Hazel Edith Arnold v Commonwealth of Australia and Elevators Pty Limited [1995] ACTSC 129 (30 November 1995)

SUPREME COURT OF THE ACT

HAZEL EDITH ARNOLD v. COMMONWEALTH OF AUSTRALIA AND ELEVATORS PTY LIMITED
No. SC 1232 of 1987
Number of pages - 14
Practice and Procedure - Torts - Statutory Construction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Practice and Procedure - application to extend time - s.36 Limitation Act 1987 - notice of motion to add third defendant and cause of action out of time - application of various factors in s.36 which the Court is required to take into consideration - whether delay on plaintiff's part resulting from sheer inaction of plaintiff's previous solicitor, attributable to plaintiff - whether defendant to be added would be prejudiced by lack of relevant documentation considered - onus of proof upon plaintiff under s.36 - plaintiff needs to establish that extension of time under s.36 is just and reasonable in all the circumstances - importance of plaintiff having already commenced action against other parties.

Torts - personal injury - negligence - injury sustained by plaintiff being a member of the public, whilst in lift caught between floors - breach of statutory duty - whether breach of Scaffolding and Lifts Regulations gives rise to private cause of action - whether Scaffolding and Lifts Regulations vest member of public with private cause of action - whether statutory provisions were so vague as to not give rise to a remedy - whether terms "maintain", "safe", "proper working condition" are vague - meaning of "maintained" discussed.

Statutory Construction - whether sub-regulation 67(1) of Scaffolding and Lifts Regulations is ultra vires Scaffolding and Lifts Ordinance 1957 - it is not.

Regulations under the Scaffolding and Lifts Act 1912-1948 (NSW) as applied and modified in the Australian Capital Territory
Scaffolding and Lifts Act 1912 (NSW)
Limitation Act 1987

Jacob v. Utah Construction and Engineering Pty Limited and Another [1966] HCA 67; (1966) 116 CLR 200

Australian Iron and Steel Limited v. Ryan [1957] HCA 25; (1957) 97 CLR 89
Galashiels Gas Co. Ltd. v. O'Donnell or Millar [1930] HCA 41; (1949) AC 275
O'Connor v. S.P. Bray Limited [1937] HCA 18; (1936) 56 CLR 464
Utah Construction and Engineering Pty. Ltd. and Another v. Janos Pataky

(1966) AC 629

Moore v. Concast Pty Ltd (1972) 2 NSWLR 687 at 690
S and B Pty Ltd v. Podobnik [1994] FCA 1433; (1994) 53 FCR 380

HEARING

CANBERRA, 18 October, 23 November 1995
30:11:1995

Counsel for the applicant: Ms. J. Godtschalk

Solicitors for the applicant: Snedden Hall and Gallop

Counsel for the respondent: Mr. G. Richardson

Solicitors for the respondent: Mallesons Stephen Jaques

ORDER

THE COURT ORDERS THAT:
1. The time in which the plaintiff may commence proceedings
against Permanent Trustee Australia Limited for breach of the
Regulations under the Scaffolding and Lifts Act 1912-1948 (NSW)
as applied and modified in the Australian Capital Territory be
extended to 3 August 1995.
2. Leave be granted to the plaintiff to further amend the
statement of claim by adding Permanent Trustee Australia Limited
as a third defendant and by adding an allegation of breach or
breaches of the said Regulations within fourteen days.
3. Costs of this application be reserved.

DECISION

MILES CJ This is an application to extend time in which to sue a proposed defendant and to amend a statement of claim in current proceedings by adding that defendant and adding the claim against that defendant.

Nature and history of proceedings
2. By the statement of claim endorsed on a writ issued 13 October 1987, Hazel Edith Arnold claimed as follows. On or about 5 May 1986 she was working as a clerk in the Commonwealth Department of Primary Industry at Ansett House in Canberra. On that day she entered a lift and pressed the button for the fourth floor. The lift came to a halt about 60 centimetres below the level of the third floor. She was obliged to make her escape by forcing the door open to gain access to the third floor. She claimed that she suffered injury thereby by way of aggravation of cervical spondylitis, aggravation of carpal tunnel syndrome and shock. The plaintiff then sued the first defendant (the Commonwealth) as her employer claiming in a rolled-up plea "negligence and/or breach of duty/and or breach of the said contract of employment". She also sued Ansett Transport Industries (Operations) Pty Ltd (Ansett) as a second defendant claiming "negligence and/or breach of duty and/or breach of duty as an occupier" of Ansett House. She also sued Elevators Pty. Ltd. (Elevators) as, initially, a third defendant claiming "negligence and/or breach of duty" of maintaining the lift.

