 2020 by my instructing solicitors, but then nothing occurred…
It appears to me likely that if the plaintiff having been advised in 2020 of further steps being necessary, and, having been asked to provide some material, took no further steps thereafter, that a Court is likely to find that he has not taken all reasonable steps and will be statute barred.”
It was reiterated again in the Dooley advice that advice had been given in August 2020.
Regarding the August 2020 advice, the Dooley advice stated:
“[21] The Advice I believe is incorrect in that it identified that there had to be much more evidence gathered before you could determine liability of the aforementioned entities, including the plaintiff’s company.
[22] I am advised that the plaintiff was provided details of this Advice in August 2020 by my instructing solicitors, but then nothing occurred thereafter.”
Alley’s assertions about not knowing of the contents of the Willis advice until 2024 and not receiving any further advice following the conference must be wrong. It is known he did, from the Dooley advice and the fact he signed a cost agreement with Willis, which included an acknowledgement of the claim against Telstra.
Alley also does not provide a faithful summary of the conference with Willis. He did not ask “questions of a general nature”. They were targeted and directed to the claim against Telstra, including with Alley volunteering information about fault, noting he had identified precautions taken afterwards.
The claim was also not being investigated solely by Alley’s solicitors as he suggested in his affidavit, with Willis making it abundantly clear Alley had been told by him to take such steps. Those steps were never taken on the Dooley advice and critically, Alley has never denied not taking such steps.
It is also not true that after 2019, Alley was not given any advice about a claim against Telstra or limitation issues as he suggests in his affidavit. In the file note with Alley dated 30 March 2021, there was reference to the liability of a third-party (Telstra) and the limitation issue.
The file note of the conversation with Alley from 4 May 2022, also records him asking why his claim had not been commenced. That must be the claim against the first defendant because the delay was attributed to staffing issues whereas the work injury damages claim was differently described later and the delay with that attributed to the failure to get the necessary Whole Person Impairment finalised. That is, there were different delays for different claims. Also, Alley referred to “future losses”, which must be a reference to a common law claim against Telstra given that is the only claim where there are multiple future losses (out of pocket expenses, economic loss and care), noting there is only one future loss in the work injury damages claim (namely, economic loss). While that conversation was after 19 December 2021, that must have reflected what Alley knew before that.
The problems with human memory are well known, see Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq and the cases cited from [16] per Black J in In the matter of Hillsea Pty Limited [2019] NSWSC 1152. For that reason, more weight should be given to the documentary material in Exhibit B, the Willis advice. It would be extremely surprisingly if Alley could genuinely recall with absolute precision what was or not discussed with him years earlier.
Alley did not lead any evidence directed to the evidentiary matters touched on above. The Court is invited to more easily draw inferences from the material in Exhibit B that Alley’s claim was discoverable before 19 December 2021, see [2019] FCA 496 from [539] the Court (White, Gleeson and Wheelahan JJ) and the cases cited there. Indeed, Alley sought to conceal the material through the claim for privilege rather than be frank in what occurred.
The 2019 Willis conference and advice was not in Willis’ mind a concluded view. It was expressly couched in qualifications that it was a possible view requiring further investigation. Counsel said it was “extremely difficult… to provide an accurate opinion” and that urgent investigations of Telstra and/or ISGM responses were required before any view could be formed. That is not knowledge of Telstra’s “fault”, it is the opposite.
The fact that Willis issued a costs agreement broadly covering all possibilities adds nothing to his express reservations.
Willis’ opinion on discoverability is wrong in law. In his advice, sandwiched between express statements of no understanding or concluded opinion on the fault of Telstra, Willis said:
“Arguably, viewed favourably for the client, discoverability started on the day of my conference!”
(a) Willis was at the disadvantage of forming an opinion years before Synergy. (b) Synergy clarifies the law as it ought to be applied. (c) Willis does not review or discuss any principles of discoverability other than naming the two relevant sections, 50C and 50D. (d) No concluded fault view was given. (e) Willis’ “arguable” view is directly opposite to Young’s view that, “Arguably, the action is yet ‘discoverable’…”.
Alley said he was told during the Willis conference that Willis would provide his advice to his solicitor. The Willis advice was provided to the solicitor, and the solicitor drafted the letter dated 2 September 2020.
The unsent letter dated 2 September 2020 contains a clear implication that Alley had not previously been advised of civil litigation avenues. The letter is clearly intended to be the cardinal instrument through which Alley was to be informed of his civil litigation options and confirm what actions the solicitor would take to advance the case.
The letter is of significance for three further reasons: first, it confirms the level of communication from Willis to the solicitor; second, it confirms that not even the solicitor “knew” that Telstra was at fault as of September 2020; and third, it confirms that Alley personally attempted to obtain further information to assist his solicitor. The letter commences:
“I refer to the conference with counsel which took place on 12 March 2019 and the advice by counsel is summarised in this letter.”
“The content and extent of duty owed by Telstra to persons entering and working upon its facilities is probably similar to that of Woolworths in Thompson v Woolworths [(Qld) Pty Ltd [2005] HCA 19]. Without additional instructions and a view, together with an expert liability report, it is impossible at this stage to provide a definitive opinion with respect to liability on the part of Telstra.”
