George v Lifese Steel Erections [2002] NSWSC 779

New South Wales Supreme Court

CITATION : George v Lifese Steel Erections [2002] NSWSC 779 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20430 of 1999 HEARING DATE(S) : 17 April 2002 & 22 August 2002 JUDGMENT DATE : 30 August 2002

Rabih George (Plaintiff) PARTIES : v Lifese Steel Erections Pty Limited (Defendant/Cross-Claimant) Lifese Pty Limited Trading as Lifese Engineering (Cross-Defendant/proposed Second Defendant) JUDGMENT OF : Master Malpass

Mr D Nock SC/Mr I Griscti (Plaintiff) COUNSEL : N/A (Defendant/Cross-Claimant) Mr L Ellison (Cross-Defendant/proposed Second Defendant) Barry F Cosier & Associates (Plaintiff) SOLICITORS : Nevill & Edwards (Defendant/Cross-Claimant) Holman Webb (Cross-Defendant/proposed Second Defendant) CATCHWORDS : Extension of limitation period - delay and inadequate explanation of delay (despite further opportunity to adduce relevant evidence). LEGISLATION CITED : Limitation Act 1969, s60C. CASES CITED : N/A DECISION : See paragraphs 28 - 30.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Friday 30 August 2002

20430 of 1999 Rabih George v Lifese Steel Erections Pty Limited & Anor

JUDGMENT 1 Master Malpass: These proceedings have been commenced by Statement of Claim filed on 24 September 1999. The process propounds a claim for damages arising out of a work incident that took place on or about 2 October 1996. At the time of the incident, the plaintiff was working at No 4 Blast Furnace, BHP, Newcastle. 2 The defendant has been sued in its capacity as employer of the plaintiff. A Defence has been filed (on 29 August 2000). The allegation of employment has not been put in issue. However, paragraph 5 thereof did allege that the services of the plaintiff had been lent or transferred on hire to Lifese Pty Limited. 3 On 7 May 2001, the defendant brought a Cross-Claim against Lifese Pty.Limited. The Cross-Defendant is sued in its capacity as occupier of the work site. 4 By letter dated 25 July 2001, the solicitors for the defendant advised the solicitors for the plaintiff that the defendant was a labour hire company and was of the belief that liability existed in the cross-defendant. 5 On 12 October 2001, the plaintiff filed a Notice of Motion. This application sought inter alia to add the cross-defendant as a second defendant, leave to file an Amended Statement of Claim and an extension of the limitation period. 6 The hearing of the Notice of Motion commenced on Wednesday 17 April 2002. The relief sought was opposed by the cross-defendant. 7 In support of the application, the plaintiff relied on two affidavits. There was a short affidavit sworn by the plaintiff himself. There was a slightly longer affidavit sworn by his solicitor (Mr Cosier). 8 The contents of the affidavit sworn by the plaintiff referred to an Annexure A. This document was not in fact annexed to the affidavit. It was tendered as Exhibit A. 9 The cross-defendant did not tender any affidavit evidence. There was brief cross-examination of the plaintiff. The cross-defendant tendered two documents (Exhibits 1 and 2). Exhibit 1 was a form of Statement From Injured Person signed by the plaintiff. It identifies the employer as "Life Eze". Exhibit 2 was a statement taken from the plaintiff by an officer of WorkCover on 16 October 1996. In that statement, the plaintiff is recorded as saying that his employer was Lifese Pty Limited. 10 The affidavit sworn by Mr Cosier contains inter alia the following:- "4. I am instructed by the Plaintiff and verily believe, that the Plaintiff had no knowledge of the proposed Second Defendant (Cross Defendant) being involved in his employment or in the circumstances of the accident until he was made aware of the Cross Claim". 11 The affidavit sworn by the plaintiff contains inter alia the following:- "3. I believed that I was employed by the Defendant following receipt of my group certificate from the Defendant, a copy whereof is annexed hereto and marked with the letter 'A' which discloses that the Defendant was my employer. 4. As far as I was aware I was at all times employed by the Defendant at the time of my accident. I was unaware of any difference between Lifese Pty Limited and Lifese Steel Erection Pty Limited." 12 Upon the conclusion of the evidence, counsel for the cross-defendant made his submissions in opposition to the application. During those submissions, he argued that the application should be refused by reason of delay and of the failure to sufficiently explain that delay. 13 In the course of responding to these submissions, counsel for the plaintiff made inter alia application for leave to reopen to enable further evidence to be placed before the court. 14 This application was opposed. It was reluctantly granted by the court on terms and the further hearing of the matter was stood over to a date to be fixed. One matter which led the court to the granting of the application was the consideration of whether or not Mr Cosier had a conflict of interest affecting his capacity to conduct this application on behalf of the plaintiff. He was not present in court on 17 April 2002. 