New South Wales Supreme Court CITATION : Batistatos v RTA of NSW & Anor [2000] NSWSC 506 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 21033/94 HEARING DATE(S) : 2 June 2000 JUDGMENT DATE : 9 June 2000 Andrew Batistatos by his tutor Nita Lavina Batistatos (Plaintiff) PARTIES : Roads and Traffic Authority of New South Wales (First Defendant) Newcastle City Council (Second Defendant) JUDGMENT OF : Master Harrison Mr G R Graham (Plaintiff) COUNSEL : Mr W M Robinson (First Defendant) Mr M Joseph SC (Second Defendant) Mr T D Kelly (Plaintiff) Mr G Ball SOLICITORS : Crown Solicitor's Office (First Defendant) Phillips Fox (Second Defendant) CATCHWORDS : Summary judgment Local Government Act 1919 - s 580 LEGISLATION CITED : Lunacy Act 1898 Supreme Court Rules - Part 13 r 5 Notice of Action and Other Privileges Abolition Act No 19 of 1977 - s 3 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Dey v Victoria Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Knight v Concord Municipal Council & Ors [1970] 3 NSWLR 295 Buckle v Bayswater Road (1963) 57 CLR 259 Field v Council of the Municipality of Mosman [1937] 54 WN 162 DECISION : See para 24 13 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 9 JUNE 2000 21033/94 - ANDREW BATISTATOS by his tutor NITA LAVINA BATISTATOS v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES & ANOR JUDGMENT (Summary judgment; s 580 Local Government Act 1919) 1 MASTER: There were two motions by the defendants before the court seeking a stay of proceedings or dismissal on the basis of delay. As the arguments unfolded during the hearing it became clear that the defendants were relying upon the inherent power of the court. Hence these motions have been stood over to the callover to be specially fixed before a judge. However, this judgment is concerned with whether the plaintiff's proceedings should be dismissed against the second defendant for non-compliance with s 580 of the Local Government Act 1919. 2 Despite the tutor's letter to the court (undated) but written in 1998 which is on the court file, the tutor indicated that she now wishes to continue with these proceedings. To this end consent to act as tutor documents were filed. 3 This is a tragic case. The short facts of the matter are as follows. (1) The plaintiff was born on 11 April 1932 and is presently 68 years of age. (2) In 1934 the plaintiff was two years of age when his mother died. The plaintiff's father did not speak English and there was no-one available to assist him in looking after his three children. The plaintiff's father was unable to care for him and placed him in St Anthony's Home in Croydon. (3) On 1 March 1938 the plaintiff was transferred from St Anthony's and admitted to the then Newcastle Mental Asylum. Where he remained for the next 14 years. The plaintiff was admitted to the asylum pursuant to a fourth schedule request under the Lunacy Act 1898. He was apparently admitted with a diagnosis of congenital mental disorder. His life in the asylum was regimented and he was used as an unpaid source of labour to make beds and assist with menial nursing tasks. (4) In 1946 when the plaintiff was aged 14 years his intelligent quotient was tested and measured at the level of 69 points. This estimation is within the mental retardation range. The plaintiff entered into the engineering workshop at the asylum and acquired some mechanical skills. (5) On 2 August 1954 at the age of 22 years, on recruitment from the mental asylum, the plaintiff commenced employment as a labourer/cleaner with the Department of Public Works. He continued in this employment until 21 August 1965, the date of the accident. (6) On 21 August 1965 the plaintiff alleges that he was driving his motor vehicle along Fullerton Road, Stockton when it ran off the roadway into a depressed ditch and overturned. The plaintiff sustained a fractured dislocation of the spinal cord at C7/T1 level resulting in quadriplegia. It is in relation to this accident that proceedings are brought by the tutor against the Roads and Traffic Authority of New South Wales (as first defendant) and Newcastle City Council (as second defendant). (7) Following the accident the plaintiff was taken to Royal Newcastle hospital and remained there until 1979. He was transferred to William Lyne hospital in Waratah where he stayed until he was discovered by his sister. (8) In 1980 the plaintiff went to live with his sister and has remained with her since. She has since cared for him and continues to do so. The law in relation to summary judgment 4 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 5 In a recent decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 6 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 7 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.'" 