Murgolo v AAI Ltd t/as AAMI

Factual background

On 19 January 2012, Mr Murgolo was working as a labourer or excavator driver on a building site at Miranda Public School. He was working at the direction of Proline. Proline was operating the building site as a subcontractor pursuant to a contract made with Class Welding (NSW) Pty Ltd (ACN 125 758 769) ("Class Welding (NSW)") on 28 September 2011. That contract was for the supply, fabrication and installation of metal roofing using devices known as "acrow props."
It is alleged that an unsecured acrow prop fell or "dismantled" and struck Mr Murgolo on the left shoulder and arm.
Records show that at that time the directors of Class Welding (NSW) (Mario Peter Zammit and Mario Albert Zammit) were also the directors of Class Welding, the first defendant in these proceedings.
By statement of claim filed on 19 February 2013, Mr Murgolo commenced proceedings against Class Welding ("the 2013 proceedings"). Pursuant to s 347 of the Legal Profession Act 2004 (NSW), Mr Murgolo's solicitor Zac Tayyar from Fortis Law Group certified that "…. There are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success."
The verifying affidavit to the 2013 statement of claim was not sworn by Mr Murgolo as the plaintiff. Rather, it was also sworn by his solicitor Mr Tayyar who swore that: "1. I am the solicitor for the plaintiff. 2. I believe that the allegations of fact in the statement of claim are true."
On 25 June 2013, Mr Murgolo's solicitor filed a notice of motion seeking orders that leave be granted for Mr Murgolo to join GIO General Limited as a defendant in the proceedings pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and that leave be granted to substitute GIO General Limited for Class Welding pursuant to UCPR r 6.29(b). Leave was also sought to file an amended statement of claim.
In support of Mr Murgolo's motion, Mr Tayyar swore an affidavit on 25 June 2013 in which he deposed that he had known that Class Welding was in liquidation prior to filing the statement of claim and that he was advised by the liquidator that Employers Mutual NSW Limited was the insurer of Class Welding at the time. He later learned that Employers Mutual was Class Welding's workers compensation insurer and not the Public Liability Insurer. Further enquiries had revealed that GIO General Limited was the public-liability insurer for Class Welding at the relevant time.
Mr Tayyar further deposed that on 12 March 2013 he had sent a letter to GIO Limited's solicitor, Moray and Agnew, serving the statement of claim, the statement of particulars, the plaintiff's general case management document and a copy of a certificate of currency noting that the matter was further listed for mention on 29 May 2013 and that a defence needed to be filed within 28 days.
On 11 April 2013, Moray and Agnew, the solicitors which represent GIO Limited, responded to this letter by seeking service of the plaintiff's medical evidence and documents in support as required by UCPR r 15.12 as well as proof of formal service.
On 1 May 2013, Moray and Agnew wrote a further letter to Mr Tayyar seeking further and better particulars noting that it was assumed that Mr Tayyar would allow a reasonable time after the provision of these answers to file a defence.
On 26 June 2013, David Howarth at Moray and Agnew wrote to Mr Murgolo's solicitor again. The following documents were enclosed: 1. A letter from Proline addressed to Class Welding (NSW) dated 21 September 2011 in relation to the project at Miranda Public School attaching documents including the trade contract; 2. A Trade Contract Agreement - schedule dated 28 September 2011 for a contract between Proline and Class Welding (NSW); 3. Safe work method statement completed by Class Welding (NSW) and submitted by Proline dated 28 September 2011; 4. Subcontractor/supplier safe work method statement checklist dated 20 October 2011 completed by Proline in relation to safe work method statement completed by Class Welding (NSW).
After enclosing the above documents the letter went on in these terms: "Our understanding, based on the material listed above and enclosed with this letter is that the works carried out at the Miranda Public School were carried out by Class Welding (NSW) Pty Limited rather than the original defendant sued, that being Class Welding Pty Limited. The two companies are different companies despite sharing and address and office holders. The 'NSW' company is not in liquidation. In the circumstances the proposed amendment to substitute GIO General Limited for the existing defendant is of little utility but ultimately that is a matter for you to resolve on instructions from your client. We do not expect the court to be concerned about the underlying liability issue and do not propose to tender this evidence on the hearing of the plaintiff's motion next week. We expect our position to be that it is a matter for the plaintiff to persuade the court that there is a GIO policy which responds to the risk sued upon and that the orders sought should be granted. You should anticipate however that if GIO is joined as a defendant and it is subsequently established to the court's satisfaction (or to your satisfaction before then) that it was Class Welding (NSW) Pty Limited that was carrying out the works and not Class Welding Pty Limited that GIO will require payment of its costs incurred in the proceedings."
