Angelo De Jong v Workers Compensation Nominal Insurer & Anor

The defendant's evidence

1. The defendant relied on an affidavit of Kevin John McMenamin sworn on 7 February 2018. Mr McMenamin was the solicitor for the defendant and he set out in detail the history of the proceedings and various breaches of court directions of the plaintiff since those proceedings were commenced.
2. Mr McMenamin deposed, argumentatively, that the joinder of the second defendant herein was futile. The plaintiff's accident had occurred on 5 January 2010. The proceedings were not commenced until 4 May 2016, almost six years and four months after the accident. The plaintiff had been cross-examined by the first defendant, at the hearing of the plaintiff's previous motion on the limitation issue, prior to the purported joinder of CPB as a cross-defendant to the proceedings. In his cross-examination the plaintiff had conceded that he had known since January 2010 that both his employer and Leighton Contractors were responsible for his injuries.
3. There was no cross-examination.
4. The defendant relied upon a tender bundle of relevant documents (Ex 1). They included notes taken by Mr Vaughan at a conference which were undated, but inferentially the conference he attended with the plaintiff and Mr Tanevski. The notes clearly referred to a workers compensation claim against the plaintiff's employer.
5. Also included in Ex 1 (at pp 7 ad 8) were notes from an unidentified writer, which were dated 19 May 2015, which referred to the circumstances of the plaintiff's injury and also contained the entry: "3P liab: contractor Leightons Was in trench with five other workers ? evidence"
6. The two page document went on to identify the plaintiff's various legal representations, "issues" and contained the following entry: "*limitation period"
7. Exhibit 2 was a document prepared by Counsel highlighting similarities and three suggested differences between the version of the plaintiff's solicitor and the plaintiff of the conversation that took place at the mediation on 10 March 2016.

CPB's submissions

1. CPB relied on a succinct outline of submissions in which it submitted that whilst s 64(2) of the Civil Procedure Act 2005 ("CPA") requires the court to permit "all necessary amendments … for the purpose of determining the real questions raised" in proceedings, the court would not permit an amendment to plead a cause of action which was futile. The plaintiff's claim against Leighton Contractors was statute barred, and therefore it was both contrary to the overriding purpose of the Act, and the dictates of justice to grant leave to bring such a claim.
2. The relevant limitation provision was s 50C of the Limitation Act 1969. It provided that a cause of action for damages for personal injuries is not maintainable after the expiration of a period of three years, running from and including the date on which the cause of action is discoverable by the plaintiff. Section 50D of the Limitation Act relevantly provides what is meant by the phrase "a cause of action is discoverable". It was submitted that in the circumstances here, the plaintiff knew at the time of his injury, or within 48 hours thereafter, that he had suffered an injury which was serious, and that injury was caused by the fault of Leighton Contractors. He knew that Leighton Contractors had overall responsibility for occupational health and safety on the site. He had conceded in previous cross-examination and cross‑examination on this application that he knew on the day of the accident that Leightons was responsible for the accident. It was submitted that he knew that Leightons "were at fault" and this was not something he learned from his solicitor, it was something he himself told his solicitor.
3. It was submitted that the elements of s 50D(1) were satisfied here, and that leave should be refused.
4. In oral submissions, counsel for the proposed second defendant relied on the Court of Appeal's decision in State of New South Wales v Gillett [2012] NSWCA 83, in which Beazley JA (as her Honour then was) analysed previous appellate decisions as to the construction of s 50D, including what is meant by the word "fault" contained in s 50D(1)(b), namely, that a defendant has to establish that the plaintiff knew that the matter was legally actionable. What that involved in a particular case would depend upon the relevant circumstances. Her Honour applied the court's previous decision in Baker-Morrison v State of New South Wales [2009] NSWCA 35.
5. Counsel submitted that the onus was on the plaintiff to identify the key factors underlying what was required in s 50D. Here, the plaintiff had admitted that he knew that all of the elements for the cause of action existed at the time of the injury. He knew that he had suffered a significant injury and that Leighton Contractors were at fault. He was therefore, by his own admission, aware of all of the key factors at the time of, or within 48 hours of the incident. There was no evidence of what steps, if any, let alone reasonable steps, the plaintiff thereafter took so as to satisfy s 50D(2). The plaintiff merely stated, "No one told me I could sue", which was not a relevant test.

The plaintiff's submissions

1. Learned Counsel for the plaintiff submitted that what was required pursuant to s 50C was that the plaintiff knew the proposed tortfeasor was legally at fault, relying on Baker-Morrison v State of New South Wales, supra, as explained in Gillett. It was submitted that that could not happen without him receiving legal advice, and he was not aware that he could sue Leighton Contractors because of what they did. He believed at all relevant times that he was covered by his employer, not Leighton Contractors, until he received advice following the mediation in March 2016.
2. The plaintiff relied on a decision of Letherbarrow SC DCJ in Steven Galea v AMP Capital Investors Limited and Glad Cleaning Services Pty Limited [2015] NSWDC 65, in which his Honour had summarised the appellate authorities on s 50D, including Baker-Morrison, supra, Gillett, supra and Bostik Australia Pty Limited v Liddiard & Or [2009] NSWCA 167. Applying Gillett, Counsel submitted that what was required was a legal evaluative judgment as to liability, which the plaintiff could not be expected to know until he received legal advice. That had occurred in March 2016.
3. On the issue of futility, Counsel submitted that the plaintiff had an arguable case, and pursuant to s 50D(1)(b), that was "a real arguable case". He just did not know at any relevant time that he had a cause of action against Leighton Contractors.

