Andrew Klobucar v Neocoat Pty Limited and Westfield Design and Construction Pty Ltd [1999] ACTSC 96 (1 October 1999)

Last Updated: 6 October 1999

ANDREW KLOBUCAR v NEOCOAT PTY LIMITED and WESTFIELD DESIGN AND CONSTRUCTION PTY LTD [1999] ACTSC 96 (1 October 1999)

CATCHWORDS

LIMITATION OF ACTIONS - personal injury - plaintiff initially fails to bring action against third party - limitation period expires - whether third party can be joined as second defendant after expiration of time period - Court's powers in relation to joinder of parties discussed - whether just and reasonable to extend time bar - relevant factors considered - unexplained and excessive delay by plaintiff - if time bar extended defendant will be prejudiced by facing risk of adverse findings - claim reasonably substantial - the action of third party's solicitor decisive - solicitor originally indicated there was no objection to being joined however months later he sought to resile from this position - held in all the circumstances just and reasonable to order an extension of time and the joinder of third party as second defendant.

Limitation Act 1985 (ACT)

Scaffolding & Lifts Regulations (ACT)

Law Reform (Miscellaneous Provisions) Act 1955, Part IV

English Rules of Court, O 20 r 5

Rules of the Supreme Court 1970 (NSW)

Weldon v Neal (1887) 19 QB 394

Golski v Kirk (1987) 72 ALR 443

Nectaria Nominees Pty Ltd v Commonwealth 1993 15 ATPR 40, 899

Emanuele & ors v Hedley & ors [1997] ACTSC 13 (7 March 1997), [1997] ACTSC 13; (1997) 137 FLR 339

Philip Morris v Bridge Shipping [2000] VSCA 172; [1994] 2 VR 1

Fernance v Nominal Defendant (1989) 17 NSWLR 710

Rodriguez v Parker [1967] 1 QB 116

Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703

Ketteman v Hansel Properties Ltd [1987] AC 189

Baldry v Jackson[1976] 2 NSWLR 415

Australian Coastal Shipping v Curtis Cruising (1989) 17 NSWLR 734

Cockerill v Westpac Banking Corp (1991) 32 FCR 36

Seas Sapfor Ltd v Far Eastern Shipping Co (1995) 39 NSWLR 435

Archbishop of Perth v A to JC inclusive (1995) 18 ACSR 333 (NSWCA)

Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127

Brambles Construction v Helmers [1966] HCA 3; (1966) 114 CLR 213

Harper v Gray & Walker (1985) 1 WLR 1196

Chamberlain v Deputy Commissioner for Taxation [1988] HCA 21; (1988) 164 CLR 502

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Daroczy v B & J Engineering (1984) 55 ACTR 29

South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2QdR 153 (CA)

Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd (1997) 146 ALR 120 (QSC)

No. SC 919 of 1992

Judge: Higgins J

Supreme Court of the ACT

Date: 1 October 1999

IN THE SUPREME COURT OF THE )

) No. SC 919 of 1992

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANDREW KLOBUCAR

Plaintiff

AND: NEOCOAT PTY LIMITED

Defendant

AND: WESTFIELD DESIGN AND CONSTRUCTION PTY LTD

Third Party

ORDER

Judge: Higgins J

Date: 1 October 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The time for commencing an action against the third party be extended.

2. The third party shall be joined as a second defendant in the existing proceedings.

1. This is an application by the plaintiff to extend the time for commencing an action against the abovenamed third party (Westfield) pursuant to s 36 of the Limitation Act 1985 (ACT) (ACT Limitation Act). Further, application is made, pursuant to O 19 R 5 of the Supreme Court Rules, that Westfield be joined with the present defendant (Neocoat) as a (second) defendant in the existing proceedings.

2. The original action was commenced by Writ of Summons on 24 December 1992. The plaintiff sued Neocoat, his employer, alleging that, on 19 June 1989, the plaintiff suffered personal injury in the course of his employment whilst painting a gable in the ceiling at Westfield Shopping Centre, Belconnen. It was alleged that a partition wall "upon which the plaintiff's ladder was supported fell causing the plaintiff to fall...".