On 26 June 2013 Mr Tayyar replied to Mr Howarth in these terms: "We refer to your letter of even date. You are obliged under sections 56-58 of the Civil Procedure Act not to engage in tactics that are inconsistent with the just, cheap and quick disposition of proceedings. Please confirm which company was undertaking the work on the day of the injury, Class Welding (NSW) Pty Limited, Class Welding Pty Limited or both; and their respective roles. Should you fail to provide that information, we shall seek directions that you do so before the Common Law Duty Judge; and further seek an order for indemnity costs. We demand your written response by close of business tomorrow 27 June 2013; this letter will be tendered as part of any such application. We respectfully remind you that tactics of ambush no longer form part of the law in New South Wales based on a strong line of authority, especially from the Court of Appeal."
On 27 June 2013 Mr Howarth wrote a further letter to Mr Tayyar in these terms: "We reject the proposition, if that is the proposition that you advance, that we are acting otherwise in accordance with our duties under the Civil Procedure Act. With respect, the so-called 'tactics of ambush' never form part of the law of NSW and your reference to that proposition is inapt to say the least. What has happened in this case is far from any form of ambush. An ambush would be to have allowed the plaintiffs to continue to make what we consider to be errors in terms of the prosecution of the case and to wait for the trial and then set out to establish that it was Class Welding (NSW) Pty Limited that was doing the work and not the currently named defendant. What we have done instead is to provide you with all of the contemporaneous records available to us. Our interpretation of these records is that it was Class Welding (NSW) Pty Limited that was doing the work. However, it is not our interpretation that matters since we do not act for the plaintiff and we do not act for Class Welding (NSW) Pty Limited. At the moment you assert that it was Class Welding Pty Limited that was doing the work. We do not know the basis upon which you make those assertions and we do not know what evidence you had available to you when you commenced the proceedings. We assume it was sufficient for you to declare that the claim had reasonable prospects of success but as we have not seen any such evidence we simply cannot know. If the plaintiff was to successfully join GIO General Ltd ('GIO') in place of Class Welding Pty Limited, we anticipate that we would file a defence suggesting that it was Class Welding (NSW) Pty Limited that was doing the work given that the documents we supplied to you yesterday all suggest that was the position. If you were to provide us with evidence that suggested otherwise we might have to reconsider that position. Our letter yesterday was intended to alert you to what we anticipate will be our position and to the possibility that the plaintiff might have sued the wrong defendant. It remains though a matter for the plaintiff to decide which defendant or defendants he wishes to sue and which evidence he chooses to rely upon or reject. As we have indicated we do not know what evidence you relied upon in suing Class Welding Pty Limited. It could well be that the evidence you relied upon is entirely contrary to what we sent you yesterday, but until we see it, we simply do not know. Our position in the proceedings is that at present we act for GIO. GIO is not yet a party to the proceedings. We do not act for Class Welding (NSW) Pty Limited and nor are we likely to act for that company on our present understanding of the situation. We are not in a position to make concessions or admissions for a company we do not represent whether you 'demand' them or otherwise. That is why, when we wrote you yesterday we indicated that it was for the plaintiff to make decisions about how best to proceed, but that if it transpired that the wrong decisions were made, there might be cost ramifications as a result. Advising you of that possibility in advance hardly warranted accusations of ambush and breach of our duties under the Civil Procedure Act, and to the extent those accusations were made, they should be withdrawn. Please refrain from making injudicious and intemperate accusations, threats and demands in future correspondence, they are all most unwelcome and entirely unnecessary." (Emphasis added.)
There was no evidence before me that there was any reply to this letter.
On 27 August 2013, Mr Murgolo was given leave to amend the statement of claim substituting Class Welding for Class Welding (NSW) as the defendant.
No defence was ever filed by Class Welding (NSW) in the 2013 earlier proceedings.
On 10 March 2014, Mr Murgolo obtained default judgment against Class Welding (NSW) in the sum of $946,242.96 as assessed by Hidden J.
