Wright v Optus Administration & Anor

Judgment 1By notice of motion filed in Court on 18th November 2013, the first defendant has moved for the recall of the order I pronounced on 15th November 2013 striking out paragraph 26 of its further amended defence dated 4th July 2012, pleading the statutory bar arising out of s.18A Limitation Act 1969 (NSW). 2The application is grounded on asserted misapprehensions of law and fact underpinning my decision "that to allow the defendant to reassert the limitation defence would be unjustifiably oppressive in the circumstances" (reasons [46]). There is no challenge to my anterior finding "that on 3rd May 2010 the first defendant's solicitors informed the plaintiff's solicitors that the first defendant did not intend to bring forward a motion for the early determination of the limitation issue because it was not pursuing that issue" (reasons at [40]). 3Counsel for the first defendant have referred me to the decision of Davies J in Chaina v Presbyterian Church (NSW) Property Trust No (16) [2013] NSWSC 1494 at [15] - [33] as a recent decision of the Court collecting and analysing the relevant authorities. I gratefully adopt his Honour's analysis. 4I fully accept the Court has power to recall orders made on the ground of "misapprehension of the facts of the relevant order": Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 301 - 303 per Mason CJ. Moreover, I accept that as a matter of law, a second look at interlocutory orders does not of itself constitute an abuse of process: Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139; however c.f. Fletcher v Besser [2010] NSWCA 30 at [17]; Levy v Bablis [2012] NSWCA 128 at [20]. These latter cases identify that a question may arise about the continued authority of Nominal Defendant v Manning in the light of the efficiency provisions of the Civil Procedure Act 2005 (NSW), ss 56-60. Moreover, in general, as Davies J pointed out Chaina (No 16) at [24] - [26], the Court's practice continues to be "shaped" (as Bryson J, as he then was, put it in Hillston v Bar-Mordecai [2002] NSWSC 477) by the judgment of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46, including the following passage: In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application. [Citations omitted]. The observations of McLelland J have application in the present context. The decision made on 15th November 2013 followed interlocutory proceedings occupying several hours preceeded by time out of court for preparation, and supported by such evidence as the parties considered apposite to their respective cases. I reserved my decision, and reasons published supporting it ([2013] NSWSC 1690) covered 20 pages in 47 paragraphs. 5No new material has been put before the Court in support of either the application that I recall my order, or the alternative application that the first defendant be granted leave to amend to re-plead the defence under s.18A of the Limitation Act. 6I will deal first with the argument in relation to misapprehension of law. At [15] of my reasons I recorded the first defendant's argument that the plaintiff was effectively seeking summary judgment on the limitation issue, and the well known, settled principles associated with Dey v Victorian Railways Commissioners (1949) 78 CLR 62, and other decisions of high authority too numerous to conveniently cite, applied. I rejected that argument at [34] - [35]. I held that the relief sought by the plaintiff was different from summary judgment properly so called, and involved different principles, notwithstanding the reliance upon r 14.28 Uniform Civil Procedure Rules 2005 (NSW). I set out the nature of the relief sought by the plaintiff at [8], and the principles he relied upon at [9] - [14]. At [41] I made clear that I accepted the argument that the outcome of the plaintiff's application was governed, not by Dey, but by Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [13] - [15], [28], [34] - [37], and [39], and Ketteman v Hansel Properties Ltd [1987] AC 189 at 219 per Lord Griffith. I adhere to the view that there is a distinction in principle, and I have not been persuaded otherwise by the first defendants second run over the target. In particular, contrary to the argument at [5] of the first defendant's written submissions, I did not accept the first defendant's argument that Dey governed the case, yet proceed to decide it on some other basis. 7I reject the first defendant's argument that the factual findings challenged at paragraph [2] were not open to me. 8As I have said the defendant does not challenge my finding that it in fact abandoned the limitation defence in May 2010. That finding was based upon the evidence of Mr McQuilkin, which I accepted, an inferential reasoning process based upon my consideration of the probabilities, and the unchallenged statements as to the course subsequently followed by the plaintiff's advisers made by senior counsel for the plaintiff. A court generally accepts the statements of senior counsel for a party unless expressly challenged by his opponent, which in this case they were not. That the defendant can point to material supporting a conclusion contrary to this critical finding is not to the point, as the identification of a triable issue did not necessarily defeat the plaintiffs application in my judgment. 