New South Wales Supreme Court CITATION : Maclean v The Bike Farm & Ors [2000] NSWSC 534 revised - 9/10/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20049 of 1995 HEARING DATE(S) : 9 June 2000 JUDGMENT DATE : 15 June 2000 Duncan Maclean (Plaintiff) v The Bike Farm Pty Limited (First Defendant) PARTIES : Eric Sikes & Helen Sikes (Second Defendants/Cross-Claimants) Emmanuel Comino (First Cross-Defendant) Alpha Insurance (Agency) Pty Limited (Second Cross-Defendant) Zurich Australian Insurance Limited (Third Cross-Defendant) JUDGMENT OF : Master Malpass Mr R V Letherbarrow SC/Mr D M Wilson(Plaintiff) COUNSEL : N/A (First Defendant) Mr F Curtis (Second Defendants/Cross-Claimants) Mr B Hull (First, Second and Third Cross-Defendants) Stacks - The Law Firm (Plaintiff) SOLICITORS : N/A (First Defendant) Murphy & Moloney with Pryor Tzannes & Wallis (Second Defendants/Cross-Claimants) Malcolm Johns & Company (First, Second and Third Cross-Defendants) CATCHWORDS : Extension of limitation period - no question of principle. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : Northern Sandblasting Pty Ltd v Harris (1997) 118 CLR 313. DECISION : See paragraph 24. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS THURSDAY 15 JUNE 2000 20049 of 1995 DUNCAN MACLEAN v THE BIKE FARM PTY LIMITED & ORS JUDGMENT 1 The plaintiff is now 27 years of age. On 25 January 1992, he suffered personal injury in a motor bike accident. He was rendered quadriplegic. 2 The injury was sustained on a property which was operating as a motor cycle park. The present second defendants were the owners of the land. It had been earlier purchased in 1982, at a time when it was operating as a motor cycle park. At the time of the accident, it was subject to a lease. The lease had been renewed on a number of occasions. The lease afforded the owners a right of entry and repair. 3 The plaintiff seeks to propound a claim for damages against the second defendants. It is founded on negligence. The property was known as "The Bike Farm". There were five motor cycle tracks on the complex. The plaintiff was motor cycling with his friend (Matthew Carnes). The accident took place following his approach to a jump on one of the tracks. It is alleged that he lost control because of the condition of the approaches to the jump. It is further alleged that the approaches should have been graded more often than they were. Largely, it is said that the second defendants were in breach of duty to inspect. 4 The relevant limitation period expired a long time ago (28 January 1995). The plaintiff now seeks an extension of that limitation period. The Notice of Motion was filed on 27 March 2000. It was heard on 9 June 2000. The relief is sought pursuant to s 60C of the Limitation Act 1969 (the Act). 5 The plaintiff relies on three affidavits. One was sworn by the plaintiff himself. One was sworn by Lesley McIntosh Young, she is a solicitor and had the conduct of the matter for the plaintiff between 23 August 1994 and 15 April 1998. The third of the three affidavits was sworn by Mr Stack. He is also a solicitor and has had the conduct of the matter since about 15 April 1998. 6 The second defendants rely on an affidavit sworn by Mr Sykes and an affidavit sworn by Mark Edward McGinn. Mr McGinn had been a third defendant in the proceedings. 7 The relevant material can be found in the affidavits. I shall merely repeat some of it. This reference is not intended to be exhaustive. 8 In March 1992, the plaintiff's mother sought some legal advice. She was advised that it was not worth commencing proceedings whilst the applicant was in hospital. In June 1992, the second defendants sold the property. In 1993, The Bike Farm Pty Limited was deregistered and dissolved. In March 1994, the business name of The Bike Farm was deregistered. 9 During 1994, it was suggested to the plaintiff that he should contact his present solicitors (Stacks). He gave them instructions on 23 August 1994. Advice was received from counsel in September 1994. The advice suggested that because of the severe injuries it would be worth commencing proceedings against the operators of the track. The advice drew attention to the time limit of three years and that it would expire at the beginning of the next year. Counsel had suggested that certain inquiries be made. The material suggests that this was left to the plaintiff because of his financial position. 10 As at 25 January 1995, the only information had as to the identity of the operator was that it was known as The Bike Farm. On 25 January 1995, a Statement of Claim was filed naming The Bike Farm as the defendant. At that time, The Bike Farm was not a legal entity. Subsequently, it was discovered that the business name had been deregistered. Later in 1995, a search of "The Bike Farm Pty Limited" was conducted. It was then discovered that that company had been dissolved. In early 1996, the solicitors became aware that there had been an appeal to the High Court in the test case of Northern Sandblasting Pty Ltd v Harris (1997) 118 CLR 313. 