Class Welding (NSW) was not insured. It was deregistered with ASIC on 17 November 2017. This judgment in the sum of $946,242.96 thus remains unsatisfied.
Class Welding was insured. It was deregistered with ASIC on 10 August 2016. By the operation of s 601AG of the Corporations Act Mr Murgolo may recover from Class Welding's insurer an amount that was payable to the company under the insurance contract if Class Welding had a liability to him and the insurance contract covered that liability immediately before deregistration.
On 11 March 2016, there was a creditors meeting in respect of the debts owed by Class Welding (NSW). The minutes of that meeting show that it was chaired by Marc Galler. The only other persons in attendance were another employee of the chartered accountants and an observer as well as the two directors of Class Welding (NSW) Mario Peter Zammit and Mario Albert Zammit. The following is included in the notes of that meeting: "1. In January 2012, which company conducted work for Proline Building Commercial proprietary limited (Proline) at Miranda Public School? Mario Albert Zammit (MAZ) advised the meeting that Class Welding Pty Limited conducted the work. 2. A copy of the sub-contract between Proline and Class Welding Pty Limited was shown to the Directors. It was noted to the directors that the sub-contract had Class Welding Pty Limited's name but Class Welding (NSW) Pty Limited's ABN. The Directors were asked to explain this discrepancy. MAZ advised that it was a clerical error putting Class Welding (NSW) Pty Limited's ABN on the subcontract. Mario Peter Emmett (MPZ) advised that they had used the wrong template when they filled out the sub-contract form. 3. Other than the sub-contract, what other evidence showed Class Welding Pty Limited was the subcontractor working for Proline. MAZ advised the following were indicators the Class Welding Pty Limited was the subcontractor working for Proline: Invoices were issued under the name Class Welding Pty Limited; Payroll records showed Class Welding Pty Limited's employees were working on the site; and Proline made payments into the Class Welding Pty Limited's bank account. 4. What work was Class Welding (NSW) Pty Limited doing at the time of the accident in January 2012? MPZ advised the Class Welding (NSW) Pty Limited was not supposed to be operating at the time of the accident. Class Welding (NSW) Pty Limited was set up to take over operations around June 2012. Adequate insurances were not set up for Class Welding (NSW) Pty Limited around the time of the accident and therefore could not be let onto Proline's site for it to be operating."
On 20 September 2017 Mr Murgolo received advice from senior counsel in light of this information.
On 25 May 2018, Mr Murgolo commenced proceedings by way of statement of claim against AAI and Proline arising out of the same workplace accident. In relation to AAI, the 2018 proceedings plead and rely upon the identical circumstances that Mr Murgolo relied upon in commencing the 2013 proceedings. The 2018 statement of claim asserts (at [9]) that it was Class Welding which entered into the contract with Proline and had done so "inadvertently describing itself as Class Welding (NSW) Pty Limited and it had properly intended to enter into the contract in the contract in the corporate identity of Class Welding Pty Limited".
In his affidavit sworn on 12 February 2019 Mr Murgolo deposed that he instructed Mr Tayyar in about February 2012 that the people on the site supplying the metal roofing worked for Class Welding. He stated that he instructed Mr Tayyar to file a statement of claim against Class Welding and that sometime later he received a call from Mr Tayyar who told him that "we had sued the wrong Class Welding" and that Mr Tayyar was "going to change the name on the Claim".
Mr Murgolo further deposed that after default judgment was entered, whenever he contacted Mr Tayyar about his money he was told "it is a hard case and we are working hard on it". He was subsequently informed that Class Welding (NSW) was not insured and had no assets. Mr Murgolo stated that he was aware there was going to be a liquidators meeting and that "sometime after this meeting, Zak advised me that he would now pursue a claim against Class Welding".
Finally, Mr Murgolo deposed "If I had been advised in 2013 that the correct defendant to maintain the proceedings against was Class Welding I would not have given instructions to substitute the defendant to Class Welding NSW."
In his affidavit sworn on 12 February 2019 Mr Pierre Safi, the principal of Fortis Law Group, deposed that Mr Tayyar was under his employment as a senior associate at the relevant time but that since one August 2018 he was no longer employed by Fortis Law group. Mr Safi states: "Mr Tayyar's departure was not under amicable circumstances. I have no contact with Mr Tayyar nor have we communicated since 1 August 2018. He is currently receiving Workers Compensation."
