Alley v TELSTRA CORPORATION LIMITED

1. [1]

   This judgment concerns a request to determine a separate question, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).

2. [2]

   The plaintiff is Ames Alley (Alley) and is represented by R Goodridge of counsel. The first defendant is Telstra Corporation Limited (Telstra) and is represented by B Jones of counsel. The second defendant is A.C.N. 142 916 970 PTY LTD (under external administration) previously known as Infrastructure Services Group Management Pty Limited (ISGM). The second defendant is under external administration. It has not participated in these proceedings. No relevant insurance policy has been identified indemnifying the second defendant.

Background

1. [3]

   Alley alleges that on 7 February 2013, he was working on a ladder at a telephone exchange located in South Strathfield, New South Wales (the exchange). Telstra was the owner of the exchange. Alley’s company, Ames Pty Limited, was contracted by ISGM to perform work at the exchange. At some point while Alley was working at a height from a ladder, a cleaner bumped or interfered with the ladder causing it to move while Alley was on it. Alley then lost his balance and fell approximately 2.5m to 3m, resulting in serious personal injuries.

The pleading framework

1. [4]

   On 19 December 2024, Alley commenced these proceedings against Telstra.

2. [5]

   On 6 February 2025, Alley was granted leave to file an amended statement of claim joining ISGM.

3. [6]

   On 23 May 2025, Telstra filed its defence. In its defence, Telstra pleaded that Alley’s claim is barred by s 18A(2) of the Limitation Act 1969 (NSW). This pleading is no longer pressed. Telstra submits that the claim is barred by ss 50C and 50D of the Limitation Act.

4. [7]

   On 6 June 2025, Alley filed a notice of motion seeking a separate determination in relation to the limitation issues contained in Telstra’s defence.

The notice of motion dated 6 June 2025

1. [8]

   By notice of motion dated 6 June 2025, Alley seeks:

The law

1. [9]

   Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) reads:

2. [10]

   There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 (‘Tepko’); Southwell v Bennett [2010] NSWSC 1372 at [15] (‘Southwell’); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 (‘Crawley’).

3. [11]

   The general rule is that proceedings are listed for trial generally, for the hearing of all questions and issues arising in the proceedings: see ss 56(1) and 56(2) of the Civil Procedure Act 2005 (NSW) (CPA) reproduced later in this judgment. The court’s power to make orders for the decision of any question separately from any other question under UCPR r 28.2 arises as an exception to the general rule.

4. [12]

   The legal principles that apply in exercising the discretion whether to make the order for separate determination are set out in the decision of Hallen J in Southwell at [15]. His Honour set out the principles as follows:

5. [13]

   Additionally, in Crawley, Beech-Jones J expressed other legal principles relevant to the exercising of the discretion whether to make an order for separate determination. At [17] and [18], his Honour said:

6. [14]

   Sections 56, 57 and 60 of the Civil Procedure Act are applicable. They relevantly read:

7. [15]

   The relevant sections of the Limitation Act are set out below.

8. [16]

   Section 18A(2) reads:

9. [17]

   Section 50C reads:

10. [18]

    Section 50D reads:

11. [19]

    The fact contemplated by s 50D(1)(b) of the Limitation Act is a relationship between the injury on the one hand and the fault of the defendant on the other, the relevant connection being one of causation: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 (‘Baker-Morrison’) at [1], [28] and [63].

12. [20]

    Fault is to be ascertained by reference to legal concepts, not moral blameworthiness so that while there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, breach, nuisance, breach of duty or otherwise, the key factors necessary to establish legal liability must be known: [1], [28], [39] per Basten JA in Baker-Morrison.

13. [21]

    In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Basten JA agreed with Beazley JA that the claim was not statute barred noting at [130] that “…the cause of action was not discoverable until the plaintiff knew or ought to have known of a reasonably arguable case involving a connection between his injury and fault on the part of the appellant”. The relevant facts included the contractual and practical relationship between his employer and the appellant.

