Taboas v Abigroup Contractors Pty Ltd [2013] NSWSC 1230

Supreme Court New South Wales

Medium Neutral Citation: Taboas v Abigroup Contractors Pty Ltd [2013] NSWSC 1230 Hearing dates: 23/08/2013 Decision date: 05 September 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Grant leave to the defendant to file an Amended Defence in the form annexed to the affidavit of Claire Tingey of 22/8/13, provided that such Amended Defence is filed and served no later than 4pm 30/8/13. (2) Order the defendant to pay the costs of and occasioned by any amendment. (3) Reserve all other questions of costs to the trial Judge. Catchwords: PROCEDURE - notice of motion - leave sought to file amended defence - whether additional limitation defence affects the factual dispute between the parties and prejudice the plaintiff - whether amended defence is consistent with the overriding purpose of the Civil Procedure Act Legislation Cited: Civil Procedure Act 2005 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Workers Compensation Act 1987 Category: Principal judgment Parties: Robert Taboas (P) Abigroup Contractors Pty Ltd (D1) VSL Australia Pty Ltd (D2) Representation: Counsel: P Beale (P) D Benson (1D) R Gambi (2D) Solicitors: CMC Lawyers (P) Bartier Perry (D1) Wotton + Kearney (D2) File Number(s): 2011/171589

