The plaintiff, by Notice of Motion filed on 28 November 2017, seeks the following relief:
1. "That CPB Contractors Pty Limited (formerly known as Leighton Contractors Pty Limited) be joined as a Second Defendant pursuant to CPA s 64 and s 65 and UCPR Rule 6.24(2).
2. That the plaintiff file an Amended Statement of Claim within 14 days.
3. That the Second Defendant file a Defence on which it is intended to rely 28 days after service of the Amended Statement of Claim.
4. That the defendant pay the plaintiff's costs of this Notice of Motion.
5. Any further orders deemed necessary by the Court."
The defendant neither consented nor opposed the plaintiff's application. The proposed second defendant will be referred to as "CPB" in this judgment.
The plaintiff relied on the following affidavit evidence:
Affidavit of Michael John Vaughan sworn on 28 November 2017.
Affidavit of Michael John Vaughan sworn on 18 May 2018.
Affidavit of Angela De Jong sworn on 18 May 2018.
CPB relied on an affidavit of Mr Kevin John McMenamin sworn on 7 February 2018, together with a number of documents (Exs 1 and 2) referred to below.
Both Mr Michael Vaughan and the plaintiff, Mr Angelo Ray De Jong were required for cross-examination.
[2]
The plaintiff's evidence
The plaintiff's evidence established that the plaintiff was employed by the first defendant as a steel fixer at a building site at Beverley Hills. The head contractor on that building site was Leighton Contractors, now CPB.
On 5 January 2010, the plaintiff suffered an injury when his right hand was caught by the metal brace of a footbridge, which was suddenly moved by employees of CPB over a trench in which the plaintiff was working as a steel fixer. There is no issue that the plaintiff suffered a severe injury to his right hand and arm, and he has not worked since.
The plaintiff commenced a work injury damages claim by filing a Statement of Claim on 4 May 2016 against his employer, the defendant.
Those proceedings were brought out of time and the plaintiff brought an application pursuant to s 151D of the Workers Compensation Act 1987, to extend the time to bring those proceedings. That application came on for hearing before Judge Gibb on 30 March 2017. That application was ultimately stood over for the trial judge to determine.
On 19 June 2017 the defendant, now referred to as the Workers Compensation Nominal Insurer, filed and served a Cross-Claim against CPB in the proceedings.
On 22 November 2017 the plaintiff, without leave, issued an Amended Statement of Claim joining CPB as a second defendant. By the Notice of Motion now before the court, the plaintiff seeks leave for the second defendant to be joined to the proceedings and leave to file an Amended Statement of Claim to give effect to that joinder.
The plaintiff's solicitor, Mr Michael Vaughan, was cross-examined on his two affidavits. He had deposed that the plaintiff first came to his firm on 27 May 2013 and made general enquiries about a workers compensation matter arising from the accident. It was not until July 2013 that the plaintiff gave instructions to act on those proceedings. The plaintiff had described the manner in which he was injured and explained that the overhead bridge had been moved by employees of Leighton Contractors, that he was covered by his employer's workers compensation insurer and that his employer was liable to him for his injuries. The plaintiff told Mr Vaughan that he had been to other solicitors and that his workers compensation claim was then well advanced. Mr Vaughan progressed that claim by making various doctors appointments and by filing, on 11 April 2014, an application to resolve the dispute in the Workers Compensation Commission of New South Wales. In August 2014 a Medical Assessment Certificate was issued, assessing the plaintiff as having a whole person impairment of 15%.
In July 2015 counsel advised the plaintiff's solicitors to commence work injury damages proceedings against the defendant, and drafted the pre-filing statement, together with other related documents to comply with Workers Compensation Work Injury Management Act.
On 10 March 2016 the plaintiff attended, together with his solicitor and counsel, a mediation at the Workers Compensation Commission. Either at or after that mediation, a conversation took place between Mr Vaughan and the plaintiff, in which the plaintiff told Mr Vaughan that no solicitor had suggested to him that he may have a common law claim against both his employer and Leighton Contractors. Mr Vaughan said:
"You said it was the workers from Leightons that were involved in the accident."