The Fortis Law Group acts for Mr Murgolo in the 2018 proceedings.

Consideration

The test to be applied by a court when considering summary dismissal is clear. It has been variously expressed as a claim being "so obviously untenable that it cannot possibly succeed", "manifestly groundless", or "so manifestly faulty that it does not admit of argument": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129. In Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 Dixon J observed that before summary intervention can be justified, the case must be a very clear one and there must be no real question of fact or law to be determined.
In Agar v Hyde (2000) 201 CLR 552 Gaudron, McHugh, Gummow and Hayne JJ stated the following at [57]: "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 [footnote reference: General Steel Industries and Dey], 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".
In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal (Beazley P with whom Macfarlan and Ward JJA agreed) observed at [3]: "The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])."
Limitation questions should generally not be decided in interlocutory proceedings except in the clearest of cases: Wardley v State of Western Australia (1992) 175 CLR 514 at 525. I am satisfied that I would only grant AAI's motion if it can clearly establish that the proceedings have been brought against them out of time. I am also satisfied that in this case the question turns on the meaning of s 50D(1)(b) of the Limitation Act rather than any disputed evidence. If I accept AAI's construction of s 50D(1)(b) then the factual issue of what was said at the creditors' meeting on 11 March 2016 is not relevant.
It is with these principles in mind that I consider AAI's motion that the proceedings against it be dismissed on the basis that they are statute barred.
Section 50C(1)(a) of the Limitation Act relevantly provides that an action for damages that relates to personal injury to a person is not maintainable if brought after the expiration of a limitation period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff. Section 50D(1) provides that a cause of action is discoverable by a person on the first date that the person knows or ought to have known each of three specified facts as set out in sub-sections (a), (b) and (c).
Mr Murgolo's concessions for the purposes of the motion that the proceedings have been brought outside the three-year period from when he knew the facts in s 50D(1)(a) (that the injury concerned has occurred) and s 50D(1)(c) (that the injury was sufficiently serious to justify bringing the proceedings) were properly made.
As regards s 50D(1)(a), Mr Murgolo asserted in his evidentiary statement dated 2 October 2018 that he had a conversation with Mr Stephen Brennan of Proline on the day of the incident in which he said to him, inter alia, "I am seriously injured". He saw a medical practitioner that day and the following day told Mr Brennan that he was unable to attend work because he was injured from the incident the day before. He subsequently completed a Westpac Income Protection - First Notice of Claim nominating the date of the injury as being 19 January 2012 and that he suffered a "tear of tend[ons] to left shoulder" and could not lift his left arm.
As regards s 50D(1)(c), Mr Murgolo particularised his injury and claim in his Statement of Particulars dated 19 February 2013. He claimed for various injuries to his left arm and shoulder arising in surgery as well as psychological injury. Putting to one side who the injury was caused by, I am satisfied that Mr Murgolo "knew" that any damages that could be recovered would be large enough to be worth the time and trouble of suing.
That leaves the only remaining issue of whether s 50D(1)(b) is satisfied in this matter. This turns on the question of when Mr Murgolo "knew" or "ought to have known" that the injury was caused by the fault of Class Welding. The meaning of "know" in this statutory context was considered by Basten JA in Baker-Morrison. His Honour (with whom Ipp and Macfarlan JJA agreed) observed the following at [45] "… In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person 'knows' (or ought to 'know') the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings".
Basten JA was therein considering the question of whether knowledge of "fault of the defendant" in s 51D(1)(b) should be construed as knowledge of a cause of action against the defendant. His Honour had earlier stated at [28]: "In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."
And at [39]: "… there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action …"
In Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167, the same approach was taken by the Court of Appeal on the question of the identity of the defendant(s). It was held (at [38]-[39]) that it is not sufficient for the purposes of s 50D(1)(b) that the plaintiff knows the facts necessary to establish the fault of the defendant; he or she must also know that, as a matter of law, that person is liable to pay damages.
