Gilbert v Gosdorf Pty Limited & Anor

Glen Stanley Gilbert (Plaintiff)

Gosdorf Pty Limited formerly known as PARTIES : Gosford Meats Pty Limited (First Defendant)

Romet (NSW) Limited (Second Defendant) JUDGMENT OF : Master Harrison

Mr M L Williams SC with Mr M G McHugh (Plaintiff)

COUNSEL : Mr L T Grey (First Defendant)

Mr P J O'Connor (Second Defendant) G H Healey & Co - Glebe (Plaintiff)

SOLICITORS : Sparke Helmore (First Defendant)

A O Ellison & Co (Second Defendant) CATCHWORDS : Extension of time - ss 58, 60G & I - Q Fever LEGISLATION CITED : Limitation Act 1969 (NSW) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA, unreported 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 Dousi v Colgate Palmolive Pty Limited (No 2) (NSWCA, unreported 12 May 1989) CASES CITED : Bauchop v The Commonwealth (NSWSC Grove J, 4 July 1997 unreported) Martin v Abbott Australiasia Pty Ltd (1981) 2 NSWLR 430 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Dowell Australia v Page (NSWCA unreported 1 December 1995) Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 Forbes v Davies [1994] Aust Torts Reports 81-279 Morrison v Judd (NSWCA, unreported 10 October 1995) DECISION : (1) The plaintiff is granted an extension of time within which to commence proceedings in this court for injuries suffered in 1987 as against Romet (NSW) ACN No 000 049 356) formerly trading as Metro Meat (NSW) Limited; (2) I decline to grant an extension of time within which to commence proceedings in this court for injuries suffered in 1987 as against Gosdorf Pty Limited; (3) I decline to grant leave to join Gosdorf Pty Limited as a defendant in these proceedings; (4) Romet's notice of motion filed 5 November 1997 is dismissed; (5) The plaintiff is to pay the defendants' costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20090/96 - GLEN STANLEY GILBERT v GOSDORF PTY LIMITED FORMERLY KNOWN AS GOSFORD MEATS PTY LTD & ANOR

JUDGMENT (Extension of time - ss 58, 60G & I; Q Fever) 1 MASTER: The plaintiff has filed three notices of motion, the first only being on 26 November 1997. By notice of motion filed 8 June 1999 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to S 60G of the Limitation Act 1969 (NSW) (the Act) or alternatively that the limitation period be extended pursuant to s 58 of the Act; and that Romet (NSW) Ltd formerly trading as Metro Meat (New South Wales) Limited (Metro Meats) be rejoined in these proceedings as the second defendant. The plaintiff also seeks leave to amend the statement of claim in accordance with the draft amended statement of claim. The plaintiff relied on his affidavit sworn 25 November 1997 and three affidavits of Fiona Jane Townend, the plaintiff's solicitor, sworn 17 February 1999, 3 June 1999 and 15 June 1999 and the affidavit of Yvonne Williams sworn 11 May 2001. On 5 November 1997 Romet filed a notice of motion seeking that the proceedings be dismissed. The second defendant relied on three affidavits of Barbara Nance Ames sworn 5 November 1997, 11 April 2001 and 18 April 2001. 2 For the purposes of this application I have taken the facts at their highest. I carefully observed the plaintiff during cross examination and I formed the opinion that he was giving truthful evidence.

(1) The plaintiff was born on 27 December 1963 and is now 38 years of age.

(2) In 1981 the plaintiff commenced employment with Gosford Meats Pty Ltd or Romet (NSW) Limited. He worked in abattoirs at the Gosford premises as a slaughterman.

(3) On 7 May 1987 the plaintiff was diagnosed with Q Fever. In 1987 he was aware that he had contracted the disease Q Fever at work. The plaintiff was unable to work until 31 August 1987. During that time he underwent regular blood testing and his titre level dropped. He was ordered to go back to work on light duties otherwise his employment would be terminated. While his condition had improved he had not made a complete recovery. The first week the plaintiff worked in the store. For the next two weeks he performed heavy labour in the killroom but found he was unable to continue working.

(4) Between 19 May 1987 and early 1988 the plaintiff was in receipt of Workers Compensation payments.

(5) In December 1987 the plaintiff retained Walker Kissane & Plummer, solicitors to act on his behalf in relation to the injuries he suffered from contracting Q Fever at work. The plaintiff understood that his solicitors were taking workers compensation proceedings. In 1988 the plaintiff instructed G H Healey & Co as his solicitors. I shall refer to the current solicitor's conduct later in this judgment.