3. The Commonwealth and Elevators filed defences with commendable speed, denying all the above allegations. By consent, on notice of motion by the plaintiff dated 17 June 1991, the Court ordered on 1 July 1991 that the statement of claim be amended by striking out the claim against Ansett and substituting Elevators as the second defendant. An affidavit sworn by the plaintiff's then solicitor on 12 June 1991 stated that "after lengthy investigation" he had received material to indicate that Ansett was not the occupier of the premises at the time of the plaintiff's injury and that he had been advised by counsel that no cause of action existed against Ansett. The affidavit says nothing about any information gained as to the identity of the true occupier (or owner). One might venture to add that such information might not have been difficult to obtain. The identity of the occupier is relevant to the discretion to be exercised in relation to the application now before the Court. It is also relevant to note that the affidavit annexes correspondence from the solicitors for the Commonwealth and solicitors for Elevators in 1988 from which the inference is to be drawn that as early as 1 June 1988 the plaintiff's then solicitors took the view that no action lay against Ansett as occupier or otherwise.

4. On 1 July 1991 the plaintiff's then solicitors filed an amended statement of claim in accordance with the order made that day. The amended statement of claim effectively removed Ansett as a defendant and substituted Elevators as the second defendant. It also made the substantial and new allegation that the Commonwealth was the occupier of Ansett House and that the plaintiff's injury was caused by the breach by the Commonwealth of the duty of an occupier.

5. An amended defence was filed by Elevators on 10 March 1992. It raised additional matters of inevitable accident, contributory negligence and voluntary assumption of risk.

6. An amended defence was filed by the Commonwealth on 19 May 1992. It added the denial that the Commonwealth was the occupier of Ansett House.

7. An affidavit of documents sworn 7 April 1992 was filed on behalf of Elevators. It discloses documents in the nature of lift maintenance agreements, maintenance schedules and fault reports. The affidavit does not reveal the identity of the parties to the maintenance agreements.

8. An affidavit of documents sworn on 30 April 1992 was filed on behalf of the Commonwealth. It discloses documents relevant to the plaintiff's injury and her claim for compensation. It appears to shed no light on the identity of the occupier of the premises or anything relating to maintenance of the lifts.

9. The Commonwealth filed answers to the plaintiff's interrogatories on 10 November 1992. The answers are inconsistent with the Commonwealth's denial of occupancy of Ansett House. They reveal that the Commonwealth was aware of complaints about the lifts "from initial occupancy" and that action was taken to notify verbally the lessee - the Department of Administrative Services - as such complaints were brought to the attention of the property manager or his staff. They reveal also that the Commonwealth was aware that the lifts had been "unreliable" for a couple of days before 5 May 1986. They do not enable any inference to be drawn as to the state of awareness of the Commonwealth as at that date of any action taken by Elevators to check the operation of the lifts or to repair any fault.

10. Answers to the plaintiff's interrogatories were filed on behalf of Elevators on 20 April 1993. The answers are inconsistent with Elevators' denial that it had charge of maintenance of the lifts. They suggest that on 5 May 1986 at 11.16 a.m. at the Ansett Centre, lift No. 3 was reported as "intermittently dropping". Some adjustment to the "forced slow down circuit" appears to have been made by an Elevators' mechanic between about 1.15 and 2 p.m. A similar complaint appears to have been made on 8 May 1986 of lift No. 3 at the fourth floor which was reported to be "plummeting then dropping down the lift well".

11. On 7 July 1994 the plaintiff, concerned about the delay, sought advice from her present solicitors. Eventually the present solicitors obtained the file from the previous solicitors in March 1995. There is no explanation of why it took so long to obtain the file. According to the affidavit of the present solicitor, sworn 3 August 1995, he noted on reading the file that "the owner of the building and lift in which my client was injured was Permanent Trustee Australia Limited". The affidavit does not state what it was in the file which attracted his notice, but there is annexed to the affidavit a photocopy of a Certificate of Title of a lease over land described as Block 8 Section 35 City delineated in a Deposited Plan (the number of which is illegible in the copy on the court file). The copy certificate of title bears an endorsement entered 4 December 1984 recording a transfer of the lease to Permanent Trustee Nominees (Canberra) Limited. Other endorsements show a sub-lease of certain areas of the land to the Commonwealth (entered 21 December 1994) and two sub-leases of certain areas of the land to Ansett (both entered on 30 August 1985). I was not told and am not aware of anything in this material from which an inference can be drawn as to the ownership or occupancy of Ansett House.

