Pikia v Sawyer[1998] QDC 55

BETWEEN:

AND

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 2nd day of March 1998

On 4 February 1997, solicitors for Charles Pikia (“the plaintiff”) filed a plaint in this Court on his behalf claiming against Mr. & Mrs. Sawyer (“the defendants”) damages for negligence. The claim alleges that the defendants are liable to pay damages in respect of an injury alleged to have been suffered by the plaintiff in an accident on 28 January 1995 when the plaintiff slipped on oil and grease and fell: para. 3. The particulars of negligence are wide enough to cover liability on the basis that the defendants were responsible for the presence of the oil and grease on which the plaintiff fell, and on the basis that the defendants were the occupiers of the place where the plaintiff fell, so that the defendants were liable because of the state of that place, even if they had not themselves put the oil and grease there.

On 18 March 1997 the defendants filed an Entry of Appearance and Defence in which they denied negligence on either of the bases alleged and denied that they owed the plaintiff a duty to maintain the area where he fell in a safe and serviceable condition.

By summons filed on 14 January 1998, the plaintiff sought leave to join a partnership, constituted by the plaintiff and his wife, as second plaintiffs in the action, and to join the Shell Company of Australia Limited (“Shell”) as second defendant in the action. That summons was adjourned by consent on 21 January 1998, its return date, to 5 February 1998, when it came on for hearing. At that time the plaintiff also sought an extension of the limitation period against the defendants, and Shell, on behalf of himself and the proposed plaintiff. No point was taken about the failure to refer to this relief in the summons; evidently the defendants, and Shell, had notice of the intention to make this application, as both parties appeared and argued against it.

The reason for the proposed involvement of Shell is that it is alleged to be the owner of the land where these events occurred. The defendants were apparently tenants of Shell, and it had been thought that the area of the tenancy included the place where the plaintiff fell, which is an area outside of but adjacent to the part of a building occupied by the defendants. However, a copy of the lease document produced on discovery by the defendants late last year suggests that the area in question was not included in the lease, which was confined to part of the building, and in these circumstances the plaintiff wishes to allege that Shell was responsible for the relevant area at the relevant time.

At the time of his fall the plaintiff was carrying on business in partnership with his wife. In view of the decision of the Court of Appeal in Seymour v. Gough [1996] 1 Qd.R. 89, it appears that the plaintiff may recover a reduced amount by way of economic loss because part of the financial loss alleged to have been suffered by the plaintiff as a result of the accident fell on his wife under the partnership agreement. It is with a view to overcoming this difficulty that the application was made to join the partnership.

Joinder of Parties

There is power to join both a plaintiff and a defendant under the Rules: Rule 14 permits a plaintiff to be added and Rule 23 permits both plaintiffs and defendants to be added. In addition the exercise of the power under o. 32 r. 1 of the Rules of the Supreme Court, made applicable by Rule 4(1) - Jiminez v. Jayform Contracting Pty Ltd [1993] 1 Qd.R. 610 - may have the effect of substituting a party. Except where that power is relied on, the limitation statute applies to the party joined on the basis that the suit was brought by or against that party as at the date of joinder, not the date of filing of the plaint: Hayward v. Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd.R. 153 at 159. It was decided in that case that, at least in the Supreme Court, there is power to order that joinder of a plaintiff may be treated as effective from a date earlier than the date of the order though not earlier than the issue of a writ, in special or peculiar circumstances, notwithstanding that this would deprive the defendant of a defence under the Limitations of Actions Act, p. 74. For present purposes it is unnecessary to consider this, in view of the applications made to extend the limitation period. As pointed out in Hayward, a plaintiff may be joined without a backdating order after the limitation period has expired if it appeared possible that the time bar would not be pleaded: p. 160. In my opinion, another situation where it is proper to join a plaintiff in those circumstances is if an order is also made extending the period of limitation so that the action is no longer barred. However, a party should not be joined if the claim made by the party, or against the party, is one that, had it been made initially, would have been struck out on application for that purpose under rule 109 on the ground that it did not disclose any reasonable cause of action.