14. [22]

    In State of New South Wales v Gillett [2012] NSWCA 83 (‘Gillett’), Beazley JA at [70] cited Basten JA who held at [41] in Baker-Morrison that:

15. [23]

    Also in Gillett, Beazley JA at [97] agreed with the submission of senior counsel for the respondent that “for the purposes of fault in s 50D(1)(b) the defendant had to establish the plaintiff knew the matter was legally actionable.”

16. [24]

    In Fogg v Kane Constructions (NSW) Pty Ltd [2015] NSWSC 648, Johnson J noted at [82] that the word “fact” in s 50D of the Limitation Act is not a fact in the ordinary sense of something objectively observable. Instead, the word “fact” is there being used to describe a composite of inferences or the result of an evaluation of which the plaintiff must have knowledge. The question for the purposes of s 50D(1)(b), was characterised by Johnson J as whether the plaintiff knew of the key factors necessary to give rise to a legal liability on the part of the defendant.

17. [25]

    In Gillett, Beazley JA stated at [104]:

18. [26]

    The inquiry under s 50D(2) is not directed to the appropriateness or reasonableness of the conduct of the plaintiff’s legal representatives although Basten JA in Frizelle v Bauer [2009] NSWCA 239 (‘Frizelle’) noted at [30]:

19. [27]

    In Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13 (‘Taboas’), Harrison J observed at [37]:

20. [28]

    In Baggs v University of Sydney Union [2013] NSWCA 451 (“Baggs”), the plaintiff’s engagement of solicitors to advise her and act in her interests was regarded as being sufficient to show that she had not failed to take reasonable steps or that the taking of all reasonable steps required of her to second guess her solicitor’s advice or to seek a second opinion: see [34]-[36] per Meagher JA (Macfarlan and Hoeben JJA agreeing).

Alley’s submissions

1. [29]

   The “ought to know” limb namely, s 50D (2) of the Limitation Act is assessed by reference to the steps a reasonable person in the plaintiff's position would take. The knowledge is personal not constructive.

2. [30]

   As explained by Simpson AJA with Kirk and Meagher JJA agreeing in Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 (‘Synergy’) at [59]:

3. [31]

   And at [69]-[70]:

4. [32]

   A client is entitled to assume that legal advice and actions are legally sufficient: Baggs at [36].

5. [33]

   The three Limitation Act s 50D(1) “facts” (injury; fault; seriousness) need not arise together and knowledge may accrete over time as anterior facts become known. Synergy at [67] quoted Leeming JA in Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295 (‘Murgolo’):

6. [34]

   It is asserted that Alley knew he suffered injury on 7 February 2013, but he continued to work and did not initially seek legal advice. He later lodged a workers compensation claim in mid-2016 because he could no longer cope with work.

7. [35]

   On 12 March 2019, the late Mr Willis of counsel (Willis) gave a general advice (the Willis advice) to Alley’s solicitor. Willis did not express any final view. He advised:

   1. (1)

      various entities may have exposure;

   2. (2)

      it was “extremely difficult at this stage to provide an accurate opinion”; and

   3. (3)

      urgent investigations were required, and a further conference should occur after responses were received from Telstra and/or ISGM.

8. [36]

   The Willis advice did not indicate to Alley’s solicitor that a viable civil claim existed. The advice identified to Alley’s solicitor, not to Alley, that a potential claim existed contingent on investigation.

9. [37]

   Alley contacted his solicitors on 13 February 2020 seeking advice. He was told a further counsel conference would be arranged. It was not. He again asked for an update on 18 August 2020.

10. [38]

    A letter dated 2 September 2020 (said to explain potential third-party claims) was placed on the solicitor’s file but never sent to Alley. Slater & Gordon expressly admitted on 17 April 2025 that this letter “was not mailed to Mr Alley”.

11. [39]

    After 19 December 2021, the previous solicitor’s file notes show Alley again complained about lack of progress and sought updates on 4 May 2022 and 25 August 2022, yet he still received no substantive civil liability advice.

