Foldi v Lloyd and Lita McKell Pty Ltd [2011] ACTSC 17 (4 February 2011)

Last Updated: 8 February 2011

ROBERT FOLDI V SHANE MUNRO LLOYD AND VICKY LLOYD AND LITA MCKELL PTY LTD ACN 096 977 285

[2011] ACTSC 17 (4 FEBRUARY 2011)

PRACTICE AND PROCEDURE – joinder of additional defendants – joinder outside limitation period – whether prejudice to proposed defendants – relevance of prospects of success – relevance of earlier forensic decision not to sue a defendant – relevance of solicitors negligence – joinder ordered limited to existing cause of action

LIMITATION OF ACTIONS – personal injury – explanation for delay – length of delay – whether actual prejudice to defendants – whether fair trial possible – extension granted

PRACTICE AND PROCEDURE – personal injury – Civil Law (Wrongs) Act 2002 – notice before action – plaintiff failing to give notice – no prejudice to defendants – plaintiffs authorised to proceed with action

Civil Law (Wrongs) Act 2002 (ACT), ss 51, 219, Pt 5.2

Limitation Act 1985 (ACT), ss 16A, 16B, 36

Court Procedures Rules 2006 (ACT), rr 220, 221, 242, 502, 503, Div 2.1.5

Workers Compensation Act 1951 (ACT)

Gold Reefs of Western Australia Ltd v Dawson [1897] 1 CH 115

Cavalier v Pope [1906] UKHL 1; [1906] AC 428

Robbins v Jones [1863] EngR 956; (1863) 15 CB (NS) 221

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479

Driscoll v Iron Mountain Australia Pty Ltd [2010] ACTSC 127

Barancewicz v Davies [2011] ACTSC 4

Edgecock v Minister for Child Welfare [1971] 1 NSWLR 751

Bridge Shipping Pty Ltd v Grand Shipping (SA) [1991] HCA 45; (1991) 173 CLR 231

Evans Construction Co Ltd v Charrington and Co Ltd [1983] QB 810

Davies v Elsby Brothers Ltd [1961] 1 WLR 170

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

Sessions v Phengsiaroun [2008] ACTSC 132

Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3

Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, 16 October 1996, unreported)

Sangora Holdings Pty Ltd v Dunstan (Supreme Court of Western Australia, Full Court, 13 April 1999, unreported)

McGregor v Franklin [2006] ACTSC 69

No. SC 759 of 2009

Judge: Master Harper

Supreme Court of the ACT

Date: 4 February 2011

IN THE SUPREME COURT OF THE )

) No. SC 759 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT FOLDI

Plaintiff

AND: SHANE MUNRO LLOYD AND VICKY LLOYD

First Defendants

LITA MCKELL PTY LTD

ACN 096 977 285

Second Defendant

ORDER

Judge: Master Harper

Date: 4 February 2011

Place: Canberra

THE COURT ORDERS THAT:

1. Ross Vernon Hodgkinson and Anne Jeanette Caldwell be included together as third defendants.

2. Life Without Barriers ACN 101 252 171 be included as fourth defendant.

3. The period within which an action against the third and fourth defendants may be brought on a cause of action in negligence for damages for personal injury be extended to the date of these orders.

4. The plaintiff be authorised to proceed further with the action despite his non-compliance with part 5.2 of the Civil Law (Wrongs) Act 2002.

5. The parties have liberty to apply on seven days’ notice to each other party.

1. This is in substance an application to add three defendants to a claim for damages for personal injury. The plaintiff’s claim is for a back injury sustained on 13 December 2006 in the course of his employment with Life Without Barriers, a company limited by guarantee. Life Without Barriers conducted a charitable operation of housing and caring for intellectually disabled children. The plaintiff was employed as a carer. He was working at a house leased by Life Without Barriers at Pearce. He says in his statement of claim that whilst working at the house, he was pushed backwards by a child against a handrail on the front steps of the house. The handrail was rotten and unsafe. It gave way, causing the plaintiff to fall and suffer injury.

2. On 28 August 2009, the plaintiff commenced the present action against the first defendants, Mr and Mrs Lloyd, and the second defendant, Lita McKell Pty Ltd. The first defendants were sued as owners of the house and the second defendant as the real estate agent responsible for management of the tenancy.

