Yamazaki v Mustaca & Ors [2001] NSWSC 212

New South Wales Supreme Court

CITATION : Yamazaki v Mustaca & Ors [2001] NSWSC 212 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20849 of 1997 HEARING DATE(S) : 22 March 2001 JUDGMENT DATE : 28 March 2001

Mikiko Yamazaki (Plaintiff) v John Mustaca (First Defendant) PARTIES : Mary Mustaca (Second Defendant) Peter F Gibson (Third Defendant) Tina S Gibson (Fourth Defendant) PGTA Pty Limited (Fifth Defendant) Warringah Shire Council (Sixth Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Dr A S MorrisonSC/Mr D K Jordan (Plaintiff) P M Sibtain (Sixth Defendant) SOLICITORS : Blessington Judd (Plaintiff) Phillips Fox (Sixth Defendant) CATCHWORDS : Extension of limitation period - no question of principle. LEGISLATION CITED : Compensation to Relatives Act 1897 Limitation Act 1969, s 60D, s 60E. CASES CITED : N/A DECISION : See Paragraph 16.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 28 MARCH 2001

20849 of 1997 MIKIKO YAMAZAKI v JOHN MUSTACA & ORS JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 17 September 1997. The proceedings propound a claim for damages under the Compensation to Relatives Act 1897 arising out of an incident that took place on 5 August 1996. The husband of the plaintiff died as a result of injury suffered in that incident. He died on 16 August 1996. 2 The originating process has been amended on a number of occasions and there are now six defendants. There are a number of Cross-Claims (including a Third Cross-Claim brought by the first and second defendants against Warringah Shire Council). The Third Cross-Claim was filed on 15 September 1999. A Defence was filed on 19 January 2000. 3 The plaintiff contends that prior to the bringing of the Third Cross-Claim, she was unaware of any allegation of breach of duty by the Council. It is said that upon receiving the Cross-Claim advice was sought in relation to joinder of the Council as a defendant. The Third Further Amended Statement of Claim (which joined the Council as the sixth defendant) was filed on 13 April 2000. A Defence was filed on 20 August 2000 and was received by the plaintiff's solicitors on 31 August 2000. It pleaded the expiry of the relevant limitation period as a defence. 4 As the relevant limitation period has expired, an order is sought extending that limitation period (see Notice of Motion filed on 25 October 2000). 5 The application is opposed. The plaintiff relies on an affidavit sworn by a solicitor (Mr Madden). The Council relies on those parts of two affidavits sworn by another solicitor (Mr Davidson) which have been admitted into evidence, his supplementary oral evidence and Exhibit "1". 6 In addition to what has just been mentioned, Mr Madden's affidavit deposes to various other matters on information and belief. Largely, these relate to the plaintiff's personal circumstances. 7 The issues between the plaintiff and the sixth defendant relate to approvals which go back to 1975. They are similar to those raised by the Third Cross-Claim. 8 The sixth defendant has sought to advance actual prejudice as a real issue. However, the evidence relied on establishes little more than that some documentary material cannot now be located and that there is a possibility that it may have relevance to the plaintiff's claim. 9 The evidence relied on by the plaintiff is also parsimonious. It appears that the sixth defendant has been joined because of the bringing of the Third Cross-Claim. It may be that the claim brought against the sixth defendant has been mounted more in the nature of a protection measure. 10 Relief is sought pursuant to s 60D of the Limitation Act 1969 (the Act). Under that section, the court may (if it decides that it is just and reasonable to do so), order that the limitation period for the cause of action be extended for such period, not exceeding five years, as it determines. In exercising the powers conferred on it by the section the court is to have regard to all the circumstances of the case, (including those referred to in s 60E). The party seeking the order bears the onus of satisfying the court of an entitlement to relief. 11 The plaintiff first became aware of a connection between the injury and what is claimed against the sixth defendant upon the bringing of the Third Cross-Claim. The evidence suggests that this was when the plaintiff's legal advisers first put their minds to this matter. It was an aspect which could have been earlier contemplated by the legal advisers. No attempt has been made to explain why something was not earlier done by way of inquiry or investigation. The evidence does not suggest that there has been investigation since the bringing of the Third Cross-Claim or the obtaining of any expert advice. 12 The limitation period expired in August 1999. There has been delay, but it is not inordinate. In certain respects, the explanation for it is less than satisfactory. The evidence does not suggest that the delay has been the cause of actual prejudice. 13 Whilst the plaintiff may well have a substantial claim, the material that the court does have before it is not helpful as to its potential. However, it has not been submitted that the claim now made against the sixth defendant is not arguable. If it had been so submitted, this may have raised a consideration of weight. 14 The approvals are of antiquity. Prejudice may be presumed. There may be a possibility of actual prejudice. However, the Council is already a party and it may have to meet any such prejudice in defending the Third Cross-Claim. 15 It seems to me, when regard is had to the relevant circumstances of this particular case, that a fair trial can still take place. I am of the view that the plaintiff has discharged the onus in this case. Accordingly, I have decided that it is just and reasonable to make an order and that I should make an order extending the limitation period. 16 I extend the relevant limitation period for the plaintiff's cause of action up to and including 13 April 2000. The costs of the application are to be costs in the cause. The Exhibit may be returned. **********