Ali v Woolworths Limited [2013] NSWDC 137

District Court New South Wales

Medium Neutral Citation: Ali v Woolworths Limited [2013] NSWDC 137 Hearing dates: 21 June 2013 Decision date: 21 June 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Dismiss the plaintiff's notice of motion (filed 31 May 2013). 2. Defendant's costs of the motion be the defendant's costs in the proceedings. 3. Stand over for directions on 18 July 2013 at 9.30am before the Judicial Registrar. Catchwords: LIMITATIONS - discoverable action - whether maintainable Legislation Cited: Limitation Act 1969, s 50C, s 50D Uniform Civil Procedure Rules 2005, r 28.2, r 42.1 Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35 Jones v Dunkel (1959) 101 CLR 298 Lee v Woolworths Ltd [2013] NSWSC 238 State of New South Wales v Gillett [2012] NSWCA 83 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Category: Interlocutory applications Parties: Ibrahim Al Am Ali (plaintiff) Woolworths Limited (defendant) Representation: Mr J Catsanos (defendant) P K Simpson & Co Pty Limited (plaintiff) Lee and Lyons Lawyers (defendant) File Number(s): 2013/70156 Publication restriction: No

ex tempore Judgment 1Mr Ibrahim Al Am Ali alleges that he was employed by IPA Personnel Pty Limited as a storeman to work at the premises of Woolworths Limited ("Woolworths") at Minchinbury during 2007. 2Mr Ali says that on 1 July 2007, during the course of his employment and whilst at Woolworths' premises at Minchinbury, he was lifting, carrying and stacking boxes of meat when his right foot was caught between two pallets causing him to twist, fall and thereby suffer injury, loss and damage. 3Mr Ali received advice from a firm of solicitors and counsel in 2007 through to 2010. However, it was not until 7 March 2013 that Mr Ali commenced proceedings against Woolworths. The matter comes before me by reason of a notice of motion filed by Mr Ali seeking the following relief: "1. That the Plaintiff's action against the Defendant be deemed maintainable as it was brought within 3 years from the date on which the cause of action was discoverable by the Plaintiff, pursuant to the provisions of Sections 50C and 50D of the Limitation Act 1969 (NSW)." 4The application is brought apparently on an understanding that it is analogous to an application for an extension of time. That is not correct. The relevant parts of ss 50C and 50D of the Limitation Act 1969 are as follows: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, ..." "50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. ..." 5At the outset of this application, the defendant raised the matter of whether the application in the form that it was made was procedurally appropriate. This is a matter to which I shall return. 6The plaintiff relied upon two affidavits of the plaintiff's instructing solicitor, which together annexed a number of documents. Those documents evidenced a number of matters. First, when the plaintiff attended Canterbury Hospital on the day of the incident, 1 July 2007, he reported that he "works as a casual for IPA agency and is currently placed at Woolworths warehouse". 7Secondly, the workers compensation claim form filled out by the plaintiff, Mr Ali, recorded that although his employer's name was IPA Personnel his occupation was a store person and the "Workplace Industry" was listed to be "Woolworths". That form was completed on 5 July 2007, some four months prior to Mr Ali first obtaining legal advice. 8Thirdly, the plaintiff's solicitor requested the following matters from his former solicitors in a letter dated 27 May 2013: "1. A general chronology/summary of the progression of the Plaintiff's matter following his initial instructions to you until the time that the matter was transferred to our firm. 2. Details of any discussions, if any, which took place between you and the Plaintiff, previous Counsel and the Plaintiff, and you and Counsel, with respect to any Occupier Liability claims arising from the subject accident..." The letter further raised questions about the occupier liability claim. 9Fourthly, the plaintiff's former solicitor responded to that request on 29 May 2013 where he gave an account of conferences between Mr Ali and his then solicitor and counsel and included also two memoranda of advice provided by counsel on 20 August 2009 and 20 October 2010. Neither the solicitor's letter nor the advice of counsel refer to "Woolworths", to "occupier's liability" or indicate that the plaintiff was injured at a place other than his employer's premises. 10Woolworths in this case submits that I should find that the proceedings are not maintainable for three reasons, which I list not in order of the emphasis placed upon them by Woolworths. 11First, there was no evidence that Mr Ali had told his former lawyers that the injury had happened at Woolworths and that he was working under Woolworths' direction. 