The plaintiff said:
"I knew that when it happened, but I was at work and my employer was responsible for my injuries."
Mr Vaughan said:
"Did you ever realise that there were legal consequences for Leightons because they were involved in the accident?
The plaintiff said:
"No, my employer was the only one responsible because I was at work. No one else said that to me before today."
In his affidavit sworn on 28 November 2017, Mr Vaughan submitted by way of argument, that in order for a just resolution of the dispute between the parties, it was necessary for the plaintiff to join CPB as a second defendant to the plaintiff's proceedings.
In cross-examination, Mr Vaughan gave evidence that the content of his affidavit sworn on 18 May 2018 was based on both his recollection and file notes, including entries on a server, which comprised a complete record of the file.
Mr Vaughan gave evidence that the plaintiff initially had come to the solicitor's office in 2010. He had a prior injury as a result of a glassing incident, and the then principal of the firm, Mr Amil Dlakic, had the carriage of that matter.
Mr Vaughan had earlier produced documents from the firm's file pursuant to a Notice to Produce. He was shown a letter dated 19 February 2010 from Amil Dlakic to "Xchanging", which referred to the workers compensation claim being brought by the plaintiff. A further letter was sent to Xchanging on 6 August 2010 in respect of the workers compensation matter.
Mr Vaughan conceded that the details he had recorded in his affidavit as to the circumstances of the plaintiff's injury, had been told to him by the plaintiff shortly after the injury occurred in 2010. He had not taken any note of the plaintiff's instructions, and in fact the plaintiff had gone to other solicitors to prosecute his claim.
Amil Dlakic had subsequently had his practising certificate suspended on 25 November 2014, and Mr Vaughan had not spoken to him in relation to this application.
Mr Vaughan had no recollection of discussing any limitation period for bringing a common law action with the plaintiff in May 2013.
Mr Vaughan had attended a conference with Mr Tanevski of Counsel on 3 February 2014, which he believed was in respect of the plaintiff's glassing case. He did not take any notes during that conference and could not remember whether there was any discussion about the plaintiff's workers compensation entitlements.
Mr Vaughan was then shown a document (page 6 of Ex 1) which he conceded were his handwritten notes of a conference concerning the plaintiff's workers compensation entitlements. Whilst undated, it was put to Mr Vaughan that inferentially they were notes taken by him at the conference with Mr Tanevski.
Further handwritten notes at pages 7 and 8 of Ex 1 were not the handwriting of Mr Vaughan and he did not recognise them. However, they made clear that as at 19 May 2015, the question of third party liability of the contractor Leighton Contractors was discussed with the plaintiff. A letter was in fact forwarded by the plaintiff's solicitors to Leighton Contractors dated 13 February 2015, requesting that they forward all statements, incident reports and investigation notes to those solicitors. Mr Vaughan had no recollection of that letter. The reference on that letter suggested that Amil Dlakic's wife was responsible for sending it. Further, by letter dated 12 May 2015, the firm briefed a Ms Oldfield of counsel to advise in relation to a common law action against Leighton Contractors. No advice from counsel was adduced into evidence on behalf of the plaintiff.
Mr Vaughan gave evidence that, at that time, the firm was "just looking to give it to somebody", and he could not recall getting instructions from the plaintiff to brief Counsel.
It was put to Mr Vaughan that the content of his affidavit at [18], in which he set out the conversation with the plaintiff at the mediation held at the Workers Compensation Commission on 10 March 2016, was incorrect. However, Mr Vaughan denied that, and said that 10 March 2016 was the first time the plaintiff had discussed with him any liability of Leighton Contractors for his injuries. A number of inconsistencies were put to Mr Vaughan as to his version of that conversation and the version set out in the plaintiff's affidavit sworn on 18 May 2018.
