Yeomans v Carbridge Pty Ltd (No 3) [2012] NSWDC 91

District Court New South Wales

Medium Neutral Citation: Yeomans v Carbridge Pty Ltd (No 3) [2012] NSWDC 91 Hearing dates: 21/06/2012 Decision date: 22 June 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Leave to file a Reply. Estoppel to be dealt with as a separate question. Estoppel allegation not successful. Proceedings dismissed. Catchwords: Leave to file a Reply, estoppel Legislation Cited: Civil Aviation (Air Carriers Liability) Act 1967 (NSW) Civil Aviation (Carriers Liability) Act 1959 (Cth) Civil Liability Act 2002 Uniform Civil Procedure Rules 2005 (NSW) Motor Accidents Compensation Act 1999 Cases Cited: Air Link Pty Ltd v Paterson [2009] NSWCA 251 Air Tahiti Nui Pty Ltd v McKenzie (2009) 264 ALR 709 Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA [1985] 1 WLR 925 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Commonwealth v Verwayen (1990) 170 CLR 394 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Category: Interlocutory applications Parties: Wendy Yeomans (Plaintiff) Carbridge Pty Ltd (Defendant) Representation: K Nomchong and E James (Plaintiff) C Withers (Defendant) Cheney & Wilson Solicitors (Plaintiff) Wotton & Kearney (Defendant) File Number(s): 2010/00146047

Judgment 1This is the third judgment I have given in this matter. The background facts are set out in the earlier judgments. I do, however, think it worth repeating or adding the following by way of history: (a)On 23 August 2007 the plaintiff took a Regional Express Airlines ("Rex") flight from Orange to Sydney. (b)After landing, the plaintiff needed to travel on a bus to reach the terminal. The bus was owned and operated by the defendant. (c)When the plaintiff was boarding the bus she was injured, apparently due to a defect in the bus. (d)On 19 May 2010 the plaintiff filed a Statement of Claim against the defendant to recover damages caused by the defendant's alleged negligence. (e)On 21 March 2011 the defendant filed a Notice of Motion seeking orders for the dismissal of the plaintiff's claim on the basis that the proceedings had been filed outside the relevant limitation period. This limitation period was said to be that imposed by Sections 33 and 34 of the Civil Aviation (Carriers Liability) Act 1959 (Cth) which is imported into the law of New South Wales by the Civil Aviation (Air Carriers Liability) Act 1967 (NSW). I will refer to the two acts collectively as the "aviation legislation". (f)I gave judgment on the above Notice of Motion on 13 December 2011. The Motion was dismissed but in the course of my judgment I made a finding that the plaintiff's accident had occurred "in the course of any of the operations of embarking or disembarking". (g)The orders I made on 13 December 2011 included the setting down of the hearing of separate questions pursuant to Rule 28.4 of the Uniform Civil Procedure Rules 2005 (the "UCPR"). I heard the evidence and argument on the separate questions on 29 February 2012 and gave my decision on 9 March 2012. In that decision, in very brief summary, I found that the defendant was an agent of Rex within the meaning of Section 33 of the Commonwealth Act and that at the time of the plaintiff's accident the defendant was acting within the scope of its authority. 2The effect of my findings on 9 March 2012 would normally have led to the Statement of Claim being dismissed as having been filed outside the limitation period. However, by Notice of Motion dated 27 March 2012, the plaintiff sought leave to file a Reply alleging that the defendant was estopped from relying on the limitation provisions of the aviation legislation. This judgment concerns this Notice of Motion. 3The plaintiff relied on her affidavit sworn on 27 February 2012 as well as certain parts of her oral evidence given on 29 February 2012. In addition, the plaintiff relied on two affidavits of her solicitor, Mr Peter Wilson, sworn on 27 February 2012 and 14 March 2012 respectively. Mr Wilson was cross-examined. 4The defendant usefully compiled a folder (Exhibit 1), which contains the relevant material in chronological order. 5The first hurdle faced by the plaintiff was to obtain leave to file the Reply out of time. If leave was granted the plaintiff then sought the hearing of the estoppel argument as a separate question to be dealt with following the granting of leave in respect of the Reply. 6The defendant opposed the grant of leave but agreed that if leave was given then the estoppel point should be dealt with as a separate question and heard forthwith. 7The defendant relied on the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, in particular at paragraphs 102 to 104, to emphasise that a grant of leave required a proper explanation for the delay in being out of time. 8On one view the Reply should have been filed following the filing of the Amended Defence in October 2010. It might also be said that the estoppel point was only taken following my comments in paragraph 47 of my judgment given on 9 March 2012. As I have already said, the effect of my March 2012 judgment, without more, would have led to the dismissal of the plaintiff's claim. This is a drastic result. 