New South Wales Supreme Court CITATION : Zappavigna v PQ Australia & Ors [2003] NSWSC 205 HEARING DATE(S) : 7 March 2003 JUDGMENT DATE : 26 March 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : I dismiss the plaintiff's Notice of Motion. The plaintiff is to pay the costs of that application. The first defendant has leave to amend the defence for the purposes of adding the limitation plea. The first defendant is to pay the costs of that application. The Exhibit may be returned. CATCHWORDS : Summary relief - disability in relation to cause of action - nexus between disability and cause of action - issue should be left to trial or be determined as a separate question where material throws up a triable issue. LEGISLATION CITED : Limitation Act 1969, s 11 (3), s 11 (3) (b), s 52 (1) (a) - (d). Supreme Court Rules 1970, Pt 1 r 8, Pt 63. CASES CITED : N/A Giuseppe Zappavigna by his tutor Josephine Zappavigna (Plaintiff) v PARTIES : PQ Australia Pty Limited (First Defendant/Cross-Claimant/First Cross-Defendant to Second Cross-Claim) Elliott & Rose Fabrications (NSW) Pty Ltd (Second Defendant/First Cross-Defendant/Second Cross-Defendant to Second Cross-Claim) Gavin Andrew Vernon (formerly trading as D E Vernon & Co.) (Third Defendant/Second Cross-Defendant/Cross-Claimant to Second Cross-Claim) FILE NUMBER(S) : SC 20089 of 2002 Mr E Romaniuk (Plaintiff) COUNSEL : Mr M J Stevens (First Defendant/Cross-Claimant/First Cross-Defendant to Second Cross-Claim) N/A (Second Defendant/First Cross-Defendant/Second Cross-Defendant to Second Cross-Claim) Mr R C Titterton (Third Defendant/Second Cross-Defendant/Cross-Claimant to Second Cross-Claim) Deacons (Plaintiff) SOLICITORS : Minter Ellison (First Defendant/Cross-Claimant/First Cross-Defendant to Second Cross-Claim) Henshaws Solicitors (Second Defendant/First Cross-Defendant/Second Cross-Defendant to Second Cross-Claim) Pike Pike & Fenwick (Third Defendant/Second Cross-Defendant/Cross-Claimant to Second Cross-Claim) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Wednesday 26 March 2003 20089 of 2002 Giuseppe Zappavigna by his tutor Josephine Zappavigna v PQ Australia Pty Limited & Ors JUDGMENT 1 MASTER MALPASS: These proceedings were commenced by Statement of Claim filed on 13 March 2002. The plaintiff, by his tutor, brings a claim for damages arising out of personal injury suffered on or about 23 February 1993. There has been no challenge to the tutor. 2 Defences have been filed. Both the second defendant and the third defendant have pleaded the expiry of the relevant limitation period as a defence. The first defendant now wishes to plead such a defence. 3 By Notice of Motion filed on 7 November 2002, the plaintiff seeks to have the limitation defences struck out. The first defendant seeks leave to amend its defence. 4 The applications were heard on 7 March 2003. The plaintiff relied on an affidavit sworn by Stan Tsaridis (a solicitor in the employ of a partner of the firm acting for the plaintiff). The third defendant relied on an affidavit sworn by Stephen Noel Griffiths (the solicitor for that defendant) 5 It is alleged that the plaintiff suffered a serious injury in the incident (including a severe head injury with brain trauma). 6 It is argued that the plaintiff is under a disability and has been so since the incident. 7 He had earlier brought proceedings arising out of his injury and the incident in the Compensation Court (6 February 1995). On 11 December 1996, his application was amended to show that he had a tutor. It went to a hearing and he gave evidence. 8 The relevant statutory provisions in the Limitation Act 1969 (the Act) are:- " 52. Disability (1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and ………………." and " 11 (3) For the purposes of this Act a person is under a disability: (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958 , (iii) war or warlike operations, or (iv) circumstances arising out of war or warlike operations." 9 Part 63 of the Supreme Court Rules 1970 deals with "Disability". Under these provisions, generally speaking, a disable person has a need for a tutor. The relevant definitions are found in Pt 1 r 8 as follows:- "………………….. disable person means a minor or an incompetent person. ………………………… incompetent person means: (a) a person who is not a minor and who is: (i) incapable of managing his or her affairs, or (ii) incommunicate, or (b) a minor who has a curator. …………………………….." 10 The evidence advanced in support of the application includes material to be found in copy medical reports from Drs Veerabangsa, Griffith, Wolfenden and Canaris. The material gives support to the view that the plaintiff has been inter alia unable to manage his financial affairs since the incident and that he has been left with various disabilities. There is evidence that he has lost some degree of higher cognitive functioning. There is evidence that he is effectively unemployable. There is evidence that his condition is permanent and stable. 