It was put to Mr Vaughan that the plaintiff first told him of the involvement of Leighton's employees in his accident in 2010. Mr Vaughan gave evidence that in 2010 the plaintiff had made general enquiries of the firm, but had not instructed them to act in the matter on his behalf. The file was opened in 2013. Notwithstanding that the file was headed "Public Liability Claim", it was a workers compensation claim. Mr Vaughan disagreed that at the conference with Counsel on 3 February 2014 the liability of Leighton Contractors had been discussed. He accepted he did not have a good recollection of the matters discussed at that conference, however, he believed that it was the glassing incident and the workers compensation claim that were discussed.
In re-examination, Mr Vaughan gave evidence that the glassing incident had taken place in 2008 at Penshurst RSL Club. It was an ongoing claim. He could not identify whether the handwritten pages (Ex 1 pages 7 and 8) were in chronological order. Further, Mr Dlakic had his practising certificate suspended on 25 November 2014. He had been sued by him in the Supreme Court and attended a four day hearing from 12 March 2018 before Justice Robb. There had been no cooperation or communication between the two men since then.
The plaintiff also relied on an affidavit sworn by himself on 18 May 2010. In that affidavit, he deposed that during 2010 he consulted two firms of solicitors. In July 2013, he gave instructions to his present solicitors, Messrs Johnston Vaughan. The plaintiff deposed that until the mediation took place in his workers compensation proceedings in March 2016, he was never advised by his solicitors that he could sue the proposed second defendant CPB for his injuries. After he was injured at work on 5 January 2010, he believed suing his employer for his work injury was the appropriate course. At the time he instructed Johnston Vaughan Solicitors to act on his behalf in July 2013, his compensation matter was well advanced. The case proceeded and on 3 February 2014 he had a conference with his solicitor with Mr Michael Tanevski of Counsel, who the plaintiff deposed advised him in his workers compensation case.
The Workers Compensation Commission issued a Certificate of Determination in favour of the plaintiff on 16 September 2014.
In August 2015 Mr Jurisich of Counsel was briefed to draft the plaintiff's pre‑filing statement pursuant to the WIM Act to sue the defendant. The matter proceeded to a mediation on 10 March 2016. The matter failed to settle, however, the following conversation took place between the plaintiff and his solicitor Mr Vaughan:
"Mr Vaughan: Has any solicitor you have seen suggested to you that you may have a common law claim in the District Court against your employer and Leightons?
Plaintiff: No they haven't. The workers comp is the only thing I knew of."
Mr Vaughan: You said it was the workers from Leightons that were involved in the accident?
Plaintiff: It was their fault, my employer was responsible for my injuries.
Mr Vaughan: Did you ever realise that there were legal consequences for Leightons because they were involved in the accident?
Plaintiff: No, my employer was liable and that's who I sued."
The proceedings were commenced on 4 May 2016 and on 17 August 2017, the plaintiff became aware that the court had refused him leave to rely on an Amended Statement of Claim against the second defendant.
The plaintiff deposed that he was advised by his solicitors that there was a three year limitation period. He deposed that he was advised by his previous solicitors that his remedy was at workers compensation and he was not advised by them that he could sue the second defendant for damages. It was only at the mediation on 10 March 2016 that he realised he had an action against the second defendant.
In cross-examination, the plaintiff conceded that he had, in addition to his former solicitors, seen Mr Vaughan's former employer, Mr Amil Dlakic in 2010, and they had briefly had a chat about his workers compensation matter. He had told Mr Dlakic how the accident occurred, namely, that he was working as a steel fixer in a trench, when employees of Leighton's moved a footbridge over that trench, during which, he suffered an injury to his right hand. He knew at that time that the footbridge had been moved by employees of Leighton Contractors, at the direction of their supervisor who was also employed by Leighton Contractors.
The plaintiff had been self-employed as a steel fixer as a sole trader from 1996 until 2009 when he commenced employment with the first defendant. He had been responsible for occupational health and safety issues in his own company. At the site on which his injury occurred, Leightons had carried out a site induction and were responsible for OH&S matters.
