Gunn-Brockhoff v Cann & Ors

Gunn-Brockhoff (Plaintiff)

Arthur Cann (First Defendant)

Deborah Cann (Second Defendant) PARTIES : Defence Housing Authority (Third Defendant)

The Proprietors Strata Plan No 38679 (Fourth Defendant)

Commonwealth of Australia (Fifth Defendant) JUDGMENT OF : Master Harrison

Mr D O'Dowd (Plaintiff) COUNSEL : Mr G R Kennett (Fifth Defendant) Gillis Delany Brown (Plaintiff) SOLICITORS : Blake Dawson Waldron (Fifth Defendant) CATCHWORDS : Extension of time within which to commence proceedings - s 60C & E - add defendant Limitation Act 1969 (NSW) LEGISLATION CITED : Defence Housing Authority Act 1987 (Cth) Sophron v The Nominal Defendant (1957) 96 CLR 469 Stollznow v Calvert (1980) 2 NSWLR 749 Morton v Jool (1992) ATR 81-164 McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997) CASES CITED : The Council of City of Sydney v Zegarac (NSWCA unreported, 26 February 1998) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Holt v Wynter [2000] 49 NSWLR 148 McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001 Guest v Southern & Anor (NSWSC, unreported 22 September 1995) DECISION : (1) Leave is granted to extend the limitation period against the fifth defendant up to and including 14 January 2002; (2) The plaintiff is granted leave to add the fifth defendant as a defendant in these proceedings; (3) Leave is granted to file an amended statement of claim within 14 days; (4) The plaintiff or plaintiff's solicitors are to pay the fifth defendant's costs. Liberty to restore on this issue.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON WEDNESDAY, 12 DECEMBER 2001 20353/2001 - JARROD GUNN-BROCKHOFF v ARTHUR CANN 3 ORS

Judgment (Extension of time within which to commence proceedings; add defendant - S 60C & E))

1 MASTER: By notice of motion filed 16 October 2001 the plaintiff firstly seeks that leave be granted to join the Commonwealth of Australia as fifth defendant to the proceedings; and secondly an extension of time within to commence proceedings against the Commonwealth of Australia pursuant to S 60C, or alternatively s 60G of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 16 November 2001 and two affidavits of Naomi Devorah Frank affirmed 3 October 2001 and 5 October 2000. The fifth defendant did not rely on any affidavit evidence. 2 The proposed amended statement of claim pleads that Arthur Cann and Deborah Cann as joint tenants were the registered proprietors of premises at 17/5 Christopher Street, Baulkham Hills being part of Strata Plan No. 38679 which included a balcony (the premises). The first and second defendants were the landlords or the occupiers of and/or had the care, control and management of the premises. The third defendant, the Defence Housing Authority (DHA) was a body corporate incorporated pursuant to the Defence Housing Authority Act 1987 (Commonwealth) for the purposes of providing adequate housing for members of the Australian Defence Force. By lease dated 16 April 1991 the third defendant leased the premises from the first and second defendants and by arrangement with the fifth defendant. In 1995 the third defendant arranged for the plaintiff to enter into a tenancy agreement with the fifth defendant in respect of the premises dated 18 January 1995 (the tenancy agreement) pursuant to which the plaintiff entered into possession of the premises. 3 The fourth defendant is the proprietor of Strata Plan No. 38679. It is alleged that they as such had the care, control and management of the common property and of the Strata Plan. The fifth defendant was the employer of the plaintiff and pursuant to the terms of that employment provided to the plaintiff the premises. It is alleged that the fifth defendant was the lessor of the premises pursuant to a tenancy agreement between it and the plaintiff dated 18 January 1995 (the tenancy agreement) and therefore was the occupier of an/or had the care, control and management of the premises. In January 1995 the plaintiff pursuant to the tenancy agreement went into occupation of the premises. 4 On 4 April 1995 the plaintiff was positioned on the balcony of the premises and was leaning against the guardrail. The guardrail gave way and the plaintiff fell about 2.8 metres to the ground below. As a result of the fall the plaintiff sustained serious injuries, mainly to his back. He has since left the Navy and is working as a supervisor in the data entry field. 5 I observed the plaintiff both giving evidence and being cross examined and I formed the opinion he gave frank and truthful evidence. The plaintiff's legal representative Ms Frank was also cross examined. The circumstances which led the plaintiff's solicitor to seek to join the Commonwealth are as follows. (1) As a member of the Defence Force the plaintiff was entitled to subsidised housing which was arranged by and through the DHA. At all times the plaintiff believed that the DHA were the body with whom he was dealing and he drew no distinction between the DHA and the Commonwealth as he regarded them as one and the same.