(6) During the early 1990's the plaintiff's condition generally improved and the plaintiff was optimistic that he would make a recovery from Q Fever. The plaintiff deposed that in 1994 his condition deteriorated and he was treated by Dr Kam. However, under cross examination the plaintiff stated that he still felt sick in 1994, the same as he was before and that he did have brief periods of feeling better (t 5). There are times when he is good and then times when he is "real sick" (t 6.50). Dr Kam's clinical notes for the period December 1987 to 1996 are in evidence. They show that from July to December 1987 the plaintiff attended the surgery on an average of about two times per month. There are visits where the plaintiff complains of feeling unwell, weak and nauseous. In 1988 the notes record that the plaintiff was slowly improving. He attended his general practitioner less frequently; approximately once per month. In 1989-91 the visits tapered off to once every two to three months. The plaintiff complained mainly about cold like symptoms, breathing difficulties, vomiting and skin rashes. The plaintiff attended his general practitioner fives times in 1992 complaining of being unwell (one attendance was for a cut finger) and only once in 1993. These records tend to support the plaintiff's understanding that during the early 1990's the plaintiff's condition generally improved. However, in 1994 the plaintiff consulted Dr Kam more frequently (seven times) complaining of feeling unwell and vomiting. In 1995 there are only four visits - one where he had hurt his shoulder playing indoor cricket. While his condition deteriorated in 1994, it improved again in 1995.

(7) I accept the plaintiff's evidence that until he saw Dr Boughton in 1994 he was unaware that one in five or 10% of patients suffering Q Fever go on to develop chronic fatigue syndrome or chronic Q Fever and that they will never get rid of it. In 1994 Dr Boughton told the plaintiff he was one of that small group with chronic Q Fever. In 1994 the first plaintiff became aware that he was suffering from chronic Q Fever from which he would not recover.

(8) On 26 November 1997 the plaintiff filed motion seeking orders under the Limitation Act and seeking to substitute Gosdorf Pty Ltd formerly trading as Gosford Meats Pty Limited as defendant and that proceedings against Romet be discontinued (the first limitation notice of motion). This notice of motion was stood over generally.

(9) In 1998 Dr Boughton described the plaintiff's symptoms. His opinion was that the plaintiff's prognosis is unpredictable and he was unemployable. At para 2 Dr Boughton said that the plaintiff has had this condition since 1987 and the longer the illness, in general, the worse the prognosis. There is no effective specific treatment for this condition.

(10) On 19 February 1998 the plaintiff irregularly filed an amended statement of claim deleting Romet as a defendant but substituting Gosford Meats Pty Limited as a defendant.

(11) On 22 February 1999 the plaintiff filed a motion seeking to amend the statement of claim to rejoin Romet as second defendant.

(12) On 8 June 1999 the plaintiff filed a further motion seeking orders pursuant to s 60G 4(4) and or s 58 Limitation Act that Romet be rejoined as a second defendant and leave be granted to amend the statement of claim alleging employment by Gosdorf or alternatively Romet (second limitation notice of motion).

(13) The plaintiff has not been in full time employment since 1987. He is now in receipt of a disability pension.

The Law 3 The plaintiff relies on s 58(2) and s 60G of the Limitation Act. Both provisions confer a discretionary power. Section 58 (2) falls within subdivision (1) and s 60G falls within subdivision (3) of Division 3 of the Limitation Act. 4 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 (1997-98) 43 NSWLR 195 and Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

(a) Subdivision (1 ) 5 Section 58 provides for the extension of the limitation period in respect of a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury. Section 58(2) provides as follows: "Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:-

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the period of limitation for the cause of action; and

(b) there is evidence to establish the right of action, apart from a defence founded on the expiration of a limitation period,

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date…" 6 The power thus granted to the court to extend the limitation period is limited to a power to extend that period only until a date one year after the date upon which the plaintiff became aware of the last of the material facts necessary to be known by him. 7 The plaintiff submitted that the application date should be the date of filing the original statement of claim namely 2 February 1996. As previously stated the original statement of claim only named Romet as a defendant. The issue is one of substance over form because, of importance, it is the date upon which the defendants became aware that they were to be named as parties in these proceedings. Romet submitted that the application date in relation to it should be the date upon which the second notice of motion seeking an extension of the limitation period ie, 8 June 1999 was filed. According to Romet the statement of claim had previously been discontinued against it because the plaintiff filed an amended statement of claim deleting it as a defendant. The amended statement of claim was filed on 13 February 1998 but was filed without leave and without consent of the other parties. Pleadings had closed and leave or consent was required to discontinue or substitute a party. The amended statement of claim was filed irregularly and is a nullity. The result is that the proceedings have never been discontinued against Romet. The application date is the date of filing the statement of claim namely 2 February 1996 in respect of Romet. 8 An amended statement of claim was filed on 19 May 1998 naming Gosdorf as the defendant. It is from this date that Gosdorf became aware that it was proposed to join it as a defendant in these proceedings. Hence in relation to Gosdorf, it is my view that the application date is 19 May 1998. The defendant named in the second notice of motion was Romet and an order was sought that Gosdorf formerly Trading as Gosford Meats Pty Limited be substituted as defendant. 9 The plaintiff cannot succeed under s 58 unless he can show that he was unaware of all necessary material facts until a date after the 2 February 1995 in respect of Romet and he was unaware of the identity of Gosdorf until a date after 19 May 1997. In practical terms, the plaintiff, to open the way to an exercise of the court's discretion under this subdivision of the Act, must identify one or more "material facts of a decisive character relating to the cause of action"; prove (by evidence) that that fact or one or more of these facts was unknown to him and not within his means of knowledge as at 7 May 1993 (the last expiration date of the relevant limitation period); and either show (by evidence) on what date that fact (or the last of those facts to become known to him) became known to him (or came within him means of knowledge) or, at the least, show that one such fact was still not known to him as at 2 February 1995 in relation to Romet and 19 May 1997 in relation to Gosdorf. 10 Section 57B(1)(c) states that facts are of decisive character if, but only if, a reasonable man knowing those facts and having taken appropriate advice on those facts would regard those facts as showing that an action on the cause of action would have a reasonable prospect of success and resulting in an award of damages sufficient to justify the bringing of an action. 11 The application of s 58(2) involves a three step process. The first step is to inquire whether the facts of which the appellant was unaware were material facts: s 57(1)(b). If they were, the next step is to ascertain whether they were of a decisive character: s 57(1)(c). If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s 58(2). The defendant submitted that the plaintiff ought to have been aware of all the material facts within the limitation period. 12 Section 57B(1)(b) and (c) relevantly provides: "(b) the material facts relating to a cause of action include the following:-

