V Vaccaro & Sons Pty Ltd v Von Marburg

The law

1. Sections 64 and 65 of the Civil Procedure Act 2005 (NSW) are relevant to the question of leave to file a FASC.
2. Sections 64 and 65 of the Civil Procedure Act relevantly read: "64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. … 65 Amendment of originating process after expiry of limitation period (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as: … (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings."
3. The plaintiff referred to Cropper v Smith (1884) Ch D 710, where Bowen LJ stated at [750]: "Now, I think it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendments as a matter of favour or of grace … It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right."
4. The plaintiff submitted that the FASC is required to enable the real questions between the parties to be decided and to avoid multiplicity of proceedings.
5. The defendant points out that there is a distinction between an amendment to determine the real questions in controversy between parties, and a situation where a party seeks to set up, by amendment, a new case at trial: see Hipgrave v Case (885) 28 Ch D 356 at 361 per Earl Selborne LC, as approved by the French CJ in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [14] ("Aon").
6. The defendant referred to Aon, where the plurality of the High Court held at [75]: "75. The statements made by Bowen LJ in Cropper v Smith are best understood by reference to the circumstances of that case, and the course of the litigation. This is true of many statements made in cases concerning amendment of pleadings, even if they are stated in terms of general application."
7. So far as amendments are concerned, in Aon, the High Court held at [92]-[96] that a court must consider: "92. The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process [155]. 93. Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected [158]: "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard …". 94. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants [163]. 95. The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others. 96. An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment [164]. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute [165]. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power."
8. The defendant submitted that if the proposed amendment is allowed, it should take effect from the date of the order.
9. The proposed amendment is in addition to a claim for quod servitium amisit filed out of time on 11 September 2019. In summary, the amendments seek to bring a claim for pure economic loss allegedly suffered by the company arising from a breach of a duty said to be owed by the defendant doctor not to cause the company economic loss by the medical treatment and care provided by the defendant to Mr Vaccaro. The plaintiff submitted that the new cause of action, being the quod servitium amisit and pure economic loss claims in these proceedings, arise from the same facts as those in the personal injury claim proceedings. Accordingly, there is no prejudice to the defendant by granting leave to file the FASC in these proceedings.
10. The defendant does not consent to the filing of the FASC for three reasons. There are: 1. that the Company has provided no explanation or justification for the delay in bringing the new claim set out in the FASC (delay); 2. that there is prejudice to the defendant, including meeting the trial date of 20 July 2020, where the trial is estimated to take four weeks (prejudice); and 3. that the amendment is futile, given that the proposed claim is likely to be statute barred pursuant to either or both of ss 14 or 50C of the Limitation Act 1969 (NSW) (limitations).
11. I will deal with each of these issues in turn.

The plaintiff's submissions

1. The relevant period of delay is the period between the time the company claim was filed, and the time of the application seeking leave to file a FASC pleading pure economic loss. The plaintiff submitted that it cannot be suggested that the company could have commenced proceedings on its own behalf any earlier than the time when the personal injury proceedings were commenced.
2. The company's claim is dependent on there being a viable personal injury claim. On 22 December 2016, Mr Vaccaro commenced his personal injury claim proceedings, and relied on the expert reports of Professor Briggs dated 15 September 2016 and 13 December 2016.
3. While the company could have commenced proceedings at, or shortly after, the time the personal injury claim proceedings were commenced in December 2016, it did not. In or about late August 2019, Kathryn Williams, the plaintiff's current solicitor, received instructions from Mr Vaccaro. Carroll & O'Dea had previously acted for Mr Vaccaro.
4. Ms Williams identified that a cause of action existed for the economic losses sustained as a result of the negligent medical advice and treatment provided by the defendant to Mr Vaccaro. On 11 September 2019, the statement of claim in these proceedings was filed on behalf of the plaintiff. An amended statement of claim ("ASC") was filed on 23 September 2019.
5. The explanation for delay by the plaintiff's solicitor, Ms Williams, is that it was not until there had been a change of solicitor that she had identified the potential cause of action. Instructions were sought and obtained to commence these proceedings. As to the pure economic loss claim, this occurred after discussion with counsel.

