Blythe v The State of Western Australia
[2008] WASCA 10
•11 DECEMBER 2007
BLYTHE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 10
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 10 | |
| THE COURT OF APPEAL (WA) | 17/01/2008 | ||
| Case No: | CACV:141/2007 | 11 DECEMBER 2007 | |
| Coram: | PULLIN JA BUSS JA | 10/12/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal granted Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | JAIH SCOTT BLYTHE THE STATE OF WESTERN AUSTRALIA MINISTER FOR EDUCATION |
Catchwords: | Limitation of actions Action against the State and against the Minister to be brought within one year Jurisdiction in the court to extend time to bring action Student injured at school Court declining to extend time to bring action Whether precondition for exercise of discretion existed Whether delay occasioned by reasonable cause Whether just to extend time Whether fair trial possible Evidence Affidavit Form of affidavit if deponent to adduce evidence by way of information and belief |
Legislation: | Crown Suits Act 1947 (WA), s 6 District Court of Western Australia Act 1969 (WA), s 79(1)(b) Limitation Act 1935 (WA), s 47A Limitation Act 2005 (WA), s 6(2) Limitation Legislation Amendment and Repeal Act 2005 (WA), s 4, s 8(1), s 8(2) Rules of the Supreme Court 1971 (WA), O 36 r 6 |
Case References: | Bingham v England (1996) 17 WAR 226 Black v City of South Melbourne [1963] VR 34 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Ducker v The State of Western Australia [2006] WASCA 93 Girando v Girando (1997) 18 WAR 450 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hughes v Minister for Health [1999] WASCA 131 In re J L Young Manufacturing Co Ltd [1900] 2 Ch 753 Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989) Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Westpoint Management Pty Ltd v Goakes [2002] WASCA 317 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BLYTHE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 10 CORAM : PULLIN JA
- BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
First respondent
MINISTER FOR EDUCATION
Second respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
Citation : BLYTHE -v- THE STATE OF WESTERN AUSTRALIA & ANOR [2007] WADC 175
File No : CIVO 93 of 2007
(Page 2)
Catchwords:
Limitation of actions - Action against the State and against the Minister to be brought within one year - Jurisdiction in the court to extend time to bring action - Student injured at school - Court declining to extend time to bring action - Whether precondition for exercise of discretion existed - Whether delay occasioned by reasonable cause - Whether just to extend time - Whether fair trial possible
Evidence - Affidavit - Form of affidavit if deponent to adduce evidence by way of information and belief
Legislation:
Crown Suits Act 1947 (WA), s 6
District Court of Western Australia Act 1969 (WA), s 79(1)(b)
Limitation Act 1935 (WA), s 47A
Limitation Act 2005 (WA), s 6(2)
Limitation Legislation Amendment and Repeal Act 2005 (WA), s 4, s 8(1), s 8(2)
Rules of the Supreme Court 1971 (WA), O 36 r 6
Result:
Extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr M D Cuerden
First respondent : Ms B A Mangan
Second respondent : Ms B A Mangan
Solicitors:
Appellant : Fiocco's Lawyers
First respondent : Lavan Legal
Second respondent : Lavan Legal
Case(s) referred to in judgment(s):
Bingham v England (1996) 17 WAR 226
Black v City of South Melbourne [1963] VR 34
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Ducker v The State of Western Australia [2006] WASCA 93
Girando v Girando (1997) 18 WAR 450
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hughes v Minister for Health [1999] WASCA 131
In re J L Young Manufacturing Co Ltd [1900] 2 Ch 753
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Westpoint Management Pty Ltd v Goakes [2002] WASCA 317
Wilson v Metaxas [1989] WAR 285
(Page 4)
1 JUDGMENT OF THE COURT: This was an application for an extension of time in which to appeal and an application for leave to appeal from the judgment of Eaton DCJ in the District Court, whereby his Honour dismissed the appellant's applications pursuant to:
(a) s 6 of the Crown Suits Act 1947 (WA), for leave to bring an action against the first respondent, and
(b) s 47A of the Limitation Act 1935 (WA), for leave to bring an action against the second respondent.
2 The appeal was expedited because the position was that if the appellant did not obtain leave and commence proceedings before 14 December 2007, he would have had no right of action against the first respondent and would have faced an unanswerable limitation defence likely to be raised by the second respondent. After the conclusion of the hearing on 11 December 2007, the court granted the extension of time, granted leave to appeal, allowed the appeal, set aside the learned judge's order and in lieu granted the appellant leave to bring the proposed actions. The court said that it would provide its reasons later. These are the reasons for the orders made.