In State of NSW v Gillett [2012] NSWCA 83, the Court of Appeal empanelled five judges to consider whether Baker-Morrison was wrong, as was contended by the State. The State's argument was that for the purposes of s 50D(1)(b), the necessary knowledge is of "facts" sufficient to establish that a person has a cause of action and not whether the defendant is legally liable. Beazley P with whom the other members of the court agreed, held at [94] and [95]: "In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between 'fault' and injury. Section 60I involves a connection between an act or omission and injury. The respondent's submission, noting the requirement in s 50D(1)(b) that the fault be that of the defendant, who may not be the actual wrongdoer, supports this construction. There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word. A case where a defendant is liable pursuant to a non-delegable duty of care is one example where this could be said to be the case. A defendant only liable pursuant to statute, such as the Nominal Defendant, is another. The State, liable under the Crown Proceedings Act 1988, as is the case here, is another example. Yet another is a case of malicious prosecution, where the identity of the prosecutor is pivotal to the determination of the elements of malice and reasonable and probable cause: see A v The State of New South Wales [2007] HCA 10; 230 CLR 500. The factual circumstances in Bostik provide a further example where a plaintiff may not know who the employer is and therefore whether injury was the fault of a particular defendant. This is not so unusual. Many cases come before the courts where a plaintiff is unaware of the identity of the actual employer."
Campbell JA further observed at [131]: "For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being 'fault', actionability is likewise one of the 'key factors necessary to establish liability' that must be known before s 50D(1)(b) is satisfied."
Another decision of the Court of Appeal concerning the meaning of s 50D(1)(b) of the Limitation Act is Baggs v University of Sydney Union [2013] NSWCA 451. That case concerned when the plaintiff "knew" that the injury was caused "by the fault of the defendant". Ms Baggs brought proceedings for injuries she sustained following a fall down a flight of stairs during a fire drill in the Wentworth Building at the University of Sydney on 21 May 2003. Within days of the fall she lodged a workers' compensation claim against the University. It was not until 31 March 2010 that she was advised that it was in fact the Union, rather than the University, which was the occupier of the building in 2003. Her evidence was that at all times she believed that the Sydney University Union was at fault but she also thought that the Union was a part of the University of Sydney.
Meagher JA (with whom Macfarlan and Hoeben JJA agreed) noted (at [13]) the observations of Beazley P in Gillett at [94]-[95] (extracted above at [70]) and held (at [28]) that the primary judge erred in concluding that Ms Baggs knew that her injury was caused by the fault of the Union. His Honour went on to state: "Ms Baggs' understanding was that the Union, as part of the University, owned the building and was at fault. In the language of Baker-Morrison, she did not know that the Union was a separate legal entity from the University or that the Union as distinct from the University occupied the building and was responsible for the care and control of the fire stairs. Each was a matter which Ms Baggs was required to know as a factor necessary to establish legal liability on the part of the Union."
More recently in Smith v Hunter New England Local Health District [2016] NSWSC 248 Adamson J summarised the principles in relation to s 50D(1)(b) as follows at [58]: "Although the Act speaks in terms of a 'fact', the fact in s 50D(1)(b) is one in respect of which a 'legal evaluative judgment appears to be required': Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454 (Baker-Morrison) at [41] per Basten JA, Ipp and Macfarlan JJA agreeing. Accordingly, the 'fault' in s 50D(1)(b) is legally actionable fault, as distinct from moral culpability: Baker-Morrison, per Basten JA at [39]. Section 50D must be read in a broader context, which includes s 347 of the Legal Profession Act 2004 (NSW), which requires a solicitor to certify as to the reasonable prospects of success of a claim for damages: per Basten JA at [43]".
None of these decisions concerned the question that arises in this matter, although the principles derived from them concerning the meaning of "know" in s 50D(1) are pertinent.
The first of the two questions to be determined is at what time did Mr Murgolo first believe that a case against Class Welding (as opposed to Class Welding (NSW)) could be established on the balance of probabilities (to adopt the meaning of "know" as explained by Basten JA in Baker-Morrison at [45])? If it was within the discoverability period then the second question is, what is he relevance of his solicitor's actions and the letters from GIO on 26 and 27 June 2013 to the question of when that fact was discoverable?
Turning to the first question, I am satisfied that Mr Murgolo believed that a case against Class Welding could be established on the balance of probabilities by the commencement of the 2013 proceedings at the latest. This means that I am satisfied that he knew of the relevant facts in s 50D(1)(b) of the Limitation Act at least five years prior to the commencement of the 2018 proceedings. I have based this finding on the following evidence.
