Baulderstone Pty Ltd, Canny Rigging Pty Ltd and Baker Welding Contractors Pty Ltd v Workcover Corporation of South Australia and Maurice William Male No. SCGRG 94/2L44 Judgment No. 5147 Number of Pages 19
[1995] SASC 5147
•5 July 1995
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1) DUGGAN(2) AND LANDER(3) JJ
CWDS
Workers' compensation - Workers Rehabilitation and Compensation Corporation made payments to Male for injury sustained at work on 15 February 1989 - proceedings commenced by Male against plaintiffs - judgment entered against plaintiffs awarding damages for negligence - five notices sent by Corporation to plaintiffs from 30 September 1992 indicating intention of Corporation to recover compensation paid and payable to Male and to have first charge on any damages payable by plaintiffs to Male - declarations sought by plaintiff as to validity of notices - consideration of ss 47 and 48 of Limitations of Actions Act - held - s 48 may operate to extend a time limit even if jurisdiction to grant the extension of time has expired and even if the time limit is a condition of the existence of the right - held - a notice given by a claimant to a wrong-doer more than three years after the date of the trauma which gave rise to the compensation right will give that claimant a first charge or damages payable by the wrong-doer to the injured party to extent of the claimant's entitlement, which entitlement will depend inter alia on the claimant obtaining an order for an extension of time within which to bring the proceedings against the wrong-doer - each notice of 30 September 1992 and each Subsequent notice creates a first charge to the extent of the claimant's entitlement under s 54(5) and s 54(7) - the entitlement to recover compensation referred to in subs(S) of the Act extinguishes when the three year period referred to in subs(g)(2) expires without an action having been commenced and no notice of charge having been given within that period.
Workers Rehabilitation and Compensation Act 1986s 54 and. Limitations of Actions Act ss 47, 48. Alsafe Safety Industries and Anor v Workers Rehabilitation and Compensation Corporation and Anor (1990) 54 SASR 320; Tickle Industries Ltd v Hann (1974) 130 CLR 321; Cowell v General Motors Holden (1977) 17 SASR 148; Seatainer Terminals Ltd v Dunn (1981) 27 SASR 21; Lovett v LeGall (1975) 10 SASR 479; R v Di Fazio (1979) 20 SASR 559 and Sub-nominee General Motors Holden Ltd v Di Fazio (1979) 141 CLR 659, applied.
HRNG ADELAIDE, 2-3 May 1995 #DATE 5:7:1995 #ADD 7:9:1995
Counsel for plaintiffs: Ms R Layton QC with
Mr D Simpson
Solicitors for plaintiffs: Minter Ellison Baker
O'Loughlin
Counsel for respondent Workcover: Mr R White
Solicitors for respondent Workcover: Stratford and Co
Counsel for respondent Male: Mr M Birchall
Solicitors for respondent Male: Elston and Gilchrist
ORDER
Orders made.
JUDGE1 BOLLEN J Like Lander J I think that the question whether or not the time limit in s.54 of the Workers Rehabilitation and Compensation Act can be extended is answered by reference to the Limitation of Actions Act 1936. And I agree, with respect, with the reasoning of His Honour from that base.
2. Section 48(1) of the Limitation of Actions Act provides for the extension of time within which to institute actions. Section 3 of the Limitations of Actions Act defines "action" to include legal proceedings of all kinds. Section 48 may, then, operate to extend the statutory rights of action given by s54 of the Workers Rehabilitation and Compensation Act 1986. And that really is that. The answers proposed by Lander J to the questions of law asked in the case stated are, in my opinion, correct. I return the same answers as does Lander J.
JUDGE2 DUGGAN J I agree that the questions asked in the case stated should be answered in the manner proposed by Lander J.
2. As Lander J has observed, the key to the resolution of the issues raised lies in the operation of s48 of the Limitation of Actions Act, 1936. The plaintiffs' argument that there could be no extension of the three year period for commencing the action for recovery of compensation was based on the assertion that the time limit prescribed by s54(7)(g) of the Workers Rehabilitation Compensation Act, 1986 was an element in the right to recover and not merely procedural in character. The significance in that distinction in certain circumstances is well known. (See Maxwell v Murphy (1957) 96 CLR
261; R v McNeil (1922) 31 CLR 76 and White v Eurocycle Pty Ltd and Ors Full Court Judgment No 5109 delivered 8th June, 1995.)
3. However there is nothing to prevent parliament from legislating so as to permit an extension of time even in those cases where the limitation would otherwise bar the right and in General Motors-Holdens Ltd v De Fazio (1979) 141 CLR 659 the High Court recognised that s48 was such a provision. It was there held that s48 could be applied whether the limitation bars the right, the remedy or whether it would otherwise deprive the court of jurisdiction. (141 CLR at 669). Once this view of s48 is accepted, it becomes unnecessary to consider whether a particular limitation period comes under one or other of the above categories. Munno Para District Council v Battersby 66 LGRA 17 at 29; South Australian Meat Corporation v Kipirtoglou 48 SAIR 237.
4. In my view, therefore, s48 may be invoked so as to permit an extension of the limitation period contained in s57(7)(g) and the answers proposed by Lander J must follow from that proposition.
JUDGE3 LANDER J This matter comes before the Court as a case stated.
