New South Wales Supreme Court CITATION : Cecila Jane Filipovic v Heli Australia Pty Limited & Ors ( 20880/95);Tony Slavko Filipovic v Heli Australia Pty Limited & Ors (20881/95) [1999] NSWSC 386 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20880/95 ; 20881/95 HEARING DATE(S) : 27 April 1999 JUDGMENT DATE : 29 April 1999 Cecilia Jane Filipovic (Plaintiff in 20880/95) Tony Slavko Filipovic (Plaintiff in 20881/95) Heli Australia Pty Limited PARTIES : (First Defendant) Heli Muster Pty Limited (Second Defendant) Colonia Insurance Company (UK) Ltd (Third Defendant) Baltica Insurance Company (UK) Ltd (Fourth Defendant) Estate of the late Roderick John Hunt (Fifth Defendant) JUDGMENT OF : Master Harrison Ms V Webster (Plaintiffs) COUNSEL : Mr B Morris (First to Fourth Defendants) Russell McLelland & Brown, Wollongong (Plaintiffs) Dunhill Madden Butler, Sydney SOLICITORS : (First to Fourth Defendants) DGB Lawyers, Wollongong (Fifth Defendant) CATCHWORDS : Extension of time to file statement of claim ACTS CITED : Limitation Act - ss 60C, D & E Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866 & 139 ALR 1 CASES CITED : Gladesville RSL Club v Bartsch & Anor (1998) 44 NSWLR 674 Morgan v 45 Flers Avenue Pty Limited & Anor (1987) NSWLR 573 DECISION : See para 17 7 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON THURSDAY, 29 APRIL 1999 20880/95 - CECILIA JANE FILIPOVIC v HELI AUSTRALIA PTY LIMITED & ORS 20881/95 - TONY SLAVKO FILIPOVIC v HELI AUSTRALIA PTY LIMITED & ORS JUDGMENT (Extension of time to file statement of claim) 1 MASTER: By notice of motion filed in court on 27 April 1999 the plaintiffs seek orders that the limitation period for commencing an action against the estate of R J Hunt be extended up to and including 8 September 1998 and that the time for service of the further amended statement of claim be extended to on or before 25 September 1998. The first to fourth defendants oppose these orders being made and the fifth defendant neither consents nor opposes the application. 2 On 17 August 1998 the following orders were made. (1) The plaintiff has leave to join the estate of the late Roderick John Hunt as fifth defendant. (2) That the limitation period for commencing an action against the estate of the late Roderick John Hunt be extended up to and including 31 August 1998. (3) Leave is granted to the plaintiff to serve a further amended statement of claim on or before 31 August 1998. (4) The plaintiff is to pay the third and fourth defendants' costs. 3 An appeal was lodged from my decision referred to above. On 2 December 1998 Hidden J dismissed the appeal. 4 No further amended statement of claim was filed by 31 August 1998. However the further amended statement of claim was filed 9 days outside the time stipulated namely on 9 September 1998. 5 Once again, the blame for non-compliance with my orders lies with the plaintiff's solicitor. In my previous judgment I made some unflattering comments about the plaintiff's solicitor. I commented that when the solicitor, Mr Garrett had advised the plaintiff that there were ways to get around the limitation period, he demonstrated a cavalier attitude to the law. The solicitor has acknowledged that he received a copy two days after it was delivered. On 20 August 1998 he attended an informal conference at the first to fourth defendants' solicitor's office in Sydney which explored settlement but was unsuccessful. 6 The solicitor's explanation for the delay in filing the further amended statement of claim is that both prior to and during the whole of the month of August 1998 and September 1998 he was absent from work on regular occasions because of his personal health. He had total kidney failure due to a condition known as Polycystic Kidney Disease. This has necessitated regular haemodialysis since February 1998. In addition to the requirement for dialysis on three afternoons every week, at the relevant time the dialysis machine installed in his home was frequently malfunctioning due to an electrical supply irregularity. Consequently he was compelled to frequently attend either Wollongong or Shellharbour public hospitals renal units for dialysis on an emergency basis which was disruptive to his legal practice. On 8 September 1998 he commenced a course of training at Wollongong hospital, renal department, on a new and different dialysis machine. This necessitated absence from his office for three days per week for a further three weeks. As a result of these circumstances he inadvertently overlooked the time for filing and serving of the amended statement of claim. 7 On 28 October 1998 the plaintiff's solicitor wrote to the first to fourth defendants' solicitor and informed him that at the hearing of the appeal, he proposed to request appropriate orders to regularise the late filing and service of the further amended statement of claim. The plaintiffs' solicitor failed to raise this issue with Hidden J. 8 The plaintiff submitted that a further extension of time should be granted because the delay of a day in filing the further amended statement of claim of 9 days did not alter the position of the defendants to their detriment, a reasonable explanation for the delay has been provided and it is fair and reasonable to make such an order. The plaintiff also submitted that to sue a solicitor for negligence leaves the plaintiff with a more onerous case to prove. 9 The defendant submitted that an order to extend the time for filing a further amended statement of claim should not be granted because the plaintiff's solicitor had previously demonstrated a cavalier attitude to time constraints in this matter, there has been largely unexplained delay of 5 months before the plaintiff's solicitor sought to regularise the error and it has suffered prejudice - see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866 and 139 ALR 1 McHugh J at p 581. 