Submissions in reply

1. Counsel for the first defendant submitted in reply if leave were granted, a question arose as to the date the leave would run from. It was submitted that retrospectivity did not apply on joinder of a party, and the amendment would only take effect on the date when the Amended Statement of Claim was filed with leave, relying on s 64 of the CPA and UCPR rule 6.24.

Determination

1. Section 64 of the CPA provides as follows: "64(1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended or, (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to s 65, taken to be the date on which the amendment was made. (4) If there has been a mistake in the name of the party, this section applies to the person intended to be made a party as if he or she were a party."
2. Section 58 of the CPA provides as follows: "58(1) In deciding: (a) whether to make any order or direction for the management of the proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of the proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of ss 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under s 56(3), (v) the use that any party has made or could have made of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
3. Part 6 rule 6.24 of the UCPR provides as follows: "6.24(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder is a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting sub-rule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who was in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant."
4. The defendant has submitted that joinder of the proposed second defendant would be futile in the circumstances because the proceedings were commenced out of time (over 3 years and 4 months late), that the plaintiff's claim is subject to leave being granted pursuant to s 151D(2) of the Workers Compensation Act 1987 (which has been stood over for determination by the trial Judge), that the catalyst for the joinder arose following the defendant (now the Nominal Insurer) issuing a cross-claim against the head contractor CPB on 19 June 2017, and that any joinder would take effect from date of joinder (which would be more than eight years following the plaintiff's injury, and more than five years out of time). This would give rise to a strong limitation defence which the plaintiff could not overcome relying on ss 50C and 50D of the Limitation Act, because the plaintiff was armed with all relevant knowledge to bring such a claim at the time of, or within a very short period of time of his injury.
5. Section 50D of the Limitation Act relevantly provides: "(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 of concern 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, the court may have regard to the conduct and statements, oral or in writing, of that person."
6. It is clear from the authorities set out above, that the concept of "fault" in ss 50D(1)(b) incorporates either actual or constructive knowledge of the underlying facts and also a "legal evaluative judgment". The evidence has established that the plaintiff clearly knew at the time he was injured, or within 48 hours thereof, that he had suffered a serious injury and that the employees of the head contractor, Leighton Contractors (now CPB), had caused that injury by manually manoeuvring the footbridge across the trench he was working in without the use of a manatou, which would have avoided the risk of such injury.
7. The plaintiff believed that his employer was responsible for his injury, notwithstanding that he knew that Leighton's employees had caused it. He had told his present solicitors of the circumstances in which he was injured when he first spoke to Mr Dlakic about the injury in 2010. Thereafter, he instructed two other firms of solicitors to prosecute a claim for his workers compensation entitlements, before retaining his present solicitors to finalise that claim in July 2013.
8. The plaintiff submits that he relied on the advice of his solicitors, which was to prosecute his workers compensation entitlements. It was not until the workers compensation mediation that took place on 10 March 2016, that he was first advised that he could sue CPB at common law. Notwithstanding that advice, he did not do so at that time.
9. The question arises whether s 50D(1)(b) has been satisfied, namely, whether the cause of action against CPB was discoverable in that the plaintiff knew, or ought to have known, that his injury was caused by the "fault" of CPB.
10. Here, that element is clearly satisfied. The plaintiff knew that it was Leighton Contractors' employees who caused his injury by manually moving the footbridge over the trench in which he was working. Their omission to use a manatou to carry out that work so as to avoid the risk of injury, was known to the plaintiff within 48 hours of the accident. Whilst the plaintiff's belief was that his employer was responsible for his injury, and therefore liable to pay workers compensation entitlements, it is also clear, and he has conceded, that he knew this his injuries were caused by the fault of Leighton Contractors by its employees.
11. I am satisfied that when the plaintiff first consulted Mr Dlakic in 2010, he informed him of the circumstances in which he was injured. The plaintiff then changed solicitors, on more than one occasion, and pursued a claim for his workers compensation entitlements. He returned to his present solicitors to finalise that claim in July 2013.
12. I am further satisfied that on 19 May 2015, those solicitors considered the third party liability of the head contractor, namely, Leightons Contractors, (see [24] above), and discussed that issue with the plaintiff. The solicitors had forwarded a letter to Leighton Contractors dated 13 February 2015 requesting relevant documents being "statements, incident reports and investigation notes". It was not to the point that the plaintiff's present solicitor had no recollection of that letter. Further, those solicitors had, by letter dated 12 May 2015, briefed counsel to advise in relation to a common law action against Leighton Contractors.