9As my reasons at [31] made clear, the finding that final preparation for hearing occurred on the basis of the concession was an inference drawn from the material identified. It is unnecessary to revisit it. 10Contrary to the submission of the first defendant, I made no finding that it "had "dropped" the limitation defence because of the apparent strength of the plaintiff's case on disability" (submissions , p 2). What I said at [24] of my reasons was no more than a delineation of the issue for determination in its evidential context, and not a finding. Nor is my finding recorded at [34], rather, there, I directed myself as to the relevant questions to be answered to decide the case. In fact, my finding is recorded at [40]. It is not conditioned or qualified by any reference to "the apparent strength of the plaintiff's case on disability". This is a good example of an argument that not only misstates my findings, but takes them out of context. Moreover, the argument completely ignores the finding I made at [19] that the plaintiff's evidence "in conjunction with relevant lay evidence is capable of supporting... a finding" of disability within the meaning of s.52 of the Limitation Act. It also overlooks my observations at [37] that "when it is applicable, the statutory bar is decisive". At [37], not at [34], as part of my reasoning in relation to the first question, that is the unchallenged finding, I said: To my mind it seems much more likely that the matter was dropped because the first defendant, which has never served any medical evidence of any type, in the light of the apparent strength of the plaintiff's case on disability, chose to fight the case on the merits: Ketteman at 219. 11My consideration that the reiteration of the limitation defence in subsequent pleadings was merely mechanical, as I made clear at [39], was an inference drawn in the light of the other circumstances to which I referred. Included amongst those circumstances was the complete absence of any evidence led on the part of the first defendant from the draftsmen of any version of the defence, or from a person responsible for his or her work, explaining the circumstances in which the limitation defence was reiterated. In those circumstances, and in the light of the material which I found acceptable, the more likely explanation, to my mind, as a matter of inference, was that the reiteration of the limitation defence was mechanical. 12My finding at [41] that both parties had brought the case to trial on the assumption that the limitation issue was spent flowed logically from the anterior decision that the defendant, to the knowledge of the plaintiff, had abandoned the limitation defence on 3rd May 2010, which abandonment was confirmed by the email of the solicitor for the defendant of 1st November 2013. 13The findings I made at [42] and [43] were based upon the statements of senior counsel for the plaintiff at the bar table and in written submissions. As I have said, conventionally the statements of senior counsel are entitled to acceptance unless expressly challenged. Moreover, what was said by senior counsel for the plaintiff seemed reasonable: it was consistent with my knowledge of the case, my experience as a Judge, and formerly as counsel; and in my view they were fair inferences to be drawn from all of the circumstances as I found them to be, in particular the consideration, not challenged by the first defendant, that its limitation defence was abandoned. The matters I have referred to at [42] and [43] are natural consequences very likely to flow from such an abandonment. I did not understand the first defendant to either argue, or attempt to prove, that the plaintiff had in fact prepared an application for extension of time which it was holding back, or that the matter had not been twice to mediation during its preparation. 14My observations at [45] about the inevitability of an adjournment was a judgment made by me in the light of my knowledge garnered from the conduct of the case before me and my experience in similar matters. I note that this submission takes an aspect of the reasoning exposed in [45] completely out of context. 15I acknowledge, as I acknowledged in my previous judgment, that there was material which supported a decision favourable to the first defendant. But that material, such as it is, was dealt with by me, and did not require, as a matter of law, the first defendant's success on the plaintiff's motion. In an entirely conventional way it fell to be weighed and assessed in the normal adjudicative process. 16I turn then to the application for leave to plead, or replead, the s.18A defence. I observed at [41] in my previous reasons, given my now unchallenged finding, that "effectively [and] ...in substance the first defendant is seeking to reassert the defence it previously disavowed". My ultimate finding at [46] was as follows: I am satisfied that to allow the defendant to reassert the limitation defence would be unjustifiably oppressive in the circumstances. I have found the first defendant made a choice about the limitation defence in May 2010. The dictates of justice require that it should be kept to it. [Emphasis added] 17No new, additional, or fresh evidence has been put before the Court justifying this "late" proposed amendment, explaining the need for it, or demonstrating that the plaintiff would not be irreparably prejudiced, in the relevant sense, if it were allowed. In the light of this, I am not satisfied that any reason has been shown to justify me departing from the views I expressed in my previous decision. 18In my judgment the matter was well put by learned senior counsel for the plaintiff at 3.16.20 -30T: In essence, we're now in a position your Honour where the plaintiff said we should have been at the commencement of the case. What the defendant should have done is come before your Honour and said we may have mislead the plaintiff into thinking that the defence was abandoned some time ago, indeed we probably did in November 2013 so we now make an application to rely on that defence and your Honour would have considered it on those things. Now that the defendant is actually making that application it is crystal clear the defendant would never have put before your Honour any evidence to support such an application. It was not intending at any stage to put before your Honour any evidence of a mistake by the solicitor or the common assumption for example your Honour has found was incorrect and it's not intending to do now. It's just saying here's our application, we don't have any evidence, please rely on it. In those circumstances your Honour would in our submission not make any of the orders sought in the notice of motion 19The first defendant's motion filed in Court on the 18th of November 2013 is dismissed.