(ii) the identity of the person against whom the cause of action lies;

(iv) the nature and extent of the personal injury so caused; and

(v) the extent to which the personal injury is caused by the negligence, nuisance or breach of duty."

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing: (i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and

(ii) that the person whose means of knowledge is in question ought, in his own interest, and taking his circumstances into account, to bring an action on the cause of action." 13 The plaintiff submitted that he did not know and still does not know firstly, the identity of the person whom the cause of action lies (s 57B(1)(b)(ii)); secondly, he did not know the nature and extent of the personal injury so caused (s 57B(1)(b)(iv)); and thirdly, the extent which the personal injury is caused by the negligence or breach of duty (s 57B(1)(b)(v)). I accept that the expression "all reasonable steps" means either all steps which a person in the position of the plaintiff ought reasonably to have taken or all steps which the plaintiff in the circumstances in which he was placed at the relevant time ought reasonably to have taken - see per Hope JA in Dousi v Colgate Palmolive Pty Limited (No 2) (NSWCA, unreported 12 May 1989).

(ii) The identity of the person against whom the cause of action lies 14 There is a highly contested issue as to who was the plaintiff's employer at the time he contracted Q Fever. Both defendants maintain they were not the plaintiff's employer as at the relevant time. There has been much confusion (and still is) over which entity, and if either one is the correct employer, namely Romet (NSW) Limited or Gosdorf Pty Limited. I respectfully disagree with counsel acting for the second defendant who submitted that it was quite simple as it was not it. 15 A chronology of events relating to the plaintiff employer is as follows.

(1) Romet (NSW) Ltd is a non-trading company. It was incorporated in 1944 as Conkey & Sons Ltd. It then changed its name to Metro Meat (Cootamundra) Ltd in 1980. On 21 November 1986 it changed its name to Metro Meat (NSW) Ltd. In 1994 it changed its name to Romet (NSW) Ltd in 1994.

(2) From 30 June 1986 until 30 June 1987 Romet was insured by Switzerland Insurance (subsequently MMI).

(3) Gosford Meats Pty Limited was a subsidiary of C & M Throsby Pty Limited. In February 1987 all the shares of C & M Throsby Pty Limited were acquired by Metro Meats (now called Romet Limited). C & M Throsby Pty Limited was then a holding company whose subsidiaries included Gosford Meats Pty Limited and Charles David Pty Limited.

(4) Searches by Romets' solicitor, Ms Ames (who has spent much time and energy in trying to ascertain the identity of the correct defendant) stated that searches she had caused to be undertaken indicated that the land at 356 Manns Road West Gosford was acquired by Gosford Meats Pty Limited on 2 February 1967 and this property was disposed of by Gosdorf Pty Limited (formerly Gosford Meats) on 28 June 1994. This indicates that Gosdorf still owned the real property being the abattoir after Metro Meats purportedly bought the shares in Gosford Meats Pty Limited (as it was then known). From 11 August 1986 until 11 August 1987 Gosford Meats was insured by FAI .

(5) In 1987/88 the plaintiff stated that the ownership of Gosford Meats changed hands but he did not know the new identity of the entity. He also gave evidence that he was unsure whether the business was sold. What he did known as that even though the shares may have been sold business continued as usual. The sign "Gosford Meats" remained outside the premises. Whatever the corporate entity was, everything remained exactly the same (t 7). On 10 May 1987 the plaintiff a completed workers compensation claim and cited his employer as Gosford Meats. I accept that it was the plaintiff's understanding that he was employed by "Gosford Meats".