3. The plaintiff reported the accident to his employer and made a claim for workers compensation, in respect of which he received benefits. The employer is not yet a defendant.

4. Mr and Mrs Lloyd were not in fact the owners of the house at the time of the plaintiff’s injury. They bought it from the previous owners, Ross Vernon Hodgkinson and Anne Jeanette Caldwell, a year or so later. This mistake by the solicitors seems to have arisen from a misreading of a title search. The first defendants were served and the mistake quickly came to light. On 29 October 2009 the plaintiff’s solicitors filed a notice of discontinuance of the proceedings against the first defendants. The first defendants have not filed a notice of intention to respond or taken any part in the action since. It is conceivable that they may retain an entitlement to pursue the plaintiff for costs. Their names have been omitted from documents filed in the proceedings subsequent to the notice of discontinuance. This, it seems to me, is inappropriate. A party against whom an action has been discontinued may apply to have his or her name struck out: Gold Reefs of Western Australia Ltd v Dawson [1897] 1 CH 115. In the absence of such an order, the continuing parties are not at liberty to remove the name of a party against whom the proceeding has been discontinued from the title of the proceedings and the registry should not accept for filing a document with a title which has been altered in that way.

5. The plaintiff’s claim being one for personal injury, the limitation period is governed by either section 16A or 16B of the Limitation Act 1985 (ACT) (Limitation Act). The limitation period is therefore three years, and ended in December 2009.

6. On 27 January 2010, the plaintiff applied for “an order under rule 220(2)” to replace the first defendant with the correct name and address of the first defendant, namely Ross Vernon Hodgkinson and Anne Jeanette Caldwell.

7. Rule 220 of the Court Procedures Rules 2006 (ACT) provides that the court may order that a person be included as a party to a proceeding if the person ought to have been included as a party or including the party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding. The rule applies to plaintiffs as well as defendants and may be made at any stage of the proceeding, on application or on the court’s own initiative. The form of the order sought, however, was not appropriate: what was required was not merely the correction of the names or addresses of the original first defendants. The defendants sought to be added were quite different people.

8. On 16 April 2010 the plaintiff’s solicitors filed an amended application, seeking an order including Mr Hodgkinson and Ms Caldwell as defendants, extension of the limitation period for this purpose, and a dispensation from compliance with certain requirements of the Civil Law (Wrongs) Act 2002 (ACT) as to notice.

9. The amended application was supported by an affidavit of a former employed solicitor with the solicitors for the plaintiff, now working in Queensland. She deposed that after she realised that a mistake had been made about the first defendants, she spoke to the Deputy Registrar of this court by telephone “in regards to [sic] the possibility of amending the originating claim and statement of claim to reflect the correct identity of the first defendant”. She said that the Deputy Registrar informed her that she would not be able to amend the originating claim and statement of claim and that she would instead have to discontinue and commence against the correct owners of the property. She arranged for the filing of a notice of discontinuance “following this advice”.

10. It ought to be said that it is not the function of the Registrar, Deputy Registrar or Registry staff to provide advice to solicitors as to the application of the Court Procedures Rules. Clients reasonably expect their solicitors to provide such advice to them, and solicitors properly charge their clients for doing so. The purpose of having the former employed solicitor swear the affidavit is not entirely clear to me. If she is saying that she adopted the wrong course because she was misled by advice from the Deputy Registrar, that cannot be an excuse. If she was seeking to absolve herself and her firm from responsibility for taking the wrong course, and to place that blame on the shoulders of the then Deputy Registrar, that would have been completely inappropriate. The fact of the matter is that the solicitors became aware of their mistake prior to the end of October 2009, well within time to join Mr Hodgkinson and Ms Caldwell as defendants within the limitation period.

11. On 9 June 2010 the solicitors for the second defendant, Lita McKell Pty Ltd, filed a notice of intention to respond, which was intitled so as to show Mr Hodgkinson and Ms Caldwell as the first defendants. They were not, and again this document should not have been accepted by the Registry for filing. This error was promptly and properly drawn to the Deputy Registrar’s attention by the solicitors acting for Mr Hodgkinson and Ms Caldwell as respondents to the application for their joinder as parties.

