SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: D’Arcy v Caltex Australia Petroleum Pty Ltd

Citation: [2016] ACTSC 270

Hearing Date: 7 June 2016

Decision Date: 16 September 2016

Before: Mossop AsJ

Decision: See [60]

Catchwords: LIMITATION PERIOD – Limitation Act 1985 (ACT), ss 16A, 16B – Determining applicable limitation provision – Claim against party other than the employer – s 16A not applicable where Territory or State of connection is New South Wales – Section 16B relevant provision of the Limitation Act

PRACTICE AND PROCEDURE – Application to join a third defendant – Where proposed third defendant indicates that it will plead a limitation defence – Appropriate to consider whether there is an arguable answer to anticipated defence – Whether s 33 of Limitation Act 1985 (ACT) provided an arguable answer to limitation defence – Whether a relevant fact was deliberately concealed – No deliberate concealment by first defendant of proposed third defendant’s involvement – No obligation on first defendant to point out error it perceived in plaintiff’s claim – Discovery not shown to have been inadequate – Where documents produced pursuant to a notice for non-party production prior to expiry of limitation period revealed proposed third party’s involvement – Insufficient evidence to establish that proposed third defendant was “a person answerable for the ... concealment” – Application dismissed

PRACTICE AND PROCEDURE – Application to amend first defendant’s name – Mistake in the identity of first defendant – Where plaintiff intended to sue entity that was the lessee of the land – Court Procedures Rules 2006 (ACT), r 503(2) – Leave granted

Legislation Cited: City Area Leases Act 1936 (ACT)Civil Law (Wrongs) Act 2002 (ACT), s 52Court Procedures Rules 2006 (ACT), rr 242, 503Limitation Act 1980 (UK), s 32Limitation Act 1985 (ACT), ss 16A, 16B, 33, 36Workers Compensation Act 1951 (ACT), s 36B

Cases Cited: Davies v Barancewicz [2011] ACTSC 166; (2011) 5 ACTLR 305Salido v Nominal Defendant (1993) 32 NSWLR 524Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126; (2012) 7 ACTLR 70

Parties: Phillip Raymond D’Arcy (Plaintiff)

Caltex Australia Ltd (First Defendant)

Fuel-Sys Installations Pty Ltd (in liquidation) (Second Defendant)

Evangelista Pty Ltd (Proposed Third Defendant)

Representation: CounselMr L Grey (Plaintiff)

Ms B Ness (First Defendant)

Mr G Blank (Proposed Third Defendant)

SolicitorsSnedden Hall & Gallop (Plaintiff)

Colin Biggers & Paisley (First Defendant)

Curwoods Lawyers (Second Defendant)

Meyer Vandenberg (Proposed Third Defendant)

File Number: SC 263 of 2014

MOSSOP AsJ:

Introduction

1. These proceedings concern an accident which occurred at a petrol station located on Maribyrnong Avenue in Kaleen, ACT on 11 September 2012. The plaintiff, Phillip D’Arcy, suffered serious burns while working in an underground fuel tank located at the petrol station.

2. The petrol station was owned by Evangelista Pty Ltd (Evangelista) which held a Crown lease granted under the City Area Leases Act 1936 (ACT). At the time of the accident the property was subleased to Caltex Australia Petroleum Pty Ltd (Caltex Petroleum) which entered into a franchise agreement with Olmos Investments Pty Ltd (Olmos) under which Olmos was to run a service station on a day-to-day basis.

3. In about late August 2012 Fuel-Sys Installations Pty Ltd (Fuel-Sys) was engaged to carry out the relining of the inner surface of an underground fuel tank at the petrol station. Who engaged Fuel-Sys is a central issue for the purposes of the present application.

4. The first defendant is Caltex Australia Ltd (Caltex). The second defendant is Fuel-Sys.

5. The present application (the further amended application in proceeding dated 26 May 2016) is an application to:

(a) join Evangelista as the third defendant in the proceedings (order 1) and, if Evangelista is joined, making consequential amendments to the statement of claim (order 3);

(b) make a further amendment to the statement of claim which was uncontroversial (order 2); and

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(c) amend the name of the first defendant from Caltex Australia Ltd to Caltex Australia Petroleum Pty Ltd so as to accurately reflect the party which was the sub-lessee from Evangelista (order 4).