Mr Murgolo commenced proceedings against Class Welding on 19 February 2013. It is to be inferred that Mr Murgolo was given advice as to the prospects of success of that claim and that Mr Murgolo subsequently gave instructions to his legal representatives consistent with that advice to commence the proceedings. Section 347 of the Legal Profession Act 2004 required Mr Murgolo's solicitor, Mr Tayyar, to certify that there were reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages have reasonable prospects of success. Although it was again Mr Tayyar, as opposed to Mr Murgolo, who swore the affidavit verifying that the allegations of fact in the statement of claim were true, it is again to be inferred that he did so based on instructions from Mr Murgolo.
There is other contemporaneous documentation to establish that Mr Murgolo believed at that time that the injury was caused by Class Welding. For example, he filed a General Case Management document on 19 February 2013 signed by his solicitor which specifically pleaded that it was Class Welding which owed a duty of care to him and breached that duty of care and it was due to Class Welding's negligence that he suffered serious injury, loss and damage.
Even more problematic for Mr Murgolo is the fact that more recently, in his evidentiary statement dated 2 October 2008, he states that he understood back at the time of the accident that it was Class Welding (rather than Class Welding (NSW)) which was contracted by Proline to erect the scaffolding and acrow props at the Miranda Pubic School. On Murgolo's own case he submits that he knew Class Welding was the defendant as at the date of the accident.
Mr Murgolo's argument on this motion for summary dismissal was that he did not really know that Class Welding was the defendant until the creditors' meeting on 11 March 2016 at the earliest. The difficulty with this contention is that it requires the court to make a finding that although Mr Murgolo "knew" that Class Welding was the defendant by 19 February 2013 at the latest, that he subsequently changed his position and, for the purposes of s 50D(1)(b) of the Limitation Act, he "un-knew" it by the time his solicitor amended the 2013 statement of claim to remove Class Welding as the defendant in the proceedings on 25 August 2013.
Although it is to be accepted that a plaintiff can be wrong about who the defendant should be either prior to proceedings being commenced or during them, I am unable to accept the plaintiff's position that he "knew" the relevant fact shortly after the accident, apparently "un-knew" it at the time that Class Welding was removed as the defendant in the 2013 proceedings and then later still "knew" it again sometime after the creditors' meeting in 2016.
In circumstances where I am satisfied that Mr Murgolo knew the identity of Class Welding as the defendant by 13 February 2013 at the latest, the second question is whether the actions of his then solicitor, or the solicitor for GIO or the directors of Class Welding (NSW) are relevant to the question of that discoverability.
Reliance was placed by counsel for Mr Murgolo on the exchange of correspondence between Mr Murgolo's solicitor and Moray and Agnew on 26 and 27 June 2013 extracted above at [18]-[21] It is common ground that at that time documents were provided to Mr Murgolo's solicitor which supported the proposition that Class Welding (NSW) might be the relevant party to the contract with Proline rather than Class Welding. In the 27 June 2013 letter to Mr Tayyar, Mr Howarth drew Mr Tayyar's attention to the fact that the contract and other contemporaneous documents named Class Welding (NSW) as the contracting party with Proline rather than Class Welding. After suggesting to Mr Tayyar that it appeared to the solicitor for the GIO that Mr Murgolo may have sued the wrong party, the letter goes on to state that "it is not our interpretation that matters since we do not act for the plaintiff and we do not act for Class Welding (NSW) Pty Limited". The 27 June 2013 letter to Mr Tayyar goes on to state: "We do not know … what evidence you had available to you when you commenced the proceedings. We assume it was sufficient for you to declare that the claim had reasonable prospects of success but as we have not seen any such evidence we simply cannot know."
After indicating that GIO's position, in the event that it was joined as a defendant, would be to file a defence in reliance upon the documents already provided to Mr Tayyar, the letter goes on to state that "[i]f you were to provide us with evidence that suggested otherwise we might have to reconsider that position." Mr Howarth then repeats, "[i]t remains though a matter for the plaintiff to decide which defendant or defendants he wishes to sue and which evidence he chooses to rely upon or reject". It is further stated, "[a]s we have indicated we do not know what evidence you relied upon in suing Class Welding Pty Limited. It could well be that the evidence you relied upon is entirely contrary to what we sent you yesterday, but until we see it, we simply do not know."
The solicitor for GIO had no instructions to act for either Class Welding or Class Welding (NSW). What he did have were the documents which disclosed that Class Welding (NSW) was stated to be the contracting party with Proline. Mr Tayyar was informed by Mr Howarth that it was a matter for the plaintiff to make decisions about how best to proceed rather than for the GIO.