Application for extension of time to appeal and application for leave to appeal
3 The decision appealed against was an interlocutory decision (Ducker v The State of Western Australia [2006] WASCA 93, [18] (Buss JA, Wheeler JA agreeing)). The decision was therefore not a final decision which meant that leave to appeal was required. See s 79(1)(b) of the District Court of Western Australia Act 1969 (WA).
4 His Honour's order was made on 8 October 2007. Rule 26(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA)required the appeal to be instituted 14 days thereafter. The appeal should therefore have been instituted by 22 October 2007. The appeal was commenced on 24 October 2007.
5 Mr Fiocco, a partner of the appellant's present solicitors, Fiocco's Lawyers, deposed that his firm was not instructed to act until on or about 12 October 2007. Mr Fiocco was asked to act by the appellant's former solicitors who decided, quite properly, that new solicitors should be instructed in light of the decision. Mr Fiocco considered the decision in the week commencing 15 October; attempted unsuccessfully to contact counsel who had been involved in the hearing before Judge Eaton and on 22 October 2007, obtained instructions to consider lodging an appeal. On
(Page 5)
- 23 October 2007, Mr Fiocco had a discussion with counsel who had appeared for the appellant at the hearing in the District Court and following that discussion the appeal notice was prepared and then filed and served on 24 October 2007. It was only after correspondence with the respondents' solicitors that Mr Fiocco realised that the appeal had been instituted two days out of time.
6 The considerations relevant to the grant of an extension of time are stated in Girando v Girando (1997) 18 WAR 450, 453 - 454. There is a cogent explanation for the delay, the length of the delay is slight and there is no prejudice to the respondents by reason of the two day delay. In those circumstances an extension should be granted if the appellant has an arguable case.
7 Leave to appeal will usually be granted if the decision is wrong or at least attended with sufficient doubt to justify the grant of leave and if substantial injustice would occur if the decision were left unreversed. See Wilson v Metaxas [1989] WAR 285, 294. These are not rigid or exhaustive requirements and leave may be granted if it is in the interests of justice that leave be granted: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 56 - 57. There is no question that substantial injustice will occur if the decision is left unreversed. The question therefore is whether the decision appealed against is either wrong or attended with doubt sufficient to justify the grant of leave.
The evidence of the appellant
8 The appellant in an affidavit sworn on 19 July 2007, deposed that he was born on 11 July 1987 and is now 20 years old. He deposed that on Friday 14 December 2001, he was a student at the Swan View Senior High School. On that day, as a member of the Talented and Gifted Students' Group (TAGS), he went on a school excursion. His Honour's reasons summarised what the appellant deposed to in his affidavit concerning an incident which resulted in an injury to his eye:
Upon return to the school the group waited at the grassed area at the front of the school to be collected by parents. As they waited the group was approached by two students from the school who were not members of TAGS. Their names were Anthony Wilson and Kieran Lucy. For some reason rocks were thrown by Wilson and Lucy at members of the group and by members of the group, including Jaih Blythe, at Wilson and Lucy. Jaih Blythe stopped throwing rocks and bent to pick up his school bag. As he did he was struck in the right eye by a rock thrown by Wilson. Teachers came to his assistance. They were Ms Anning and Ms Delario.
(Page 6)
- They had not intervened to prevent the rock-throwing. He suffered an injury to his right eye. [1]
9 His Honour's reasons also summarise the appellant's evidence concerning the taking of legal advice, the medical advice and treatment he received and the action taken pursuant to the legal and medical advice:
The applicant says that his parents, John and Michelle Blythe, engaged Feinauer & Associates, Solicitors, on 7 February 2002 concerning his injury. It appears that Ms Tsang, of Feinauer & Associates, wrote a letter to Dr S W Scargill, ophthalmic surgeon of Midland, on 7 March 2002 requesting a report as to the applicant's injury. Dr Scargill replied on 14 March 2002. In that report he confirmed that the applicant was in receipt of medication to help constrict his pupil and to cut down glare. It would also improve his visual acuity. Dr Scargill recommended 'follow-up' at six monthly intervals for a couple of years, annually for five years and then every two years for the rest of his life. He thought that the short term prognosis so far as visual function was concerned was excellent but that it was prudent to wait for about six months to enable the injury to settle. Importantly he said:
'In regards to the medium and long term, when an eye has been injured to this extent, it does not grow old as gracefully as the other organ and he is at risk of developing secondary glaucoma, retinal detachment and cataract. I find it impossible to give you any accurate figures as to how any of these may occur.'