6. Evangelista opposed being joined as a party to the proceedings because it submitted that the limitation period for any claim by the plaintiff against it had expired. In answer to these submissions the plaintiff contended that there was a sufficiently arguable case that the limitation period had been extended under s 33 of the Limitation Act 1985 (ACT) so as to justify the joinder of Evangelista and allow any limitation issue to be resolved after a final hearing.

7. Caltex and Caltex Petroleum neither consented to nor opposed the making of orders in relation to each of them.

8. Fuel-Sys consented to the orders sought by the plaintiff on the application.

9. Following the hearing Caltex/Caltex Petroleum and Evangelista were given leave to, and did, provide additional written submissions. The plaintiff provided written submission in reply.

The nature of the case

10. The plaintiff was employed by Fuel-Sys. The plaintiff alleges that Fuel-Sys failed to take reasonable care for the safety of the plaintiff in a number of respects.

11. In relation to Caltex, the plaintiff alleges that the sublease gave Caltex occupancy of the petrol station. The plaintiff’s case is that the franchise agreement between Caltex and Olmos was not sufficient to divest Caltex of its status as an occupant of the premises.

12. The plaintiff alleges in his statement of claim that Caltex had engaged Fuel-Sys to carry out the work on the tank and that Caltex was negligent in carrying out the repairs and maintenance of the underground tanks in three respects. First, he alleges that Caltex failed to carry out an appropriate risk assessment in relation to the health and safety risks associated with the tank relining work. Second, he alleges that Caltex failed to engage a competent contractor to carry out the work. Third, he alleges that Caltex failed to check the proposed system of work to be used by Fuel-Sys and exercise some supervision to ensure that proposed system of work was, in fact, carried out properly.

Evidence on the application

13. The plaintiff read in support of his application the affidavits of William Andrews dated 3 May 2016 and 26 May 2014 (but in fact sworn 26 May 2016).

14. Evangelista read the affidavit of Peter Hale dated 30 May 2015. This affidavit, also, was most likely sworn in 2016.

15. The affidavit of Mr Andrews sworn 3 May 2016 discloses that as a consequence of the mediation between the parties that took place on 10 December 2015, the plaintiff’s representatives became aware that the activities which led to the plaintiff’s injuries may have been the subject of a contract between Fuel-Sys and Evangelista. (I note that paragraph 12 of the affidavit refers to the activities which led to the plaintiff’s injuries being the subject of “a contract between the first defendant and the proposed third defendant, Evangelista”, however, having regard to the terms of that paragraph and of

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paragraph 11, I have treated the reference to the first defendant as intended to be a reference to the second defendant, Fuel-Sys.) He says:

I am now of the view, since the commencement of litigation, both Evangelista and Caltex have failed to disclose to the plaintiff their respective roles in the carrying out of the tank relining work, the subject of these proceedings.

16. Mr Andrews asserts in his affidavit that over the course of three years the plaintiff has made “every reasonable effort to establish the proper defendants in the proceedings.”

17. He says that prior to the mediation the plaintiff was only in possession of “one item of correspondence that indicated there has been discussion/agreement between Caltex and Evangelista” and identifies that as a letter dated 23 December 2014. That was a letter in which the solicitors for Caltex said that the premises were subleased to Caltex pursuant to the sublease between Evangelista and Caltex commencing 1 January 2009.

18. The affidavit also provides a list of entities upon which notices for non-party production were served and documents produced. Relevantly Mr Andrews indicated that documents were produced on 9 February 2015 by WorkSafe ACT and on 21 April 2016 by Evangelista.

19. In his affidavit of 26 May 2016 Mr Andrews deposed to the fact that a Personal Injury Claim Notification Form dated 30 April 2014 was served by mail on Caltex on 15 July 2014 and that there was no response to that notification under s 52 of the Civil Law (Wrongs) Act 2002 (ACT). The solicitors for the first defendant did not raise any issue in relation to the appropriate name of the first defendant identified in the Personal Injury Claim Notification Form or in the proceedings. The affidavit indicates that “further enquiries reveal” that the sublease from Evangelista is actually to Caltex Petroleum. The affidavit asserts that the wording of the name of the first defendant is “a genuine mistake”.

