Ivanisevic v N & T Building Pty Limited

Supreme Court of NSW|2023-12-04|Before: Ierace J

Solicitors: Gorman Jones Lawyers (Plaintiff) Holman Webb Lawyers (First Defendant) Turks Legal (Second Defendant) Eakin McCaffery Cox (Third Defendants) File Number(s): 2019/348556

JUDGMENT

HIS HONOUR: By notice of motion filed on 27 June 2023, Steve and Jennifer Jancetic (the third defendants), sought an order that certain paragraphs of an amended statement of claim (ASoC) of Alojz (Alex) Ivanisevic (the plaintiff), that make a claim against the third defendants, be struck out; alternatively, that summary judgment be given for the third defendants against the plaintiff, as well as an order for costs. In supplementary written submissions, the third defendants clarified that the first order was sought on the basis of r 14.28(1)(a) of the Uniform Civil Procedure Rules (UCPR) and the alternative order pursuant to r 13.4(1)(b) of the UCPR.
The basis of the orders sought is that the ASoC, which was filed and served on the third defendants on 6 February 2023, was statute barred by operation of ss 50C and 50D of the Limitation Act 1969 (NSW) (the Act). Sections 50C and 50D are in Div 6 of the Act, which is titled "Personal Injury Actions". Those sections, and s 50A, relevantly provide as follows: "50A Application of Division - kinds of causes of action (1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. … 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note. The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. … 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased."