3. Neocoat was alleged to be negligent in failing to ensure that the workplace was safe, that the ladder was properly supported, that there was sufficient scaffolding (the plaintiff fell at least 2.4 metres) and/or that the partition wall was secure. It was also pleaded that the defendant had failed to comply with Regulation 80 of the Scaffolding & Lifts Regulations in force as at 19 June 1989.

4. A Defence was filed on 13 October 1993. On 16 May 1994, the plaintiff answered interrogatories administered by Neocoat. It appeared from those answers that the plaintiff was not asserting that he had fallen as a result of the loss of a supporting partition but rather that, for whatever reason, the partition collapsed onto his ladder knocking him from it, causing him and it to fall to the ground. A sketch depicted the ladder as an "A" frame style ladder.

5. On 24 June 1994 Neocoat issued a Third Party Notice against Westfield. It alleged that the negligence of Westfield had caused or contributed to the injury to the plaintiff. The allegations were, in essence, that Westfield had erected the partition wall so that it was unstable and might fall if a nearby roller door was activated. Westfield failed, it was alleged, to warn the plaintiff of the risk he assumed in painting the area.

6. Westfield appeared, filing a Defence to the Third Party Claim on 30 August 1994. It formally denied the allegations. Neocoat interrogated Westfield on 12 April 1996. However, answers were not delivered until 1 December 1997. It would be fair to conclude from those answers that there was a seriously arguable case against Westfield that it had negligently erected or destabilised the relevant partitions.

7. There was, on 19 April 1999, Notice of Discontinuance given by Neocoat to Westfield.

8. The plaintiff relied, in support of his application, upon an affidavit of Mark Thomas Fleming, his solicitor.

9. Mr Fleming first saw the file, until then handled by a partner in the firm, shortly after 1 February 1999. It had been taken over from a previous firm of solicitors in April 1996. By then, of course, the period of six years for commencing proceedings against Westfield had expired. However, it had been open to either firm to have earlier made application to extend time under s 36 of the ACT Limitation Act.

10. On 15 May 1997, counsel was briefed to advise the plaintiff's solicitors. A memorandum of advice was delivered dated 20 May 1997, though not stamped as "received" until 27 May 1997.

11. In that advice, counsel, Mr J Pappas, expressed serious doubts about the liability of Neocoat. The partition wall had collapsed without any contribution from the plaintiff's activities on behalf of Neocoat nor from anything else for which Neocoat was responsible. He advised that Westfield should be joined as a second defendant.

12. On 2 June 1997, the plaintiff's solicitors wrote to Westfield's solicitors proposing that Westfield, still then a third party, be joined as second defendant. Consent to that course was sought so that an application to the court might be avoided.

13. There was no written response but, on 8 July 1997, the plaintiff's solicitor recorded a note of an attendance by telephone on Mr Ken Cush, Westfield's solicitor. It reads:

"Ken Cush telephoned and advised that he had no objection to our suggestion that a second defendant be joined in this matter."

14. On 13 October 1997 Neocoat advised that it had no objection to the joinder of Westfield.

15. The plaintiff's solicitors sought to interrogate Westfield in the mistaken belief that Westfield had already been joined as a defendant. On 15 May 1998, Westfield's solicitor, in another telephone attendance, made the point that joinder had not yet occurred. The plaintiff's solicitor apologised for the premature administration of interrogatories and promised to deal with all outstanding issues.

16. On 18 May 1998, the plaintiff's solicitors attended by telephone on Westfield's solicitor proposing an "Amending Writ" with Westfield joined as a second defendant. Mr Cush said he would "seek instructions". Nothing further occurred until 7 January 1999. There was another telephone attendance. Mr Cush advised that he had still not obtained instructions concerning the joinder of Westfield as a defendant.

17. That attendance and the request for consent to the proposed joinder and amendments to the Writ and pleadings was confirmed by a letter bearing that same date sent from the plaintiff's solicitors to Mr Cush's firm. A response on 12 January 1999 did not further advance the matter. Mr Cush advised that instructions were still being sought.