It is to be inferred that doubt must have arisen after that time on the part of Mr Tayyar as to the identity of the defendant in the proceedings. There is no evidence that he responded to the letter from GIO. The evidence discloses that the next step taken was to tell Mr Murgolo that he had sued the wrong party and to discontinue proceedings against Class Welding and commence them against Class Welding (NSW). There is no evidence before the court, and nor was it suggested there would ever be, as to why, presuming any doubt existed at that time on the part of Mr Tayyar, he did not add Class Welding (NSW) as a second defendant in the 2013 proceedings so that the issue of the correct defendant could have then been resolved as between those defendants. But that did not happen. Instead, the proceedings were discontinued as against Class Welding and Class Welding (NSW) was substituted as the defendant as opposed to added as a second defendant.
I have considered the question of whether the fact that Mr Murgolo may have been misled by his then solicitor into discontinuing proceedings against Class Welding in August 2013 is relevant to the discoverability of the identity of the defendant in this matter. I am satisfied that it is not relevant. On the evidence before me, most of which was not in dispute, Mr Murgolo first "knew" that Class Welding had caused the injury he suffered shortly after the accident. The fact that he was later advised by his solicitor to discontinue proceedings against Class Welding does not alter that fact.
As for the notes of the creditor's meeting on 11 March 2016, I am satisfied that the only relevance of them is that they triggered the 2018 proceedings. It was not suggested that Mr Murgolo would or could rely on any fraudulent concealment on the part of Class Welding in this matter: see s 55(1)(b) of the Limitation Act.
I have not been asked to consider a separate question under r 28.2 UCPR. Rather, if AAI is successful on its motion the proceedings against AAI are summarily dismissed. AAI can only succeed if Mr Murgolo's claim against it is "so obviously untenable that it cannot possibly succeed". I am satisfied that this test is established in the present matter.
In circumstances where I am satisfied that the plaintiff knew that Class Welding was the defendant as at 19 February 2013 at the latest, there is no need for me to consider any question of constructive notice.
In addition to reliance upon the relevant limitation period, AAI also argued that, in any event, the proceedings against it were an abuse of process based on principles of res judicata. In Jackson v Goldsmith (1950) 81 CLR 446 at 466-467; [1950] HCA 22 Fullager J described this rule as: "where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action".
AAI relied upon the default judgment against Class Welding (NSW) as raising this principle in the present matter. The two arguments raised at the hearing in response to this argument were that that decision was a default judgment and that, in any event, it was entered against a different party.
The principles of res judicata were considered by the High Court in Tomlinson v Ramsey Food Processing, in the context of considering whether an issue estoppel arose in that case. The court made the following observations as to the doctrine generally at [20]-[21] (footnotes omitted): "An exercise of judicial power, it has been held, involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense. Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law."
The decision in Tomlinson v Ramsey was considered by the Federal Court (Allsop CJ, Moshinsky and Colvin JJ) in Zetta Jet Pty Ltd v The Ship "Dragon Pearl" (No 2), a decision relied upon by AAI. Counsel for Zetta Jet Pty Ltd unsuccessfully sought an adjournment of a five-day hearing on the first day of the hearing. No evidence was led and the proceedings were dismissed. The ship was sold and Zetta Jet brought proceedings to arrest the vessel. The issue in Zetta Jet was whether principles of res judicata applied in circumstances where the claims in rem in the original proceedings were not dismissed "on the merits". The court referred (at [16]) to Tomlinson v Ramsay Food Processing and the passage I have extracted above and then observed that in that case "[n]o distinction was drawn between a case where the disputed rights and obligations were upheld and one where they were dismissed."
The court went on to observe at [18]: "Importantly, the plurality in Tomlinson then said that the notion of "cause of action estoppel" was largely redundant where a judgment is rendered in the exercise of judicial power because res judicata in the strict sense applies: 256 CLR at 517 [22]. On such reasoning, res judicata applies solely by reason of the character of the exercise of judicial power in pronouncing a final judgment. It does not matter what led to the final judgment - whether it be default, consent or an adjudication on the merits. Further, it is not a concept that includes issue estoppel."
