Callow v Petersen

[2020] WADC 76

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   CALLOW -v- PETERSEN [2020] WADC 76

CORAM:   LEMONIS DCJ

HEARD:   1 OCTOBER 2019

DELIVERED          :   9 JUNE 2020

FILE NO/S:   CIV 3587 of 2019

BETWEEN:   MICHAELAH ROYLENE CALLOW

Plaintiff

AND

DESMOND JAMES PETERSEN

Defendant

Catchwords:

Interaction between Limitation Act 2005 (WA) and Fatal Accidents Act 1959 (WA) - Can those relatives who were adults at the time of death take the benefit of an action brought in reliance on the extended limitation period applicable to a person who was a child under 15 years of age at the time the cause of action accrued - Application for defendant’s summary judgment or to strike out statement of claim to the extent claim is brought for benefit of those adult relatives

Legislation:

Fatal Accidents Act 1959 (WA)

Limitation Act 2005 (WA)

Result:

Application to strike out allowed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
Defendant	:	Mr D M G Burton

Solicitors:

Plaintiff	:	Bradley Bayly Legal (Perth)
Defendant	:	SRB Legal

Case(s) referred to in decision(s):

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127

Bendt v Green (Unreported, NSWSC, 7 April 1983)

Campbell v Li-Pina [2007] WASCA 64

Cardaci v Filippo Primo Cardaci as Executor and Trustee of Marco Antonio Cardaci [2018] WASC 100

De Sales v Ingrilli [2002] HCA 52

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431

Haigh v State Government Insurance Office (Qld) [1962] Qd R 534

Mohammadi v Bethune [2018] WASCA 98

Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95

Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Reports 80-223

Pobezin v Insurance Commissioner of the State Motor Car Insurance Office [1969] VR 682

Scott v The State of Western Australia (1994) 11 WAR 382

Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9

Wallis bnf v Lyco Industries Pty Ltd [2002] NSWSC 1215

LEMONIS DCJ:

1. This action is brought pursuant to s 9 of the Fatal Accidents Act 1959 (WA). It was commenced on 17 September 2019.

2. The plaintiff, Michaelah Roylene Callow is the daughter of Christine Donelle Ryan.

3. Tragically, Ms Ryan died on 5 October 2013, having been hit by a car driven by the defendant, Mr Petersen.

4. At the time of Ms Ryan's death, Michaelah was 13 years of age.[1]   She was 19 years of age at the time of commencement of this action.

   [1] Michaelah was born on 29 November 1999; statement of claim, par 1.

5. Michaelah brings the action for the benefit of herself and seven others.  They are Ms Ryan's de facto partner Mr Robert Wayne Callow, and six other of Ms Ryan's children.

6. Mr Callow was an adult at the time of Ms Ryan's death.  Of the children, Adrienne Ruth Ryan and Lonnelle Rose Callow were also adults at the time of Ms Ryan's death, respectively being 23 and 19 years of age.[2]  The remaining children - Kelsie Jade Callow, Robert Wayne Donald Callow, Wesley Jake Callow and Juan Xavier Callow - were all under 15 years of age at the time of Ms Ryan's death.[3]

   [2] Adrienne was born on 8 September 1990, Lonnelle on 6 March 1994; par 5[3] and par 5[4] of statement of claim.

   [3] Kelsie was born on 24 November 2002, Robert on 3 August 2005, Wesley on 14 November 2007 and Juan on 25 November 2010; par 5[5] – par 5[8] of statement of claim.

7. Section 14 of the Limitation Act 2005 (WA) (Limitation Act (WA)) provides that an action under the Fatal Accidents Act cannot be commenced if three years have elapsed since the death of the subject person.  This action was not brought within that three year timeframe.  However, given Michaelah's age at the time of Ms Ryan's death, she has six years since the cause of action accrued to commence the action.[4] 

   [4] Limitation Act s 30.

8. Mr Petersen has applied for defendant's summary judgment in respect of the claim brought for the benefit of, and on behalf of, Mr Callow, Adrienne and Lonnelle, alternatively, that those claims be struck out on the basis they are not arguable.

9. The issue that arises on the application is whether Mr Callow, Adrienne and Lonnelle, being adults at the time of Ms Ryan's death, are able to take the benefit of the action brought by Michaelah, in circumstances where the time prescribed for each of them to bring the action in their own name had expired at the time the writ was filed.

