Beckett v Newcastle Port Marine

CATCHWORDS : Extension of limitation period - ss 60C & E Limitation Act 1969

LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60C & E

BHP (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 Christakos Transport Pty Ltd (in Liq) v Croft [2005] NSWCA 472 Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Commonwealth v Smith [2005] NSWCA 478 Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 CASES CITED : Delta Pty Ltd v Whitefield [2004] NSWCA 220 Holt v Wynter (2000) 49 NSWLR 128; (000) 31 MVR 467; [2000] NSWCA 143 McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Rutter v State of New South Wales [2005] NSWCA 231 Schering-Plough Pty Limited v Page [2002] NSWCA 4 revised - 14/02/2002 Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81

Newcastle Port Marine Pty Limited (First Defendant/Cross Claimant)

PARTIES : AAL Shipping Agencies Pty Limited (Second Defendant/Cross Defendant)

Project Asia Service B.V. (Third Defendant)

Unicorn Lines (Pty) Limited (Fourth Defendant)

COUNSEL : Mr P Biggins (Plaintiff)

Mr R Anicich SOLICITORS : Sparke Helmore Newcastle (Fourth Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20924/2001 - PHILLIP BECKETT v NEWCASTLE PORT MARINE PTY LIMITED & ORS

JUDGMENT (Extension of limitation period - Sections 60C & E - Limitation Act 1969) 1 HER HONOUR: By notice of motion filed 14 June 2005 the plaintiff seeks orders firstly, that the time for commencing proceedings against Project Asia Service B.V. be extended; and secondly, that the time for commencing proceedings against Unicorn Lines (Pty) Limited be extended. The plaintiff relied on his affidavit sworn 16 May 2006 and the affidavit of Terence John Howard sworn 10 June 2005. 2 The plaintiff is Phillip Beckett. The first defendant/cross claimant is Newcastle Port Marine Pty Limited (Newcastle Port Marine). The second defendant/cross defendant is AAL Shipping Agencies Pty Limited (AAL Shipping). The proposed third defendant is Project Asia Service B.V. (Project Asia). The proposed fourth defendant is Unicorn Lines (Pty) Limited (Unicorn Lines). Project Asia consented to be joined as third defendant (see Ex A). Unicorn Lines opposes being joined as a defendant and relies upon the affidavit of Gavin Jensen dated 15 December 2005 and the affidavit of Robert Lollbach sworn 8 June 2006. 3 On 10 March 2001 the plaintiff, who was employed by Newcastle Port Marine, was upon the ship "Cape Jervis" (the ship) when it is alleged that in the course of his employment he fell eight metres through an access hatch landing on his feet and then fell backwards causing injury to his neck, both shoulders, right wrist, back, right knee, left knee, pelvis, right ankle, right heel and left heel. 4 The plaintiff pleads (FASC) that the plaintiff was employed by Newcastle Port Marine; that AAL Shipping was the managing agent of Project Asia pursuant to an "Intra Group Services Agreement" (the agreement) by which AAL Shipping had responsibility to manage the ship; that Project Asia was the charterer of the ship pursuant to a Time Charter dated 9 August 2000 and in force as at 10 March 2001; that Unicorn Lines was the owner of the ship pursuant to a Time Charter dated 9 August 2000 and in force as at 10 March 2001; that AAL Shipping, by virtue of the agreement, owed to the plaintiff a duty to take all reasonable care for his safety whilst on board the ship; that Project Asia, as charterer of the ship, was at all material time the occupier and as such owed to the plaintiff a duty to take all reasonable care for his safety whilst on board the ship; and that Unicorn Lines, as owner of the ship and supplier of the crew, owed to the plaintiff a duty to take all reasonable care for his safety whilst on board the ship. In short it is alleged that the owner/occupier/charterer of the ship had no or no effective safety management system on board the ship to detect the unsecured safety chain.

The Law 5 The plaintiff relies on ss 60C and E of the Limitation Act 1969 (the Act). The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, Unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315; Yu v Spiers [2001] NSWCA 373; Schering-Plough Pty Limited v Page [2002] NSWCA 4 revised - 14/02/2002; Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271; Delta Pty Ltd v Whitefield [2004] NSWCA 220; Rutter v State of New South Wales [2005] NSWCA 231; Christakos Transport Pty Ltd (in liq) v Croft [2005] NSWCA 472. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 6 Section 60C provides: "Ordinary action (including surviving action)