12. [40]

    On 11 January 2023, Mr Young of counsel (Young) warned of “a probable limitations defence” but said, “Arguably, the action is yet ‘discoverable’...”, reinforcing that, even then, the material facts to find a viable civil claim had not been nailed down.

13. [41]

    Mr Brian Dooley SC (Dooley) provided an advice dated 13 September 2024 which was prepared following a conference on 12 September 2024 between Dooley, Alley and his then-solicitors at Slater & Gordon.

14. [42]

    The brief to Dooley was expressly headed “Brief to Advise and Appear on Work Injury Damages Claim”. The brief did not include instructions or material seeking advice on a potential civil liability claim against third parties such as Telstra or ISGM.

15. [43]

    Dooley’s opinion addressed difficulties that Alley would have proceeding with a work injury damages claim. He also advised the solicitors that they should contact Alley and recommend he obtain other legal advice promptly to pursue any further rights.

16. [44]

    Slater & Gordon later sent a letter dated 4 October 2024 to Alley conveying Dooley’s advice namely, that he may have other rights and should see different solicitors regarding them. That letter was the trigger for Alley’s later instruction of Firths on 17 October 2024.

17. [45]

    Dooley’s opinion marked the first clear professional acknowledgment that there were unresolved potential claims beyond the workers compensation jurisdiction, but it did not itself give positive advice on liability or prospects against Telstra. It instead identified deficiencies and recommended that other lawyers be engaged promptly, a step that ultimately led to Firths being retained and the current proceedings being filed shortly before expiry of the 12-year long-stop period.

18. [46]

    It is submitted that the Slater & Gordon letter is, in effect, an admission that they had become conflicted as they had not acted sufficiently or effectively to “discover” Alley’s claim against Telstra.

19. [47]

    On 17 October 2024, Alley retained Firths and the file was received around 1 November 2024.

20. [48]

    Firths immediately sought identity and control information from Telstra on 4 November 2024, noting the 12-year long-stop date of 7 February 2025. Telstra acknowledged on 11 November 2024.

21. [49]

    Telstra responded on 16 December 2024 confirming it was the owner/responsible legal entity of the exchange as at 7 February 2013 and produced an incident report but stated that it required a subpoena for contracts.

22. [50]

    Proceedings were commenced against Telstra on 19 December 2024. Telstra accepts that it first received notice on 4 November 2024.

23. [51]

    Subpoena material first became available on 31 January 2025. ISGM was then added on 6 February 2025 as the long-stop was imminent.

24. [52]

    It is not contentious that the injury was known in 2013. However, that element does not fix the “date of discoverability” by itself.

25. [53]

    The s 50D(1)(b) “fact” that the injury was “caused by the fault of the defendant” is a legal evaluative conclusion drawn from anterior facts. “To ‘know’ that an injury is caused by the fault of the defendant is to know ‘the key factors necessary to establish liability’,” often requiring appreciation of Civil Liability Act principles (ss 5B, 5D) and, in many cases, professional advice: Synergy at [70].

26. [54]

    Synergy also clarifies that knowledge of a defendant’s capacity (for example, employer vs occupier) is not itself required to satisfy s 50D(1)(b); what matters is whether the circumstances are such that legal liability could be established. But the antecedent identity or control materials often bear centrally on ss 50D(1)(b) and 50D(1)(c) especially in non-obvious, system-of-work or occupier/contractor settings like this.

27. [55]

    Before October 2024, Alley did not know the facts that established that his injury was attributable to the fault of Telstra (as owner/occupier) or of ISGM (as managing contractor), rather than to an unidentified cleaner’s act. The 2019 Willis advice identified only a possibility of exposure and demanded urgent investigations precisely because liability could not then be assessed. That is not knowledge of attributability; it is knowledge that more facts were needed.

28. [56]

    The Slater & Gordon letter dated 2 September 2020 that might have articulated a potential civil claim was never sent, so Alley remained uninformed.

