Hoare v SRA of NSW

Peter Hoare (Plaintiff) PARTIES : State Rail Authority of New South Wales (Defendant) JUDGMENT OF : Master Harrison

COUNSEL : Ms J Merkel (Defendant) Mr P Hoare (Plaintiff in person) SOLICITORS : Bartier Perry (Defendant) CATCHWORDS : Summary judgment - extension of limitation period Supreme Court Rules - Part 13 r 5; Part 15 r 26 LEGISLATION CITED : Limitation Act 1969 (NSW) - s 14(1); s 52 Workers Compensation Act 1987 - s 151D(2) Motor Accident Act - 2 52(4) Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 CASES CITED : Salido v Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Holt v Wynter [2000] NSWCA 143; (2000) NSWLR 128 Seib v Morton [2000] NSWCA 139, 26 June 2000 McLean v Sydney Water Corporation [2001] NSWCA 122 Parsons v Doukas [2001] NSWCA 128, (2001) 51 NSWLR 162 DECISION : (1) The plaintiff's notice of motion seeking to extend the limitation period is dismissed; (2) The plaintiff's statement of claim is dismissed; (3) The plaintiff is to pay the defendant's costs

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20967/2001 - PETER HOARE v STATE RAIL AUTHORITY OF NEW SOUTH WALES

JUDGMENT (Summary judgment; extension of limitation period) 1 MASTER: By notice of motion filed 6 March 2002 the defendant seeks an order that the proceedings be stayed or dismissed generally pursuant to Part 13 r 5 of the Supreme Court Rules (SCR); or alternatively, that the statement of claim filed 10 December 2001 be struck out pursuant to Part 15 r 26 of the SCR. The defendant relied on two affidavits of Irene Anne Rusak sworn 5 March 2002 and 13 March 2002. The plaintiff relied on his affidavit sworn 5 April 2002. 2 On 14 May 2002 the matter came before me and I ordered the plaintiff to file and serve a notice of motion seeking an extension of time and any affidavits he intended to rely on by 11 June 2002 and I stood the defendant's notice of motion over to 20 June 2002. A motion and affidavit was handed up on the morning of the hearing. The plaintiff was unable to obtain legal representation and appeared unrepresented on both occasions.

The law on summary judgment 3 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 5 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 6 According to their Honours, this is because:

"It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities" (at 58). 7 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 8 In General Steel Barwick CJ, who heard the application alone stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 9 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 10 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 11 According to Rolfe AJA in Zarb at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241."

The statement of claim 12 In the plaintiff's statement of claim he pleads that he was injured on 3 August 1990 and 7 July 1991 while he was employed by the defendant. It is pleaded: "While employed by State Rail Authority to operate Signal-Boxes, I had no formal training or told of the High amount of failures. My first injury was preventable, 3/8/90 at Chullora a 6 foot Rail timber was left behind in the point's channel rods, this was the cause of the points to fail. I was stood down off the heavy labour, and then placed on light duties, and recommended Removal of Heavy labour (Dr Vij). While on Light Duties 1/3 less work but same Heavy frame 7/7/91 at punchbowl, I was whipped off the frame and smashed into the desk behind and ended up on the floor. I was paid 10- day's workers compensation. Then rejected without being told why. Approx 20/11/91 I was set up and dismissed with armed thug's that had gun's in there hand's, I was Assaulted and threaten with life it self, then dragged in front of train's across train yard then thrown off premises. Then in February, 1992, I was threaten again by the same managers that hired the thug's." 13 The plaintiff also pleads that he was wrongly dismissed by the defendant. The statement of claim pleads: "Wrongful Dismissal was overturned by the then Transport Appeal Board, and then part heard in the industrial relation commission, found no jurisdiction and a common law procedure Constructive Dismissal - in February I was verbal and medical certificate was ripe up in front of me and then threaten I'd never work again, I was to scared to take up my legal position, then forgot the memory until approx 1998." 14 The plaintiff seeks damages for "real loss of income" at the rate of $50,000 per annum for 30 years ($1.5M) and for chronic post traumatic stress disorder, pain and suffering and memory losses in the sum of approximately $780,000. 15 The plaintiff has taken prior proceedings in the Industrial Relations Commission and local court at Queanbeyan and the Workers Compensation Court to which I shall briefly refer.

The Industrial Relations Commission 16 On 19 November 1997 Deputy President Drake in the Australian Industrial Relations Commission dismissed the plaintiff's application to lodge an application for relief in respect of his termination of employment out of time. The plaintiff lodged a notice of appeal on 5 December 1997 against the decision of Deputy President Drake. On 6 January 1998 Justice Munro heard an application by the plaintiff to stay the decision of Deputy President Drake. On 15 January 1998 Justice Munro refused the plaintiff's application for a stay and stated on page 4 of the decision: "I consider that the appropriate course is to desist from pursuing the appeal, and to accept that there is no useful jurisdiction available in this tribunal." 17 The plaintiff's appeal led from the decision of Deputy President Drake to the Full Bench of the Australian Industrial Relations Commission (Justice Munro, Senior Deputy President Harrison and Commissioner Wilks). The Full Bench stated (at p 3):

"We are satisfied that there is no answer in any of the material to the proposition put to Mr Hoare by Munro J to the affect that there is no jurisdiction in the Commission to hear and determine his application for relief even if an extension of time were granted. Nor is there any adequate basis advanced by Mr Hoare for an extension of time to be granted." 18 The appeal was dismissed.