2. The questions of law for determination are:
1. In order for a valid notice to be given and/or a valid
first charge to be created, pursuant to s54(7)(e) of the
Workers Rehabilitation and Compensation Act 1986, at the
time a notice is first given, must there be a legal right of
the claimant to recover compensation pursuant to the
provisions of subs(5), (7)(c) and (7)(g) of the Act. In
particular -
1.1 If a notice is purported to be given by a claimant
pursuant to s54(7)(e) of the Act after a date more than
three years after the date of the trauma which gave rise to
compensation right, must an action for recovery of
compensation have already been commenced within the three
year period referred to in s54(7)(g) of the Act, in order to
constitute a valid notice and/or first charge?
1.2 If no to 1.1, does each notice of 30 September 1992
create a valid first charge, and if so, for what amount, and
what is the effect, if any, of the later notices referred to
in paragraphs 11 and 12 hereof?
1.3 Is the entitlement to recover compensation referred to
in subs(5) of the Act extinguised when the three year period
referred to in subs(g)(2) expires without an action having
been commenced and no notice of charge having been given
within that period?
3. For the purpose of determination of the questions posed, the parties agreed the following facts:-
1. The first plaintiff, Baulderstone Pty Ltd (Baulderstone)
is a duly incorporated company and carries on business,
inter alia, as building construction managers.
2. The second plaintiff, Canny Rigging Pty Ltd, and the
third plaintiff, Baker Welding Contractors Pty Ltd
(collectively referred to as Canny Rigging) are duly
incorporated companies and carry on business, inter alia, as
erectors and welders of metal frames used in building
construction.
3. The first defendant, Workers Rehabilitation and
Compensation Corporation (Corporation) was established under
Part 2 of the Workers Rehabilitation and Compensation Act
1986, as amended (Act), but now continued to operate as the
Workcover Corporation of South Australia, pursuant to the
Workcover Corporation Act 1994.
4. 004-740-809 Pty Ltd, formerly called GKN Kwikform
Services Pty Ltd (GKN), is a duly incorporated company and
at all material times carried on business, inter alia, as
erectors of scaffolding used in building construction.
5. The second defendant, Morris William Male (Male) was at
all relevant times employed by GKN as a scaffolder.
6. On 15 February 1989 -
6.1 GKN was involved in the work of erecting scaffold at a
construction project (project) at a site in Currie Street,
Adelaide, known as the State Bank site.
6.2 Male was one of a number of employees of GKN, involved
in carrying out the work referred to in 6.1.
6.3 Baulderstone was construction manager for the project.
6.4 Canny Rigging was involved in erecting and welding metal
frames at the site as part of the project.
6.5 Male was involved in an accident at the site when he
fell several metres to the ground and thereby suffered
injury.
6.6 The injury is a compensable disability within the
meaning of the Act.
7. As a result of Male's disability, the Corporation has
paid and is liable to continue to pay compensation to Male
in respect of the compensable disability. Particulars of
compensation to 11 November 1994 paid:-
Medical Expenses $ 10,515.20
Income Maintenance 146,521.10
Hospital Expenses 9,085.00
Lump Sum, pursuant to
s43 of Act 29,289.00 $195,410.30
Corporation's estimate of
future liability -
Medical Expenses $1,166.00
Income Maintenance 158,306.00 159,472.00
Total paid and payable $354,882.30
8. On 12 February 1992 Male commenced legal proceedings
(Male proceedings), being action number 345 of 1992, in the
Supreme Court of South Australia, in which GKN, Baulderstone
and Canny Rigging were the defendants. The Male proceedings
claimed damages for negligence against the defendants.
9. On or about 31 October 1994 Male discontinued against GKN
in the Male proceedings.
10. On 14 November 1994 the Male proceedings proceeded to
trial on liability before Judge Burley, Supreme Court
Master, and on 21 December 1994 judgment was delivered as
follows:-
10.1 Male to have judgment against Baulderstone and Canny
Rigging for 85 per cent of his damages to be assessed;
10.2 In the contribution proceedings between Baulderstone
and Canny Rigging, there be an apportionment of liability as
follows:
10.2.1 Baulderstone - 80 per cent, (i.e. 68 per cent of
Male's damages);
10.2.2 Canny Rigging - 20 per cent, (i.e. 17 per cent of
Male's damages).
11. The Corporation gave five notices to Baulderstone
(Baulderstone notices) on the following dates: 30 September
1992, 5 February 1993, 18 October 1993, 26 July 1994, 11
November 1994. Copies of the Baulderstone notices are
attached and marked 'A' as a bundle.
12. The Corporation gave five notices to Canny Rigging
(Canny Rigging notices) on the following dates:
30 September 1992, 5 February 1993, 8 October 1993, 26 July
1994, 11 November 1994. Copies of the Canny Rigging notices
are attached and marked 'B' as a bundle.
13. The Baulderstone notices and the Canny Rigging notices
referred to paragraphs 11 and 12 hereof, purported to give
notice of the Corporation's intention to recover from
Baulderstone and Canny Rigging, the compensation paid and
payable to Male and have first charge on any damages payable
by Baulderstone and Canny Rigging to Male, pursuant to
sub-paragraph 54(7)(e) of the Act.
14. The Corporation has not commenced an action against any
person (including Baulderstone, Canny Rigging and Male)
pursuant to s54(5) of the Act, for the recovery of
compensation paid or payable by it to Male or for his
benefit.