15 On 21 May 2002, a further affidavit sworn by Mr Cosier was filed in court. The application was then re-listed for hearing. The hearing concluded on 22 August 2002. 16 On that day, the further affidavit from Mr Cosier was read. He was not required to be present for cross-examination and he was not in court. Submissions were completed and judgment was reserved. 17 The position of the plaintiff is that he is in doubt as to which of the defendant and the cross-defendant may be liable in respect of his injury. Upon the filing of the Defence, his legal advisers should have become aware that the defendant was alleging that the plaintiff had been lent or transferred on hire to the cross-defendant. The plaintiff desires to sue the cross-defendant on the basis that he worked under its direct control and supervision. It is not disputed by the cross-defendant that the plaintiff may have a viable cause of action against it. 18 Throughout, the issue that has been agitated by the cross-defendant is one of delay and explanation for delay. It says that there has been significant delay and that the delay has not been adequately explained. There is force in these submissions. 19 For some time, there seems to have been confusion as to what were relevant delay considerations. Time was devoted to a consideration concerning the identity of the plaintiff's employer. As the pleadings presently stand, this is not an issue. On the pleadings the defendant has admitted being the employer. The evidence before the court is consistent with what is in issue in the pleadings. The evidence establishes that the plaintiff was aware of the entity Lifese Pty Limited as early as 16 October 1996. Nothing further was done about acquiring further knowledge of this entity until about August 2001 when an ASC search was carried out. Because there is no issue as to who is the employer, it seems to me that this delay loses relevance. 20 Ultimately, it came to be accepted in submissions that the real delay considerations concerned what transpired following the filing of the Defence. It was then that the plaintiff's legal advisers had access to the knowledge that the services of the plaintiff had been lent or transferred on hire to the cross-defendant. Despite this, it was not until 12 October 2001, that the plaintiff filed the present application. 21 When the matter had last been before the court such material as had been adduced to explain delay was grossly deficient. In particular, the first affidavit sworn by Mr Cosier was largely silent as to his role in the conduct of the proceedings and did not address matters such as the investigations (if any) carried out by him in respect of the plaintiff's claim. 22 The second of the two affidavits sworn by Mr Cosier was intended to address the evidentiary deficiencies. Whilst it provided further information concerning his conduct of the case, it did not adequately address the relevant period of delay. Again, he was not in court and was not in a position to supplement what had been said in the affidavit (if he was able to do so). 23 The extension of the limitation period is sought pursuant to s60C of the Limitation Act 1969 (the Act). Section 60C enables the court, if it decides that it is just and reasonable to do so, to order that the limitation period for the relevant cause of action to be extended for such period (not exceeding five years), as it determines. The onus of demonstrating an entitlement to relief rests with the plaintiff. 24 I have earlier mentioned what has been put in issue by the cross-defendant. For completeness, I should add that it is not said that there is any actual prejudice. Of course, there is presumed prejudice flowing from delay. 25 There has been significant delay in the investigation of the question of the liability of the cross-defendant and in taking action to join it as a party. Despite being given a further opportunity to explain delay, what has been put before the court falls short of adequate explanation. If further relevant material could have been adduced, it would have made the plaintiff's task much easier. 26 The question for the court is whether these matters place the plaintiff in a position where he has failed to discharge the onus. This is a matter which has caused real concern. After considerable reflection, I have come to the view that, in the circumstances of this case, the plaintiff has discharged the onus. It is one of those cases where it may be said that the plaintiff has just fallen across the line. 27 Accordingly, it is decided that it is just and reasonable to make an order and that an order should be made pursuant to s 60C. 28 I extend the limitation period for the cause of action pleaded against the second defendant in the proposed Amended Statement of Claim (a copy of which is annexure B to the affidavit sworn by Mr Cosier on 10 October 2001) up to and including 13 September 2002. The plaintiff is to have leave to add the cross-defendant as a second defendant and to file the proposed Amended Statement of Claim. I direct that it be filed on or before 13 September 2002. 29 It is not disputed that the plaintiff should pay the costs of the Notice of Motion. Accordingly, I order that the plaintiff pay the costs of the Notice of Motion. 30 The Exhibits may be returned. **********