12. A further affidavit of the solicitor sworn 28 August 1995 indicates that the name of the company Permanent Trustee Nominees (Canberra) Limited was changed to Permanent Trustee Australia Limited on 28 October 1987. An affidavit sworn on 13 October 1995 by Clive Guthrie, Manager, Client-Service, of Permanent Trustee Company Limited (an associated company of Permanent Trustee Australia Limited), states that Permanent Trustee Australia Limited (Permanent Trustee), as it now is, was "the registered proprietor of Ansett House at 4 Mort Street, Canberra from December 1984 to August 1989" and held the property as trustee for a group of companies known as the Hooker Trust".

13. The present solicitor also discovered in the file received by him an advice from counsel dated 25 September 1992 advising that "the building owner" be joined as a third defendant. (Counsel's advice is not annexed to the solicitor's affidavits and I do not know whether counsel advised as to whether the building owner could be identified on the material briefed or whether counsel advised or considered the question of the identity of the occupier as contrasted with the identity of "the building owner".) The same counsel was then briefed by the present solicitor to draw the necessary documents to make the application in accordance with his advice given nearly three years previously. The present application was initiated by notice of motion dated 3 August 1995.

14. If leave to extend the period in which to sue is granted, the plaintiff seeks to further amend the statement of claim by adding Permanent Trustee as the third defendant and by adding the following allegations against Permanent Trustee to the already amended statement of claim:

"5A At all material times the third defendant
a. was and is a company capable of being sued in its own name,
and
b. was the owner of the lift.
9A Further or in the alternative the plaintiff's injuries were
caused by breach of statutory duty by the third defendant."

15. The notice of motion has not been served on the Commonwealth nor on Elevators and neither of those defendants has appeared at the hearing of the motion. It is appropriate that no findings be made or appear to be made adverse to the interests of either of those defendants.

16. I have referred to this material in some detail because it seems to have been assumed at the hearing of the application that the fact of ownership of the lift by Permanent Trustee could be inferred from the material now before the Court. That hypothesis does not sit easily with the allegation in the amended statement of claim that the Commonwealth was the occupier of the building in which the lift was situated. The issue of ownership of the lift as contrasted with occupation or ownership of the building was addressed only in passing.

17. It is to be noted also that the proposed claim against Permanent Trustee is solely for breach of statutory duty. The plaintiff has made no claim in negligence against Permanent Trustee, although, assuming a duty of care, breach of statutory duty is evidence of breach of duty of care.

Regulation too vague to be enforceable?
18. Mr. Richardson, SC, for Permanent Trustee put as his principal submission that the extension of time should not be granted because as a matter of law the plaintiff could not succeed against his client on the proposed further amendments to the statement of claim.

19. Arguing general principle, Mr. Richardson submitted that the extension of time should not be granted because the plaintiff's case, as it was proposed to be pleaded, was bound to fail as a matter of law. The plaintiff has sought to plead in the proposed amendment to the statement of claim, an alleged breach of statutory duty by Permanent Trustees of sub-regulation 67(1) of the Regulations under the Scaffolding and Lifts Act 1912-1948 (NSW) as applied and modified in the ACT. That sub-regulation commences with the words: "Every lift and all parts thereof shall be maintained in conformity with these Regulations, and in safe and proper working condition, and in accordance with the following provisions". Sub-regulation 67(1) then proceeds to spell out nine obligations of a more specific nature.

20. In the first instance, Mr. Richardson placed reliance on Jacob v. Utah Construction and Engineering Pty Limited and Another [1966] HCA 67; (1966) 116 CLR 200 for the proposition that the opening words of sub-regulation 67(1) are too vague to create a right of action. However, I do not think that Jacob v. Utah Construction is decisive of the issue as it was concerned with the construction of regulation 73, which imposes a duty on persons carrying out building work to "take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work". Regulation 73 continues, "without limiting the generality of the foregoing" by specifying 22 obligations directed towards measures of a particular kind to be taken in the carrying out of building work.

