Christakos Transport Pty Ltd (in liq) v Croft

Christakos Transport Pty Ltd (in liq) v Croft - [2005] NSWCA 472 - NSWCA 2005 case summary — Zoe

[22]

THE PRIMARY JUDGE'S REASONS 15 Judge Quirk noted the reliance by Croft upon his affidavit and the affidavits of Ms Piper, a solicitor who formerly had the conduct of his case and Ms Colubriale who is the solicitor with the present day to day conduct of the matter. Croft was required for cross-examination and had travelled from Tasmania for that purpose. 16 The Judge noted that she had given leave to Croft to re-open his case in chief and give evidence to describe the accident, a matter not dealt with in his affidavit. 17 CT relied upon a number of affidavits from its solicitor Mr Freeman of Henry Davis York, an affidavit from Mr Muscara, an affidavit of Michael Hall and an unsworn affidavit of Ken Hall. There was also an affidavit of a commercial agent John O'Neil as to a conversation with Ken Hall. 18 The Judge accepted that the accident occurred on 1 May 2000 and that the delay beyond the expiry of the limitation period was almost eleven months. 19 In respect of the submission of Ms Heath of Counsel, appearing for CT, that the extension required by the time of the hearing of one year and three months was "significant", the Judge noted adjournments on the application of CT in June. She observed that the preparation of neither side was as it should have been and noted that Mr Freeman deposed that he had had a number of difficulties obtaining instructions and information with CT being in liquidation. It is to be observed that Henry Davis York had at least some instructions by November 2003. 20 Her Honour noted that there was no dispute as to an injury to Croft's foot of some kind at the premises of which CT was the occupier and where it carried on business. 21 The Judge said: "It is not disputed that Mr George Christakos was a director of CBT. He had been a director of the third defendant, but it seems from company searches, was not a director of the third defendant at the time of the plaintiff's injury. His father, John Christakos, was. Mr George Christakos was a director of CT at the time of the plaintiff's injury, which company, Mr Christakos concedes in his affidavit, was operating out of the premises at 47 to 49 Boolcarrol Road, Wee Waa, as at 1 May 2000. The proceedings against CBT are still on foot. CBT is currently represented by Henry Davis York, the solicitors for CT, although in a limited capacity only. Both CBT and CT were insured at the relevant time by CGU, although CGU have not agreed to indemnify either at this stage." 22 Her Honour then set out extracts from the amended statement of claim which was filed on 21 (20) August 2002 as follows: "2. The plaintiff, being unsure of whether the second or third defendant is liable to him, proceeds against both defendants in the alternative. 3. At all material times the second or third defendant was the owner, occupier, manager and/or controller of premises at 47 Boolcarrol [Road], Wee Waa. 4. At all material times the plaintiff was employed by the first defendant. 5. On 2 May (2000 while the plaintiff in the course of his employment was at the said premises, he slipped and fell on the oily surface of a trailer which was being loaded with a tanning machine by the servants or agents of the second or third defendant.' The plaintiff particularises the allegations of negligence against the second or third defendant, including particulars relating to a slippery floor surface, and in subparagraph (g) of those particulars: 'Failing to provide any or adequate lighting to the work area, failure to remove oil from the tanning machine prior to loading it, failure to warn that there was oil in the tanning machine, failure to adequate (sic) pack the tanning machine prior to loading it, failure to remove the oil from the truck surface after it had transferred from the tanning machine.' " 23 The Judge noted that it was not disputed that the statement of claim and other related documents, including medical reports, were "served" on George Christakos as director of CBT on or about 21 August 2002. CBT was in liquidation and the question whether the service was proper service was in dispute. 24 After noting that Ms Piper assumed conduct of the matter in late June 2003, the Judge observed that there was no affidavit from a solicitor with earlier conduct of Croft's case. Ms Piper's affidavit did annex a good deal of correspondence. 