The background to the motion

The background circumstances to the motion, as set out in affidavits by the plaintiff (dated 31 August 2023) and Mr Jancetic (parts of one dated 28 July 2023 and 7 November 2023) which were read at the hearing, are as follows.
The third defendants were the occupiers and registered owners of a residential property in Mangerton (the site). In November 2012, the third defendants entered into a building contract with N & T Buildings Pty Ltd, the first defendant, for the construction of a domestic dwelling on the site. In July 2013, during the course of construction, the first defendant requested the second defendant, Clymax Glass & Showers Pty Ltd, to take measurements and provide a quote to install shower screens on a ground level bathroom and two bathrooms on level one. The plaintiff, who was employed as a glazier by the second defendant, attended the site to produce the quote. The second defendant is described by the plaintiff as "my own business", which employed "five to six people".
On 24 July 2013, Mr Jancetic admitted the plaintiff to the site for that purpose. The stage of construction was such that there was no internal stairwell between the ground floor and the first floor. While the plaintiff was ascending a ladder to access the first floor, it collapsed and he fell approximately 2.5m onto a concrete slab (the incident), causing him injuries. The plaintiff claims in the ASoC that the incident was caused by the defendants' negligence and breaches of their duty of care to the plaintiff.
Consequent to the injuries, the plaintiff underwent 18 surgeries, including the amputation of his left leg below the knee on 10 March 2021. He has ongoing health issues relating to his left leg and suffers from anxiety and depression. He claims relief in the form of damages, interest and costs in respect of the incident.
Evidence of the background to the legal proceedings was the subject of the plaintiff's affidavit, two affidavits of his solicitor, Anna Gordon (dated 1 September 2023 and 27 November 2023) and parts of an affidavit by the third defendants' solicitor, Meaghan Williamson (dated 27 June 2023). In a supplementary evidentiary statement signed on 29 April 2022, which is annexed to the plaintiff's affidavit, he provided an account of his awareness of legal proceedings arising from the incident. The effect of these affidavits, along with the supplementary evidentiary statement, is as follows. On the same day as the incident, the plaintiff's wife, who was the manager of the second defendant, notified their workers compensation insurer of the incident. The plaintiff stated that "by 2017", he realised that his leg injury was not going to recover: "I had come to the realisation that this leg of mine was never going to get better and that I should get some legal advice."
In January 2017, that is, approximately three and a half years after the incident, the plaintiff sought legal assistance from a law firm. On his account, the advice that he received was to the effect that "there was nothing that could be done in relation to any claims until [his] surgery was over", and he "accepted that that was the position".
Later in 2017, the plaintiff was receiving treatment from a psychiatrist for anxiety and depression from the incident: "I told my psychiatrist about the circumstances of the accident and my psychiatrist indicated to me that she thought that there was more to the case in terms of liability for negligence than I had been led to believe."
The plaintiff changed lawyers and in August 2017, he had his first conference with his current lawyers, Gorman Jones Lawyers, who filed proceedings in the Workers Compensation Commission on his behalf seeking a lump sum payment for his disability. He had a conference with junior counsel on 1 April 2019 in relation to that claim: "… in the course of giving his instructions about how the accident occurred he then gave me some advice for the first time in relation to the possibility of a claim against [the first defendant]."
On 9 November 2019, the plaintiff filed a statement of claim against the first defendant.
Ms Gordon stated that in June 2022, she received a witness statement dated 14 May 2022 by Mr Neil Ballinger, who was the managing director of the first defendant. He alleged that the ladder used by the plaintiff during the incident was not owned by the first defendant.
In his affidavit, the plaintiff recalled reading Mr Ballinger's statement in May 2022, and stated: "14 Until reading [Mr Ballinger's] Witness Statement, I always believed that the ladder I used on the day of my accident belonged to [Mr Ballinger]. [Mr Jancetic] told me on the way to the hospital that it was not his ladder. [Mr Jancetic] also told [the plaintiff's solicitor] during his conference with her on 29 May 2019 that it was not his ladder and that he assumed it belonged to the builder. It was only after I read [Mr Ballinger's] Witness Statement that it occurred to me that the ladder might belong to [Mr Jancetic]. 15 Only after reading [Mr Ballinger's] Statement did I realise that based on the facts asserted by [Mr Ballinger] in his statement that it was not the ladder of his company, I may not be able to prove that my accident was the fault of [the first defendant] for providing an unsafe ladder. Until I read [Mr Ballinger's] statement I had no reason to believe that the ladder that collapsed under me was owned by the builder. In order to protect my position, I subsequently instructed my legal team to join … the third defendant to the proceedings."
Ms Gordon stated that in June 2022, she wrote to the third defendants inviting them to refute Mr Ballinger's account. On 21 July 2022, she again wrote to Mr Jancetic requesting his response to the content of by Mr Ballinger's witness statement, but received no reply. She said: "Mr and Mrs Jancetic were informed that in the absence of evidence to counter Mr Ballinger's assertions, we would have no choice but to join them in the ongoing proceedings … Since there had been no communication, written or verbal, from Mr or Mrs Jancetic, we were subsequently instructed by the plaintiff to join Mr and Mrs Jancetic in the proceedings."
On 24 November 2022, the Court ordered the plaintiff to file and serve an amended statement of claim to join the second and third defendants by 12 December 2022. On 6 February 2023, the plaintiff filed and served an amended statement of claim, joining the second and third defendants as parties to the dispute. It was nine years and seven months after the incident; five years and six months after the plaintiff sought legal advice from his present solicitors; and three years and two months after he filed the statement of claim against the first defendant.
On 9 June 2023, the third defendants filed a defence to the ASoC in which they pleaded, inter alia, that the claim was not maintainable because of s 18 of the Act, which provides, in respect of certain causes of action founded on negligence or a breach of duty for which damages are sought for personal injury: "(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims."
On 27 June 2023, as mentioned above, the third defendants filed the notice of motion that is the subject of the current proceedings.

