Steven Galea v AMP Capital Investors Limited and Glad Cleaning Services Pty Ltd [2015] NSWDC 65

District Court New South Wales

Medium Neutral Citation: Steven Galea v AMP Capital Investors Limited and Glad Cleaning Services Pty Ltd [2015] NSWDC 65 Hearing dates: 23-24 April 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Jurisdiction: Civil Before: Letherbarrow SC DCJ Decision: The separate question is answered "no" with respect to each defendant Catchwords: LIMITATIONS - slip and fall in shopping centre –discoverable facts – whether known or ought or ought to have been known Legislation Cited: Uniform Civil Procedure Rules, Rule 28.2 Limitation Act, 1969, ss50C, 50D Civil Liability Act, 2002 Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bostik Australia Pty LCD v Liddiard & Anor [2009] NSWCA 167 State of New South Wales v Gillett [2012] NSWCA 83 Category: Principal judgment Parties: Plaintiff: Steven Galea First Defendant: AMP Capital Investors Limited Second Defendant: Glad Cleaning Services Pty Ltd Representation: Counsel: Plaintiff: Mr Kalfas SC First and Second Defendants: Mr Parker SC

Solicitor: Plaintiff: Cohen & Krass First and Second Defendants: Hall and Willcox File Number(s): 2011/298967 Publication restriction: Nil

Introduction 1. By their motion filed 26.6.14, the defendants sought, inter alia, an order pursuant to Rule 28.2 of the UCPR that the question of whether the plaintiff had brought his proceedings against them after the expiration of the limitation period prescribed by s50C of the Limitation Act, 1969, be determined as a separate question before trial. 2. On the 5.9.14, another judge of this court made the order sought and, by consent, ordered that the "following questions and agreed results for determination at the Hearing of the separate question" were to be as follows: 1. 1. Whether the plaintiff's claim against: 1. The first defendant; and/or 2. The second defendant. Is statute-barred by reason of the Limitation Act 1969 (NSW). 1. If question 1(a) is answered "yes" then there will be judgment for the first defendant with costs. 2. If question 1(b) is answered "yes" then there will be judgment for the second defendant with costs. 3. If question 1 (a) is answered "no" then there will be an order that costs of the Motion and Hearing of the separate question be the plaintiffs costs in the cause. 4. If question 1 (b) is answered "no" then there will be an order that costs of the Motion and Hearing of the separate question be the plaintiff's costs in the cause. 1. When the separate question came on for hearing before me on 23 March last, Mr Parker SC, counsel for the defendants, read the following affidavits: 1. Ms Gabriella Pearson, Senior Claims Consultant, of 26.6.14 2. Mr Andrew Allan McArthur, solicitor, of 26.6.14 1. On behalf of the plaintiff, Mr Kalfas SC read the following affidavits: 1. Mr Warren Krass, the plaintiff's current solicitor, of 3, 6 and 7.11.11. These affidavits annex considerable material obtained by, inter alia, the plaintiff's former solicitors, Teakle Ormsby Conn (TOC), including a typed statement of the plaintiff dated 19.2.08 (the plaintiff's statement). 2. The plaintiff of 4.11.14 3. Mr Douglas Eggins, solicitor of 6.11.14. Mr Eggins had conduct of the plaintiff's file up until he resigned from TOC in September 2009 due to "an on-going dispute" with the firm. 4. Mr Stuart Moffet, the plaintiff's counsel retained in the substantive proceedings, of 25.3.15. Mr Moffet was first retained by Mr Eggins to act on behalf of the plaintiff in June 2009. 1. Of the Plaintiff's deponents, Mr Parker SC cross examined the plaintiff, Mr Eggins and Mr Moffet. Mr Kalfas SC did not cross examine either of the defendants' deponents. 2. In addition, some further documentary evidence was tendered which included a "Liability Incident Report" (the incident report) dated 29.1.08 and prepared by the first defendant in relation to the plaintiff's accident. This became exhibit 1. Further, a CCTV recording of the plaintiff's accident, which involved him allegedly slipping on a spillage at the first defendant's shopping centre at North Ryde on that date, became exhibit B.