21. To the extent that both regulation 73 and sub-regulation 67(1) set down obligations of a more specific nature, they do indeed bear a superficial similarity. The preceding words of sub-regulation 67(1), however, are quite different in kind from those in regulation 73. It should be noted that the further amendment to the amended statement of claim proposed in the notice of motion does not allege breach of any of the nine more specific obligations enumerated in sub-regulation 67(1), a matter to which I shall return.

22. Whether a provision in a statute or regulation is vague or clear or general or specific, is inevitably a matter of degree. As a matter of ordinary English language usage, the introductory words of regulation 73 are, in my view, considerably vaguer and more general than those in sub-regulation 67(1). The essential question is whether they are so vague as not to give rise to a remedy for breach. References to cases concerned with other regulations and statutory provisions are of some assistance but not determinative. For instance, a provision in sub-regulation 73(2) imposing a duty to "provide and maintain safe means of access to every place at which any person has to work at any time" was challenged in Australian Iron and Steel Limited v. Ryan [1957] HCA 25; (1957) 97 CLR 89, and was held to impose a duty enforceable by penalty and by private right of action. The terms "maintain", "safe" and "proper working condition" and words of similar effect appear in several key provisions in the regulations and other industrial safety legislation and have not led to judicial declaration that they are ineffective for vagueness. A particular case in point is Galashiels Gas Co. Ltd. v. O'Donnell or Millar [1930] HCA 41; (1949) AC 275 in which the statutory provisions were that "every .... lift .... shall be properly maintained" and that the expression "maintained" meant "maintained in an efficient state, in efficient working order and in good repair". It was held that these provisions (very similar to those in sub-regulation 67(1)) imposed an absolute and continuing obligation, breach of which was established by proof of any failure in the mechanism of a lift and which breach gave right to damages to an injured worker.

23. In my view, the first submission that the commencing words of sub-regulation 67(1) are unenforceable for vagueness must be rejected.

Does breach of sub-regulation 67(1) confer a private cause of action?
24. It should be noted that Mr. Richardson did not argue that, on its proper construction as a whole, sub-regulation 67(1) did not give rise to a private cause of action for breach of statutory duty on the ground that it imposed a duty in general and not, like regulation 73, a duty owed to a particular "class" of people. Such an argument would have been bound to fail in the light of O'Connor v. S.P. Bray Limited [1937] HCA 18; (1936) 56 CLR 464. In that case the High Court considered sub-regulation 31(b) (as it then was) of the Scaffolding and Lifts Act 1912 (NSW) which provided that, with certain exceptions, safety gear must be provided for all lifts. Dixon, Evatt and McTiernan JJ held that a person injured as a result of breach of the statutory duty thus imposed had a private cause of action against the person responsible under the regulation for the care, control and management of the lift. In a passage which is regarded as a classic statement of the liability of an employer to an employee injured as a result of an employer's breach of a duty imposed by statute, Dixon J (as he then was) said at pp.477-8:

"The difficulty is that in such a case the legislature has in
fact expressed no intention upon the subject, and an
interpretation of the statute, according to ordinary canons of
construction, will rarely yield a necessary implication
positively giving a civil remedy. As an examination of the
decided cases will show, an intention to give, or not to give, a
private right has more often than not been ascribed to the
legislature as a result of presumptions or by reference to
matters governing the policy of the provision rather than the
meaning of the instrument. Sometimes it almost appears that a
complexion is given to the statute upon very general
considerations without either the authority of any general rule
of law or the application of any definite rule of construction.
..... Perhaps, in the end, a principle of law will be
acknowledged as the foundation of the cases. In the absence of
a contrary legislative intention, a duty imposed by statute to
take measures for the safety of others seems to be regarded as
involving a correlative private right, although the sanction is
penal, because it protects an interest recognized by the general
principles of law. ......
Whatever wider rule may ultimately be deduced, I think it may be
said that a provision prescribing a specific precaution for the
safety of others in a matter where the person upon whom the duty
laid is, under the general law of negligence, bound to exercise
due care, the duty will give rise to a correlative private
right, unless from the nature of the provision or from the scope
of the legislation of which it forms a part a contrary intention
appears. The effect of such a provision is to define
specifically what must be done in furtherance of the general
duty to protect the safety of those affected by the operations
carried on.
The difficulty in applying this view to clause 31(b) of the
schedule to the Scaffolding and Lifts Act 1912 arises from the
fact that it is only one of many provisions widely differing in
scope and character for the regulation of scaffolding and lifts.
A great number of these provisions clearly does not create any
private right. A civil remedy would be inappropriate for the
duties prescribed by many of them and opposed to the general
sense of many others. But I think that the nature of the
specific duty imposed by clause 31(b) makes the general rule
prima facie applicable and that the fact that side by side with
it are regulations creating no private right is no sufficient
reason for denying a civil remedy for a breach of clause 31(b)."

