Gilbert v Romet (NSW) Pty Ltd & Anor [2001] NSWSC 812

New South Wales Supreme Court

CITATION : Gilbert v Romet (NSW) Pty Ltd & Anor [2001] NSWSC 812 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20090/96 HEARING DATE(S) : 15 August 2001 JUDGMENT DATE : 19 September 2001

Glenn Stanley Gilbert (Plaintiff) PARTIES : Romet (NSW) Pty Ltd (First Defendant) Gosdorf Pty Limited (Second Defendant) JUDGMENT OF : Brownie AJ at 1

M Williams SC; M McHugh (Plaintiff) COUNSEL : P J O'Connor (First Defendant) G Hickey (Second Defendant)

G H Healey & Co - Glebe (Plaintiff) SOLICITORS : A O Ellison (First Defendant) Sparke Helmore (Second Defendant) CATCHWORDS : Limitation of actions - extension of period - cause of action in respect of personal injuries - general matters - what constitutes an "application" to extend the period - Limitation of actions - extension of period - cause of action in respect of personal injuries - knowledge of material facts - in general - what level of awareness is needed, in relation to facts about which there is a doubt Limitation Act 1969 LEGISLATION CITED : Supreme Court Act 1970 Suitors' Fund Act 1951 DECISION : Appeal allowed; Order of the Master extending to limitation period set aside; Cross-appeal dismissed