“Understanding the interrelationship between Telstra and ISGM may be assisted with the production of the investigation report, which you had contacted Burt Machar, the OHS manager, for a copy. However, ii has not been provided to you.”
Alley’s knowledge of fault could not rationally be greater than his solicitor’s knowledge.
Throughout 2022 and 2023 Alley repeatedly chased his solicitor for advice. A reasonable implication arises that Alley was chasing advice because he had not received advice and did not know what he needed to know.
On 11 January 2023, Young warned of “a probable limitations defence” but added, “Arguably, the action is yet ‘discoverable’…”. Young’s words corroborate that as of January 2023, the anterior facts sufficient to ground ss 50D(1)(b) and 50D(1)(c) had not yet crystallised.
The Dooley brief related to “work injury damages”. It did not contain a Telstra civil liability brief. Dooley advised that Alley “may have other rights” and that he should urgently seek other legal advice to explore those “other rights”. On 4 October 2024, that advice was at last communicated to Alley, prompting immediate instruction of new solicitors on 17 October 2024.
Firths thereafter sought identity and control information from Telstra on 4 November 2024. Telstra confirmed owner/occupier status and produced an incident record on 16 December 2024, while requiring subpoena for contracts. Proceedings were filed 19 December 2024.
On s 50D(1)(b) fault: before late 2024, there was no professional advice communicating Telstra’s fault.
Under Synergy, the s 50(1)(b) “fact” requires an appreciation of key liability factors. Such an appreciation needed professional opinion.
On the s 50D(2) “ought to know” limb, Alley had specialist lawyers. He repeatedly chased them, and he acted immediately when first told that other rights might exist. Synergy accepts that reasonable steps may necessitate professional assistance. Where that assistance is wanting or misdirected, it is artificial to deem earlier ascertainment of knowledge.
While I have recorded and taken into consideration the parties’ evidence and submissions, I return to the ultimate question that I am asked to decide, that is whether the plaintiff’s cause of action was relevantly discoverable or whether it is barred by operation of the Limitation Act should be determined separately.
I bear in mind Wardley Australia Ltd v Western Australia (Rothwells Loan case) (1992) 175 CLR 514; [1992] HCA 55, per Mason CJ, Dawson, Gaudron and McHugh JJ at [31] where the High Court cautioned:
“[W]e regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.”
Although the parties seem to have proceeded on the basis that I should determine the limitation issue (although that was not actually what I was tasked with deciding), it is inappropriate to do so because the facts and circumstances can only be obtained once the plaintiff gives evidence and is cross examined, probably at length. The plaintiff’s credibility will be hotly contested on the topic of discoverability. The issue is complex and will take some time to determine. The plaintiff will be jeopardised if he has adverse credit findings made against him in the separate determination rather than having the opportunity to be cross examined on all issues.
It is illusory to determine the limitation issue separately. There are overlapping issues. It will not save court time or legal expenses. This is certainly not one of the clearest of cases. If it may be that there will be adverse findings on credibility made against the plaintiff that will prejudice the trial on damages, Justice is best served if all the issues are determined at trial.
Therefore, I decline to order that there be a separate determination on the operation of the Limitation Act.
The notice of motion filed by the plaintiff on 6 June 2025 is dismissed.
The Court orders that:
The notice of motion filed by the plaintiff on 6 June 2025 is dismissed.
The plaintiff is to pay the defendant’s costs.
**********
Alley
TELSTRA CORPORATION LIMITED [2025] NSWSC 1581
(2009) 74 NSWLR 454
(2019) 101 NSWLR 376
(2001) 206 CLR 1
(1992) 175 CLR 514
(1995) 49 NSWLR 315
(1999) 198 CLR 180
Dooley’s opinion marked the first clear professional acknowledgment that there were unresolved potential claims beyond the workers compensation jurisdiction, but it did not itself give positive advice on liability or prospects against Telstra. It instead identified deficiencies and recommended that other lawyers be engaged promptly, a step that ultimately led to Firths being retained and the current proceedings being filed shortly before expiry of the 12-year long-stop period.
It is submitted that the Slater & Gordon letter is, in effect, an admission that they had become conflicted as they had not acted sufficiently or effectively to “discover” Alley’s claim against Telstra.
On 17 October 2024, Alley retained Firths and the file was received around 1 November 2024.
Firths immediately sought identity and control information from Telstra on 4 November 2024, noting the 12-year long-stop date of 7 February 2025. Telstra acknowledged on 11 November 2024.
Telstra responded on 16 December 2024 confirming it was the owner/responsible legal entity of the exchange as at 7 February 2013 and produced an incident report but stated that it required a subpoena for contracts.
Proceedings were commenced against Telstra on 19 December 2024. Telstra accepts that it first received notice on 4 November 2024.
Subpoena material first became available on 31 January 2025. ISGM was then added on 6 February 2025 as the long-stop was imminent.
Incidental to the above, Alley has chosen not to provide the Court with the entire file from his prior solicitors, only providing very selected portions.