18. The response finally emerged on 8 February 1999. Mr Cush wrote that Westfield "does not consent to being joined as a defendant". Hence, this application.

The test to be applied

19. Pursuant to O 19 r 5, the plaintiff is entitled to apply to add a defendant to the proceedings. If such an application is granted then, pursuant to O 19 r 14, the originating application, duly amended, is required to be filed and served on the new defendant. Order 19 r 12 provides that in the case of the addition of a new defendant "the proceedings as against such party shall be deemed to have begun only on the service of such application" (ie. the application as so amended).

20. The principles generally applicable to the addition of a new cause of action by way of amendment to existing proceedings after expiry of a relevant limitation period are laid down by Weldon v Neal (1887) 19 QBD 394. Although there are some exceptions eg. if the amendment merely further particularises an existing cause of action (see Golski v Kirk (1987) 72 ALR 443; Nectaria Nominees Pty Ltd v Commonwealth 1993 15 AFPR 40, 899), the general rule is that such an amendment ought not be permitted if its effect is to by-pass a limitation defence otherwise available to a defendant who wishes to rely upon it - see Emanuele & ors v Hedley & ors [1997] ACTSC 13 (7 March 1997); [1997] ACTSC 13; (1997) 137 FLR 339.

21. Those principles are equally applicable to an application to add a party to proceedings already commenced and, in consequence, to allege a cause of action against that party by way of amendment, even assuming it would be open to the Court to make an amending order retro-active to the date of the originating process.

22. However, there is an issue as to when, absent any special rule or order, such an order will take effect. The rules as to commencement of actions start with O 2. Rule 1 provides that an action is commenced "by the filing of an originating application ... unless otherwise provided by these Rules or any other law of the Territory".

23. That position is qualified by r 2(1). If an originating application is "lodged for filing" earlier than the date of filing the former date is the date of commencement of the action. Rule 2(2) and r 3 permit a person to commence proceedings by making an oral application even prior to lodgement of an originating application.

24. The ACT Supreme Court Act confers a wide jurisdiction and powers with respect to amendment of proceedings.

25. Section 20(1) of that Act provides:

"The Court has the following jurisdiction

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory."

26. Section 59 provides:

"(1) The Court may at any time, and on such terms as the Court thinks just, amend any defect or error in a proceeding in the Court.

(2) An amendment under subsection (1) is to be made for the purpose of determining the real questions in issue in the proceedings."

27. Section 60 provides:

"(1) No proceedings in the Court shall be invalidated by any formal defect or by any irregularity, unless the Court is of opinion that substantial injustice has been caused and that the injustice cannot be remedied by an order of the court.

(2) The court may make such an order declaring that any proceeding is valid notwithstanding any such defect or irregularity."

28. The relevant Rules are:

"Order19 Rule 12

(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties...the Court may, at any stage of the proceedings, either upon or without the application of any party...order...that the names of any parties, whether plaintiffs or defendants, who ought to have been joined...be added...Every party whose name is so added as defendant shall be served with an originating application...and the proceedings as against such party shall be deemed to have begun only on the service of such application.

[note: Rule 14 requires the originating application to have been amended as required in consequence of the joinder before service]."

29. Order 32 r 1 regulates amendment generally:

"(1) Subject to subrules (2) to (7) (inclusive), the Court may, at any stage of an action, on application by a party or of its own motion-

(a) order that any document in the action be amended; or

(b) give leave to any party to amend any document of that party in the action;

in such manner and on such terms as the Court considers just.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the action, of correcting any defect or error in the action or of avoiding multiplicity of actions.

(3) If there is a mistake in the name or identity of a party, an amendment may be made to correct the reference to the name of the party notwithstanding that the effect of the amendment is to substitute another person as a party.

(4) If-

(a) an amendment to correct a reference to the name of a party is made pursuant to an order under subrule (1); and

(b) the effect of the amendment is to substitute another person as a party;

the action shall, unless the Court otherwise orders, be deemed to have commenced with respect to that other person on the day on which the order was made.