20. The affidavit of Mr Hale discloses that he previously worked as the General Manager of Fuel-Sys. He says: “In or about late August/early September 2012, Caltex engaged Fuel-Sys to carry out some work at its petrol station at Kaleen, in the Australian Capital Territory.” He then deposes to the fact that Fuel-Sys sent the plaintiff to do the work, that he was injured and that that was the only occasion on which the plaintiff worked in the Australian Capital Territory for Fuel-Sys.

Summary of submissions

21. The plaintiff’s submissions were, in summary:

(a) In the letter of 23 December 2014 no mention was made of the role of Evangelista in engaging Fuel-Sys. While the defence dated 19 May 2015 denied that Caltex was the owner or occupier of the premises and that Caltex had engaged Fuel-Sys, it contained no further elaboration and there was no further elaboration subsequently until December 2015.

(b) The notice for non-party production given to Evangelista has led to the production of additional documents which show that there was much more extensive consultation between Caltex and Evangelista than was known to the plaintiff previously.

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(c) The plaintiff had no reasonable basis for concluding prior to December 2015 that Evangelista rather than Caltex was involved in choosing or engaging Fuel-Sys to carry out the work because:

(i) the sublease made it clear that responsibility for carrying out work on the underground tanks lay with Caltex rather than Evangelista;

(ii) neither defendant responded to the allegation that Fuel-Sys had been engaged by Caltex prior to the mediation on 10 December 2015;

(iii) no documents were produced by Caltex indicating any agreement by which Evangelista would assume responsibility for carrying out the tank lining works or indicating any liaison between Caltex and Evangelista about entry onto the site in order to carry out the works;

(iv) there was only a single document in the documents produced by WorkSafe ACT showing any contact between Evangelista and Caltex in August 2012 concerning carrying out work on the tank.

(d) No limitation defence has yet been pleaded, but if a limitation defence was pleaded then it could be answered by an application for an extension of time under s 36 of the Limitation Act or by operation of s 33 of the Limitation Act.

(e) So far as the operation of s 33 of the Limitation Act was concerned, the requirements of that Act were less onerous than the equivalent provisions in New South Wales because:

(i) it required only that “a fact relevant to a cause of action or the identity of a person against whom a cause of action lies” be concealed rather than the whole of the cause of action or the whole identity of the person as required in New South Wales;

(ii) the ACT Act requires that a fact be “deliberately concealed” in contrast to the New South Wales Act which requires it to be “fraudulently concealed”.

(f) The evidence demonstrates that the material showing the degree of collaboration between Evangelista and Caltex was not available until 2016 and the conduct of Caltex is inexplicable if it was dealing in an arms length fashion with Evangelista because it had every reason to “point the finger” at Evangelista in order to minimise its own role yet did not do so. It was sufficient for the purposes of joinder that the plaintiff’s contentions as to the s 33 issue disclosed a prima facie argument that is not vexatious or doomed to fail. As a consequence joinder should be permitted and the s 33 issue determined at trial.

22. Evangelista submitted that s 16B of the Limitation Act applied and hence s 36 was not available, but that if s 16A did apply then an extension of time should be refused. It then submitted that the application of s 36B of the Workers Compensation Act 1951 (ACT) (WC Act) meant that the law applicable to the plaintiff’s claim was New South Wales law because the relevant State or Territory of connection was New South Wales.

23. It pointed to material in the WorkSafe documents that were produced, which indicated that the plaintiff has been or ought to have been on notice that Evangelista was a

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potential defendant well before 11 September 2015. It submitted that there were multiple additional documents that revealed that Evangelista contracted with Fuel-Sys within the WorkSafe documents.

24. So far as s 33 was concerned it submitted that it was necessary for the purposes of this application for the plaintiff to establish an arguable case for the operation of s 33. Further, while there may be inferences to be drawn against Caltex there were presently no facts available to suggest Evangelista was a party to such conduct. Finally, the plaintiff was required to prove not only deliberate concealment, but also that he lacked sufficient information to plead a completed cause of action. It submitted that it would subvert the purpose of the Act if s 33 could be relied upon to avoid a limitation period when, by other means, the plaintiff was reasonably able to identify all the elements to plead a cause of action against a person before the limitation period expired.

