Kazimierz Peter Kubik v The Ipswich Golf Club
[1996] QDC 313
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- Unreported Judgment
- Kazimierz Peter Kubik v The Ipswich Golf Club[1996] QDC 313
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Kazimierz Peter Kubik v The Ipswich Golf Club[1996] QDC 313
Kazimierz Peter Kubik v The Ipswich Golf Club[1996] QDC 313
IN THE DISTRICT COURT HELD AT IPSWICH QUEENSLAND | No. 90 of 1994 |
BETWEEN:
KAZIMIERZ PETER KUBIK | Plaintiff |
AND:
THE IPSWICH GOLF CLUB | First Defendant |
AND:
GOLF WORLDS PRO SHOP PTY. LTD. | Second Defendant |
SUPPLEMENTARY REASONS FOR JUDGMENT - McGILL S.C., D.C.J.
Delivered the 13th day of December 1996
It is necessary for me to deal with some issues which have arisen in relation to costs in this matter. In order to do so comprehensively, I need to set out a chronology of the proceedings.
18 November 1994 | Plaint filed. Claiming against the Ipswich Golf Club damages in respect of injury suffered by the plaintiff on 9 August 1992. |
14 March 1994 | Entry of Appearance and Defence filed. |
9 August 1995 | Order that Golf Worlds Pro Shop Pty. Ltd. be joined as second defendant, and that the plaint be amended to add a claim against that company in respect of the same injury. |
17 August 1995 | Amended plaint served on second defendant. |
25 September 1995 | Entry of Appearance and Defence from second defendant which did not raise any limitation point. |
18 January 1996 | Certificate of Readiness forwarded by plaintiff's solicitors to solicitors for first defendant in anticipation of receiving first defendant's answers to interrogatories. |
5 March 1996 | Certificate of Readiness forwarded by plaintiff's solicitors to solicitors for second defendant with plaintiff's answers to interrogatories. |
16 April 1996 | Plaintiff's solicitors forward Certificate of Readiness to second defendant's solicitors with plaintiff's affidavit of documents. |
23 April 1996 | Settlement conference arranged but not attended by plaintiff's representatives. |
26 August 1996 | Plaintiff's solicitors forward further Certificate of Readiness to second defendant's solicitors. |
12 September 1996 | Settlement conference, which was unsuccessful. |
18 September 1996 | Second defendant's solicitors raise the issue of the plaintiff's action against that defendant being out of time. |
27 September 1996 | Second defendant's solicitors advise that amended defence in preparation. |
7 October 1996 | Plaintiff's solicitors file summons seeking an order that the matter be entered for trial dispensing with the Certificate of Readiness, and costs. |
11 October 1996 | Second defendant files summons seeking leave to issue third party notices (and leave to bring application under Rule 149(9)). |
11 October 1996 | Second defendant files amended Entry of Appearance and Defence which includes a plea that the action against the second defendant is barred by the Limitation of Actions Act 1991. |
14 October 1996 | Summons filed 7.10.96 and summons filed 11.10.96, both adjourned 24.10.96, costs reserved. |
17 October 1996 | Plaintiff's solicitors file summons returnable 24.10.96 seeking deeming order under Rule 25. |
21 October 1996 | Second defendant's solicitors file summons seeking a determination as a preliminary issue of the limitation defence. |
24 October 1996 | Application for a deeming order under Rule 25 argued and refused. Summons dismissed with costs. There was also a draft amended summons handed up which included an application under s.31 of the Limitation of Actions Act. That application was treated as having been made and adjourned to 7th November 1996 at 9.30 a.m. The two summonses adjourned from 14 October 1996, and the second summons by the second defendant, were also adjourned to 7 November 1996. |
7 November 1996 | Application under s.31 Limitation of Actions Act argued and reserved. |
5 December 1996 | Order extending the period of limitation for the plaintiff's action against the second defendant. Reasons published. Plaintiff ordered to pay the second defendant's costs of the application to be taxed in any event. |
I then went on to deal with the second defendant's application filed 10 October 1996 and granted leave to issue a third party notice in terms of Exhibit B of the affidavit of Mr. Misso filed that day and ordered that the costs of that application be the second defendant's costs of the cause. I also dealt with the second defendant's application in the summons filed 21 October 1996. In view of the extension to the limitation period, that application had become futile and accordingly that summons was dismissed. Because it was filed after the plaintiff's application for a deeming order under Rule 25 had been filed, but not determined, it seemed to be that that application was premature, but at least there had not been any significant additional costs incurred as a result of it and I therefore made no order as to the costs of that application, including any costs reserved in relation to it.