(6) On 3 December 1987 Metro Meat Limited advised Walker Kissane & Plummer that correspondence be sent to FAI Insurance.

(7) In 1987 and 1988 the plaintiff was issued group certificates by Gosford Meats Pty Limited.

(8) In 1988 group certificates relating to staff superannuation fund referred to the employer as "Metro Meat Limited: Staff Super Fund". Thus in 1988, the plaintiff had been issued with two group certificates one in the name of Gosford meats Pty Limited and the other in the name of Metro Meat Limited.

(9) Between 19 May 1987 and 22 January 1988 the plaintiff received compensation payments.

(10) On 22 December 1988 the plaintiff was advised that his employment was terminated by letter on the letterhead of Metro Meat (New South Wales) Limited.

(12) On 2 February 1996 the statement of claim was filed against Romet (NSW) Limited formerly trading as Metro Meat (NSW) Limited.

(13) On 15 May 1996 a defence was filed by A O Ellison on behalf of Romet denying it was the employer.

(14) On 19 November 1996 A O Ellison wrote to G H Healey asserting that plaintiff was employed by Gosford Meats Pty Limited relying on 1987 and 1988 Group Certificates.

(15) On 12 March 1997 G H Healey wrote to A O Ellison enclosing a letter of 8 December 1997 from Metro Meat (NSW) Limited.

(16) On 20 March 1997 A O Ellison wrote to G H Healey stating "there does appear to be an inconsistency between the identity of the plaintiff's employer".

(17) On 12 June 1997 A O Ellison wrote to G H Healey asserting that Gosford Meats was a company with substantial assets.

(18) In June 1997, the plaintiff deposed that he was informed by his legal adviser that the issue of the proper defendant was fully resolved.

(19) On 15 September 1997 A O Ellison wrote to G H Healey inviting plaintiff to discontinue against Romet for two reasons namely, firstly because the plaintiff was employed not by Romet but by Gosford Meats, and secondly, because limitation period had already expired.

(20) On 5 November 1997 Romet filed a motion to dismiss proceedings.

(21) On 19 February 1998 the plaintiff filed an amended statement of claim naming Gosdorf Pty Limited as sole defendant. The statement of claim purportedly deleted Romet as a defendant. No consent of the parties to the filing of the amended statement of claim was endorsed. As previously stated, the amended statement of claim was a nullity and Romet remained as a defendant.

(22) On 4 May 1998 a letter was sent from Sparke Helmore to G H Healey advising that the plaintiff was not employed by Gosford Meats Pty Limited. Paragraph 2 of that letter states: "On 27 February, 1987 all employees of Gosford meats Pty Limited had their employment terminated, were paid outstanding leave and advised they could report to work on 2 March, 1987 to see whether or not Metro Meat Limited would employ them. It is understood that the majority of the employees were then employed by metro Meat Limited."

Thus if this version of events is correct there was a weekend changeover of ownership of the company and the plaintiff's employer changed from Gosdorf Pty Limited to Metro Meats Limited.

The Sparke Helmore letter also enclosed a copy of a letter from the Finance Manager at the Adelaide Steamship Co Ltd dated 22 February 1996 (ie. it was written over two years earlier) which stated: "From my discussions with a former employee of our group I have established that Metro Meat Limited (now Romet Limited) acquired all the shares in a company named C&M Throsby Pty Limited on 25 February 1987. Other companies in the C&M Throsby Pty Ltd Group were as follows:- · Gosford Meats Pty Ltd (now Gosdorf Pty Ltd) · Maitland Abattoir Pty Ltd · Gosford Freezers Pty Ltd · Charles David (Hides & Skins) Pty Ltd (now Romet CDH&S) Pty Ltd) · Charles David Pty Ltd (now Romet (CD) Pty Ltd · Abattoir Investments Pty Ltd As Metro Meat Limited purchased the shares in the company, I assume each employee continued to be employed the following Monday on the same terms and conditions as existed prior to the takeover."