Extension of Limitation Period

There is no application for an extension in respect of the claim against the existing defendants; on any view of the facts that claim is within time. It is therefore convenient to deal first with the applications under the Limitations of Actions Act against Shell. So far as the claim against Shell is concerned, the matter is complicated by the fact that if the accident did occur on the date alleged in the plaint, 28 January 1995, there is no difficulty about the limitation period, because the original application came on before the period of three years had expired, and was adjourned by consent on the basis of an agreement by, relevantly, Shell, that it would not take any limitation point arising because of the adjournment although the adjourned date is more than three years since the date of accident alleged in the plaint. That agreement was admitted before me, and indeed I was asked to grant an extension of the limitation period under s. 31 anyway in order to reflect it, if not to do more. In my opinion, the fact that a defendant has entered into such an agreement does not give the Court jurisdiction to make an order under s. 31 to give effect to it. Rather, a court would, if necessary, strike out any defence which failed to reflect such an agreement as was admitted, or, if disputed, as was found by the Court to have occurred.

The material fact of a decisive character relied on on behalf of the plaintiff was that it was Shell that was responsible for the place where the plaintiff fell. The plaintiff had worked in his business under an informal sub-lease from the defendants and could, I think, reasonably have concluded that they were in occupation of the relevant area on the basis of his personal observation. It was submitted on behalf of Shell that the fact that Shell was the owner of the premises was within the means of knowledge of the plaintiff, and it is no doubt true that this is a fact which could have been ascertained by undertaking a search in the Titles Office at any time. However, it appears that the lease of the relevant premises was not registered, and under those circumstances the fact that the defendants' tenancy did not include the relevant place was not something which could have been ascertained by such a search.

It appears that what occurred is that, when the defendants filed an affidavit of documents on 14 July 1997, one of the documents listed is described as “Lease of Other Premises, namely truck servicing/weighbridge, Shell Rocklea transport terminal from the Shell Company of Australian Limited to K.B. Haulage Lubrications for a period ending on 31/07/91.” By a letter dated 18 December and received on 23 December 1997, the solicitors for the defendants sent to the solicitors for the plaintiff a copy of the document which had been so described. The premises leased are described as part of the land situated at the corner of Ipswich Road and Shettleton Street, Rocklea, having the street address 1728 Ipswich Road, Rocklea, and contained in a particular Certificate of Title, as outlined in red on the plan annexed to the lease. The plan outlines an office, workshop and weighbridge which is part of a larger area of land. Although that larger area of land is not clearly identified in these terms on the plan, I think the reasonable inference is that it is the land described in the quoted Certificate of Title and thus identified by this document as the land owned by Shell, at least in 1991. In the absence of evidence to the contrary, I can rely on the presumption of continuance in relation to the ownership by Shell. It is alleged in the plaint that the defendants conducted business at the address identified in this lease, and let to the plaintiff a tyre bay forming part of those premises, which allegations are admitted in the Entry of Appearance and Defence filed on 18 March 1997. The inference seems to be that the defendants were occupying the tenancy formally occupied by KB Haulage Lubrications. The somewhat misleading description of the document as “Lease of Other Premises” arises because the document is on a standard form, issued by Shell, termed “lease of other premises”; apparently Shell has standard forms of lease document for certain types of premises and a standard form for “other premises”, and it was one of the latter forms which was used here.

Where a claim is brought on the basis of occupier's liability, the identity of the occupier of the relevant land at the relevant time is, in my opinion, plainly a material fact of a decisive character relating to the right of action. As to whether it was within his means of knowledge, that depends on whether the plaintiff knew the fact or so far as it was capable of being ascertained by him, he had taken all reasonable steps to ascertain the fact: s. 30(d)(ii). It is established however that there is no requirement to take steps to ascertain facts if in all the circumstances it would not be reasonable to expect the plaintiff to have done so, since the question of what are reasonable steps to ascertain facts depends on the extent to which the known facts might be thought to call for prudent inquiry: see Healy v. Femdale Pty Ltd (App 37/92,9 June 1993, Court of Appeal at p. 5). In view of the plaintiff's personal familiarity of the situation in this area, I think it was not reasonable to expect that he would make inquiries to ascertain who the occupier was until the question became significant when the document was produced by the defendants.

It was also argued on behalf of Shell that there was no evidence that Shell was the owner of the land at the relevant time. It must appear to the Court that there is evidence to establish a right of action apart from a defence founded on the expiration of a period of limitation (s. 31(2)(b)), but it is established that it is unnecessary for the plaintiff to adduce the evidence which would have to be relied on at trial in order to prove his case. What he must establish is that evidence exists and can be adduced at a trial, but that evidence may be inferred. In the present case there are statements in the lease document to which I have referred, and in letters from the solicitors for the defendants, to the effect that Shell was the owner of the premises, and this material, although not admissible against Shell at the moment, can, I think, properly give rise to an inference that if the matter proceeds to trial there will be evidence admissible against Shell to support the proposition that it was the owner of the land at the relevant time. I do not have to be satisfied at this stage that that proposition will necessarily be proved at the trial. I think that there is a sufficient basis for drawing an inference sufficient to satisfy the requirements of the subsection; I am prepared to draw that inference more readily in circumstances where there is no evidence to contradict the proposition that Shell was the owner of the land at the relevant time.