29. [57]

    The statement of Young dated 11 January 2023, that “Arguably, the action is yet ‘discoverable’” confirms that, even from the lawyer’s vantage point, the material facts had not crystallised as at early 2023.

30. [58]

    The first clear communication to Alley that he may have other rights and should act on them was Slater & Gordon’s letter dated 4 October 2024. Even then it could not be said that he knew facts that made the civil claim viable. The letter did put him on the path to acquiring that knowledge and he immediately changed solicitors.

31. [59]

    Although Alley worked at a Telstra exchange, the identity of the responsible legal entity or entities at fault (whether including owner/occupier; facilities/cleaning controllers; contracting structure) remained opaque. Firths sought that information on 4 November 2024. Telstra only confirmed its role on 16 December 2024 and required subpoenas for contracts.

32. [60]

    Subpoena access was granted on 31 January 2025, leading to the joinder of ISGM on 6 February 2025. That sequence shows identity and control facts were being diligently uncovered and actioned as soon as they were reasonably accessible.

33. [61]

    Alley repeatedly sought information and updates (on 13 February 2020, 18 August 2020, 4 May 2022 and 25 August 2022), but his lawyers did not advise him that he had a viable civil claim; the letter dated 2 September 2020 was not sent; and even counsel in January 2023 regarded the action as “yet discoverable”. In those circumstances, a reasonable person in his position – already instructing specialist lawyers and actively chasing them – could not have discovered the necessary facts earlier by exercising reasonable diligence.

34. [62]

    Section 50D(2) confirms the reasonable steps standard and that some facts are only reasonably ascertainable with professional assistance; it informs, rather than displaces, the s 50D(1) test.

35. [63]

    The record shows consistent, good-faith efforts to become informed and to progress any civil claim. He followed up on multiple occasions between 2020-2022; then, upon first real notification that the “actually did have other rights” on 4 October 2024, he immediately retained new solicitors on 17 October 2024. They sought identity and control information from Telstra on 4 November 2024 (Telstra replied on 11 November 2024 and received confirmation on 16 December 2024); they commenced proceedings on 19 December 2024, and upon receiving subpoenaed material identifying lSGM, joined ISGM on 6 February 2025.

Telstra’s submissions

1. [64]

   Section 50D(1) has been said to be deceptively simple: see Synergy at [62] per Simpson AJA (Meagher and Kirk JJA agreeing), her Honour noting it has been authoritatively considered in Baker-Morrison, Frizelle, Gillett, Murgolo and Pomare v Whyte [2019] NSWCA 317; 377 ALR 352 (‘Pomare’).

2. [65]

   The onus is on Telstra to prove that Alley knew each of the factual matters identified in ss 50D(1)(a) through (c). Each are addressed in turn below.

3. [66]

   As to the concept of knowledge, see the summary of cases by Simpson AJA in Synergy from [64] to [67].

4. [67]

   It is conceded Alley knew of the fact he suffered an injury in 2013.

5. [68]

   In Baker-Morrison at [28] Basten JA said of this section (Ipp and Macfarlan JJA agreeing):

6. [69]

   Later at [41] in Baker-Morrison, Basten JA said:

7. [70]

   In Pomare at [18] and [19], Basten JA (Macfarlane JA agreeing) said:

8. [71]

   Alley’s case is that he did not know the facts establishing fault in Telstra as the owner/occupier. That is disputed.

9. [72]

   According to the Willis advice, Alley knew about the contractual arrangements between ISGM and Telstra, including how the work was structured and gave clear instructions to that effect:

10. [73]

    According to the Willis advice, Alley also referred to what he considered deficiencies in the ladder he was on, and the system employed generally. In addition, Alley was aware of and identified a precaution taken after his incident, suggesting he suspected some fault.

11. [74]

    While there was some uncertainty about who employed the cleaner who made contact with the ladder Alley was on, he was able to say that they ‘were granted permission to work within Telstra’s facility’.