8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried.'" 9 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 10 As previously stated, this judgment is concerned with the second defendant's application under Part 13 r 5 of the Supreme Court Rules (SCR) in relation to s 580(6) of the Local Government Act 1919 (the Act). This section was in force at the time of the accident. For the purposes of this application it is accepted that the plaintiff is and has always been under a legal disability. 11 Section 580 appeared in Division 3 of the Act which is entitled "Legal and other proceedings - against the council or its members or servants". The relevant portions of s 580 which were in force at the date of the accident are as follows: "(1) A writ or other process in respect of any damage or injury to person or property shall not be sued or served upon the council or any member thereof, or any servant of the council or any person acting in his aid for anything done or intended to be done or omitted to be done under this Act, until the expiration of one month after notice in writing has been served on the council or the member servant or person as provided in this section. (2) … (3) … (4) … (5) At the trial of any such action the plaintiff shall not be permitted to go into evidence of any cause of action that is not stated in the notice, and unless the notice has been served the plaintiff shall not be entitled to maintain the action; Provided that at any stage of the proceedings the court or any judge of the court in which the action is pending may, if the court or judge deems it to be just or reasonable in the circumstances so to do - (a) amend any defect in the notice on such terms and conditions (if any) as the court or judge may fix; (b) direct that any non-compliance or insufficient compliance with this section shall not be a bar to the maintenance of the action. (6) Every such action shall be commenced within the period of twelve months next after the occurring of the cause of action. Such period is in this subsection referred to as "the prescribed period"; Provided that where an application is made to a judge of the Supreme Court in accordance with rules of court for an extension of the prescribed period, the judge may, if he is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do, make an order for extension of the prescribed period for such further period and subject to such terms and conditions (if any) as may be set out in the order. Such application for extension may be made either within the prescribed period or at any time within twelve months thereafter. Any person who is dissatisfied with the decision of the judge on any such application may appeal to the Supreme Court and that court may on the appeal make any order which ought to have been made in the first instance. Every such appeal shall be made in accordance with the rules of court." 12 Section 580(6) was abolished by the provisions of the Notice of Action and Other Privileges Abolition Act No 19 of 1977. 13 Section 3 of the Notice of Action and Other Privileges Abolition Act 1977 states: "(3) The amendments made by this Act do not affect any proceedings on a cause of action accrued before the commencement of this Act." 14 It is my view that it is arguable that s 3 means that only proceedings on foot are not affected by the commencement of the Notice of Action and Other Privileges Abolition Act 1977. It is arguable that when this Act came into force, the plaintiff did not have any proceedings on foot and is thus not caught by s 3. 15 The second defendant submitted that the claims pleaded against it are firstly, the alleged acts and omissions are those by the council which fall within s 580; and secondly, are subject to the highway immunity principle. The plaintiff submitted that in order to ascertain whether the acts and omissions relied upon are those permitted under the Act or whether the council has immunity cannot be determined without the facts and circumstances being known The plaintiff's accident occurred on Fullerton Road, Stockton which was the only thoroughfare from Williamstown to Newcastle. 16 The claims of negligence against the second defendant are set out in paragraphs (9) and (10) of the statement of claim. They are: "9. The plaintiff's injuries were occasioned by the negligence of the said Commissioner for Main Roads and the Second Defendant and each of them. PARTICULARS OF NEGLIGENCE (a) Constructing and/or maintaining a bend in the said road which was at a higher level or elevation to the surrounding terrain. (b) Failing to warn of the existence of the said bend at its northern approaches or at all. (c) Failing to place posts with reflectors in and at the approaches to the said bend. (d) Constructing and/or maintaining the said bend where the adjacent grass camouflaged its existence. (e) Failing to remove the said grass in the course of such construction and/or maintenance. (f) Failing properly to illuminate the said bend. (g) Failing to warn that the roadway was or had become unsafe to traverse at normal cruising speed. (h) Failing to post any or any sufficient warning of the necessity to traverse the roadway at less than normal cruising speed. (i) Failing to construct or