By a Statement of Claim filed on 24 December 2019 the plaintiff Mr John Gauld sued two former employers (the first and second defendants) and three asbestos suppliers (the third, fourth and fifth defendants) seeking damages for his disease of asbestosis.
The first and second defendants are companies which have been deregistered for a long time. Proceedings were only commenced against those defendants so as to preserve the plaintiff's rights. In the long run, the plaintiff's solicitors are attempting to ascertain the workers compensation insurers of those employers, so that an application can be made to substitute the insurers for the named defendants. An application might also be made to the Supreme Court to restore both companies to the register. Of course, such an application would only succeed if the plaintiff is able to establish that there was insurance for the relevant periods of employment.
By r 6.2(4)(a) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") a Dust Diseases Tribunal Statement of Claim is valid for service for six months after the date on which it is filed. Thus the Statement of Claim in these proceedings should have been served by 24 June 2020. It was not.
Mr Gauld died on 18 May 2020, about five weeks before the time limit prescribed for service of the Statement of Claim. The plaintiff's solicitor did not ascertain that until he was so advised by the plaintiff's widow Ms Helen Gauld on 24 June 2020.
By a Notice of Motion filed on 29 October 2020 Ms Gauld sought an order pursuant to r 7.10(2)(b) UCPR that she be appointed to represent the estate of the late John Alexander Gauld in the proceedings. Ms Gauld also sought an order pursuant to r 1.12 that the time for serving the Statement of Claim filed on 24 December 2019 and an Amended Statement of Claim, nominating her as the new plaintiff, be extended to 3 February 2021.
The extension to that date is sought because the plaintiff's solicitor has some confidence that in that time he will be able to identify the insurers for the first and second defendants.
Being deregistered, the first and second defendants took no part in the motion. Counsel for the plaintiff mentioned the matter for the solicitors for the fourth and fifth defendants. They consent to the orders sought in the motion. The third defendant Amaca Pty Ltd ("Amaca") opposed the orders in the motion.
[3]
Power to Extend Time for Service
Rule 1.12 of the UCPR deals with extension and abridgment of time. The rule gives the court a power to extend any time fixed by the Rules. Such a power may be exercised before or after the time expires.
Both counsel agreed that the leading decision on exercise of the power to extend time in the context of a stale Statement of Claim is the decision of the Court of Appeal in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (In Liquidation) [2009] NSWCA 104.
At [103] the Court of Appeal set out a list of factors to be taken into account in the exercise of the discretion to extend the time for service of a Statement of Claim. The factors relevant to this case are:
1. The length of the delay.
2. The reasons for the delay.
3. The conduct of a party in attempting to overcome the reasons for the delay.
4. Any deliberate decision by a party to allow the delay to occur.
5. Sections 56, 57, 58 and 59 of the Civil Procedure Act 2005 (NSW)
6. The policy behind any relevant limitation period.
7. The hardship or prejudice caused to a party by refusing the renewal and to the opposite party by granting it.
[4]
Evidence on the Motion
The solicitor for the plaintiff sets out the reasons for the delay in his affidavit sworn on 28 October 2020 (PX 2). Mr McMahon first spoke to Mr Gauld by telephone on 16 September 2019. He met with Mr Gauld on 3 October 2019 and obtained instructions concerning his employment history, his exposure to asbestos and his medical history. Mr Gauld said that he had been exposed to asbestos when employed by the first defendant between 1969 and 1975 at various industrial locations. The plaintiff also instructed Mr McMahon that he had been exposed to asbestos when working for the second defendant between August and December 1971. The plaintiff had gone to the Dust Diseases Board and had been assessed as 50% disabled due to asbestosis. At the conclusion of the conference on 3 October 2019 Mr Gauld instructed Mr McMahon to bring a claim for damages.
Mr McMahon then obtained the plaintiff's medical records and notes from treating doctors and the Coffs Harbour Base Hospital. ASIC searches revealed that the employers were deregistered companies. Mr McMahon commenced enquiries to ascertain the workers compensation insurers of those employers back in the early 1970s.
By late December 2019, after the plaintiff had relocated to Victoria, Mr McMahon filed a Statement of Claim to preserve the plaintiff's rights to general damages. He named the two deregistered companies as defendants, and his enquiries to ascertain their workers compensation insurers were ongoing.