10 The first to fourth defendants counsel referred to the authorities of Gladesville RSL Club v Bartsch & Anor (1998) 44 NSWLR 674 and Morgan v 45 Flers Avenue Pty Limited & Anor (1987) NSWLR at 573. In Morgan, the second opponent had filed three notices of motion seeking dismissal of the claimant's proceedings for want of prosecution. After the last motion was filed, the parties, by consent entered into a self executing order to the effect that if the claimant did not pay for the printing of the appeal books within 7 days the appeal would be dismissed for want of prosecution. Kirby P (as he then was) considered the factors both for and against setting aside the self executing orders (pp 580,581). His Honour considered the prior serious delays meant that the solicitor for the claimant should have been on notice of the need to exercise punctilious care in complying with the terms of the order. His Honour considered the client may have remedies against his solicitor and why should they be allowed to further trouble the opponents who had endeavoured to comply with time constraints. When exercising his discretion, the President acknowledged that it was a borderline case but considered that just sufficient reason had been shown to warrant relief in this case. This would allow the appeal to be disposed on its merits and reflects the preference of the modern approach to disputes of this kind. 11 In Gladesville RSL the judge in the original application to extend the limitation period found that the plaintiff satisfied the threshold first contained in s 60I(1)(a)(ii) and exercised his discretion in favour of the plaintiff. His Honour extended the limitation period. The plaintiff's legal advisers failed to commence proceedings on the plaintiff's behalf within one month as stipulated in the orders. A further notice of motion was filed seeking a further extension application and relied on additional facts to pass through the s 60I(1)(a)(ii). Handley JA (with whom Mason P and Stein JA agreed) at p 681 stated: "The question whether it is just and reasonable to make a second order extending the limitation period is also affected by the failure of the plaintiff's legal advisers to commence proceedings within the time permitted by the earlier order. In Walkley v Precision Forgings Ltd [1979] 1 WLR 606; [1979] 2 All ER 548, a plaintiff had commenced proceedings within the limitation period, which became liable to dismissal for want of prosecution. An extension of the limitation period to enable fresh proceedings to be commenced was refused, because as Lord Diplock said (at 619; 559) "these are self-inflicted wounds". The answer to a question from the court would indicate that the plaintiff may well have a remedy against her legal advisers, but this is strictly irrelevant in the resolution of the present appeals. An order for an extension is interlocutory, and as such may be susceptible of variation where, as a result of some accident, illness, mistake or the like, proceedings are not commenced within the extended period and an application is made promptly for the necessary variation. No such question arises in this case and there is no need to express any view on it." 12 In the case before me the plaintiffs' extension of time applications fell under ss 60C, D and E of the Limitation Act. Nevertheless, my previous order granting a further extension of time may be varied if it comes about due to some accident, illness or mistake and an application is made promptly for the necessary variation. 13 I turn to the exercise of discretion to grant the relief sought in the motion. The factors which persuaded me to grant the original extension of time and join the fifth defendant as a party to the proceedings are the same. The defendants were aware as at 28 October 1998 that the plaintiffs' solicitor was taking steps to rectify his non-compliance with the court's order. The fifth defendant neither consents nor opposes the orders for an extension of time in which to file the further amended statement of claim being made. The defendant has not demonstrated that it suffers actual prejudice, but rather the presumptive prejudice which has been caused by delay. Even though the motion was not filed until it was handed up in court at the hearing, the actual further amended statement of claim was filed only 9 days outside the time stipulated. 14 While I am sympathetic to the plaintiffs' solicitor's serious illness, in the light of my previous comment that he had adopted a cavalier attitude to the law and in particular time limits, if he was well enough to attend Sydney for a conference with the defendants' solicitors shortly after my judgment was handed down, it is difficult to see how he failed to make the compliance with the time limit imposed by the court a priority. He also failed to seek an extension of time when the appeal was heard by Hidden J even though he had previously advised the first to fourth defendants he would do so. Once again, the blame cannot be attributed to the plaintiffs but rather their solicitor and if leave is refused they will have the more onerous task of establishing a professional negligence case against him. 15 This is a borderline case. The plaintiffs have only just satisfied the court that an extension should be granted. By adopting this course the cases will be determined on their merits. 16 As the plaintiffs were in default of the orders of the court the first to fourth defendants should be awarded their costs. The question to be determined is whether the plaintiffs or their solicitor should pay the first to fourth defendants' costs. Before I make an order that the plaintiffs' solicitor should pay the costs, I should allow him the opportunity to be heard. 17 The orders I make are: (1) The limitation period for commencing an action against the estate of R J Hunt be extended up to and including 25 September 1998. (2) The time for service of the further amended statement of claim be extended up to 25 September 1998. (3) Costs are reserved. ********** Last Modified: 04/29/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.