15. In these proceedings the Corporation alleges, and
Baulderstone and Canny Rigging deny that the Baulderstone
notices and the Canny Rigging notices, or any of them, are
valid and create first charges over the damages payable to
Male. The plaintiffs consequently seek declarations.
4. The various notices given on the particular dates mentioned in the agreed facts were included in the case stated. The first notice was given to both plaintiffs in identical form on 30 September 1992.
5. The notice was in the following form:
"We have received advice that you act on behalf of
Baulderstone Pty Ltd.
On the above date the worker sustained multiple fractures to
his head, back, wrist and ribs, during the course of
employment with the abovenamed employer. The injuries
occurred when Mr Male grabbed a section of scaffolding that
he was climbing, which had not been fixed and came away from
the structure, resulting in his fall.
Pursuant to the provisions of the Workers Rehabilitation and
Compensation Act 1986 (the Act) the Workers Rehabilitation
and Compensation Corporation (the Corporation) accepted the
worker's claim for compensation.
The Corporation believes that the worker has a right of
action for damages against Baulderstone Pty Ltd and that in
fact proceedings have already been issued. We accordingly
notify you, pursuant to s54(7) of the Act, of our intention
to recover compensation, both paid and payable, and have
first charge to the extent of the entitlement on damages
payable by your client as wrong-doer.
Payments made on this claim are:-
Medical $ 9,428.90
Income Maintenance 71,092.31
Hospital 9,085.00
Lump Sum 29,289.00
Total $118,895.21
Further projected future payments will also need to be
calculated and included in the declared total of the
Corporation's recoverable sum for any potential settlement
negotiations.
You should immediately advise your public liability insurer
of this notice so that they may undertake any investigations
they deem necessary.
Would you please acknowledge receipt of this letter.
Correspondence should be directed to the Claims Recovery
Unit, or should you wish to discuss this matter further,
please do not hesitate to contact the writer on 233 2522."
6. The agreed facts show that the Male proceedings were brought against GKN, Baulderstone and Canny Rigging. Section 54(1) of the Act would have confined Male's proceedings against GKN to non-economic loss. There would not have been a corresponding restriction in relation to his claim for damages against Baulderstone and Canny Rigging. In other words, his damages against those two entities would be assessed in accordance with the normal common law principles.
7. As Male's action was a claim for personal injuries, he was obliged to commence it within three years after the cause of action accrued (s36 Limitations of Actions Act). Of course if those proceedings had not been brought within that time, he would have been entitled to seek an order pursuant to s48(3)(b)(i) of the Limitations of Actions Act, for an extension of time within which to bring proceedings.
8. Section 54 of the Workers Rehabilitation and Compensation Act, insofar as it is relevant, reads:
"Limitation of employer's liability -
54. (1) Subject to subsection (2), no liability attaches to
an employer in respect of a compensable disability arising
from employment by that employer except-
(a) a liability under this Act; or
(2) Subsection (1) does not affect a liability arising out
of the use of a motor vehicle, being a liability against
which the employer was or ought to have been insured under
the law of compulsory third-party motor vehicle insurance.
(3) A court before which an action is brought against an
employer for non-economic loss arising from a compensable
disability (being a disability that arises out of the use of
a motor vehicle and gives rise to a liability of a kind
referred to in subsection (2)) shall make due allowance for
any lump sum paid or payable under Division 5 or 6 to the
person by or on whose behalf the action is brought.
(4a) Where -
(a) a worker suffers a compensable disability (not being a
disability that arises out of the use of a motor vehicle and
gives rise to a liability of a kind referred to in
subsection (2)); and
(b) the disability is attributable to the negligence of
another worker-
(i) who was acting in the course of employment with the
same employer; and
(ii) whose negligence did not arise from, or in the course
of, serious and wilful misconduct,
the worker has no right of action against the other worker.
(4b) Where -
(a) a worker suffers a compensable disability (not being a
disability that arises out of the use of a motor vehicle and
gives rise to a liability of a kind referred to in
subsection (2)); and
(b) action is taken against a person other than the employer
for damages in respect of the disability,
the other person has no right to recover contribution from
the employer.
(5) Where-
(a) compensation is paid or payable under this Act in
respect of a compensable disability;
(b) a right of action exists against a person other than the
employer for damages in respect of the disability,
the person by whom the compensation is paid or payable is
entitled to recover from that other person the amount of the
compensation in accordance with subsection (7).
(6) Where -
(a) a compensable disability arises out of the use of a
motor vehicle;
(b) the employer was or ought to have been insured against
liability for the disability under the law of compulsory
third-party motor vehicle insurance;
(c) compensation is paid or payable by the Corporation under
this Act in respect of the disability,
the Corporation is entitled to recover the amount of the
compensation in accordance with subsection (7).