What limitation provisions apply?

25. The accident occurred on 11 September 2012. The proceedings were commenced on 9 July 2014. The three-year limitation period provided for by s 16A or s 16B of the Limitation Act expired on 11 September 2015. The application in proceeding seeking to have Evangelista joined as the third defendant in the proceedings was filed on 23 December 2015.

26. If either s 16A or s 16B of the Limitation Act apply then, in the circumstances of this case, the limitation period expired three years after the date of the accident. If, however, s 16A applies then there is the possibility of an extension of time being granted under s 36 of the Act. If s 16B applies the operation of s 36 is excluded (s 36(5)) and hence there is no prospect of an extension of time under that section.

27. Evangelista contended that s 16B was the operative provision because s 16A was not applicable. Section 16A applies to a cause of action if:

(a) the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951; and

(b) a claim could be, or could have been, made in relation to the cause of action under the Workers Compensation Act 1951 if notice of the injury had been given as required under that Act.

28. Evangelista accepted that the claims referred to in s 16A are not limited to claims for damages by an employee against the employer: Davies v Barancewicz [2011] ACTSC 166; (2011) 5 ACTLR 305. However, because of the choice of law provisions in the WC Act, the accident was one for which New South Wales was the State of connection and hence not a “compensable injury” for the purposes of the WC Act. Although the plaintiff did not expressly concede the point, no submissions were made that contested the chain of reasoning put forward by Evangelista.

29. I consider the submissions of Evangelista to be correct for the following reasons. Section 36B(1) of the WC Act provides that compensation is only payable under that Act if the ACT is the Territory or State of connection. Section 36B(3) provides the familiar cascading test to determine which is the Territory or State of connection.

30. Although the evidence on this point is not complete, such evidence as there was pointed to the plaintiff having proceeded on the basis that New South Wales was the Territory or State of connection. The plaintiff confirmed to Evangelista that Fuel-Sys had submitted a claim under its New South Wales policy, which was accepted on 19

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September 2012. Both the first and second defendants have pleaded in their respective defences that the plaintiff was a New South Wales worker and that the New South Wales Workers Compensation Act applied. The second defendant has claimed indemnity from the first defendant for compensation it paid pursuant to the New South Wales workers compensation legislation. A bench sheet dated 20 April 2015 records what appears to be the joint position of the parties communicated to the Registrar or Deputy-Registrar that “state of connection has resolved (NSW)”. On 18 May 2015 the position recorded by the Deputy-Registrar was “Relevant state of connection (NSW)”. In the absence of any submission or evidence to the contrary I therefore proceed on the basis that New South Wales is the relevant Territory or State of connection. This has the effect that the WC Act does not apply and hence that s 16B, rather than s 16A, is the relevant provision of the Limitation Act. This means that the plaintiff is subject to a fixed three-year limitation period in relation to its claim against Evangelista.

Limitation Act defence

31. While I accept the plaintiff’s submission that defences arising under the Limitation Act may or may not be pleaded by a defendant, for the purposes of an application such as this, namely an application to join a party which has indicated that it will in fact plead a limitation defence, it is relevant to consider whether or not there is an arguable answer to the anticipated limitation defence. If there is not in fact an arguable answer to the limitation defence, either as a result of there being contested facts relating to the application of that defence or because of the application of some other provision of the Limitation Act, then that will generally indicate that the application should be refused. That is because it would be, to adapt the words used in a slightly different context in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532, “plainly futile” to permit the party to be joined. In the present case the plaintiff identified s 33 as providing an arguable answer to the application of s 16B and hence a basis for his submission that Evangelista should be joined and any limitation defence determined after a final hearing.

The operation of s 33

32. Section 33 of the Limitation Act provides, relevantly:

33 Fraud and concealment

(1) Subject to this section, if—

(a) there is a cause of action based on fraud or deceit; or

(b) a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed;

the time that elapses after a limitation period fixed by or under this Act for the cause of action begins to run and before the date when a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or her or by a person claiming through him or her against a person answerable for the fraud, deceit or concealment.

(2) Subsection (1) has effect whether the limitation period for the cause of action would, apart from this section, end before or after the date mentioned in that subsection.