The defendant's submissions

1. The defendant referred to Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham & Ors [2013] NSWCA 93, where the Court of Appeal held (per Meagher and Barrett JJA) at [22]: "22. As the plurality judgment in Aon makes clear at [102] and [103], the exercise of the discretion to allow an amendment necessarily involves a weighing process in which factors for and against the grant of leave must be identified and considered. Those factors include, if there has been delay in applying for the amendment, an explanation for the delay. At [103], it was said that the importance attached by Rule 21 (which is set out in Aon at [60] and is in similar terms to ss 56(1) and 57(1) of the Civil Procedure Act 2005) to the factor of delay 'will require' in most cases that the moving party bring the circumstances giving rise to the amendment, and explaining the delay, to the Court's attention 'so that they may be weighed against the effects of any delay and the objectives of the Rules'. Those circumstances ought explain the delay, and in doing so may justify it, in the sense that they may provide reasons for it which are not consistent with any failure on the part of the moving party, or its legal advisers, to act diligently and expeditiously in the prosecution or defence of the relevant claim. If those circumstances provide some justification for the delay, for those or some other reasons, they may be weighed against the effects of the delay on the other parties, as well as on other litigants."
2. The defendant submitted that any claim by the company could and should have been commenced at or prior to the time the personal injury claim was commenced. Mr Vaccaro, as the sole director, secretary and controlling mind of the company, was lawfully authorised and able to commence proceedings. As Mr Vaccaro was the controlling mind of the company, his knowledge is knowledge that can be imputed to the company.
3. When Mr Vaccaro gave instructions to commence the personal injury claim, he was aware of the existence of the factual matters. The plaintiff now asserts that those factual matters give rise to the duty allegedly owed by the defendant to the company not to cause economic loss, and the acts or omissions by the defendant that are alleged to have been negligent.
4. Mr Vaccaro knew of the injuries he allegedly suffered and any impairment his services provided to and through the company. He also knew of any drop in revenue or loss of income, and of the sale of the business of the company and any loss of profit/goodwill on sale.
5. The defendant submitted that from at least 2016, Mr Vaccaro, as the director and secretary of the company, was aware of the viability of bringing litigation against the defendant. The personal injury claim has always asserted loss from his alleged inability to work as a sole trader, and through the company. This fact was known to his former solicitors, Carroll & O'Dea. It is also inconsistent with [41] of the proposed FASC.
6. The defendant submitted that the company has provided no evidence or explanation to the Court: 1. of steps taken or not taken to investigate the cause of any impairment of Mr Vaccaro's ability to undertake or perform services for the company from 2006, or to investigate any alleged negligence by the defendant or explain why it did not discover these matters earlier; 2. for the company waiting 13 years to plead a claim for breach of duty not to cause direct economic loss in relation to treatment that the defendant started providing to Mr Vaccaro in 2006; 3. for the company waiting 11 years to advance a claim for loss of goodwill from the sale of its business in June 2009, when it must have known of any asserted physical incapacity of Mr Vaccaro resulting in the alleged need to sell the business and for the company to cease trading; 4. as to why the company did not commence proceedings on or about 22 December 2016, when the personal injury claim was commenced; 5. as to why the company waited until after the personal injury claim proceedings had been listed for trial for the hearing of the company claim for quod servitium amisit; and 6. as to why the company did not advance a claim for damages for pure economic loss arising from a breach of duty asserted to be owed to it by the defendant, when it issued the company claim for quod servitium amisit.
7. The defendant submitted that the plaintiff has provided no evidence that would allow the Court to conclude that it (as the moving party) and its former legal advisers acted diligently or expeditiously in the prosecution of any available claim, or that there is any good reason which would explain the delay in bringing this claim on behalf of the company. Therefore, the explanation for delay is non-existent or, at best, insufficient.