There was no argument about whether any other element of the right of action could be sustained for the purposes of subsection (2)(b). I am satisfied therefore that the requirements of both limbs of that subsection are made out. It follows that there is a discretion to extend the period of limitation.

It does not necessarily follow however that the discretion is to be exercised; there is no presumptive right to an order once the conditions in subsection (2) are satisfied: Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866. One relevant consideration is whether the extension would significantly prejudice the prospective defendant, and no prejudice was alleged in argument. There is also the consideration that, if the accident occurred at the time the plaintiff alleges it did, an extension is unnecessary. It follows that, whether or not this extension is granted, the plaintiff can and no doubt will pursue a claim against Shell in any event, the only difference being that if there is no extension Shell will be able to sustain a defence under the Limitation Act by showing that the accident occurred in November 1994. I should say that the defendants solicitors have put forward evidence in the form of notes made by various doctors which suggest that the plaintiff in the past has told his doctors that the fall occurred in November 1994, rather than on 28 January 1995.

The question of when the plaintiff fell cannot, of course, be a relevant material fact of a decisive character, because it was within the plaintiff's knowledge at the time that he did fall. Even if he was not immediately cognisant of the fact that he had suffered an injury, it is clear from the medical notes that he was complaining about such injury in early 1995 and it follows that he was then aware that he had suffered an injury in the fall. Section 31(2)(a) operates on the basis that the material fact of a decisive character is not within the means of knowledge until after a particular date. In my opinion such a requirement cannot be satisfied if the material fact was within the plaintiff's means of knowledge at any earlier time, even if he had forgotten it before the date specified in the subsection. This therefore is a consideration against the exercise of the discretion, since any problems associated with this aspect of the timing of the plaintiff's case are not problems that s. 31 was intended to overcome.

On the other hand, if Shell is going to be exposed to litigation in any event, it will not have the benefit of the four broad rationales for the enactment of the limitation period referred to by McHugh J in Taylor (supra) p. 871: the likelihood of evidence of being lost, the oppression of an action being brought long after the circumstances have passed, the capacity to arrange one's affairs on the basis that no claim will be made, and the public interest in disputes being settled as quickly as possible. In the present case if there is a defence under the Limitation Act it will be because of a delay of only a few months at the most.

Once the lease was provided, the plaintiff's solicitors responded promptly. On the following day they called on the defendants to refrain from taking any point about the relevant place being outside their tenancy, but the defendants refused to give that undertaking by letter received on 6 January 1998, and, after Counsel was consulted, the summons was filed on 14 January 1998. It was subsequently adjourned by consent.

Overall therefore, in my opinion, it is appropriate to exercise the discretion and to extend the limitation period.

There was no argument about the date upon which the material fact came within the applicant's means of knowledge, but consistent with the earlier analysis, the earliest reasonable date would be the date on which the copy of the lease was received by the plaintiff's solicitors, which was 23 December 1997: Exhibit KR3. Strictly speaking, the plaintiff must prove the date on which the material fact came within his means of knowledge: Castlemaine Perkins Ltd v. McPhee [1979] Qd.R. 469 at 471-2. In circumstances such as the present, I think it is sufficient to assume that it was that date, and therefore the effect of an exercise of discretion in favour of the plaintiff is that I extend the period of limitation so that it expires at the end of one year after that date, namely 24 December 1998. It is therefore appropriate to join Shell as an additional defendant.

Partnership Cause of Action

With regard to the proposed additional plaintiff, the difficulty here is that there is authority that the plaintiff's wife has no cause of action in respect of injuries suffered by the plaintiff arising out of the fact that she was in partnership with him at the relevant time. In Karko v Greir (Toowoomba Writ 4/91, Thomas J, 7.7.95, unreported), His Honour dealt with this situation and concluded:

That decision was the subject of an appeal which was successful, but on other grounds: Appeal 154/95, 12.4.96, unreported. This aspect of His Honour's decision was not in issue, and the damages awarded to the injured partner, although re-assessed by the majority of the Court of Appeal, were still assessed on the basis that she lost only half of the net income of the partnership.