That left the plaintiff's application filed on 7th October 1996 to dispense with the Certificate of Readiness. It seemed to me that that application was premature given that the second defendant's solicitors had foreshadowed an amendment to raise the limitation point. On the other hand, it is perhaps a little surprising that it took from 18th September 1996, by which time the second defendant's solicitors were aware of the point, until 11th October 1996 for the amended Entry of Appearance and Defence of the second defendant raising the point actually to be filed.
On 5th December 1996 neither the solicitor handling the matter on behalf of the plaintiff nor counsel engaged in the matter were present in Court when the judgment was delivered. I gave leave to the plaintiff to put in written submissions as to why he should not have to pay the costs of that application, and such submissions have been lodged alleging that the defendants had been tardy in relation to interlocutory steps and pointing out that a request had been made for a Certificate of Readiness on numerous occasions. It is, however, I think not correct to say that the plaintiff's solicitors were not notified of the limitation point until after the application of 7th October 1996 was filed. The point was raised in letters of 18th and 27th September 1996.
I have considered the correspondence in relation to the matter exhibited to the affidavit of Mr. Manteit filed 7th October 1996. It was not a satisfying experience. The correspondence seems at times to have degenerated into little more than an exchange of threats and insults which achieve nothing useful by way of carrying the proceedings forward. It does seem that the defendants have taken rather longer than they should to progress the matter, but on the other hand, it seems to me that there has been a tendency on the part of the plaintiff's solicitors to forward Certificates of Readiness which were either clearly inappropriate or at least not clearly appropriate. There may well have been occasions when the application to dispense with the certificate would have been appropriate, but I think that by the time it was actually filed it has ceased to be appropriate, since there was insufficient reason to think that the raising of the limitation point was a mere delaying tactic, and it should have been obvious that if the point were raised, it had to be met by some further interlocutory step. It also seems to me that it should have been apparent not later than 24th October 1996 that further interlocutory steps were necessary, and the application should have been abandoned. I am concerned that it was apparently the persistence in this application which has led to the continued involvement of the first defendant's representatives in these proceedings, which was otherwise unnecessary. I am not going to encourage an excessively aggressive approach to the conduct of litigation.
In all the circumstances, I think it appropriate that the applicant/plaintiff pay the respondent/defendants' costs of and incidental to the application of 7th October 1996, including reserved costs, to be taxed in any event.
There is one further matter which has arisen. On 24th October 1996, I ordered that the second defendant pay the plaintiff's costs of the proceedings against the second defendant incurred after 25th September 1995 to be taxed on a solicitor and client basis, apart from the costs of the application under Rule 25. The plaintiff's solicitors have queried the continuing appropriateness of this order, given that the extension under s.31 of the Limitation of Actions Act means that the action will be proceeding, so that the costs incurred by the plaintiff during that period will not have been thrown away.