I deduce from the foregoing that the applicant had, on 14 December 2001, suffered a substantial injury to his right eye which would result in regular follow-ups for the rest of his life and possible further adverse consequences.
The applicant said, at par 27 of his affidavit sworn 19 July 2007 that he was advised at various stages by his solicitors that the limitation period for his claim expired on 11 July 2006, his 19th birthday. That was based upon the proposition, apparently, that the limitation period for a claim against a public authority was 12 months from the date on which the cause of action accrued and that, as he was a minor, no cause of action would accrue until his 18th birthday.
It seems that the solicitors engaged by the applicant's parents briefed a barrister to provide an opinion on the applicant's claim in about December 2002. By letter of 20 January 2002 [sic] that barrister declined the brief. A further barrister was briefed in about July 2003. The response from that barrister being unsatisfactory, a third barrister was engaged in about June 2005. That barrister provided an opinion as to liability and quantum in September 2005 and gave further advice as to appropriate notice to the defendants in January 2006.
(Page 7)
- By letter of 28 July 2006 the solicitors engaged by the applicant's parents wrote to the Chief Executive Officer of the Department of Education giving notice on behalf of the applicant under s 47A(1)(a) of the Limitation Act 1935 and seeking consent under s 47A(2) of that Act to initiate proceedings against the Minister for Education and the Chief Executive Officer of the Department of Education. The letter gave an account of the incident on 14 December 2001 indicating that throughout the excursion two teachers, Ms Anning and Ms Delario, were supervising. The letter suggested that the teachers involved were negligent in that they failed to notice the students engaging in a potentially dangerous endeavour over a protracted period of time and that, in consequence, they failed to intervene to stop the endeavour which eventually resulted in injury suffered by the applicant. The letter also suggested that the school authority was vicariously liable for the negligence of its teachers employed, as alleged, in the specific task of supervising the students at the last moments of the school day. [8] - [12]
- It was not in dispute that the appellant's former solicitors were mistaken in their opinion that the limitation period expired on his 19th birthday. The time limit for action against each respondent was one year from 14 December 2001.
10 The letter of 28 July 2006 to the Department of Education, was the first notice to the second respondent of a proposed action arising out of the events at the school on 14 December 2001. On 18 April 2007 the appellant's then solicitors wrote to the State Solicitor's Office enclosing a copy of the letter sent to the Chief Executive Officer of the Department of Education in 2006 and giving notice of an intended application pursuant to the Crown Suits Act seeking leave to sue the first respondent.
The legislation
11 Section 6 of the Crown Suits Act in force on the date of the accident read:
(1) Subject to the provisions of subsections (2) and (3), no right of action lies against the Crown unless -
(a) the party proposing to take action gives to the Crown Solicitor, as soon as practicable or within 3 months (whichever of such periods is the longer), after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the party and his solicitor or agent; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,
- and for the purposes of this section where the act, neglect, or default on which the proposed action is based is a continuing one, no cause of action in respect of the act, neglect or default accrues until the act, neglect or default has ceased but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.
- …
(3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court having jurisdiction to hear the action when the application is granted for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the Crown.
(b) Where the Court considers that the failure to give the notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose.
13 Section 47A of the Limitation Act 1935 read:
(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless -
(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,
- and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.
- …
(3) (a) Notwithstanding the foregoing provisions of this sectionapplication may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.
(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it think it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
The issues on this appeal
15 The provisions of s 6 of the Crown Suits Act and s 47A of the Limitation Act 1935 each conferred a discretion on the court to grant leave to bring an action if it was just to do so if the discretion was enlivened by the satisfaction of one or more of three qualifying conditions, ie mistake, other reasonable cause or no material prejudice to the defendant in its defence or otherwise.
16 Judge Eaton found that the delay in bringing the action was occasioned by reasonable cause. That finding is challenged by the respondents in a notice of contention. Having found that the delay was occasioned by reasonable cause, he then declined in the exercise of his
(Page 10)
- discretion, to grant leave to bring the action and made an order dismissing the applications. That order is the subject of the appellant's appeal.