In Hebblewhite v. Email Metals Pty Ltd (Townsville Writ 10/92, Cullinane J, 22.3.96, unreported), His Honour dealt with an application to add the plaintiff's wife as a second plaintiff in an action where the plaintiff was claiming damages for negligence. As here, the plaintiff was claiming that he would sustain economic loss, and at the relevant time he conducted a business in partnership with his wife. The application was prompted by the decision in Seymour v. Gough (supra). Although the application was made outside the limitation period, His Honour did not deal with that aspect of the matter, refusing the application on the basis that the claim sought to be raised was not maintainable at law.

Council for the plaintiff did not dispute these authorities, but sought to distinguish them on the basis that in this case the defendants had actual knowledge that the plaintiff was carrying on business in partnership, that his wife was the partner, and that the plaintiff was the only person who worked physically in the business, so that his wife would necessarily suffer economic loss if the plaintiff were unable to earn income for the partnership. It was alleged that there was a certificate, a copy of which is Exhibit KR6, displayed at the premises where the plaintiff worked. This shows that the work place was occupied by the plaintiff and his wife, trading as “Charlys Placement Tyres”, and that the maximum number of persons working there was one. Mr. Robinson deposes to the fact that the plaintiff's instructions are that each of the defendants had come into the room where the certificate was displayed and read the certificate: para 8(a).

Counsel for the plaintiff relied on the statement by Gibbs J in Caltex Oil (Australia) Pty Ltd v. The Dredge “Willemstad” (1976) 136 CLR 529 at 555:

Stephen J also regarded the appellant as being within the reasonable contemplation of the defendants as a person likely to suffer economic loss if the pipelines were cut: p. 577. Mason J at p. 593 said:

Counsel for the plaintiff argued that in this case, given knowledge by the defendants of the partnership, and of the fact that the plaintiff was the only working partner, the defendants knew of the plaintiff's wife as a specific individual who would foreseeably suffer financial loss as a consequence of injury to the plaintiff, so that the claim was within the scope of that decision.

However, Gibbs J had also said earlier at p. 549, that:

The passage quoted from p. 555 is not, in my opinion, saying that the defendant will owe a duty to a plaintiff where he has knowledge or means of knowledge that the plaintiff individually and not as a member of an ascertained class will be likely to suffer economic loss as a consequence of his negligence; His Honour coupled that requirement with a requirement that the defendant “owes the plaintiff a duty to take care not to cause him such damage by his negligent act”. That His Honour was not intending to formulate a principle defining the existence of such a duty is apparent from the sentence which follows on p. 555:

Stephen J made the same point at p. 575:

Plainly, their Honours were not intending to say that regardless of existing law limiting recovery for economic loss, in any case where loss to the plaintiff as an individual was reasonably foreseeable, the defendant owed a duty.

Jacobs J also referred to the question of loss caused to a third party by negligently causing injury, at p. 598:

Although some of the language in the “Willemstad” is very broad, it has not led to the wholesale opening up of recovery for losses suffered by relational interests. In the words of Professor Fleming in the “Law of Torts” (8th ed., 1992) at p. 183: “This decision has remained isolated”. He also said, at p. 179, in relation to the recovery of economic loss consequential on physical loss:

It appears that this proposition survived the decision of the High Court in the “Willemstad” case.

Counsel for the defendants relied on the decision of the Full Court of Western Australia in Foodlands Association Ltd v. Mosscrop [1985] WAR 215, to the effect that knowledge of the partnership is not a meaningful distinction. Burt CJ, with whose judgment the other members of the Court agreed, said at p. 221:

The decision in Foodlands Association Ltd v. Mosscrop (supra) was referred to with approval by the Full Court in Harris v. Grigg [1988] 1 Qd.R. 514. In this case it was held inter alia that no action lay by a wife against a tortfeasor who had negligently caused injury to her husband; an argument that it was open to the wife to claim pursuant to general principles upon the basis that she had suffered loss which loss was reasonably foreseeable by the tortfeasor at the relevant time (p. 517) was rejected. Dowsett J (with whose judgment the other members of the Court agreed) at p. 520 expressed his conclusion on this aspect of the case, after referring to Mosscrop and the proposition stated by Gibbs J in “Willemstad” at p. 546:

Although this statement is not wide enough to amount to a decision of the Full Court binding on me and inconsistent with the existence of a duty such as the plaintiff alleges, I do not think it provides any support for the plaintiff, and if anything weighs against the plaintiff's argument.

