Burns v Minister for Health
[2012] WASCA 267
•14 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BURNS -v- MINISTER FOR HEALTH [2012] WASCA 267
CORAM: MARTIN CJ
PULLIN JA
NEWNES JA
HEARD: 16 AUGUST 2012
DELIVERED : 14 DECEMBER 2012
FILE NO/S: CACV 149 of 2011
BETWEEN: TAHLIA BURNS (by her next friend DAVID BURNS)
Appellant
AND
MINISTER FOR HEALTH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TAHLIA BURNS (by her next friend DAVID BURNS) -v- MINISTER FOR HEALTH [2011] WADC 205
File No :CIV 3304 of 2011
Catchwords:
Limitation periods - Limitation Act 1935 (WA) s 47A - Whether period in which plaintiff can apply for order extending limitation period constitutes limitation period
Limitation periods - Limitation Act 1935 (WA) s 47A - Whether limitation period is procedural or substantive
Limitation periods - Limitation Act 2005 (WA) - Where limitation period under 1935 Act expired before commencement of 2005 Act - Whether s 7 applies - Whether extension provisions in pt 3 of the 2005 Act available
Legislation:
Interpretation Act 1984 (WA), s 19, s 37
Limitation Act 1935 (WA), s 38, s 40, s 47A
Limitation Act 2005 (WA), s 4, s 5, s 6, s 7, s 8, s 39, s 41, s 42
Limitation Legislation Amendment and Repeal Act 2005 (WA), s 4
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Ms G Archer SC
Respondent: Mr D R Clyne
Solicitors:
Appellant: Ilberys Lawyers
Respondent: Downings Legal
Case(s) referred to in judgment(s):
Asher‑Relf v Minister of Health [2009] WADC 202
Attorney General of New South Wales v World Best Holdings [2005] NSWCA 261; (2005) 63 NSWLR 557
Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471
Bingham v England (1996) 17 WAR 226; (1996) Aust Tort Rep 81 ‑ 393
Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629
Chang v Laidley Shire Council [2007] HCA 37; (2007) 81 ALJR 1598
Charlton v Workcover Queensland [2006] QCA 498; (2007) 2 Qd R 421
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27
Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471
Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285
Desai v Minister for Immigration and Multicultural Affairs [2002] FCA 320
Fisher v Hebburn Ltd (1960) 105 CLR 188
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45
Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379
Harding v Coburn [1976] 2 NZLR 577
Lauri v Renad [1892] 3 Ch 402
Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303
Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269
Maxwell v Murphy (1957) 96 CLR 261
Moss v Donohoe [1915] HCA 61; (1915) 20 CLR 615
Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85
Northey v Minister for Education (1995) 13 SR (WA) 124
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1
Plewa v Chief Adjudication Officer [1995] 1 AC 249
R v JS [2007] NSWCCA 272; (2007) 230 FLR 276
R v McNeil (1922) 31 CLR 76
Reid v Reid (1886) 31 Ch D 402
Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
Scott v The State of Western Australia (1994) 11 WAR 382
Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 17 WAR 131
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230
The Commonwealth v Verwayen (1990) 170 CLR 394
The Ydun [1899] P 236
Town of Kwinana v Vidovich [2004] WASCA 274; (2004) 29 WAR 211
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553
Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228
MARTIN CJ:
Summary
Ms Tahlia Burns is eight years old. She is represented in these proceedings by her father, Mr David Burns. They seek leave to appeal from the decision of a commissioner of the District Court refusing leave to commence proceedings against the Minister for Health (the respondent) claiming damages as a result of injuries sustained by Tahlia at the time of her birth at King Edward Memorial Hospital on 21 April 2004. For the reasons which follow, leave to appeal should be granted, the appeal allowed, and time for the commencement of proceedings against the Minister extended to enable the claim for damages to be pursued.
The relevant facts and statutory provisions
The relevant statutory provisions are set out in the reasons of Pullin JA and need not be replicated in these reasons. The relevant facts may be shortly stated.
Ms Burns was born on 21 April 2004 at King Edward Memorial Hospital, which is a public hospital operated by the State of Western Australia. At that time, the Limitation Act 1935 (WA) (the 1935 Act) was in force. Pursuant to s 47A of that Act, prior to the commencement of proceedings against the Minister, it was necessary for notice in writing to be given to the prospective defendant, and for the proceedings to be commenced before the expiration of one year from the date on which the cause of action accrued - that is, on or before 22 April 2005. However, the section empowered the court to grant leave to commence proceedings at any time before the expiration of six years from the date on which the cause of action accrued (ie, on or before 22 April 2010) whether or not the notice required by the section had been given.
The Limitation Act 2005 (WA) (the 2005 Act) commenced operation on 15 November 2005 (the commencement date). Proceedings were brought on behalf of Ms Burns against the Minister by a writ issued on 18 October 2011. This was less than six years after the commencement date, but more than six years after the accrual of any cause of action. Leave of the court was not sought prior to the commencement of those proceedings. However, leave was sought by an application brought on 4 November 2011.
The 2005 Act applies
The 1935 Act was repealed by s 4(1) of the Limitation Legislation Amendment and Repeal Act 2005 (WA). However, s 4(2) of that Act provides that the 1935 Act continues to apply to causes of action that accrued before the commencement day. Consistently with those provisions, s 4(1) of the 2005 Act provides that the limitation periods provided for under that Act apply only to causes of action that accrue on or after the commencement day.