25 The judgement continued: "Ms Piper does not refer in her affidavit to previous asset searches being undertaken, but such searches were produced by Ms Colubriale during cross-examination and were tendered in the plaintiff's case, those searches having been conducted in February 2002, prior to the time at which the second defendant went into liquidation. Those searches reveal that CBT, as at 12 February 2002, had its principal place of business at 47 Boolcarrol Road, Wee Waa, and that CB had its principal place of business at 52 George Street, Wee Waa. Land title searches were also undertaken on 12 February 2002 in respect of 52 George Street, Wee Waa, and 47 Boolcarrol Road. The property at 47 Boolcarrol Road appears to consist of at least two lots, one of which was owned by CB and the other by CBT." 26 Her Honour then dealt with certain relevant correspondence which I will set out in shortened form. A letter dated 9 January 2003 to Croft's solicitors from Alex Martin, a solicitor practising in the firm Sagacious Legal, contained the following passage: "We act for Christakos Brothers Transport Pty Limited (in liquidation) (subject to deed of company arrangement) ('CBT'). Our client, George Christakos is a director and shareholder of CBT. He is the son of John Christakos who is a director and shareholder of Christakos Brothers Pty Limited (CB). We have been provided with a bundle of documents including the amended statement of claim dated 20 August 2002. We anticipate that the extent of our instructions only goes to the location by us of the lawyers who acted for CBT pursuant to the Workers Compensation Insurance Policy held by CBT with GIO. We do not act for CB in any capacity."

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The Judge noted that Ms Heath submitted that there had been prejudice to the defendant and that on the evidence of CT's witnesses "there is evidence that can now not be recalled by them, or cannot be recalled clearly, and with certainty, and of which there are no extant records in respect of critical aspects of the defence". 43 The Judge noted the submission that witnesses could not be identified or if they had been, for example the two Halls, could not remember the event. One witness present was Mr Muscara who deposed that as at 1st May 2000 he was employed as the manager for CT which operated from 47 Boolcarrol Road Wee Waa. 44 The Judge noted Mr Muscara's affidavit evidence as follows: "Mr Muscara recalls only one occasion when a front end loader was delivered to the depot, which is the occasion in question. He recalls that he was told by an employee of CT that the truck driver had fallen off the trailer and the driver had injured his foot. Mr Muscara deposed to the fact that he did not see the truck driver fall off the trailer, and that he could not remember the name of the employee who advised him of the incident. Mr Muscara was present on the day in question, it appears, and although the plaintiff in his affidavit identified the person to whom he spoke, and who he thought was in charge, as George Christakos, it appears he was probably mistaken. Mr Muscara arranged for the unloading of the front-end loader, which the plaintiff had driven from Melbourne to Wee Waa, and was present during the rest of the evening although, as I have said, he did not, according to his affidavit, witness the fall. However, Mr Muscara does not say in his affidavit that he was not present for the loading of the tanning machine, which on the plaintiff's evidence, caused oil to be splashed and which caused him to fall off the tray of his truck." 45 Mr Muscara deposed that he was not able to recall which employees were present at the time of the loading and unloading of the truck but stated it was possible that it was Michael Hall, Kenneth Hall, Gavin Bowen or Trevor Laurence who may have assisted. 46 In an unsworn affidavit Muscara said that Croft was not at Wee Waa between 1.00 to 1.30 but arrived after 5 pm, perhaps between 5.30 and 6 pm. 47 George Christakos, in an unsworn affidavit, deposed to not being on the premises on the evening and that he was unable to recall employees other than Michael and Ken Hall. He recalled a yard hand by the name of Richard but he does not recall his last name. He does not have present contact details. 48 The Judge observed that Mr Christakos had stated that he was aware of three broad groups of documents held by Christakos Transport Pty Ltd as follows

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He subsequently stated that since the accident he suffered symptoms of short-term memory loss and cannot remember what happened to the documents. 49 Her Honour said: "The only relevant documents in respect of the prejudice which is claimed to have been suffered by the fourth defendant are records relating to employees present at the time of the plaintiff's injury." 50 Reference was made to unsuccessful attempts to find Gavin Brown, although it appears to be known who he worked for at the time of the application. 51 Her Honour continued: "Mr Freeman deposes in his first affidavit that he is instructed that if the insurer of CT, CGU, had been earlier informed of the claim against the proposed fourth defendant: 'It would have instructed solicitors to investigate the claim forthwith, including by interviewing any potential witness, and arranging medical examinations of the plaintiff including before the injury was allegedly further complicated by further injury.'" 52 The Judge referred to a further injury which allegedly complicated Croft's injury in or about March 2001 when he suffered some aggravation to his foot injury. 