And at [20]: "However, a res judicata (or cause of action estoppel) was not described in Tomlinson in a manner that makes the principle dependent upon a determination on the merits in that sense."
The court observed at [27] that: "The proposition that for a res judicata to arise there must be both a final judgment and it must be on the merits (in the sense of some form of reasoned adjudication of the merits) is contrary to the well-established position in Australia that res judicata applies to a final judgment in default or by consent."
The Court noted the distinction between a permanent stay or dismissal as being interlocutory in nature as opposed to a default judgment at a final hearing (at [31]-[34), before concluding at [35]: "Consistently with these principles, no purpose is served by inquiring into the particular circumstances in which final judgment was obtained in order to determine whether a res judicata arises. The relevant question is to inquire into what cause of action was adjudicated by the final judgment. For that reason, in determining the extent of the res judicata that arises in a particular case, the court looks only at the record (the nature of the claim and the final orders): Fernando v Commonwealth 231 FCR at 261 [45]; Pollnow v Armstrong [2000] NSWCA 245 and Willoughby v Clayton Utz [No 2] [200 9] WASCA 29; 40 W AR 98 at 107 [2 7][28]."
Finally, the court observed at [51]-[51]: "There may be cases where an issue arises as to whether a final judgment actually determines all of the causes of action raised in the proceeding. A case may involve claims based upon a number of causes of action, but the final judgment may rest upon an adjudication of only one. This may arise because there is a trial of preliminary issues. Or the case may have been conducted in such a way that the advancement of a particular cause of action was withdrawn prior to trial. This may have occurred informally. In such cases, some of the causes of action may not have been finally adjudicated even though there has been final judgment on the claim. Therefore, it may be necessary to inquire as to the causes of action to which a final judgment relates. Also, as we have noted, what may be termed procedural judgments do not give rise to a res judicata. Nor do judgments or orders made ex parte. The existence of each of these instances explains the requirement that a decision be both "final" and "on the merits" (or "litigated") before it may give rise to a res judicata. However, it is equally clear that a default judgment and a judgment by consent may give rise to a res judicata. Therefore, the requirement that the final judgment be a judgment "on the merits" does not confine res judicata to those instances where there has been presentation of evidence and argument and the application of the law to the facts in a reasoned way."
Having regard to the principles derived from these decisions I am satisfied that the judgment entered against Class Welding (NSW) merged the cause of action into the judgment and the fact it that was a default judgment does not undermine the application of the principle of res judicata. But this does not answer Mr Murgolo's principal argument that the judgment was entered against a different party.
In Petersen v Maloney (1951) 84 CLR 91 at 102, the High Court stated that acceptance of payment into court by a party which is alternatively liable in full satisfaction operates as a res judicata. It was stated: "The case is clearly one of alternative liability. Either Moloney or Pulbrook might be liable to the plaintiff, but both could not be. In such a case a final election to treat either as liable would preclude the plaintiff from proceeding against the other, and it is a well-settled general principle that, while the commencement of an action against one of two persons alternatively liable does not, the entry of judgment against one of them does, constitute a final and irrevocable election."
It was common ground that there has been no payment of the judgment debt owed by Class Welding (NSW) to Mr Murgolo. It remains unsatisfied.
AAI relied upon the fact that Mr Murgolo has not taken any steps to "impugn, set aside, vary or otherwise deal with" the default judgment and that the cause of action now pleaded against Class Welding merged into the judgment against Class Welding (NSW) thus it does not matter that the parties were different. AAI further noted that prior to the enactment of s 5 Law Reform (Miscellaneous Provisions) Act 1946, judgments were entered in solidum but that s 5(1)(a) provides that where damage is suffered by any person as a result of a tort, "judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage". I do not accept that this provision is relevant to this alternate argument raised by AAI.
The significant difficulty with AAI's reliance upon the principle of res judicata in this matter is that although that principle could be relied upon by Class Welding (NSW) it is Class Welding that seeks to rely upon it instead.
Although it was strictly not necessary for me to deal with this alternate argument, I am not satisfied that the principle of res judicata arises in this matter given that it is not the same party which has had judgment entered against it (Class Welding (NSW)) which now seeks to rely on it. Nor do I consider the proceedings against AAI to be an abuse of process. Rather, the proceedings have simply been brought out of time.

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Judgment (12 paragraphs)

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Legislation Cited (7)

Cases Cited (22)

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