Mr McMahon went on leave after Christmas. He spoke to Mr Gauld again in mid to late February 2020. Mr Gauld had attempted to contact a former work colleague to find information to assist Mr McMahon in his enquiries. He told Mr McMahon that the former work colleague could not assist.
On 24 June 2020 Ms Gauld telephoned Mr McMahon and told him that her husband had been admitted to hospital in Victoria on 15 May 2020 and had died on 18 May 2020. Ms Gauld advised that she wished to continue the proceedings on behalf of her late husband's estate.
The affidavit of Mr McMahon deposes that he is still making enquiries to identify the insurers for the deregistered employers, so far without success.
Mr McMahon's affidavit points out that if an extension of time is not granted for service of the Statement of Claim, then Ms Gauld would lose the benefit of an award of general damages if she commenced fresh proceedings. That was an agreed matter between the parties.
Ms Gauld swore an affidavit on 6 August 2020 (PX 1). Her affidavit went to the formalities of being appointed as the new plaintiff to represent the estate.
[5]
Consideration of the Relevant Factors
The delay is in part explained by the fact that Mr Gauld passed away five weeks before the time prescribed for the service of the Statement of Claim. After his death there was no plaintiff, and there will be none, unless Ms Gauld is now appointed to represent the estate of her late husband. An additional reason for the delay is the understandable difficulty that Mr McMahon has had in trying to ascertain the workers compensation insurers of employers from nearly 50 years ago. The Tribunal is well aware from other cases of the difficulties faced by solicitors attempting to obtain such information.
It could not be said that Ms Gauld has been guilty of any conduct which has resulted in delay in the service of the Statement of Claim or in bringing this application. Nor could any criticism be made of Mr McMahon who has acted diligently on behalf of his client.
There was no deliberate decision by the plaintiff or his representatives to delay the service of the Statement of Claim. Mr McMahon was simply not in a position to file a Statement of Particulars, as required by the Claims Resolution Process, until he could provide all information in support of the plaintiff's claim, including the claim against the two employers.
There is no limitation period which applies to the claim.
There would be prejudice to Ms Gauld if the application were refused. If she had to commence fresh proceedings, she would lose the right to recover general damages, which could well be the most significant head of damages in the claim. The converse is that Amaca will suffer prejudice if the extension of time is granted, in that it will have to meet a claim which includes general damages. However, up until the date of death of Mr Gauld, and indeed for five weeks after that, it faced that claim anyway. There is no evidence in the present case to suggest that Amaca cannot now meet such a claim because witnesses have been lost or the delay has meant that it cannot have a fair trial.
Sections 56, 57, 58 and 59 of the Civil Procedure Act have to be taken into account. Proceedings brought in the Dust Diseases Tribunal face unique difficulties. Cases in the common law courts usually deal with events which occurred only a few years beforehand. The identity of parties can be easily ascertained, and insurers often step in to represent defendants who are sued. By contrast, cases arising out of employment many decades ago, which are regularly brought in the Tribunal, cannot proceed on a proper basis until a plaintiff's solicitor has taken all necessary steps to identify every possible defendant and its insurer. This is particularly so in the case of asbestosis, which is a divisible disease. A plaintiff's solicitor will try to ascertain every available defendant, so that there is no "empty chair", which would result in a less than full recovery for the plaintiff.
Having regard to the evidence in the case, it could not be said that the provisions of the Civil Procedure Act would overwhelm all of the other factors discussed above, which are in favour of an extension of time being granted.
Having regard to all these factors, the cogency of the case for granting the extension of time is far stronger than the cogency of the case in favour of refusing the extension of time.
[6]
Orders
My orders are:
1. Order that Helen Gauld be appointed to represent the estate of the late John Alexander Gauld in these proceedings.
2. Order that Helen Gauld file an Amended Statement of Claim within 7 days.
3. Pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) order that the time for serving the Statement of Claim filed on 24 December 2019 and the Amended Statement of Claim referred to in Order (2) be extended to 3 February 2021.
4. Liberty to apply by Motion if any further extension of time for service is sought.
5. Order that if the plaintiff obtains an order for costs against the third defendant on a final hearing, then such order shall include an order that the third defendant pay the plaintiff's costs of the motion.
[7]
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Decision last updated: 20 November 2020