12. On 6 August 2010, the plaintiff filed a further application seeking an order that Life Without Barriers be joined as a defendant, and an extension of the limitation period for that joinder.

13. Also, on 6 August 2010, the solicitors for the plaintiff filed an amended statement of claim, changing the date of the plaintiff’s fall to 8 December 2006.

14. The solicitors on the record for the second defendant have filed a notice of intention to respond to the application for joinder on behalf of Life Without Barriers. It is evident that they see no conflict of interest. I assume that this is because both the second defendant and Life Without Barriers are insured in respect of the plaintiff’s claim by the same insurer. If I am correct about this, the insurer will understandably wish to minimise its legal costs. However, if Life Without Barriers becomes a party, I can see difficulties in the same counsel and solicitors representing the estate agent and the employer at trial.

15. It is clear that the employer was not made a defendant when proceedings were instituted because of a conscious forensic decision rather than an oversight. The plaintiff has deposed that in about March 2007 he and other employees of Life Without Barriers were told by their supervisors that the company was in financial trouble and that they would be offered voluntary redundancy. They were told that “to accept a redundancy we would have to sign a deed of release”. The deed was provided at the meeting and the plaintiff signed it either then or soon afterwards. He was not told that the deed would have any impact on his rights in respect of his injuries. He says that he would not have signed it if he had been aware of its full implications. He was continuing to suffer after-effects of his injuries. After he signed it, he continued to undergo treatment which he understood was paid for by the employer’s workers’ compensation insurer.

16. The deed of release is in evidence. It provides for a termination payment of some $5,500.00 in return for which the plaintiff releases the employer “from all claims and liabilities of any nature whether known or unknown which Mr Foldi has or may have against LWB in respect of or in connection with Mr Foldi’s employment and/or engagement as a support worker with LWB or any matters arising out of the recitals.” (The recitals do not take the matter further). Claims is defined to include actions, causes of action, arbitrations, debts, costs, claims, demands and judgments either at law or in equity or arising under statute. The deed provides that it may be pleaded by the employer as a bar to any action, suit, claim or legal proceeding instituted by the plaintiff arising out of or in connection with his employment. The deed further provides that the plaintiff indemnifies the employer on an indemnity basis for any costs, expenses, loss or damages which arise as a result of his commencing any claim against the employer. The deed is governed by the laws of the Australian Capital Territory. The parties to it warrant that they have obtained legal advice or been given the opportunity of doing so, in relation to the terms and effect of the deed.

17. The plaintiff’s solicitors were aware of the deed as early as June 2007. They obtained advice in conference from Mr Lunney of senior counsel. His advice was that it would be difficult to have the deed set aside having regard to its clarity.

18. Mr Bradfield, who appeared for the plaintiff on the hearing of the present application, was briefed by the plaintiff’s solicitors in August 2007. He provided an advice in October 2007 in which he expressed a preliminary view that it might be possible to set the deed aside. In about January 2009, the plaintiff instructed his solicitors, presumably on advice from Mr Bradfield, to discontinue workers compensation proceedings which had been commenced during 2007. The proceedings were discontinued in February 2009 and the present proceedings were commenced in this court in August 2009.

19. The preceding chronology emerges from an affidavit of Mr Satsia, the supervising partner of the solicitor who had conduct of the matter for the plaintiff. I am satisfied from the chronology that the plaintiff’s solicitors and present counsel were aware of the existence and terms of the deed and made a considered decision not to commence proceedings against the employer when the action was started in August 2009, notwithstanding the fact that an action against the employer could have been commenced within the limitation period.

20. The tenancy between Mr Hodgkinson and Ms Caldwell as lessors and Life Without Barriers as lessee commenced on 17 November 2006, less than a month before the plaintiff’s injury. The agent prepared an inventory and condition report on about that date, clearly following a thorough inspection of the house. The report lists the steps and timber railing at the front porch. Evidently no damage to the railing was detected on that inspection. However, on 23 November 2006 an employee of Life Without Barriers carried out an inspection and noted that the railing was cracked. Life Without Barriers wrote to the agent on 27 November 2006 attaching notes of the inspection, saying,

As the new tenants . . . I attach these notes to the inspection report as there are a number of condition concerns associated with this property noted upon occupancy that Life Without Barriers does not wish to be held responsible for their repair upon our future vacation.

