Filep v AMP Capital Investors Ltd & Anor [2016] QDC 300

DISTRICT COURT OF QUEENSLAND CITATION: Filep v AMP Capital Investors Ltd & Anor [2016] QDC 300 PARTIES: ALEXSANDRA FILEP (applicant) v AMP CAPITAL INVESTORS LIMITED (first respondent) and AIRLITE CLEANING PTY LTD (second respondent) FILE NO/S: D111/16 DIVISION: Civil PROCEEDING: Originating Application ORIGINATING COURT: District Court at Southport DELIVERED ON: 25 November 2016 DELIVERED AT: Brisbane HEARING DATE: 7 November 2016 JUDGE: Rackemann DCJ ORDER: The application is dismissed. CATCHWORDS: LIMITATION OF ACTIONS – TORTS AND PERSONAL INJURY – application pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 – discretion – where delay in bringing application – where applicant’s solicitor’s negligent – whether applicant ought to have done more – where claim relates to an incident some 6 years ago – prejudice to the respondents COUNSEL: M.J. Smith for the applicant B.F. Charrington for the first respondent SOLICITORS: Parker Simmonds for the applicant Barry Nilsson Lawyers for the first respondent Carter Newell for the second respondent -- 1 of 18 -- 2 [1] This is an application, pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (“PIPA”), for leave to start a proceeding at a time which outside the period of limitation. Section 59 of PIPA provides as follows: “59 Alteration of period of limitation (1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended. (2) However, the proceeding may be started after the end of the period of limitation only if it is started within— (a) 6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or (b) a longer period allowed by the court. (3) Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends. (4) If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part. [2] The applicant’s claim relates to an incident said to have occurred in June 2010 when she says she suffered a slip and fall accident in the car park of the first respondent’s shopping centre. The second respondent was the cleaning contractor at the time. [3] The incident was described in the notice of claim as follows: “I parked the car in the upper level car park. I got out of the car and slipped on the car park flooring. I landed on my bottom and rolling onto my side. Following my fall I noticed that the ground was wet.” [4] In a statutory declaration made much later, on 2 September 2013,1 the applicant said that she believed the wet area to be a puddle of water over an ‘oily’ substance. 1 Affidavit of Simmonds Ex BFS 32. -- 2 of 18 -- 3 [5] A notice of claim was given to the first respondent on 1 April 2011.2 It alleged that the incident occurred on 23 June 2010. A notice of claim was not given to the second respondent until on or about 11 April 2012.3 Correspondence then ensued about the reasons for the delay. On 22 February 2013 the second respondent accepted the notice of claim as compliant.4 In the meantime, the solicitors for the claimant wrote, on 14 November 2012, correcting the date of the alleged incident to 6 June 2010. [6] As of May 2013, the expiration of the limitation period was fast approaching, but the parties had not completed pre-litigation steps. In particular, whilst the applicant had provided a deal of information to the respondents,5 no compulsory conference had been convened. The applicant’s solicitor wrote to the respondents seeking informal agreement to “extensions” of the limitation period, first to 6 December 2013 and then to 6 March 2014. The respondents agreed.6 Some further information was provided to the respondent’s during this extended period. [7] In November 2013 the applicant’s solicitor asserted that the matter was ready to progress to a compulsory conference.7 On 11 February 2014, the solicitor’s for the second respondent gave notice denying liability and offering to settle in the amount of $NIL.8 That offer was rejected. On or about 28 January 2014 the parties agreed to convene the compulsory conference on 21 February 2014.9 The conference was held but was unsuccessful in resolving the claim. Mandatory offers of settlement were exchanged. 2 Affidavit of Simmonds para 5. 3 Affidavit of Simmonds para 31. 4 Affidavit of Simmonds para 47. 5 Affidavit of Simmonds para 7, 8, 12, 13, 18, 19, 21 – 25, 32, 33, 39, 41, 48, 88, 89. 6 Affidavit of Simmonds para 52-55, 57, 74, 76, 77, 88, 89. 7 Affidavit of Simmonds para 74. 8 Affidavit of Simmonds Ex BFS44. 9 Affidavit of Simmonds para 79, 83 – 85. -- 3 of 18 -- 4 [8] As at 6 March 2014 the matter had not been resolved, although neither the period allowed for accepting final mandatory offers, nor the 60 day post-conference period in s 42 of PIPA had expired. The “extended” limitation period was about to expire, but the applicant did not seek any further informal extension of the limitation period nor was any proceeding then commenced. More than two years then passed before the subject application was filed on 4 May 2016. [9] Matters of relevance to the exercise of the discretion in s 59(2) of PIPA were summarised by McMeekin J in Paterson v Leigh & Anor [2008] QSC 277 as follows: “The principles that seem to be to emerge from these cases are: (a) the discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered; (b) the onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour; (c) where an applicant is able to show that the delay which has occurred was occasioned by a “conscientious effort to comply” with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a “dominating consideration”. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of discretion; (d) where an applicant is not able to show that the delay was occasioned by “a conscientious effort to comply” with the Act that is not fatal to the application; (e) any delay on the part of claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion; (f) the length of any delay is important and possible prejudice to the defendant is relevant; (g) depriving the defendant of the complete defence afforded by the statutory time bar is an important matter; (h) the interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration; (i) the giving of a notice of claim before the expiring of limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.” [10] Whilst the claimant, through her solicitors, endeavoured to comply with the pre- litigation requirements of the PIPA, at least through to the unsuccessful compulsory -- 4 of 18 -- 5 conference, the delay in bringing the subject application after the expiration of the extended limitation period is very substantial. The reason for that delay is not so much to do with conscientious endeavours to comply with the pre-litigation steps, but rather relates to a combination of confusion, ineptitude, lack of supervision, inattention and neglect on the part of the applicant’s solicitors, and a failure by the applicant either to cause her solicitors to perform or to replace them. [11] The material shows that, following the failed compulsory conference on 21 February 2014, the file was returned to a trainee solicitor within the office of the applicant’s solicitor to “attend to filing of pleadings and other matters as required”.10 The file had been noted to the effect that an informal extension of the limitation period had been granted,11 but also recorded 22 April 2014 as the date by which proceedings should be commenced.12 That might have been influenced by the 60 day post conference period in s 42 of PIPA. Indeed, the applicant’s solicitor deposed that “In accordance with the legislation, pleadings were due to be filed and served by Tuesday 22 April 2014”13 and that it “remains unclear as to why the limitation period was only extended to 6 March 2014.”14 That is, as in McDonald v Holy Spirit Care Services Ltd & Anor15, there may have been a failure to appreciate that the agreed extension did not make provision for the usual 60 day period. That was however, far from the full extent of the failure on the part of the applicant’s solicitors. 10 Affidavit of Simmonds para 93. 11 Affidavit of Simmonds para 94. 12 Affidavit of Simmonds para 96. 13 Affidavit of Simmonds para 86. 14 Affidavit of Simmonds para 94. 15 [2011] QDC 78. -- 5 of 18 -- 6 [12] Counsel was briefed, on 12 March 2014, to settle the pleadings on the express basis that they were to be filed and served by 22 April 2014.16 No pleadings however, were settled nor was any proceeding commenced by that date. [13] The applicant’s solicitors had, from 7 March 2014, been put on notice of the expiration of the “extended” limitation period. The solicitor for the second respondent drew their attention to that in a telephone call on 7 March 201417 and followed up with further telephone calls.18 During a telephone conversation on 31 March 2014, the solicitor for the applicant confirmed to the solicitor for the second respondent an intention to commence proceedings and advised that counsel had been briefed.19 When nothing eventuated however, the solicitor for the second respondent wrote to the applicant’s solicitor on 8 May 2014 noting the expiration of the 60 day period in s 42 of PIPA and requesting confirmation that the claimant was no longer intending to proceed with the claim, so that the file could be closed.20 [14] From about 29 April 2014 Mr Simmonds, a director of the applicant’s firm of solicitors commenced communicating with counsel about the limitation period.21 Settled pleadings were not received from counsel until 12 May 2014.22 An action was commenced in the District Court that day. It was asserted that it was served by post,23 but, if so, it appears not to have been received.24 [15] On 18 June 2014 (having earlier, on 20 April 2014 conducted searches to establish that no proceeding had been commenced and having also checked with the loss 16 Affidavit of Simmonds Ex BFS 46. 17 Affidavit of Johns para 25. 18 Affidavit of Johns para 26-31. 19 Affidavit of Johns para 32. 20 Affidavit of Johns para 40. 21 Affidavit of Simmonds para 98-102. 22 Affidavit of Simmonds para 103. 23 Affidavit of Simmonds para 109, 110. 