However, that section is expressly stated to be subject to s 7 and s 8 of the 2005 Act (by s 4(2)). Section 8 of the 2005 Act is not relevant to these proceedings, but s 7 is concerned with causes of action for damages relating to personal injury incurred during or immediately after, and arising from, childbirth. It is common ground that the cause of action asserted on behalf of Ms Burns is of that character. Because s 7 deals with causes of action of that kind which accrued before the commencement day, it is an exception to the general scheme of the 2005 Act which is primarily concerned with causes of action accruing on or after the commencement day.
Section 7(2) of the 2005 Act
Section 7(2) of the 2005 Act provides that:
(2)An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day and -
(a)6 years have elapsed since commencement day; or
(b)the limitation period that would have applied but for this section has expired.
It is clear that s 7(2)(a) does not apply to the proceedings commenced against the Minister in October 2011, as they were commenced within six years of the commencement day. However, it is equally clear that s 7(2)(b) does apply, because even if it was assumed that the limitation period 'but for' s 7 was six years, as contended by the appellant, more than six years had elapsed since the accrual of the cause of action before proceedings were commenced. It is therefore unnecessary to determine whether the 'limitation period' created by s 47A of the 1935 Act is one year or six years, because in either case the period had elapsed. For that reason I would defer expressing any view on the question until a case arises in which it is necessary to determine the issue for the purposes of deciding the case.
I agree with Pullin JA, for the reasons he gives, that s 7 of the 2005 Act provides a defence to proceedings commenced in contravention of the section, but does not extinguish the cause of action. Accordingly, because the proceedings commenced against the Minister in October 2011 were commenced after the limitation period that would have applied under s 47A of the 1935 Act had expired, under s 7(2) of the 2005 Act, the Minister will have a good defence unless leave can be granted and time extended for the commencement of proceedings under pt 3 of the 2005 Act.
Section 7(3) and (4) of the 2005 Act - the critical question in the appeal
Subsections (3) and (4) of s 7 are as follows:
(3)This section has effect subject to Part 3 but -
(a)sections 30 and 31 do not apply; and
(b)sections 32 and 41 do not apply if the person has reached 15 years of age at commencement day.
(4)For the purposes of the provisions of Part 3 that apply under subsection (3), a cause of action (childbirth) is to be taken as having accrued on commencement day.
Ms Burns had not reached 15 years of age at the commencement day. Accordingly, if s 7(3) applies to her cause of action, she was able to apply under s 41 of the Act for leave to commence an action even though the limitation period provided by s 7(2) has expired, and on such an application the court is authorised to extend the time within which the action can be commenced up to when Ms Burns reaches 21 years of age (ie, up until 21 April 2025).
The respondent accepts that if Ms Burns can apply for the grant of leave and for an extension of time within which to commence proceedings pursuant to s 41 of the 2005 Act, the powers conferred upon the court by that section should be exercised in her favour. Accordingly, the critical question is whether s 7, properly construed, has the effect that an application can be brought on behalf of Ms Burns under pt 3 of the 2005 Act, and in particular, pursuant to s 41 of the 2005 Act.
Plainly, s 7 applies to relevant causes of action accruing before commencement day - its express terms so provide. That is why s 4(2) of the 2005 Act provides that s 7 is one of the exceptions to s 4(1), which provides that the 2005 Act only applies to causes of action accruing on or after commencement day.
Thus the critical question in the appeal is not whether s 7, and therefore pt 3 of the 2005 Act, applies to causes of action which accrued before the commencement day. Rather, the critical question is whether s 7 applies to all causes of action accruing before the commencement day which can be the subject of an application brought in accordance with pt 3 of the 2005 Act (as Pullin JA has concluded), or whether it applies only to actions commenced in accordance with s 47A of the 1935 Act, as the Minister contends, or whether it applies to all causes of action which had not become finally barred by the lapse of time as at the commencement day, as I have concluded, for the reasons which follow.
Retrospective operation of statutes - general principles
'Retrospectivity' is a word that is not always used with a constant meaning: Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285, 309 [57] (McHugh and Gummow JJ); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 92 [114] (Gummow, Hayne and Crennan JJ); Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27, 30 (Jordan CJ). However, it is settled that if events have occurred prior to the passing of an Act which have brought into existence particular rights or liabilities in respect of a matter, if the Act is construed as altering those rights or liabilities, it is thereby given a retrospective operation: Coleman v Shell Co of Australia, 31 (Jordan CJ).
Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute: Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 559. It has been observed that a statute should only be given retrospective operation to the extent necessitated by the words of the statute, construed in their full context and in accordance with the legislative purpose, but no greater extent: see Reid v Reid (1886) 31 Ch D 402, 408 ‑ 409; Lauri v Renad [1892] 3 Ch 402, 421; Moss v Donohoe [1915] HCA 61; (1915) 20 CLR 615, 621; Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, 724; Plewa v Chief Adjudication Officer [1995] 1 AC 249, 257; Attorney General of New South Wales v World Best Holdings [2005] NSWCA 261; (2005) 63 NSWLR 557; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230, 253 [127]; Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, 310–311; R v JS [2007] NSWCCA 272; (2007) 230 FLR 276, 121 [45] ‑ [46]; Chang v Laidley Shire Council [2007] HCA 37; (2007) 81 ALJR 1598, 1614, [82] ‑ [83]; 237 ALR 482, 501 [82] - [83] (Kirby J).