60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 7 Section 60E provides: "Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 8 The Court must take into account all of the circumstances of the case including each factor mentioned in s 60E(1) to the extent that it is relevant in the circumstances of the case - see Schering-Plough at [15]. 9 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 10 The accident occurred on 10 March 2001. The statement of claim was filed on 22 November 2001. The limitation period expired on 10 March 2004. The notice of motion seeking to extend time was filed on 14 June 2005. The claim against Unicorn Lines is brought about 15 months out of time. 11 Unicorn Lines submitted that the plaintiff's solicitor was aware of the identity and role of Unicorn Lines at least from 12 October 2002 and yet the first attempt to make contact with Unicorn appears to have been on 10 March 2004, being the date on which the limitation period expired. 12 However there was much fruitless correspondence between the solicitors acting for the plaintiff and the solicitors acting for the defendants concerning the production of the Time Charter document over a number of years. 13 On 3 December 2003 a notice to produce addressed to the second defendant was served requesting the production of the Time Charter document. Finally, on 3 May 2004, Redchip Lawyers produced a Time Charter dated 18 February 1998 but it was not helpful. It expired towards the end of 1998. So on 20 May 2004 the plaintiff's solicitors wrote to Redchip Lawyers requesting the addendum to the Charter party. 14 On 25 August 2004 Assistant Deputy Registrar Howe ordered that the second defendant communicate with various entities to request the production of the Charter party for the "Cape Jervis" with addendum to which Project Asia was a party. On 13 October 2004 the plaintiff's solicitor finally received a copy of the relevant document being the Time Charter dated 9 August 2000. 15 It was on 13 October 2004 that the plaintiff's solicitor became aware of the contractual relationship between AAL Shipping and Unicorn Lines. There was then a factual basis for joining the proposed fourth defendant as a defendant in these proceedings. The Time Charter document referred to the responsibilities of the second defendant and Unicorn Lines - see Clauses 38 and 39. 16 It seems that the delay may have caused evidence to be lost, namely the file concerning the accident, if one ever existed as Unicorn Lines' London office has moved twice since the accident - s 60E(b). I cannot attribute the delay in seeking to join the defendant as causing the whereabouts of the third mate to have been lost. There has not been any conduct by this proposed fourth defendant that has induced the plaintiff to delay bringing the action - s 60E(f).

The time at which the injury became known to plaintiff - s 60E(c). Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 17 The plaintiff became aware of the nature and extent of his injury soon after the date of the accident (10 March 2001). However, it was not until 13 October 2004 when the plaintiff's solicitor received a copy of the Time Charter dated 9 August 2000, that the plaintiff became aware of the connection between his injury and the defendant's act or omission.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 18 There are numerous reports available, including the employee's report of injury forms, WorkCover accident report, marine surveyor reports, hospital records, orthopaedic reports, podiatry reports, x-rays, WorkCover medical certificates, rehabilitation reports, vocational assessment reports, CT scans and MRI scans. Wage records are available. Photographs taken of the ship on 4 May 2001 are available (see Ex B).

The extent of the plaintiff's injury or loss - s 60E(h) 19 The plaintiff is now 46 years old. The injuries he is alleged to have suffered in the accident are fracture of the heels and ankles, fracture of the knees, fracture of the pelvis, fracture of the right elbow and fracture of the T12 vertebra. 20 Perhaps the extent of the plaintiff's injuries are best summarised by Dr Ghabrial (report of 3 May 2006) who says: "Regarding the back, he sustained fractures of the T11 and T12 vertebrae and it is highly likely that he will continue with his present disabilities and remains unfit for activities involving any lifting over 10kg, excessive bending and excessive twisting. Regarding the right elbow, this healed but he continued with residual disabilities and he remains unfit for activities involving excessive use of the right upper limb or any activities involving heavy gripping. Mr. Beckett is right handed. Regarding the knees, I believe that he will require right total knee replacement, probably as a result of the development of osteoarthritis in his right knee. Ultimately he will require as well a left total knee replacement. Regarding the ankles and heels, I believe that his condition has stabilised and he remains disabled regarding activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy period or walking for long distances." 21 The plaintiff was employed as a leading hand rigger. During the 1999/2000 financial year, the plaintiff received an average weekly income of $723.73 net per week. In the first half of the 2000/2001 financial year, the plaintiff earned the sum of $21,565 net. This equates to a sum of $43,130 net, or $829.42 net per week. The plaintiff returned to work on a light duties return to work program on 30 July 2001. He has not been working since 2001 and he cannot return to fulltime work. 22 The plaintiff has suffered serious injuries in the accident from the report above, it seems unlikely that he will be able to return to physical work.