The other evidence before the District Court
17 As well as the appellant's affidavit, there were four other affidavits before Judge Eaton, all filed by the respondents. Two of the affidavits filed by the respondents deposed to receipt of the letters sent by the appellant's former solicitors referred to above and action taken to instruct solicitors. They were of no further significance. A third affidavit sworn by Leanne Lehman, deposed that upon receipt of the letter to the Chief Executive Officer of the Department of Education, she contacted the Manager, Operations at the Swan Education District to locate documents that office may have held and seeking permission to contact the Principal of the school. Ms Lehman deposed to a telephone conversation with the Principal of the school on 6 July 2007. The Principal, Mr Nairn, indicated that he had coordinated a diligent search and that he had personally gone through the archived office files and documents primarily for November and December 2001 and was also canvassing 2002. No incident reports or records of any internal investigations could be located. He was able to locate a copy of a notification of suspension for Kieran Lucy and another for Anthony Wilson, both dated 20 December 2001. Ms Lehman was also able to obtain a copy of a 'regulatory framework index' published October 2001 and the 'excursion policy' which was in place at the time of the accident. The excursion policy stated that '[D]uty of care for the safety and welfare of students remains, at all times, the primary responsibility of teaching staff and cannot be delegated to non-teaching staff'.
18 Clause 4.2.1 of the excursion policy stated that:
The teacher-in-charge must take reasonable steps to foresee the potential for injuries and areas of danger in the itinerary of the excursion and then take those precautions that minimise the risks to excursion participants.
19 The fourth affidavit was sworn by Ms Barbara Jorden of CSI Investigations on 28 August 2007. Ms Jorden was an investigator retained on behalf of insurers for the respondents.
20 Ms Jorden deposed that on 21 August 2006, having received instructions, she spoke to the then Principal of the school and the Principal at the time of the accident. Ms Jorden also spoke to four teachers 'who were four of the teachers involved with the excursion and one former student who attended the excursion'.
21 Paragraph 6 of Ms Jorden's affidavit reads:
(Page 11)
- [T]wo of the teachers with whom I spoke are currently teachers at SVSHS, the third is now living interstate and with whom I spoke by telephone and the fourth is no longer employed by the Department of Education and Training but continues to reside in Perth and I spoke with her by telephone also.
22 Ms Jorden's affidavit did not give a full account of what the teachers said to her. The affidavit reads:
11 No teacher with whom I spoke saw the incident occur and all were unaware as to the exact circumstances of the plaintiff sustaining his injury.
12 One teacher recalled taking the student to hospital after he was injured and recalled writing an incident report afterwards and providing it to the school administration. She did not keep a copy of the incident report.
13 My enquiries with the current Principal did not locate a copy of the incident report mentioned above.
14 Whilst the teachers and the former Principal could narrow the age range of students participating in the excursion to lower school students, no one with whom I spoke could remember the number of students who participated in the excursion or the exact number of teachers supervising the students.
15 There was a discrepancy in the teachers' recollections as to the time frame involved between the return of the students from the excursion to the school premises and the end of the school day or the time the incident occurred.
23 Ms Jorden also deposed that the current Principal was unable to provide her with any record of investigation or incident report relating to the injury to the appellant on 14 December 2001, or any other record or document 'apart from two "Notification to District Education Office Student Suspension From School" forms, issued to former students, Kieran Lucy and Anthony Wilson, dated 20 December 2001'. They were exhibited to the affidavit and revealed in relation to Anthony Wilson, that 'Anthony became involved in a rock throwing incident with another student. A rock thrown by Anthony ended up damaging the eye of the other student. This is irresponsible and dangerous behaviour'.
24 The one directed to Kieran Lucy read 'Kieran was involved in a rock throwing incident at the end of school where he is alleged to have used a "glove gun" to ping a rock at another student. He had already been
(Page 12)
- warned earlier in the week about a similar incident. A student's eye was damaged in the incident'.
25 Ms Jorden deposed that all the teachers with whom she spoke, 'recalled the general circumstances of the incident' and that she had located and spoken to another witness, a former student who had also attended the excursion. Ms Jorden deposed that 'the former student recalled the plaintiff being struck by a rock thrown by another student and the general circumstances in which the plaintiff was injured'.
