| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ALEXANDER -v- BRAMBLES AUSTRALIA LIMITED & ORS [2002] WADC 184 CORAM : COMMISSIONER GREAVES HEARD : 17 JUNE 2002 DELIVERED : 20 AUGUST 2002 FILE NO/S : CIV 1627 of 2000 BETWEEN : GRAEME WILLIAM ALEXANDER Plaintiff
AND
BRAMBLES AUSTRALIA LIMITED
First Defendant
WESTERN AUSTRALIAN GOVERNMENT RAILWAYS
Second Defendant
LIEBHERR-WERK EHINGEN GMBH
Third Defendant
Catchwords: Practice - Appeal from Deputy Registrar - Application for stay by second defendant where leave to commence action previously refused - Application refused until issue whether second defendant entitled to protection of Limitation Act s 47A(1) pleaded, heard and determined
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Legislation:
Limitation Act 1935, s 47A(1)(3)
Result: Appeal dismissed Representation:
Counsel:
Plaintiff : Mr T P Heard
First Defendant : Mr M Campbell
Second Defendant : Mr P P McCann
Third Defendant : No appearance
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Greenland Brooksby
Second Defendant : Phillips Fox
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bayley v Wesfarmers Transport Limited [2000] WASCA 399
Broun v Western Australian Government Railways Commission, unreported; DCt of WA; Library No D980167; 16 June 1998
Lokan v The Metropolitan Cemeteries Board, unreported; DCt of WA; Library No D970297; 23 September 1997
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
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1 COMMISSIONER GREAVES: This is an appeal from the decision of the learned Deputy Registrar whereby he dismissed the application of the second defendant for an order that the plaintiff's claim be permanently stayed on the ground that the plaintiff's action is for an act done in execution of the second defendant's powers and duties pursuant to the Railways Act, or in respect of an alleged neglect or default in the execution of that act, or in respect of an act done in pursuance or execution of the second defendant's public duty or authority, within the meaning of s 47A(1) of the Limitation Act 1935.
2 The plaintiff issued his writ on 23 June 2000 with an indorsed claim against the first, second and third defendants for damages for personal injuries suffered by him in an accident which occurred on 29 June 1994 near Jarrahdale as a result of the alleged negligence, breach of statutory duty, breach of contract and breach of duty on the part of the first, second and third defendants, their servants or agents. 3 It is common ground the plaintiff did not commence this action against the second defendant within a period of one year after 29 June 1994 as required by s 47A(1)(b) of the Limitation Act 1935. As the learned Deputy Registrar pointed out at par 11 of his reasons, there are no pleadings. The application before the learned Deputy Registrar proceeded upon the basis "that the defendant would plead the limitation and the plaintiff, that the provision does not apply." (See par 11 of his reasons). 4 This appeal was argued before me not on the issue whether the second defendant is entitled to the protection of s 47A(1) of the Limitation Act 1935, but in relation to the question whether the plaintiff's action should be stayed because on 12 May 2000, prior to the issue of the writ, this Court refused the plaintiff's application by originating summons for leave to commence this action. The issue whether the defendant is entitled to the protection of s 47A(1) was not considered. In that application, the parties proceeded on the assumption that the second defendant is entitled to the protection of the section unless the court exercised its discretion under s 47(3) of the Act. The case for the plaintiff is that the second defendant is not entitled to the protection of the section and that therefore it does not require the leave of the court. The case for the second defendant is that the plaintiff is estopped from continuing this action without leave, because the plaintiff previously sought leave and that leave was refused. 5 The issue of leave under s 47(3) of the Act is distinct from the issue whether the second defendant is entitled to the protection of the section
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which must be preliminary to it. The issue of protection has not been argued, has not been pleaded and there is no evidence upon which the Court may make a determination of that issue in this appeal. The plaintiff cannot, therefore, be estopped from maintaining this action by the previous determination that leave should be refused. 6 The issue whether the second defendant is entitled to the protection of s 47A(1) of the Act should be considered and determined on its merits when they have been pleaded and heard. For these reasons, the learned Deputy Registrar was right to refuse this application and, accordingly, the appeal will be dismissed.
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