10. The principles applicable to an application for defendant's summary judgment, and to strike out a claim, are well known and do not need to be explored in detail for the purpose of this application.[5]  Suffice it to say that the defendant needs to establish that there is not an arguable cause of action in so far as the claim is brought for the benefit of those relatives who were adults at the time of Ms Ryan's death. 

    [5] Civil Procedure Western Australia Volume 1 [16.0.1] and [20.19.6].

11. Resolution of the issue requires an analysis of the nature of the claim established by the Fatal Accidents Act, and the interaction between the Fatal Accidents Act and the Limitation Act (WA). 

12. As the Court of Appeal observed in Belgravia Nominees Pty Ltd v Lowe Pty Ltd[6] generally speaking limitation issues are best decided at trial.  However, there may be particular cases where the availability of a limitation defence is sufficiently clear and uncontroversial.  Here, the resolution of the limitation issue does not require the resolution of any factual dispute, nor does it depend upon the proper characterisation of the facts giving rise to the action.

    [6] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [47].

13. Rather, the issue is resolved by construction of the applicable legislation.  The point itself is concise - can the adult relatives at the time of Ms Ryan's death take the benefit of the action now brought by Michaelah?  If the defendant's contention is to be accepted, then the limitation defence is an insurmountable obstacle to the claim currently brought for the benefit of Mr Callow, Adrienne and Lonnelle.  It therefore seems to me that the issue should be addressed and determined.

14. It is helpful to start with a recitation of the principles applicable to statutory interpretation.

Principles of statutory construction

1. The general principles applicable to undertaking statutory construction have recently been summarised by the Court of Appeal of Western Australia in Mohammadi v Bethune.[7]  I set those principles out below and apply them to this matter:

   [7] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].

   31The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act.  While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context.  Statutory construction, like any process of construction of an instrument, has regard to context.  As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL:

   The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.  This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

   32The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.

   33The objective discernment of the statutory purpose is integral to contextual construction.  The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials.  The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.

   34Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'.  In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'.  As we will explain later in these reasons, we think this is such a case.

   35Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.

   36Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.  (Footnotes omitted)

2. What is of particular importance in this case is the need for the Fatal Accidents Act and the Limitation Act (WA) to be construed 'to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation'.  In doing so, I need to discern the statutory purpose of the applicable limitation provisions.

3. Further, as French CJ and Crennan and Bell JJ stated in Tayloe v The Owners - Strata Plan No 11564:[8]

   The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree.  That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision.  It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature.  (Footnotes omitted)

   [8] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 [38].

4. It is useful to commence with explaining the nature of the claim available under the Fatal Accidents Act.  Once I have done so, I will proceed to consider the relevant provisions of the Limitation Act (WA).

Fatal Accidents Act

1. The cause of action the subject of this action is created by statute. Specifically, it arises by reason of s 4 of the Fatal Accidents Act.

2. Section 6 of the Fatal Accidents Act sets out the effect of such an action and the mode of bringing it.  Every action brought is for the benefit of the relatives of the deceased.[9] The definition of relative is set out in sch 2 to the Fatal Accidents Act. The action is to be brought by and in the name of the executor or administrator of the deceased person.[10] 

   [9] Section 6(1A).

   [10] Section 6(1B).

3. Section 6(2) and s 6(4) prescribe how damages are to be apportioned between the relatives for whom the claim is brought. They provide:

   (2)In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought.

   …

   (4)The amount of damages recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the persons for whose benefit the action was brought in such shares as the court finds and directs.

4. The Fatal Accidents Act does not define 'injury', nor does it identify the damages available.  In De Sales v Ingrilli,[11] Gleeson CJ explained the concept of damages within the meaning of the Fatal Accidents Act.  His Honour stated:

   The Fatal Accidents Act, like its British predecessor, is directed to compensation for 'injury'. Injury is not defined. It has been interpreted to mean the loss of a benefit the claimant would otherwise have reasonably expected to receive from the deceased, had the accident not occurred. As explained by Windeyer J in Parker v The Commonwealth, two points should be noted about what damages are recoverable for injury. First, damages are calculated by reference to the pecuniary benefit that could reasonably have been expected from the continuance of the life had death not occurred. Damages do not compensate for non-pecuniary injuries such as grief. The provision for apportionment of damages according to 'shares' supports the construction of injury as a pecuniary concept. Second, damages for injury are calculated on a balance of pecuniary gains and losses consequent upon the death. In some circumstances, this may mean no damages are recoverable.

