Prada v Belmadar Constructions Pty Limited & Anor

BAUTISTA PRADA (Plaintiff)

PARTIES : BELMADAR CONSTRUCTIONS PTY LIMITED (1st Defendant)

ATLANTIC CIVIL PTY LIMITED (2nd Defendant) JUDGMENT OF : Master Harrison

COUNSEL : Mr P See (Plaintiff) Mr C D Meagher, Sydney (Plaintiff)

SOLICITORS : Ms J Fung, A R Conolly & Company, Sydney (1st Defendant)

Mr J S MacLennan, Abbott Tout, Sydney (2nd Defendant) CATCHWORDS : Extension of limitation period; cross claim ACTS CITED : Limitation Act - Sections 60C & E DECISION : See paragraph 16

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20880/96 - BAUTISTA PRADA v BELMADAR CONSTRUCTIONS PTY LIMITED & ANOR

JUDGMENT (Extension of limitation period - Sections 60C & E Limitation Act; cross claim)

1 MASTER: By amended notice of motion filed in court on 10 December 1998 the plaintiff seeks firstly an order pursuant to Division 3 of the Limitation Act that the time within which the plaintiff may commence proceedings against Saxon Pty Limited ACN 002 638 342 be extended up to and including 24 December 1998 and secondly that Saxon Pty Limited be joined as a defendant in these proceedings. The first defendant filed a notice of motion in court seeking that the first defendant have leave to file a cross claim against the second defendant and Saxon Pty Limited claiming contribution. The orders sought were not opposed. 2 For the purpose of these applications I find the following facts. (1) On 27 May 1994 the plaintiff in the course of his employment with the first defendant was injured when a welder named as Abdul

Bassal commenced welding whilst the plaintiff was filling a water pump with petrol resulting in an explosion. It was believed that the welder was an employee of the second defendant.

(2) A statement of claim was issued on 19 August 1996 naming Atlantic Civil Pty Limited (Atlantic Civil) as the second defendant. The first defendant Belmadar Constructions Pty Limited is the employer of the plaintiff.

(3) On 23 September 1996 Mr Albert Bassal a former director of Saxon telephoned the plaintiff's solicitor. At that time the plaintiff's solicitor was aware that Saxon Pty Limited had been deregistered on 13 June 1996. Mr Bassal said words to the following effect "My brother Abdul Bassal was not employed by Saxon Welding but by his own private company which was, like Saxon Pty Limited, a subcontractor of Atlantic Civil. Saxon Pty Limited did not have any public liability insurance as that company and Atlantic Civil were both, as it were, joint subcontractors with Belmadar Constructions Pty Limited".

(4) On 24 September 1996 Mr Abdul Bassal (the welder) telephoned the plaintiff's solicitor and said that when he was working at the site at Prospect Reservoir on the Water Board job in May 1994 he did not have a private company. He said that he was employed either by Atlantic Civil Pty Limited or by Saxon Welding, that those two companies were in it together and he thought he was paid sometimes by Atlantic Civil and sometimes by Saxon Welding.

(5) The plaintiff's solicitor was left in doubt as to whether the employer of the welder was Atlantic Civil Pty Limited or Saxon Pty Limited. After the plaintiff ascertained that the insurance policy of Atlantic Civil Pty Limited did not cover Saxon Pty Limited and he had known that Saxon Pty Limited was in liquidation, he applied to the court to have Saxon Pty Limited restored to the register. The plaintiff's solicitor subsequently ascertained that Saxon Pty Limited had been restored to the register by the Australian Securities and Investments Commission on 17 December 1997.

(6) On 18 November 1998 a copy of this motion was served on Saxon Pty Limited by forwarding copies to the company's registered office at Suite 302, 3rd Floor 161 Bigge Street Liverpool. The amended motion was also served on 11 December 1998 in the same manner.