Resolution

1. On 22 December 2016, Mr Vaccaro filed his statement of claim alleging personal injuries and disabilities arising from advice and medical treatment provided by the defendant between 15 June 2006 and 15 January 2014.
2. Although brief, his explanation for the delay is as follows. The plaintiff changed solicitors. His current solicitor, Ms Williams, received instructions in September 2019. It was Ms Williams who identified the company as having a cause of action for quod servitium amisit. This document was superseded by the ASC filed on 23 September 2019, correcting the oversight in the statement of claim, as the solicitor had not signed it. Ms Williams filed an amended statement of claim on 23 September 2019 alleging action for quod servitium amisit. She then identified a further cause of action as loss of pure economic loss, obtained instructions from Mr Vaccaro and sought advice from counsel. The plaintiff's solicitor acted expeditiously when she took over carriage of these proceedings.
3. On 28 November 2019, Ms William served the defendant with the expert report from Furzer Crestani and authorised by Mr Chris Kathesos, dated 27 November 2019, together with the briefing letters, which quantified the company's losses in this claim.
4. On 3 December 2019, Ms William sent an email to Eliza Faulk, the defendant's solicitor, indicating that, in light of Professor Paul Fagan's report, it would be necessary to amend the ASC in these proceedings and the statement of claim in the personal injury claim proceedings. On 5 December 2019, Ms Williams forwarded a further email to Ms Faulk stating that she could not forward the FASC, as it was taking longer than she expected to populate the FASC with loss and damage particulars. She also stated that the FASC would mirror the amendments made in the personal injury claim.
5. On about 6 December 2019, Ms Williams attended the professional negligence list and advised the Court that she required an order to amended the ASC to reflect the evidence of Professor Fagan and to set out the company's loss and damage. She advised the Court that the amendments would mirror what the amendments were in the personal injury claim. On 6 December 2019, the Court ordered that a proposed FASC be sent to the defendant by 12 December 2019. The defendant was to advise the plaintiff whether he consented to the proposed amendments by 20 December 2019.
6. On about 10 December 2019, when Ms Williams sought to complete drafting the FASC, it became apparent to her that the FASC required further amendments outside what she had advised the defendant. On 11 December 2019, she sent the defendant's solicitor the first of two proposed FASC for this matter. On 20 December 2019, the defendant's solicitors wrote to Ms Williams seeking clarification of the nature and extent of the proposed changes. The FASC underwent a few iterations, the final version being dated 4 February 2020. On 11 February 2020, the defendant opposed the amendments. The plaintiff could not have been expected to know that his company had alleged causes of action without being legally advised of them.
7. I have set out the plaintiff's explanation for delay in detail above. In summary, Mr Vaccaro was still undergoing treatment up until 2014, and filed his statement of claim on 22 December 2016. It was about three years after the filing of Mr Vaccaro's statement of claim that that he was advised by his solicitor as to the company's causes of action. Mr Vaccaro could not have been expected to know of the company's causes of action without being given the benefit of legal advice. As can be seen from the summary of events set out above, when the current solicitor received instructions from Mr Vaccaro, she acted expeditiously in commencing proceedings on behalf of the company. It is my view that the company has provided a satisfactory explanation for delay.

(b) Prejudice

1. The defendant asserts prejudice on three grounds: that there is an absence of financial documents, that a new cause of action is pleaded and that the claim is substantial.

The plaintiff's submissions

1. In her affidavit dated 16 March 2020, the defendant's solicitor, Ms Faulk, sets out the period of negotiation and production of financial documents in relation to Mr Vaccaro's economic loss claim in the personal injury claim proceedings.
2. Ms Faulk first requested the documents provided to the plaintiff's forensic accountant, Furzer Crestani, on 19 December 2017. These were provided on 22 February 2018. On 27 March 2018, Ms Faulk advised Mr Vaccaro's former solicitors, Carroll & O'Dea, that the defendant had engaged a forensic accountant and set out information and documents he wished to have in order to prepare a report.
3. In 2018 there was an exchange of correspondence, including the issuing of a subpoena for documents by the defendant. This culminated in final documents being provided to the defendant's solicitors by 27 September 2018. Mr Algie of Carroll & O'Dea expressly asked Ms Faulk to "please let me know if you believe our client has not fulfilled his obligations under the subpoena." On 27 November 2019, the company served its forensic accountant's report.
4. The plaintiff stated that after this, the defendant made no further complaint about the adequacy of the production of documents by the company. The defendant served two reports from expert forensic accountant, Mr Richard Ivey, dated 5 November and 21 December 2018. In order to provide an opinion on economic loss in the personal injury proceedings, Mr Ivey was required to analyse the company records and express opinions about its earnings and performance.
5. No further mention of source documents was made until 11 February 2020, when Ms Faulk asserted the defendant was prejudiced by the plaintiff's inability to provide primary and source financial documents.
6. The plaintiff submitted that there is no practical difference between the documents required by the defendant for the personal injury economic loss claim and those now relevant for the company's claim. The claim of prejudice about the absence of primary and source documents is unfounded.
7. The plaintiff argued that the fact that it has raised a claim for pure economic loss should not prejudice the defendant in terms of legal research. The case law regarding quod servitium amisit frequently refers to pure economic loss: see Barclay v Penberthy [2012] HCA 40 ("Barclay"). This is not a novel cause of action, but is one that is available depending upon the factual circumstances of the case.
8. The plaintiff submitted that the defendant's complaint of prejudice boils down to the anxiety of having to deal with a larger claim. That is not the type of prejudice that should influence the decision of whether to permit the proposed amendments.