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

BROWNIE AJ

19 SEPTEMBER 2001

20090/96 - GLENN GILBERT v ROMET (NSW) PTY LTD

JUDGMENT 1 BROWNIE AJ: In April 1987 the plaintiff, Mr Gilbert, contracted Q-Fever in the course of his employment as a slaughterman at an abattoir at Gosford. He knew his employer as "Gosford Meats", but a question arose as to whether, in April 1987, the company that carried on business under that name was the first defendant, Romet (NSW) Pty Ltd ("Romet"), or the second defendant Gosdorf Pty Ltd ("Gosdorf"). He sought an extension of the limitation period, fixed under the Limitation Act 1969 ("the Act") as against both defendants. On 19 June 2001 Master Harrison extended the limitation period as against Romet, but declined to extend it as against Gosdorf. Romet now appeals from that order, and the plaintiff cross-appeals, saying that the limitation period should have been extended as against Gosdorf, as well as Romet. 2 The defendants are companies within a group which is, apparently, ultimately controlled by The Adelaide Steam Ship Company Ltd ("Adsteam"). It seems that both defendants have been inactive for some years. It also seems that the plaintiff was originally employed by Gosdorf but that his employment might have been transferred to Romet in about late February 1987. On the evidence, the plaintiff simply does not know the true position, and his lawyers are not in a position to be able to give him any confident advice on the question Each defendant has made documentary admissions which, on their face, provide proof that the defendant in question was the plaintiff's employer in about April 1987. However, in each case, that prima facie evidence might well be effectively displaced, if and when some witness from the Adsteam group, who actually knows the relevant facts, gives evidence. 3 Gosdorf was originally called Gosford Meats Pty Ltd. Romet was called by various names, before finally being named Romet (NSW) Limited. According to a letter from the Finance Manager of Adsteam, that person was informed by an unnamed "former employee of our group" that Romet acquired all of the shares in C & M Throsby Pty Ltd on 25 February 1987, and the companies within the Throsby group included Gosdorf. The Finance Manager said that he assumed that after the share acquisition mentioned, "each employee continued to be employed on the following Monday on the same terms and conditions as existed before takeover", but by Romet instead of by Gosdorf. 4 The defendants were insured for workers' compensation purposes with different insurers. Hence the dispute. 5 The plaintiff was not well served by the solicitors he retained. On 2 February 1996 they filed a statement of claim, naming Romet as the sole defendant. After issue had been joined, and the solicitors for Romet had suggested that the proper defendant was Gosdorf, they filed a notice of motion on 26 November 1997 seeking to substitute Gosdorf as defendant, an extension of the limitation period, and to discontinue the action as against Romet. 6 Without bringing this motion on for hearing, the solicitors then filed a document purporting to be an amended statement of claim on 19 February 1998 naming Gosdorf as the sole defendant. Since the plaintiff had not obtained an order under Part 8 Rule 8, the purported joinder of Gosdorf was ineffective; since he had not obtained an order for the removal of Romet as defendant, the purported removal of Romet as defendant was also ineffective; and since he had not obtained leave to discontinue as against Romet, the purported or assumed discontinuance as against Romet was also ineffective. 7 Presumably, the solicitors for Gosdorf were unaware of these matters, because they filed a defence, amongst other things denying that Gosdorf was the employer of the plaintiff in April 1987. What evidence there is on the point seems to suggest that, in denying that Gosdorf was the employer in April 1987, they relied upon the letter from Adsteam, summarised above. 8 Subsequently, on 22 February 1999, the plaintiff's solicitors filed a second notice of motion, seeking leave to file an amended statement of claim, in which document there were two defendants named, Gosdorf and Romet. Then, without bringing this motion on for hearing, they filed a third notice of motion on 8 June 1999, seeking extensions of the limitation period as against both defendants, that Romet be rejoined as second defendant, and for leave to amend the statement of claim. 9 This confused approach has produced various ineffective steps, but they are irregularities rather than nullities: see section 81 of the Supreme Court Act 1970; and they are capable of cure by order, or by waiver. 10 As against both defendants, the plaintiff relied upon both section 58 and section 60G of the Act. As against both defendants, the plaintiff failed in respect of section 58; and he succeeded under section 60G in respect of Romet only. The relevant provisions of the Act are set out in the Master's reasons for judgment. 11 As well as the problem that confronted the plaintiff concerning the identification of his employer in April 1987, that is, the correct defendant, he had another problem, relating to the date upon which he first became aware, or ought to have become aware of the nature and the extent of the personal injury he had suffered. In 1987 there was a diagnosis made that he was suffering from Q-Fever. The evidence establishes that a small number of patients who contract this condition go on to develop a condition of chronic Q-Fever. The plaintiff's condition waxed and waned after the first diagnosis, and it was not until 1994 that there was a diagnosis made that he was suffering from chronic Q-Fever. Unfortunately the evidence does not establish when it was in 1994 that this diagnosis was made, or when it was that the diagnosis was conveyed to the plaintiff. 12 The learned Master made an order under section 60G of the Act extending the limitation period as against Romet. She treated the limitation period as having commenced on 7 May 1987, the date upon which, on one version of the evidence, the original diagnosis of Q-Fever was made. Perhaps a date a couple of weeks or so earlier might have been fixed upon, but nothing turns on that. The six year limitation period that was then applicable expired on or shortly before 7 May 1993, and if the plaintiff was to succeed against either Romet or Gosdorf under section 60G, he had to establish, by evidence, that he was unaware of one of the matters mentioned in clauses (i), (ii) or (iii) of section 60I(1)(a), and that he made his application for an extension of time within three years of becoming aware of the last of these matters. 