The reason for making that order was that I was concerned that the second defendant appeared to have a right under Rule 104 to amend to raise the limitation defence, subject only to the power of the Court to disallow that amendment. Where leave is required to amend the pleading once delivered, I would expect that ordinarily an amendment to a defence to raise a limitation point would be allowed only on terms that the defendant pay the plaintiff's costs incurred between the time when that defence ought to have been pleaded (that is when the defence was first delivered) and the time when leave is given to make the amendment. What I was seeking to achieve was the same practical result, given that it would have been open for the plaintiff to have applied to disallow the amendment, which order could have been made unless the second defendant had submitted to such an order as to costs. On 24th October I understood that counsel then appearing for the second defendant recognised the force of this point, and did not raise any objection based on the fact that there was not before the Court any application to disallow the amendment. Indeed there was some confusion on that day as to whether the amendment had actually been made or whether it was merely foreshadowed, since the application was filed in the Ipswich Registry on 11th October, and the filed document had not then found its way to the file in Brisbane where I was sitting.
I do not think that the fact that an order has now been made under s.31 changes the position. It would have been obvious that an application could be made under s.31, although not necessarily obvious that it would succeed, and it was always open to the second defendant not to take the limitation point. The order for costs which was made on 24th October was a product of the fact that the limitation defence was not raised at the time when it should have been raised, and that is not a matter which has changed in any way by the circumstance that an order has now been made under s.31. An order for the costs of that application has been made, which was principally based on the fact that that application should have been unnecessary because the plaintiff should have been able to commence the proceedings against the second defendant within time. I do not consider that there is any justification in my interfering with the costs order that I made on 24th October 1996.
In conclusion may I express the hope that there will be no further unproductive interlocutory skirmishing in this matter.
IN THE DISTRICT COURT HELD AT IPSWICH QUEENSLAND | No. 90 of 1994 |
BETWEEN:
KAZIMIERZ PETER KUBIK | Plaintiff |
AND:
THE IPSWICH GOLF CLUB | First Defendant |
AND:
GOLF WORLDS PRO SHOP PTY. LTD. | Second Defendant |
REASONS FOR JUDGMENT - McGILL S.C., D.C.J.
Delivered the 5th day of December, 1996
This is an application for an extension pursuant to s.31 of the Limitation of Actions Act 1974 of the period of limitation applicable to the plaintiff's action against the second defendant. By a plaint filed in the Ipswich Court on 18th November 1994, the plaintiff claimed damages for negligence or breach of duty or breach of contract against the Ipswich Golf Club arising out of an incident alleged to have occurred on 9th August 1992 when the plaintiff was riding in a golf cart on the defendant's golf course and was injured as a result of a fall from the cart. The plaint, in its original form, alleged in para.2 that the plaintiff entered into an agreement for the hire of the cart with the defendant club.
It is alleged that this injury occurred as a result of a breach of an implied term of the contract of hire, or in the alternative, because of the negligence of the defendant. The basis of the defendant's negligence is not clearly identified in the plaint, but it appears to extend to the duty as occupier of the golf course as well as a duty arising independently of contract from the fact of the hire of the cart. The particulars of negligence indicate that the plaintiff's allegation is that the cart was defective, causing it to accelerate erratically, and that it should have been fitted with a safety bar to prevent persons from falling from the bench seat.
By an Entry of Appearance and Defence filed on 14th March 1995, the defendant, after not admitting that the plaintiff had entered into an agreement for hire of a golf cart on 9th August 1992, denied that the plaintiff entered into the agreement with the defendant. That is in substance an allegation that any agreement which the plaintiff made was made with someone else, but does not amount to an allegation that any such agreement was made with a particular identified party.
The defendant's solicitors, on 28th December 1994, when requesting an extension of time for filing an Entry of Appearance and Defence, denied that the defendant owned, or accepted any fee for the hire of, the golf cart, but also did not identify any other particular entity as the other party to any hire contract (Affidavit G.W. Manteit sworn 4.8.95 Exhibit C).