(7) Where -
(a) compensation is paid or payable to a person ('the
injured party') under this Act;
(b) the injured party has received, or is entitled to,
damages from another person ('the wrongdoer') in pursuance
of rights arising from the same trauma as gave rise to the
rights to compensation under this Act;
(c) the person by whom the compensation is paid or payable
under this Act ('the claimant') is entitled to recover the
amount of the compensation by virtue of subsection (5) or
(6),
then the following provisions apply:
(d) the claimant is entitled to recover the amount of
compensation paid or payable under this Act from the
wrongdoer or the injured party but subject to the following
qualifications:
(i) no amount may be recovered from the wrongdoer in
excess of the wrongdoer's unsatisfied liability to the
injured party; and
(ii) the claimant must exhaust its rights against the
wrongdoer before recovering against the injured party; and
(iii) no amount may be recovered from the injured party in
excess of the amount of the damages received by the
injured party;
(e) the claimant shall, on giving notice to a wrongdoer of
an entitlement to recover compensation under this section,
have a first charge, to the extent of the entitlement, on
damages payable by the wrongdoer to the injured party;
(f) any amount recovered by the claimant against a wrongdoer
under this subsection shall be deemed to be an amount paid
in or towards satisfaction of the wrongdoer's liability to
the injured party;
(g) an action for the recovery of compensation under this
subsection -
(i) may be heard and determined by the Industrial Court;
and
(ii) must be commenced within 3 years after the date of
the trauma referred to in paragraph (b).
(8) In this section -
'damages' includes any form of compensation payable apart
from this Act in respect of a compensable disability;
'employer' includes-
(a) any person for whose torts an employer is vicariously
liable;
(b) any person who is vicariously liable for the torts of an
employer;
'the law of compulsory third-party motor vehicle insurance'
means-
(a) Part 4 of the Motor Vehicles Act 1959 (including a
policy of insurance under that Part); or
(b) the law of another State or a Territory of the
Commonwealth that corresponds to Part 4 of the Motor
Vehicles Act 1959 (including a policy of insurance under
such a law)."
9. Section 54(5) read with s54(7) provides a complete statutory cause of action for a claimant as defined in s54(7)(c) of the Act. "It is the claimant's own action for indemnity, sui generis created by subs(5) of s54 and enforceable in accordance with subs(7)" per Cox J in Alsafe Safety Industries and Anor. v Workers Rehabilitation and Compensation Corporation and Anor.
(1990) 54 SASR 320.
10. Workers compensation legislation has historically provided, that in circumstances where a worker suffered injury, a statutory liability would be imposed upon the employer to provide a sum by way of weekly payments and in some circumstances, a sum by way of a lump sum. The liability was imposed independent of fault so that a worker who suffered his injury in the course of his employment was entitled to be compensated without further enquiry.
11. Again, historically, workers compensation legislation provided that the employer, on discharging the employer's liability to pay compensation to the worker, was entitled to recover the amount of compensation that the employer paid from any other party who had caused or contributed to the injuries, the subject of the workers compensation payments.
12. In the previous legislation (the Workers Compensation Act 1971) a worker who suffered an injury under circumstances which created a legal liability in a party other than the employer, was entitled to bring proceedings against that third party at common law and at the same time bring proceedings, if the injury arose out of or in the course of his employment against his employer. If he received moneys from both sources there was a statutory liability imposed upon the worker to repay to his employer such amount of the compensation as did not exceed the amount recovered from the third party (s84(b)). An employer was given a statutory charge on moneys payable by the third party to the extent of any compensation paid by the employer. The Act further provided in s84(d) of the repealed Act:
"If the workman has received compensation under this Act,
but no damages or less than the full amount of the damages
to which he is entitled, the third party shall be liable to
indemnity the employer against so much of the compensation
paid to he workman as does not exceed the damages for which
the third party i still liable and the employer may enforce
the indemnity against the third party by action."
13. Section 84(d) gave a statutory cause of action to the employer against the third party tort feasor. It was a statutory cause of action limited to a liability to indemnify the employer against the amount of compensation paid by the employer to the worker. The words 'still liable' suggested that the liability to indemnify only existed whilst the worker himself had a subsisting cause of action against the third party. The words suggested that if the worker allowed his cause of action to expire, then the employer's statutory cause of action would expire. However, the courts determined otherwise. In Tickle Industries Ltd v Hann (1974) 130 CLR 321, the High Court determined that that right of action subsisted, notwithstanding the fact that the worker's claim against the tort feasor had expired. That decision was applied in South Australia in Cowell v General Motors Holden (1977) 17 SASR 148, notwithstanding that the South Australian Act talked about right of recovery only whilst the tort feasor was "still liable".
14. That being the case, the action could be brought at any time by the employer so long as the worker had not compromised his claim with the tort feasor or obtained a judgment against the tort feasor: Seatainer Terminals Ltd v Dunn (1981) 27 SASR 21.
15. No doubt the draftsman of the Workers Rehabilitation and Compensation Act1986 had regard to the fact that those decisions left tort feasors exposed to potential claims by employers, almost ad infinitum. No doubt it was with that in mind that s54(7) was framed in the terms that it was.
16. Each of the parties addressed the case stated upon the basis that if the answer to 1.3 is yes, then that is determinative of the matter. That is say, if an entitlement to recover compensation is extinguished when the three year period referred to in s54(g)(2) expires, without an action having been commenced, then the notice of charge would be ineffective.
17. The plaintiffs argued that the legal right to recover compensation was dependent upon the compensation being sought by the claimant and paid by the wrong-doer within three years of the trauma. It was argued that if the compensation had not been sought within that time, or of course paid within that time, the legal right to recover lapses. It follows, it was put, that the entitlement of the right to recover compensation is a limited or contingent right, the limitation or contingency being that an action for recovery must be commenced within three years of the trauma. It was further put that unless proceedings were commenced within that time, the entitlement lapsed and could not be extended by virtue of s48 of the Limitations of Actions Act. It was said in those circumstances that if there was no longer a remedy available, then the charge under s54(7)(e) also lapsed because there was no longer an entitlement to damages. The plaintiffs argued that the answer to 1.3 depended upon whether or not the rights given under s54(7) were substantive or procedural.