26 Paragraphs 18 and 19 of the affidavit read:
18 The former student was unable to state any precise details of the circumstances of the incident, due to the length of time which had passed.
19 The former student was unable to recall the time the students attending the excursion arrived back at the school from the excursion or how much time passed after arrival back at the school before the plaintiff was injured or before the school bell sounded to end the school day.
- The appellant objected to these paragraphs. Ms Jorden's affidavit did not disclose the identity of this student and did not depose that she believed what she was told by the student was true.
The judge's reasons for decision
27 The judge, in his reasons for decision, set out the statutory provisions, summarised the evidence and then considered whether the delay in bringing the action was occasioned by mistake or any other reasonable cause, or whether the respondents were not materially prejudiced by the delay. His Honour said:
It is clear that the applicant was not well served by the solicitors engaged by his parents and by at least one member of the independent bar. Be that as it may, I must now consider whether the delay in bringing the action was occasioned by mistake or any other reasonable cause. The length of the delay is significant in this case. The event complained of occurred on 14 December 2001. The applicant's parents acted quickly in appointing solicitors who wrote to the ophthalmic surgeon requesting a report by letter of 7 March 2002. It indicated that the solicitors acted for the applicant's parents with respect to a "personal injury matter" concerning the applicant. [14]
28 At [16] his Honour said:
(Page 13)
- Clearly, the initial delay was brought about by the erroneous advice provided by the solicitors instructed by the applicant's parents as to the statutory regime which applied with respect to the bringing of an action against a minister of the State or a State government instrumentality or department … The parents of the applicant acted quickly in instructing solicitors. In doing so they acted reasonably. They then failed to cause notice to be given pursuant to the provisions of the Limitation Act 1935 against the prospective defendant by reason of the erroneous advice given to them. That advice was to the effect that the ordinary limitation period for a claim against a public authority was one year from the date upon which the cause of action accrued and that, the applicant being a minor, the cause of action would not accrue until his 18th birthday. It seems that the applicant was under the misapprehension that he had until his 19th birthday within which to commence an action arising out of the events of 14 December 2001. That advice evidenced an extraordinary mistake on the part of the solicitors but it was, in my view, reasonable to rely upon that advice.
29 His Honour then referred to medical advice received and said:
Suffice to say that the injury, although with an excellent short term prognosis, had not settled. I conclude, in all the circumstances, that it was reasonable, in the light of the legal advice, for the parents to wait as they did.
The respondents complain, not unexpectedly, about the magnitude of the delay in this case. It was certainly substantial but it was, unfortunately, founded upon erroneous legal advice. Very clearly, the attempts by the applicant's solicitors to obtain counsel's opinion seem less than satisfactory as was the time that it took for notice to be given by those solicitors in the light of correct advice from counsel. Those failures should not, however, in my opinion, be attributed to the applicant or his parents. [18] - [19]
30 At [27] his Honour concluded that the delay in bringing the action was occasioned by reasonable cause, but reached no conclusion about whether the delay was occasioned by mistake. His Honour decided that the appellant had failed to establish that the respondents were not materially prejudiced in their defence or otherwise by the delay. The conclusion was that they were materially prejudiced.
31 Having decided that one of the preconditions had been satisfied, namely that the delay was occasioned by reasonable cause, his Honour then correctly went on to consider whether it would be just to grant leave to bring the action. His Honour referred to Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. He analysed the facts in that case, referred to the principles stated in that case (which are not in dispute) and then concluded:
(Page 14)
- In her written submissions counsel for the respondents makes the point that the proposed plaintiff has not filed a proposed statement of claim setting out the nature of the cause of action. I infer from what is known of the circumstances of the events giving rise to the injury that the claim, broadly speaking, will allege negligence on the part of the respondents in that its employees, servants or agents had a duty to properly supervise the students, including the applicant, that they failed in the execution of that duty and, in particular, failed to take steps to intervene in the stone-throwing when it broke out in time to prevent the injury to the plaintiff. The existence of the duty and its content may well depend upon precisely when and where the relevant events occurred in the context of the school day. The issue of the performance of the duty and whether that performance fell below appropriate standards will depend upon evidence as to the number of students involved, the number of teachers engaged in supervision, the time of the day when the incident occurred, the circumstances of the incident itself, including its duration, the number of students involved and all of the surrounding circumstances that might have a bearing on what the respondents' employees, servants or agents were doing at material times, their ability to respond to the situation which gave rise to the applicant's injury and the extent of that response. Had there been compliance with the statutory regime stipulated by the Limitations Act 1935 the recollections of those involved might well have been more acute than they presently are and might well have been augmented by contemporary documentation which no longer exists.