At common law, as a matter of construction, in the absence of some clear indication to the contrary, an act will be presumed not to have retrospective operation: Maxwell v Murphy (1957) 96 CLR 261; Fisher v Hebburn Ltd (1960) 105 CLR 188, 194 (Fullagar J); Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379. In Maxwell v Murphy, Dixon CJ held that:
[A] statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events (267).
However, this rule of construction does not apply to provisions which are categorised as altering procedural laws, as opposed to substantive laws, as no person has a vested right in any particular course of procedure: Maxwell v Murphy, 267 (Dixon CJ); Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228. However, as the High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) explained in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515:
[T]he difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation (518).
In relation to statutes of limitation, the court went on to say that:
Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural (519).
The court in Rodway also referred to the examination of this issue by Gibbs J in Yrttiaho v The Public Curator of Queensland where the principle was expressed in these terms:
Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought (242).
The High Court also cited the views of Williams J in Maxwell v Murphy (278), whose observations were adopted by the Privy Council in Yew Bon Tew v Kenderaan Bas Mara. In that case, their Lordships held that:
An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable. Their Lordships see no compelling reason for concluding that the respondents acquired no "right" when the period prescribed by the Ordinance of 1948 expired, merely because the Ordinance of 1948 and the Act of 1974 are procedural in character. The plain purpose of the Act of 1974, read with the Ordinance of 1948, was to give and not to deprive; it was to give to a potential defendant, who was not on June 13, 1974, possessed of an accrued limitation defence, a right to plead such a defence at the expiration of the new statutory period. The purpose was not to deprive a potential defendant of a limitation defence which he already possessed. The briefest consideration will expose the injustice of the contrary view. When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone. That is the whole purpose of the limitation defence (563).
The principles enunciated in these cases are consistent with s 37 of the Interpretation Act 1984 (WA) (Interpretation Act) which provides:
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a)revive anything not in force or existing at the time at which the repeal takes effect;
…
(c)affect any right … accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e)subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture, and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
(2)The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals.
Application of these principles to the 2005 Act
A construction of s 7 which would enable pt 3 of the 2005 Act to be used to revive causes of action which were barred by the lapse of time as at the commencement of the 2005 Act, depriving a defendant of an indefeasible limitation defence which the defendant had as at the commencement day would contravene s 37 of the Interpretation Act, and the common law principles to which I have referred.
However, s 37 of the Interpretation Act and the common law principles to which I have referred only apply to causes of action barred by the lapse of time as at the commencement day, or to the rights of a defendant who, in the words of the Privy Council, can 'assume that he is no longer at risk from a stale claim … part with his papers if they exist and discard any proofs of witnesses which have been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone'.
Plainly the Minister for Health was not in such a position as at the commencement of the 2005 Act. Immediately prior to the commencement of the 2005 Act, the Minister was at risk of an application for leave to commence proceedings under s 47A of the 1935 Act. He could not be said to have had an indefeasible limitation defence, and therefore it could not be said that the cause of action was completely barred by the lapse of time. Accordingly, neither s 37 of the Interpretation Act, nor the common law principles to which I have referred preclude s 7 of the Act being construed so as to apply to causes of action which had accrued prior to the commencement day, where, immediately prior to the commencement of the 2005 Act, the defendant was still at risk and did not have an indefeasible limitation defence. This is such a case.
The Minister's contention that s 41 of the 2005 Act does not apply in this case ignores the clear and plain wording of s 7 of that Act. It applies to childbirth causes of action which accrued prior to the commencement day (s 4(2) and s 7(2)). Section 7(2) specifies the limitation periods which apply to those causes of action. However, the section is expressly made subject to some of the provisions of pt 3, including s 41 (s 7(3)). Accordingly, s 41 applies to this case notwithstanding the expiry of the limitation period which would have applied but for s 7 of the 2005 Act.
The extrinsic materials
Section 19(1) of the Interpretation Act allows a court to refer to extrinsic material in the interpretation of a provision of a written law, if the material is capable of assisting in ascertaining the meaning of the provision, to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or unreasonable. Pursuant to s 19(2), the extrinsic material that may be considered in accordance with s 19(1) includes:
(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted;
…
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted; and
(f)the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House.
Further, at common law, a court is permitted, in construing a statutory provision, to have regard to the words used by the Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85, 112 - 113.
The extrinsic materials tendered by the appellant as an aid to the construction of the 2005 Act support the construction at which I have arrived by the application of established legal principles. Those materials establish that the provisions of the 1935 Act relating to the commencement of proceedings claiming damages for injury suffered during or immediately after childbirth were anomalous, and operated unfairly. Pursuant to s 40 of the 1935 Act, if a person was under 18 years of age at the time a cause of action accrued, he or she could commence an action as if the cause of action accrued when he or she turned 18. Because the limitation period provided for the commencement of actions in tort by s 38(1)(c) of the 1935 Act was six years, claims for damages arising from childbirth could be brought at any time up until the relevant child turned 24.