Local Court proceedings at Queanbeyan 19 On 11 June 1998 a statement of liquidated claim was issued by the plaintiff in the local court at Queanbeyan claiming money owing by the defendant to the plaintiff for wages not paid upon termination of employment with the defendant on 10 November 1991. The defendant defended the action on the ground that the claim was statute barred under s 14(1) of the Limitation Act 1969 (NSW). 20 On 14 September 1998 the plaintiff filed a notice of motion in the local court seeking an extension of the limitation period. 21 On 19 October 1998 MacDonald LCM declined to grant the order sought by the plaintiff in the notice of motion.

Workers Compensation Court proceedings 22 On 28 October 1998 the plaintiff commenced proceedings in the Workers Compensation Court of New South Wales at Queanbeyan claiming compensation for injury over a period from 9 September 1985 to 20 November 1991 whilst the plaintiff was in the employ of the defendant. The plaintiff's injuries were alleged to have been caused by constant and repetitive work as a signalman which caused pain in his lower back and pathological disease at L5/S1. The plaintiff was seeking compensation under ss33 and 37 and ss 60 and 66 of the Workers Compensation Act. 23 On 9 June 2000 the compensation court proceedings were part heard in the Workers Compensation Court at Queanbeyan and adjourned to 4 December 2000. On 3 November 2001 the plaintiff filed a notice of motion seeking to file a notice of discontinuance. On 4 December 2001 the plaintiff's application was struck out by Her Honour Judge Ashford. 24 It is arguable that the plaintiff has not taken common law proceedings for negligence against his employer. However, the action is statute barred. The injuries which the plaintiff pleaded in the statement of claim occurred on 7 July 1991, 20 November 1991 and February 1992. The limitation period expired in February 1995 at the latest. However, the plaintiff pleaded that he "forgot memory" until approximately 1998. At present there is no evidence to suggest that the plaintiff suffered a disability under s 52 of the Limitation Act 1969 so that the running of time was postponed. 25 The plaintiff has now sought an extension of time to hear the matter. It appears that his cause of action arises from a work accident so an extension of time needs to be granted pursuant to s 151D of the Workers Compensation Act 1987. 26 Section 151D(2) of the Act provides: "a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." 27 The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. Salido was recently considered by the Court of Appeal in light of the intervening High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 and Seib v Morton [2000] NSWCA 139, 26 June 2000. In Wynter the Court of Appeal held that the effect of the High Court decision in Taylor is that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 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. 28 In Salido, at 532 Gleeson CJ set out the principles to be considered in the exercise of the discretion. These principles were further discussed in Parsons v Doukas [2001] NSWCA 128, (2001) 52 NSWLR 162. Although these principles refer to s 52(4) of the Motor Accident Act, they are equally applicable to s 151D(2) of the Workers Compensation Act. 29 They are: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's legal representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from the plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 30 In support for leave to commence proceeding, the plaintiff deposed that he was employed to operate a steam age signal box that dated back to the 1830's, then made from second hand equipment as mention in "Signalling in the age of Steam" by Michael A Vanns. On 3 August 1990, and witnessed by a signal electrician on duty, the channels to the points were booby trapped from working and the plaintiff was stood down by the inspector in charge, lost his job and was held liable. The contents of the latest affidavit are difficult to interpret but I think that the plaintiff is saying that a witness approached him in a shopping centre in 2000 to say that the channels to the points were booby trapped. 31 There is no evidence from the witness nor an expert's report to show that the plaintiff has a case to advance on liability. However, there is medical evidence to support his case. A supplementary medical report of Dr Peter Conrad dated 12 October 2001 which states that as a result of his accidents and conditions at work the plaintiff has sustained a 25% permanent impairment of his neck, a 25% permanent impairment of his back and a 15% permanent loss of efficient use of the left arm below the left elbow. Dr Conrad opines that there is no evidence of pre-existing degenerative disease or previous accidents and therefore these impairments and losses relate directly to the accidents and conditions of work with the defendant which all appear to have been sustained after 1987. 32 It is my view that on the evidence as it now stands it is not just and reasonable to grant leave to commence proceedings. Also it is my view that the plaintiff's statement of claim as currently pleaded is doomed to failure. It is hopeless and should be dismissed. I dismiss the statement of claim. 33 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs. 34 The orders I make are:

(1) The plaintiff's notice of motion seeking to extend the limitation period is dismissed.

(2) The plaintiff's statement of claim is dismissed.

(3) The plaintiff is to pay the defendant's costs. **********

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