13 The learned Master thought that, as against Romet, the plaintiff had to demonstrate that he acquired this awareness before 2 February 1993, being the date three years before he first sued Romet. In my respectful view, this was an error. It was not the date upon which the plaintiff first made "the application" mentioned in section 60I(1)(b). In my view there is a distinction to be drawn between suing for damages, either ignoring the provisions of the Act or hoping that the defendant will not take the limitation point, and applying for an extension of the limitation period. Of course, there is nothing to stop a plaintiff from filing an originating process, seeking both an award of damages and an extension of the limitation period, but that is not this case. 14 I consider that the first date from which it can be said on the evidence that the plaintiff sought an extension of the limitation period, as against Romet, was 22 February 1999, the date of the filing of the second notice of motion. It is not clear what happened in relation to this motion, that it might be that the proper date, in this context, is 8 June 1999, the date of the filing of the third notice of motion, but if so, nothing turns on the difference between the last two mentioned dates. 15 In short, the plaintiff needed to prove as against Romet that he became aware of the last of the matters mentioned in subclauses (i), (ii) and (iii) of section 60I(1)(a) after about 7 May 1993, and no later than about 22 February 1996. However, he knew of the diagnosis of chronic Q-Fever at some time in 1994. The factual foundation for the extension of time granted therefore falls away. 16 In respect of Gosdorf, and the plaintiff's application under section 60G, a similar but not identical chain of reasoning applies. The plaintiff had to establish, by evidence, that he first acquired the relevant knowledge no later than the date three years before he made his application under the Act. Unhappily, he proved that he first knew of the diagnosis of chronic Q-Fever some time in 1994, but the evidence does not enable one to say whether it was before or after 26 November 1994. This application was therefore correctly rejected. 17 The plaintiff's claims for an extension of time under section 58 of the Act suffer from a greater handicap: as against each defendant, the nature and extent of his injury was a material fact of a decisive character, but he did not make his application for an extension of time within a year of the date when the diagnosis of chronic Q-Fever was within his means of knowledge. 18 That leaves for decision the plaintiff's claims against the two defendants, based upon the confusion in the identity of his employer. As I have said, the plaintiff himself does not know which of the defendants was his employer in April 1987, and his lawyers do not possess information which enables them to advise him with confidence about this question. But section 58(2)(a) speaks, not of knowledge, but of means of knowledge. That is, the first question is whether a material fact of a decisive character, that is, the identity of the plaintiff's employer in about April 1987, was not within the means of knowledge of the applicant until a date after about 7 April 1992. 19 On the evidence, I do not think that the plaintiff has crossed this jurisdictional threshold: he has not established that he did not have the means of knowledge as to the identity of his employer between February and April 1987. 20 But assuming the evidence does establish this much, there is a further problem: section 58(2) authorises the extension of the limitation period, so that it expires at the end of the period of a year, being the year after the date upon which the material fact in question was first within his means of knowledge. 21 Section 58 throws up a different problem to section 60I: the former authorises an extension of the limitation period so that the limitation period expires on a date a year after the material fact in question comes within the applicant's means of knowledge, whereas the latter authorises any extension of the limitation period, provided the application is made within three years after the applicant became aware, or ought to have become aware, of the relevant fact. 22 The plaintiff first sued Romet on 2 February 1996, and first purported to join Gosdorf as a defendant on 19 February 1998, so that, for the purposes of section 58, he must point to some change in his means of knowledge within the year preceding 2 February 1995, in the case of Romet, and the year preceding 19 February 1997 in the case of Gosdorf. The evidence does not permit any finding helpful to the plaintiff in this context, as against Romet: nothing relevant happened in the year ending 2 February 1996. 23 As against Gosdorf, the position is less clear. On 19 November 1996 the solicitors for Romet's insurer wrote to the plaintiff's solicitors saying that the records kept by Adsteam indicated that the plaintiff had not been employed by Romet during the relevant period; and they enclosed copies of group certificates issued in respect of the 1987 and 1988 financial years, indicating that the plaintiff had then been employed by Gosdorf. On 12 March 1997 the plaintiff's solicitors replied, enclosing a copy of a letter written by Romet (or a related company with a similar name) in 1987, purporting to be a notice of termination of employment; and the plaintiff's solicitors requested Romet's solicitors to reconsider the position and explain it. Later, in and after June of 1997, there was further correspondence, providing further information, suggesting that the plaintiff had been employed by Gosdorf rather than Romet. 24 All this throws up what seems to be a novel question. On or just after 19 November 1996, it was within the means of knowledge of the plaintiff that, arguably but not certainly, he was employed by Gosdorf in April 1987. He had, or at least his solicitors had, copies of group certificates providing evidence which, unless and until challenged or contradicted, provided proof of that fact. Within the period of a year that is relevant for the purposes of the section 58 application, ending on 19 February 1998, he (through his solicitors) was provided with a little more evidence pointing in the same general direction. 25 It seems to me that in these circumstances the application must fail. I do not think it can be right to read the section as meaning, in effect, that the year during which the limitation period may be extended commences only when the means of knowledge of the applicant constitutes something of the nature of definite proof, or persuasive proof, or proof to some other level of satisfaction or persuasion. If some such construction was adopted, it might be said that the year in question has not commenced, even now. It might never commence. 26 I do not find the problem easy or the answer satisfactory, but I do not think that the language of the Act enables it to be said that the intention of the Parliament was to permit the limitation period to be extended, in the way that the plaintiff now must contend for as against Gosdorf, in relation to section 58, and I consider that the decision of the Master on this point was correct. As against both defendants, and in relation to the application under section 60I, similar considerations apply. In my view the decision of the Master was correct. 27 I allow the appeal with costs. The order of the Master extending the limitation period is set aside. The plaintiff should have a certificate under the Suitors' Fund Act 1951. I dismiss the cross-appeal with costs. **********