25. That the principle extends beyond the field of employer liability is evident in the passage of Evatt and McTiernan JJ at 486-487:

".....it seems to us that, in the case of reg.31(b), it is
reasonably clear that the legislature was creating a duty, not
only to the State, but to all persons who might lawfully be
using the lift. Its paramount concern is that persons using the
lift shall be protected from the danger of the lift's falling.
We agree that cases of actions for breach of statutory duty
cannot be confined to instances where the plaintiff belongs to
some so-called 'special class of the community' (Phillips v.
Britannia Hygienic Laundry Co. (1923) 2 KB at 841). Here the
dominant consideration is prevention of danger to all persons
brought into proximity to a specific peril which can easily be
avoided if the regulation is observed. If the duty is not
observed, we consider that persons injured as a result of such
non-observance have a good cause of action against the person
responsible under the regulation for the care, control and
management of the lift."

Is sub-regulation 67(1) beyond power?
26. The passages just quoted are of assistance in considering the next submission of Mr. Richardson, which was that the provisions of sub-regulation 67(1) are invalid because they go beyond the regulation-making power granted by the Scaffolding and Lifts Act itself. The power is conferred by sub-s.22(g) of the Act which provides that the power given to the executive under the Scaffolding and Lifts Ordinance 1957 (sic) to make regulations shall be deemed to include the power to make regulations not inconsistent with the Act.

"(g) relating to -
(i) the proper design, construction, erection, use and
maintenance of cranes, hoists, lifts, plant, scaffolding and
gear;
....
(v) safeguards and measures to be taken for securing the safety
and health of persons engaged in building work, excavation work
or compressed air work, or at or in connection with cranes,
hoists, lifts, plants, scaffolding or gear."

27. The key words here, for the purposes of the present case are in (i) "relating to the proper maintenance of lifts" and in (v) "safeguards and measures to be taken in connection with lifts".

28. In Utah Construction and Engineering Pty. Ltd. and Another v. Janos Pataky (1966) AC 629, the Privy Council held that certain of the regulations relating to excavation work made under para.22(2)(g) of the Act were outside the power conferred by the section. In particular it was held that the power to make regulations relating to "the manner of carrying out ..... excavation" conferred by sub-para.22(2)(g)(iv) did not justify a regulation imposing an absolute duty to protect a tunnel or an absolute duty to ensure the safety of persons employed therein. It was observed in general terms that the words "relating to the safeguards and measures to be taken for securing the safety and health of persons engaged in excavation work" in sub-para.22(2)(g)(v) applied only to the means of achieving the end and not to the end itself and for that reason did not authorise a regulation prescribing that a tunnel shall be securely protected and made safe.

29. The sub-regulation relied on in the present case and the key words of para.22(2)(g) are different from those under consideration in Pataky.