24 Affidavit of Cann paras 7,8 ; affidavit of Johns para 55. -- 6 of 18 -- 7 adjusters for the first respondent that proceedings had not been served) the solicitors for the second respondent wrote to the applicant’s solicitor advising that, in the absence of any response to their earlier letter of 8 May 2014, they were closing their file.25 They were not then aware of the proceeding which had been filed on 12 May 2014 and did not become aware of that proceeding until a search conducted about a year later.26 As at this time the loss adjusters for the first respondent had heard nothing from the applicant’s solicitors since the compulsory conference and, indeed, did not do so until 31 October 2014 when they received correspondence enclosing a radiology report. [16] Being aware that, on any view, the proceedings in the District Court had been filed out of time, the applicant’s solicitor briefed counsel to draft an application for an extension of the limitation period, but an originating application (the first originating application) seeking orders pursuant to s 31 of the Limitations Act and s 43 of PIPA was not filed until 23 September 2014 and, when filed, was not supported by any affidavit material and was not served promptly. The first return date of 22 October 2014 was adjourned, first to 25 November 2014 and then to 12 December, to allow for service, and ultimately to 19 December. [17] The solicitors for the second respondent were not sent a copy of the first originating application until by facsimile on 15 December 2014. The application was still unsupported by affidavit material at that time.27 The solicitors for the first respondent advised that they had, as at 18 December, not been served. The applicant’s solicitors had instead, on 15 December 2014, attempted to serve the application by facsimile 25 Affidavit of Johns para 42. 26 Affidavit of Johns para 55. 27 Affidavit of Johns para 43. -- 7 of 18 -- 8 on the loss adjusters who had previously represented the first respondent,28 but who had advised the applicant’s solicitors, on 11 November 2014, that they no longer acted for the first respondent.29 The loss adjusters responded, the same day, pointing out the error.30 It seems that the first originating application was never properly served on the first respondent. [18] The first originating application was further adjourned, from 19 December 2014, so that the applicant could provide supporting affidavit material. The first respondent was not required to consent to that, because it had never been properly served. It then took more than 4 months for the applicant’s material to be forthcoming. [19] The trainee solicitor within the office of the applicant’s solicitors resigned in February 2015 and the file was then transferred within the firm. It was not until 27 April that an affidavit in support of the first originating application was filed. The attitude of the respondents was then sought. On 6 July 2015 the solicitors for the second respondent advised that their client would not consent to the relief sought, as framed and that the application had no prospects of success.31 Ultimately, the application was relisted for hearing on 6 November 2015, more than a year after it had first been filed. [20] In the days leading up to the hearing of the first originating application the solicitors for the respondents raised matters which included that no relief under s 59 of PIPA had been sought.32 The solicitor for the applicant then communicated an intention to amend the originating application.33 On 6 November 2015 orders were made which permitted the applicant to file an amended originating application within a set time. 28 Affidavit of Cann ex AKC 3. 29 Affidavit of Cann exhibit AKC 2. 30 Affidavit of Cann ex AKC 4. 31 Affidavit of Johns para 57. 32 Affidavit of Johns Ex RLJ 1, affidavit of Simmonds para 130. 33 Affidavit of Simmonds para 131. -- 8 of 18 -- 9 An amended originating application was prepared but not filed and served within the time allowed pursuant to the order. [21] On 24 November 2015 the solicitors for the second respondent wrote to the applicant’s solicitors seeking advice, inter alia, as to whether the amended application had been filed. On 8 December 2015 and again on 21 December 2015 the solicitors for the second respondent wrote to the solicitors for the applicant pointing out that no amended application had been filed and seeking confirmation as to the applicant’s intentions.34 It was not until in February and March of 2016 that the applicant’s solicitor sought consent to filing an amended application out of time.35 That was refused.36 The solicitor for the applicant then decided to bring the subject application in order, he claims, to avoid further delay.37 That was done ultimately on 4 May 2016, but the application was not served for more than a week,38 and affidavit material in support of the application was not filed until late July 2016, following an adjournment of the first return date. [22] It was submitted, on behalf of the applicant, that this is a case of delay “because of issues which occurred within the offices of the solicitors who were acting for the Applicant, rather than the applicant herself” and that the delay should not be sheeted home to the applicant, so as to deny her the relief she now seeks. Reliance was placed on McDonald v Holy Spirit Care Services & Anor (supra), McDonald v Oceangale & Anor [2004] QDC 283, Tiver v Sunshine Coast Regional Council [2009] QDC 106 and Lee v Omni Leisure Operations Pty Ltd [2008] VSC 272 as examples of what, it was submitted, is the reluctance on the part of courts to deny a potential plaintiff their 34 Affidavit of Johns para 62-64. 