The decision in Harris v. Grigg (supra) was followed and applied by Demack J in Locher v. Turner (1995) Aust. Torts Reports, 81-336, in a medical negligence case where the wife was the patient, but the doctor knew that she was married; evidently His Honour did not regard this as a significant distinction. It did not appear in that case however that the wife was, through negligence, prevented from working in a partnership with the husband so as to cause him loss of income in that way.

The decision in Foodlands v. Mosscrop (supra) is directly on point, and in my opinion highly persuasive. Indeed, in my respectful opinion it is correct. The proposition formulated by Gibbs J which was relied on by their Honours, and which as far as I am aware has not been resiled from by the High Court subsequently, is inconsistent with the proposition that a claim by the partnership of the plaintiff and his wife (or perhaps more correctly, the plaintiff's wife, because the plaintiff is already a party and the relevant claim would be that in respect of the loss suffered by the wife) is maintainable. However, the question arises then whether I should refuse to allow the claim to go forward on the basis that I think it is bad in law. Leaving aside considerations of the limitation period, the relevant test in my opinion should be similar to that applied under Rule 109. That power should ordinarily be exercised only when the claim is obviously untenable: General Steel Industries Inc v. Commissioner for Railways (1964) 112 CLR 125 at 129. Questions of law are not ordinarily decided in a summary way, unless they are clear. The question then is whether it is sufficiently clear that the law is against the proposed claim by the partnership to justify my refusing to allow the claim to go forward to trial in the light of the authorities.

But for one consideration. I would readily conclude that it was; the limits of liability for negligence, particularly negligently causing economic loss, like the limits of the former Russian Empire, may be well defined but are not always in the same place^[1]. Decisions such as Bryan v. Maloney (1995) 182 CLR 609, Hill v. Van Erp (1997) 71 ALJR 487. Northern Sandblasting Pty Ltd v. Harris (1997) 71 ALJR 1428 and Pyrenees Shire Council v. Dav (1998) HCA 3, vol. 19, 1 Leg.Rep. 2, encourage uncertainty in relation to the boundaries of the law of negligence, and suggest that, whatever the existing authorities may say, there is always the possibility that if a particular fact situation comes before the High Court, that Court will now say that there was a duty of care owed to a particular plaintiff. These cases discuss developing concepts of proximity, reliance and assumption of responsibility, but not as indicating a definitive test of the existence of a duty. In Hill v. Van Erp (supra) Brennan CJ said that a duty could arise other than where the defendant had undertaken responsibility to exercise reasonable care: p. 492. Dawson J at p. 501 said that the assumption of responsibility by a defendant and reliance or request by a plaintiff would not be determinative in circumstances where there was no threat of undesirable policy consequences from the recognition of liability. Gaudron J was of the view that a duty of care would arise to avoid causing economic loss if there was a relationship of proximity between the plaintiff and the defendant: p. 505. McHugh J who dissented, expressed the view that there was no general duty to prevent economic loss to another, and at p. 515 referred with approval to an article by an English academic arguing that “the outcome of three decades of litigation is .... a complex, uncertain and anomalous pattern of decisions.”

Some guidance as to the approach to an application of this nature may be found in the judgment of the Full Court in National Mutual Life Association of Australasia Ltd v. Coffey & Partners Ltd [1991] 2 Qd.R. 401, where the Court allowed an appeal from a decision striking out a statement of claim on the ground that no reasonable cause of action was disclosed by it. In that case the defendants had been engaged by the then owner of land to investigate and determine the appropriate foundation system for use in the construction of an industrial building. It was alleged that they did this work negligently, so that the foundations were inadequate, and further that they had negligently failed to rectify the problem during construction. The then owner sold the land to the plaintiff, and the question arose whether the plaintiff had an action against the engineers responsible for the design of the foundations. Connolly J, with whose judgment the other members of the Court agreed, approached the case on the basis that it depended on the existence of a duty not to cause economic loss, and referred to Sutherland Shire Council v. Heyman (1985) 157 CLR 424. He noted that whether a duty arose was not the subject of a binding decision in Australia, but thought there were powerful reasons for believing that such a duty was owed and that succession to the ownership of the building should be regarded as creating a relationship of the necessary proximity. At p. 407 he said that once it appeared that there was a real question to be determined, whether of fact or law, it was not appropriate to dismiss the action in a summary way, and referred to Dey v. Victorian Railways Commissioner (1949) 78 CLR 62 at 91. He thought it clear that the pleadings should not have been struck out on the basis that the necessary relationship to found the cause of action could not exist between the designing and supervising engineers and the subsequent purchaser: p. 406. See also Harris v. Grigg [1988] 1 Qd.R. 514 at 516. These decisions encourage caution when a judge is being asked to strike out an action on the ground that as a matter of law there was no duty owed to the plaintiff, or by analogy where a judge is asked to refuse to join as a plaintiff a person to whom it is argued that no duty was owed.