30. The regulations concerned with the minimisation of risk of accidents and prevention of injury to persons engaged in construction work are to be given a liberal interpretation in favour of a worker injured as a result of breach: Moore v. Concast Pty Ltd (1972) 2 NSWLR 687 at 690. In view of the judgments in O'Connor v. Bray, regulations concerned with minimisation of risk and prevention of injury to persons placed at the risk of injury by the operation of lifts, whether members of the public, invitees in the legal sense, workers in the course of their employment or anybody else ought to be approached similarly. Taking that line of approach, I do not think that regulation 98 relating to excavation work, which was held in Pataky to be beyond power, should be regarded as on all fours with the regulations now under challenge. Furthermore, the key words in the statute relevant to the present case are not identical with those in Pataky. The words in sub-s.73(1) authorising regulations relating to "safeguards and measures" for securing the safety of certain workers, was held to authorise only regulations prescribing specific measures and not a regulation "merely echoing the words of the section" by prescribing that a tunnel must be safe. In contrast, the present case is not confined to regulations concerning safeguards and measures for securing the safety of those persons contemplated by sub-para.22(2)(g)(v). It extends to a wider category of regulations, that is to say, those authorised by sub-para.22(2)(g)(i) "relating to the proper maintenance of lifts" and by (v) "in connection with lifts". As I have already said, consonant with the judgments of Evatt and McTiernan JJ in O'Connor v. Bray, sub-reg.67(1) is concerned with a wider net of protection than that of safety in industry and extends to protect all persons who use or who might reasonably be expected to use lifts. The requirement that all lifts be maintained in a safe and proper working condition, in my view, does not merely echo the words of sub-para.22(2)(g)(i). Furthermore, the term "working order" at the very least directs attention to a particular aspect of the maintenance of lifts and focuses on a narrower subject matter than the words "in connection with lifts" in sub-para.22(2)(g)(v). Sub-regulation 67(1) therefore is not invalid as beyond the regulation making power nor are its opening words when viewed separately.

Who was the owner of the lift?
31. The next submission on the part of Mr. Richardson was that the Commonwealth was the owner of the lift at the relevant time. For the purposes of the Act, s.1 provides that the term "owner" of a lift includes the owner, mortgagee in possession, lessee, hirer or borrower thereof. As the definition also applies to any crane, gear, hoist, plant or scaffolding, it may be inappropriate to apply all the terms in the section to lifts. The inference on the meagre evidence before me is that the lift in question was part of the realty and part of the land and building which was sub-leased by Permanent Trustee as sub-lessor in part to the Commonwealth as sub-lessee on 31 December 1984, and in part to Ansett as another sub-lessee on 21 November 1983 and again to Ansett on a date in 1985 (the exact date in the endorsement on the Certificate of Title is illegible). Counsel's advice to the plaintiff's previous solicitor that Ansett was not the occupier of the premises is of no evidentiary weight. I bear in mind the admission of the Commonwealth in the answers to interrogatories that it occupied Ansett House, but this cannot be conclusive at this stage of the proceedings. Unsatisfactory as it is, the evidence leaves open the possibility that the Commonwealth did not occupy, lease, or "own" the whole of the premises or "own" the lifts within the meaning of the Act. Ultimately Mr. Richardson did not submit that I should refuse the application on the ground that there is no evidence that Permanent Trustee was the owner of the lift. (No submission was put relying on the Commonwealth's ultimate title to all land in the ACT.)

Breaches of specific paragraphs of sub-regulation 67(1)
32. Ms. Godtschalk, for the plaintiff submitted that although the proposed amendment to the statement of claim did not rely upon breach of any of the provisions of paras.(a) to (i) of sub-regulation 67(1), there was evidence of breach of paras.(e), (f), (g) and (i). These paragraphs provide as follows:

"(e) (The requirement that) the enclosure door interlocks shall
be maintained in conformity with Regulation 29.
(f) All safety gear shall be kept in effective working
condition.
(g) All limit gear, and other safety devices shall be maintained
in proper working condition and correct adjustment.
(i) The controlling mechanism of all hydraulic lifts shall be
maintained in such condition that:-
(i) The lift will automatically stop before the car lands or the
ram reaches its permanent stop,
(ii) The lift will stop in the event of breakage of the control
rope, and
(iii) Creeping will not occur when the valve is in the "stop"
position."

33. The relevant part of sub-regulation 29(1) requires that the electro-mechanical interlocks to the doors of a lift shall ensure that:

"(b) Each enclosure door may only be unlocked and opened when
the car is stationary and its floor is level with the landing or
within nine inches thereof at which the enclosure door is
situate or the car is within the control of the levelling device
at that landing."

34. None of the terms in these paragraphs are defined by the Act or by the regulations and without expert evidence it is difficult to know exactly what is required to prove a breach. However, in my view, the material at present before the Court relating to the circumstances in which the plaintiff received her injury, particularly the stopping of the lift some half metre below floor level, is some evidence that the safety gear, limit gear, and other safety devices of the lift in question were not in proper working condition. Further there appears to be prima facie evidence of breach of para.(e) and of sub-regulation 29(1) in that the enclosure door was able to be opened when its floor was not level with the landing or within nine inches of it: According to Grierson: Electric Lift Equipment for Modern Buildings (London, 1928) at 100-101, the collapsible gate fitted to the cage of enclosure section of a lift is provided with an interlocking mechanism which requires the gate to be closed before the cage can be started and which prevents the doorway at the landing being opened until the cage is at rest opposite the floor or landing.