30. So far as subrule (3) is concerned, subrule (7) provides that leave may be given for an amendment of that kind:

"...notwithstanding that the period of limitation has expired if the Court considers it just to do so."

31. To those provisions may be added:

"Order 64 Rule 5

[The Court may]

...enlarge or abridge the time appointed by these Rules ... for doing any act or taking any proceeding upon such terms (if any) as the justice of the case requires, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.

Order 69 Rule 1

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceeding void, unless the Court so directs, but such proceeding may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and upon such terms as the Court thinks fit."

32. It is arguable that, notwithstanding the express Rules to the contrary, there remains a discretion vested in the Court to back-date the effect of any joinder of a party and any consequential amendment. Weldon v Neal, after all, is a rule of practice not a rule of law.

33. The scope of the authority conferred on the Court by these provisions has been the subject of some controversy. In particular, as to whether, notwithstanding the mandatory form of rules such as O 2 r 1 (date of commencement) or O 19 R 12 a party may be relieved of the consequence of non-compliance therewith.

34. It is true that in some cases judgments and orders have been back-dated. Santow J in Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 reviewed various provisions of the NSW Supreme Court Act and Rules which, in his Honour's view, though confirming an extensive discretion to do so, did not authorise the making of orders excusing compliance with obligations, or the exercise of authority, deriving from statute.

35. In Philip Morris v Bridge Shipping [2000] VSCA 172; [1994] 2 VR 1. Ashley J considered whether a joinder order should be expressed so as to operate from the date of the original process or only from the date it was made. The latter date would have preserved the limitation defence. Victorian r 9.11(3) expressly provided that an amendment to an originating process takes effect only from the date of the order for amendment for the purposes of determining the date of commencement of proceedings. However, it was contended that the Court had power to vary the effect of that rule by backdating the date of commencement of the joinder.

36. His Honour rejected the view that such an order should be made, stating, at 14:

"Counsel for the plaintiff and Bridge were unable to refer me to any case where an order for joinder of a party had been made in a way that operated to defeat a limitation defence otherwise available to the added party. Such a step is one of very great significance. It would involve, in substance, the court abrogating the effect of an Act of Parliament."

37. The Court of Appeal (NSW) in Fernance v Nominal Defendant (1989) 17 NSWLR 710 also addressed that issue in rejecting an application to add an additional defendant and to amend the pleadings accordingly.

38. In that case, Gleeson CJ stated, at 720:

"It is to be borne in mind that, in New South Wales as in England, it is the Rules of Court which determine when an action is begun for the purposes of the Limitation Act, and not the Act itself."

39. English Rules of Court O 20 r 5 is regarded as relaxing the "settled rule of practice", affirmed by Weldon v Neal (supra), so as to permit the addition of new causes of action after expiry of a limitation period, if that is considered just - see Rodriguez v Parker [1967] 1 QB 116; Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703. That provision is replicated in ACT O 32 r 1(7).

40. Clarke JA in Fernance (supra) doubted whether, in the absence of a specific provision, the general rule as to the date on which an amendment takes effect applies in the case of the joinder of a new defendant. His Honour noted the then recent decision of the House of Lords in Ketteman v Hansel Properties Ltd [1987] AC 189. The effect of that decision was that, in the case of joinder, time for the purpose of limitation periods should not be regarded as relating back to the date of the original writ but rather to the date of joinder. That latter decision was, however, arguably inconsistent with an earlier decision of the NSW Court of Appeal in Baldry v Jackson [1976] 2 NSWLR 415.

41. Clarke JA expressed his view at 733 of Fernance (supra):

"In my opinion there is a clear distinction between a case in which a defendant is added and a case in which an additional cause of action is raised against an additional defendant. In the latter instance a party who is put on notice of proceedings before the expiry of the limitation period is required to widen the ambit of his defence whereas in the former a person may be brought into the proceedings years after the expiry of the relevant limitation period without any prior notice. This distinction is, I think, recognised in Pt 8, r 11(3), which leaves it open to any defendant who is joined pursuant to an order made under Pt 8, r 8 or r 10, to defend the action upon the basis that the relevant limitation period had expired before he was joined. Alternatively it provides the person who is sought to be joined as a defendant with the argument that no useful purpose would be served in making an order joining him."