Judgment 1On 25 May 2011, Robert Taboas, the plaintiff, commenced proceedings against Abigroup Contractors Pty Ltd ("Abigroup"), claiming damages arising out of the nature and conditions of his work between 6 June 2006 and 24 October 2006. As well, Mr Taboas claimed that on 24 October 2006, he sustained a frank injury while carrying out his normal work duties as a result of repeated lifting of heavy items such as hydraulic jacks. 2On 1 November 2011, Abigroup filed a cross-claim against VSL Australia Pty Ltd ("VSL"). Pursuant to the provisions of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, Abigroup claimed, that it was entitled to contribution or indemnity from VSL with respect to the plaintiff's injuries. As well, Abigroup claimed an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987, in respect of compensation payments made by it to the plaintiff. 3On 17 November 2011, Mr Taboas sought leave by Notice of Motion to file an Amended Statement of Claim. The significant amendment that was proposed was the joinder of VSL as a second defendant. 4In response, apparently, to a facsimile of 14 December 2011, the contents of which are not in evidence, the plaintiff's lawyers wrote a letter to the lawyers for VSL which included the following: "The plaintiff's motion is a simple motion to join a defendant to the proceedings. It is not an out of time application or an application to extend a limitation period. ... The plaintiff has prima facie alleged that the date of discoverability is such that this matter is not out of time. We observe that your client has already been joined to the proceedings as a cross-defendant. Once your client has been joined as an additional defendant, it has the right, should it so elect, to plead a defence pursuant to the Limitation Act. It is respectfully suggested that the subject application is simply an application by the plaintiff to join a defendant in circumstances where a prima facie allegation has been made that the matter is within time. ... It is respectfully suggested that it is premature at this point for you to seek to resist the plaintiff's application to join your client on the basis that the matter is out of time, and accordingly we are unsure on what basis you could be objecting the plaintiff's application. ..." 5On 20 January 2012, VSL's lawyers wrote to the plaintiff's lawyers, in the following terms: "As you know, we object to the joinder of our client as a further defendant to the proceedings on the basis that the plaintiff is statute barred against our client. ... As you know, we advised the Court at the return of the Notice of Motion on 16 December 2011 before Judge Balla, that the issue of discoverability by the plaintiff pursuant to s 50D and to the Limitation Act 1969 (NSW) was relevant to the potential joinder of our client to the proceedings." 6On 10 February 2012, the plaintiff's Notice of Motion was heard by Elkaim DCJ. 7Although the judgment of Elkaim DCJ is not available, it is apparent from the evidence that one of the grounds for opposition by VSL to its joinder to the proceedings was that the claim against it was prima facie statute barred. VSL argued that the claim was "not maintainable" against VSL pursuant to s 50C of the Limitation Act 1969. 8Elkaim DCJ found that it was appropriate in the interests of justice that VSL should be joined to the proceedings as a second defendant. He made orders permitting the plaintiff to file an Amended Statement of Claim within 14 days. 9On 6 March 2012, VSL's lawyers sought particulars of the plaintiff's claim. 10Request 99 of that Request for Particulars was in the following terms: "These proceedings have been commenced well after three years from the date of the accident. We continue to maintain that your client faces a significant limitation issue having regard to s 50C of the Limitation Act 1969 (NSW). To enable us to properly consider our position in this regard, please ..." 11Eight sub-questions dealing the question of why proceedings were not commenced, and questions as to discoverability of the cause of action, obtaining legal advice and the like, were then asked. 12On 15 May 2012, this letter was responded to by the solicitors for the plaintiff. Insofar as Request 99 was concerned, the answer to the questions was as follows: "The Limitation Act does not form any basis for the plaintiff's claims. He is not obliged to provide particulars of matters that your client may wish raise in its defence, and which if pleaded, will bear the onus of proving. However, we note that you have previously seen the affidavit of Brendan Moran dated 21 November 2011, setting out the chronology of matters relevant to this issue should it arise." 13On 6 June 2012, VSL filed a Defence. That Defence did not include any pleading of a limitation defence. 14The parties agreed to participate in a mediation on 3 December 2012. When the lawyers for VSL were preparing the matter for mediation, it became apparent to them that they had inadvertently omitted to plead the limitation defence in the Defence filed on 6 June 2012. 15After the mediation was conducted on 3 December 2012, the lawyers for VSL sent an Amended Defence to the plaintiff's solicitors. The letter of 19 December 2012, said: "The amended Defence seeks to plead a limitation defence which has previously been raised with you. As you are aware, the limitation point is very much alive and it was argued that the plaintiff's Notice of Motion to join VSL as a second defendant. His Honour Judge Elkaim was of the view that such a matter was appropriate for determination by the trial Judge. VSL has requested particulars relating to the limitation defence which your client has relied on in the affidavit of Brendan Moran dated 21 November 2011." (sic) 16The letter concluded by asking for the plaintiff's consent to filing the Amended Notice of Defence. No response to that letter has ever been sent by the solicitors for the plaintiff. 17The mediation was resumed on 28 February 2013. 18The next scheduled directions hearing was on 24 July 2013. At that directions hearing the issue of filing an Amended Defence, which included a pleading of the expiration of the limitation period, was raised before the Common Law Registrar. 19There is no transcript of those proceedings. However, Ms Tingey, the solicitor for VSL, has sworn an affidavit, upon which she was not cross-examined, which contained the following version of that directions hearing: "The matter was listed for directions on 24 July 2013, before Registrar Bradford. VSL sought leave to file the amended Defence. Mr Beale of Counsel appeared on behalf of the plaintiff and advised the Court that the plaintiff did not consent to the filing of the amended Defence, but accepted that VSL would be raising this issue at the hearing on 28 October 2013, and that no prejudice had been suffered by the notification in December 2012 of the amended Defence. As the plaintiff did not consent to the filing of the amended Defence, Registrar Bradford did not grant leave and noted the Court file of the plaintiff's position." 20Consequent upon that directions hearing, the present Notice of Motion was filed on 8 August 2013, and heard by the Court on 23 August 2013. 21At the conclusion of the argument on the motion, the Court made the following orders: "(1) Grant leave to the second defendant, VSL Australia Pty Ltd, to file and serve an amended defence in the form which is Annexure A to the affidavit of Claire Alise Tingey sworn 22/8/13. Order that such amended defence be filed and served on or before 4pm 30/8/13. (2) Order that the second defendant pay the costs of and occasioned by the amendment. (3) Costs." 22At the time of making the orders, the Court indicated that it would deliver reasons in due course. These are the reasons for the orders which were made on 23 August 2013.