New South Wales Supreme Court CITATION : Storer v Water Board & Ors [2003] NSWSC 823 HEARING DATE(S) : 3 September 2003 JUDGMENT DATE : 8 September 2003 JURISDICTION: Common Law Divsion JUDGMENT OF : Master Malpass DECISION : The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The Exhibits may be returned. CATCHWORDS : Leave to commence proceedings - viable cause of action - grossly unsatisfactory explanation for delay - deliberate decision - onus not discharged. LEGISLATION CITED : Workers Compensation Act 1987, s 151D (2) CASES CITED : ASB-Tech Services Pty. Ltd. (In Liquidation) v. Doeland & Anor. [2003] NSWCA 167. Kevin Storer (Plaintiff) v PARTIES : Water Board (First Defendant) Sydney Water Corporation (Second Defendant) Australian Water Technologies Pty Limited (Third Defendant) FILE NUMBER(S) : SC 20728 of 2001 Mr D Baran (Plaintiff) COUNSEL : N/A (First and Second Defendants) Mr David Brogan (Third Defendant) G H Healey & Co - Sydney (Plaintiff) SOLICITORS : N/A (First and Second Defendants) Bartier Perry (Third Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Monday 8 September 2003 20728 of 2001 Kevin Storer v Water Board & Ors JUDGMENT 1 MASTER: On 17 August 2001, the plaintiff commenced these proceedings by the filing of a Statement of Claim. It propounds a claim for damages arising out of personal injury. It concerns two matters both of which have been described as death incidents. One took place in or about 3 July 1996 (different dates appear in the documents) and the other took place on 19 December 1997. It is alleged that the incidents gave rise to nervous shock, depression and psychological sequelae. 2 The death incidents took place during employment had with the first, second or third defendant. The court has been told that both the first and second defendants have ceased to exist as a legal entity. The third defendant is the only extant legal entity. 3 On 26 November 2001, the plaintiff filed a Notice of Motion. It seeks leave to commence proceedings pursuant to s 151D (2) of the Workers Compensation Act 1987. The hearing of the Notice of Motion took place on 3 September 2003. It was opposed by the third defendant. 4 The plaintiff has sworn a lengthy affidavit (it comprises 176 paragraphs). He has been cross-examined and re-examined. The third defendant relies on a short affidavit sworn by Mr Hundt. Both parties have tendered documentation. 5 I closely observed the plaintiff whilst he was giving evidence. He was not an impressive witness and gave evidence which at times was unhelpful. 6 It is unnecessary to repeat the detail of what is deposed to in the plaintiff's affidavit. It might be said to be directed to giving a life history and a detailed account of attendances for treatment rather than addressing certain of the matters relevant to questions of delay and explanation for delay. Perhaps, this bulk of detail was intended to convey a false impression that delay had been exhaustively explained. 7 The material before the court reveals an unusual state of affairs. The plaintiff is an electrical engineer. He resigned from the employment in 1999. His present employment as a design engineer commenced in August 2002. There seems to be various problems (unrelated to the death incidents) that may have either caused or at least contributed to his present mental state. The task of disentangling the various factors could be expected to be a complex exercise. He has had matrimonial problems. He has had various other health problems. There have been problems thrown up by his employment. Generally speaking, there seems to be dissatisfaction with many aspects of his life. In his evidence, he used an expression to the effect that his world had lost its glow. 8 Prior to the commencement of proceedings, he had seen many medical practitioners and psychologists. He had not told any of them of the death incidents. The proceedings were commenced on the advice of his present solicitor (Mr Healey). It is unclear when this advice was given. Expert medical support supporting his claim was not obtained until late 2002 (after consulting with Professor Kennett). Confirmation of this support was said to come when the plaintiff saw Dr Lovric on behalf of the third defendant. 9 The relevant limitation period (three years from the date on which the injury was received) has expired for the bringing of an action in respect of each of the two death incidents. The court has a discretionary power to grant leave to commence proceedings out of time. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The plaintiff bears the onus of satisfying the court of an entitlement to relief. 10 In opposing the application, the third defendant relies on two matters. Firstly, it says that the plaintiff does not have a viable cause of action. Secondly, it says that the application should be refused because of the delay and the unsatisfactory explanation offered for the delay. 11 There is no evidence of prejudice. The third defendant does not suggest that there is either presumptive or actual prejudice. 12 There is material before the court which throws up doubt as to the bona fides of the plaintiff's claim and as to its prospects of success. However, the court is not in a position on an application such as this to form any view that the claim is hopeless. It clearly has its problems and any trial may be lengthy and expensive. 13 In my view, there has been significant delay and the plaintiff has not provided a satisfactory explanation for the delay. The deficiency is gross (it is one of the worst cases that I have encountered). I add that it does not appear to be the product of oversight. 14 It seems to me, the court is left in a position where it has so little material that it is not even able to make a guess at what has happened. It was not told when the plaintiff first sought legal advice concerning the death incidents. The material is silent as to when his present solicitor assumed conduct of the matter. It is silent as to what was done to prosecute the claim. It is silent as to what advice was given (if any) in relation to limitation periods. 15 As was said in ASB-Tech Services Pty. Ltd. (In Liquidation) v. Doeland & Anor. [2003] NSWCA 167 the onus is squarely on the applicant to provide an explanation, and in the course of doing so to put the court in a position of understanding just why proceedings were not commenced in time. The correct approach for the court is to regard the provision of an explanation as a necessary step in the application. 16 The lengthy affidavit provided by the plaintiff (despite the exhaustive recitation of medical attendances and other matters) barely mentions contact had with his legal advisers. It contains the following:- "……………………….. 151. It was Edwina Birch, Psychologist who suggested that I take some legal advice in relation to some of the work related problems I was having. It was upon her advice that I attended on G.H. Healey & Co – Bondi. 152. Over a period of time I attempted to write the history down for my lawyers but I found that I could not do it. It was too distressing for me to recall. ……………………… 161. I commenced a s 106 action against my former employers AWT . 162. I contacted Mr. Healey and confirmed that I wished to proceed with my claim in relation to the injuries I suffered during the course of my employment." ………………………" No dates are provided. There is no affidavit from Mr Healey, any other member of his firm or any other legal adviser. 17 The contents of paragraph 151 were expanded to a degree in cross-examination. The plaintiff said that he saw one of Mr Healey's franchisees in September/October 1999 concerning long service leave problems. He said that during the consultation the matters of the death incidents cropped up in the course of giving an employment history. He says that he did not then receive any advice concerning the death incidents. 18 For completeness, I should add that it was volunteered from the Bar Table that the commencement of proceedings may have been related to impending legislative changes. 19 There is nothing to suggest that the plaintiff was unable to give evidence as to inter alia relevant communications had with his solicitors and advice received. It is not said that Mr Healey was unable or unavailable to provide evidence concerning his conduct of the matter on behalf of the plaintiff. 20 The parsimonious material made available to the court suggests that the plaintiff had consulted a solicitor at a time when at least one of his claims was not statute barred. It also suggests that he has had lawyers acting for him "Over a period of time." It may be that there are potential questions of conflict of interest. In all of the circumstances it seems likely that a deliberate decision was made not to place evidence on certain matters before the court. 21 In my view, these matters are of such weight as to themselves justify the refusal of the application. This decision is reinforced when regard is had to the matters earlier mentioned in paragraph 12 hereof. Accordingly I consider that the plaintiff has failed to discharge the onus borne by him. 22 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The Exhibits may be returned. ********** Last Modified: 09/09/2003 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. 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