In general we found the property to be in a poor state of repair, cleanliness and condition and some of the specifics are attached for your reference.

You may wish to consider another full inspection that I . . . would be happy to attend to confirm the state of the property as there may be associated actions you need to take to recoup some of the costs of repair with the previous tenants.

21. The plaintiff notified Life Without Barriers of his injury immediately. An employee of Life Without Barriers spoke to an employee of the agent on 14 December 2006. There is a note to the effect that the agent would be arranging repair of the railing. The railing was repaired the following month. A claim was lodged by the plaintiff and by the employer with the employer’s workers’ compensation insurer soon after the injury, and the insurer made some payments in respect of the claim.

22. The insurer through its solicitors filed an answer in the ACT Magistrates Court to the plaintiff’s claim for compensation. In that answer the insurer did not plead the bar contained in the redundancy deed. I am unaware whether this was subsequently pleaded and whether the existence of the deed had any connection to the plaintiff’s decision to discontinue those proceedings.

23. If the plaintiff’s joinder applications are successful and the action goes to trial, it will raise a number of novel issues. One will be as to the existence and scope of any duty of care owed by an estate agent managing a property for a landlord to an employee of a tenant who suffers injury because of a static defect in a building. A second issue will be the ambit of the duty of care owed by the owner of a property who is not its occupier for injury to an employee of a tenant.

24. As to the liability of the owner of tenanted premises to a person on the premises for damages for personal injury, section 219 of the Civil Law (Wrongs) Act provides:

219 Abolition of rule in Cavalier v Pope

A lessor of premises is not exempt from owing a duty of care to people on the premises only because the lessor is not the occupier of the premises.

The rule in Cavalier v Pope [1906] UKHL 1; [1906] AC 428 reflected the common law principle that responsibility for the safety of premises was upon the occupier, not the owner. A lessor, by parting with control, could accordingly shift the responsibility to an incoming tenant, even in respect of pre-existing hazards. Professor Fleming deals with the history of the principle in the The Law of Torts (9th edition) LBC Information Services 1998 at p. 520 and following. He quotes Erle CJ in Robbins v Jones [1863] EngR 956; (1863) 15 CB (NS) 221 at 240, “fraud apart, there is no law against letting a tumbledown house”. The House of Lords confirmed in Cavalier v Pope that a landlord was under no duty of care to protect the tenant and others from dangers on the premises, even if they existed at the commencement of the lease. That rule has been abolished by section 219. The section, it should be noted, does not create a liability but merely abolishes an exemption. Whether the owner of rented premises owes a duty of care to a person on the premises should now be seen as dependent on the facts of the case, consistently with the decision of the High Court in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, the decision which is now accepted as having done away with the different categories of liability owed by an occupier to an entrant depending on the entrant’s status. Hence the blanket Cavalier v Pope defence is no longer available to an owner of tenanted premises, who may be liable to an injured entrant depending on the facts of the case.

25. Another issue will relate to the construction of the redundancy deed. I have not seen a draft of any proposed amendments to the statement of claim which plead the plaintiff’s claim against Life Without Barriers. Presumably the plaintiff in this regard would rely on the failure of his employer to provide a safe system and place of work. One would expect the deed to be pleaded as part of the employer’s defence, with the plaintiff no doubt replying that the deed should not be read as having the effect contended for by the employer. The plaintiff may be advised to seek orders against the employer in the statement of claim, either setting the deed aside or asking the court to rectify it so that it does not operate as a bar to an action for damages for personal injury against which the employer is insured. The preferable course would be for the plaintiff to provide the court with a draft statement of claim informing the court and the other parties of the basis of plaintiff’s claim against the defendant proposed to be joined. Different considerations may apply depending on whether equitable relief is sought in addition to damages at common law.