12Secondly, there was no evidence that, in a document or in circumstances not disclosed, the former lawyers did not advise Mr Ali about a claim against Woolworths. 13Thirdly, that in any event Mr Ali knew that Woolworths were at fault and there was a potential liability in them. 14I should note that Mr Ali accepts that he knew or ought to have known about the fact of the injury and its seriousness as referred to in s 50D(1)(a) and (c) of the Limitation Act 1969. His argument is based upon s 50D(1)(b) that he neither knew nor ought to have known that the injury was "caused by the fault" of Woolworths. 15As to the three arguments raised by the defendant, I would infer, on the balance of probabilities, that there was no other advice given by the former solicitors that might relate to the position of Woolworths. The plaintiff's current solicitor made a detailed request effectively seeking all of the discussions, instructions and advice given by the former legal representatives of the plaintiff. The response dealt with several conferences and provided two counsel's advices. I must conclude that the evidence before me represents the extent of the advice given to the plaintiff, even though it might not comprehensively record everything the plaintiff told his former legal representatives. 16The third argument of the defendant, whether Mr Ali knew that Woolworths was at fault in causing his injury, must be considered in the context of the advice Mr Ali received from his lawyers and counsel. That advice did not suggest a liability in Woolworths. 17Accordingly, I am not persuaded that Mr Ali believed (during the three-year period after the incident through to 2010) that his injury was caused by the fault of Woolworths. 18As to the second matter raised by Woolworths, I also find in favour of the plaintiff. The request by the plaintiff's current solicitor was for all the advice and instructions given and a reasonably detailed response was received. That is sufficient to persuade me on the balance of probabilities that there were no other relevant advices given to the plaintiff by his former lawyers. 19That leaves the question of whether there was evidence that the plaintiff told his former lawyers that the injury happened at Woolworths and that he was then working under the direction of Woolworths. The plaintiff has given no evidence on the application. 20The plaintiff told the hospital about Woolworths and also referred to Woolworths in the workers compensation claim form. The plaintiff submits that the solicitors must have been aware of the contents of the workers compensation claim form. But it was created and lodged some four months prior to the time when the plaintiff first consulted those solicitors. 21I am not persuaded on the balance of probabilities that the plaintiff did disclose the matter of Woolworths to his previous solicitors. I have taken into account the fact that neither the correspondence of the former solicitor nor the advices of counsel refer to that matter. I also take into account that the plaintiff presumably was able to give evidence about whether that matter was disclosed to the previous solicitor but has not done so. I do not think it appropriate that I draw an inference in his favour where he has declined to give direct evidence about the matter, in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298. 22Woolworths have referred me to the decisions of Baker-Morrison v State of New South Wales [2009] NSWCA 35, State of New South Wales v Gillett [2012] NSWCA 83 and Lee v Woolworths Ltd [2013] NSWSC 238. In the Gillett decision, Beazley JA, with whom all the other four members of the Court agreed, endorsed the earlier decision of Baker-Morrison, and stated at [94]-[95]: "In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between 'fault' and injury. Section 60I involves a connection between an act or omission and injury. The respondent's submission, noting the requirement in s 50D(1)(b) that the fault be that of the defendant, who may not be the actual wrongdoer, supports this construction. [95] There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word. A case where a defendant is liable pursuant to a non-delegable duty of care is one example where this could be said to be the case. A defendant only liable pursuant to statute, such as the Nominal Defendant, is another. The State, liable under the Crown Proceedings Act 1988, as is the case here, is another example. Yet another is a case of malicious prosecution, where the identity of the prosecutor is pivotal to the determination of the elements of malice and reasonable and probable cause: see A v New South Wales [2007] HCA 10 ; 230 CLR 500. The factual circumstances in Bostik provide a further example where a plaintiff may not know who the employer is and therefore whether injury was the fault of a particular defendant. This is not so unusual. Many cases come before the courts where a plaintiff is unaware of the identity of the actual employer." 