9Notwithstanding the reasonable argument that there has been no proper explanation for the delay (assuming a relevant date after October 2010) I am nevertheless of the view that the justice of the circumstances should enable the plaintiff to argue the estoppel point. Accordingly, I give leave to the plaintiff to file the Reply out of time. That having been done, I make the order that the estoppel argument be dealt with as a separate question pursuant to Part 28.4 of the UCPR. 10The plaintiff's argument is that the defendant should be estopped from relying on the two year limitation period. It is submitted that the conduct of the defendant was such that the plaintiff was mislead into proceeding on the basis that her claim against the defendant arose from negligence of the defendant, actionable either under the Motor Accidents Compensation Act 1999 (the "MACA") or the Civil Liability Act 2002 (the "CLA"). 11As can be seen from the correspondence the possibility of a MACA action was abandoned upon receipt of a letter from the defendant's solicitors dated 9 January 2009 informing the plaintiff's solicitors that the bus was unregistered. Thereafter the plaintiff proceeded on the basis that her action fell under the CLA. Subject to various subsidiary time limits imposed by the MACA the limitation period under this Act and under the CLA is three years. The filing of the Statement of Claim on 20 May 2010, as a CLA based action, was therefore ostensibly in time. 12The correspondence in Exhibit 1 is generally between the plaintiff's solicitors (Cheney & Wilson), the defendant's solicitors (Wotton & Kearney), Rex's solicitors (Norton White) and Rex's insurer (QBE). All of the material in Exhibit 1 is important but I think the following requires special mention or comment: (a)On 1 February 2008 Mr Wilson wrote to Rex seeking particulars about the bus. (b)On 12 March 2008, QBE, as insurers for Rex, sought details about the plaintiff's claim. I should note here that the correspondence generally refers to Regional Express Holdings Limited, which is a holding company of Rex. For convenience I have included this company when referring to Rex. (c)Mr Wilson responded to QBE on 19 March 2008. In doing so he set out the basis for the possible liability of Rex as follows: "It is asserted that your insured has breached its duty of care to our client by reason of its failure to provide a safe system of alighting to and from the shuttle bus service provided to transport its passengers from its aircraft to its Sydney terminal." (d)On 11 June 2008 Norton White wrote to Cheney & Wilson providing information about the operator of the bus (the defendant). The letter also stated: "We suggest that it would be appropriate for the parties to attempt to settle the claim before significant legal costs are incurred". The letter did not give any clue as to why Norton White thought Rex may bear any liability for the plaintiff's injuries. (e)On 1 July 2008 Norton White wrote to Cheney & Wilson again inviting settlement discussions. (f)Some time prior to 15 July 2008 Mr Wilson (of Cheney & Wilson) forwarded a brief to senior counsel requesting his advice on liability. Senior counsel attached his advice to a letter dated 15 July 2008, the relevant parts of which are contained in Exhibit 1. The advice sets out the facts of the incident and then gives an opinion on liability. The advice concluded that "Because the injury occurred outside the definition of the use and operation of the vehicle, the accident does not fall under the Motor Accident Legislation. It is an injury at general law." In addition, senior counsel made the point that the MACA could not, in any event, be relevant because the apron at Sydney Airport was not a public road (therefore not permitting a suit against the Nominal Defendant if the bus was unregistered). He did, however, suggest that a letter be written to the defendant seeking details of the bus, whether it was registered and insured and also the identity of the defendant's public liability insurer. (g)Senior counsel's advice makes no mention of the aviation legislation. (h)On 13 August 2008 Norton White once again called on the plaintiff's solicitors to attempt settlement of the claim. (i)On 15 August 2008 Mr Wilson wrote back to Norton White saying that he was awaiting certain advice from counsel and also noting that his client's injuries have not stabilised so that considerations of settlement might be premature. (j)On 18 August 2008 Mr Wilson wrote his first letter to the defendant. This was the letter that had been drafted by senior counsel. (k)Mr Wilson then apparently became aware that Wotton & Kearney acted for the defendant. He wrote to the firm on 14 November 2008 enclosing correspondence that he had earlier forwarded to the defendant directly. (l)On 17 November 2008 Wotton & Kearney wrote to Mr Wilson. The letter contains this paragraph: "Having reviewed the circumstances in which your client was allegedly injured, we consider it more likely that