However, pursuant to s 47A of the 1935 Act, claims for damages arising from childbirth injuries brought against public authorities or government agencies had to be commenced within one year of the accrual of the cause of action, or, with leave, within six years of the accrual of the cause of action. Accordingly, claims could be brought against private hospitals or doctors providing services to private patients up to 24 years from the date of birth, whereas claims could only be brought against public hospitals and doctors providing services to the public within those hospitals within six years of the date of birth. This anomaly was the subject of criticism by the judiciary - see Scott v The State of Western Australia (1994) 11 WAR 382, 383 (Rowland J); Northey v Minister for Education (1995) 13 SR (WA) 124, 125 (Kennedy DCJ); Bingham v England (1996) 17 WAR 226; (1996) Aust Tort Rep 81 ‑ 393, and was also the subject of adverse comment by the Law Reform Commission of Western Australia in its report 'Limitation and Notice of Actions' Law Reform Commission of Western Australia, Limitation and Notice of Actions, Final Report (2007) [10.24].
It is clear from the extrinsic materials that the 2005 Act was intended to resolve this anomaly. In the second reading speech for the Limitation Bill 2005 (WA), the then Attorney General (the Hon Jim McGinty MLA) noted in relation to s 7:
The situation in relation to obstetrics is of particular significance. Under our current law an obstetrician can be sued by a person up to 24 years after his or her birth. This has resulted in increased insurance premiums for obstetricians and led to a shortage of obstetricians in the private sector. I met last year, prior to the introduction of this bill's 2004 predecessor, with Dr Louise Farrell, Chairman of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Dr Farrell subsequently wrote to me, and I quote from her letter dated 15 October 2004 -
This Bill will make a substantial difference to my colleagues in The Royal Australian and New Zealand College of Obstetricians and Gynaecologists. It will remove one of the major obstacles to retaining and recruiting Obstetricians. Medico-legal concerns were cited as one of the principal reasons for current Obstetricians leaving private Obstetric practice. The reforms will therefore help in addressing current difficulties and facilitate improving access to high quality care. This will assist in maintaining and improving outcomes for mothers and babies.
It is the very long “tail” for obstetrics that concerns many obstetricians. It pushes up already high indemnity costs, as insurance organisations find it difficult to estimate future liability and cannot remove potential liabilities from their books for up to 24 years. The long period of time available for obstetric claims makes it extremely difficult for the doctor to have any personal memory of the event when defending the claim. It also makes it very difficult to ensure that the case is judged by contemporaneous standards.
The situation will now be that if a person has suffered a personal injury in the course of being born or immediately after and arising from the birth, and has not begun an action before the commencement day of the new act, provided the limitation period has not already expired, the action must be commenced within six years of the commencement day or before the date on which the person turns 24, whichever is the earlier.The limitation period may be extended in certain circumstances under part 3 of the bill. This is an important safety net to ensure that children with legitimate claims are not disadvantaged. However, in general terms, the effect will be that the limitation clock, so to speak, of babies who are injured during birth before the bill comes into effect will start ticking from the date the bill becomes law (emphasis added).
(Western Australia, Parliamentary Debates, Legislative Assembly, 7 April 2005, 562c-566a (Mr JA McGinty, Attorney General))
During the course of the debate on what would become s 4 and s 7, Mr McGinty said the following:
The general scheme here is that clause 4, which states in essence that the limitation period provided for under this legislation applies only to causes of action that accrued on or after the commencement day, is subject to clause 7, which is the obstetrics clause. Clause 4 is subject to clause 7 because obstetrics is one area that is made retrospective… There is a transitional provision to cover births prior to the commencement date of this legislation. That is the reason the obstetrics provision needs to override the general provisions of the bill, to make sure the required end result is achieved, in terms of the scheme outlined in clause 7.
…
Not all parents are good parents. A child might have a negligent parent. The child should not be prejudiced by the failure or the negligence of the parent or guardian to take legal action on the child’s behalf. We are not seeking to deny people the ability to take legal action, but we want to harvest them a lot earlier. I think the obstetricians want that also; they want to know whether legal action is coming. That is why we have reduced the 24 years to six years, in the general scheme of things.
(Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2007, 918 (Mr JA McGinty, Attorney General))
These materials explain the structure of s 7(2). Section 7(2)(a) provides a potential limitation defence (subject to pt 3 of the Act) if proceedings in respect of causes of action arising from childbirth which accrued prior to the commencement day are not commenced within six years after the commencement day. The effect of this provision is to exclude the prospect of childbirth claims being brought as of right against non‑government defendants up to 24 years after the date of birth. Section 7(2)(b) has the effect that the Act is not to be construed as extending the limitation period that would otherwise have applied in childbirth cases. However, like s 7(2)(a), that provision is by subsection (3) expressly made subject to pt 3 of the Act so that if the relevant cause of action was not time barred and the defendant did not have an indefeasible limitation defence immediately prior to the commencement day, the provisions of pt 3 of the Act apply.
Immediately prior to the commencement day, proceedings could have been brought against the Minister on behalf of Ms Burns with the leave of the court. At that time the Minister did not have an indefeasible
limitation defence to those proceedings and therefore could not be said to have an existing right to be no longer at risk in respect of such proceedings. In accordance with established principles, s 7(3) of the 2005 Act, which incorporates a number of provisions of pt 3 of the 2005 Act, should be construed as applying to her cause of action. It follows that she was entitled to apply for the grant of leave and for an extension of time within which to commence proceedings pursuant to s 41 of the Act. As the respondent accepts that if she was entitled to make such an application, there is no reason why it should not be granted, this court should grant leave to appeal, allow the appeal, grant leave to commence proceedings against the Minister, and extend the time within which such proceedings may be commenced.
PULLIN JA: This is an application for leave to appeal against the decision of Commissioner Gething who dismissed the appellant's application for leave to commence an action in circumstances where the limitation period for that action had expired.