12. [75]

    There can be no doubt Alley was aware that Telstra was the relevant entity and that they were the owner or at least occupier of the premises where he claims to have been injured. By extension, Alley would know that any problems with the premises, including the ladder, must fall at the feet of Telstra.

13. [76]

    Alley also signed a cost agreement with Slater & Gordon in ‘relation to civil liability claims’. Reiterating that the cost agreement nor any file notes related to that have been provided, despite the claims to the contrary, it is reasonably open to the Court to infer that Alley was given advice that there was a cause of action against Telstra and it was through their ‘fault’ that he was injured. Otherwise, one asks rhetorically, why would a cost agreement be necessary?

14. [77]

    That the cost agreement was signed after the conference with Willis and in the context, he had ‘asked the plaintiff to attend to a number of matters’, further favours the finding Alley was aware that, on his case, Telstra was at fault around that time.

15. [78]

    In Synergy Simpson AJA said at [70] and [73], [74]:

16. [79]

    By the time Alley saw Willis, he had been unemployed since 2016, thus, having suffered a total wage loss over that period. It would be patently obvious there was merit in pursuing a claim for that loss; which is to say nothing about the medical expenses and time off before then.

17. [80]

    Alley was also having treatment for and continued to be impacted by his claimed injuries and disabilities.

18. [81]

    While there was a concurrent workers compensation claim, liability had not been accepted for that (with liability being denied in a letter dated 23 August 2016, so there was no choice between one cause of action of the other. Indeed, one set of workers compensation proceedings had been discontinued in December 2017 and on the material before the Court, it was not being agitated. That is evident by the fact the evidence discloses that the next time any such rights were pressed was on 21 December 2022 when a lump sum claim was made.

19. [82]

    That Alley had signed a cost agreement and described a course of conduct whereby he left matters to his solicitors suggests he had elected to go down that path. The rights and matters being investigated, read in the context of what is said by Alley, pertained to the claim against Telstra and not in respect of any workers compensation rights.

20. [83]

    In determining whether Alley took reasonable steps, the enquiry is whether he personally took reasonable steps rather than considering the state of knowledge of his legal advisers, see Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666 at [172].

21. [84]

    Recently in Hogan v Thornley [2025] NSWSC 640 at [57] Ierace J said:

22. [85]

    It is submitted that Alley ought to have known of both facts under ss 50D(1)(b) and 50D(1)(c).

23. [86]

    Having attended a conference with Willis, been given matters to look in to regarding his claim against Telstra and signed a cost agreement, after months of inactivity Alley did nothing. That the relevant event and injury had, by that stage, occurred at least six years earlier means it is not enough for Alley to say he left matters to his solicitors.

24. [87]

    Contrary to what Alley asserts, Telstra also contends that Alley must have been aware of the limitation issue as it seems to have been squarely raised during the conference with Willis. It might be that was the very reason Alley saw fit to contact his solicitors to see what was occurring otherwise, why bother calling if he had trusted matters to them.

25. [88]

    Despite the above, on the history in Alley’s affidavit and that in the affidavit of Mr McKean, after the conference with Willis nothing was done by Alley in 2020 save for two follow up calls on 13 February 2020 and 18 August 2020, followed by an extended period of inactivity through to 4 May 2022 when he chased his solicitors up. Had Alley taken all reasonable steps before 12 December 2021, he would have undoubtedly ascertained the facts provided for in ss 50D(1)(b) and 50D(1)(c).

26. [89]

    In the Willis advice, Willis stated that:

27. [90]

    Willis also stated that, “I confirm in conference I requested that the client attend to the following matters”.

28. [91]

    While Willis also advised that at the time of his advice there were “various entities that may have an exposure to a claim for damages, but it is extremely difficult at this stage to provide an accurate opinion”, a proper reading of the Willis advice does not suggest that applied in respect of Telstra. For example, the view expressed above evidences a view that there was a claim otherwise it would not have been discoverable. While Willis did recommend some further investigations, that was merely to clarify matters rather than confirm his view there was a cause of action.