35 Affidavit of Johns para 65, 66. 36 Affidavit of Johns para 67. 37 Affidavit of Simmonds para 136. 38 Affidavit of Johns para 68, EX RLJ1. -- 9 of 18 -- 10 right to pursue a legitimate claim because of dilatory or negligent behaviour on the part of their lawyers. [23] It was contended for the respondents that the onus lies on the applicant to show a good reason for the favourable exercise of discretion and that no such “good reason” had been shown given, in particular, the lengthy delay, not attributable to a conscientious effort to comply with the requirements of the Act, and the prejudice which would be occasioned to the respondents in denying them a complete defence to a claim based on an alleged incident which now occurred more than six years ago. It was argued that the claimant is not necessarily to be absolved from responsibility for delay by pointing to the negligence of her solicitor, that she could have, and should have, done more to ensure proper steps were taken promptly and that she should be left to her rights against the solicitor, rather than being granted the relief she now seeks. [24] This application first came on for hearing before Judge Wall QC. His Honour, part heard it, but adjourned the matter in order to permit further affidavit material to be filed in relation to potential prejudice to the respondents if the relief was granted. His Honour has subsequently retired. Accordingly, I made an order, pursuant to section 25 of the District Court of Queensland Act 1967, that the matter be heard afresh by me. [25] When the application first came before Judge Wall QC there was an affidavit by the applicant in which she deposed, in quite bald terms, as follows:39 39 Affidavit of Filep of 22 July 2016 para 9. -- 10 of 18 -- 11 “I have remained in regular contact with my solicitors in relation to my claim and have left the conduct of my claim up to my solicitor, Bruce Simmonds”. [26] A further, and somewhat more detailed, affidavit from the applicant was filed on 2 November 2016. That affidavit deposes, amongst other things, to having been informed, in May 2013, about the then approaching expiration of the limitation period and the need to obtain an extension.40 It also deposes to being advised, on 3 December 2013, of the further extension of the period to 6 March 2014 and to being advised following the compulsory conference in February 2014, that proceedings needed to be filed by 22 April 2014.41 [27] On 21 April 2014, the applicant received a call from her solicitors to advise that counsel had not yet provided the documents but that they were “chasing them from Counsel and anticipated receiving same shortly”.42 There is no explanation as to why, under the circumstances, instructions were not sought or given to file proceedings on an urgent basis or to otherwise deal with what was then thought to be the impending deadline. [28] On or about 12 May 2014 the applicant was advised that proceedings had not been commenced in time and that an application would need to be brought.43 She asked to be kept informed, but the affidavit reveals nothing further in relation to communications about any such application until about four months later, when, on 23 September, the applicant was advised that an application had been filed, that it was 40 Affidavit of Filep para 7. 41 Affidavit of Filep para 21. 42 Affidavit of Filep para 22. 43 Affidavit of Filep para 23. -- 11 of 18 -- 12 returnable on 22 October 2014, but would need to be adjourned.44 She again asked to be kept informed. [29] The affidavit reveals no further communication for more than four months to 9 February 2015 when the applicant sent an e-mail requesting her solicitors for an ‘update’45 and was called to be told that new counsel needed to be briefed. She asked to be kept informed.46 On 16 February 2015, the applicant telephoned her solicitor for an ‘update’. She was told that a “fresh brief” was being prepared and that an update would be provided as soon as possible. No such ‘update’ however, was then forthcoming. [30] On 24 March 2015, the applicant was told that there had been a change of solicitors within the firm and that Mr Simmonds would now be looking after the matter.47 On 14 May 2015 the applicant provided her solicitors with some updated information, but she still, it seems, had no update from them as to the progress of any application. [31] The applicant next sought an update from her solicitors on 10 June 2015, but received nothing and, it would appear, did nothing further for almost three months before again seeking update on 9 September 2015 and being advised that counsel had been briefed.48 Ultimately that led to her being told that the first originating application would be heard on 6 November 2015.49 [32] Thereafter, the applicant’s affidavit refers to communication between her and her solicitors about information relevant to the claim, but nothing about communications 44 Affidavit of Filep para 25, 26. 