In a further letter dated 21st July 1995, those solicitors repeated the allegation that the defendant did not own or take remuneration for the hire of the golf cart, but went on to assert that the hire had been from Golf Worlds Pro Shop Pty. Ltd. (Affidavit G.W. Manteit sworn 4.8.95 Exhibit D). The solicitors raised the question of the plaintiff's joining that company or the driver of the golf cart as defendants in the action. So far as the evidence before me indicates, this is the first occasion on which the defendant's solicitors identified a particular entity as being the other party to any contract which might have been made for the hire of the golf cart.
It appears from an affidavit of the plaintiff's solicitor, Mr. Manteit (filed 17 October 1996) that it was the receipt of this letter which prompted some serious consideration of the possibility of joining that company as second defendant, since counsel was requested to advise on this matter on 31st July 1995. The affidavit says that that advice was also sought in the light of discovered documents, said to have been received by the plaintiff's solicitors on 28th April 1995. It appears from the affidavit of Mr. Manteit filed 7th August 1995 that among these documents was a copy of an undated and unexecuted form of agreement between Ipswich Golf Club and Golf Worlds Pro Shop Pty. Ltd. for that company to operate the “pro shop” at the club (Exhibit E). The form of agreement contemplated that that company was to have the exclusive right to sell and repair golf equipment and conduct golf lessons at the Club and to conduct the professional golf shop at the Club with an obligation to carry on that business at specified times. The agreement was to run for a period of 5 years from 10th May 1987 with an option for a further period of 5 years. By Clause 7 of the agreement, the duties of the company included “to provide a golf equipment hire service”.
It appears from Mr. Manteit's affidavit filed 17th October 1996 that by 2nd August 1995, the decision had been taken to join Golf Worlds Pro Shop Pty. Ltd. as a defendant, and an application and supporting affidavit were forwarded to the Ipswich District Court by mail on 7th August 1995. On 9th August 1995, Wolfe D.C.J. ordered that that company be joined as a second defendant, and went on to order that an amended plaint in a particular form be filed and served, and dealt with the costs, but did not make any order to accommodate the circumstance that the limitation period in respect of the accident was about to expire.
Rule 25 provides that when a defendant is added, that defendant shall be served with the amended plaint, and the proceedings as against that defendant shall unless otherwise ordered be deemed to have begun only on such service being effected. The rule contemplates that the defendant may waive service, but that did not occur in the present case. It seems to me that it would have been possible for the amended plaint to have been served in time, although it would have been necessary for the plaintiff's solicitors to have moved quickly. The registered office of the company was at Springwood as appears from a search made on 21st July 1995 (Affidavit G.W. Manteit sworn 4.8.95 Exhibit F). The plaintiff's solicitors may not have appreciated the urgency of the matter however; in any event the order and amended plaint were not sent to the District Court in Ipswich until the following day (Affidavit H.A.R. Misso sworn 21.10.96 Exhibit A), and the amended plaint was served under cover of a letter to the second defendant dated 17th August 1995 (Affidavit G.W. Manteit sworn 16.10.96 paragraph 10).
The second defendant's solicitors also appear not to have appreciated the significance of Rule 25, since that defendant initially entered an appearance on 25th September 1995 which did not plead the Limitation Act (and see Affidavit H.A.R. Misso sworn 21.10.96 paragraph 14). However, the second defendant has on 11th October 1996 filed an Amended Entry of Appearance and Defence which does include such a plea, and appears to be entitled to do so pursuant to Rule 104. An application was made by the plaintiff under Rule 25 for an order that the proceedings be deemed to have begun against the second defendant on the date on which Wolfe D.C.J. made her order. On 24th October 1996, I heard that application and, for reasons which I then gave, refused to make such an order, on the ground that to do so would deprive the second defendant of a defence under the Limitation Act and the circumstances did not justify taking such a course. Hence this application, which was resisted.