29. [92]

    To that end, Willis was in no doubt a duty of care was owed, stating:

30. [93]

    Willis continued to address the issue of breach, noting Alley has himself identified a precaution which would have avoided the incident. Causation would be straight forward in those circumstances, with the consideration of the medical evidence earlier in the Willis advice sufficient to show as much.

31. [94]

    Armed with that information at the conference and given the view expressed in the Willis advice, the overwhelming inference is Alley was aware he had a claim against the first defendant that was worth pursuing.

32. [95]

    Willis went on to say that:

33. [96]

    However, that is not to say there was no claim for the purposes of s 50D(1)(b) of the Limitation Act, merely that absent that information he could not say definitively how strong the case was.

34. [97]

    If there was any doubt about the above, it is settled with the cost agreement between Alley and Willis, which was entered into in respect of the claim against Telstra.

35. [98]

    That cost agreement was signed by Alley on 28 June 2019, including in the context of the acknowledgement that he had “been advised of my right to seek independent legal advice before signing this agreement. I acknowledge that I have been provided with advice by my solicitors as set out in your Fees Agreement and I will pay your fees in accordance with the Fees Disclosure”.

36. [99]

    The advice given to Alley at that stage, which is some months after the Willis advice was prepared, must have included that there was a claim against Telstra which he should pursue. If not, why would the cost agreement be signed by Alley?

37. [100]

    The cost agreement is also significant because while the letter dated 2 September 2020 was not sent to Alley, it is not true that he was not advised about the opinion of Willis as outlined in the Willis advice.

38. [101]

    In Dooley’s advice dated 13 September 2024 (the Dooley advice), he stated that:

39. [102]

    It was reiterated again in the Dooley advice that advice had been given in August 2020.

40. [103]

    Regarding the August 2020 advice, the Dooley advice stated:

41. [104]

    Dooley was told by his instructing solicitor that Alley was given advice, such that regardless of the letter dated 2 September 2020 having not been sent, Alley was advised he had a viable claim against Telstra. If that were not true, it would mean the solicitor has mislead Dooley. That is highly improbable and given the implications of that, evidence to the Bringinshaw standard should be led – there is nothing that rises to that level. That the dates are different is also telling, noting the conversation probably occurred in August and was intended to be followed up with the September letter, but the letter was never sent.

42. [105]

    Alley’s assertions about not knowing of the contents of the Willis advice until 2024 and not receiving any further advice following the conference must be wrong. It is known he did, from the Dooley advice and the fact he signed a cost agreement with Willis, which included an acknowledgement of the claim against Telstra.

43. [106]

    Alley also does not provide a faithful summary of the conference with Willis. He did not ask “questions of a general nature”. They were targeted and directed to the claim against Telstra, including with Alley volunteering information about fault, noting he had identified precautions taken afterwards.

44. [107]

    The claim was also not being investigated solely by Alley’s solicitors as he suggested in his affidavit, with Willis making it abundantly clear Alley had been told by him to take such steps. Those steps were never taken on the Dooley advice and critically, Alley has never denied not taking such steps.

45. [108]

    It is also not true that after 2019, Alley was not given any advice about a claim against Telstra or limitation issues as he suggests in his affidavit. In the file note with Alley dated 30 March 2021, there was reference to the liability of a third-party (Telstra) and the limitation issue.

46. [109]

    The file note of the conversation with Alley from 4 May 2022, also records him asking why his claim had not been commenced. That must be the claim against the first defendant because the delay was attributed to staffing issues whereas the work injury damages claim was differently described later and the delay with that attributed to the failure to get the necessary Whole Person Impairment finalised. That is, there were different delays for different claims. Also, Alley referred to “future losses”, which must be a reference to a common law claim against Telstra given that is the only claim where there are multiple future losses (out of pocket expenses, economic loss and care), noting there is only one future loss in the work injury damages claim (namely, economic loss). While that conversation was after 19 December 2021, that must have reflected what Alley knew before that.