53 Her Honour noted it had been necessary for Croft's solicitors to obtain leave to continue the proceedings against CBT which was in liquidation. That company was represented, albeit in a limited manner, by Henry Davis York since about November 2003. 54 The Judge commented: "Although Mr Freeman deposes to investigations and medical examinations which could have been carried out, on his instructions by CGU in respect of CT it is notable there is no evidence of any investigations or medical examinations being conducted on behalf of CBT against which company proceedings are still on foot." 55 The Judge said that the affidavits of Michael Hall and Ken Hall were brief and in identical terms. They appear, she said, to have no relevant recollection of "any injury to a transport operator". As the Judge noted they did not state whether they recalled or did not recall the operation of loading the tanning machine onto the truck. Her Honour said that it was not apparent from their affidavits that they were incapable of giving evidence as to the circumstances of the loading of that machine. The judge refers to a telephone conversation between an investigator and Ken Hall from which the Judge concluded that Ken Hall was not disposed to be of assistance to Mr Christakos. She went on: "However, it is not apparent whether Mr Hall's recollection has faded or not. Whether or not any delay by the plaintiff in bringing his action against the fourth defendant has affected Mr Hall's attitude in respect of giving evidence, helpful or otherwise, is not apparent." 56 Her Honour noted that a Trevor Laurence worked at the premises on 1st May 2000 and was employed by CT. His recollection only went to the unloading of the front-end loader and he cannot remember any further work being conducted although he does remember being spoken to approximately two years ago about the matter by an investigator. As her Honour notes it is not clear who sent the investigator. 57 After noting the conflict in time between Croft and Mr Muscara, the Judge went on: "The plaintiff gave evidence of others being present, including a young mechanic driving a forklift, the person who he mistakenly thought was George Christakos, who it now appears was Rocky Muscara, and three other persons. Two of those persons, it seems, were the two Messrs Hall. One of them may have been Mr Laurence, although that is not clear, and one of them, although it is not clear either, given the inability of the solicitor for CT to speak to him, may have been Gavin Brown." 58 Her Honour noted Ms Heath's submission that CT was severely prejudiced by the lack of recollection of any of the witnesses. Her Honour, however, said: "However, as I have said, it is not clear whether or not either Mr Hall can give any evidence about the loading of the tanning machine, quite apart from the issue of the plaintiff's injury, and the oil which allegedly was sloshing about from the tanning machine." 59 Her Honour noted the claim to prejudice on the basis of lack of opportunity to have the applicant "surveilled", investigated by an investigator or have earlier medical examinations, particularly before the suggested second aggravating incident. 60 The Judge noted that Croft did not tender any medical evidence on this application but that CT did tender one report of a treating doctor dated 6 May 2003. In that report Dr Elsner summarised the history provided by Croft, the findings on examination and his management thereafter. Croft had first seen Dr Elsner on 8 May 2000 shortly after the accident. The Judge said: "It is apparent from the list of medical reports served upon CT, and on CBT, that the plaintiff has been examined, and as is apparent from Dr Elsner, on a regular basis since the injury occurred. There is no doubt that the plaintiff suffered a fracture of his foot, and has had not insignificant complaints since that time. The plaintiff's evidence of complaints was confined mainly to his adoption of the Part 9 particulars filed, which contain extensive descriptions of his complaints and disabilities. It is not seriously contended by the defendant that that the plaintiff does not have a significant injury, but the prejudice referred to in the defendant's submissions is the loss of the opportunity to have the plaintiff examined very early. It is suggested, that had it not been for the delay, CT would have had the plaintiff examined within an extremely short time of the injury." 61 The Judge commented that there was no doubt that Croft had reported his injury to Mr Muscara on the evening of its occurrence and that he had been extensively managed and examined by a number of doctors since that time. She observed: "The first defendant undoubtedly would have had the plaintiff medically examined as would the Workers Compensation Insurer in Victoria. Although it is true there is no evidence one way or the other as to treating doctors' notes, there is no suggestion that any such doctor's notes have been lost, or that they cannot be obtained. CT would probably have at the trial, in the usual course, given that, apart from liability, the interests of the first defendant and CT are similar, the advantage of some medical examinations conducted by the first defendant."