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(3) Without limiting subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

(4) For subsection (1), a person is answerable for fraud, deceit or concealment if, but only if—

(a) he or she is a party to the fraud, deceit or concealment; or

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33. There are three points to note about the operation of the section. First, the circumstances referred to in paragraphs (a) and (b) of s 33(1) are strict alternatives. In the present case only paragraph (b) is relied upon. Second, the effect of s 33(1) is to prevent the period of concealment from forming part of the limitation period. As a consequence, until the point where the plaintiff discovers, or could with reasonable diligence have discovered, the concealment, the limitation period does not run. Third, the postponement of the running of the limitation period only operates in relation to “a person answerable for the … concealment”. In order to fall within that category Evangelista must be, relevantly, “a party to the … concealment”: s 33(4)(a).

34. The plaintiff submitted that it was at least arguable that Caltex had concealed a fact relevant to the cause of action, namely, that the contracting party was in fact Evangelista rather than Caltex. He submitted that Evangelista would be “a party to the… concealment” if the course of conduct adopted by Caltex was done with its agreement (or possibly with its knowledge and acquiescence). The plaintiff accepted there was no direct evidence of Evangelista’s agreement to or knowledge of any course of nondisclosure by Caltex. However, the plaintiff submitted that an inference could be drawn as to the involvement of Evangelista because of the otherwise inexplicable conduct of Caltex in failing to “point the finger” at Evangelista.

35. Evangelista, on the other hand, contended that there was simply no evidence of its participation in any course of conduct engaged in by Caltex and no inference available from the known facts to that effect.

36. Counsel for the plaintiff submitted that the plaintiff was in a position where he was unable to establish an arguable case of involvement in concealment because, having regard to the fact that Evangelista was not a party to the proceedings, the plaintiff was unable to interrogate Evangelista as to any communications with Caltex about the course to be taken can in relation to the plaintiff’s claim.

37. The prima facie position established by uncontroversial facts is that the claim against Evangelista, if it was joined, would be statute barred by reason of the operation of s 16B of the Limitation Act. The plaintiff must rely upon s 33 and, for the purpose of the present application, must demonstrate an arguable case for the application of that provision.

38. Section 33 is based on the provisions of s 32 of the Limitation Act 1980 (UK). In order to determine the operation of s 33, Refshauge J examined the authorities relating to s 32 of the UK Act in Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126; (2012) 7 ACTLR 70 at [255]-[264]. At [264] his Honour articulated the requirements of s 33 as follows:

264. In this case, then, the plaintiff can only succeed if it proves that the defendant either:

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(i) actively or intentionally hid a fact that it was necessary for the plaintiff to plead to constitute a cause of action; or

(ii) failed to disclose such a fact which it was under a duty to disclose; or

(iii) knowingly committed a legal wrongdoing of the kind that can properly be raised in an action to which s 33 of the ACT Limitation Act applies.

39. Although it is possible that s 33 may operate so as to modify the operation of s 16B in the circumstances of this case, the evidence put forward on the application is insufficient to establish even an arguable basis for the operation of s 33. That is because:

(a) the evidence is not sufficient to establish an arguable case that the conduct of Caltex amounted to “deliberately concealing” the involvement of Evangelista; and

(b) there is insufficient evidence that Evangelista knew anything about the approach to be taken by Caltex to defending the present claim so as to make Evangelista “a person answerable for the… concealment” for the purposes of s 33(1).

40. My reasons for those conclusions are set out below.

Deliberate concealment by Caltex?

41. I am not satisfied that there is an arguable case identified by the plaintiff that the conduct of Caltex amounted to any of the things identified in Refshauge J’s summary set out above.

42. So far as the pleadings are concerned there was no obligation upon Caltex to point out any error that it perceived in the plaintiff’s claim or direct the plaintiff to other parties against whom he might have a better claim. It was entitled to put on the kind of uninformative defence that it did.

43. So far as the extent of disclosure was concerned, the plaintiff’s submissions impliedly asserted that the defendant had failed to comply with its disclosure obligations by failing to produce correspondence between Caltex and Evangelista.