11 The Statement of Claim was not served until July 1995. Shortly thereafter the solicitors became aware that The Bike Farm Pty Limited was not insured. It was then decided to make inquiries as to the owner of the property. In March 1996, information was received to the effect that the second defendants owned the property at the time of the accident. Further advice was sought from counsel. An Amended Statement of Claim was drafted. It added the second defendants to the proceedings. It was filed on 29 March 1996. It was served on 16 April 1996. 12 The decision in Northern Sandblasting was handed down in August 1997. On 3 April 1998, the second defendants filed a defence which inter alia pleaded the expiry of the limitation period. 13 In January 1999, the second defendants brought a Cross-Claim against their insurance brokers and the insurer. The insurer has declined liability to indemnify them. 14 A Second Amended Statement of Claim was filed in October 1999 (it contained a prayer for relief under the Act). The effect of what since has happened is that the second defendants are now the only defendants in the proceedings. 15 The relevant provisions of the Act enable the court to order an extension of the limitation period (for a period not exceeding 5 years) where it decides that it is just and reasonable to do so. In exercising the powers conferred by s 60C, the court is required to have regard to all of the circumstances of the case (including those that are relevant and enumerated in s 60E). 16 The second defendants vigorously oppose the application. Leave has been given to the insurance brokers and the insurer to appear on the hearing of the application. Also, they vigorously oppose the application. 17 It is said that the plaintiff does not have a viable cause of action. It has been described as novel. Counsel for the plaintiff concedes that they have problems on liability, but contends that it would not be futile to grant relief. It seems to me that the prospects of success could be described at best as slender. 18 Those opposing the application rely on the lengthy delay and the deficiencies in the explanations for delay. There has been significant delay and the explanation that has been offered falls well short of being satisfactory. 19 Prejudice has been put as a significant matter. The operators have recently ceased to be involved in the proceedings. The second defendants were only the owners of a property which had been used by the operators for commercial purposes under lease. The owners had occupied adjacent premises. They ceased to be the owners in 1992. There have been alterations to the property (see affidavits). The changes extend to the track and jump in relation to which the injury took place. The Bike Farm has been described as "a very different place to-day than when the plaintiff was injured in 1992". There are no photographs as at the time of the accident. The plaintiff took some photographs in 1995. The insurer took some photographs in 1996. The second defendants did not become aware of the claim until April 1996. There is a paucity of material relating to potential witnesses. We know that the plaintiff is available. His affidavit would suggest that there is not much he can say as to the accident itself (it appears that he also suffered head injury). His friend has provided the insurer with a statement. It is the subject of a claim for legal professional privilege by the insurer. There is no evidence that he is unavailable. He may or may not be prepared to provide the second defendants with a statement. The evidence does not otherwise assist as to who may be able to give relevant evidence. It has been said that the operators may be potential witnesses. There is no evidence as to their unavailability. However, save for what appears in Mr McGinn's affidavit, what they can say is in the area of speculation. 20 It appears that the business was purchased by the Red Baron Group in 1993 and that Mr McGinn worked as a manager for some years. His affidavit adverts to certain difficulties. It does not suggest that he can give any evidence relating to the accident itself. 21 The insurer raised the possibility of an alternative remedy. This is a possibility. However, the material is insufficient to enable the court to assess the prospects of success of any cause of action against the solicitors. In any event, the authorities suggest that the existence of such an alternative remedy is not a matter that carries great weight. 22 The plaintiff has suffered very serious injuries. A successful claim could be expected to see him recovering a large sum in damages. 23 I find this a difficult case. I have had regard to all of the relevant circumstances of the case. It seems to me that it would now be difficult to have a fair trial. The plaintiff is seeking an indulgence. The granting of relief would see the second defendants losing their statutory defence and perhaps being committed to a lengthy and expensive trial. The plaintiff bears the onus of satisfying the court of his entitlement to relief. I am not satisfied that this onus has been discharged. 24 I dismiss the Notice of Motion. The plaintiff is to pay the costs of the Notice of Motion. ********** Last Modified: 10/09/2000 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.