The defendant's submissions

1. The defendant submitted that it will be prejudiced if the company is granted leave for the following reasons: 1. the personal injury claim is listed for hearing for 4 weeks commencing 20 July 2020; 2. on 2 October 2019, the Court made orders that the company claim (then confined to the quod servitium amisit claim) and the personal injury claim be heard together, and consequential orders; 3. by the proposed FASC, the company seeks damages of approximately $7,600,000, whereas previously Mr Vaccaro's personal losses were quantified at $2,600,000 and $3,800,000, depending on whether the cap provided by s 12 of the Civil Liability Act applied, with the result that the defendant will need time to meet the claim if it is allowed; and 4. despite repeated requests and investigations since February 2017, the company has not produced source documents to the defendant to permit it to investigate the business, income and expenses of the company in the relevant period.
2. According to the defendant, Mr Vaccaro was to provide further documents prior to the hearing of this notice of motion. The plaintiff has not done so, nor has he provided an explanation. The proposed conclaves of the forensic accountants cannot proceed until the investigations have been completed and any further documents have been provided.
3. The defendant submitted that given the delay in advancing the claim, the defendant should not be prejudiced by being forced to investigate a new and substantial claim and the additional instructions/assumptions/calculations and documents.
4. It is not necessary for the defendant to establish irreparable prejudice, nor can the company rely on the absence of prejudice as a factor alone, or with a costs order, that justifies the grant of leave: see Spencer v NSW Minister for Climate Change and the Environment [2010] NSWCA 75 at [33].
5. There is a presumptive prejudice occasioned by delay. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR at 551, the court held that "prejudice may exist without the parties or anybody else realising that it exists…what has been forgotten can rarely be shown."
6. The defendant submitted that the fact that the expert was able to provide a report does not overcome the issues raised by the lack of production of various company records. The defendant is prejudiced in his ability to examine and test the various assumptions and the assertions made by other individual and company documents. Documents necessary to do this were requested by the defendant's lawyer at the request of the expert.

Resolution

1. I accept that the defendant will suffer some presumptive prejudice due to the delay.
2. Both parties have served forensic accountants' reports. The defendant served two reports of Mr Richard Ivey dated 5 November and 21 December 2019. The plaintiff served a report of Furzer Crestani dated 27 November 2019. I accept that there may be documents still to be produced, but as I understand it, they will be produced shortly.
3. The amendments do raise a new cause of action, but to some extent the damage overlaps with the damages claimed in the personal injury claim. The plaintiff's damages for the claim of pure economic loss and for quad servitium amisit will be the same or similar.
4. The defendant suggested that Mr Vaccaro knew of the existence of these two new causes of action in relation to the company, but the evidence is to the contrary. There is a dispute as to whether or not the defendant has been supplied with all the documentation it requires. Certainly he has been supplied with most of the necessary documents. On 9 July 2018, the plaintiff's former solicitors wrote to the defendant's solicitors supplying more financial information and explaining what had happened with the other documents and their plans to obtain some further documents. Despite this, the defendant still complains that he has not received certain documents, and the plaintiff has submitted that they will be served in the near future. As stated, both parties have served forensic accountants' reports. There is still ample time for the accountants to hold a conclave.
5. In these circumstances, I am satisfied that if the company is granted leave to file the FASC, both parties will received a fair trial.

(c) The limitation period

1. The defendant concedes that ordinarily, any limitation issue is properly ventilated at trial, and that the limitation issue should not be determined as part of this application. However, the plaintiff needs to show that the amendment is not futile.