When the plaintiff moved premises, he lost his written copy of the tenancy agreement. Despite searches, he was unable to locate it.

(2) In June 1996, in the course of the conduct of their inquiries the plaintiff's solicitors received a letter from the solicitors acting for the DHA to the effect that the DHA had an arrangement in place with the Department of Defence whereby the Department of Defence allocated from time to time defence personnel to properties owned or leased by the DHA.

(4) Some time prior to the mediation the plaintiff's solicitor had come into possession of the front and back page of the tenancy agreement in relation to the Christopher Street premises. On the front page of the lease it stated that the plaintiff (the tenant) and the Commonwealth of Australia hereby agree that the tenant will occupy married quarters No 21936 situated at 17/5 Christopher Street, Baulkham Hills as tenant of the Commonwealth upon certain terms and conditions.

(5) In December 2000 these proceedings were listed for mediation. During the plaintiff's opening address at the mediation, counsel referred to a tenancy agreement between the plaintiff and the Commonwealth. At the mediation the legal representatives of the third and fourth defendants indicated it was their intention to join the Commonwealth to the proceedings as a cross defendant. However, it remained the plaintiff's contention that the third defendant was the "effective landlord" and it had not been considered necessary to join the Commonwealth separately in addition to the third defendant. Upon learning of the third and fourth defendants intention, the plaintiff took steps to obtain a complete copy of the tenancy agreement by first issuing subpoena to the third defendant, notwithstanding earlier attempts to obtain all relevant documents from the third defendant. This had not resulted in production of a complete copy of the tenancy agreement.

(7) On 23 July 2001 the plaintiff's solicitors received a complete copy of the tenancy agreement from the DHA. On advice of senior counsel an amended statement of claim was prepared seeking to join the Commonwealth as fifth defendant.

(8) On 20 September 2001 a cross claim was filed against the Commonwealth of Australia by the fourth defendant.

(9) By letter dated 2 October 2001 the Commonwealth acknowledged the plaintiff's intention to join them as a defendant.

(10) On 16 October 2001 the notice of motion was filed seeking to join the Commonwealth and an extension of the limitation period.

The Law 6 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the fifth defendant. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:

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

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

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

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

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

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

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

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

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

8 In relation to ss 60C and 60E of the Act Mason P in The Council of City of Sydney v Zegarac (NSWCA unreported, 26 February 1998) referred to propositions which were uncontroversial. They are: (1) Section 60C confers a judicial discretion.

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. 9 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 stated that the effect of the High Court decision in Taylor's case is that on application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001. 10 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 11 The cause of action accrued on 4 April 1995. The limitation period expired on 4 April 1998. The application seeking the extension of time was filed on 16 October 2001, ie., approximately 3½ years out of time. 12 The plaintiff's reason for not joining the Commonwealth as a defendant to the proceedings at an earlier time was because he had always regarded the Defence Housing Authority, against which proceedings had been instituted before the expiration of the relevant limitation period, and the Commonwealth "as the same thing". The plaintiff submitted that he was still unaware of the relevant legal distinction. This view is understandable. Section 5 of the Defence Housing Act states that the function of the authority is to provide adequate suitable housing for members of the Defence Force and its families in order to meet the operational needs of the Defence Force and the requirements of the Department. Section 59(2) provides that the Authority determine in writing the principles by which it proposes to determine rents and notify the Minister of same. According to s 60 the Minister may make available to the Authority land and housing that are owned or held under lease by the Commonwealth. If there is a contract between the DHA and the Commonwealth in relation to the provision of housing for members of the military services it has not been produced. 13 In Guest v Southern & Anor (NSWSC, unreported 22 September 1995) (which involves the extension of the limitation period under the Motor Accident Act) Studdert J held that the plaintiff was not personally responsible for the delay and considered it to be reasonable for the plaintiff to have relied upon his solicitors to the extent he did. The plaintiff's solicitors were essentially to blame for the delay. Studdert J held that this was a very material consideration and referred to Sophron v The Nominal Defendant (1957) 96 CLR 469 and Stollznow v Calvert (1980) 2 NSWLR 749. 14 It was in this context, that Studdert J said that the function of the provision s 52(3) is to require the claimant to explain that conduct in the course of providing a full and satisfactory explanation for the delay. It is not to provide a weapon which may enable an insurer to defeat the claim because of such conduct. Similar statements have been made in Morton v Jools (1992) ATR 81-164 and McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997) in relation to an extension of time pursuant to s 151D of the Workers Compensation Act. The plaintiff was entitled to rely upon his solicitors to determine the correct defendants. The plaintiff is blameless for this delay.