The third defendants' submissions

Counsel for the third defendants submitted that the plaintiff knew, or ought to have known, that its case was that the injury was caused by the fault of the third defendants, at the time of the incident or, at the latest, by August 2017, when the plaintiff first consulted his current lawyers for legal advice, so that the three-year post-discoverability limitation period contemplated by ss 50C and 50D of the Act had expired by the time that the ASoC was filed.
In oral submissions, it was argued that the plaintiff knew nine facts at the time of the incident that were sufficient to prove or impute knowledge of the third defendants' fault in causing the injury: 1. Mr Jancetic was present at the property; 2. Mr Jancetic admitted the plaintiff in to the property; 3. Mr Jancetic put the ladder in place from which the plaintiff fell; 4. Mr Jancetic climbed the ladder first; 5. the plaintiff was aware that the ladder was a domestic-type ladder, not ordinarily used in industrial applications; 6. Mr Jancetic did not hold the ladder for the plaintiff; 7. there was no brace holding the ladder at its top or where it touched the first floor; 8. there were no chocks in place at the foot of the ladder to prevent it from sliding out; and 9. the ladder fell.
The facts suggest a duty owed to the plaintiff by the third defendants on the basis that, firstly, it was the occupier of the site; secondly, it was managing the system of work on the site; and thirdly, it directed the plaintiff as to how to get to the first floor. The breaches of those duties were that the ladder fell due to the absence of chocks and an upper brace on the ladder and that Mr Jancetic did not hold the ladder for the plaintiff. Knowledge of the ownership of the ladder was irrelevant to the plaintiff's case as it was pleaded in the ASoC.
The third defendants submitted that its primary position was that for the purposes of s 50D(1), the plaintiff "knew" the relevant facts as of the date of the incident, but conceded that he may not have appreciated their legal significance, such that there was an arguable cause of action against the third defendants, until he obtained legal advice in August 2017. In that regard, the third defendants relied upon Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 per Basten JA (Ipp and Macfarlan JJA agreeing) at [58]: "In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.)"
The third defendants submitted that it follows that the plaintiff took "all reasonable steps" from the time he instructed his current solicitors, in August 2017 and so the three-year limitation period ran from that time. Accordingly, the cause of action was "extinguished" pursuant to s 63 of the Act either by July 2016, being three years from the date of the incident, or by August 2020, being three years from the date the plaintiff sought legal advice, or by May 2022 at the latest, being three years from the date the plaintiff's solicitors spoke with Mr Jancetic.
The third defendants acknowledged that courts are reluctant to determine a limitation defence at an interlocutory stage, but submitted that the plaintiff's claim against it should be struck out pursuant to r 14.28(1)(a) of UCPR because there is no reasonable cause of action disclosed against it. Further, it is the "clearest of cases" with respect to the existence of a limitation defence, such that the issue can be determined on an interlocutory basis: Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 525 (Wardley v WA).

The plaintiff's submissions

The plaintiff submitted that the cause of action against the third defendants was not discoverable until May 2022, because the plaintiff did not "know", for the purposes of s 50D of the Act, that the faulty ladder could have been owned by the third defendants until he drew that inference from Mr Ballinger's witness statement. The plaintiff submitted that the significance of knowledge of the ownership of the ladder was that there is nothing in s 50D to the effect that a plaintiff is confined to run one particular case if he becomes aware of a fact which gives rise to a liability in relation to fault on a different basis.
The plaintiff submitted that if the matter against the third defendants proceeded to trial: "… a court could find that the representations [by Mr Jancetic concerning ownership of the ladder] were untrue and draw adverse inferences against Mr Jancetic when determining liability or on the cross-claim. The same finding, if made at trial, would defeat the limitation defence." However, the plaintiff did not explain how such a finding would overcome the statutory constraint.
As foreshadowed by the third defendants, the plaintiff submitted that it was undesirable to determine a limitation issue in interlocutory proceedings, citing a passage from Wardley v WA at 533, in which the plurality (Mason CJ, Dawson, Gaudron and McHugh JJ) said: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases."
At the eleventh hour of the hearing, the plaintiff raised a fresh issue, submitting that the Court does not have power under rr 14.28(1)(a) and 13.4(1)(b) of the UCPR to make an order for summary judgment on a statutory defence under the Act. The parties were granted leave to file further written submissions on this issue.
The plaintiff noted that the aspect of both rules relied upon by the third defendants is that there was "no reasonable cause of action" and submitted that those words imply that the two rules are concerned with whether the plaintiff has a good cause of action and not whether the defendant has a good defence to it. Accordingly, it was submitted, the third defendants could not satisfy the test as established by General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.