design the roadway with adequate or proper camber, or to cause the said roadway to be so constructed or designed. (j) Constructing and/or maintaining the roadway in such a condition that it was unsafe to traverse at normal cruising speed and/or causing permitting or allowing the roadway to be so constructed and/or maintained. (k) Failing to warn of the inadequate or defective camber of the roadway or to rectify the same. (l) Causing permitting or allowing the said roadway to come into or remain in public operation with the deficiencies hereinbefore particularised. (10) Further and in the alternative the Plaintiff claims that the said Commissioner for Main Roads and/or the Second Defendant wrongfully caused and/or permitted the said roadway to be dangerous in the respects referred to in the preceding paragraph and as hereinbefore particularised and thereby committed a nuisance on the roadway." 17 The second defendant relied upon the decision of Knight v Concord Municipal Council & Ors [1970] 3 NSWLR 295 where Collins J dismissed proceedings as s 580(6) of the Act had not been complied with. In Knight it was conceded that the plaintiff was an infant at the time he met with an injury and when the notice was given is irrelevant. Evidence by affidavit was tendered by the Town Clerk, Mr George Johnson in relation to the powers exercised by the council. Collins J held that the council was sued in negligence in its care, control and management of the Cabarita Swimming Baths and the power to a council to control and manage parks is expressly conferred by ss 348, 353 and 354 of the Act. According to Collins J this statutory right is expressly given by these sections quoted above. His Honour held that it was clear beyond question that the acts and omissions sued upon were acts and omissions done under the Act by the council and that s 580(6) had not been complied with. He also held that a failure to grant the application would only involve unnecessary expense and delay. His Honour set the writ and declaration aside. 18 In the case before me it is common ground that no notice was given to the council in accordance with s 580(6) of the Act within the time specified and that no application was made to the court within 12 months for an extension of time. 19 However, I am not persuaded that all the acts and omissions pleaded all acts done under the Act. The second defendant called no evidence to establish that this is the case. In relation to the highway immunity principle, it is true that no civil liability arises from an omission on the council's part to construct a road, to maintain a road which it has constructed, to repair a road which is allowed to fall into disrepair - Buckle v Bayswater Road (1963) 57 CLR 259. In relation to roadworks if the authority takes action so as to create a danger, it may be liable. It may also be liable if the roadworks involved two purposes and the work was done in relation the non-highway purpose. With the plaintiff under such a disability, to properly determine these issues requires the facts to be ascertained. 20 Alternatively, the plaintiff submitted that s 280(6) gives a discretion to extend time to commence proceedings. However, in Field v Council of the Municipality of Mosman [1937] 54 WN 162, the full court (per Davidson J) held that: "In my opinion, the action must be commenced within six months and not afterwards, precisely as sub-s (6) states, and, if it has not been so started, it cannot be maintained thereafter. The result is that, notwithstanding the use of the word "section" in sub-s. (5)(b), in my opinion that word can only apply to the words which have been used preceding it in the earlier part of the section." 21 The period of six months was altered by legislation to a period of 12 months. The court cannot direct that any non-compliance with this section will not be a bar to the maintenance of the action. This point is clear beyond peradventure. Accordingly this submission of the plaintiff fails. 22 It is may view that as the plaintiff has an arguable case s 580(6) of the Act does not apply. Accordingly his proceedings by his tutor should not be dismissed pursuant ot Part 13 r 5 of the SCR on this basis. Also, as a discretionary issue, as the plaintiff is under a legal disability and the very unusual nature of this matter, I am not persuaded that it is an appropriate matter for summary judgment. It is yet to be determined whether these proceedings should be permanently stayed as the accident occurred a very long time ago, namely 35 years ago. 23 Cost are discretionary. Costs should follow the event. The second defendant is to pay the plaintiff's costs. 24 I make the following orders: (1) The statement of claim should not be dismissed on an interlocutory basis that the plaintiff has not served notice in accordance with s 580 of the Local Government Act 1919. (2) The second defendant is to pay the plaintiff's costs. ********** Last Modified: 09/26/2000 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.