(23) On 5 May 1998 a defence was filed by Sparke Helmore for Gosford Meats denying employment. 16 The plaintiff's evidence is that in 1987/88 he knew that there was a change of ownership in the meatworks. Everything remained exactly the same whatever the corporate arrangements were. As far as he knew, he was stilled employed by "Gosford Meats" because that was what the sign outside the building indicated and the sign did not change. The defendants submitted that this constituted evidence that the plaintiff knew the identity of his employer prior to the expiration of the limitation period and his claim relying on s 57B(1)(b)(ii) should fail. However, this ignores the subsequent advice the plaintiff received from his solicitor in relation to the identity of his employer. The plaintiff relied on the legal advice from his solicitor 17 The plaintiff received in 1987 and 1988 group certificates and a letter of termination which indicated an entity, either Metro Meat Limited or Metro Meat (New South Wales) Limited, was the plaintiff's employer. On 20 March 1997, the solicitors for Romet (Metro Meats) agreed that there was an inconsistency of the identity of the defendant. 18 On 2 February 1996 the plaintiff's solicitors filed a statement of claim naming Romet (NSW) Ltd formerly trading Metro Meat (NSW) Limited as defendant. The limitation period had already expired. For this reason it was important for the plaintiff and his legal advisers to have acted expeditiously in properly bringing his claim. 19 In June 1997 the plaintiff deposed that his legal adviser told him that the issue of the proper defendant was resolved. From the correspondence, it would appear that the plaintiff's solicitor may have decided that the correct employer was Gosdorf Pty Limited. This is consistent with the plaintiff's solicitor filing the amended statement of claim naming Gosdorf as the sole defendant some eight months later. I infer that in June 1997 the plaintiff's solicitor informed him that the proper defendant was Gosdorf. I accept that the plaintiff is not a man well versed in the legalities and was reliant on his solicitor for advice as to the correct identity of his employer. In September 1997 Romet's solicitor invited the plaintiff to dismiss the action against it and in November 1997 filed a notice of motion seeking these orders. As a response it appears that the plaintiff's solicitor without making his or her own enquiries to ascertain the true position he/she made a decision to file an amended statement of claim naming Gosdorf as the defendant and purportedly deleting Romet as a defendant. This was done on 19 February 1998. However it was at a later date, namely on 4 May 1998 that the plaintiff's solicitor became aware of the weekend change of ownership when he or she was furnished with a copy of a letter from the finance manager of the Adelaide Steamship Company dated 22 February 1996 (some two years earlier). That letter suggested that the defendant named in the original statement of claim was the correct one. 20 In summary, the plaintiff knew that in 1987 he was employed by "Gosford Meats" until he was told in 1997 by his solicitor that the issue of the employer had been resolved. The onus is on the plaintiff to show what he understood from what he had been told by his solicitor, ie, what entity or entities he understood to be his employer. The plaintiff has not established on the balance of probabilities that he acquired knowledge of a material fact, namely the identity of the person against whom the cause of action lies within the time periods stipulated. The plaintiff's claim under s 57B(1)(ii) fails against both defendants.

The nature and extent of the personal injury so caused 21 The plaintiff submitted that he became aware of the nature and extent of his injuries after 26 November 1997. The defendants submitted that in 1994 at the latest the plaintiff knew the nature and extent of his injury. 22 At first the plaintiff went off work for a few months between May and August 1987. In 1987 he knew that he had been diagnosed with Q Fever and that he was infected from being exposed to cattle at his place of employment. His evidence was that at that time he thought that he would recover and that at that time not much was known about Q Fever. Every few weeks he had his blood checked and his titre levels were falling which indicated that the infection was subsiding and he was recovering. 23 During the early 1990's the plaintiff's condition generally improved and he was optimistic that he would recover. This is at odds with the plaintiff's evidence in cross examination. The plaintiff deposed that in 1994 his condition deteriorated and he was treated by Dr Kam. Under cross examination the plaintiff's evidence was that he still felt sick in 1994, the same as he was before and that he did have brief periods of feeling better (t 5). There are times when he is good and then times when he is "real sick" (t 6.50). 24 Dr Kam's clinical notes for the period December 1987 to 1996 are in evidence. They show that from July to December 1987 the plaintiff attended the surgery on an average of about two times per month. There were usually visits where the plaintiff complained of feeling unwell, weak and nauseous. In 1988 the notes record that the plaintiff was slowly improving. The plaintiff attended his general practitioner less frequently; approximately once per month. In 1989-91 the visits tapered off to once every two to three months. The plaintiff complained mainly about cold like symptoms, breathing difficulties, vomiting and skin rashes. The plaintiff attended his general practitioner fives times in 1992 complaining of being unwell (one attendance was for an unrelated event namely for a cut finger) and only once in 1993. In 1994 the plaintiff consulted Dr Kam more frequently (seven times) complaining of feeling unwell and vomiting. In 1995 there are only four visits (one unrelated event where he had hurt his shoulder playing indoor cricket). 25 The plaintiff agreed that in 1993/94 he knew he had periods when he was all right and periods when he was ill. I accept the plaintiff's evidence that until he saw Dr Boughton in 1994 he was unaware that one in five or 10% of patients suffering Q Fever go on to develop chronic fatigue syndrome or chronic Q Fever and that they will never get rid of it. In 1994 Dr Boughton told the plaintiff he was one of that small group with chronic Q Fever. In 1994 the first plaintiff became aware that he was suffering from chronic Q Fever from which he would not recover. Even on the plaintiff's own evidence he knew of the nature and extent of his injuries by the end of 1994 at the latest. This falls outside the time period stipulated by s 58(2). The plaintiff's claim under s 57B(1)(B)(iv) fails in relation to both defendants.