Application of s.36 of the Limitation Act 1987
35. Finally it was submitted that the application should fail because of the various factors that s.36 of the Limitation Act 1987 requires the Court to take into consideration and because ultimately the plaintiff has not discharged the onus of showing that it was just and reasonable to extend the time. I deal with the various factors in turn.

(a) Length and reasons for delay on part of plaintiff

It is necessary to repeat some of the foregoing.
The cause of action alleged accrued on 5 May 1986. Time for commencing

proceedings against Permanent Trustee expired on 4 May 1992. The notice of motion was taken out on 3 August 1995. However, it is relevant to observe that the issue of the writ against the Commonwealth, Ansett and Elevators on 11 October 1987 was well within time and that defences were filed on behalf of the Commonwealth and Elevators before the end of 1987. No defence appears to have been filed on behalf of Ansett. The naive assertion by the plaintiff's previous solicitor in his affidavit of 12 June 1991 that he was informed by the plaintiff and verily believed that the second defendant was the occupier of the premises is difficult to accept. It is possible but, in the absence of explanation, unlikely that the plaintiff knew who the occupier was. The plaintiff's own affidavit suggests that nobody asked her to direct her attention to this sort of question until March 1995. The solicitor does not disclose the material which he put before counsel which resulted in the opinion from counsel that Ansett was not the occupier and that no cause of action existed against Ansett. The solicitor does not explain whether, if he was satisfied that there was no case against Ansett as occupier or otherwise, he gave any consideration to the identity of the true occupier. Nor does the affidavit condescend into detail about why it took two and a half years from the filing of the defences for the solicitor to conclude as he did. Amendment of the statement of claim seems to have been made on 1 July 1991 although the order for amendment was not taken out until 1 November 1991. A defence to the amended statement of claim was filed on behalf of Elevators on 10 May 1992 and on behalf of the Commonwealth on 19 May 1992. There was discovery and the administering of interrogatories which also took place over an extended period. The answers of Elevators to the plaintiff's interrogatories were not filed until 20 April 1993. The plaintiff's present solicitors filed a notice of change of solicitors on 30 March 1995. Nothing seems to have happened in those intervening two years. The relatively prompt steps taken by the plaintiff's present solicitors have already been outlined. The plaintiff's former solicitor was not called to give evidence and one hesitates to make findings adverse to him in his absence, but the case as it stands, and in the absence of further explanation, is eloquent that the appalling delay between the end of 1987 and mid-1991 and then between April 1993 and March 1995 was due to sheer inaction on the part of the plaintiff's previous solicitor. A matter known to the Court which may have contributed to the delay is that disciplinary proceedings were in train against the previous solicitor acting for Elevators and that solicitor was eventually struck off: see Re a Solicitor (1992-1993) 110 FLR at 9. If it did contribute to the delay I would have expected it to be referred to on behalf of one party or both in the present application. If it did contribute, it was through no fault of the plaintiff.
It may also be observed that neither the Commonwealth nor Elevators sought to enliven the case during the periods of inaction on the part of the plaintiff. Insofar as that also contributed to the delay, it was through no fault of the plaintiff. Nor, of course, was it due to any fault on the part of Permanent Trustee.

(b) Prejudice to the defendant
It was submitted that there would be considerable prejudice to Permanent Trustee if time were extended. It was said that Permanent Trustee was a "mere landlord" who played no active part in the administration of the building and the operation of the lifts and that there is an absence of records which Permanent Trustee might have been able to consult if the action against it had been brought within time. However, subject to the remarks which follow, there is no evidence whether or not relevant records ever existed and what they were if they did or when they were destroyed if they were or whether they have simply been lost. A copy of an agreement between the Hooker Trust (which was administered by Permanent Trustee) and Elevators for the maintenance by Elevators of three electric lifts installed in Ansett House at 4 Mort Street, Braddon was produced after the initial hearing of the present application. There are also some records relating to the plaintiff's injury and to her physical disability disclosed in affidavits of documents filed by the Commonwealth and by Elevators. There is no reason why Permanent Trustee should not have access to these documents. On the face of it, I do not see why Permanent Trustee, if it were joined, would suffer substantially greater prejudice than the other parties in the case have suffered or might suffer because of delay.
A submission that Permanent Trustee has lost the opportunity to bring indemnity proceedings against Elevators or some other party, was abandoned.
The claim on behalf of Permanent Trustee that it was a "mere landlord" upon whom no duty lay to take active steps to prevent injuries to persons using the lifts is considerably weakened if it can be established that Permanent Trustee was the owner of the lift within the meaning of sub-regulation 67(1). I have already indicated that there is evidence capable of establishing that.