13. By virtue of s 56 of the CPA, the overriding purpose of the Act and rules of court, is to facilitate the just, quick and cheap resolution of the real issues in proceedings. Pursuant to s 56 (3), a party to civil proceedings is under a duty to further the overriding purpose and that duty extends to solicitors for parties to proceedings by virtue of s 56(4). As set out above, the court must have regard to that overriding purpose in determining the dictates of justice in a particular case pursuant to s 58(2). The court will also have regard to the degree of expedition with which parties have approached proceedings and the degree to which respective parties have fulfilled their duties under s 56(3).
14. The advice, if any, provided by counsel in May 2015, was not disclosed to the court on this application. However, by letter dated 3 August 2015, advice was obtained from Mr Jurisich of counsel, following conference with the plaintiff and his solicitor, which took place on 29 July 2015. It was on that basis that the plaintiff's pre-filing statement was served and the Statement of Claim issued against the plaintiff's employer. It may be inferred from that chronology that a decision was made, with or without consultation with the plaintiff, to not sue Leighton Contractors at that time.
15. Further, I do not accept that the plaintiff had no knowledge of the limitation period of three years following his injury for bringing a cause of action. The plaintiff had previously conceded that he had received that advice. The dictates of justice, on balance, do not warrant an exercise of the court's discretion to allow joinder of a party where that joinder would be futile. This is not unlike Itek Graphix v Elliott (2002) 54 NSWLR 207 (which concerned an application under s 151D WCA), where the plaintiff made a deliberate decision not to sue. The plaintiff cannot rely here on the absence of advice to sue from the various solicitors who acted on his behalf, following the injury. After the conversation the plaintiff had with his solicitor following the mediation at the Workers Compensation Commission on 10 March 2016, no instructions were given to his solicitor to join Leighton Contractors, rather, it was only when the defendant filed and served a Cross-Claim on 19 June 2017 against CPB, that the plaintiff filed an Amended Statement of Claim out of time without leave, and subsequently brought this application. That demonstrated a complete lack of expedition in prosecuting the plaintiff's claim, which would weigh against the exercise of the court's discretion in his favour in this case.
16. In applying s 50D of the Limitation Act, the limits of the discretion to extend time are to be found in the subject matter, scope and purposes of the statute - see Strasburger Enterprises Pty Limited t/as Quix Food Stores v Serna [2008] NSWCA 354 per Basten JA, referred to in Gower v State of New South Wales [2018] NSWCA 132 at [186] per White JA. Those limits have been construed in the appellate decisions referred to above, namely, Baker‑Morrison, supra, and Gillett, supra. It is clear from the latter decision that s 50D includes both actual and constructive knowledge of the matters set out in s 50D(1)(a), (b) and (c). In this case, given the matters outlined above, I find that the plaintiff ought to have known that his injury was caused by the fault of CPB within a short time of his injury, and certainly within three years thereof. It certainly would have been ascertained by the plaintiff if he had taken all reasonable steps to ascertain the liability of CPB in accordance with s 50D(2). This is not a case, nor was it submitted to be one, where the general principles concerning presumptive and actual prejudice arise (cf Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541), or where the test is ultimately whether a fair trial can take place (cf Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347). Merely because the defendant has issued a Cross-Claim against CPB does not mandate the dictates of justice to allow the plaintiff to join CPB as a second defendant in circumstances where it would be futile to do so.
17. I accept CPB's submission that the fact that no one advised the plaintiff that he could sue, was not the relevant test to be applied. Rather, the plaintiff's proposed cause of action against Leighton Contractors was discoverable within a very short time of the injury by taking one reasonable step, namely, asking one of the three firms of solicitors who acted for him for advice as to his entitlement to sue. Given that he told Mr Dlakic from the outset the circumstances in which he was injured, that advice should have been forthcoming. Thus, to allow the joinder against CPB now would be futile in the face of a strong limitation defence. This is not a case like that of Steven Galea v AMP Capital Investors Limited & Or, supra, where the plaintiff knew he had suffered a serious injury and could not work, but there was no reasonable step that he could have taken to ascertain the relevant knowledge as to the proposed tortfeasor and obtain advice in relation to that.
18. I am not persuaded that the plaintiff has satisfied the "legal evaluative judgment" that he could not have been expected to know that he could sue CPB until he was told by his present solicitor in March 2016.
19. Further, I am satisfied that any claim by the plaintiff against CPB would not be maintainable pursuant to s 50C of the Limitation Act 1969, it being more than five years out of time for bringing such a claim, and that it would be futile to grant leave to the plaintiff to bring that claim out of time.

Orders

1. I make the following orders: 1. The Plaintiff's Notice of Motion is dismissed. 2. The Plaintiff is to pay the proposed Second Defendant's costs of the Notice of Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2018