The extent to which the personal injury is caused by the negligence, nuisance or breach of duty 26 As previously stated the plaintiff knew in 1987 that he had contracted Q Fever. The plaintiff deposed that his employer did not warn him or tell him that it was necessary to take any particular measures in respect of the digestive tracts of carcasses. He does not specially say when he became aware that his employer should have told given him this warning. However, he deposed that he did not know he had any prospect of pursuing a claim in this court until 5 March 1997. He also deposed that he was not provided with a protective mask (Aff para 7A). However, in 1994 Dr Boughton furnished a report to the plaintiff's solicitor which did not provide support the plaintiff's case for the provision of protective clothing and breathing apparatus. Dr Boughton made reference to the staff being made aware of the zoonotic risks they faced in the industry. A transcript of Dr Boughton's evidence in Bauchop v The Commonwealth (NSWSC Grove J, 4 July 1997 unreported) was obtained by the defendant's counsel shortly before the hearing of this motion. There was no evidence to suggest that the plaintiff read its contents. Hence, it is my view that the plaintiff knew the extent to which the personal injury was caused by the negligence or breach of duty by 1994. The plaintiff's claim under s 57B(1)(b)(v) fails. The plaintiff has not passed through the s 58(2) threshold and his claim under s 58(2) fails. However, if I am wrong I turn to consider whether there is evidence to establish a cause of action. This is also relevant when considering whether it is just and reasonable to extend time under s 60G.

Whether there is evidence to establish the cause of action 27 In Martin v Abbott Australasia Pty Ltd (1981) 2 NSWLR at 430 Hunt J (as he then was) discusses the requirement to establish a cause of action under s 58(2)(b). His Honour at 443 agreed with Gowans J ([1975] VR 619, at pp 630,631) and Kelly J ([1980] Qd R 350, at p 352) where their Honours stated that the plaintiff must make it appear that the evidence to establish his cause of action exists and that it is available to be adduced at the trial. The test is thus somewhat less exact than that which is applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury. A certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted. 28 The plaintiff submitted that he has a good cause of action for substantial damages against his employer (see Bauchop) and also the evidence of Professor Broughton in the present case and in Bauchop. On 4 September 1995 Dr Boughton in his report in the plaintiff's proceedings in this court advised that the use of protective clothing has been considered but in summer months workers would simply not wear them; such occlusive clothing would be unbearably hot. He further stated that it was not practical to issue all employees with face mask which would be inadequate and that breathing apparatus would need to be worn for the whole shift of some hours and could not be tolerated. It was Dr Boughton's opinion that while a prudent employer could perhaps inform his staff of the zoonotic risks they faced in the industry, and perhaps provide gauntlet-type gloves and goggles for some protection, such measures would only be a gesture and not really provide effect protection. Thus, this report did not provide support for the plaintiff's claim. 29 Mr John Brennan worked at the abattoirs at Homebush and he contracted Q Fever in 1977 and 1978. Dr John Brennan, a qualified meat inspector since 1969, gave evidence in Bauchop. His evidence was that protective clothing was worn at Gosford in 1977/78 in the abattoirs owned by the "forward looking gentleman, Mr Throsby". In 1997 (two years after Dr Boughton furnished the above report in these proceedings) Dr Boughton gave evidence that it is essential that there be a break in the skin such as a cut or abrasion in order for the organism to enter the human body. Dr Boughton's evidence (t 8.5-9) was that in order to prevent contamination of the worker's skin long impervious gauntlet gloves reaching to the elbow, or shoulder, if necessary should be provided. The mouth also need to be protected and it was quite possible that a gauze surgical mask would reduce the chance of inhaling a fine aerosol which contained the organism. It was his view that these safety measures would virtually abolish the risk. Goggles or a visor are needed to prevent contaminated material infecting the eyes. In Bauchop Grove J (at p 4J) accepted the opinions of Dr Boughton, which included his opinion that protective gear should have been supplied by the defendant to the plaintiff at the Homebush abattoir.

30 In Bauchop liability was confined to one issue namely could the plaintiff show that the defendant was negligent in the manner in which it conducted its enterprise which, by that negligence, enabled him to contract Q Fever and whether there was an unsafe system of work, and whether there was a safer system which could have been adopted and was reasonably practicable. So there was evidence in Bauchop that protective clothing was worn at the abattoir at Gosford in 1977/78. There is no evidence as to whether or not this state of affairs remained the same up to 1988. However the plaintiff deposed (para 7 Aff) that he was never warned about nor told that it was necessary to take any particular measures in respect of the digestive tracts of carcasses. He also deposed that he was not provided with a protective mask. There is medical evidence to suggest that the plaintiff contracted Q Fever at work and that it developed into Chronic Q Fever and he has been unable to work. 31 Dr Boughton's later evidence seems to be at odds with his report. It will be an interesting endeavour for Dr Boughton to explain his change of mind. However, I accept that he may give evidence to the effect that the plaintiff should have non-protective clothing, a mask and gloves. There is evidence of alleged negligence. It is my view that there is evidence to suggest that the plaintiff has evidence to establish a cause of action against both defendants.