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The Judge found that Croft had not delayed in obtaining medical or legal advice. She noted that his solicitors had not obtained any expert report relating to the tanning machine or other circumstances of the incident. The tanning machine had been delivered to premises and persons unknown, the only documents which related to the delivery of the machine, which was an unscheduled delivery and unexpected to Croft, are referred to in his affidavit. 68 The Judge notes that Croft deposes as to not having been told by his employer that he was to pick up another piece of machinery. His evidence is that he collected some paper work before leaving. On the evidence of Mr Posselthwaite, who was called to give evidence for CT, Croft's employer now has no information relating to the tanning machine. Her Honour commented: "It seems rather extraordinary that would be the case." Mr Posselthwaite was in May 2000 transport manager for ABS and Croft's immediate supervisor. 69 The Judge said: Mr Posselthwaite gave evidence of a conversation with the plaintiff on the night of the accident in which a different version of the accident was allegedly recounted to him by the plaintiff in which no oil was involved. Thus the defendant has evidence available from Mr Posselthwaite which differs from the evidence of the plaintiff as to the circumstances of the accident." 70 The Judge noted that there was no evidence from Mr Muscara or Mr Posselthwaite that any particular documentation has been lost. There was no evidence as to at what stage the location of the tanning machine could no longer be ascertained. She said: "I am not satisfied that is a matter that either causes prejudice or should be held against Croft in the circumstances of this application." 71 Croft was cross-examined at length. The Judge said: "I formed the impression that although he did not have a perfect memory, which is not unexpected, he was doing his best to tell the truth." 72 She noted the dispute as to timing and said that during cross-examination Croft was asked to produce his logbook which he did on the following day. That noted his arrival at Wee Waa as between 2 pm and 3 pm which, the Judge noted, was more consistent with his evidence than that of Mr Muscara. 73 The Judge said: "Although, it is true that he was not always able to be precise and agreed that he has given some inconsistent histories as to the date of the second incident involving his foot in 2001, by and large, I did not form the impression that the plaintiff was generally unreliable."

