Hardiman v Lindores Cranes & Rigging Pty Ltd [2001] ACTSC 53 (25 May 2001)

Last Updated: 11 June 2002

Stephen Edward Hardiman v Lindores Cranes & Rigging Pty Ltd [2001] ACTSC 53 (25 May 2001)

CATCHWORDS

PRACTICE & PROCEDURE - Application for extension of time to issue proceedings - Personal injuries claim for damages - New South Wales.

Limitations Act 1985

Motor Accidents Act 1988 (NSW)

Workers Compensation Act 1987 (NSW)

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

Holt v Wynter [2000] NSWCA 143, (1999) 28 MVR 561

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 172 ALR 625

Moon v Moon [2001] ACTSC 17

Salido v Nominal Defendant (1993) 32 NSWLR 524

Seib v Morton [2000] NSWCA 139

No. SC 111 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 25 May 2001

IN THE SUPREME COURT OF THE )

) No. SC 111 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STEPHEN EDWARD HARDIMAN

Plaintiff

AND: LINDORES CRANES & RIGGING PTY LTD

Defendant

ORDER

Coram: Master T. Connolly

Date: 25 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff be given leave to commence proceedings.

2. Costs in the cause.

1. This is an application by way of notice of motion dated 11 April 2001 for an order that the time limitation period for the issuing of proceedings be extended. The substantive action which is sought to be brought is an action for damages for personal injuries arising from an industrial accident which occurred on 2 April 1996 at Queanbeyan in New South Wales when the plaintiff, a dogman, fell from a sign during building works. As the accident occurred in New South Wales the law to be applied in an action seeking damages in tort is the law of New South Wales, including its limitation laws (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 172 ALR 625).This is in any event required by s 56 of the Limitations Act 1985.

2. The limitation law of another Australian law area may be exercised by this court in an action brought in this court pursuant to s 57 of the Limitation Act 1985. This is a power which, since December 2000, may be exercised by the Master pursuant to Order 61A rule 1 (y). Where the discretion to extend a time limit under a law of another law area is to be exercised by this court pursuant to s 57 it is to be exercised "as far as practicable,...in the manner in which it is exercised in comparable cases by courts of that place."

3. As this was an industrial accident which gave rise to a right to Workers Compensation pursuant to the Workers Compensation Act 1987 of New South Wales, the relevant limitation period is to be found in that Act as s 151D(2) which provides:

"A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."

4. With an accident which occurred on 2 April 1996 the limitation period would have expired on 2 April 1999. The originating application in the present case was filed on 21 February 2000, some ten months after the expiration of the relevant limitation period, and the plaintiff seeks the extension of the limitation period to validate the originating application.

5. There is no criteria laid down in the Workers Compensation Act 1987 (NSW) in relation to the exercise of the discretion to extend time pursuant to s 151D, and I am satisfied that the approach taken by the courts of New South Wales in relation to the exercise of the discretion is similar to the approach taken in relation to the discretion to extend time pursuant to s52 of the Motor Accidents Act 1988 (NSW). As Justice Higgins recently explained (Moon v Moon [2001] ACTSC 17), the guidelines to the exercise of the discretion were set down by the New South Wales Court of Appeal in Salido v Nominal Defendant (1993) 32 NSWLR 524, and subsequently modified by reason of the decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, as explained by the Court of Appeal in Holt v Wynter [2000] NSWCA 143, (1999) 28 MVR 561 and Seib v Morton [2000] NSWCA 139.

6. In Holt v Wynter Priestley JA set out, at 135, five propositions derived from the decision in Salido. These were:

1. Section 52(4) confers a discretion which is to be exercised for the purposes of the Act; these purposes include forensic diligence; a corollary of the forensic diligence purpose is...protection of defendants against the injustice of stale claims.

2. The eventual question to be decided, in light of the purposes of the Act, is whether it is fair and just to grant leave.

3. The onus is on the applicant to show that it is fair and just to grant leave.

4. In considering whether the applicant has shown that it is fair and just to grant leave it is material for the court to take into account the delay and the applicant's explanation for it.

5. In considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material but not a conclusive consideration...."

7. Priesley JA then considered the effect of the Brisbane South Regional Health Authority case on these propositions, and concluded that the above five propositions should be amended by adding "and whether there can be a fair trial" to proposition two, and "is a highly material and in a great many cases an almost conclusive consideration" to proposition 5. This analysis was endorsed by Higgins J in Moon v Moon, and it seems to me represents the law as I must apply it in the present case.

8. In this application affidavit evidence was put on by the plaintiff himself and Mr Bradfield, his solicitor, in support of the application to extend time, and an affidavit from the solicitor with instructions from the insurer for the defendant. The only significant matter referred to in this affidavit is that the present insurer, GIO, only received formal notification of the claim in June 2000, following a letter from HIH Insurance, which had been dealing with the claim. I am satisfied that, although the plaintiff notified his employer immediately following the accident, and had ongoing dealings with FAI Insurance, the correct insurer for the purposes of this claim was not identified until the middle of 2000.

9. I am satisfied from the affidavits of Mr Hardiman and Mr Bradfield that the plaintiff first contacted a solicitor about this matter on 20 July 1998, which is within time, and that he had not immediately sought to bring an action because he was waiting to see how his injuries would resolve. I am satisfied that his solicitor entered into negotiations with FAI Insurance, who it seems both parties assumed was the correct insurer, in December 1998. A settlement conference was agreed on for 28 April 1999. The insurer requested an offer of settlement in March 1999 for the conference in April. This date falls just outside the limitation period.

10. I am satisfied that the defendant had adequate notice of this claim, being informed fully on the day of the accident, and being involved by way of workers compensation insurance thereafter. I am satisfied that the plaintiff retained solicitors who entered into appropriate negotiations with the defendant, through what was thought was the appropriate insurer.

11. The proposed settlement conference was varied at the request of the insurer, and I am satisfied that there was a request from the insurer that common law proceedings not begin while negotiations were under way, although that request was after the limitation period had in any event expired, and so no estoppel issue arises.

12. It seems to me, applying these facts to the test set down above, that the plaintiff has in this case discharged the onus to satisfy me that it is fair and just to grant leave in this case, and that a fair trial will achieved. I am satisfied that there has been no prejudice to the defendant, and that the plaintiff has properly entered into negotiations with the defendant's nominated insurer before the limitation period expired. While this turned out to be the incorrect insurer, there is no evidence to suggest that all the material compiled in the earlier dealings with this claim have been lost or are unavailable to the defendant through their appropriate insurer. Even being mindful of the caveat derived from the South Brisbane Health Authority case that it can be difficult to be satisfied that there is no prejudice to a defendant due to the passage of time because a defendant may be unaware that evidence or records have been lost due to the passage of time, I am satisfied in this case that there is no disadvantage to the defendant in this case from extending time. The lapse of time from the accident is only 5 years, and the plaintiff was in contact with the defendant through his solicitor within three years, and negotiations proceeded in apparent good faith.

13. It is appropriate that I grant the plaintiff leave to commence these proceedings. Costs should be costs in the cause.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 25 May 2001

Counsel for the Plaintiff: Mr Purnell

Solicitor for the Plaintiff: Porter Parkinson & Bradfield

Counsel for the Defendant: Mr Meagher

Solicitor for the Defendant: Phelps Reid

Date of hearing: 11 May 2001

Date of judgment: 25 May 2001