(c) Conduct of defendant after the event
Nothing is to be said against Permanent Trustee (or in its favour) in relation to this matter.

(d) Duration of disability of plaintiff
"Disability" means legal disability, such as infancy or unsoundness of mind. It is irrelevant in this case.

(e) Action after awareness of cause of action
The plaintiff caused a writ to be issued well within time. She did not know that she might have a cause of action against "the owner of the building" until March 1995. She caused the present application to be made some five months after the present solicitors became aware that the circumstances gave or might have given a right of action against Permanent Trustee. These five months did not add anything material to any prejudice that might be suffered by Permanent Trustee as a result of the preceding long delay. The plaintiff's former solicitors should have been aware that the possibility of a cause of action under the regulations needed investigation and that advice from suitable counsel should have been obtained. Furthermore, they should have so informed the plaintiff. There is no evidence that they did so at an early opportunity. The precise contents of the advice of counsel to the previous solicitors is not disclosed. Whether or not the solicitors were advised to try to identify the true owner of the lift or to sue the true owner of the lift is also not known to the Court. As far as the plaintiff is concerned, the only inference is that she herself could not have been expected to know that she had a possible cause of action against Permanent Trustee until after she had consulted her present solicitors. Whether she even knew that she might have a cause of action under the Scaffolding and Lifts Regulations does not emerge.

Exercise of discretion and onus of proof
36. The ultimate question is whether the plaintiff has shown that it is just and reasonable in all the circumstances that the time in which to sue as set by the Limitation Act should be extended. Apart from everything so far mentioned, another circumstance of importance is that the plaintiff has already commenced proceedings against the Commonwealth and Elevators in negligence and other more dubious causes of action. The liability of those parties to the plaintiff to the extent that either of them contributed to the plaintiff's injury, is far from clear. As O'Connor v. Bray establishes, the prime concern of the relevant regulations is to prevent damage to all persons who use lifts, a danger which can be avoided if the regulations are observed. The duty of observing the regulations is cast on the owner of the lift. There is evidence which points to Permanent Trustee being the owner of the lift and therefore subject to the regulations. It is essential, if justice is to be done amongst all the present parties to the action, that the owner of the lift be identified and joined. The prejudice to Permanent Trustee in being joined at this late stage is well out-weighed by the need to do justice among all the parties. Balancing one factor against another is not the test for allowing the removal of the limitation bar (see S and B Pty Ltd v. Podobnik [1994] FCA 1433; (1994) 53 FCR 380), but having regard to all the circumstances I am convinced that the plaintiff has discharged the onus of showing that it is just and reasonable to extend the time to sue Permanent Trustee. Insofar as the proposed amendments to the statement of claim as set out in the notice of motion dated 3 August 1995 are inadequate, the plaintiff should have a further fourteen days in which to properly amend the statement of claim. I therefore extend the time in which the plaintiff may commence proceedings against Permanent Trustee for breach of the Regulations under the Scaffolding and Lifts Act 1912-1948 (NSW) as applied and modified in the ACT to 3 August 1995. I give leave to the plaintiff to further amend the statement of claim by adding Permanent Trustee Australia Limited as a third defendant and by adding an allegation of breach or breaches of the Scaffolding and Lifts Regulations. Such amendment is to be made within fourteen days.

37. As to costs, I think that because of the inadequate state of the proposed amended statement of claim and of the inordinate delay, the costs of the application should not in any event have to be paid by Permanent Trustee. As between the plaintiff and the other defendants, however, the question should remain open. The appropriate order is that the costs be reserved. I am compelled to add that on the material before me the need for the present application appears to be the inaction on the part of the plaintiff's previous solicitors, and that whoever amongst the parties is ultimately ordered to pay the costs of the application should be entitled to recover those costs from those solicitors. The solicitors would be entitled to be heard if they so wished.