47. [110]

    The problems with human memory are well known, see Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq and the cases cited from [16] per Black J in In the matter of Hillsea Pty Limited [2019] NSWSC 1152. For that reason, more weight should be given to the documentary material in Exhibit B, the Willis advice. It would be extremely surprisingly if Alley could genuinely recall with absolute precision what was or not discussed with him years earlier.

48. [111]

    Alley did not lead any evidence directed to the evidentiary matters touched on above. The Court is invited to more easily draw inferences from the material in Exhibit B that Alley’s claim was discoverable before 19 December 2021, see Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496 from [539] the Court (White, Gleeson and Wheelahan JJ) and the cases cited there. Indeed, Alley sought to conceal the material through the claim for privilege rather than be frank in what occurred.

49. [112]

    Incidental to the above, Alley has chosen not to provide the Court with the entire file from his prior solicitors, only providing very selected portions.

Alley’s reply submissions

1. [113]

   The 2019 Willis conference and advice was not in Willis’ mind a concluded view. It was expressly couched in qualifications that it was a possible view requiring further investigation. Counsel said it was “extremely difficult… to provide an accurate opinion” and that urgent investigations of Telstra and/or ISGM responses were required before any view could be formed. That is not knowledge of Telstra’s “fault”, it is the opposite.

2. [114]

   The fact that Willis issued a costs agreement broadly covering all possibilities adds nothing to his express reservations.

3. [115]

   Willis’ opinion on discoverability is wrong in law. In his advice, sandwiched between express statements of no understanding or concluded opinion on the fault of Telstra, Willis said:

4. [116]

   Willis may have thought it was “arguable” but counsel’s view of what is “arguable” is expressly not determinative of any such argument. It is noted that:

5. [117]

   Alley said he was told during the Willis conference that Willis would provide his advice to his solicitor. The Willis advice was provided to the solicitor, and the solicitor drafted the letter dated 2 September 2020.

6. [118]

   The unsent letter dated 2 September 2020 contains a clear implication that Alley had not previously been advised of civil litigation avenues. The letter is clearly intended to be the cardinal instrument through which Alley was to be informed of his civil litigation options and confirm what actions the solicitor would take to advance the case.

7. [119]

   The letter is of significance for three further reasons: first, it confirms the level of communication from Willis to the solicitor; second, it confirms that not even the solicitor “knew” that Telstra was at fault as of September 2020; and third, it confirms that Alley personally attempted to obtain further information to assist his solicitor. The letter commences:

8. [120]

   The letter, in “summarising” the advice given in the Willis conference, states:

9. [121]

   The letter records:

10. [122]

    Alley’s knowledge of fault could not rationally be greater than his solicitor’s knowledge.

11. [123]

    Throughout 2022 and 2023 Alley repeatedly chased his solicitor for advice. A reasonable implication arises that Alley was chasing advice because he had not received advice and did not know what he needed to know.

12. [124]

    On 11 January 2023, Young warned of “a probable limitations defence” but added, “Arguably, the action is yet ‘discoverable’…”. Young’s words corroborate that as of January 2023, the anterior facts sufficient to ground ss 50D(1)(b) and 50D(1)(c) had not yet crystallised.

13. [125]

    The Dooley brief related to “work injury damages”. It did not contain a Telstra civil liability brief. Dooley advised that Alley “may have other rights” and that he should urgently seek other legal advice to explore those “other rights”. On 4 October 2024, that advice was at last communicated to Alley, prompting immediate instruction of new solicitors on 17 October 2024.

14. [126]

    Firths thereafter sought identity and control information from Telstra on 4 November 2024. Telstra confirmed owner/occupier status and produced an incident record on 16 December 2024, while requiring subpoena for contracts. Proceedings were filed 19 December 2024.

15. [127]

    On s 50D(1)(b) fault: before late 2024, there was no professional advice communicating Telstra’s fault.

16. [128]

    Under Synergy, the s 50(1)(b) “fact” requires an appreciation of key liability factors. Such an appreciation needed professional opinion.