Material Fact:
Clearly the action is one to which s.31 applies. As to subs. (2)(a), the plaintiff relies on the fact that it was the second defendant from whom the golf cart was hired as the material fact of a decisive character relating to the right of action which was not within his means of knowledge. At least in so far as the action is brought by way of breach of duty pursuant to a contract, or negligence arising out of the activities associated with the operation of the pro shop, the identity of the other party to the hiring contract and the operator of the shop is plainly a material fact of a decisive character relating to the right of action (see s.30(a)(ii)), and the contrary was not argued. The issue as to this paragraph was whether this material fact was not within the means of knowledge of the applicant. The plaintiff's affidavit evidence is that until July 1995 he did not know that fact. That proposition is not contradicted by evidence before me, and the plaintiff was not cross-examined on his affidavit. The second defendant did however argue that the fact was capable of being ascertained by the plaintiff and the question therefore is whether the plaintiff had before 9th August 1994 taken all reasonable steps to ascertain the fact: Castlemaine Perkins Ltd. v. McPhee [1979] Qd.R. 469 at 472.
In a context whether the relevant material fact was the extent of the plaintiff's injury, the Court of Appeal has said that:
“The question of whether the injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it and any other facts might be thought to call for prudent enquiry to protect one's health and legal rights....There is no requirement to take appropriate advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”
See Healy v. Femdale Pty. Ltd. (Appeal 37/92, 9 June 1993, Court of Appeal, at p.5). A similar approach should, in my opinion, be adopted to the question of whether the plaintiff in the present case took all reasonable steps to ascertain the relevant fact.
In my opinion it is a material circumstance that the plaintiff believed that the golf cart had been hired from the first defendant (plaintiff's affidavit, sworn 7.11.96). Unless it was unreasonable for him to hold that belief, there was as a result no reason for him to be concerned about making enquiries into the identity of the operator of the pro shop. In response the second defendant has put in evidence a photograph showing the pro shop with signs with the words “Golf World” and a drawing of a golfer. The affidavit of June Brosnan sworn 5th November 1996 asserts that these signs were in place as at 9th August 1992 and had been for some time prior to that and that there were further signs to the same effect at the golf course. The colours of the signs, yellow and black, were said to be corporate colours of the second defendant; these were also used on clothing worn by employees on the premises and paperwork produced by the second defendant. She also deposes to the fact that this separate identity of the second defendant, I assume under the name “Golf World”, has been advertised and promoted on television and in newspaper advertising in connection with the operation of the pro shop on the course.
There is no material to indicate the extent of the functions performed by the pro shop except for the unexecuted copy agreement, “Exhibit E”, referred to earlier. Clause 7 of that document provides that the duties of the second defendant include collecting visitor green fees and controlling the order of play and policing dress requirements as and when directed by the secretary/manager, in addition to the provision of a golf equipment hire service referred to earlier. I take it that controlling the order of play would involve taking bookings from individuals who wished to play at particular times. This suggests that there were things that were done at the pro shop which were done as agent for the Club, even if the pro shop was being used by some independent person to carry on a commercial business. The second defendant has not put in evidence that the hiring of golf carts was undertaken using written documents which identified the other party to the transaction as being the second defendant; indeed, there is some evidence that the golf cart in question was not owned by the second defendant at all, and the hiring may have been a somewhat informal exercise. If that were the case it would be unlikely to disabuse anyone who might otherwise believe that the golf club was responsible for hiring out the carts.
In the light of matters referred to in Mrs. Brosnan's affidavit, a reasonable person could well have come to the view that the cart was being hired out by some entity independent of the golf club, but, particularly in the absence of evidence showing that the involvement of a separate entity in the hiring of the carts was made express, I do not think it was unreasonable for the plaintiff to hold his belief that he was hiring the cart from the club. In those circumstances it did not become reasonable for him to make enquiries into the matter until something occurred to disabuse him of that belief or at least something occurred which would have disabused a reasonable man in his position of that belief: Castlemaine Perkins Ltd. v. McPhee [1979] Qd.R. 469 at 472. The first thing which is relied on by the second defendant for this purpose is the letter of 28th December 1994 from Messrs. Phillips Fox to the plaintiff's solicitors. That however was something which occurred after the commencement on 10th August 1994 of the year last preceding the expiration of the period of limitation for the action, and should therefore not be taken into account in determining whether para. (a) of subs. (2) has been satisfied.