44. The affidavit of discovery prepared on behalf of the first defendant does not appear to have been filed. However, it was served under cover of a letter dated 15 February 2016. It contained only five documents. The documents were described as follows:

1. Sublease between Evangelista Pty Ltd and Caltex commencing on 1 January 2009.

2. STAR Franchise Agreement between Olmos Investments Pty Ltd and Caltex commencing on 15 August 2011.

3. Crown Lease between Evangelista Pty Ltd and Commonwealth of Australia commencing 29 December 1990.

4. Workshop Licence held by Capital Auto Electrics Pty Ltd commencing 15 August 2011.

5. Workshop Licence held by Wayne C and Kathie L Whiting & David C and Angela E Schultz commencing 15 August 2011.

45. The terms of the description of those documents makes it clear that no distinction was drawn between Caltex and Caltex Petroleum. That is because in describing the

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documents the reference is simply to “Caltex”. Had any point been taken about the identity of the defendant at that point then it would be expected that the documents would be described by reference to the distinct identity of the relevant Caltex entity so as to make it clear that the documents were being disclosed because they damaged the plaintiff’s case by demonstrating that the first defendant was not in fact the relevant party.

46. Why were only five documents disclosed? That is explained by the chronology of events relating to discovery. The relevant chronology is as follows:

9 July 2014 Originating claim and statement of claim filed

18 May 2015 Order 2 made by the Deputy Registrar: “The first defendant provide discovery limited to the issue of the occupier of the premises referred to in the Statement of Claim, within 14 days.” This limitation on discovery was proposed by Caltex and agreed to by the plaintiff.

27 July 2015 Consent directions made: “1. The first and second defendants filed their Lists of Documents and Affidavits of Discovery in 21 days.”

11 September 2015: Prima facie expiry of the limitation period.

10 December 2015: Mediation

14 December 2015: Orders made by the Deputy Registrar by consent including “3. Discovery notice plus inspection by 9/2/16”.

15 February 2016 Affidavit of discovery and list of discovered documents served by first defendant on plaintiff.

47. It is important to note from this chronology that on 18 May 2015 the scope of discovery ordered to be made was limited “to the issue of the occupier of the premises referred to in the Statement of Claim”. None of the subsequent orders clearly disclose an expansion of the obligation to give discovery. While the scope of discovery required by “the issue of the occupier of the premises” may be unclear, it is not at all apparent that communications between Caltex (or Caltex Petroleum) and Evangelista would be within the scope of such an order. Therefore, while clearly the discovery was late, it has not been shown that it was inadequate. More specifically, it has not been shown by the plaintiff that there is an arguable case that Caltex failed to disclose correspondence between Caltex and Evangelista that was ultimately provided to the plaintiff as a result of the notice for non-party production served on Evangelista. So far as lateness of discovery is concerned, there was some correspondence in July 2015 about the delays in getting the affidavit verifying the list of documents sworn and a request was made by the plaintiff for the list of documents to be provided to the plaintiff before the formal service of the affidavit and list of documents. The evidence does not disclose whether the list or documents on the list were provided informally prior to when they were formally served.

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Inference that Evangelista was a party to concealment

48. In the light of my conclusion above, Evangelista could not be a party to any concealment. In any event, there is no direct evidence that Evangelista knew anything about the approach being taken by Caltex to the disclosure of the respective roles of Caltex and Evangelista. Further, I would not have been satisfied that there was any arguable basis for the drawing of an inference that there was some cooperation between Caltex and Evangelista. The submissions of the plaintiff in that regard did not appear to me to rise above speculation.

49. My conclusion that there is no arguable basis for an inference to be drawn of any cooperation between Caltex and Evangelista in relation to concealing or failing to disclose Evangelista’s role is reinforced by the contents of the documents produced by WorkSafe ACT pursuant to a notice for non-party production which I describe below.

The WorkSafe documents

50. The WorkSafe documents produced to the plaintiff on 9 February 2015 provide a substantial amount of evidence that Evangelista was the party that contracted with Fuel-Sys. The WorkSafe investigation clearly reached the conclusion that Evangelista contracted with Fuel-Sys for the tank relining works.