17. [129]

    On the s 50D(2) “ought to know” limb, Alley had specialist lawyers. He repeatedly chased them, and he acted immediately when first told that other rights might exist. Synergy accepts that reasonable steps may necessitate professional assistance. Where that assistance is wanting or misdirected, it is artificial to deem earlier ascertainment of knowledge.

18. [130]

    Telstra’s narrative stresses that the accident happened in a Telstra exchange and posits that Alley must therefore have known years earlier that Telstra was at fault. But Synergy warns against conflating setting and mechanism with the legal evaluative concept of fault. In complex premises with third-party cleaners and a managing contractor (ISGM), the anterior facts necessary to draw the legal conclusion, that is, control, feasible precautions, and contractual allocation of responsibility, were not within Alley’s knowledge before 19 December 2021.

19. [131]

    Telstra asks the Court to infer earlier knowledge from attendance at a 2019 conference, a signed costs agreement, and sporadic follow ups. It argues that if he called his solicitors, he must have known both limitation and fault were in play. That is speculation, not what was said in Synergy. The contemporaneous professional materials cut the other way (the lack of liability opinion and the action being “yet discoverable”). Suspicion is not knowledge of the ss 50D(1)(b) and 50D(1)(c) facts.

20. [132]

    Telstra argues that reasonable steps taken before 12 December 2021 would have “undoubtedly” ascertained the elements of ss 50D(1)(b) and 50D(1)(c). That is conjecture. The contemporaneous professional materials (the advice of Willis and Young) contradict the notion that the elements of ss 50D(1)(b) and 50D(1)(c) were ascertainable then. Synergy recognises that some facts require professional assistance, which in this case either did not occur or, in the case of the 2 September 2020 letter, did not reach Alley. Alley’s personal efforts between 2019–2023 included repeatedly chasing advice (on 13 February 2020; 18 August 2020; 4 May 2022; and 25 August 2022), attending the Dooley conference on 12 September 2024, and, upon being told he “may have other rights”, he immediately changed solicitors on 17 October 2024. Through them, took the precise reasonable steps needed to inform himself and secure identity and control material from Telstra (on 16 December 2024) and filing within weeks (on 19 December 2024).

Resolution

1. [133]

   While I have recorded and taken into consideration the parties’ evidence and submissions, I return to the ultimate question that I am asked to decide, that is whether the plaintiff’s cause of action was relevantly discoverable or whether it is barred by operation of the Limitation Act should be determined separately.

2. [134]

   I bear in mind Wardley Australia Ltd v Western Australia (Rothwells Loan case) (1992) 175 CLR 514; [1992] HCA 55, per Mason CJ, Dawson, Gaudron and McHugh JJ at [31] where the High Court cautioned:

3. [135]

   Although the parties seem to have proceeded on the basis that I should determine the limitation issue (although that was not actually what I was tasked with deciding), it is inappropriate to do so because the facts and circumstances can only be obtained once the plaintiff gives evidence and is cross examined, probably at length. The plaintiff’s credibility will be hotly contested on the topic of discoverability. The issue is complex and will take some time to determine. The plaintiff will be jeopardised if he has adverse credit findings made against him in the separate determination rather than having the opportunity to be cross examined on all issues.

4. [136]

   It is illusory to determine the limitation issue separately. There are overlapping issues. It will not save court time or legal expenses. This is certainly not one of the clearest of cases. If it may be that there will be adverse findings on credibility made against the plaintiff that will prejudice the trial on damages, Justice is best served if all the issues are determined at trial.

Result

1. [137]

   Therefore, I decline to order that there be a separate determination on the operation of the Limitation Act.

2. [138]

   The notice of motion filed by the plaintiff on 6 June 2025 is dismissed.

Costs

1. [139]

   Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs.

Orders

1. [140]

   The Court orders that:

   1. (1)

      The notice of motion filed by the plaintiff on 6 June 2025 is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.