In my opinion as at 9th August 1994 the relevant fact was not known to the plaintiff and he had before that time taken all reasonable steps to ascertain the fact, in the sense that in the circumstances to which I have referred it was not reasonable to have expected the plaintiff to have made enquiries to ascertain that fact. This is because at that time he still held a belief which, if true, would have made further enquiry unnecessary, and in my opinion it was not unreasonable for him to hold that belief, and nothing had occurred up to that time which would have disabused a reasonable man in his position of that belief. I am therefore satisfied of the requirements of para. (a) are made out.
Cause of action:
As to para. (b), the requirement of this paragraph was discussed by Macrossan C.J. in Wood v. Glaxo Australia Pty. Ltd. [1994] 2 Qd.R. 431 at pp.434-5. His Honour said there that it was recognised as wrong to place potential plaintiffs in anything like a situation where they must, on the probabilities, show that it is likely they will succeed in their actions, and that the Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time, particularly in a situation where proof of the case is difficult and very far from straightforward. That particular case involved an allegation that there was negligence in failing to warn about a possible adverse side effect of the use of a particular dye in a myelogram. His Honour said that the requirements of the section would be met if the plaintiff could point to the existence of evidence which could reasonably be expected would be available at the trial and which would, if unopposed by other evidence, be sufficient to prove the plaintiff's case. The other member of the majority in that case, Davies JA, did not express concurrence with these remarks, but His Honour's approach at p.445 to the question of whether para. (b) was satisfied is, I think, instructive in the circumstance of the present case. The third member of the Court dissented.
The approach of Macrossan C.J. appears to have received the approval of the Court of Appeal in Reeves v. Thomas Borthwick & Sons (Aust) Pty. Ltd. (Appeal 96/95, 11 August 1995) and Oats v. Mt. Isa Mines Ltd. (Appeal 98/95, 25 August 1995). In the latter case it was pointed out that the existence of facts to establish the cause of action may be inferred from the evidence which was put before the Court, including hearsay evidence (see also Grove v. Bestobell Industries Pty. Ltd. [1980] Qd.R. 12 at 18). The effect of the former decision was that the paragraph was not satisfied when the only evidence available on a particular vital point was evidence which would not have sustained a decision in favour of the plaintiff had the matter gone to trial: the only evidence to support a finding favourable to the plaintiff on the question of causation was said to be one medical opinion, that a causal link was “possible”. The Court said at p.6 of their joint reasons:
“It is not a function of s.31(2) to enable such an action to be instituted or prosecuted when, quite apart from any defence of limitation that may be raised, it will probably not succeed.”
In Duran v. Farquhar [1988] 1 Qd.R. 234 Thomas J. at p.239 pointed out that on an application under s.31 the Court cannot make queries or imagine circumstances, or put together a case not justified by the evidence as apparent evidence.