26. When I heard the application there was some doubt as to whether the court had any power to extend a limitation period against a tortfeasor other than the employer, where the injury was caused in compensable circumstances under the Workers Compensation Act 1951 (ACT). Section 36 of the Limitation Act gives the court a discretion to extend a limitation period to bring an action for damages for personal injury, but the section is stated not to apply to actions to which section 16B applies. The effect of the provision is that there is a discretion to extend time where the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act, and where a claim could be, or could have been made under that Act if notice had been given. Section 16B applies to other claims for damages for personal injury. There has been some confusion as to whether the discretion to extend time applies only to actions by an employee against an employer. It has since been decided that section 16A is capable of applying to an action against a tortfeasor other than the plaintiff’s employer: Driscoll v Iron Mountain Australia Pty Ltd [2010] ACTSC 127; Barancewicz v Davies [2011] ACTSC 4. The court accordingly has a discretion to extend time, if satisfied that it is just and reasonable to do so, for the plaintiff to bring proceedings against the owners of the house as well as the employer.

Addition of parties

27. The court’s power to order the addition of defendants is conferred by rule 220 of the Court Procedures Rules. The reference in the applications to rule 221 is incorrect; rule 221 provides for the addition or substitution of a plaintiff, not a defendant.

28. Rule 220 permits the addition, after the commencement of proceedings, of a defendant or defendants who ought to have been joined originally, or whose presence is necessary for the court effectively and completely to adjudicate on and settle all matters in dispute in the proceedings. The rule does not permit a change of the cause of action: Edgecock v Minister for Child Welfare [1971] 1 NSWLR 751 at 757. Where an order is made adding a defendant, the effect is different from that of an order adding a cause of action between the original parties, where the amendment has retrospective effect from the date of institution of the proceedings (see rr 502 and 503). Where an order is made adding a defendant, the proceeding against that defendant is not taken to have commenced until the date of the order (r 242), enabling a defendant in that position to plead a limitation defence where the limitation period expired between the commencement of the original proceedings and the date of the order. It is for this reason that the plaintiff will require, to have any practical prospect of succeeding against the defendants sought to be added, an extension of the limitation period against them.

29. The question arises whether what the plaintiff is asking in relation to the joinder of Mr Hodgkinson and Ms Caldwell is an amendment necessary to correct a mistake in the name or identity of a party. I am persuaded that it is not, and that what the court is asked to do is to make an order under rule 220 rather than rule 502. Dawson J in Bridge Shipping Pty Ltd v Grand Shipping (SA) [1991] HCA 45; (1991) 173 CLR 231 cited with approval from the judgment of Donaldson LJ in Evans Construction Co Ltd v Charrington and Co Ltd [1983] QB 810 at 821:

. . . there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake.

His Honour was referring to the then O 20 r 5(3) of the English Rules, which was the equivalent of our r 503. Also in Bridge Shipping, McHugh J cited a passage from the judgment of Devlin LJ in Davies v Elsby Brothers Ltd [1961] 1 WLR 170 at 176:

I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong,” then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make enquiries,” then it seems to me that one is getting beyond the realm of misnomer.

30. In the present case, the naming of Mr and Mrs Lloyd rather than Mr Hodgkinson and Ms Caldwell was not a mere misnomer. Mr and Mrs Lloyd were named in the originating claim in the mistaken belief that they were the owners of the property at the time of the plaintiff’s injury. Hence rule 502 is not the applicable rule for the joinder of Mr Hodgkinson and Ms Caldwell.

31. I have not been taken to any authority to the effect that a plaintiff seeking to add a defendant carries any onus of satisfying the court that the proceeding against the proposed new defendant would have reasonable prospects of success. The power to add a defendant is a discretionary one and it may be assumed that the court would not make such an order if the proceeding against the new defendant would be doomed to failure. In the present case I have referred to some of the novel issues that would arise for determination at a trial between the plaintiff and the defendants sought to be added. It is not for me to determine those issues at this interlocutory stage. An added defendant wishing to satisfy the court that the plaintiff’s claim against that defendant could not succeed would have available to it the procedures for summary judgment provided under division 2.11.5 of the Rules. If the applications for addition as defendants of the owners of the house and the employer had been made within the limitation period, I would have been satisfied that orders for joinder should be made, subject to questions of costs. However, the limitation period having expired in December 2009, it would be futile to add the proposed defendants unless I was persuaded that the limitation period should be extended.