Extent to which delay caused prejudice - s 60E(b) 15 There is no evidence that had the plaintiff commenced the proceedings within the limitation period that any evidence has been lost.

The time at which the injury became known to plaintiff - s 60E(c) 16 The plaintiff knew that he had injured his back immediately after the accident.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 17 The plaintiff's medical records show that after undergoing an examination at Balmoral Naval hospital on 2 August 1995, he consulted an orthopaedic surgeon, Dr Alder on 14 October 1996. The plaintiff's injuries include fracture of the transverse on several lumbar vertebrae L1, L2, L3 and L4. The plaintiff would have become of the nature and extent of these injuries within a year after the accident when he read this report. In his affidavit the plaintiff deposed that even now he is not aware of the full nature and extent of his future disabilities, but I accept that he knows the broad nature and extent of them. He knows that he can no longer be employed by the Navy so has sought and obtained alternative employment.

Conduct of defendant which induced plaintiff to delay bringing the action - s (60E(f) 18 There is no evidence that the Commonwealth engaged in any conduct with the effect of inducing the plaintiff to delay bringing the action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 19 Between 1995 and 1999 the plaintiff consulted a number of medical specialists. Dr Adler in 1995; Dr Machant in 1995 and 2000; Dr Harrison in 1998; Dr O'Reilly in 1999; Dr Houang in 1999; and Dr Stern in 1999. These reports are available. The plaintiff sought legal advice shortly after the accident occurred but at the time his main focus was to get back to work. 20 The plaintiff took appropriate steps to obtain legal and medical advice. As previously stated delay in bringing proceedings against the Commonwealth cannot be considered an omission on the plaintiff's part. The plaintiff's solicitor instituted proceedings against the first to fourth defendants within the relevant limitation period, but did not do so against the Commonwealth because he or she did not appreciate the distinction between it and the fourth defendant, the DHA. The plaintiff took steps to obtain a full copy of the tenancy agreement as there may have been a clause in the agreement by which the DHA indemnifies the Commonwealth from liability. The agreement suggests that the plaintiff had been a tenant of the Commonwealth, and for this reason, on the advice of senior counsel, the plaintiff's solicitor sought to join the Commonwealth to proceedings. The plaintiff followed the advice of his solicitors. 21 As to whether it is just and reasonable to extend the relevant limitation period, it is for the plaintiff to demonstrate to the court's satisfaction that he has a real cause of action. This was not disputed. 22 It is my view that the fifth defendant has not suffered significant prejudice and that it is just and reasonable to extend the limitation period. After I have taken the matters referred to in s 60E(a) to (h) into account. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under s 60C and E against the fifth defendant. 23 Costs are discretionary. The plaintiff is seeking an indulgence of the court. In Wynter Sheller JA stated that in relation to costs ordinarily a successful applicant, who had allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The fifth defendant was not wholly unreasonable. The plaintiff or the plaintiff's solicitors are to pay the fifth defendant's costs. 24 The orders I make are:

(1) Leave is granted to extend the limitation period against the fifth defendant up to and including 14 January 2002.

(2) The plaintiff is granted leave to add the fifth defendant as a defendant in these proceedings.

(3) Leave is granted to file an amended statement of claim within 21 days. (4) The plaintiff or plaintiff's solicitors are to pay the fifth defendant's costs. Liberty to restore on this issue. **********

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