11 There has been interchange between the parties concerning the matter of the defendants abandoning the defence under the Act. Despite the interchange, the defences are still relied on. 12 The plaintiff has chosen to seek summary relief rather than have the question in issue determined as a separate question. Indeed, he did not embrace the prospect of proceeding on that latter basis. In so doing, he is confronted with a more formidable task. 13 The court has a discretionary power to grant summary relief. The power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The authorities restrict the exercise of the power to what has been described as clear cases. The onus rests with the party seeking summary relief. 14 The defendants have not challenged the evidence put forward by the plaintiff. They have not put forward any medical evidence. There is material which goes to his capacity (including a report from an occupational therapist). The stance taken by them is that the question of disability is an issue that should be dealt with at the trial. 15 Where there is a triable issue, it should be dealt with either at the trial or as a separate issue. An application for summary judgment is doomed to failure where the material throws up a triable issue. 16 I now turn to certain of the matters that were argued by counsel. Broadly speaking, there were two principal matters. One concerned the definition of "a person is under a disability" in the Act. Another, concerned the question of the sufficiency of the material to satisfy that definition. 17 There is a significant difference between the disability provisions which appear in the Act and those that are to be found in the Rules. For present purposes, the court is concerned with the contents of (b) of (3) of s 11. One requirement of this provision is that the person be incapable of, or substantially impeded in, the management of his affairs. Further, this incapacity or impediment must be "in relation to the cause of action in respect of the limitation period for which the question arises". A similar collocation of words does not appear in the Rules. The question arises as to what meaning is to be given to those words. 18 One of the submissions put on behalf of the plaintiff is that the reference to the limitation period is there merely to identify the cause of action. Whilst this may be so, it seems to me that the legislature has chosen to insert the words "in relation to the cause of action", and has done so for a purpose. Accordingly, the court must do its best to construe what meaning was intended to be given to those words. 19 Counsel were not able to identify any decided case or other authority which assisted the court in construing this provision. 20 In my view, the statutory provision relates the matter of the management of his affairs with the cause of action. There is intended to be a nexus between them. 21 I consider that the statutory language makes it clear that the provision is not to be seen as merely incapacity or substantial impediment in the management of affairs in a general sense or in relation to the conduct of the proceedings in which the cause of action is propounded. 22 It suffices just to refer expressly to a few matters. It does not seem to be in dispute that the cause of action accrued on the day of the incident (in 1993). The material is consistent with the view that the plaintiff was able to instruct lawyers, commence proceedings in the Compensation Court and continue those proceedings until late 1996 (when a tutor was appointed). 23 The plaintiff can look to a body of evidence. It includes the medical material. It also includes what flows from the appointment of a tutor and the lack of action by the defendants in relation to that appointment. 24 The defendants make the point that there is no evidence from the plaintiff himself and there is no evidence from his tutor. It was not said that either of them were unable to give evidence. The material shows that the plaintiff gave extensive evidence in the Compensation Court. 25 The defendants have also propounded submissions concerning inter alia the relationship between the appointment of a tutor and the continuance of disability. Whilst these submissions did not strike me as being sound, it is unnecessary to deal with them in this case. 26 The plaintiff has taken on the task of demonstrating that there is a clear case for summary relief. In my view, at the very least, the material falls short of discharging that onus (inter alia, it falls short of demonstrating the requisite nexus with the cause of action). 27 I dismiss the plaintiff's Notice of Motion. The plaintiff is to pay the costs of that application. 28 It was common ground that if the plaintiff's application failed, the first defendant should be allowed to amend its defence. Accordingly, the first defendant has leave to amend the defence for the purposes of adding the limitation plea. The first defendant is to pay the costs of that application. 29 The Exhibit may be returned. ********** Last Modified: 04/01/2003 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.