Extension of the limitation period

32. Section 36 of the Limitation Act gives the court a discretion to extend the period within which an action for damages for personal injury may be brought for such a period as the court decides. The section requires the court to have regard to all the circumstances of the case, and sets out a number of considerations. Relevantly for the present application, these include the length of and reasons for the delay by the plaintiff, and the extent to which there is likely to be prejudice to the defendant. The power to extend may be exercised at any time, notwithstanding that the limitation period has already ended or that an action has already been begun.

33. The leading authority in relation to applications to extend a limitation period in a personal injury action is Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. For this court, Higgins CJ summarised the principles in Sessions v Phengsiaroun [2008] ACTSC 132. The principles were considered more recently by the Court of Appeal (Higgins CJ, Refshauge and North JJ) in Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3.

34. Toohey and Gummow JJ said in Brisbane South at 547:

The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well-established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.

35. In the same case, McHugh J said at 553 that a limitation period:

. . . represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.

36. His Honour went on to say at 554:

. . . when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

37. Whilst, in considering delay, the court should look at the whole of the period since the cause of action arose, not simply the period since immediately before the end of the limitation period, nevertheless in the present case it seems to me reasonable to look at the commencement date of proceedings (28 August 2009) and to consider what prejudice might now arise for the defendants proposed to be joined, by comparison to the position they would have been in if they had been made defendants when the originating claim was filed.

38. Let me first consider the position of the owners of the house, Mr Hodgkinson and Ms Caldwell. They sold the house in February 2007, with settlement in March 2007, to the first defendants, Mr and Mrs Lloyd. So far as liability is concerned, there is nothing obvious that they have lost by being put on notice of the claim against them in February 2010 rather than August 2009. Their insurer and lawyers do not suggest that they are at any disadvantage in relation to quantum of damages by reason of the delay. The mistake in suing the new owners rather than the owners at the time of the plaintiff’s injury was without doubt made by the plaintiff’s solicitors, not by the plaintiff personally. The fact that the plaintiff might have a cause of action against his solicitors in negligence if the application to join the previous owners were to fail is a relevant factor, but it does not seem to me that it weighs heavily against the application in the present circumstances. The primary issue is whether or not, in spite of the delay, a fair trial of the action is possible: Laws v Web Scaffolding Pty Ltd at [38]. I am satisfied on the facts of the present application that, in relation to Mr Hodgkinson and Ms Caldwell, the delay has not affected in any way the prospect of their having a fair trial.

39. Accordingly, although the explanation for failing to sue them in the first place, and after realising the mistake, failing to join them within the limitation period, can hardly be described as a satisfactory one, I am nevertheless persuaded that it is just and reasonable to grant an extension of the limitation period. Having regard to the fact that they are insured and represented by solicitors on the application, and have given the address of their solicitors as their address in their affidavits, service will be dispensed with.

40. The claim against Life Without Barriers is a little different. Life Without Barriers was not made a defendant when proceedings were commenced by reason of an intentional forensic decision. Life Without Barriers and its insurer were aware of the facts of the plaintiff’s injury because of the workers’ compensation claim. I infer that the insurer was not initially aware of the redundancy agreement. It was not pleaded in the answer in the arbitration proceedings in the Magistrates Court. The insurer is now aware of the deed and proposes to plead it in bar by way of defence to the plaintiff’s claim.

41. Without having heard oral evidence about the redundancy deed, I express the preliminary impression that neither the plaintiff nor those at Life Without Barriers responsible for drafting the deed gave any thought to the question of whether it might stand in the way of the plaintiff’s claim for workers’ compensation arising out of the incident in December 2006. I think I can safely say that neither the plaintiff nor anyone at Life Without Barriers directed their minds to the possibility of a claim for damages under the general law, or even the question of whether such a claim might be available, at the time the deed was signed. I am reasonably sure that the deed was intended by Life Without Barriers to provide protection in relation to any claim by the plaintiff under employment law, that is, any claim against Life Without Barriers not covered by their compulsory insurance. That is not to say that a judicial officer might not arrive at a different conclusion after hearing oral evidence, nor is that to say that the insurer might not prove to be entitled to the benefit of the bar. But it does leave open the possibility that the deed would be read down by a court as not to have been intended by the parties to operate as a bar to the plaintiff’s claim for damages for personal injury in negligence.