On 18 October 2011 the appellant issued a writ claiming damages. In the writ the appellant claimed damages in relation to causes of action for breach of contract, negligence and breach of statutory duty arising out of injuries sustained by the appellant at her birth at King Edward Memorial Hospital on 21 April 2004. On the date of the issue of the writ, the one year limitation period provided for in s 47A of the Limitation Act 1935 (WA) (1935 Act) had expired. No application had been made pursuant to s 47A for leave to commence the action before the expiry of six years from the accrual of the cause of action. No application for such leave was ever made under s 47A.
About 18 months after the appellant's birth, and on 15 November 2005, the 1935 Act was repealed and a new Limitation Act - the Limitation Act 2005 (WA) (2005 Act) - commenced. Section 7(2) of the 2005 Act, which is set out below, provided that an action of the kind the appellant was bringing could not be commenced if the cause of action accrued before the commencement day of the 2005 Act and if either six years had elapsed since commencement day or the limitation period that would have applied but for s 7 had expired.
The limitation period that would have applied but for s 7 had expired when the writ issued, so the action could not 'be commenced'. However, s 7(3) of the 2005 Act stated that s 7 had effect 'subject to Part 3'. Part 3 contained various provisions authorising the court to grant leave to
commence proceedings even though the limitation period 'provided for' under the 2005 Act had expired.
On 4 November 2011 the appellant made her application for leave to commence the action pursuant to s 39, s 41 and s 42 of the 2005 Act. Those sections were in pt 3 and they read:
39.Court may extend time to commence actions for personal injury
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
...
(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware -
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
...
41. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian
(1)A plaintiff who was under 18 years of age when a cause of action accrued to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired.
(2)Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches 21 years of age.
...
42. Court may extend time to commence action by person with a mental disability, with guardian
(1)A plaintiff who suffers a mental disability at any time after a cause of action accrues to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired.
(2)Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to 12 years from when the cause of action accrued.
The commissioner's reasons
The commissioner concluded that s 7(2)(b) of the 2005 Act, which is set out later in these reasons, directed the court to make the inquiry 'what limitation period would have applied but for [that] section? And has it expired?' The commissioner said that the answer to the first question in relation to a claim falling within s 47A of the 1935 Act 'is one year, unless and until the court extends it up to six years' [32]. The commissioner rejected the appellant's submission that the limitation period provided for by s 47A was six years. The commissioner then turned to consider whether the court could have granted leave to commence an action even though the limitation period had expired. The commissioner referred to an application for such an order as an application to 'extend' the limitation period.
The commissioner concluded that:
The limitation period could have been extended [in] two ways. First, if the cause of action had accrued within a year of the commencement of the 2005 Act, then the 'limitation period that would have applied but for' the commencement of 2005 Act s 7 would not have expired. It would then become six years from commencement by operation of 2005 Act s 7(2)(a). Second, in a case like the present case, it would have been open for the plaintiff to have made an application pursuant to 1935 Act s 47A(3) to have 'resuscitated' the cause of action to allow an action to have been commenced before 21 April 2010, that being a date '6 years from the date on which the cause of action accrued'. The 2005 Act s 7 would thus have allowed the plaintiff to have commenced an action in accordance with the regime in 1935 Act s 47A. However, no such application was made so the relevant limitation period remained one year [37].
The commissioner did not consider whether leave to commence proceedings should be granted because of his conclusion, in effect, that the limitation period was provided for under the 1935 Act and not under the 2005 Act. As a result, the commissioner dismissed the application for leave to commence proceedings.
The 1935 Act
Before construing the 2005 Act, it is necessary to go back to s 47A of the 1935 Act. It read:
(1)... no action shall be brought against any person ... 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 ...
(3)(a) Notwithstanding the foregoing provisions of this section application 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 thinks 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 provisions of s 47A were modelled on, although not identical in wording to, the provisions of the Public Authorities Protection Act 1893 (UK), the terms of which are set out in the The Ydun [1899] P 236. See State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 17 WAR 131, 135 ‑ 136. The English provision was construed as being procedural in effect: see The Ydun; Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, 242 (Gibbs J).
The distinction between procedural and substantive limitation provisions has been discussed in many cases and is well understood, and it must be assumed that the legislature in this State was well aware of the distinction when the 2005 Act was passed. See for example, R v McNeil (1922) 31 CLR 76, 100 (Isaacs J); Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471, 488 (Windeyer J); The Commonwealth v Verwayen (1990) 170 CLR 394, 497 (McHugh J).
A procedural limitation provision is one which bars the remedy. It does not extinguish the cause of action. It prevents the procedure of the court being employed to gain the remedy based on the cause of action. It provides a defendant with a defence (Hoogland (488)) which he may waive or choose not to plead.
A substantive limitation provision is one where a right, a new cause of action, has been created subject to compliance with a time limit for commencing proceedings to enforce this right. See for example s 7 of the Fatal Accidents Act 1959 (WA): see Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 and s 37 Crown Suits Act 1898 (WA): see McNeil. In those cases the legislation created a cause of action which would not have existed if the legislation had not been passed. Commencing proceedings within the time specified in the condition creating the cause of action was 'of the essence of [the] new right': Hoogland (488) (Windeyer J).
