Monie & Ors v Commonwealth of Australia [2000] NSWSC 448

New South Wales Supreme Court

CITATION : Monie & Ors v Commonwealth of Australia [2000] NSWSC 448 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12280 of 1999 HEARING DATE(S) : 3 May 2000 JUDGMENT DATE : 26 May 2000

Peter John Monie Jennifer Anne Monie PARTIES : Samuel Alexander Monie (Plaintiffs) v Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr D Rofe QC/MR A Tudehope (Plaintiffs) Mr B Skinner (Defendant) SOLICITORS : S K & Associates (Plaintiffs) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period - one of plaintiffs shot by assailant - proceedings not commenced until after conviction - loss of records - delay and prejudice. LEGISLATION CITED : Limitation Act 1969, Div. 3, Sub-Div. 2, s 60C, s 60E. CASES CITED : N/A. DECISION : See paragraph 27.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 26 MAY 2000

12280 OF 1999 PETER JOHN MONIE & ORS v COMMONWEALTH OF AUSTRALIA JUDGMENT 1 The proceedings were commenced by Summons filed on 17 September 1999. At that time, there were four plaintiffs. The first and second plaintiffs are husband and wife. The third plaintiff is the third eldest child of their marriage. The fourth plaintiff was a company who has carried on a farming business in partnership at a property known as Thornleigh with the first plaintiff under the name of Thornleigh & Co. The first, second and third plaintiffs were engaged in the conduct of that business. 2 An Amended Summons was filed on 13 October 1999. It, inter alia, deleted the fourth plaintiff as a party. 3 In or about February or March 1993, the business required some extra station hands. An approach was made to the then Commonwealth Employment Service (CES). An interview took place at its Inverell office. Thereafter, CES sent out two potential employees. The first of the two was Michael Gallagher. He commenced employment on 9 March 1993. The second of the two was Darren Winsor. He was later employed pursuant to the Jobstart Scheme. 4 Winsor had a criminal record (since 1984). He had been released from prison only a few months prior to the commencement of the employment. He had recently been convicted on 16 April 1992 for assault occasioning actual bodily harm and for breach of recognizance for an earlier assault on 18 December 1990. There is evidence to support the contention that the CES did not advise the plaintiffs of the criminal record. The plaintiffs say that they were unaware of it. Winsor commenced employment on or about 24 March 1993. 5 On 15 June 1993, a shooting took place at the homestead on Thornleigh. The first plaintiff suffered personal injury and was taken to hospital. He did not see his assailant. Following the shooting, Winsor presented himself as someone who was seeking to assist the first plaintiff. Thereafter, Winsor was charged by police with attempted murder (together with other charges in relation to the shooting). Winsor strenuously denied that he was the gunman and maintained his innocence. Indeed, it seems that at some stage he may have contended that other members of the family had been involved in the shooting. The evidence against him was of a circumstantial nature. 6 The investigating police provided information which brought to the plaintiffs' attention the fact that Winsor had a criminal record. There was a meeting at the Inverell CES (with a woman in about July 1993). 7 There were committal proceedings in 1993. Winsor was committed for trial. The trial was not concluded until 12 September 1997. It had been delayed for a variety of happenings (some of which were unusual). Winsor was found guilty by a jury of attempted murder. He was sentenced to a term of imprisonment. 8 Following the shooting, apart from his physical injuries, the first plaintiff suffered other health problems and his ability to operate the property was greatly reduced. There is evidence that each of the three plaintiffs have suffered from problems of a psychiatric nature. The third plaintiff took over control and management of the property until March 1996. The partnership suffered significant financial losses. 9 A solicitor (Mr Kozera) was consulted (at some stage prior to Christmas 1997). It seems that another solicitor (Mr Butler) may have been consulted about three weeks earlier. Mr Kozera says that he was first consulted in October 1997. He undertook to seek the advice of counsel and arrange a conference. A conference took place on 16 April 1998 (in Armidale with Mr D Rofe QC and Tudehope). Counsel gave advice and suggested that certain matters be investigated and pursued. Correspondence with the Department of Employment, Education Training & Youth Affairs (the Department) commenced in late April 1998. In July 1998, there was a further letter. A telephone response was received on 26 August 1998 (to the effect that the letters were under consideration). A written reply was not received from the Department until January 1999. This letter advised inter alia that if proceedings were brought against the defendant, the Department would advise the Attorney General that any available limitation defence should be taken. The stance of not consenting to an extension of any relevant limitation period has been maintained. 10 The Commonwealth of Australia is sued as the entity responsible for the CES. There is no issue as to it being the proper defendant. 11 In these proceedings, an extension of the relevant limitation period is sought. The claim for relief is made pursuant to s 60C of the Limitation Act 1969 (the Act). The proceedings were heard on 3 May 2000. The first plaintiff has sworn an affidavit. The second plaintiff has sworn two affidavits. The third plaintiff has sworn an affidavit. Each of them has been cross-examined. Mr Kozera has sworn three affidavits. The defendant relies on an affidavit sworn by Mr Ktenas (a principal solicitor employed by the Australian Government Solicitor). 12 Section 60C forms part of Division 3 of the Act (which is headed "Personal injury cases"). It falls within Sub-Division 2 (which is headed "Secondary limitation period"). The section is expressed to apply to a cause of action founded on negligence, nuisance or breach of duty, for damages for personal injury. Where an application is made by a person claiming to have a cause of action to which the section applies, the court, may, if it decides that it is just an 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. Section 60E enumerates the matters to be considered by the court (all of the relevant circumstances including those listed in (a) to (h) thereof, to the extent that they are relevant). The applicant bears the onus of satisfying the court of an entitlement to relief. 