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THREE POINTS 79 Before turning to the general submissions of the parties it is convenient to deal with three matters. 80 First, Mr Maconachie of Queens Counsel, who appeared with Ms Heath of Counsel for CT, submitted that the Court would come to the conclusion that Judge Quirk erred in approaching the discretion she was to exercise as one to refuse to grant an extension of time rather than as one to grant an extension of time. Such an approach would, at least, affect the onus of proof. 81 Mr Maconachie, whilst making the point that he was "anxious not to cavil too much with the verbiage", referred to a passage in her judgment where her Honour, referring to the tanning machine and related documentation said: "I am not satisfied that is a matter which either causes prejudice or should be held against the plaintiff in the circumstances of this application." 82 Again the written submission referred to a passage in which the Judge said, dealing with prejudice: "I am not satisfied in those circumstances that the defendant has suffered a 'not insignificant prejudice' by reason of any delay, and in my view, the delay would not result in the defendant being unable to have a fair trial." 83 The judgment in this matter was delivered orally on the morning after a two-day hearing. In Maviglia v Maviglia [1999] NSWCA 188 Mason P said at [1]: "An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them." 84 In Brisbane South Kirby J said at 570: "9. In performing the appellate task, a court will address itself to the substance of the reasons under consideration, avoiding an over-nice attention to infelicitous expressions. Whilst the reasons under challenge are usually the only means by which the parties and the appellate court have to decide whether incorrect or irrelevant considerations have intruded into the exercise of statutory discretion, the ultimate concern of an appellate court is with the correctness or otherwise of the order under appeal. If that order appears to be correct, although some of the reasoning which supports it is imperfect, the appellate court will withhold interference, for its function is to correct orders, not to rewrite judicial reasons." 85 Kirby J dissented in that case, however, I do not take that circumstance to affect the principles he thus stated although his application of them was at odds with the majority decision. 86 Mr Maconachie conceded Judge Quirk had earlier set out the relevant principles including those dealing with onus. 87 In my view a reading of the judgment as a whole does not support a contention that the language of the judgment, as such, reflects a failure to apply the onus correctly. By way of example, the passage in [82] was preceded by the observation: "In my view, the delay is not such as would cause 'not insignificant prejudice'." 88 Having said that, I shall come later to Mr Maconachie's argument that the findings and reasoning of her Honour do demonstrate an inversion of the onus and a focus on whether CT has proved that it can not have a fair trial rather than has Croft established that CT can have a just and fair trial. 89 Second, her Honour accepted that the application should be refused if the effect of granting an extension would result in significant prejudice, of the kind discussed in Brisbane South, to the potential defendant. 90 Mr Sharpe of Counsel, who appeared for Croft, submitted that this acceptance was wrong and disadvantaged Croft. He relied, amongst other arguments, upon the very different wording of s 60E to that of the Act considered in Holt and Brisbane South. (See Zegarac per Mason P at 197 and 199). 91 However, no Notice of Contention was filed nor was any argument presented as to how the Judge, or for that matter the Court, should have applied the terms of s 60E(1)(b) in the present case. 92 In these circumstances it would seem that this matter should be dealt with, on this aspect, as her Honour did. Having regard to the view I have reached on that approach it is unnecessary for me to consider the point further. 93 And third, at the hearing before Judge Quirk and in the written submissions much attention has been given to the issue whether, to use the Judge's words "the plaintiff had demonstrated that he had a real case to advance against the fourth defendant". As to this her Honour said: "I accept that on the relatively low onus applicable, on the plaintiff's version of events, he would have a reasonable cause of action against the fourth defendant." 94 Her Honour had accepted that Croft was doing his best to tell the truth and that he was not generally unreliable. 95 Any further agitation of this issue confronts that credit finding (Abalos v Australian Postal Commission (1990) 171 CLR 167). At least in relation to the allegation relating to absent or defective lighting certain other issues raised by way of defence would be inapplicable. 96 It was pointed out in Commonwealth v McLean (1996) 41 NSWLR 389 at 395 per Handley and Beazley JJA that: "An application for extension is not a trial or a dress rehearsal for a trial. The court is concerned with whether there are serious questions to be tried……" 97 During address Mr Maconachie referred to conflicting versions as to what had occurred leading to Croft's injury. The following exchange then took place: "CAMPBELL AJA: But isn't this an issue for the trial rather than on an application of this nature? MACONACHIE: Indeed it is your Honour, but the reason that the evidence was called and the issue was advanced before Judge Quirk was to show, as we hope we can, that it is a critical issue for the trial and one, having regard to the circumstances of this case, we can't be expected fairly to be able to meet. Accordingly yes, it is a matter for the trial, but the materials available at the time of the incident and the materials available now in all of the circumstances give rise to a prejudice of the most tangible kind for the claimant. That's the basis upon which it's put." 98 The concession was properly made. I see no need to consider further, as an issue, whether for present purposes Croft has sufficiently demonstrated a cause of action. As Mr Maconachie has pointed out the nature of the issues on that question remains relevant in considering the matter of prejudice. 99 Whilst it is to be remembered that s 60E calls for a consideration of "all the circumstance of the case" the parties have conveniently grouped their other arguments primarily around the paragraphs of s 60E(i). The matters requiring consideration are (a), (b) and (f). I deal with them in that order.