The plaintiff's submissions

1. In relation to any consideration of the limitation period, these proceedings represent a cause of action for damages that relate to the personal injury to a person.
2. Section 50C of the Limitation Act reads: "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. (2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times: (a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased, (b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment, (c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative. (3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased."
3. The relevant limitation period for a cause of action that relates to personal injury expires 3 years after the cause of action is discoverable, or 12 years from the time of the act or omission alleged to have resulted in the injury concerned. An extension to the 12 year stop limitation period can be obtained where the Court considers that it is just and reasonable. Various matters are to be considered by the Court when deciding whether to exercise its discretion to grant an extension to the 12 year limitation period.
4. The question to be considered in respect of this application in relation to the limitation period is confined to whether it is just and reasonable to extend the 12 year limitation period pursuant Div 6 of Pt 2 of the Limitation Act. The final determination of any limitation defence is a matter for consideration by the trial judge. At this stage, the defendant has not filed a defence to the ASC and the plaintiff does not know what section of the Limitation Act is relied upon by the defendant in asserting that these proceedings are statute barred.
5. A decision by the Court not to grant the plaintiff leave to file the FASC will deprive the company of obtaining a judicial determination of its whole claim. The plaintiff submitted that this would be tantamount to dismissing the proceedings summarily. The case law establishes that great caution must be exercised in such cases, and that summary dismissal should be limited to cases where there is no reasonable cause of action, and which are manifestly groundless or clearly untenable. The plaintiff argued that this is not such a case, and that for the reasons set out below, it is arguably just and reasonable to extend the 12 year limitation period.
6. The plaintiff accepts that a claim for pure economic loss is not a claim for personal injury damages. The circumstances in which it arises, however, unambiguously concern personal injury. But for Mr Vaccaro's personal injury, there can be no cause of action for pure economic loss. In this sense, the claim for pure economic loss "relates to personal injury of a person" under s 50A(1) of the Limitation Act.
7. As it is alleged that as damage was first suffered in 2006, by reason of s 50C(1)(b) of the Limitation Act, the plaintiff is entitled to an extension of the period so long as it satisfies the conditions in s 62B of the Limitation Act. Extension applications are routinely dealt with by a trial judge. It is at least reasonably arguable that a pure economic loss claim that arises because of a sole director's personal injury is an action for damages relating to person injury under s 50A of the Limitation Act. This should be determined by the trial judge unless the Court is satisfied under the General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 test that there is no reasonable cause of action, the claim is manifestly groundless or clearly untenable. The plaintiff submitted that none of these expressions are relevant.
8. Finally, even if the defendant's submissions that s 14 of the Limitation Act is the relevant limitation provision are correct, the company is entitled to claim economic loss for losses accruing within 6 years of the pure economic loss claim being filed. Thus, pure economic loss from 2013 may be recoverable. Again, this is a matter that the trial judge should determine in light of all the surrounding factual circumstances.

The defendant's submissions

1. The defendant maintains that the applicable limitation period is that set out in s 14 of the Limitation Act.
2. It is correct to say that there is at least an argument that s 50C of the Limitation Act has a role to play. The plaintiff concedes that the matter is statute barred without an extension of the 12 year period.
3. The plaintiff asserts that a claim from 2013 would not be statute barred. The company ceased trading in 2009, and any claim arising out of events in 2013 is irrelevant. Even if it were relevant, no application to extend the period pursuant to s 62A of the Limitation Act has been made, and there is no evidence at even a prima facie level of the matters referred to in s 62B (a) or (e) of the Limitation Act.
4. The plaintiff has not demonstrated on this application that there is a prima facie case to be determined. Whether or not ss 14 or 50C of the Limitation Act applies, the matter is statute barred.
5. The defendant further referred to Barclay, where High Court held that a claim by a company for damages for loss of income or profit arising from injury or death of an employee is a claim for pure economic loss, and is distinct in its legal basis to claim per quod servitium amisit.
6. Putting to one side whether or not the company will succeed in persuading the Court of a novel duty owed by the defendant to the company, the defendant says the company's claim for economic loss: 1. is an action for damages for pure economic loss as confirmed by the High Court in Barclay, and not an action for damages that relates to death or personal injury of a person pursuant to s 50A(1) & (4)(a) and (b) of the Limitation Act; 2. is subject to the limitation period provided by s 14 of the Limitation Act, which has expired; 3. is one in which the causes of action accrued when the company suffered the losses of income and loss of profits on the sale of the business, and as the company ceased trading in June 2009, the loss both past and future had crystallised on by June 2009; 4. is manifestly out of time; and 5. is one for which even if s 50C of the Limitation Act applies, the claim is statute barred.
7. The company submitted that the amendment is governed by s 65 of the Civil Procedure Act. That section applies only if the original claim was filed in time.

Resolution

1. The defendant correctly concedes that ordinarily, any limitation issue is properly ventilated at trial, and the limitation issue should not be determined as part of this application. However, the plaintiff needs to show the amendment is not futile.
2. It appears that the company's amendments do not fall within the provisions of s 65(2) of the Limitation Act, as the company is a different entity from Mr Vaccaro. If the company ceased trading in June 2009, it is not clear that its losses crystallised at that date.
3. As was stated by the High Court in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; (1992) 109 ALR 247, it is regarded 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.
4. In these circumstances, I am satisfied that the company's claims are not futile. Hence, whether the company's claims are statute barred should be determined at trial.

The result

1. I am satisfied that the the company has provided a satisfactory explanation for the delay, that the parties will receive a fair trial and that the company's claims are not statute barred. The issues raised in the FASC will enable the real questions between the parties to be decided. I grant leave to the company to file the FASC.

Costs

1. While the defendant has sought his costs, it is my view that the appropriate order for costs at this stage is that they be reserved.

THE COURT ORDERS THAT: (1) The plaintiff is granted leave to file and serve the further amended statement of claim by 28 April 2020. (2) Costs are reserved.

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: 22 April 2020