Some limitation provisions of a procedural kind are coupled with a provision expressly extinguishing the cause of action after the limitation period has expired. See for example s 14(1) and s 63(1) of the Limitation Act 1969 (NSW) referred to in Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, particularly at 509 ‑ 510.
Section 47A was procedural in effect because before it was enacted there existed a right to sue for damages for breach of contract, negligence and breach of statutory duty: McNeil (100). Section 47A did not extinguish the cause of action. It merely barred the remedy. It was up to the defendant to plead the defence. If it did not do so when it could have done so, then the action could be pursued to judgment by the plaintiff. Section 47A was not accompanied by any provision which stated that the cause of action was extinguished after the limitation period expired.
There is obiter dictum in Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269 which suggests that after the limitation period had expired, s 47A 'substantively' extinguished the cause of action [26]. This was obiter, because the issues for determination in that case were merely whether the steps required under s 47A had been established and they had not: see [18] ‑ [19]. Whether or not s 47A extinguished the cause of action was not a question which had to be answered for the resolution of the issues referred to in [18] as revealed in [19]. Murray J (all other members of the court agreeing) nevertheless expressed some views about the effect s 47A had on the cause of action. His Honour said that under s 7 of the Fatal Accidents Act the cause of action was 'substantively' extinguished if the limitation period expired and that s 47A(3)(a) was 'materially identical' with s 7(2)(c) of the Fatal Accidents Act. If by that Murray J meant that if the limitation period in s 47A expired, it had the effect of extinguishing the cause of action, then with respect, the statement is incorrect. The Fatal Accidents Act 1959 is an example of a substantive limitation provision. That Act created a right of action where none had existed before and conditioned it by the requirement that proceedings be commenced within a stated time. Murray J referred to Stevens (234) where Burt CJ (Jones & Smith JJ agreeing) said that the Fatal Accidents Act provision created the cause of action conditioned by the requirement that the proceedings be commenced with the prescribed time and that an action commenced outside that time was 'no cause of action at all'. Burt CJ quoted Williams J in Maxwell v Murphy (1957) 96 CLR 261, 274 where he said:
After the expiry of that time the cause of action is not merely statute barred, it is extinguished.
The statements of Burt CJ and the reference to Maxwell v Murphy were correct in relation to the Fatal Accidents Act, but they were not applicable to s 47A of the 1935 Act because s 47A did not create any cause of action. It merely created a potential bar to the remedy for existing causes of action.
Murray J in Matheson, by his reference to the 'substantive' extinguishment of a cause of action, possibly had in mind observations made in cases dealing with a presumption that may apply upon amendment to limitation legislation which might extend limitation periods. For example, Williams J said in Maxwell v Murphy (277 ‑ 278), that a cause of action which can be enforced is 'a very different thing to a cause of action the remedy for which is barred by lapse of time' and that statutes which enable a person 'to enforce a cause of action which was then barred ... could hardly be described as merely procedural'. See also Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629, 636, 638 (Dixon CJ). In Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, after referring to the Tasmanian equivalent of s 37(1) of the Interpretation Act 1984 (WA), the High Court stated the rule at common law which was that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. After stating that it is sometimes said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation, the court then said:
It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.
The court added (518 ‑ 519) that the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.
Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural.
The presumption against an amending statute having a retrospective operation to revive a cause of action the remedy for which has been barred is reflected in statutory form in s 37(1)(c) of the Interpretation Act. It provides that the repeal of a written law does not 'affect any right ... acquired [or] accrued ... prior to the repeal'. However, this is not so if 'the contrary intention appears'. The contrary intention may appear by express provision or by necessary intendment. As will be seen below, express provisions of a contrary intention were made in the new legislation.
The effect of s 47A
Section 47A imposed a limitation period of one year. The appellant submitted before the commissioner and in this court that because s 47A contained the provision authorising the court to grant leave to sue before the expiry of six years from the accrual of the cause of action that the limitation period was six years, not one year. Even if the appellant's submission were correct, it would not avail the appellant because if the limitation period under s 47A of the 1935 Act was six years rather than one year, even that period had expired before the writ issued. However, because the appellant made the submission, it should be dealt with. The appellant's submission is rejected. A person proposing to sue had the right to apply for an order which had the effect of extending the limitation period to six years but the right to apply for an extension cannot be described as a limitation period. The appellant cited Town of Kwinana v Vidovich [2004] WASCA 274; (2004) 29 WAR 211; Charlton v Workcover Queensland [2006] QCA 498; (2007) 2 Qd R 421 and Commonwealth v Mewett as authorities for the proposition that a 'limitation period' can include the period during which an extension of time may be granted. In Vidovich the Full Court made passing reference to 'the six year limitation period' as a shorthand way of referring to the six year period in which a plaintiff can apply for an extension of time under s 47A(3). Vidovich contains no analysis suggesting that the six year period referred to in s 47A(3) is a limitation period. Charlton and Mewett deal with entirely different legislation. These cases provide no support to the appellant's submission.
Section 47A did not prevent a plaintiff issuing a writ outside of the one year limitation period because the cause of action remained alive but a plaintiff doing so without first obtaining leave to do so pursuant to s 47A(3)(a), faced the prospect of the defendant pleading a limitation defence (by way of confession and avoidance: see Verwayen (McHugh J)).
To head off that possibility, a plaintiff had the right to apply for leave to commence the action outside the limitation period. However, the plaintiff had to obtain leave and issue the writ before the expiry of six years from the accrual of the cause of action. After the expiry of the six years the plaintiff could not apply for such an order: Matheson.