The third defendants' submissions in reply

The third defendants submitted that the effect of s 63(1) of the Act is to extinguish the plaintiff's cause of action and therefore, if the statute bar is established, the cause of action ceased to exist after the limitation period expired.
As to the plaintiff's reliance upon the term "no reasonable cause of action", the third defendants submitted that reasonableness is otiose if the cause of action has been extinguished. The third defendants cited multiple instances of interlocutory proceedings in which pleadings were struck out or dismissed for the reason that they were brought out of time or otherwise statute barred.

Whether a limitation defence can be the basis of a strike out or dismissal of a statement of claim pursuant to rr 14.28(1)(a) or 13.4(1)(b) of the UCPR

In Sampson v Zucker (unreported, Court of Appeal of New South Wales, 11 December 1996) Gleeson CJ (Cole JA and Simos AJA agreeing) dismissed an appeal against a decision of the primary judge to strike out the appellant's statement of claim on the basis that it was statute barred pursuant to s 14 of the Act, which provided that an action on a cause of action of a certain type "is not maintainable" if brought after the expiration of the limitation period. The primary judge applied Pt 9, r 17 of the District Court Rules 1973 (NSW), which was in relevantly similar terms to r 14.28 of the UCPR. However, there was no challenge by the appellant to the primary judge's power to strike out a statement of claim on the basis that it was outside the limitation period, so that issue was not considered.
In Hillebrand v Penrith Council [2000] NSWSC 1058, Austin J considered whether the plaintiff's cause of action could be struck out by reason of it being outside the limitation period, pursuant to the precursor to Pt 13, r 5(1)(b) or Pt 15, r 26(1)(a) of the Supreme Court Rules 1970 (NSW), which were the predecessors to rr 13.4(1)(b) and 14.28(1)(a) respectively. The defendant submitted that the cause of action was statute barred by virtue of s 14 of the Act. His Honour found in favour of the defendant's strike-out application, on the basis that, provided that the limitation period clearly applies and has expired, it is not a reasonable cause of action. His Honour said, at [27]: "There is an obvious distinction between the pleading of a cause of action and the application of a limitation period which means that the cause of action is not maintainable. It is arguable that the words 'no reasonable cause of action' in the two rules have no application where the defect relied upon is the expiry of a limitation period. However, in my opinion the better view is that in an appropriate case if a cause of action is clearly statute barred, the Court may conclude that the cause of action is not reasonable for the purposes of these two rules and may act under the appropriate rule accordingly. The precondition to that conclusion is that on the pleadings, and without reference to any disputed questions of fact, the limitation period clearly applies and has expired. Although counsel have been unable to refer me to any case in which either of the rules has been applied because of the expiration of a limitation period, in principle it seems to me, having regard to the underlying policies of the rules as well as their wording, that they should be available in a very clear case."
Hillebrand v Penrith Council has not been considered at an appellate level, but has been followed in successive first instance cases: Rogers v Rogers [2005] NSWSC 807 per Bell J at [21], referring to Pt 15, r 26 of the Supreme Court Rules; D Tannous No 2 Pty Ltd v Bevillesta Pty Ltd [2009] NSWSC 782 per Hall J at [19]; Kovarfi v BMT & Associates Pty Ltd [2012] NSWSC 1101 per McCallum J at [22]; Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 per Harrison J at [41]; Walsh v State of New South Wales [2018] NSWSC 1480 per Harrison AsJ at [125]; and Gillies v New South Wales [2022] NSWSC 640 per Bellew J at [29].
For the reasons expressed by Austin J in Hillebrand v Penrith Council at [27], I am satisfied that the Court has the power to strike out or dismiss the plaintiff's amended statement of claim, insofar as it pleads that the third defendants are legally liable, pursuant to rr 14.28(1)(a) or 13.4(1)(b) of the UCPR, on the basis that a cause of action that is plainly outside the limitation period is not a reasonable claim of action.