45 Affidavit of Filep para 27. 46 Affidavit of Filep para 28. 47 Affidavit of Filep para 30. 48 Affidavit of Filep para 32, 33. 49 Affidavit of Filep para 34. -- 12 of 18 -- 13 relating to the fate of the first originating application, the bringing of the subject application or the further delay since 6 November 2015. [33] When this application came on for hearing on 7 November 2016, counsel for the applicant successfully sought a one week adjournment to enable further affidavit material to be obtained. Subsequently, however, I was informed via my associate (with the consent of the parties) that no further affidavit material would be forthcoming and requested to determine the application on the basis of the material and submissions at hand. [34] It is understandable that a client such as the applicant would place considerable faith in their solicitor and be reluctant to jump to the conclusion that they were not being served well, such as to cause them confront the solicitors. Further, the applicant in this case has deposed to some attempts to ‘follow-up’ with her solicitor from time to time. Those attempts were, however, both general and somewhat sporadic, notwithstanding that she had been told about the limitation period prior to its expiration and subsequently informed of the fact that it had expired and the need to obtain an order from the court to permit an action to proceed. In the circumstances, there is force in the submission, made on behalf of the respondents, that, on the face of the material, she could have done more to press her solicitors to prosecute the matter or to remove the matter from that firm sooner in the face of failure, over such a lengthy period of time, to act expeditiously, or even to keep her up to date, in a proper, detailed and timely way, in response to her enquiries. [35] The facts in this case differ from those in the other cases referred to earlier, which featured neglect by the solicitors for a claimant. In that regard: -- 13 of 18 -- 14  McDonald v Oceangale Pty Ltd & Anor (supra) concerned an application, pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994, made relatively promptly after the expiration of the limitation period (there was limited delay which had been the subject of mutual agreement), in circumstances where the applicant’s solicitors had unsuccessfully endeavoured to contact the respondent’s solicitor prior to the expiration of the limitation period and had, after consulting counsel, filed a claim and statement of claim on the last day, in the mistaken belief that that would be effective (it was not, given that the pre-litigation steps were incomplete). There was no prospect of relevant prejudice.  McDonald v Holy Spirit Care Services & Anor (supra) concerned an application pursuant to s 59(2) of PIPA brought within weeks of the expiration of a limitation period which had been extended by agreement to facilitate a compulsory conference. The failure to commence proceedings in time was explained by the solicitor’s error in thinking they had until 60 days after the conference. That same error may have been made in this case, but, here there has also been errors and inordinate delay since.  Tiver v Sunshine Coast Regional Council (supra) was also an application under s 59 of PIPA. The applicant in that case had the same firm of solicitors as the applicant in this case. The approaching limitation period was overlooked when setting a ‘bring up’ date for the file. The file was reviewed on the very day the limitation period expired. Attempts on that day to get consent to an extension of the period were unsuccessful. There was a delay, of a little more than 2 months, in bringing the application for relief and in serving it (a further 2 months), but that does not approach the delay in this -- 14 of 18 -- 15 case. There was no significant prejudice to the respondent. It may be noted that, in that case, I said as follows in relation to ‘sheeting home’ a solicitor’s negligence to the client (footnotes omitted): “The engagement of a solicitor will not always be sufficient. An applicant who, having engaged a solicitor, fails to give prompt and proper instructions, or who fails to react to something which would cause a reasonable person to make further inquiry, or to take other steps, may well have difficulty in showing conscientiousness and in obtaining a favourable exercise of discretion. That is not however, the case here. The applicant deposes, and I accept, that: 1. she readily provided information and material when requested; 2. her solicitors had otherwise kept her regularly informed regarding the progress of her matter; and 3. she was unaware of the impact of the expiration of the limitation period. There is nothing which would necessarily have put the applicant upon further inquiry or caused her to confront her professional advisors, in the period leading up to the expiration of the limitation period.”  