42. That view was expressed as a "tentative opinion" in the light of Baldry v Jackson (supra).

43. The effect of the decision in Fernance v Nominal Defendant was further considered in Australian Coastal Shipping v Curtis Cruising (1989) 17 NSWLR 734. In that case, before the expiration of the relevant limitation period, the plaintiff applied both to amend the statement of claim and to add a further defendant. However, the amended document was neither filed nor served within that period though the order permitting the amendments had been made prior to the expiration of that period.

44. That case is clearly distinguishable from Fernance. The order in question was one effecting an amendment. It did not merely grant leave to do so. Thus no "relation back" question on the addition of a party arose. The joinder dated from the date of the order adding the new party. At that date, the limitation period had yet to expire.

45. Mahoney JA, however, sought to explain the effect of Fernance. His Honour expressed the view that the source of the power to add a party and thereby amend the originating process and pleadings was not confined to the rule as to parties (NSW Part 8 r 8) but may be also covered, wholly or partly, by the rule as to amendments (NSW Part 20).

46. Part 20 r 4 makes reference to both statutes of limitation and relation back. There is a qualified relaxation of the rule in Weldon v Neal similar to the English Rules of Court and those of this Court in the following cases:

"(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

(4) Where on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity.

(5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action."

47. Otherwise, the date of effect of an amendment is settled by sub-r 5A:

"An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim."

48. The issue squarely arose, in the context of the Federal Court Rules, in Cockerill v Westpac Banking Corp (1991) 32 FCR 36.

49. Pincus J held that, accepting the authority of Ketteman's case, there was no "relation back" in the case of the addition of a new defendant.

50. His Honour said, at 37:

"Suppose a suit is brought to recover damages in tort against the person who actually did the damage. Then, on the basis of Ketteman's case, if it is decided to join that person's principal, there would be no relation back, the cause of action against the new defendant not being the same as that against the original defendant.."

51. However, there was a specific rule, O 6 R 11(3) of the Federal Court Rules, which provided that :

"...where a party is added pursuant to an order under rule 8 or rule 10, the date of commencement of the proceeding so far as concerns him shall be the date of filing of the originating process amended so as to add him as party or, where an amended originating process is not filed, the date of the amendment adding him as a party."

52. That rule made it unnecessary to decide whether an amendment adding a party would relate back to the date of commencement of the proceedings for the purpose of any statute of limitations in the absence of such a rule and of any contrary order.

53. Also distinguishable is the case of Seas Sapfor Ltd v Far Eastern Shipping Co (1995) 39 NSWLR 435. In that case, the plaintiff had intended to sue defendant B but, in error, named A. The proposed amendment was sought outside the time limited by the Hague Rules. Part 20.4 of the NSW Rules permits substitution of a party ab initio where an error of such a kind has occurred. Santow J noted that the rules in question had been acknowledged by the NSW Court of Appeal in Archbishop of Perth v AA to JC inclusive (1995) 18 ACSR 333 to empower the conversion of a summons which merely sought an extension of the limitation period into a statement of claim which included a claim for personal injuries "though not the substitution of a different legal entity as a party where there was no mistake in the original nomination" (see Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127, at 171). The substitution was, therefore, permissible.

54. It should be noted that the express power granted under the NSW Supreme Court Rules to substitute or add a party after the expiration of a limitation period is limited to cases of a "mistake in the name of a party" (Part 20r, 4(1) and (3)). That had, in Seas Sapfor (supra) been interpreted as being confined to cases where the plaintiff intends to sue A but names B as opposed to the case where the plaintiff mistakenly believes that A is liable to him or her when it is B who is liable.

55. The present case clearly falls within the latter category of case and, even under the relaxation of Weldon v Neal represented by O 32 r 1(7) of the Rules of Court, the addition of the new party would not be permitted in such a way as to avoid the limitation laws which would otherwise provide a defence.