Limitation Legislative Amendment and Repeal Act 2005
It is now necessary to turn to the provisions of the Limitation Legislative Amendment and Repeal Act 2005 (WA) (Amendment & Repeal Act) and the 2005 Act.
The Amendment & Repeal Act s 4(1) repealed the 1935 Act. However, s 4(2) of the Amendment & Repeal Act stated that the 1935 Act continued to apply, despite its repeal and despite the enactment of the 2005 Act, to causes of action that accrued before the commencement day. If that had been the only provision then the 1935 Act would have continued to apply to the appellant's claim.
However, s 4(3) of the Amendment & Repeal Act stated that s 4(2) was 'subject to the Limitation Act 2005 s ... 7'. The phrase 'subject to' is a standard way of making clear which provision is to govern in the event of conflict, although it throws no light on whether there is in truth a conflict without it: Harding v Coburn [1976] 2 NZLR 577, 582; Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 [52]. If s 7 of the 2005 Act is in conflict with s 4(2) then s 7 will prevail. As will be seen, s 7 of the 2005 Act is in conflict with s 4(2).
The 2005 Act
It is next necessary to consider the provisions of the 2005 Act. The critical provision which came under review on this appeal was s 7, but before referring to that section, it is necessary to refer to s 4 of the 2005 Act which goes hand in glove with s 4 of the Amendment & Repeal Act. Section 4(1) of the 2005 Act states that the limitation periods provided for under the 2005 Act apply only to causes of action that accrue on or after the commencement day (15 November 2005). However, s 4(2) states that 'this section is subject to s 7'. The expression 'subject to' indicates that s 7 will prevail if there is any conflict between s 4(1) and s 7. There is a conflict, because s 7 by its terms relates to causes of action accruing before the commencement day of the 2005 Act. Section 7 therefore prevails over s 4(1) of the 2005 Act and over s 4(2) of the Amendment & Repeal Act.
Causes of action (childbirth)
Section 7(1) defines 'cause of action (childbirth)'. There is no issue in this case that the appellant's case is such a cause of action. It is appropriate at this point to set out the whole of s 7 which reads:
7.Special provisions for certain personal injury actions relating to childbirth
(1)In this section -
cause of action (childbirth) means a cause of action for damages relating to a personal injury to a person that was incurred -
(a)in the course of the person’s mother giving birth to the person; or
(b)immediately after, and arising from, the person’s mother giving birth to the person,
whether the birth was by way of natural childbirth or a medical procedure.
(2)An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day and -
(a)6 years have elapsed since commencement day; or
(b)the limitation period that would have applied but for this section has expired.
(3)This section has effect subject to Part 3 but -
(a)sections 30 and 31 do not apply; and
(b)sections 32 and 41 do not apply if the person has reached 15 years of age at commencement day.
(4)For the purposes of the provisions of Part 3 that apply under subsection (3), a cause of action (childbirth) is to be taken as having accrued on commencement day.
It is also necessary to refer to s 5 and s 6 of the 2005 Act. They read:
5.Actions other than personal injury actions do not revive
(1)An action cannot be commenced on or after commencement day if the action could not have been commenced immediately before commencement day because of an enactment that is repealed or amended by the Limitation Legislation Amendment and Repeal Act 2005.
(2)This section is subject to section 6.
6.Personal injury actions — accrual, limitation periods
(1)Section 55 or 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues.
(2)If, under the relevant section, the cause of action accrues before commencement day, the applicable limitation period in that case is that which would have applied before commencement day, whether or not that period has expired.
Section 5 is a general provision. If s 5(1) is inconsistent with s 7, then s 7 must prevail because s 5(1) is a general provision whereas s 7 is a provision dealing specifically with cause of action (childbirth) cases: Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1, 29.
The first observation to be made is that the expression in s 7(2) 'an action ... cannot be commenced' should be read, consistently with authorities already referred to above, as being a provision to bar the remedy but not one which extinguishes the cause of action. There is no accompanying provision of the type referred to in Mewett (507) stating that after the period specified, the cause of action (childbirth) will be extinguished. Section 7(2) allows the limitation defence to be pleaded when either:
(a)six years have elapsed since the commencement day (not applicable in this case); or
(b)'the limitation period that would have applied but for this section has expired'.
If s 7 had ended with s 7(2), then the respondent would have been in a position to plead a limitation defence which would be fatal to the appellant's claims in her writ. The one year limitation period that 'would have applied' under the 1935 Act had expired in April 2005 (ie one year after the birth) and therefore before the writ issued.
However, s 7(3) provides that 'this section has effect subject to Part 3'.
The expression 'subject to' is once again an indicator that pt 3 will prevail if there is a conflict between pt 3 and s 7. There is a conflict because s 7 provides for and specifies limitation periods whereas pt 3 has provisions authorising the court to grant leave to commence proceedings even though the limitation period provided for in s 7 has expired. In fact, the words 'subject to' are probably unnecessary since the court must seek the meaning of each provision of an Act by reading each in the context of the entire Act in order to give each provision an operative effect harmonious with the whole: Desai v Minister for Immigration and Multicultural Affairs [2002] FCA 320 [24]. Thus, the statement in s 7(2) that a cause of action (childbirth) cannot be commenced if the cause of action accrued before the commencement day (which it did in this case) and the limitation period that would have applied but for this section has expired (which it had in this case) is to be read subject to pt 3 and pt 3 allows for orders extending the time for commencing an action.