18. The first defendant argued that in fact the three year limitation in s54(7)(g) was procedural in nature only. It was not an integral element of the right of recovery and its expiration, that is, the expiration of that period of time, did not extinguish a claimant's right of recovery. It was put that it was a condition of the remedy rather than element of the right. It was said, because a limitation period can be waived or extended by agreement or extended by statute that in those circumstances the right of recovery is not extinguished on the expiration of the three years.
19. For my part, although I believe that the right given in s54(7)(g) is procedural in nature only, I think it is a question that need not be answered. In my opinion, the question as to whether or not the time limit in s54 can be extended is not answered by reference to s54, but in fact by reference to the Limitations of Actions Act 1936.
20. Section 47 of the Limitations of Actions Act was first introduced in 1959. It then read:
"(1) Where any Act in force at the time of the passing of
the Limitation of Actions Act Amendment Act, 1959, requires
that any action must be brought within a period of six
months or any shorter period from the time when the cause of
action arose any such action may, notwithstanding that Act,
be brought -
(a) at any time not later than six months from the time when
the cause of action arose; or
(b) at any time after the expiration of six months but
before the expiration of twelve months from the time when
the cause of action arose, if the plaintiff was given the
defendant a notice as mentioned in this section within six
months after the cause of action arose; or
(c) at any time after the expiration of six months but
before the expiration of twelve months from the time when
the cause of action arose, if the court which hears the
action is satisfied that failure to give the notice was due
to absence from the State, illness, or other reasonable
cause or that the defendant has not been prejudiced by such
failure."
21. It was no doubt enacted to ameliorate against the harshness of limitation periods of less than one year, which in 1959 were, and still to some extent, are scattered throughout the Statute Books.
22. Section 48 was introduced in 1972. It read, in its then form:
"(1) Subject to this section, a court by which an action
could if it were not out of time, be entertained, may extend
the time for bringing the action.
(2) An extension of time shall not be granted by a court
under sub-section (1) of this section unless it is satisfied
that facts material to the plaintiff's case were not
ascertained by him until -
(a) after, or within twelve months before, the expiration of
the period of limitation;
and
(b) within twelve months before the commencement of the
action,
and that in all the circumstances of the case it is fair and
equitable to grant the extension of time.
(3) Where an extension of time is sought pursuant to this
section in respect of an action, the action may be initiated
in the normal manner, but the process by which it is
initiated must be endorsed with a statement to the effect
that the plaintiff seeks an extension of time pursuant to
this section.
(4) The proceedings relating to the extension of time may be
determined by the court at any time before or after the
close of pleadings."
23. Section 48 was enacted for reasons quite different to s47. It was enacted for the purpose of allowing the Court to extend time in respect of time limits generally. In its original form s48 did not discriminate between time limits imposed by the Limitations of Actions Act itself and time limits imposed by other statutes. In its then form, it simply gave the court a discretion provided the matters in subs(2) were satisfied, to grant an extension of time for the bringing of an action. It is to be noticed that in its then form, s48 was limited to extending time for the bringing of actions. In its original form it allowed the Court to entertain the application, notwithstanding the time for the bringing of the action had expired.
24. Section 48 was first considered by this Court in Lovett v Le Gall (1975) 10 SASR 479 on an appeal from Judge White (as he then was) in the Local Court of Adelaide. The Full Court approved the decision of Judge White. His decision in the Local Court, has been reported as a note in the authorized report at page 486.
25. His Honour said in relation to the history of these sections:
"In construing the section, regard should be had not only
to the scope and policy of the original Limitation of
actions Act 1936-1959, but to the history of its piecemeal
amendment in later years, and to the place which s48 has
amongst those amendments. Section 48 is one of a number of
amendments which ameliorate the hardship caused to some
classes of plaintiffs, who would otherwise be barred from
approaching the court by reason of the rigid time limit in
s36 or by a wide variety of other very short limitation
periods contained in other Acts in favour of the Crown and
various statutory authorities. The latter difficulties were
softened to some extent by new s47, first enacted in 1959,
whereby short time limits were increased to six months
without notice of action and twelve months with notice. The
1959 amendment has become obsolete by reason of the Crown
Proceedings Act 1972, which places the Crown and statutory
authorities in a similar position to that of personal
defendants in relation to time limitations. The Crown
Proceedings Act 1972, which places the Crown and statutory
authorities in a similar position to that of personal
defendants in relation to time limitations. The Crown
Proceedings Act 1972 was assented to only one week before
the abovementioned Statutes Amendment (Miscellaneous
Provisions) Act 1972. I am impressed by the sequence of
these events.
Section 45 and 46 of the Limitation of Actions Act have for
long provided some assistance to persons under a disability.
Those two sections were repealed and re-enacted in a form
more comprehensive and favourable to plaintiffs in the very
Act which gave the Court the discretion to extend time in
new s48. In addition, a new section 46a was enacted so as
to exclude time from running in the case of death between
the date of death and the date of grant of probate or
letters of administration, or twelve months after death,
whichever was the shorter period. I think that s48 must be
viewed against this background of progressive exceptions to
the previous rigidity of the limitation laws, and, in
particular, against the background of substantial easing of
rigid time limits. In my view, the words in the section are
reasonably clear and the construction I have put on them is
consistent with the above history of amendments."