The plaintiff confirmed that he thought his employer was responsible for his injury. It was not until March 2016 when he was told by his solicitor and barrister that he could sue Leighton Contractors. He had never previously discussed with any lawyer that Leighton Contractors might be responsible. He conceded that he had spoken to his solicitor about how he got injured, but had not discussed a common law claim. He confirmed that the conversation he had with his solicitor set out above was correct. He had told his solicitor that he was injured as a result of the fault of Leighton Contractors because they were supposed to get a manatou, (a small crane or forklift) to move the footbridge, but because the workers were in a hurry, they did not do so. He had heard that from other workers when he returned to the worksite 48 hours after the accident to collect his car.
The plaintiff gave evidence that he had left pursuing his legal entitlements in his solicitor's hands, however, at the time of the accident, or shortly thereafter, within 48 hours, he knew that Leighton Contractors were at fault because the system they used for moving the footbridge was unsafe. He also knew that the injury to his hand was a very serious injury, however, he gave evidence that he was not thinking of compensation at that time. The plaintiff was shown a letter forwarded by his solicitor Mr Dlakic to an insurer "Xchanging", dated 19 February 2010, concerning a workers compensation matter against his employer. He said he did not instruct Mr Dlakic to act for him at that time.
The plaintiff was cross-examined about evidence he had given in earlier proceedings in which he had conceded that he was, after he suffered the injury, immediately aware that Leighton Contractors were responsible for the injury that he had suffered. He disavowed that he knew that Leighton Contractors was responsible and stated that he knew at that time that his employer was responsible for his injuries. He did, however, agree that his evidence was correct and true.
The plaintiff gave evidence that, at the time he saw his solicitors in July 2013, there was no conversation about limitation periods. He was cross-examined on his previous evidence where he conceded that there was a discussion about a three year limitation period. He stated that:
"I probably did. I'm not 100% sure."
He had spoken to his solicitors about how the accident happened and that employees of Leighton Contractors had moved the footbridge when they should have used a manatou.
It was put to the plaintiff that he had made a choice to sue his employer rather than Leighton Contractors, however, he said that he did not know until March 2016 that he could sue Leighton Contractors. It was also put to the plaintiff that when he did not get the result he wanted at the mediation through the workers compensation process, his attention then shifted to Leighton Contractors. The plaintiff gave evidence that he received advice from his solicitors and left it in their hands.
The plaintiff was asked about a letter dated 12 May 2012 that had been sent by his solicitors to a Ms K T Oldfield, Barrister, to advise in relation to a common law action against Leighton Contractors. He deposed that he did not know anything about that letter. He also gave evidence that the conference that took place with Mr Tanevski of Counsel on 3 February 2014 was in relation to a glassing incident in which he had sought damages for personal injuries. That had occurred in 2009. It was put to him that he had discussed both the workers compensation case as deposed in his affidavit at [10], and the third party case against Leighton Contractors, which he denied. He agreed that in a previous affidavit sworn on 10 January 2017, he had deposed that he had a conference with Mr Tanevski to talk about his workers compensation case. However, he now believed that he did not.
In re-examination, the plaintiff was asked about his evidence that his injuries were the responsibility of the employer, and the evidence he gave in respect of the fault of the employees of Leighton Contractors. He said that he only knew about his workers compensation rights, and that he only knew that he could sue Leighton Contractors at common law following the mediation in 2016.
[3]
The defendant's evidence
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.
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.
There was no cross-examination.
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.
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"
The two page document went on to identify the plaintiff's various legal representations, "issues" and contained the following entry:
"*limitation period"
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.
[4]
CPB's submissions
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.
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.
It was submitted that the elements of s 50D(1) were satisfied here, and that leave should be refused.
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.
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.
[5]
The plaintiff's submissions
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.
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.
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.
[6]
Submissions in reply
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.
[7]
Determination
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."
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."
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."
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.
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."
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
[8]
Orders
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.
[9]
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Decision last updated: 29 June 2018