Whether the plaintiff knew, or ought to have known, "the injury … was caused by the fault of the (third) defendant" before 6 February 2020

The parties otherwise agreed that the determination of the notice of motion turns upon the application of s 50D(1)(b) of the Act; that is, whether the plaintiff knew, or ought to have known, "the injury … was caused by the fault of the (third) defendant" before 6 February 2020, which was three years before a sealed copy of the ASoC was served on the third defendants.
The onus in that exercise lies with the moving party on the motion, namely, the third defendants: Baker-Morrison v State of New South Wales at [14]. I note that, although the amputation of the plaintiff's left leg beneath his knee did not occur until 10 March 2021, the plaintiff does not suggest that s 50D(1)(c) was not satisfied in relation to the third defendants until then.
The plaintiff's submission that the question of ownership of the ladder was central to his case is not apparent from the terms of the ASoC, which does not have an assertion as to who owned the ladder, or mention the issue of its ownership at all. Rather, it pleads negligence and breaches of duties of care owed by the third defendants that derive from, among other heads of responsibility, that the third defendants were the owners and occupiers of the site (cl 4), thus pleading the basis of an occupiers' liability, and that they were "conducting [a] business or undertaking at the site within the meaning of s 5 of the Work Health and Safety Act" (cl 5), thus pleading a duty as the manager of a system of work. At cl 15BA of the ASoC, the plaintiff pleaded that the third defendants had a duty "to provide reasonably safe means of access for subcontractors to the first floor of the premises while under construction"; and at cl 15C, that the first and third defendants: "… were negligent in providing a domestic type of ladder rather than an industrial ladder of sufficient strength and/or properly secured to enable access by the Plaintiff to the first floor area of the premises to undertake the work being carried out at the time of injury." The plaintiff listed 48 particulars of negligence and 34 breaches of duties of care owed by the various defendants in the ASoC, none of which involved the ownership of the ladder.
The explanation offered by the plaintiff that it was not apparent to him until the builder denied ownership of the ladder that it may have belonged to the third defendants, and therefore they should be joined, only makes sense if his case against the third defendants, as drafted in the ASoC, incorporates or indirectly relies upon that assertion, which it does not. The plaintiff chose not to respond, in either his written or oral submissions, to the third defendants' submission that the ASoC did not assert, or rely upon, the third defendants owning the ladder.
As to the timing of the plaintiff's knowledge of these aspects of the third defendants' responsibilities that were in fact pleaded, it would appear from his evidentiary statement filed on 4 March 2020, that on the day of the incident, the plaintiff was aware of Mr Jancetic's status and physical acts as alleged in the ASoC: "18 In my experience it was most unusual for the owner of the property being built to be in charge of attending for the purposes of assisting me to obtain access to the first floor of the premises to engage in the measuring that I was required to do on this occasion. … 22 When I arrived, the builder was not in attendance. I was met by the owner of the property [Mr Jancetic] in the driveway and he almost immediately commenced talking about what he was after. 23 [Mr Jancetic] took me through the front door and when we entered, I saw a large vacant room with a large opening in the ceiling of the second storey. [Mr Jancetic] took me to the ground level bathroom where I measured up the first of the three bathrooms. 24. When I finished, we discussed the style and size of the shower screens and mirrors and then he told me the other two bathrooms were upstairs and we returned to the main entrance area … 25 When we came out from the ground level bathroom, [Mr Jancetic] told me then that the two remaining bathrooms were upstairs, and I made a comment to [Mr Jancetic] as to how we were to get up to the second level. He went over and picked up a ladder from a corner of the room where it was resting at a right angle to the wall. The ladder appeared to my observation to be the only means by which the second storey could be accessed. 26 The ladder was an aluminium extension ladder with a lock hook mechanism which operated when the ladder was extended so that two hooks hooked on the step rung when the ladder was in its extended position. This then enabled it to be high enough to reach through the hole in the ceiling where the other bathrooms were located. [Mr Jancetic] picked up the ladder, moved it and placed it in position to that the top section of the ladder extended approximately half a metre into the area above the hole in the ceiling. [Mr Jancetic] then shook the ladder. 