Beard v Tolstat [2003] NSWSC 1087

New South Wales Supreme Court

CITATION : Beard v Tolstat [2003] NSWSC 1087 HEARING DATE(S) : 14 November 2003 JUDGMENT DATE : 25 November 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons filed on 29 August 2001 is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. The Summons filed on 10 September 2003 is also dismissed. The plaintiff is to pay the costs of that Summons.

CATCHWORDS : Application for leave - discretionary considerations - deliberate decisions and inadequate explanation for delay. LEGISLATION CITED : Workers Compensation Act 1987, s151D. District Court Rules 1973, Pt 18. CASES CITED : Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104. Bryan Stanley Beard (Plaintiff) PARTIES : v Tolstat Pty Ltd t/as Eversons Wholesalers (Defendant) FILE NUMBER(S) : SC 12725 of 2001; 12349 of 2003 Mr D Campbell SC/Mr T Meakes (Plaintiff) COUNSEL : Mr G W McGrath (Defendant)

SOLICITORS : Gathercole & Associates (Plaintiff) Arnold Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Tuesday 25 November 2003

12725 of 2001 and 12349 of 2003 Bryan Stanley Beard v Tolstat Pty Ltd t/as Eversons Wholesalers

JUDGMENT 1 MASTER: The plaintiff suffered personal injury on 11 January 1996. He was then employed by the defendant. In the course of his duties, he was lifting a 90-kilogram bandsaw for the purposes of sawing a carcass of beef. He suffered injury to his lower back. 2 He reported the incident to his foreman and then went to the Kempsey Medical Centre. He has not returned to work and has received compensation. He continued to suffer low back pain and bilateral sciatica. 3 The plaintiff says that initially he thought he was going to get better. He came under the care of Dr Ghabrial on 4 April 1996. He had surgery on 13 November 1996 (a right L4/5 disc excision for a prolapsed disc) which appeared to bring about some improvement. Subsequently, there was deterioration. 4 Since then, he has had further surgery. He had an operation on 27 January 1999 (a L4, L5 and S1 laminectomy and a spinal fusion). This operation was not successful in relieving his back and leg pain. He was given injections in December 1999 (admitted to hospital) and in February 2000. He had further surgery on 31 May 2000 (a removal of the metalware from the left side of the spine and a complete revision of the left L4/5 and L5/S1 bone grafts). In about November 2000 there was further deterioration of his condition. He was then said to be in absolute agony. He had a total left hip replacement (on 23 January 2001). The condition of his right hip continued to deteriorate. He is waiting for it to be replaced. 5 The relevant limitation period expired in January 1999. On 8 January 1999, prior to the expiry of that period, proceedings for damages in respect of his injury were commenced in the District Court. The proceedings were never served. On 2 February 2000 the proceedings were dismissed pursuant to Pt 18 of the District Court Rules 1973. 6 These proceedings were commenced by Summons filed on 29 August 2001. In the proceedings the plaintiff seeks leave pursuant to s151D of the Workers Compensation Act 1987. 7 On 26 November 2001, fresh proceedings were commenced in the District Court claiming damages in respect of his injury. These proceedings were not served until September 2002. They remain on foot. On 10 September 2003, the plaintiff commenced another set of proceedings in this Court. The Summons filed on that day seeks an order that the fresh District Court proceedings be transferred to this Court. 8 The court has a discretionary power to grant leave to commence proceedings out of time (the section requires that it be the leave of the court in which the proceedings are to be taken). The discretion is exercised having regard to the relevant circumstances of the particular case before the court and so that the interests of justice are best served. The onus rests with the plaintiff. 9 It is not said that the plaintiff does not have a viable cause of action. It is not said that actual prejudice will be suffered by the granting of leave. Nothing is said in relation to delay since the filing of the Summons on 29 August 2001. 10 Despite these matters, the defendant submits that the application should be dismissed with costs. In opposing the application, it looks to other discretionary considerations. 11 The thrust of the opposition lies in two matters. Firstly, it is said that there has been a deliberate decision in the sense considered more recently in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104. Secondly, it is said that there was significant delay during the period from 1999 to August 2001 which is not adequately explained. 12 The plaintiff relies on three affidavits. One is sworn by the plaintiff himself. The other two sworn by his present solicitor (Mr Gathercole) and a predecessor (Mr Anderson). The defendant relies on two affidavits sworn by its solicitor (Mr Arnold). There has been no cross-examination of deponents. 13 It appears that a number of solicitors have acted for the plaintiff in respect of this matter. The material does not inform as to when the plaintiff first instructed a solicitor to act on his behalf. From the material, it does appear that solicitors had been acting prior to late 1998. 14 The material gives little away as to when the plaintiff became aware that there was a limitation period. It does emerge from the material that the solicitors then acting were aware of the limitation period in late 1998 and that it would expire on or before 11 January 1999. 15 The circumstances of this case are somewhat unusual. Not only was there an awareness of the limitation period itself, but proceedings were in fact commenced within the limitation period. Leaving aside comment made from the Bar Table, the affidavit material fails to explain why the first District Court proceedings were not prosecuted and were in fact allowed to be dismissed. 16 Whilst the matter was not the subject of submissions from counsel, It may be that these proceedings can still be restored by application to the District Court. 17 Whilst the District Court proceedings remained on foot there had to have been an awareness of inter alia the severity of his condition and of his prospects of future employment. It is not said that the plaintiff or his advisers were not then in a position to make relevant decisions. As early as late 1998, the matter of the making of a common law election was in contemplation. In September 2000, Dr Ghabrial had expressed the opinion that the plaintiff was totally unable to return to further employment. In November 2000, there was the emergence of further problems and he was advised that he needed a left total hip replacement. 18 Well established authority has regarded the making of deliberate decisions in relation to statutory limitation periods as being powerful factors against the granting of leave (see Itek). In my view, the implication to be drawn from what is offered is that deliberate decisions were taken which saw the plaintiff's common law claim become statute barred. Further, the material fails to provide a cogent explanation for what was so done. Leave is now sought many years after the expiry of the limitation period. In my view, these considerations of themselves are fatal to the application. 19 The authorities also demonstrate that the failure to provide an adequate explanation for significant delay may of itself see the defeat of an application. 20 I accept the submission of the defendant, that there has been significant delay and that it has not been adequately explained. The submissions of counsel for the plaintiff did not really put these matters in dispute. Such material as there is in the affidavits does not address this matter in any real or persuasive manner. 21 Apart from providing a narrative of certain events (such as steps taken in litigation and matters of medical history) and providing copy documentation, (including medical reports), the affidavits fall well short of providing adequate explanation. Indeed, it might be said that the deponents have either overlooked or avoided addressing that task. Also, it might be thought that there was an endeavour to avoid disclosure of material that might reveal that certain decisions were made. 22 Whilst the court has great sympathy for the position of the plaintiff, each case must be decided on the admissible evidence that the parties choose to put before the court. For whatever reasons, it appears that in this case the plaintiff and/or his advisers have taken the course of not putting forward the material that may have provided the necessary explanations. In so doing, the risk of an unsuccessful application was taken. 23 After having regard to the relevant circumstances of this particular case, I have come to the view that the plaintiff has failed to discharge the requisite onus. It seems to me that justice is best served by a dismissal of the application. 24 The Summons filed on 29 August 2001 is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. 25 There is also before the court the Summons filed on 10 September 2003. During argument, little was said about these proceedings. In the light of the decision reached on the application for leave, these proceedings now have no utility. 26 Accordingly, the Summons filed on 10 September 2003 is also dismissed. The plaintiff is to pay the costs of that Summons. **********