The net effect over the effluxion of time and the failure to give notice in compliance with the statutory regime is that there can no longer be, in my judgment, a fair trial. While the plaintiff will be well prepared for such a trial having, through the prudent actions of his parents, acted quickly with a view to a future personal injuries action, the position of the respondents is, in my view, seriously and probably irretrievably damaged. I conclude that, notwithstanding that the delay in bringing the action was, indeed, occasioned by reasonable cause it would not be just to grant leave to bring the action having regard to the effluxion of time and the impact of that circumstance upon the ability of the respondents to deal with the claim belatedly made against them. The application is therefore dismissed. [37] - [38]
The respondents' notice of contention
32 It is appropriate to begin with the respondents' notice of contention because it challenges the learned judge's conclusion that the delay was occasioned by reasonable cause. The notice of contention also contends that the learned judge found that the delay in bringing the action was occasioned by mistake, but the judge did not reach such a conclusion.
33 The respondents' notice of contention reads:
(Page 15)
- 1 The learned judge erred in law and in fact in finding that the appellant's failure to give the notice and the delay in bringing the action was occasioned by mistake or by other reasonable cause [16] [19] when he also found that:
1.1 The appellant was not well served by the solicitors engaged by his parents and by at least one member of the independent bar.
1.2 The initial delay was brought about by erroneous advice which was 'an extraordinary mistake on the part of the solicitors' [16].
1.3 After further delays and attempts to brief several barristers, counsel's advice as to the correct position … was provided in January 2006. [17]
1.4 The delay was substantial. [19]
1.5 The attempts by the appellant's solicitors to obtain counsel's opinion seem less than satisfactory. [19]
(Page 16)
- necessary to decide whether the advice of the solicitors involved a 'gross oversight' or not.
35 The respondents' contention should be dismissed. His Honour's reasons reveal no error in relation to this aspect of the case.
36 In any event, the delay was plainly occasioned by mistake.
The appellant's appeal - the exercise of the discretion
37 There are five grounds of appeal. The main point encompassed by grounds 1 and 3 to 5 is that his Honour erred in the exercise of his discretion when he concluded that the respondents were prejudiced by the delay in bringing the action to the extent that there could no longer be a fair trial. The appellant's second point, which is in ground 2, is that his Honour erred in failing to strike out par 18 and 19 of the affidavit of Ms Jorden.
38 The judge's decision to refuse to grant leave under s 6(3)(b) of the Crown Suits Act and s 47A of the Limitation Act 1935 involved the exercise of a judicial discretion: Brisbane South Regional Health Authority [547] (Toohey and Gummow JJ), [554], (McHugh J, Dawson J agreeing) [547] (Kirby J) [564]; Ducker v The State of Western Australia, [22] (Buss JA). The principles governing the review of a judicial discretion are well settled. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
39 In deciding whether to exercise the discretion, the prejudice to the respondents was a relevant and important consideration. See Brisbane South Regional Health Authority [555] (McHugh J); Bingham v England (1996) 17 WAR 226, 232. In Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269 [56], Murray J said:
In considering that question, matters bearing upon the establishment of the statutory preconditions will continue to be relevant. For example, the question of material prejudice to the prospective defendant will continue to have a bearing upon the question whether or not the discretion should be exercised in favour of the prospective plaintiff:
40 In Brisbane South Regional Health Authority, McHugh J said at [554] that in determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period (see also [568] (Kirby J)), but observed:
(Page 17)
- When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. [555]
- Dawson J agreed. Toohey and Gummow JJ did not consider the question of principle, but only had regard to the issue of prejudice to the defendant.
Did the judge err in concluding that a fair trial was impossible?