51. There are a number of documents in that material which clearly provided an evidentiary basis for the proposition that Evangelista was the contracting party and hence a basis upon which a claim against Evangelista might have been brought earlier. This material is significant because:

(a) it tends against any possible inference that Evangelista joined in any concealment of its involvement by Caltex, because its involvement was disclosed to and well known by WorkSafe;

(b) it demonstrates that assertions on behalf of the plaintiff that he had no material available to him to show Evangelista’s involvement are incorrect;

(c) it supports the argument (referred to below) that there could be no “concealment” if the plaintiff in fact had information available to him disclosing the allegedly concealed fact.

52. The documents within the WorkSafe material which most obviously provide evidence of Evangelista’s involvement are as follows:

(a) A quotation dated 17 August 2012 from Fuel-Sys to carry out civil engineering work and tank lining process for $88,450. The quote is provided by Nathan Phillips. The document includes a handwritten acceptance of the quotation by John Evangelista on behalf of “Evangelista F/T” (which I take to be the Evangelista Family Trust). The evidence does not establish that Evangelista was the trustee of the Evangelista Family Trust, but that is at least a possibility.

(b) On 23 August 2012 John Evangelista sent by email a work authority for the tank relining at the Kaleen service station. He says that he has just spoken to Caltex and that Caltex will be adding some pipework at their expense while Fuel-Sys has the tanks uncovered. He says that Caltex will have one of their project engineers liaise with Fuel-Sys for the purpose of coordinating the works.

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(c) A “Checklist of works to be performed” dated 4 September 2012, which appears to be an internal working document of Fuel-Sys. It indicates that the client is “John Evangelista”.

(d) A screenshot taken from an Office of Regulatory Services computer which records details of the incident on 12 September 2012. A description of the incident includes: “Work was being performed on an underground storage tank by a contract company Fuel-Sys Installations Pty Ltd. This company was engaged by the property owner, Evangelista Investments Pty Ltd.” Evangelista Investments Pty Ltd is one of the companies identified on the footer of Mr Evangelista’s emails.

(e) Emails of 6 December 2012 between representatives of Caltex and Mr Evangelista discussing progress of the works on site. The representative of Caltex refers to an agreement to complete “the other tank excavation works” “[d]uring January 2013 (whilst the public servants are down the coast)”. Mr Evangelista replies “With regards the tank repairs Work Cover A.C.T are being particularly painful and I can’t guarantee at this stage that the timeframes indicated are going to be achievable”. That is consistent with, at the very least, the carrying out of the works being a joint project between Evangelista and Caltex. However, the reference to “Nathan” being the representative of the lead contractor for the works is, in the light of the quote of 17 August 2012 (see above), consistent with it being an agreement with Evangelista’s contractor.

(f) An email of 29 January 2013 from a WorkSafe inspector to Mr Evangelista discussing whether or not the liquidator of Fuel-Sys is going to continue with the contract. The email says “Should they decide not to continue with the work and you engage another company to complete the work, please ensure that company has documented work procedures and a documented safety management system …” The terms of that email are consistent with Evangelista being the contracting party.

(g) An email dated 7 March 2013 from Mr Evangelista to a WorkSafe inspector says: “In response to your call last week we have decided to appoint JCC Suntec Pty Ltd T/A Petroleum Tank Technologies as a contractor to complete the relining works of the fuel tanks at Kaleen Service Station, subject to meeting WorkSafe ACT requirements.” Even though this reflects the position after the accident, it is consistent with Evangelista being the party responsible for the initial works.

(h) A WorkSafe minute prepared by the Manager of Major Investigations at WorkSafe dated 26 June 2014 says, in relation to who was carrying out the works:

the underground tank relining works were being undertaken as a result of contractual arrangements between Evangelista Pty Ltd and Fuel-Sys Installations Pty Ltd (ACN 143223803). Fuel-Sys Installations sole director was Mr Christopher Hugh Thornton, principal place of business is Varsity Lakes Qld.

… Caltex Australia Petroleum Pty Ltd and Olmos Investments Pty Ltd were not directly involved in the contractual arrangement between Evangelista Pty Ltd and Fuel-Sys Installations Pty Ltd.

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(i) A WorkSafe ACT Notifiable Incident Report Form prepared by an employee of Caltex on a date which is not clear includes, as part of the description of the accident: “Work was being performed on an underground storage tank by a contract company Fuel-Sys Installations Pty Ltd. This company was engaged by the property owner, Evangelista Investments Pty Ltd”.