Subdivision (3) 32 The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but "also (by the operation of Schedule 5) for causes of action that accrued before that date" (s 60F). 33 Schedule 5 provides by clause 4(1) that: "Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…"; 34 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action: "…if an application for such order is made within: (a) the period of three years referred to in s 60I; or (b) the period of three years commencing 1 September 1990." 35 The application to extend time was made on 11 November 1997 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be "within the period of three years referred to in s 60I".

36 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. 37 The plaintiff relies on s 60I(a)(ii) and (iii) which is as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff:

(i) … (ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 38 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 7 May 1990 (the expiration of the relevant limitation period) they were unaware of the matters identified in s 60I(1)(a) (iii);

(2) That they did not become aware of that or those or they ought to have become aware in s 60I(1)(a)(iii) (or the last of those matters to become known to them) earlier than 2 February 1993 in respect of Romet and 19 May 1995 in respect of Gosdorf. 39 The practical effect is to require the plaintiffs to identify specifically what fact or facts they claims not to have known as at 7 May 1990, which lack of knowledge meets the description in one or more of paragraph (iii) of s 60I(1)(a); and to show (by evidence) the date on which they acquired knowledge thereof (being a date later than 2 February 1993 and 19 May 1995 in respect of Gosdorf); or to show that that fact was or those facts were still unknown to them on that date.

(ii) Whether the plaintiff was unaware of the nature or extent of persons injury suffered 40 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at 9 and 10). 41 The nature and extent of the injury which the plaintiffs have sustained is to be determined as at the date of the hearing of the application (Harris at 13 and 14). The plaintiffs may be held to have been aware of the nature or extent of their injuries within the relevant period if during that period they were aware of the effect which the injuries were then having upon them and of their likely future course, even though they may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injuries if the plaintiffs were unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiffs expects, the plaintiffs will be aware of the extent of the injuries. 42 From my earlier findings under s 57(1)(B)(iv) the plaintiff agreed that in 1993/94 he still felt sick, the same as he was before and that he did have brief periods of feeling better (t 5). There are times when he is good and then times when he is "real sick" (t 6.50). I accept the plaintiff's evidence that until he saw Dr Boughton in 1994 he was optimistic that he would make a complete recovery. In 1994 the plaintiff was unaware that one in five or 10% of patients suffering Q Fever go on to develop chronic fatigue syndrome or chronic Q Fever and that they will never get rid of it. In 1994 Dr Boughton told the plaintiff he was one of that small group with chronic Q Fever. In 1994 the first plaintiff became aware that he was suffering from chronic Q Fever from which he would not recover. This was not the kind of consequence that the plaintiff expected. Hence it is my view the plaintiff was unaware of the nature or extent of his injuries. This falls outside the time period stipulated for Gosdorf but within the time period specified for Romet. The plaintiff has passed through s 60I(1)(a)(ii) threshold in respect of Romet.

(iii) Whether the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission 43 The correct identity of the defendant has always been a "material fact", or relevant matter in an extension application (s 57B (1)(b)(2)) - see Dowell Australia v Page (NSWCA unreported 1 December 1995 per Young AJA at 2). Young AJA at 2 stated that s 60I(1)(a)(iii) speaks of the plaintiff's unawareness of the defendant's act or omission rather than the defendant's identity but one cannot know about the connection if one is ignorant of the defendant itself. 44 From the reasons given under s 57B(ii) due to the plaintiff's lack of specific evidence his claim fails under s 60I(1)(a)(ii) falls. As the plaintiff has passed through the s 60I(1)(a)(ii) threshold in respect of Romet, I turn to consider whether it is fair, just and reasonable to extend the limitation period. I have expressed a view that there is evidence to suggest the plaintiff has a real case to advance.

Just and reasonable 45 The ultimate issue in any such application is whether a fair trial can be conducted not withstanding any delay (see Wynter). 46 There is no doubt that the plaintiff has been poorly served by his solicitors, but he has had independent advice and wishes to pursue the application through his present solicitors. It is his solicitors who are responsible for the delay in prosecuting this matter. A potted and sorry history has been provided by the plaintiff's solicitor who took over the carriage of this matter in July 1998. The plaintiff's current solicitor deposed that in April 1988 G H Healey first received instructions from the plaintiff. Prior to that time the plaintiff was represented by Walker Kissane and Plummer, solicitors of Newcastle. The file was not received from those solicitors until May 1990. By then a period two years had then elapsed with nothing being done to pursue the claim. Since the plaintiff's initial instructions to his current firm of solicitors the matter has been conducted by several different solicitors within the associated group of practices. As a result there has been a lack of continuity and a failure to proceed with the matter in an efficient manner. 47 In December 1987 the second defendant was notified by the plaintiff's previous solicitors that the plaintiff had contracted Q Fever in the course of his employment and requesting details of workers compensation payments. The second defendants then wrote to Walker Kissane and Plummer advising that the correspondence had been forwarded to their insurers FAI Insurance. Conflicting information was provided by insurance companies and both defendant as to who the plaintiff's employer and who might be the appropriate insurer.