27 [Mr Jancetic] then climbed the ladder and I held it. As I had my folder in my right hand, I held the ladder in my left hand while [Mr Jancetic] climbed it. [Mr Jancetic] made it to the top and climbed on to the first level and reached down with his arm extended and I handed him my folder which he placed on the ground. He then moved away from the ladder to the back of the house where the bathrooms were. 28 In my estimate, [Mr Jancetic] weighed about 70 to 80kgs. At that time, I weighed approximately 115kgs. 29 I was left to climb up the ladder by myself. I was unaware that there was anything unsafe about the ladder and Steve had previously climbed it without any difficulty. I climbed the ladder and when I was at a point where my feet were about 2.4 metres of the ground and my upper body had entered the area above the opening on the first floor of the building, the ladder gave way underneath me and I instinctively pushed myself forward on to the floor to prevent myself from falling, however, there was nothing to grab hold of."
In other words, the attribution in the ASoC of the third defendants' legal liability is based upon what was known by the plaintiff as to the status and actions of Mr Jancetic at the date of the incident. In this sense, the realisation by the plaintiff and his legal representatives that the first defendant denied owning the ladder does not explain why the ASoC, as it is drafted, was not filed within the limitation period.
The plaintiff's case against the third defendants rests on facts, propositions and heads of legal liability that were knowable from the date of the incident, and certainly after a reasonable allowance of time for the plaintiff's legal representatives to make inquiries and, if necessary, obtain and provide counsel's advice. Clearly, that date had passed by 6 February 2023, which was about five years and six months after he first consulted his current solicitors.
In the passage quoted from Baker-Morrison v State of New South Wales at [23] above, Basten JA referred to the act of instructing a solicitor being, in most circumstances, sufficient for a prospective plaintiff to satisfy the element in s 50D(1)(b) of taking "all reasonable steps", although in that case there was no question of "whether other limitations prevented the solicitor from taking proper steps in a timely fashion". In Pomare v Whyte (2019) 377 ALR 352; [2019] NSWCA 317, Basten JA (Macfarlan JA agreeing) considered the situation of a plaintiff who contacts a solicitor in a timely fashion but does not receive appropriate advice: "13 … Further, the phrase 'ought to know' has been construed as referring to actual knowledge in the active sense, and not what the person should have been told (the passive sense). Thus, where a claimant has consulted solicitors in a timely fashion, the inquiry is as to what they told the claimant, not what they knew but did not communicate, nor what they should have known had they made inquiries which they did not make. 14 One consequence of the provision so understood is that a negligent solicitor may escape responsibility for a delay in bringing proceedings because the plaintiff will not be out of time and will therefore not have been deprived of the opportunity to obtain recovery for his injury."
Applying the appropriate onus of proof and the test as to legal advice as stated in Pomare v Whyte, the question for determination is whether, in accordance with s 50D(1)(b) of the Act, the third defendants have established that the plaintiff knew or ought to have known of the "fact that the injury … was caused by the fault of the defendant" prior to 6 February 2020. In Pomare v Whyte, Basten JA referred to the meaning of "fault" in that context: "18 There is a question as to whether 'fault' in this context can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may be sufficient to amount to a causal link between the breach of duty and the injury. As noted in Murgolo, s 50D(2) permits an inference that some of the facts identified in subs (1) may only be ascertainable by taking reasonable steps which will often include obtaining legal advice. Assuming that the concept of 'reasonable steps' does not exclude that step, and there is no basis upon which to infer that it does, then it may be accepted that the statutory scheme is consistent with some facts being dependent upon legal (and other professional) advice. Certainly, the fact identified in subs (1)(c) would appear generally to fall within that category. 19 There will be cases, such as a motor vehicle accident, where professional advice is not required to know there is actionable fault on the part of another driver. In many cases fault will be obvious to a lay person who, as a driver, will understand the rules of the road. Each case will turn on its own circumstances."