26. The decision of Judge White was given approximately three months before the repeal and re-enactment of both ss47 and 48, which were re-enacted in their present form by the Limitations of Actions Act of 1975.
"47. (1) Where any Act, regulation, rule or by-law limits
the time within which an action to which this section
applies may be brought to a period of less than twelve
months from the time the cause of action arises, then,
notwithstanding that limitation, that action may be brought
at any time within twelve months from the time the cause of
action arises.
(2) This section applies to all actions except -
(a) a criminal action; and
(b) an action to try the validity of an election or of title
to an office; and
(c) an action to try the validity of an assessment, rate or
loan made by or to a local government body; and
(d) any other action to the nature or purpose of which the
limitation is, in the opinion of the court, essential.
48. (1) Subject to this section, where an Act, regulation,
rule or by-law prescribes or limits the time for-
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c) doing any act or taking any step with a view to
instituting an action,
a court may extend the time so prescribed or limited to such
an extent, and upon such terms (if any) as the justice of
the case may require.
(2) A court may exercise the powers conferred by this
section in respect of any action that -
(a) the court has jurisdiction to entertain; or
(b) the court would, if the action were not out of time,
have jurisdiction to entertain.
(3) This section does not -
(a) apply to criminal proceedings; or
(b) empower a court to extend a limitation of time
prescribed by this Act unless it is satisfied -
(i) that facts material to the plaintiff's case were not
ascertained by him until some point of time occurring
within twelve months before the expiration of the period
of limitation or occurring after the expiration of that
period and that the action was instituted within twelve
months after the ascertainment of those facts by the
plaintiff; or
(ii) that the plaintiff's failure to institute the action
within the period of the limitation resulted from
representations or conduct of the defendant, or a person
whom the plaintiff reasonably believed to be acting on
behalf of the defendant, and was reasonable in view of
those representations or that conduct and any other
relevant circumstances,
and that in all the circumstances of the case it is just to
grant the extension of time.
(4) Where an extension of time is sought pursuant to this
section in respect of the commencement of an action, the
action may be instituted in the normal manner, but the
process by which it is instituted must be endorsed with a
statement to the effect that the plaintiff seeks an
extension of time pursuant to this section.
(5) Proceedings under this section may be determined by the
court at any time before or after the close of pleadings.
(6) This section does not derogate from any other provision
under which a court may extend or abridge time prescribed or
limited by an Act, regulation, rule or by-law. "
27. The purpose of ss47 and 48 was considered by King CJ in R v Di Fazio
(1979) 20 SASR 559 and his Honour said at page 560:
"I am unable to agree that s48 of the Limitation of Actions
Act does not apply to limitation periods which are extended
by s47. The history of the two sections is referred to by
Williams AJ. It seems to me that the purpose of the two
sections is different. Section 47 is concerned with the
harshness of the operation of the various limitation periods
of less than one year which are scattered through the
statute books. Its purpose and effect are to substitute for
such short periods a period of one year.
Section 48 is concerned with the injustice which may result
from the rigid application of time limits in general. It
seeks to ameliorate such injustice by conferring on the
Court a discretion, subject to some restriction where the
time limit is one prescribed by the Limitation of Actions
Act itself, to extend time limits 'to such an extent, and
upon such terms (if any) as the justice of the case may
require'. I see no reason why this provision should not
have been intended to apply to time limits which are
extended by s47. Unjust results might flow from those
extended time limits just as from other time limits. The
time limits extended by s47 do not differ from other time
limits. The language of s47 is general and, read literally,
it applies to all time limits in all proceedings other than
criminal proceedings. All time limits are capable of
producing the injustice which the section seeks to
ameliorate and I see no justification for limiting the
generality of the language used."
28. The re-enactment made substantial changes to the law. In respect of s47 the provision was widened to include regulations, rules or by-laws, as well as Acts. After the re-enactment, subs(2) was included to except some actions from the provisions of s47. So in one sense s47 was widened, but at the same time it was also limited so as to exclude all of the actions referred to in subs(2). Specifically, criminal actions were accepted. A number of significant changes were made to s48 by its re-enactment. Firstly, it was made clear in s48 that it applied not only to Acts prescribing or limiting the time for commencement, but also regulations, rules or by-laws, so as to be in conformity with the new s47. It was also extended so as to apply to time limits, not only in relation to the institution of an action, but also in relation to the doing of any act or taking any step in any action, and indeed, was extended to apply where an act, regulation, rule or by-law prescribed the time for doing any act or taking any step with a view to instituting an action.
29. Action of course is defined in s3 of the Limitations of Actions Act and includes legal proceedings of all kinds. Both sections therefore applied to legal proceedings of all kinds.
30. Section 48(1) provided that that time limit could be extended, notwithstanding that no material facts had come to the applicant's attention, as was previously required under the repealed s48. Indeed, s48 allowed a court to extend time "as the justice of the case requires."
31. However at the same time, s48(3)(b) was included such that where the time limit was prescribed by the Limitations of Actions Act itself, then the applicant needed to satisfy the threshold question that had been in the repealed s48, namely the ascertainment of material facts. At the same time, the 1975 re-enactment made it clear that s48 did not apply to criminal proceedings.