56. I would respectfully accept the view of Mahoney JA in Australian Coastal Shipping v Curtis Cruising (supra) that the rules as to adding or substituting parties can be regarded as supplemented by the rules relating to amendment. It follows that O 32 r 1(7) allows for the relaxation of the rule in Weldon v Neal to such an extent as may be "just" in the circumstances to which it applies even in the case of an amendment which has the effect of adding or substituting a party.

57. The Rules, however, also require that amendments which have the effect of adding or substituting a new cause of action, in the absence of a contrary order, take effect when made. That is the effect of the Rules. It is also the effect of applying the principle represented by Weldon v Neal.

58. I have not overlooked the possibility that, in an appropriate case, a joinder order might be back-dated. In Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2QdR 153 (CA) it was held that a joinder order might be backdated, "in special circumstances". In Archbishop of Perth v AA to JC (supra) it was held that Pt 20 r 1 of the NSW Rules was not confined to empowering the correction of mere irregularities or defects in a process.

59. Moynihan J in Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd (1997) 146 ALR 120 (QSC), held that an amendment might be back-dated so as to take effect as of the date notice of the claim was given.

60. However, even if there is power to back-date an amendment order, including joinder of a new defendant, it seems to me it could not predate the commencement of the original proceedings as defined in O 2 r 2. Nor would such a discretion be exercised so as to avoid the application of the Rules unless justice made it appropriate to do so.

61. In my view, It would not be "just" to apply O 32 r 1(7) so as to deprive a party of a limitation defence otherwise applicable.

62. The plaintiff conceded that, as a matter of discretion or otherwise, an extension of time is necessary under s 36(3) of the ACT Limitation Act.

63. It is, therefore, necessary to consider whether time should be extended under s 36 of the Limitation Act (or any other law permitting a relevant time bar to be extended) before considering whether to allow the proposed joinder and consequential amendments. An order extending time is necessary to avoid such an order being futile.

Should the time bar be extended?

64. It is common ground that the time bar of six years applicable to the plaintiff's cause or causes of action is or are extendable under s 36 of the ACT Limitation Act.

65. The plaintiff, of course, bears the onus of establishing, in the end result, that it is "just and reasonable" to extend the time bar. It must be "just and reasonable" to do so not merely from the viewpoint of the plaintiff but also from that of any other interested party and, given the interest of the public in the proper functioning of the justice system, the public.

66. The factors referred to in s 36(3)(a) to (f) are those most usually relevant to the ultimate issue to be determined, though the list is not exhaustive.

(a) Length of and reasons for delay

67. It may be that there was an initial misunderstanding on the part of the plaintiff or his advisers concerning the partition wall and its role in the plaintiff's fall. That misunderstanding could not have continued beyond May 1994. There may have been some initial view that the case against Neocoat was stronger than counsel for the plaintiff now advises that it is. However, there was never any view that Neocoat was responsible in any way for the erection or design of the partition wall in question. It was, therefore, always arguable that Westfield had contributed to the plaintiff's injury by erecting a partition wall which was likely to collapse. It was always arguable that the fault rested substantially, if not solely, with Westfield.

68. If, indeed, there was any doubt about Westfield being a potential tortfeasor, the joinder of it as a third party by Neocoat should have put that doubt to rest. No doubt it would not have suggested to the plaintiff's advisers that the claim against Neocoat was hopeless, but prudence would have dictated joinder of Westfield, at least at that point. Neocoat could not have contended, even if found solely liable, that there was no arguable case against Westfield warranting a Bullock or Sanderson order in respect of any costs awarded in its favour. Nor, if Westfield was found solely liable, could it be contended that it had been unreasonable for the plaintiff to sue his employer.

69. There is, therefore, no apparent excuse for the delay in seeking to join Westfield as a second defendant at least as from June 1994. Had application for joinder been made in, say, July 1994, the limitation period would still have had nearly twelve months to run before expiry.