a compulsory third party policy which attached to the bus ought more likely respond in the circumstances. Therefore, we suggest that you direct any further queries in relation to this claim to the CTP insurer of Carbridge." (m)On 9 January 2009 Wotton & Kearney provided Mr Wilson with details of the bus including the fact that it was unregistered and did not carry CTP insurance. (n)On 29 April 2009 Norton White wrote to Mr Wilson enquiring whether there had been any change in the plaintiff's circumstances and once again stating "that it would be appropriate for the parties to attempt to settle the claim before significant legal costs are incurred". As on each previous occasion no indication was given by Norton White as to why it was anticipated that Rex might be liable to the plaintiff. Mr Wilson said under cross-examination that he took the view that Norton White's interest was probably to buy the plaintiff out for a modest sum, perhaps in pursuance of a public relations exercise on behalf of Rex. (o)On 10 December 2009, the aviation legislation limitation period now having expired, Norton White wrote to Mr Wilson setting out details of the New South Wales and Commonwealth Acts and informing him that any action the plaintiff may have had "was extinguished at the expiry of two years from the date of the alleged accident". This was the first time that the possible relevance of this legislation was made known to Mr Wilson. It was not, however, the first time that he had seen reference to the legislation. He had read a Schedule published by Law Cover, which provided solicitors with a summary of limitation periods in personal injury actions. The Schedule is contained in Exhibit 1. I think it fair to say that it is potentially misleading. The Schedule says that it applies to "claims for injury or death on an aircraft". Mr Wilson's view was that the legislation referred to in the Schedule was only concerned with injury or death that occurred "on" an aircraft and therefore not in the course of embarking or disembarking. (p)After receipt of the letter from Norton White of 10 December 2009 Mr Wilson wrote back disputing the assertions that had been made about the limitation period. (q)On 4 January 2010 Mr Wilson forwarded the relevant correspondence to senior counsel and sought his further advice. On 2 March 2010 Mr Wilson 'chased up' the advice. Mr Wilson agreed that the penultimate paragraph of the letter contained an error. He accepted that he had always been of the view that Norton White acted for Rex and Wotton & Kearney acted for Carbridge. (r)Senior counsel furnished his further advice on 11 March 2010. He thought that the position put by Norton White was arguable but felt the plaintiff's argument was better. He suggested that a "normal personal injury action" should be commenced. (s)As already stated, the Statement of Claim against the defendant was filed on 19 May 2010. (t)Wotton & Kearney filed an appearance on behalf of the defendant and then, on 22 September 2010, filed a Defence. This pleading takes no limitation point and does not mention any of the aviation legislation. (u)On 12 October 2010 Wotton & Kearney, as of right, filed an Amended Defence taking the limitation points raised by the aviation legislation. The Amended Defence was forwarded to Mr Wilson by letter dated 13 October 2010 in which Wotton & Kearney explain the basis for the amendments. 13It was accepted by the plaintiff that the defendant and Wotton & Kearney were not aware of the possible applicability of the aviation legislation until shortly before the filing of the Amended Defence and certainly not before the filing of the Defence. 14I would be reluctant to reach the same conclusion about Rex and Norton White. A brief examination of Australian aviation authorities shows the involvement of this firm in this area of the law (see for example Air Tahiti Nui Pty Ltd v McKenzie (2009) 264 ALR 709 and Air Link Pty Ltd v Paterson [2009] NSWCA 251, the latter being a disembarkation case). Without any intention of criticism, I think Mr Wilson's assumption that Norton White continued to make settlement offers before the expiry of the limitation period for public relations reasons was perhaps a little naïve. Despite my observations I specifically make no finding about Norton White or Rex as they have not had the opportunity to state their position. I also make no comment about whether there was any obligation on Rex or Norton White to inform the plaintiff about the possible applicability of the aviation legislation. 