23Her Honour also stated at [103]: "A person is deemed to have knowledge of the facts if they would have been ascertained by a person taking all reasonable steps before that time to ascertain the facts." 24And at [104]: "For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case." 25It seems to me, and it is not seriously contested, that to have taken all reasonable steps to ascertain whether the injury was caused by the fault of Woolworths, the plaintiff needed to have told his previous solicitors that he was working on Woolworths' premises. Accordingly, I am not satisfied that Mr Ali took all reasonable steps to ascertain whether the injury was caused by the fault of Woolworths. 26I return to the nature of the application. Ordinarily an application raising s 50D issues might arise because of an application by the defendant for a permanent stay or dismissal of the proceedings because of the expiration of the three-year period, such as occurred in Gillett and Baker-Morrison. That has not occurred here. The defendant has made no application. 27Another possible procedure is for there to be a determination of a separate question. In Lee v Woolworths Ltd, an order had previously been made under r 28.2 of the Uniform Civil Procedure Rules 2005 to permit resolution of a separate question as to whether proceedings against the second and third defendants are statute barred by the operation of ss 50C and 50D: see Lee v Woolworths at [1]. No application for the determination of a separate question has been made. 28The application before me is in the nature of an application for a declaration. Neither party submitted that I am empowered to grant declarations. 29The defendant submitted that I should treat the application as one by the defendant for a permanent stay or dismissal or as an application both for a separate determination of an issue and for the determination of that issue. The plaintiff was not inclined to offer unreserved agreement to that course. I do not see how the plaintiff's application can be treated as one by the defendant for a permanent stay or dismissal. 30In Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, the High Court noted at p 533: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question." 31The circumstances in Wardley are different from those that are before me. But the same principle applies. The Court should be cautious in determining a limitation question prior to a trial when all the evidence is not before it. 32In the circumstances where some of the evidence was filed before me yesterday and where the evidence of the plaintiff at trial, may impact on the proper determination of whether he had taken all reasonable steps to ascertain whether Woolworths was at fault in his injury, it seems to me that this is not a case where I would be inclined to make orders instante to enable the determination of a separate question. 33In my view, the notice of motion should be dismissed as premature because no separate determination has been ordered in respect of the particular question. I do not propose to make any other orders in respect of the proceedings. If the defendant wishes to make an application to dismiss or stay the proceedings by reason of the expiration of the limitation period then, of course, it is at liberty to do so. That application would be dealt with on the evidence that is relied upon on that occasion. 34The defendant seeks an order that the plaintiff play the defendant's costs of the application. The plaintiff seeks an order that costs be costs in the proceedings. This was an application that the plaintiff has brought which failed although ultimately for reasons different from that which was maintained against it by the defendant. The defendant did not oppose the bringing of the application in the form that it took. 35In accordance with Uniform Civil Procedure Rule 42.1 the plaintiff should not be entitled, whatever be the outcome of the proceedings, to recover his costs of this application. Whether Mr Ali should have to pay the defendant's costs, in circumstances where there was some agreement for the application to be run should depend on whether the plaintiff ultimately succeeds. Accordingly, I propose to order that the defendant's costs of the application be the defendant's costs in the proceedings. 36Accordingly, the orders of the Court are: 1. Dismiss the plaintiff's notice of motion (filed 31 May 2013). 2. Defendant's costs of the motion be the defendant's costs in the proceedings. 3. Stand over for directions on 18 July 2013 at 9.30am before the Judicial Registrar.