New South Wales Supreme Court CITATION : Brnic v Commonwealth of Australia [2001] NSWSC 684 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12756 of 2000 HEARING DATE(S) : 9 August 2001 JUDGMENT DATE : 14 August 2001 PARTIES : Petar Brnic (Plaintiff) v Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass COUNSEL : Mr K Andrews (Plaintiff) Mr D Brogan (Defendant) SOLICITORS : Shead Lawyers (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period - application opposed on grounds of delay and insufficient explanation. LEGISLATION CITED : Limitation Act 1985 (ACT), s 36 (2) and (3). CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122. DECISION : See Paragraph 28. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS TUESDAY 14 AUGUST 2001 12756 of 2000 PETAR BRNIC v COMMONWEALTH OF AUSTRALIA JUDGMENT 1 These proceedings were commenced by Summons filed on 20 October 2000. Curiously, paragraphs 1 and 2 of the Summons seek relief by way of general discovery and interrogatories. Paragraph 3 seeks relief pursuant to s 36 (2) of the Limitation Act 1985 (the Act). 2 The application for relief under the Act was heard on 9 August 2001. The plaintiff himself has sworn an affidavit which was read. His solicitor (Julie Shead) has sworn two affidavits, only one of which was read. It was sworn on 23 January 2001 and exhibited a considerable body of documentation. There has not been cross-examination. There has been tender of a volume of other documentation by both parties (largely it involved material from files and records). 3 For completeness, I should at this stage refer to two matters. Firstly, the defendant announced on the day of the hearing that it did want to cross-examine the plaintiff. Unfortunately, very late notice only had been given for his attendance for that purpose. The matter of cross-examination had not been raised at the time of the allocation of the special fixture. The plaintiff lives in the Australian Capital Territory (ACT) and was not present in court. Secondly, the plaintiff had intended to read the second of the two affidavits sworn by Julie Shead. Unfortunately, it had been the subject of very late service. In the circumstances, the hearing proceeded without the plaintiff being cross-examined and without the reading of the second of the two affidavits. 4 I shall now refer to certain of the material placed before the court. This reference is not intended to be exhaustive. 5 The plaintiff was born in Zagreb on 29 April 1933. He left school at the age of 12. He arrived in Australia on 20 January 1958. He says that prior to his arrival in Australia he had no difficulties with his hearing. 6 He commenced employment with the defendant in 1959. He says that at this time he had no difficulties with his hearing. Although it is not referred to in his affidavit, it does not seem to be in dispute that his employment took place in the ACT. He remained in continuous employment with the defendant until 1989, when he retired on medical grounds. He had not in fact worked since January 1986 because of medical problems. 7 Initially, he worked in the hot casting area. In 1982, he moved to the offset printing area. He says that during the course of his employment, he was required to work near and/or with machinery which to him appeared to be very loud. In April 1983, he noticed he was having difficulty with his hearing. He saw a specialist (Dr Williams) on 13 April 1983. He was later informed that he had a noise induced hearing loss of 34.1% (which was regarded as moderately severe noise damage). Thereafter, he made a claim for compensation. Compensation was recovered without the aid of legal assistance. 8 He says that during the course of his employment, he was not provided with any lectures which dealt with the effects of how noise could impact upon hearing and that he was not provided with any form of hearing protection. 9 He says that there was no testing of his hearing prior to 1983. After that time, the defendant tested hearing on 11 April 1984, 10 May 1984, 20 February 1985 and 12 May 1986. He says that the effect of those tests was not discussed with him. 10 The court has been told that save for natural loss of hearing due to the ageing process, his state of hearing remains much as it was in 1983. 11 The plaintiff says that at the time he made his claim for compensation, he assumed that he did not have any other entitlements in respect of his hearing loss. He said that he was not then aware of the Australian Standard 1269-1976 (the Standard) or the Commonwealth Acoustics Laboratory Report CAL19. 12 He first made contact with his "current" solicitors on or about 29 February 2000. His solicitors made arrangements for a conference by telephone with a barrister (Mr Andrews). The conference took place on 24 July 2000. Paragraphs 30 - 37 of his affidavit set out matters which he says he first became aware of during that conference. 