42. I am not persuaded that there would be any actual prejudice to Life Without Barriers if the limitation period were extended, provided that the claim were limited to negligence by an employer to an employee. Proceedings to set aside the redundancy deed, or to seek rectification of it, would be for different causes of action from those pleaded by the plaintiff thus far. The plaintiff decided on legal advice not to apply for such relief and should not now, outside the limitation period, be permitted to do so. I doubt whether the employer would be entitled to indemnity by its insurer in relation to a claim for rectification of or setting aside the redundancy deed. Success in that regard would have the potential of exposing the employer to liability not covered by the policy of insurance. A workers’ compensation insurer knowingly takes on the prospect of defending proceedings brought against an employer for workers’ compensation and for damages for personal injury under the general law, but does not knowingly take on the task of upholding a redundancy deed. The plaintiff should not be permitted to bring out of time proceedings for rectification or setting aside of the redundancy deed.

43. I acknowledge the argument that the plaintiff is in much the same position with his claim for negligence against the employer. He decided on legal advice not to embark on such an action. Now, outside the limitation period, he wants to change his mind. The position has some parallels with the withdrawal of an admission, which will generally not be permitted where the admission was made knowingly, after deliberation and on legal advice with an appreciation of the consequences: see Drabsch v Switzerland General Insurance Co Ltd per Santow J (Supreme Court of NSW, 16 October 1996, unreported); Sangora Holdings Pty Ltd v Dunstan per Steytler J (Supreme Court of Western Australia, Full Court, 13 April 1999, unreported).

44. Notwithstanding this, the fundamental question remains whether, if it is added, Life Without Barriers will be able to have a fair trial of the action. Again I compare the position it would have been in if made a defendant when proceedings were instituted in August 2009 with the position it will be in if added as a defendant now, taking account of the fact that the application to add it as a defendant was made in August 2010. I am not persuaded that there is any actual prejudice to Life Without Barriers arising from the delay, considered in that way. I am satisfied that Life Without Barriers will still be able to have a fair trial of the action.

Notice under Civil Law (Wrongs) Act

45. The plaintiff acknowledges that he has not given the notice before action required by the Civil Law (Wrongs) Act to the defendants proposed to be added. None have submitted that any prejudice arises from the non-compliance. I concluded in McGregor v Franklin [2006] ACTSC 69 that failure to give notice before action under the Act did not render the proceedings a nullity. Rather, the court had a discretion to forgive non-compliance, as well as a discretion to strike proceedings out for non-compliance. It is not suggested that there is any information the plaintiff would be required to give to any of the defendants by virtue of the provisions of the Act which has not already been provided to them. The purpose of the provisions being to provide the defendants with such information, I propose to authorise the plaintiff to proceed further with the claim despite his non-compliance with section 51 of the Act. It will be open to any defendant, following trial and judgment, to seek an order for costs if that defendant can establish that he, she or it has been obliged to incur additional costs because of the plaintiff’s failure to give notice when it should have been given.

Conclusion

46. For the above reasons I shall order that Mr Hodgkinson and Ms Caldwell be included as third defendants in the proceedings and that Life Without Barriers be included as the fourth defendant in the proceeding. I shall further order that the period within which an action against those additional defendants may be brought on a cause of action in negligence for damages for personal injury be extended to the date of these orders. I shall further order that the plaintiff be authorised to proceed further with the action despite non-compliance with part 5.2 of the Civil Law (Wrongs) Act.

47. The second, third and fourth defendants should have their costs of the application and any costs thrown away by reason of the amendments. It seems to me that some at least of these costs should be borne by the solicitors for the plaintiff rather than the plaintiff himself. I shall hear the parties before making any orders as to costs, and grant liberty to apply generally.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 4 February 2011

Counsel for the plaintiff: Mr I D Bradfield

Solicitors for the plaintiff: Romano Satsia Kondis

Counsel for the respondents (defendants sought to be added): Mr D P Shillington

Solicitors for the respondents (defendants sought to be added): Sparke Helmore

Date of hearing: 24 November 2010

Date of judgment: 4 February 2011