Lee v Omni Leisure Operations Pty Ltd concerned an application under s 59 of PIPA. That case too involved inordinate delay, with a proceeding not having commenced until nearly 6 years after the cause of action arose and the application under s 59 not being heard until a further year later. In that case however, the evidence showed that the applicant had been persistent in making enquiries as to the progress of the claim and had insisted on it being expedited, but had not been advised as to the limitation period prior to its expiration and had not been advised of its expiry until well after it occurred. He had been given comforting but misleading responses from his solicitors that all was going well. There was no prejudice to the defendant in the event relief was granted. [36] Whilst one might have a degree of sympathy for an applicant whose potential claim (which, in this case, is not said to be devoid of prospects and in pursuit of which a -- 15 of 18 -- 16 deal of time, effort and expense has already been directed) is imperilled by the negligence of their solicitors, there is no presumptive entitlement to relief under s 59 in those circumstances. Such considerations need to be viewed in light of all relevant matters, including the consequences for the respondents if relief were granted. Such relief would deprive them of the complete defence afforded by the statutory time bar. Further, it has already been noted that the length of the delay in this case is substantial, such that the claim which the applicant now wishes to pursue relates to an alleged incident which occurred more than six years ago. Delay tends to deteriorate the quality of justice.50 The passage of time almost inevitably creates a general level of prejudice as the relevant factual enquiry becomes more remote and the recollections of potential witnesses fade. Further, the evidence suggests that the prospect of prejudice here is more specific. [37] There has been no acceptance of liability in this case. The condition of the carpark surface on the day in question, including the existence and nature of any wetness in the relevant area, whether that condition caused the alleged slip and fall, whether, if so, the condition called for any remedial (clean up) action and, if so, whether that ought to have been detected and acted upon so as to have obviated the risk of a slip and fall accident of the kind the applicant claims to have suffered would be relevant to the issue of liability in any action on the claim. [38] The archived documents of the second respondent have recently been searched (both electronically and manually) to see what evidence might now be available were the matter to proceed. They reveal that the relevant cleaning contract classified the carpark as a low risk operational area. It was not on a “turnaround time” cleaning regime, but infrequent cleaning was to occur on a scheduled or project basis and spills 50 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551. -- 16 of 18 -- 17 during trading hours were to be attended to immediately.51 The search, however, revealed nothing in terms of the cleaning roster or any other records for the day in question.52 [39] A statutory declaration was obtained on the day after the notice of claim had been served on the second respondent (12 April 2012) from the then Regional Manager for Queensland, Gae Murphy who worked at the relevant shopping centre and was responsible for its overall management at the time. Ms Murphy’s statutory declaration53 speaks of the carpark inspection and sweeping regime in place at the time, of her own routine inspections and of the procedures followed in the event of hazards being detected. She says that weather conditions on 23 June 2010 were wet, but could not recall any hazards being identified or reported. That statutory declaration was, however, taken before the claimant “corrected” the date of the incident to 6 June 2010. Ms Murphy is no longer employed by the second respondent and recent attempts to contact Ms Murphy have been unsuccessful.54 Her last known telephone number is no longer connected. [40] Irene Skeoch, who was the second-in-charge on the day, is still employed with the second respondent, but now has no recollection of the incident or who may have been on duty roster at the time.55 [41] The above points to a real prospect of significant prejudice to each of the respondents (the prejudice to the first respondent being parasitical), in the event that they were now called upon to defend a claim in relation to what is now an historical incident, the relevant facts in respect of which will be difficult, if not impossible, for them to 51 See the contract excerpt exhibited to the affidavit of Scott. 52 Affidavit of Scott paras 2, 3. 53 Exhibited to the affidavit of Johns of 6 September 2016. 54 Affidavit of Scott para 5. 55 Affidavit of Skeoch para 3. -- 17 of 18 -- 18 fully establish, in order to test the plaintiff’s claim. I am not satisfied that there can, in the circumstances, be a fair trial. [42] On balance, I consider that the interests of justice lie in refusing the relief sought by the applicant. -- 18 of 18 --