15More importantly there is no evidence to suggest any collusion between Norton White and Wotton & Kearney and it is the latter's client that is the defendant, not the former's. 16In resolving the estoppel issue I think these factors are of prime importance: (a)Accepting that Wotton & Kearney and the defendant were not aware of the relevance of the aviation legislation before the filing of the Defence there can be no suggestion of any intentional concealment of the limitation period until after its expiry. (b)The error, if that be the case (contemplating that my earlier judgments may be found to be wrong), of not appreciating the applicability of the aviation legislation was shared by both the plaintiff and defendant and their respective legal representatives. It seems clear that both sides were proceeding upon the basis that the two possible areas of liability arose from the MACA or the CLA, and then, after confirmation that the bus was not registered, only the CLA. 17Learned counsel for the defendant submitted that the estoppel argument was doomed to failure because certain essential ingredients for success were absent. In particular, he took me to the following passages from decisions of the High Court: "The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it." (Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641). "4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so." (Commonwealth v Verwayen (1990) 170 CLR 394). 18In relation to the apparent silence of the defendant on the question of the limitation period I was referred to the following passage from Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA [1985] 1 WLR 925 at 937: "We should add that we see the same difficulty in invoking the principle of equitable estoppel in such circumstances. It is well settled that that principle requires that one party should have made an unequivocal representation that he does not intend to enforce his strict legal rights against the other; yet it is difficult to imagine how silence and inaction can be anything but equivocal." 19It is also significant to note that the silence, if that be the right description, was not consequent upon knowledge of the aviation legislation but rather derived from no knowledge of the legislation. 20The defendant submitted that on the basis of the accepted ignorance of the defendant and its lawyers of the relevance of the aviation legislation that no allegation of unconscionable or unfair conduct could be maintained. 21Accepting the assumption I think the submission must be correct. The plaintiff responded with the submission that proof of unconscionable conduct was not necessary. I was referred to this passage from Air Tahiti in paragraph 83: "A party who makes a representation of fact which another acts on to his or her detriment may be estopped although he himself or she herself was mistaken and did not intend his or her words or conduct to be understood as they were reasonably understood by the other party." 22I have two difficulties in deriving support for the plaintiff's case from the above passage. Firstly, I think the words quoted need to be read with the whole of paragraph 83 as well as paragraphs 80 and 81. 23Secondly, I think a significant element that I noted above comes into play at this stage. The plaintiff and her lawyers did not act on the basis of anything said by Wotton & Kearney. Rather, they reached the same conclusion of their own accord, which included the advice of senior counsel. The representations of fact, in particular about the bus, its registration and absence of insurance were acted upon by the plaintiff, but only to the extent of excluding an action under the MACA. There was no representation that diverted the plaintiff away from the aviation legislation, nor any representation that confined any possible action to an allegation of common law negligence. 24The particulars of estoppel in paragraph 23 of the Reply, on one reading, impugn the actions of Norton White in, by its correspondence, failing to reveal the applicability of the aviation legislation. I have already made some comments about that matter. I have also said that there is no evidence of any collusion between Norton White and Wotton & Kearney before the filing of the Defence. 25The plaintiff, through Mr Wilson in the witness box, accepted that he was always of the view that Wotton & Kearney acted for the defendant and Norton White acted for Rex. The fact that I have found an agency (at least for the purposes of the aviation legislation) existed at the time of the plaintiff's injury does not retrospectively imply knowledge and conduct to the defendant and its lawyers in respect of their actions before the expiry of the limitation period. 26In the absence of a finding of any unconscionable conduct on the part of the defendant or its lawyers and even of any representation of fact or law which led the plaintiff to act to her detriment (bearing in mind the simultaneous conclusions reached by her own legal team) I cannot see any basis upon which the defendant can be estopped from relying on the limitation period in the aviation legislation. 27Accordingly, I find that the estoppel argument raised in the Reply must fail. The consequence is that the proceedings should be dismissed. 28The plaintiff's Notice of Motion also seeks an order that, in the event of the estoppel argument failing, each party should pay its own costs of the proceedings, excepting any already made costs orders. Mr Withers sought leave to agitate this question following my decision on the estoppel argument. I will therefore hear the parties on costs and the on the final orders.