In the present case the evidence concerning the circumstances of the accident and seeking to show that there is a cause of action in negligence against the second defendant is really extremely thin. The plaintiff's affidavit sworn 24th October 1996 says only that on or about 9th August 1992 he sustained personal injury when he fell off a golf cart in which he was a passenger while playing golf at the Ipswich golf club, and that the cart was similar to one shown in a photograph and did not have a safety side rail illustrated in another photograph. The particulars of negligence in the plaint refer first to erratic acceleration of the cart, apparently because of some defect, but there is no evidence that the fall was caused in the present case by erratic acceleration or that that was due to any defect of the cart. Indeed, there is no evidence from which I could infer the existence of such evidence, apart from the fact that the allegations were made in the plaint (which can be used to draw an inference: Horne v. Commissioner of Main Roads [1991] 2 Qd.R. 38 at 45). The particulars of negligence also complain of a failure to put on a safety bar to prevent persons falling from the bench seat, and here the evidence to which I have referred does support an allegation that the golf cart in question was not fitted with a safety bar and that the fitting of a safety bar was something which could have been done, and I think I can draw the inference that the plaintiff's evidence would be that had that safety bar been in place, he would not have fallen in the way he did. I certainly do not regard it as obviously negligent to hire out a golf cart which is not filled with such a safety rail, but I can, I believe, infer that if the matter went to trial, the plaintiff would call evidence from a safety expert who would get him to the point where there was at least some evidence which, if uncontradicted, could be the basis for a finding in his favour. Giving full weight to the approach of Macrossan C.J. in Wood v. Glaxo (supra), it seems to me that the plaintiff has shown enough, just, to satisfy the requirement of para. (b). Nevertheless I do not think that the Chief Justice's remarks should be taken as an encouragement to plaintiffs making an application of this nature to put on only minimal evidence to show the existence of a cause of action.
Discretion:
It follows that the discretion in subs. (2) is enlivened in the present case, and I may extend the period of limitation so that it expires the end of one year after the date on which the material fact was first within the means of knowledge of the plaintiff. The affidavit of Mr. Misso sworn 11th October 1996 gives 17th August 1995 as the date on which the second defendant was actually served with the amended plaint, but it entered an appearance on 25th September 1995, and it would be safer and sufficient for the plaintiff's purposes if I extended the period of limitation until that date. If on the evidence I can be satisfied that the material fact was not within the means of knowledge of the plaintiff until some date after 25th September 1994, it seems to me that it is unnecessary to make a further finding of the particular date on which that material fact came to be within his means of knowledge. The situation is somewhat unusual in this case because the plaintiff requires only a very short extension of the limitation period. It follows from what I said earlier that the earliest date after August 1994 of something relied on as putting the plaintiff on enquiry, so to speak, the letter of 28th December 1994 (apparently received on 3rd January 1995), came after this date, so it seems to me that on any view of the evidence, if the discretion is to be exercised in favour of the plaintiff, it can be exercised so as to extend the period of limitation until at least 25th September 1995.
The question then is whether the discretion should be exercised in favour of the plaintiff. Such an order should not be made lightly, nor should the discretion be approached on the basis that the plaintiff is entitled to an extension unless the defendant can show prejudice as a result of the delay: Brisbane South Regional Health Authority v. Taylor (High Court of Australia, 2/10/96). Nevertheless any prejudice to the defendant is relevant, and that decision also demonstrates that, when considering the question of prejudice, it is inappropriate to look merely at any additional prejudice suffered during the period between the expiration of the limitation period and the date to which it is to be extended.
One element of prejudice particularly relied on by counsel for the second defendant was that it was alleged to be likely that the second defendant has lost the right to claim indemnity from the insurer that it had at the time of the incident. The second defendant appears to have disposed of the pro shop business in 1995, (Affidavit J.P. Brosnan sworn 5.11.96) and no longer maintains the insurance policy. The fact that the second defendant has prior to the time when the notice of the claim first came to its attention ceased to maintain liability insurance which would have provided cover in respect of the plaintiff's claim if successful seems to me to be capable of amounting to prejudice. Whether that was in fact the situation would depend on whether cover was provided by reference to “claims made” during the period of insurance, or by reference to “events occurring” during the period of insurance. Counsel for the second defendant has tendered as a copy of the policy wording a document (Exhibit 1) which provided that an insurer named in the schedule agreed to indemnify relevantly the second defendant “for all amounts which the insured shall become legally liable to pay by way of compensation....in respect of personal injury...caused by an occurrence in connection with the business and occurring...during the period of cover.” The term “occurrence” is defined as an event which results in personal injury neither expected for intended from the standpoint of the insured. For present purposes it would seem that the relevant occurrence was the accident suffered by the plaintiff, which is alleged to have occurred on 9th August 1992. A certificate of currency of a policy in respect of the period from May 1991 to May 1992 shows that the second defendant was one of the insureds under the policy, and there is a further certificate showing that the same policy was in force for a period of 12 months from 15th May 1992, which period included the date of the plaintiff's accident. FAI General Insurance Co. Ltd. was the insurer named in the schedule.