70. There is no explanation other than misplaced confidence in the inevitability of success against the employer, Neocoat, to explain the decision not to make that application before the expiry of the limitation period on 19 June 1995.

71. The present solicitors for the plaintiff were appointed, it seems, on or about 1 May 1996. It was not, however, until 2 June 1997 that they wrote to Westfield's solicitors seeking consent to the joinder of Westfield as a defendant. They also advised that, absent consent, an application such as the present would be required.

72. Even allowing for time required to peruse the file and seek counsel's advice, that represents a further period of nearly one year of unexplained delay.

73. There was, however, apparent agreement to joinder, and, hence, extension of the time bar, on 8 July 1997.

74. Even so, this application was not made for a further eleven months after that. Only some of that delay is explained by the attempts made by the plaintiff's solicitors to secure agreement in writing to their proposal for joinder of Westfield.

75. This unexplained and excessive delay is clearly a substantial obstacle to the plaintiff's application.

(b) Extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant

76. Westfield neither called, nor pointed to, evidence establishing any particular prejudice the delay has caused to it, other than the late assumption of the risk of a finding of liability to the plaintiff.

77. It had been at risk of contribution to a verdict in favour of Neocoat, should the plaintiff succeed against it, since 24 June 1994. The case had been litigated as between the plaintiff and Neocoat since 24 December 1992. Further, it may be inferred that there was at least a worker's compensation claim as between the plaintiff and Neocoat since shortly after the injury. There had been no delay or discontinuity in the examination of the issues and the evidence both as to liability and damages. There was little or no likelihood of any prejudice on account of any such delay or discontinuity.

78. In any event, no complaint is made as to loss of or deterioration in the quality of any evidence whether as to liability or damage, though some such effect must be assumed.

79. Westfield's submission as to prejudice relies completely upon prejudice presumed from the passage of time since the accident and, more importantly, that, until recently, it was not at risk unless the plaintiff succeeded against Neocoat. Even that risk is diminished by Neocoat's decision to discontinue the third party proceedings.

80. The discontinuance of the third party proceedings does not necessarily bar a claim by Neocoat for contribution from Westfield to a verdict if Neocoat is found liable to the plaintiff. A liability to contribute as a joint tortfeasor arises only upon entry of judgment against the defendant - see Brambles Construction v Helmers [1966] HCA 3; (1966) 114 CLR 213 - or, if the claim is settled, upon that settlement - see Harper v Gray (1985) 1 WLR 1196. That liability, of course, depends on a finding that Neocoat is, or would be, if sued, liable in tort to the plaintiff - see Law Reform (Miscellaneous Provisions) Act 1955 Part IV.

81. Nevertheless, it must be acknowledged that, having discontinued against Westfield, there would be an arguable question as to whether Neocoat would be permitted to revive its claim for contribution - see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 and Chamberlain v Deputy Commissioner for Taxation [1988] HCA 21; (1988) 164 CLR 502.

82. It is, therefore, reasonable to infer that Westfield would be prejudiced by the grant of an extension of the time bar in that it would, for the first time since 1989 , be placed at risk of an adverse finding in favour of the plaintiff even if Neocoat is not made subject to any such finding. Indeed, because the plaintiff's claim in tort seems the stronger against Westfield compared with Neocoat, that prejudice is the greater. The role and importance of that factor was emphasised by the High Court and particularly by McHugh J in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

(c) The conduct of the defendant, including the extent to which the defendant made available the means for the plaintiff to ascertain relevant facts

83. There is no evidence of any unreasonable conduct on the part of Westfield which might have made it more difficult for the plaintiff or his advisers to ascertain any relevant fact. Nor does the plaintiff complain of any such conduct.

84. However, the "conduct" to be considered is not confined to concealment of, or lack of cooperation in revealing, relevant facts.

85. It can and does include other conduct. In particular, the conduct of Westfield through its solicitor in advising that "he had no objection to our [plaintiff's solicitor's] suggestion that a second defendant be joined in this matter". It is obvious, when this response is read with the letter precipitating it, that the plaintiff and his advisers were entitled to assume that Westfield would raise no objection to orders being sought by the plaintiff in the form now applied for.