Just and reasonable 23 I turn now to consider whether it is just and reasonable to extend the limitation period. The principles concerning prejudice and whether it is just and reasonable to extend time have been considered in Wynter, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at para 119 where their Honours stated that the effect of the High Court decision in Brisbane South Regional Health Authority v Taylor is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean. 24 An application must prove facts from which the Court can be satisfied that there is a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will be a reasonable prospect of success on the ultimate hearing - see Rutter per McColl JA at [27]. 25 The plaintiff has sufficient evidence such that he has a reasonable prospect of success in the ultimate hearing. 26 Unicorn Lines submitted that the first defendant has not sought to cross claim against Unicorn Lines, as it has against the second defendant, even though the first defendant was obviously aware of the existence of Unicorn Lines and its relationship to other parties in the matter. Therefore, according to Unicorn Lines, the plaintiff suffers no prejudice if he failed in this application. This is not so. The plaintiff may, at trial, prove a case against Unicorn Lines. A cross claim joining the proposed fourth defendant may never eventuate. 27 Mr Robert Lollbach, an investigator, deposed that on 23 September 2005 he received an email response from Hugh Scheffer, managing director of Unicorn Lines in London who advised that they could not find the file concerning the accident on 10 March 2001 (Aff 8/06/2006 - [4.10]). As noted above Unicorn Lines' London office has relocated twice since the accident occurred. 28 The facts and circumstances surrounding the plaintiff's accident are well documented. There are reports of the accident by Butlers Insurance & Litigation Support dated 30 March 2001 and 11 May 2001, Environmental Health Services dated November 2002 and the Australian Maritime Safety Authority dated 20 March 2001. Statements of Jarrod Beckett, the plaintiff's father, and Lee McCormeck, who were working with the plaintiff on the ship at the time of the accident are available. (Ex B). 29 What is important to the proposed fourth defendant in seeking to defend the claim would be the need to ascertain the state of repair of the safety chain and whether it was properly secured. The whereabouts of the third mate who allegedly witnessed events prior to the accident, being either Chen, De Long (3NO) or Yan, Yao Guang (3EO), is unknown to date. The whereabouts of the safety officer at the time, Tang Ya Li is also not known. They are Chinese nationals. Unicorn Lines has ascertained that it contracted Cosco Hong Kong Shipping Co (Cosco) for the supply of the crew for "Cape Jervis". Emails sent to Cosco remain unanswered. 30 While Captain Haakestad, who is no longer employed by Unicorn Lines, has been located and interviewed, he indicated that he did not wish to provide a statement. However, Captain Haakestad has had a lengthy discussion with Unicorn Lines' investigator. Captain Haakestad confirmed that he had been told of the incident by the third mate the day after it occurred. Reference to the ship's duty officer being present when plaintiff was lifted ashore and to the Master not being aware of the accident until he was notified by the AMSA Inspector at 08:45 hours the next morning are contained in an independent report complied by the Australian Maritime Safety Authority. At trial, the record of the conversation may be admitted into evidence. 31 In March 2002 Unicorn Lines sold the ship. Butlers Insurance & Litigation Support report (dated 11 May 2001) contains photographs of the safety chains. Photograph 7 shows the safety chains correctly positioned, Photograph 8 shows the locking mechanism used to secure chains, and Photograph 9 is a view of the chains in an unsecured position. 32 I accept that Unicorn's file concerning the accident, if it existed, has not been located. Nor has the third mate been located. There is a lengthy report of the conversation with Captain Haakestad and photographs of the safety chains in existence. There is an independent contemporaneous report of the accident by the Australian Maritime Safety Authority. While the trial will afforded to the fourth defendant may not be ideal, I am satisfied that the proposed third and fourth defendants will be a fair one. I am satisfied that it is just and reasonable to extend the limitation period in respect of the cause of action which arose on 10 March 2001 in relation to both the proposed third and fourth defendants. 33 The limitation period for a cause of action which arose on 10 March 2001 against Project Asia Service B.V. and Unicorn Lines (Pty) Limited is extended up to and including 5 July 2006.

Costs 34 Costs are discretionary. Ordinarily, a successful applicant for an extension of a limitation period who has allowed him or herself to get out of time, should pay the costs of the application unless the defendant's opposition was wholly unreasonable - see Wynter at 147. The defendant's opposition cannot be said to be wholly unreasonable. 35 However, there is no rule that binds a judge to deny costs to an applicant for an extension of the limitation period. A costs order for such an application is a matter of practice and procedure within the discretion of the primary judge - see Commonwealth v Smith [2005] NSWCA 478 at [160]. 36 Under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, there is no requirement for a successful application for an extension of the limitation period, to pay the costs of the application unlike the old Part 52A r 17 of the Supreme Court Rules 1970 - see also Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81 at [15]. 37 Where an applicant seeking an extension of time has not allowed him or herself to get out of time because there was no intention to make the claim within time, the costs of a successful application for an extension of the limitation period should be costs in the cause - see Spaulding. In the circumstances of this case, where the difficulty obtaining a copy of the Time Charter cannot be attributed to the plaintiff or his solicitors, it is appropriate that costs be costs in the cause. I make such an order.

(1) The limitation period for a cause of action which arose on 10 March 2001 against Project Asia Service B.V. and Unicorn Lines (Pty) Limited is extended up to and including 5 July 2006.

(2) A further amended statement of claim is to be filed and served on or before 5 July 2006.

(3) Costs of the motion are costs in the cause. **********

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