41 It is clear that teachers involved in supervision are available to give evidence. The teachers remember the incident, even though it may be true that the recollection of each at an earlier date might have been 'more acute', as his Honour said, than it was in 2007 or in 2006 when they were interviewed by Ms Jorden. It is true that an incident report, prepared at the time, appears to have been lost, but the respondents have the four teachers available to them, all of whom can recall 'the general circumstances of the incident' but who are 'unaware as to the exact circumstances of the [appellant] sustaining his injury'. It is not to point that the teachers will not be able to give evidence about the 'exact circumstances' of the appellant's injury because it is the appellant's case that the teachers were not present to stop the rock fight in circumstances where, if the appellant is to succeed in his case, he will have to show inter alia that they should in the exercise of reasonable care, have been supervising the students. There does not seem to be any dispute that the appellant was injured after the excursion had ended and while the students were still at the school waiting to be picked up. The respondents know what the school policy was with respect to supervision on excursions, because the written policy is still available to the respondents. The most significant point about Ms Jorden's affidavit is what it does not disclose. It does not contain any information suggesting that Ms Jorden endeavoured to contact some witnesses and that they could not be located. The affidavit does not state that the teacher who wrote the incident report and provided it to the school administration, could not recall what was in the incident report.
42 This case may be contrasted with a case like Brisbane South Regional Health Authority, where the principal witness for the defendant could not be located and the incident to be sued on had occurred 15 years before. Here the respondents have available to them five relevant
(Page 18)
- witnesses and relevant documentary material. Some loss of 'acute' recollection on the part of some of the teachers does not give rise to the 'real possibility of significant prejudice' such that a fair trial will not be possible.
43 His Honour did not rule on the appellant's objection to pars 18 and 19 of Ms Jorden's affidavit. The objection should have been upheld. By pars 18 and 19, Ms Jorden was deposing what the former student had said to Ms Jorden. By par 18, the respondents wished to be able to prove by Ms Jorden's hearsay evidence, that the former student could not recall 'precise details' of the circumstances of the accident. By par 19, the respondents were seeking to prove that the former student said that he was unable to recall the time the students attended the excursion, the time they arrived back at the school, or how much time passed after the arrival at the school before the appellant was injured, or whether the incident occurred before the school bell sounded to end the school day. Being evidence led to prove the truth of what the former student said, it was hearsay evidence and inadmissible unless made admissible by O 37 r 6(2)(a). Order 36 r 6(1) states that save for the exceptions mentioned, an affidavit must be confined to such facts as the deponent is able of his own knowledge to prove. Order 37 r 6(2)(a) provides that an affidavit used for the purposes of interlocutory proceedings may contain statements of information or belief. Preferably statements of information or belief in affidavits should follow the form 'I have been informed by X and verily believe'. See Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989). This form is preferable, not because the court requires ritualised behaviour, but because it clearly indicates the source of the information, states the information and states that the deponent believes that what X has said is true. If that form, or something similar, is not followed, there may be a tendency for the drafters of affidavits to drift into bad habits which will produce affidavits inadmissible under O 37 r 6. See the examples in In re J L Young Manufacturing Co Ltd [1900] 2 Ch 753. In this case, that has occurred. Ms Jorden's affidavit says what she was told by the former student but does not disclose who the student was and does not say that she believes what the student said was true. The introductory par 3 which reads 'The facts deposed to herein are within my own knowledge, information and belief unless otherwise stated and are true and correct' does not comply with O 37 r 6 and does not provide admissible information concerning the facts to be proved by what the former student said.
(Page 19)
44 In Westpoint Management Pty Ltd v Goakes [2002] WASCA 317, [14], Wheeler JA said that the requirements of O 37 r 6 were important because:
It reveals the original source of the hearsay information and provides some opportunity to an opponent to counter or to challenge it and it enables prosecution for perjury in a proper case if necessary.
45 The appellant submits that the reference to the 'former student' was not sufficient compliance with the requirement that the source of the information be disclosed. We agree with that submission and would uphold ground 2. The information in pars 18 and 19 of Ms Jorden's affidavit should not have been taken into account. However, even if pars 18 and 19 are taken into account, they do not provide sufficient information to allow the court to conclude that there is the real possibility of significant prejudice to the respondents. The paragraphs are again significant for what is not disclosed; namely, what it is that the former student can recall.
Conclusion
46 In light of the evidence before the District Court, the learned judge's decision to refuse to grant leave was unreasonable, which leads to the inference that there has been a failure to properly exercise the discretion reposed in the District Court. See House v The King.
47 For those reasons, the Court granted an extension of time in which to appeal, granted leave to appeal, set aside the order refusing leave and in lieu granted leave to the appellant to bring an action against both respondents.
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