86. It is also relevant to note that Westfield's solicitors at no stage drew the plaintiff's attention to any likelihood that delay in making the foreshadowed application might lead to a change in the attitude of their client to the current application. Nor is any such suggestion now made.

87. As a result of that unheralded change of attitude, the plaintiff's case for an extension of time is made after greater delay than otherwise would be the case, though it does appear that the delay in question was not solely caused by reliance on the representation in question. I would, however, infer that the plaintiff's advisers did, as a result of it, attach less priority than they otherwise would have done to the need to make such an application promptly.

88. Indeed, though the case has not been argued on the basis of estoppel, so as to raise the principle affirmed by the High Court in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, it is relevant to have regard to the basis for that doctrine. It has its genesis in the injustice of a party making a representation to another that, as it transpires, is misleading and causes the party misled to act to his or her detriment, and then being permitted to resile from that representation.

89. In the absence of any special reason to the contrary it seems to me that it would be unjust to permit Westfield to resile from its position, as stated on 8 July 1997, that it had "no objection" to the orders being then made as are now sought. I can detect no relevant change of circumstances. Nor has there been any fair warning of any change of attitude or likely cause of it.

90. However, that does not require this application to be granted. It does mean, however, that the complaints now made by Westfield concerning prejudice as a result of delay should be accorded less weight.

(d) Duration of the disability of the plaintiff on and after accrual of the cause of action

91. There is no specific material before me on this issue. However, I do infer from the amended Statement of Claim and the absence of any submission to the contrary, that this claim involves ongoing disabilities and that the claim, if proved, is properly brought in this court rather than the Magistrates Court. That implies that the claim is reasonably substantial.

(e) Extent to which the plaintiff acted reasonably and promptly once he knew of the facts relevant to a cause of action against the defendant

92. In my view, the plaintiff is bound by the consequences of any neglect or lack of skill or diligence of his solicitors. They did not, nor did the plaintiff, act promptly or diligently to assert his rights against Westfield. It may be that the plaintiff has some cause of action against his current or previous solicitors. That possibility is relevant but has little weight - see Daroczy v B & J Engineering (1984) 55 ACTR 29. I do not, for example, have any information as to the efforts made by the solicitors to obtain timely instructions nor the advice they offered.

(f) Steps taken by the plaintiff to obtain relevant advice

93. So far as can be ascertained the plaintiff sought legal, medical and other relevant advice reasonably promptly. In the result, either that advice, or the plaintiff's response to it, has been less than satisfactory.

Generally

94. It is not the law that the plaintiff is precluded from the benefit of s 36 because it seems a wrong election was earlier made either by him or on his behalf. Nor is he to be excluded from its benefit because he, personally or through legal advisers, has been guilty of inexcusable delay. Nor is it inevitable that an application will be refused because some prejudice to a defendant has occurred or is to be presumed. The nature and extent of that prejudice is significant. It includes exposure to a risk that prima facie has been barred. It is ultimately a balancing of all factors for and against the application. For the application to succeed there must be a positive finding that it is "just and reasonable" to grant it.

95. But for the response of Westfield's solicitor on 8 July 1997 that he had "no objection" to Westfield being joined as a defendant, I would have refused this application. However, that response, its consequences, and the public interest in maintaining the integrity of representations made by solicitors on behalf of their clients persuades me, notwithstanding the further delay following 8 July 1997, that the application should be granted.

96. I extend time and direct the joinder of Westfield as a second defendant accordingly. The plaintiff has leave to amend the statement of claim to plead the cause of action to be relied upon against Westfield.

97. I will hear the parties as to consequential orders including costs.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 1 October 1999

Counsel for the Plaintiff: Mr J Pappas

Solicitor for the Plaintiff: Maliganis Edwards Johnson

Counsel for the Third Party: Mr B Meagher

Solicitor for the Third Party: Ken Cush & Associates

Date of hearing: 16 July 1999

Date of judgment: 1 October 1999