The accrual of the cause of action - a deeming provision
Furthermore, s 7(4) of the 2005 Act states that for the purposes of the provisions of pt 3 that apply under s 7(3), a cause of action (childbirth) is to be taken as having accrued on commencement day (and not on 21 April 2004 when the injury was suffered).
Part 3 of the 2005 Act
The provisions of pt 3 that apply as a result of s 7(3) include s 39, s 41 (as modified) and s 42. Each of those sections states that a plaintiff may apply to a court for leave to commence an action 'even though the limitation period provided for under this Act has expired'. Thus, for example, if the appellant had actually been born after the commencement day and six years had expired then, if the conditions in s 39, s 41 and s 42 were satisfied, the court could grant leave.
In the case of the appellant's actual circumstances, the cause of action accrued before commencement day but for the purposes of pt 3 was deemed to accrue on commencement day. However, it was necessary for the appellant to obtain leave because without it the respondent would have a limitation defence under s 7(2). In the absence of s 7(3) and s 7(4) and pt 3, s 37(1)(c) of the Interpretation Act would create an obstacle for the appellant. It provides that the cause of action, the remedy for which was already barred, could not be restored by these provisions allowing for an extension of time: see Rodway v The Queen. As stated earlier in these reasons, s 37(1)(c) provides that the repeal of an enactment does not affect any 'right ... accrued' prior to the repeal. The right to plead a limitation defence is a right. However, as also stated earlier, s 37(1) applies except where the 'contrary intention appears'. The provisions of s 7(3) and s 7(4) and s 39, s 41 and s 42 in pt 3 of the 2005 Act are express provisions authorising the court to extend time in which to commence an action even though the limitation period had expired before commencement day. A cause of action which actually accrued before commencement day and which 'would have' been barred by s 47A is by s 7(4) 'taken to' have accrued on commencement day, for the purposes of pt 3.
Section 39 of the 2005 Act provides that the court may give leave up to three years from when the person to whom the cause of action accrues becomes aware or ought reasonably to have become aware of the injury or that the injury was attributable to the conduct of the defendant. When that occurred would be determined on the application for leave. Section 41 permits the court to give leave up to when the plaintiff reaches 21 years of age (but not if the appellant was 15 at commencement day: see s 7(3)(b)). The plaintiff satisfied those requirements. Section 42 allows the court to extend the time in which the action can be commenced up to 12 years from when the cause of action accrued, ie 12 years from the deemed accrual date. The plaintiff's application was made within that time.
Insofar as this process of reasoning reveals the 2005 Act has retrospective effect, the provisions of that Act reveal an express intention to affect accrued limitation defences. This is the ordinary meaning conveyed by the text of s 7 and pt 3 and the Minister in the Second Reading Speech confirmed this when he said 'the proposed regime is not to be retrospective, with the exception ... of obstetrics'.
Asher‑Relf v Minister of Health [2009] WADC 202
Finally, it is necessary to mention the reasons for decision of Stevenson DCJ in the above case. His Honour's reasons provide a thorough review of the legislation in the context of a cause of action (childbirth) against a public hospital where the birth had occurred more than six years before the commencement of the 2005 Act. His Honour describes the unequal application of limitation periods which existed before the 2005 Act in relation to persons born in private and public hospitals [8] ‑ [15]. The reasons also set out the Minister's Second Reading Speech relating to the 2005 Act Bill and the relevant parts of the Explanatory Memorandum. Much of his Honour's reasoning is correct, but with respect, not [66] where his Honour said, in relation to cl 7 in the Bill which became s 7 of the 2005 Act:
In my view, Parliament's intention was that cl 7 was not intended to apply or to have any operation if the limitation period had expired under the 1935 Act before 'commencement day'.
As set out above, s 7 did apply by deeming the cause of action to have accrued on commencement day for the purposes of pt 3.
His Honour concluded:
[Section] 7(2) of the 2005 Act .... [on] its proper construction in the context of the Act as a whole does not permit a retrospective operation in the sense contended for by the plaintiff, namely the revival of legal rights which have expired as a matter of law [119].
It is true that s 7(2) did not have that effect but s 7(3) and s 7(4) and the relevant provisions of pt 3 allow a cause of action to be pursued which would have been defeated by a limitation defence if the 2005 Act had not been passed. His Honour concluded at [121]:
If the 2005 Act operated in the way contended for by the plaintiff, thereby enabling a plaintiff whose claim had expired to act as if the claim had been 'revived' for the purpose of seeking leave to commence an action, then I would have granted the plaintiff leave, having regard to the relevant provisions which condition such applications and the particular circumstances of this case.
The commissioner, in effect, followed the reasoning in Asher‑Relf.
In summary
In summary, the position is as follows. The appellant wished to avoid the prospect of being met by a limitation defence which applied by s 7(2) if no leave were granted under pt 3. She sought an order under s 39, s 41 or s 42 for leave to commence an action.
The commissioner erred by dismissing the appellant's application without considering the merits of the application. Leave to appeal should be granted, the appeal should be upheld and the commissioner's order should be set aside. Since the conclusion of the oral hearing, the respondent has advised the court that if the appeal should be upheld and the commissioner's order set aside, then leave to commence proceedings should be granted. It will be necessary to hear the parties as to the section of the 2005 Act pursuant to which such order is to be made.
NEWNES JA: I agree with Martin CJ.
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