32. Most importantly, for the purpose of this case, subs(2) was included in its present form to allow for the power conferred by the section to be exercised in any case where the court has jurisdiction to entertain the action, or in circumstances where the court would, if the action were not out of time, have jurisdiction to entertain. That provision made it clear, in my opinion, that s48 could operate even in circumstances where jurisdiction had been granted, but not invoked by reason of the failure of a party to bring the proceedings within time. The purpose of s48(2) was to allow s48 to operate in circumstances where the time limit prescribed by the act, regulation, rule or by-law, was a condition to the granting and the exercise of jurisdiction and in circumstances where the time limit was part of the right itself and not simply a bar to the remedy.
33. In my opinion it is not necessary to determine whether s54(7)(g) is part of the right, or simply a bar to the exercise of the remedy, because whether it is either, s48 can operate upon it and extend the time within which the proceedings can be commenced. That interpretation of s48 is consistent, in my opinion, with the decision of the Full Court of R v Di Fazio (1979) 20 SASR
559, and as well with the reasons of the High Court in the same case, sub nomine General Motors Holdens Ltd v Di Fazio (1979) 141 CLR 659.
34. In that case the Full Court and the High Court were called upon to consider the effect of s15(1)(e) of the Industrial Conciliation Arbitration Act 1972. That section provided:
"15. (1) In addition to the jurisdiction conferred on it
elsewhere in this Act, or under any other Act, whether of
this State or the Commonwealth, the Court shall, subject to
this Act, have jurisdiction -
(e) To hear and determine any question as to whether the
dismissal from his employment of an employee, not being an
employee who has under any act or law a right of appeal or
review against his dismissal, was harsh, unjust or
unreasonable, and the Court may, if it thinks fit, direct
the employer of that employee to re-employ that employee in
his former position on terms that are not less favourable to
the employee than if he had not been dismissed from his
employment and without limiting the generality of the
foregoing may order that the employee be paid a sum not
exceeding a sum equal to the wages that he would have
received had he been employed in the employment between the
time of his dismissal and the time at which he was
re-employed, but the Court shall not exercise the jurisdiction
conferred upon it by this paragraph unless an application
invoking the jurisdiction is made, by or on behalf of the
dismissed employee, within twenty-one days from the day on
which it is alleged that the employee was so dismissed."
35. An employee of General Motors Holdens who was dismissed, applied to the Industrial Court of South Australia for a determination under s15(1)(e) that his dismissal was harsh, unjust or unreasonable, and sought an order for reinstatement. The application was not made within the time prescribed by s15(1)(e) and as a consequence the worker sought an extension of time within which to make the application. The matter came before Mr Di Fazio IM, who made an order extending the time, pursuant to s48 of the Limitations of Actions Act.
36. General Motors Holdens sought an order nisi for certiorari to remove the decision of the Magistrate into the Supreme Court of South Australia to be quashed and also sought an order nisi for prohibition to prohibit the Magistrate from further consideration of the application.
37. The Full Court of the Supreme Court (King CJ and Williams AJ, Jacobs J dissenting) concluded that the Magistrate did not commit any error in extending the time in which the worker might make his application under s15(1)(e) and the order nisi for certiorari was accordingly discharged.
38. General Motors Holdens sought special leave to appeal from that decision. Three arguments were put forward. The first was that the time limit was a time limit which was essential, and therefore s47 could not apply because of s47(2)(d) and therefore it would follow that s48 could not apply. Secondly, it was argued that as the application had not been brought within the time prescribed by s15(1)(e), the jurisdiction given to the Industrial Court was lost and it was not thereafter empowered to extend time. Thirdly it was argued that s15(1)(e) was inconsistent with a Federal Award which meant that s15(1)(e) was inoperative by reason of s109 of the Commonwealth Constitution. That last argument, which failed, does not need to be considered here.
39. The High Court saw no incongruity in holding that the discretionary power under s48, enabled the Court to extend time even in proceedings where a time limit was essential as contemplated in s47(2)(d). Gibbs J said at page 663:
"I see no incongruity in holding that the discretionary
power granted by s48 of the Limitations of Actions Act
enables the court to extend time even in proceedings within
s47(2)(d) of that Act, that is, proceedings 'to the nature
or purpose of which the limitation is, in the opinion of the
court, essential.' In the present case, for example, the
employee made his application one day late, and the purpose
of the limitation is not likely to be defeated by extending
the time by one day."
40. In relation to the legislation generally, and more particularly to the second argument that was advanced, Mason J said at page 668:
"There is some slight different in language between the
opening words of s47(1) and those of s48(1)(a).
Nevertheless it is apparent that both sections are directed
to statutory limitations of action, that is, statutory
provisions which fix the time within which legal proceedings
may be brought or instituted, though s48(1) applies to other
time limitations as well (see s48(1)(b) and (c)). The most
common illustration of the statutory limitation of action is
that which operates to bar the remedy or to bar the right
and the remedy unless an action is commenced within a
prescribed time. There is, however, no reason to think that
the two sections are confined in their application to
limitations of this kind. The expression 'cause of action'
frequently signifies an antecedent right asserted by a
plaintiff. However, in the context of a general provision,
dealing with limitations of actions and applicable to 'all
actions', except those mentioned in s47(2), it should be
given the wider meaning cause of complaint. Moreover, the
width and generality of the statutory definition of the word
'action' indicate that the provisions are not restricted to
actions in which the plaintiff seeks to enforce an
antecedent legal right. Quite obviously they extend to
proceedings in which the making of the order sought is the
source of the right sought to be established. R v
Commonwealth Court of Conciliation and Arbitration Ex-Parte
Barrett (1945) 70 CLR 141.