13 The application is made pursuant to the limitation provisions of the ACT. Under those provisions, the court may make an order extending the relevant limitation period if it decides that it is just and reasonable so to do. In exercising that power, the court is required to have regard to all the circumstances of the case, including those set forth in the s 36 (3) of the Act. The sub-section is in the following terms:- "In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) the length of and reasons for the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received." 14 In the course of arguments, counsel have referred to a number of decided cases. Save for reference to the recent decision of McLean v Sydney Water Corporation [2001] NSWCA 122, it is unnecessary to identify the other cases. They are the subject of regular reference in applications of this nature. 15 It is common ground that the plaintiff bears the onus of satisfying the court that an order should be made. 16 Counsel for the plaintiff addressed in relation to the circumstances set forth in sub-section (3). He placed emphasis on the circumstances set forth in (c) thereof (inter alia the failure of the defendant to regularly test hearing and to inform as to the effect of work noise). 17 The delay is very long. There is no evidence of actual prejudice. There is no dispute that the delay of itself may give rise to what has been described at times as either presumptive or general prejudice. It is not said that there has been any loss of relevant documentation (inter alia the defendant has the records relating to the testing of work noise levels). The defendant may not have evidence as to the condition of the plaintiff's hearing at the time of the commencement of his employment. However, the plaintiff makes the point that this is because of the defendant's failure to comply with the Standard. 18 In opposing the application, the defendant took the stance of not disputing that a fair trial could still take place and reference was made to McLean . Its opposition was focused on inter alia the length of the delay and the shortcomings in what was offered by way of explanation for the delay. There was attack directed to the credibility of portions of the plaintiff's affidavit (inter alia as to whether what was said in paragraph 20 thereof could be accepted) and lack of frankness in what was disclosed therein. 19 On behalf of the plaintiff, it is said that the delay is sufficiently explained. It is said that when he recovered compensation he had assumed that this was his only entitlement. He did not contact his current solicitors until February 2000. It is then said that he did not become aware that he may have a claim for common law damages founded on negligence until July 2000. These proceedings were then commenced within some months thereafter. 20 In my view, what is offered by way of explanation does have shortcomings. The real question for the court boiled down to whether or not inter alia the delay and those shortcomings in the circumstances of this case led to a position where the plaintiff had failed to discharge the requisite onus. 21 I shall now refer to certain of the matters on which counsel for the defendant addressed. This reference is not intended to be exhaustive. 22 The defendant points to the lack of frankness in the affidavit. The affidavit did not disclose what appears from other material before the court. This material discloses that the plaintiff had a work history (involving both army service and working in the building industry) prior to his coming to Australia. The defendant says that this work history had the potential to contribute to his hearing problems and that if an order is made, the court may be confronted with the task of an uncertain and speculative assessment process. 23 The affidavit does convey the impression of being the product of careful draftsmanship. The court routinely copes with difficult assessment tasks. It is expected to do the best that it can in the circumstances. The material does not suggest that the court would be faced with any great problem in this case. Indeed, the material suggests that this matter could be more appropriately litigated elsewhere. 24 The defendant also looks to material which discloses that the plaintiff had been involved in other legal proceedings (in or about 1990 relating to other problems) in which he had employed the services of a solicitor. 25 It is further said the delay in approaching his current solicitors is not explained. It seems to me that this is so. How he came to see his current solicitors is also left unexplained. 26 It is not unusual for these applications to pose a difficult decision for the court. Such is the position in this case. 27 After considerable deliberation, ultimately I have come to the view that the plaintiff just gets across the line. In the circumstances of this case, I have reached the decision that it would be just and reasonable to make an order in this case and that an order should be made. 28 I order that the relevant limitation period be extended up to and including 28 August 2001. The costs of the Summons are to be costs in the cause. The Exhibits may be returned. ********** Last Modified: 08/15/2001 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.