It was a condition of the policy that notice to the insurer be given as soon as possible of every occurrence in respect of which there may arise liability under the policy, and it appears from the affidavit of Mrs. Brosnan that notice was given to their insurance broker effectively immediately the fact of the plaintiff's claim first came to her attention. The letter from FAI Insurance (Exhibit 2) shows that that company received notice during August 1995 from the broker. That company has by letter dated 31st August 1995 (Exhibit 2) rejected liability, but on the basis that the manager of the second defendant's business at Ipswich was acting outside the scope of his employment in renting privately owned golf carts on a commission basis. That appears to be based on the proposition there is no liability in the second defendant which could be the subject of a claim for indemnity. Obviously if there is no liability there is nothing for FAI to indemnify, but that does not provide a justification for refusing to indemnify if the second defendant is found liable.
There may well be proceedings in due course between the second defendant and FAI, and I obviously cannot arrive at any final conclusion on the matter in the absence of argument from that company. For the purpose of deciding this application, however, in determining whether the second defendant has shown prejudice, it seems to me that the material before me does not demonstrate that the second defendant has suffered prejudice because of a loss of liability insurance which had been maintained at the date of the incident.
The second defendant also complains about the delay in having the matter investigated, and that the golf cart is no longer available for examination. I suspect that any examination now conducted on it would be unlikely to reveal anything useful as to the state of the accelerator in August 1992. It appears however that the manager of the shop, a Mr. Jones, was aware of the incident at the time but had not done anything about it as he thought it was the responsibility of the first defendant: Affidavit of J.P. Brosnan sworn 5.11.96 para.20. That provides some support for the conclusion that it was not unreasonable for the plaintiff to have taken the same view at the time. I do not consider that the delay has been such as to make it unlikely that a trial could be conducted which would be fair to the second defendant: Taylor (supra) at p.8 per Toohey and Gummow JJ.
In the present case the extension of the limitation period required is relatively short. The plaintiff in fact became aware of the material fact only shortly before the limitation period expired, and the need for an extension appears to be because of the failure of his solicitors to appreciate the significance of Rule 25 rather than because of any inactivity on his part. Although there is another defendant, in the circumstances of this particular case, it is easy to see that the plaintiff's prospects of recovering from anyone in respect of his injuries may well depend on the extension being given. In any case, it is sufficient for the plaintiff to show that the second defendant might be liable at least to contribute to the damages: Baker v. Australian Asbestos Insulations Pty. Ltd. [1984] 3 N.S.W.L.R. 595 at 611. If this were not so, a plaintiff who could show that one of two defendants who could be property joined under rule 20 was probably negligent but could not say which could not obtain an extension under s.31 against either.
On the other hand, there will be some difficulty caused to the second defendant by the delay in bringing the claim, and the second defendant will now be exposed to the burden of conducting litigation, which apparently is also going to involve the need to pursue third party proceedings against its insurer. I do not consider that the other matters referred to in the affidavit of Mr. Misso sworn 11th October 1996 are of any significant weight against exercising the discretion. I do not consider that there has been significant delay in making this application, bearing in mind that the Limitation Act point was only taken in mid-September 1996: Affidavit of G.W. Manteit sworn 3.10.96 Exhibit GWM29. There are therefore considerations either way, but on the whole I think those favouring the exercise of the discretion outweigh those indicating to the contrary, and I am therefore prepared to order that the period of limitation for the plaintiff's action against the second defendant be extended so that it expires on 25th September 1995. Nevertheless I think the plaintiff should pay the second defendant's costs of the application in any event.