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Section 60E (1)(a) Consideration 111 As I have mentioned there is an overlapping element in the consideration of these separate matters and, at the end, a determination to be made upon all the circumstances of the case. Nonetheless, it is useful to make some comments as to the separate elements. It would not be practicable to deal with every issue mentioned, although I have considered them all. CT's submissions are carefully drawn and obviously reflect much thought however, with respect, they rely significantly on the great advantage of hindsight and a level of perception and activity not found in the real world of litigation. A somewhat similar point was made by Judge Quirk when she referred to a contrast between what it was suggested would have been done for CT and what appeared to have been done for CBT. 112 I consider that Judge Quirk did deal with the question of delay. I think it was open to her to conclude that the delay was adequately explained. The course of events emerged clearly enough, as Mr Sharpe put, from the correspondence. The suggestions in the submissions as to what might or should have been done after the searches were received seem to me to depend very much on hindsight. 113 Near to the commencement of his address Mr Maconachie said: "….I want to stick as closely as I can to the written submissions which Ms Heath has, being (sic) principally responsible for because to do otherwise is to make that which is already complicated, even more complicated….." 114 Croft's solicitors had to cope with the complicated situation arising from the number of related Christakos companies, their difficulties and their connection with 47-49 Boolcarrol Road Wee Waa without the assistance of the information now available. 115 Amongst the company searches carried out on 12 February 2002 was one of CT. It is not an unreasonable inference that a search was carried out on all the Christakos companies. Whether that be so or not the principal place of business was stated to be "Lot 1022 Newell Highway Narrabri". 116 Judge Quirk appears to have been under the impression that this search was later, however, she identifies in her judgment not "an address other than 47-49 Boolcarrol Road Wee Waa" as the submission suggests, but Narrabri, as the principal place of business. 117 I do not think that without the advantage of hindsight and with the knowledge that CBT and CB owned parts of 47-49 Boolcarrol Road Wee Waa, it was unreasonable not to sue CT. 118 Indeed a letter from Mr Dunphy, the liquidator of CT, to Croft's solicitors of 9 March 2004 said, amongst other things: "You stated that the injury to your client occurred at 47 Boolcarrol Rd Wee Waa. During my investigation of the affairs of the Company I was unable to locate a lease of the premises from the owner RFI Pty Ltd. It is my understanding that the Company occupied the premises with the informal consent of the director of RFI Pty Ltd, Mr John Christakos until approximately 13 March 2003. At that time a payment of $16,500 was made by me as Liquidator of the Company to permit an on-site auction to be conducted at the premises on behalf of the Company, Christakos Bros Transport Pty Ltd and Sunderland Pastoral Co Pty Ltd. I provide this background information in case it is relevant to establishing the proper defendant in these proceedings." 119 Mr Maconachie, commenting in address upon the occupation of the premises with only the informal consent of the director of RFI, said: "That might explain why it was that CT was not the subject of attention before that letter was sent…." 120 He did, however, make the point that CT had been "in play" before that letter. He referred to the search mentioned above. There had already been the Phillips Fox letter of 31 October 2003, however, the Dunphy letter does show the difficulty of identifying CT as an occupant of the Wee Waa premises by conventional searches. 121 There is nothing unusual or inconsistent with normal litigious practice in Croft's solicitors relying upon the information they received from Sagacious Legal which appeared to correlate with the searches they had done. 122 In my view Judge Quirk was entitled to conclude that there was no unreasonable delay by Croft's solicitors. Her Honour referred only compendiously, for obvious reasons, to the quite extensive correspondence between Croft's solicitors and CT's solicitors. Ms Piper's affidavit annexes some five letters passing between Croft's solicitors and Sagacious Legal between 9 January 2003 and 21 March 2003; seven letters passing between Croft's solicitors and C. Tuckwell & Co, Auditors between 4 June 2003 and 8 October 2003, and a good deal of other correspondence. 123 On 5 December 2003 CT's solicitors wrote to Croft's solicitors and said, amongst other things: "We refer to your correspondence dated 4 December 2003 and confirm that CGU is on risk as the public liability insurer for both Christakos Transport Pty Ltd and CBT at the date of the accident." 124 These matters all support the view taken by the Judge that delay was properly explained. 125 The Judge referred to the circumstance that such delay as there was was not Croft's fault. That is a relevant factor. I see no occasion for her to deal separately with the consequences of suggested inappropriate delay on the part of the solicitors, much less to refer to possible causes of action against those solicitors.