(j) An undated draft Critical Incident-Investigation Report prepared by WorkSafe ACT includes the following:

The underground tank relining works were being undertaken as a result of contractual arrangements between Evangelista Pty Ltd and Fuel-Sys Installations Pty Ltd … Neither Caltex Australia Petroleum Pty Ltd nor Olmos Investments Pty Ltd were directly involved in this contractual arrangement.

(k) Undated handwritten notes included amongst the WorkSafe documents produced which included an annotation “FSI contracting owner Evangelista Pty Ltd”.

53. In the light of the above entries, in my view, anybody reading these documents with a view to discovering which entity contracted with Fuel-Sys for the tank relining works would have readily discovered that the contracting party was Evangelista (or possibly Evangelista Investments Pty Ltd). As pointed out above, Mr Andrews’ affidavit discloses that the documents were produced to the plaintiff on 9 February 2015.

54. Because of the availability of these documents to the plaintiff I cannot accept the accuracy of the statements made at paragraph 22 and 23 of Mr Andrews’ affidavit. Because of these documents, the fact that Evangelista only produced documents pursuant to a notice for non-party production in April 2016 is not significant in relation to the plaintiff’s state of knowledge. The availability of the WorkSafe material, well prior to the expiry of a limitation period, meant that if the plaintiff wished to bring proceedings against the entity that contracted with Fuel-Sys his solicitors had available evidence identifying that party from February 2015 and could readily have joined Evangelista as a defendant in the proceedings.

Evangelista’s additional submission

55. Finally it is worth noting Evangelista’s other submission that s 33 cannot be relied upon where there are other means readily available of discovering the fact said to have been concealed. Another way of putting this is to say that a fact is not concealed if it is readily discoverable. This submission was not developed by reference to authorities and it is unnecessary to express any concluded view on it. However, it is prima facie an attractive submission – a defendant may not tell you that the sky is blue but you can see it if you look.

Conclusion in relation to the joinder of Evangelista

56. I am not satisfied that there is, on the evidence before me, an arguable case that the running of the limitation period was postponed under s 33 of the Limitation Act. That is because the evidence does not establish an arguable case of concealment by Caltex and there is no arguable basis for an inference from the circumstances that Evangelista was a party to the concealment for the purposes of s 33(4). As a consequence I am not satisfied that there is an arguable basis for the plaintiff to contend that the limitation period has not in fact expired. In those circumstances it is not appropriate to grant

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leave to join Evangelista because the joinder will be futile in the light of the existence of a limitation defence.

Amendment to the name of the first defendant

57. The affidavit of Mr Andrews made on 26 May 2016 (incorrectly dated 26 May 2014) indicates that the first defendant was named as Caltex Australia Ltd by mistake and that the appropriate entity to be named should have been the entity identified on the lease from Evangelista Pty Ltd, namely, Caltex Australia Petroleum Pty Ltd. In the absence of any challenge to that evidence I accept that there has been a mistake in the identity of the party and that it was clear that the plaintiff intended to sue the entity that was the lessee of the land: see r 503(2) of the Court Procedures Rules 2006 (ACT). In those circumstances it is appropriate to permit an amendment correcting the name of the first defendant. Because the amendment is made under r 503, r 242 is not applicable.

Conclusion

58. For these reasons I refuse the application to join Evangelista. The application to amend the name of the first defendant and other amendments to the statement of claim not contingent upon the joinder of Evangelista will be allowed.

59. I therefore make orders 2, 4 and 5 set out in the further amended application in proceeding dated 26 May 2016. I will hear the parties as to costs. I will also direct that the relevant provisions of Practice Direction No 2 of 2014 apply to these proceedings.

60. The orders of the Court are:

1. Orders 2, 4 and 5 set out in the further amended application in proceeding dated 26 May 2016.

2. The proceedings are listed on 22 September 2016 at 9:45 am for any argument in relation to costs.

3. The parties and Evangelista Pty Ltd must disclose to each other the terms of any costs order sought and any further evidence to be tendered in relation to costs by 4 pm on 21 September 2016.

4. Paragraphs 17 to 22 and 26 to 48 of Practice Direction No 2 of 2014 apply to these proceedings.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 16 September 2016

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