(7) On 3 February 1999 the plaintiff's solicitor again wrote to Saxon Pty Limited asking them to acknowledge receipt of the documents. On 8 February 1999 Greg Peel a chartered accountant at that address wrote to the plaintiff's solicitor and said that he no longer acted on behalf of the company and had not done so for the past 5 years. The plaintiff's solicitor telephoned Mr Peel's office and was advised that all the documents in his two letters had been

received and forwarded to the director of Saxon Pty Limited, Mr Albert Bassal of Lot 1A Campbelltown Road Denham Court New South Wales. There was no appearance by Mr Bassal when this matter was heard.

3 I turn now to the Limitation Act. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 ( - see s 60B). 4 Section 60C provides: "Ordinary action (including surviving action) 60C(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 5 Section 60E provides: "Matters to be considered by the court 60E(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay;

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

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

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

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

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

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

(h) the extent of the plaintiff's injury or loss." 6 In relation to ss 60C and 60E of the Limitation Act Mason P in The Council of City of Sydney v Zegarac (Court of Appeal, 3 September 1997, unreported) referred to propositions which were uncontroversial. They are: (1) Section 60C confers a judicial discretion. (2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

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

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. Mason P then says that beyond this there are more debatable areas of application of Brisbane South.

7 Justice Powell in Zegarac stated that these three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's other two propositions were firstly that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Limitation Act 1969, that it is just and reasonable so to do and secondly although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant. 8 I turn to consider the matters listed in s 60E(1). In relation to s 60E(1)(a) the length of the delay between the expiration of the limitation period and the application to extend application is about 18 months. The solicitor became aware that Mr Bassal may have been employed by an entity other than the first defendant in September 1996 which was prior to the expiration of the limitation period. He did not file an application to join Saxon Pty Limited until December 1998. The plaintiff's solicitor did not act expeditiously. 9

In relation to s 60E(1)(b) the proposed third defendant has not sought to be heard as to whether it would suffer prejudice. It has not been established that any evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available. 10 In relation of s 60E(1)(c) and (d) the plaintiff knew the time at which the injury became known to the plaintiff and the time at which the nature and extent of the injury became known to the plaintiff at the time of the accident or shortly afterwards. 11 In relation to s 60E(1)(e) and (f), although the plaintiff knew the name of the welder, Mr Abdul Bassal. The plaintiff's solicitor did not know whether he was employed by Atlantic Civil or Saxon Pty Limited at the time of the accident. Mr Albert Bassal (Mr Abdul Bassal's brother) pointed to a third possibility, namely Mr Abdul Bassal's private company. The director of Saxon Pty Limited is Albert Bassal. It was the director of Saxon Pty Limited who provided the information which is in conflict with his brother's statement as to the correct employer. It may serve Mr Albert Bassal's interests to deny that his company was his brother's employer. 12 In relation to s 60E(g) and (h), the plaintiff has obtained gross burns to the arms, legs and genitalia involving 40% of his body surface. In January 1995 the plaintiff returned to work on light duties and reduced hours. It appears that he continues to work on this basis. The Part 33 particulars claim that he will incur substantial future medcial expenses. The plaintiff's injuries are serious and the claim for damages, if successful, is a substantial one. 13 I have taken into account the eight factors listed in S 60E(1) as discussed earlier in this judgment. I accept that presumptive prejudice has occurred in the delay in joining the proposed third defendant. I am not satisfied that there has been actual prejudice. However, I am not satisfied that these matters establish that the proposed third defendant's chances of a fair trial are unlikely or that it will suffer significant prejudice. 14 It is my view that the plaintiff has discharged his onus and I am satisfied that it is just and reasonable that an order should be made that he be granted an extension of the limitation period. 15 It is also appropriate that the first defendant be entitled to file a cross claim seeking indemnity from the second and proposed third defendants and I make such an order. The order for costs in relation to these motions are that costs be costs in the cause. 16 The orders I make are: (1) The plaintiff is granted an extension of time within which to commence proceedings against Saxon Pty Limited ACN 002 638 342 up to and including 8 March 1999.

(2) Leave is given to the plaintiff to join Saxon Pty Limited as a third defendant in these proceedings. An amended statement of claim is to be filed and served by 8 March 1999.

(3) The first defendant is given leave to file a cross claim, such cross claim is to be filed and served by 22 March 1999.

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