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130 It was put: "Her Honour failed to apply the correct test of actual prejudice being that if there was doubt as to whether evidence necessary for a fair trial was possibly available the application should be refused. ( Holt v Wynter (2000) 49 NSWLR 128 at 135; State of New South Wales v Donnelley [2004] NSWCA 133 at [52] per Giles JA with whose conclusion as to the existence of prejudice Handley JA agreed; SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird (Builders) v Kerry O'Brien [2002] NSWCA 367 [18] - [20]}. Her Honour erred in failing to accept as a matter of principle that difficulty in identifying and locating relevant witnesses, the apparent loss of relevant records, the loss of the opportunity of having had earlier medical examinations of the Opponent and of having observations or investigations carried out to test his claim were capable of amounting to significant prejudice and in failing to find that it did in fact do so ( Sydney City Council v Zegarac (1986) 43 NSWLR 195). Her Honour erred in principle in considering prejudice by speculating what evidence might be available [JM 20-22] (eg whether witnesses could possibly give evidence of the 'factual matrix' of the loading of the machine) but without considering the relative importance to the Claimant's opportunity for a fair trial of what evidence is possibly lost being eye witness evidence of the accident itself or the immediate aftermath. The Opponent's case made no real attempt to establish that the relevant witnesses were identifiable, available and had sufficient recall of the events for a fair trial to be had. Her Honour erred in finding there was no material actual or presumptive prejudice to the Claimant." 131 It was submitted that Judge Quirk failed to consider the issues and defences likely to arise at the trial and the effect the passage of time would have on the acceptability of Mr Posselthwaite's evidence. 132 It was put that her Honour was in error in holding that there was no evidence that any particular document was lost or destroyed. 133 There should have been, it was put, consideration of the unavailability of the tanning machine for expert examination. 134 It was put that her Honour failed to find that the forklift driver was unable to be sufficiently identified to be secured as a witness and the effect of that unavailability. 135 It was put: "Her Honour erred in finding that prejudice caused to the Appellant by the Respondent's delay in commencing proceedings against it could be overcome by use of medical evidence obtained by another party when there was no evidence to support that finding." 136 This concept was developed in a number of ways including those of the possible effect of a further injury and of a failure of Croft to follow his doctor's orders. 137 It is convenient to say at this point that I do not consider it necessary to take time to deal further with this and related contentions. With the amended statement of claim there was served some 43 separate items including hospital notes, x-rays, specialist and other reports commencing on 2 May 2000 and going through to 22 October 2003. I regard as untenable the view that in the light of the availability of this material - not to mention other items to which the Judge referred - that CT would suffer "not insignificant prejudice" in relation to medical issues. 138 Mr Maconachie put that a consideration of the judgment as a whole leads to the conclusion that the Judge was not concentrating upon the fact that the discretion she was to exercise was to grant not to refuse the extension.