   (Footnotes omitted)

   [11] De Sales v Ingrilli [2002] HCA 52 [11].

5. Gleeson CJ's analysis was applied by the Court of Appeal in Campbell v Li-Pina.[12]  Further, as McLure JA explained in Campbell:[13]

   Loss of an expected benefit is not restricted to loss of direct financial support. A claimant's loss may include the value of services the deceased would have provided around the home.

   [12] Campbell v Li-Pina [2007] WASCA 64; [18], [19] (McLure JA, with whom Steytler P & Buss JA agreed).

   [13] Campbell [18], see also Taylor [13] - [14].

6. In determining the damages proportioned to the injury suffered by each dependant relative, each dependant relative's position must be looked at separately and the dependants are not to be looked at as a class.[14]

   [14] Pobezin v Insurance Commissioner of the State Motor Car Insurance Office[1969] VR 682, 691(e). See also the analysis undertaken in Luntz H, Assessment of Damages for Personal Injury and Death (4^th ed, 2002), [9.2.13].

7. Only one action can be brought under the Fatal Accidents Act: s 7. In every action, the plaintiff is to provide particulars of the person or persons for whom and on whose behalf the action is brought: s 8.

8. Section 9 allows for a person falling within the definition of relative to bring an action in certain limited circumstances. Section 9 provides:

   (1)Where there is no executor or administrator of the deceased person, or where his executor or administrator does not bring an action under this Act within 6 months after the death of the deceased person, any one or more of the persons for whose benefit the action might be brought by the executor or administrator may bring the action.

   (2)Any action so brought shall be for the benefit of that or those persons and is subject to the same provisions and procedure, as nearly as may be, as if it were brought by an executor or administrator.

9. As can be seen, s 9 deals with the situation where there is no executor or administrator, or such executor or administrator does not bring an action within six months after the death of the deceased person. In such a situation, s 9(1) allows any one or more of the persons for whose benefit the action might be brought (the relatives) to bring the action.

10. Section 9(1) envisages there may be more than one plaintiff, by the use of the phrase 'any one or more of the persons for whose benefit the action might be brought by the executor or administrator may bring the action'.

11. Section 9A sets out the court's powers as to parties and procedure. These powers are not exhaustive: s 9A(4). Section 9A(1) provides the court with remedial powers where the court is satisfied a person who ought to have the benefit of the action has been omitted from the plaintiff's particulars provided under s 8. Upon application of any of the omitted persons, or of the court's own motion, the court may order that the action proceed as if the name of such omitted persons had been included. However, s 9A does not require the making of such an order if the precondition is established. Rather, the court retains a discretion whether to order the inclusion of the person.

12. It seems to me that the effect of s 8 and s 9A is to limit the persons for whose benefit the claim is made to those persons the subject of the particulars provided under s 8, as supplemented by any order made under s 9A.

13. Pursuant to s 9A(2), the court may order that any one or more of the persons for whose benefit the action is brought may be separately represented.

14. When regard is had to these provisions overall, in my view, the Fatal Accidents Act confers individual claims for each relative, notwithstanding that only one action may be brought.  I consider this is demonstrated by the nature of the damages that are recoverable, the requirement that the court direct the division of the recovered damages amongst the persons for whose benefit the action is brought, the court's power to order separate representation of those persons and the ability for a person who has not been included as a person for whose benefit the claim is brought, to apply to be so included. 

15. Consistently with this view, in Noja v Civil & Civic Pty Ltd,[15] the Full Court of the Federal Court in a joint judgment stated that it is well established that the rights which legislation of this type confers are conferred not upon the class as such but upon individuals within that class.[16]

    [15] Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95.

    [16] See also Luntz H, Assessment of Damages for Personal Injury and Death (4^th ed, 2002) [9.2.13].

16. However, that the rights are conferred on each member within the class does not necessarily mean each class member has a separate cause of action.  In this respect, the Full Court in Noja noted that different views have been expressed as to whether each relative has a separate cause of action.[17]

    [17] Noja (108).