The applicant attempted to avoid this conclusion by
submitting that 'action' in s48(1) should be narrowly
construed, despite the presence of the statutory definition
in s3(1). Reliance was placed on the expression 'criminal
proceedings' in s48(3). However, this expression is not in
any way inconsistent with the definition. Reference was
also made to s48(5) which enables the court to determine
proceedings under s48 'at any time before or after the close
of pleadings'. It scarcely needs to be said that to proceed
without more from this premiss to the conclusion that s48
applied only to actions involving a writ and pleadings would
be to perpetrate a fundamental error in logic.
The language of s47(1) and s48(1) is apt to apply to any
statutory limitation fixing the time within which
proceedings may be brought, whether the limitation bars the
right or the remedy, whether it deprives the Court of
jurisdiction of, I would add, of power to make an order.
That s48 applies to a limitation which conditions the
existence of jurisdiction on an application made within a
time prescribed is made clear by s48(2)(b)."
41. It seems to me that that case is authority for the proposition to which I have earlier referred, viz. that s48 may operate to extend a time limit even if jurisdiction to grant the extension of time has expired and even if the time limit is a element of the existence of the right. There is further confirmation of that in the following passage of Mason J at page 669:
"Section 48(2)(b) confirms the impression that I gather from
reading s47(1) and s48(1). They identify statutory
provisions by reference to their effect in limiting the time
in which proceedings may be brought; the two sub-sections do
not otherwise refer to the character of the provisions or to
the means by which the limitation operates to defeat the
plaintiff's claim. It would be quite wrong to import into
the two sub-sections a qualification, based on s48(2)(b),
that the two sub-sections have no application to a
limitation which operates by prohibiting the exercise of
jurisdiction except on an application made within the
prescribed time, whilst conceding that they may apply to a
limitation which conditions the existence of jurisdiction on
such an application. Section 48(2)(b) does not extend the
language of s.48(1). Section 48(2)(b) is designed to ensure
that an extension of time may be granted, notwithstanding
that otherwise the court may lack jurisdiction to make the
order."
42. It follows expressly from General Motors Holdens v Di Fazio that even where a time limit is a condition of the grant of jurisdiction, or where the time limit operates as a condition of the right, s48 can operate to allow a court to extend time within which to bring these proceedings. That is why, in my opinion, it is not necessary to consider whether s54(7)(g)(ii) imposes a time limit which is an element in the right or a condition of the remedy.
43. For those reasons I would answer no to 1.3.
44. It would follow that in my opinion a notice can be given pursuant to s54(7)(e) more than three years after the date of the trauma. The notice would need to specify an entitlement to recover compensation under s54(7) and to the extent of that entitlement would operate as a first charge on the damages payable by the wrong-doer to the injured party.
45. As to the extent of the entitlement that will be dependent upon the claimant establishing, as all claimants under this section must, that the injured party is entitled to charges from the wrong-doer. That means that a claimant would need to establish, if the proceedings are brought within time, that the wrong-doer is liable to the injured party at common law. Alsafe Industries v Workers Rehabilitation and Compensation Corporation (supra). If the proceedings are brought outside the three year period, the claimant would have to firstly establish that an order ought to be made extending time within which to bring proceedings, and secondly, the same matters that any claimant within time has to establish.
46. Whilst it would no doubt be said by wrong-doers that the result leaves them exposed to a potential charge upon moneys for an unknown amount, so also would they be so exposed if proceedings were brought within time. The charge at all times only operates to the extent of the wrong-doers obligations to the injured party.
47. The only circumstances contemplated in s54(7)(e) are circumstances where a wrong-doer has not paid to an injured party the damages which the wrong-doer would be obliged to pay to the injured party. It must be remembered that the injured wrong-doer also could obtain an extension of time to bring proceedings. I see nothing unfair in the result arrived at.
48. In those circumstances I would answer 1.1:
A notice given by a claimant to a wrong-doer more than three
years after the date of the trauma which gave rise to the
compensation right, will give that claimant a first charge
on damages payable by the wrong-doer to the injured party to
the extent of the claimant's entitlement, which entitlement
will depend inter alia on the claimant obtaining an order
for an extension of time within which to bring the
proceedings against the wrong-doer.
49. The answer to 1.2 flows from the answer already given. Each notice creates a first charge to the extent of the claimant's entitlement as already explained. I therefore propose that 1.3 be answered:
Each notice of 30 September 1992 and each subsequent notice
creates a first charge to the extent of the claimant's
entitlement under s54(5) and s54(7).
50. I would thus answer the questions:
1.1 A notice given by a claimant to a wrong-doer more than
three years after the date of the trauma which gave rise to
the compensation right, will give that claimant a first
charge on damages payable by the wrong-doer to the injured
party to the extent of the claimant's entitlement, which
entitlement will depend inter alia on the claimant obtaining
an order for an extension of time within which to bring the
proceedings against the wrong-doer.
1.2 Each notice of 30 September 1992 and each subsequent
notice creates a first charge to the extent of the
claimant's entitlement under s54(5) and s54(7).
1.3 No.
0
7
0