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Section 60E (1)(b) Consideration 144 At the conclusion of her judgment on this aspect Judge Quirk said, as I accept to be the position, that she was satisfied that CT had not suffered a "not insignificant prejudice". She also said "…and in my view, the delay would not result in the defendant being unable to have a fair trial." I do not consider that it has been shown that it was not open to her to so hold. 145 In particular, I do not agree with Mr Maconachie's submission that a reading of the judgment as a whole reveals that the Judge did not apply the onus correctly and did direct her mind rather to a discretion to refuse than to a discretion to grant. 146 I do agree that there are individual passages that might well support Mr Maconachie's contentions, but consider that a fair reading of the whole judgment does not do so. 147 It was put that the circumstances could not be regarded as unusual and therefore more likely to be remembered. I do not agree with that submission. 148 Judge Quirk had observed that there was no suggestion that there was regular movement of tanning machines. Not only does commonsense support that proposition but, having regard to the detailed way in which the case was conducted, one would have expected some reference to a regular trade in such items if it in fact took place. 149 Mr Maconachie referred to a failure to exclude a regular activity in the moving of mechanical equipment. However, such items are very different to large numbers of identical bags of wheat and the like. 150 As to the missing machine it is common practice in litigation for a suitably qualified expert to identify a type of machine by description and give evidence in relation to its characteristics. No doubt that is not as satisfactory as having the original machine but even then could it be realistically supposed that at any likely time of inspection it would have been in the same condition? 151 Mr Muscara and the Halls would appear to be available to give evidence albeit the fourth man remains apparently unidentifiable. 152 Mr Posselthwaite is available. Judge Quirk had heard him cross-examined. She clearly did not accept that his memory would constitute a problem. If George Christakos does have a memory problem following an accident he was not present at the accident. 153 It was necessary for Judge Quirk to consider these and other matters and decide whether Croft had shown that CT would not suffer a "not insignificant" prejudice if the extension was granted. She did so and reached the decision set out in her judgment which included her view that the delay would not result in CT being unable to have a fair trial.

[63]

Section 60E (1)(f) - CT's submissions 154 On this aspect the written submissions began with the following statement: "Her Honour erred in finding that conduct of the Claimant relevantly induced the Opponent to delay commencing proceedings against the Claimant." 155 It was put that Judge Quirk's finding on this point, whilst brief, "seems to be the principal basis for her Honour's decision to extend time." It asserts that the relevant conduct was found to be in the letter of Sagacious Legal of 21 March 2003. 156 It was submitted that there was no evidence to base the finding that the instructions came from Mr Christakos. The limited nature of the initial retainer given by him to the solicitors and the intervention of the liquidation of CBT were pointed out. 157 It was put that the conduct did not confirm that CBT was the relevant occupier or that Croft had sued the correct defendant. It was submitted: "At its highest, the conduct was an omission to volunteer that the Claimant was also an occupier of the premises: knowledge of which fact was not essential to the Opponent's claim but might have put his solicitors on further enquiry." 158 It was submitted that the Judge did not expressly consider whether the impugned conduct could properly be attributed to CT and that it could not be so attributed. For reasons which appear later I do not need to set out the argument on this point. 159 It was submitted that there was no basis in the evidence for the conclusion that Croft was induced to delay by reason of the letter. 160 It was put that the decision who to sue had been made earlier and that the letter seeking information was directed rather to whether a defendant might be discontinued against. The letter dealt with a claim based on occupation and not one based on consignment of the machine and/or casual acts of negligence. There was, it was put, no sense of urgency that might have been expected had the request been intended to elicit the identities of potential defendants. 161 It was pointed out that there was no evidence that the letter was relied upon and reference was made to the failure to call the solicitors having the conduct of the matter before Ms Piper. 162 It was submitted that s 60E(1)(f) requires more than a failure to assist. There must be an actual persuasion or influence to delay making a claim. Further, it was put, there must be an intention to so act or, at least, a full awareness of the nature of the transactions that the plaintiff has in contemplation and a knowledge that the information would be used in deciding upon the course to be taken. 163 It was put: "It was not established that the Claimant in fact engaged in the impugned conduct, that the Opponent relied on it causing him to delay taking action or that the Claimant intended to delay proceedings being taken against it or should have known that was the natural and probable result of the impugned conduct. It is submitted that her Honour was in error in finding that the impugned conduct was a reason to grant the extension of time."

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cases Cited (15)

Cited By (4)