13 The section enables an application to be made by a person claiming to have a cause of action to which it applies. For the purposes of this application, there is no dispute that each of the plaintiffs has an arguable cause of action. 14 In opposing the application, the defendant has agitated two matters. Firstly, there is the matter of the length of and the reasons for the delay in commencing proceedings. Secondly, there is the matter of prejudice flowing from that delay. 15 It is common ground that the relevant limitation period expired in June 1996. The defendant complains of the delay that took place between July 1993 and the commencement of the proceedings. Further, it says that the explanation offered for this delay is not satisfactory. It contends that a prudent plaintiff in the circumstances would not have delayed the commencement of proceedings until after the conviction. 16 The affidavits set forth the explanation offered by the plaintiffs for not commencing proceedings until Winsor had been convicted. In essence it is said that until he was convicted, there was uncertainty (despite the suspicions held by them) as to who had in fact shot the first plaintiff. Following the conviction, the plaintiffs moved to get legal advice. 17 This is not a case in which the relevant delay has been left unexplained. Explanation has been offered. In my view, it sufficiently explains that delay. I may add, that on one view, the approach taken by the plaintiffs may be regarded at least largely as a course that was appropriate to take. 18 It is more or less accepted, that the defendant has what might be described as something in the nature of an evidentiary onus to adduce evidence of actual prejudice said to be flowing from delay. The only evidence offered by the defendant on this question is to be found in the affidavit sworn by Mr Ktenas (who was not himself involved in the search for records). The affidavit is relied on to support the contention of prejudice by reason of loss of records. For the purposes of this application, it is not said that the delay has led to prejudice by reason of potential witnesses becoming unavailable. 19 The evidence adduced by the affidavit of Mr Ktenas is relatively limited. If it was necessary to do so, it is open to be found that the material falls well short of demonstrating significant actual prejudice. 20 The affidavit informs that Mr Ktenas requested Mr Rowe, during September and October 1999, to make certain requests of staff in order to search for records relating to Winsor's placement with the plaintiffs. Apart from annexing copy documentation held by the defendant, the affidavit contains inter alia the following paragraphs:- "5. I am instructed and verily believe that from 30 April 1998 the Offices of the former CES have been closed, and that prior to their closure, records of the CES were archived and placed into storage with private contractors. Some records were properly catalogued and archived, but others appear to have been lost, misfiled or have been properly disposed of in accordance with the Records Disposable Authorities issued in accordance with the Archives Act 1983. 6. I have also been instructed and verily believe that the Department has commenced a 'Cataloguing' exercise in an attempt to better identify the records that are currently held in storage. On 3 February 2000, Mr Maurice Rowe, on my advice, contacted Ms Wilma Hopkins of the Department's information services, and was informed that they could not locate any records of the former Inverell CES." 21 The defendant was on notice of the potential claims following the letter dated 28 April 1998. The attempt to locate records was made somewhat belatedly. The evidence does not disclose the identity or nature of the records that would have been held by the CES. It is left unclear as to what assistance, if any, such records may have afforded the defendant in defending proceedings brought by the plaintiffs. Whatever may be the position, it appears that at least in part, the defendant bears fault for what is said to be a failure to locate any records of the former Inverell CES. There seems to have been a lack of cataloguing and records were dumped in secondary storage repositories (for which no storage costs were paid). It appears that "in the general scope of things" the records would have been destroyed in 2005. 22 The plaintiffs contend that there has been a lack of due search and inquiry for these records. In my view, there is considerable force in this submission. 23 The plaintiffs have provided the defendant with names of staff working at the Inverell CES. One of these witnesses is Ann Arca (nee Morris). There was evidence that she is now available and is still in Inverell. Also, there is evidence that she was the person who dealt with the plaintiffs in relation to the placement of Winsor and also was the person who spoke to the first and third plaintiffs during the meeting had in about July 1993. There is evidence that during the meeting she said to them words to the effect as follows:- " 'If you had been a Government organisation you would have been informed of the worker's criminal record but because were private we had no obligation to inform you of such material' ". 24 In the light of the material before the court, I am not satisfied that the delay has occasioned any significant actual prejudice. There may be some actual prejudice. Delay of itself can be expected to give rise to prejudice (this has been referred to as presumptive prejudice). In exercising the powers of the court, I have taken those matters into account. 25 In the circumstances of this case, it seems to me to be likely that a fair trial can still be had. 26 In my view, the plaintiffs have satisfied the relevant onus. I have reached the decision that it is just and reasonable to make an order extending the limitation period and I consider that such an order should be made in the circumstances of this case. 27 The plaintiffs now seek to propound causes of action founded on negligence only against the defendant. I order that the limitation period for such causes of action be extended for a period of twenty eight days from today. The costs of the Summons are to be costs in such proceedings commenced consequential upon that extension. **********