48 An application for determination was filed in the Compensation Court of New South Wales on 14 December 1995 and served on Romet and their insurer FAI Workers Compensation (NSW) Limited. There was a period of time from approximately 27 May 1991 to 27 April 1994 where apparently only intermittent instructions were received from the plaintiff and it would appear from the files that the solicitor who had the conduct of the matter at that time failed to address his or her mind to the matter. In May 1994 the plaintiff's instructions were received that his condition had deteriorated and that he wished to proceed with his claim. 49 On 29 September 1995 Mr McGrath advised that if common law proceedings were to be commenced it should be done by 4 September 1996 based on the last material facts raised in Professor Boughton's report dated 4 September 1995. As disclosed in the affidavits, the plaintiff and his solicitors have received a number of conflicting advices from different counsel (other than present counsel). Mr McHugh was briefed on 19 April 2001 and Mr Williams SC was briefed on 9 May 2001. 50 In Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 at para 147, Foster AJA (with whom Heydon JA agreed on this issue) stated that this was a case where during the periods of delay the plaintiff was relying upon his solicitors who clearly let him down. Foster AJA referred to a observation of the trial judge namely that "For the reasons stated in Forbes v Davies [1994] Aust Torts Reports 81-279 at 61404-61405, if the plaintiff has a relevant action against his instructing solicitors in regard to this matter, in my view the weight that should be attached to it should be minimal and the matter ought proceed in accordance with the normal way such matters are considered and assessed". 51 This approach has similarly expressed by Kirby P (as he then was) in Morrison v Judd (NSWCA, unreported 10 October 1995 which relates to an application for an extension of time to serve a statement of claim). In Manning Foster AJA then stated: "In the case cited in this passage reference is made to decided cases in which it has been held that an applicant for extension of a limitation period should not be "bound" by negligent delays on the part of the solicitor. In my view, there can be no hard and fast rule that a solicitor's mistakes will necessarily act as a bar to his client obtaining an extension of time, particularly where the court hearing the relevant application has been provided with a discretion as wide as that accorded by s 52(4) of the Act. Salido does not establish such a rule. Moreover, it by no means follows that an action brought by the respondent against his solicitors would necessarily succeed or be productive of an award of damages of the size that might be obtained in the claim against the Nominal Defendant, should it succeed." 52 As pointed out by Foster AJA, there is no hard and fast rule. While I accept that the plaintiff's solicitor has been largely responsible for the delay and has not prepared this application as thoroughly as it might have, I have not held the plaintiff responsible for those deficiencies. However, that is not to say that the plaintiff does not have an action against his solicitors. I do not express a view on that topic. 53 Indisputably there is presumptive prejudice due to the effluxion of time, namely 14 years. The onus is clearly on the defendant to put on evidence of actual prejudice (Taylor at 547). Neither defendant has filed any affidavit to suggest that it suffers actual prejudice. 54 The plaintiff has been examined by two medical experts on behalf of Romet, namely Dr Hession on 30 July 1996 and Dr Zylstra on 15 July 1996. There is medical records of the plaintiff's general practitioner from 1986 to date available. There is other medical evidence as to the plaintiff's condition in 1987/88 and onwards. The plaintiff has served medical reports from 1987 to date. Thus there is a detailed medical history of the plaintiff's symptoms from 1986 to date. The plaintiff received Workers Compensation payments from Romet in 1987/88. It is not suggested that these records are unavailable. The plaintiff has discharged his onus and I am satisfied that the defendants would be afforded a fair trial and will not suffer significant prejudice. It is my view that it is just and reasonable to extend the limitation period in respect of both defendants. 55 The plaintiff has failed in his claim against Gosdorf Pty Limited (ACN No 000 394 730). Costs should follow the event. The plaintiff should pay Gosdorf's costs. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. Romets opposition was not wholly unreasonable. The plaintiff is to pay both defendants' costs. 56 I make the following orders:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for injuries suffered in 1987 as against "Romet (NSW) (ACN No 000 049 356) formerly trading as Metro Meat (NSW) Limited.

(2) I decline to grant an extension of time within which to commence proceedings in this court for injuries suffered in 1987 as against Gosdorf Pty Limited.

(3) I decline to grant leave to join Gosdorf Pty Limited as a defendant in these proceedings.

(4) Romet's notice of motion filed 5 November 1997 is dismissed.

(5) The plaintiff is to pay the defendants' costs. **********

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