I accept that the circumstances of the incident are not such that one could reasonably expect that the plaintiff, as a matter of everyday knowledge, would have appreciated that the third defendants were at fault at all for his injuries, let alone in a sense that created a legal liability. Thus, the cause of action was not discoverable until he had the benefit of legal advice as to the potential liability of the third defendants.
There was no oral evidence at the hearing. Both parties relied upon affidavit evidence from the plaintiff as to his state of knowledge and reasons for his actions at various times. The only evidence as to why the plaintiff joined the third defendants when he did is summarised and extracted in [15] and [16] above. It is apparent from those passages that the plaintiff did not state when he first received legal advice to join the third defendants and in neither of Ms Gordon's two affidavits did she state when she first gave legal advice to the plaintiff to that effect, although there is an available inference from those same passages that it was around July 2022, when Ms Gordon believed that Mr Jancetic had failed to respond to her questions concerning Mr Ballinger's witness statement. There is no evidence that the plaintiff was given such legal advice prior to that time, from which one might infer actual or constructive knowledge by the plaintiff prior to 6 February 2020.
To the extent that such advice being provided more than five years after initial instructions might be thought to be a matter for some criticism, the observations by Basten JA in Pomare v Whyte, extracted at [44] above, as to whether the plaintiff is statute-barred as a result, are apposite. It follows that this is not as clear a case for strike out or dismissal as the third defendant has submitted.
As to the undesirability of determining a limitation issue in an interlocutory motion, I note the following statement of principle and consideration of Wardley v WA by Basten JA (MacFarlan and Leeming JJA agreeing) in Murgolo v AAI Ltd t/as AAMI (2019) 101 NSWLR 376; [2019] NSWCA 295: "62 … As the trial judge correctly noted, an application for summary dismissal of proceedings should only be upheld if the question is a clear one and there is no real question of fact or law to be determined. As the primary judge further observed, quite correctly, 'limitation questions should generally not be decided in interlocutory proceedings except in the clearest of cases'. There is, however, a possible qualification to that concern: the limitation period in question in Wardley commenced to run at the time the cause of action accrued, which was not until actual loss or damage was sustained. The calling of evidence as to loss or damage would have been an essential feature of the trial and would not readily have been fully understood absent evidence of the wrongful conduct said to give rise to the loss or damage. The warning in Wardley was expressed in terms of 'limitation questions of the kind under consideration', and need not be applied generically without appropriate reference to the factors in play under the legislative provision engaged in the particular case. Nevertheless, it may be doubted whether the judge gave sufficient weight to the caution necessary on such a summary dismissal application. In the result, a careful analysis of the evidence might have revealed that the insurer's case was deficient in a number of respects in establishing aspects of the knowledge said to have existed in June 2013. Furthermore, for the reasons set out above, there are questions of law involving the interpretation and operation of s 50D, the answers to which are by no means clear cut. 63 Those observations will not apply equally in all cases involving these provisions. There may be a valuable economy of resources to be achieved by disposing of proceedings which are clearly out of time without the need for a full trial. However, this was not such a case. Accordingly, the application should have been dismissed on this alternative basis." (footnotes omitted)
I find that, in the absence of evidence that establishes that the plaintiff first received legal advice to join the third defendants before 6 February 2020, this is not a case that comes within the narrow scope of being one "clearly out of time". It follows that the third defendants' application must fail.

Orders

I make the following orders: (1) The third defendants' notice of motion dated 27 June 2023 is dismissed; (2) Costs of the application to be costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2024

Limitation Act 1969(NSW)ss 50A, 50C, 50D, 63

(2019) 101 NSWLR 376

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