On the other hand, in the present case, the proposition that there was a duty owed to the partnership is directly inconsistent with statements of principle by two of the judges in the leading Australian authority on liability for pure economic loss, which have been followed and applied in this situation by two single judges of the Supreme Court of Queensland, and which an appellate court in another State has treated as leading to the conclusion that there is no duty in precisely this situation. Furthermore, at least one judge of the Supreme Court of Queensland has, in Hebblewhite (supra) refused an application to join a plaintiff on the precise grounds that I am asked to refuse this application, so that considerations of judicial comity support my rejection of this application.

In view of these considerations, I think it is sufficiently clear that there is no cause of action by the partnership against the defendants, even if the defendants knew that the plaintiff's wife was in partnership with the plaintiff, and that the plaintiff was the working partner, so that injury to the plaintiff preventing him from working must have caused economic loss to his wife. In my opinion it is sufficiently clear that the proposed additional plaintiff does not have a cause of action to justify my refusing the application to join the partnership in order to permit it to pursue a claim against the defendants.

The plaintiff's wife has a claim for damages for loss of consortium, pursuant to s. 13 of the Law Reform Act 1995, formerly s. 3 of the Law Reform (Husband and Wife) Act 1968. This legislation was in response to the decision of the Full Court in Harris v. Grigg [1988] 1 Qd.R. 514 confirming earlier authority that a wife had no claim for loss of consortium or loss of servitium in respect of injury caused negligently to her husband. This claim however is limited to the traditional basis on which damages in favour of a husband for loss of consortium would be assessed: subsection 2. These were defined by the High Court in Toohey v. Hollier (1955) 92 CLR 618 at 624:

See also at p. 627:

Such a claim would not extend to financial loss which the plaintiff suffered as a result of the wife's diminished capacity to earn income in partnership with him: Behrens v. Bertam Mills Circus [1957] 2 QB 1. “He must claim qua husband, not qua employer or business partner”: Fleming “The Law of Torts”, 8th ed., 1992, p. 659. It follows that the plaintiff's wife cannot, by way of an action for loss of consortium, claim damages for economic loss consequent upon the plaintiff's inability to work in their partnership. The proposed amended plaint, which is Exhibit C of the affidavit of Mr. Brown, does not include any claim for loss of consortium, and any such claim ought to be pursued by the wife rather than by the partnership, so it is unnecessary to consider this matter further.

It follows a fortiori that there is no claim against Shell either; indeed, counsel for the plaintiff conceded that on the existing authorities it was clear that there was no such claim. The partnership therefore ought not to be joined at all. In these circumstances it is unnecessary for me to consider whether an application to extend the limitation period in favour of the partnership should be allowed. I should say for the sake of completeness however that the considerations which justify an extension in respect of the plaintiff's claim against Shell would also justify an extension of the partnership's claim against Shell, if the partnership was able to satisfy the requirements of s. 31(2)(b). It necessarily follows from my analysis earlier that the partnership cannot satisfy those requirements, since in my opinion as a matter of law there is no such claim available. I am not sure whether it would be sufficient to satisfy that test, in relation to a consideration of law, for an applicant to show that he had a sufficiently arguable case on the law to prevent his claim from being struck out on the basis that it disclosed no reasonable cause of action. With regard to an extension in favour of the partnership as against the defendants, there is the further difficulty that I cannot identify any material fact of a decisive character which satisfies the requirements of s. 31(2)(a). The “fact” that the decision in Seymour v. Gough (supra) made it appropriate to cast about to find some other way to recover that half of the economic loss which would no longer be recoverable by the injured partner, in a case such as this, would not satisfy that test: Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234.

It follows that I am prepared to join Shell as a defendant but will not join the partnership as a plaintiff. I am prepared to extend the limitation period as against Shell to 23 December 1998, but the application for an extension of the limitation period against the defendants is refused. There will be leave to amend the plaint accordingly. I will hear submissions in relation to costs, but my tentative view is that the plaintiff should pay the defendants' costs of and incidental to the application to be taxed in any event, and there should otherwise be no order as to costs.