17. In Haigh v State Government Insurance Office (Qld),[18] a decision of the Full Court of the Supreme Court of Queensland, Townley J stated that it seemed to be established that each family member has a separate cause of action.[19]  Hanger J agreed with Townley J.[20]  Brown J also held that each family member had a separate and independent right of damages.[21]

    [18] Haigh v State Government Insurance Office (Qld) [1962] Qd R 534.

    [19] Haigh (542).

    [20] Haigh (543).

    [21] Haigh (543).

18. In Pobezin, a decision of the Supreme Court of Victoria, Menhennitt J held there is one cause of action only.[22]  His Honour referred to the authorities cited in Haigh v State Government Insurance Office (Qld) and concluded that none of them decided that each family member has a separate and independent cause of action.  His Honour stated that:[23]

    … fundamentally there is one claim and one claim only and one cause of action only, namely, the right to pursue the one and only action to which the tort-feasor causing the death is made liable.

    [22] Pobezin (691) - (692).

    [23] Pobezin (691).

19. Without wishing to state the obvious, it seems to me resolution of the issue of whether each family member has a separate and independent cause of action, where the cause of action is created by statute, very much depends upon the terms of the legislation which creates it.

20. In Belgravia, the Court of Appeal in a joint judgment considered the characterisation of a cause of action in a general sense.  Their Honours noted that in Dye v Griffin Coal Mining Co Pty Ltd,[24] Owen J (with whom the other members of the court had agreed) 'observed that a "cause of action" is the fact or combination of facts which gives rise to a right to sue'.[25]

    [24] Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431.

    [25] Belgravia [30].

21. As I have explained above, the primary position under the Fatal Accidents Act is that the action is to be brought by and in the name of the executor or administrator.[26]  Therefore, where there is an executor or administrator, it is they who have the 'cause of action'.[27]

    [26] Section 6(1B).

    [27] Section 9(1).

1. Section 9(1) is engaged where there is no executor or administrator, or the executor or administrator does not bring an action within six months after the death of the deceased person. Upon either of those scenarios applying, but not before, each relative has a right to sue, or put another way, a cause of action under the Fatal Accidents Act.  This right to sue is not an exclusive one.  It exists for each and every relative.  However, the right is limited and its duration depends upon whether the right is exercised.  As I have explained, only one action can be brought.  Accordingly, once proceedings under the Fatal Accidents Act have been instituted by one or more relatives pursuant to s 9, in my view the cause of action only continues within those relatives who have brought the proceedings as a plaintiff or plaintiffs. Otherwise, it falls away such that those relatives who are not plaintiffs no longer have any right to sue. They have a right to be included as a person for whose benefit the claim is brought, however, they do not have a right to sue.

2. On this analysis, I am of the view that there is only one cause of action, which outcome is consistent with the views expressed by Menhennitt J in Pobezin.

Limitation Act (WA)

1. The material provisions contained within the Limitation Act (WA) relevant to the determination of the issue before me are s 14, s 30, s 39 and s 82. I set them out below:

   14.Personal injury, Fatal Accidents Act 1959 actions - 3 years

   (1)An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued.

   (2)An action under the Fatal Accidents Act 1959 for damages relating to the death of a person cannot be commenced if 3 years have elapsed since the death.

   …

   30.Limitation periods applicable to persons under 15 when cause of action accrues

   (1)If a person is under 15 years of age when a cause of action accrues to the person, an action on that cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.

   (2)Subsection (1) does not apply if Part 2 Division 3 provides for a longer limitation period for commencing the action.

   …

   39.Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959

   (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.

   (2)A plaintiff may apply to a court for leave to commence an action under the Fatal Accidents Act 1959 for damages relating to the death of a person even though the limitation period provided for under this Act has expired.

   (3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -

   (a)was not aware of the physical cause of the death or injury;

   (b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or

   (c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.

   (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).

   (5)In this section -

   person to whom the cause of action accrues -

   (a)in the case of a person who is under 18 years of age when the cause of action accrues, means either that person or a guardian of that person;

   (b)in the case of a person with a mental disability, means either that person or a guardian of that person;

   (c)in the case of an action under the Fatal Accidents Act 1959 to be brought by a personal representative of a deceased person, means the personal representative;

   (d)in the case of an action under the Fatal Accidents Act 1959 to be brought by a person under section 9(1) of that Act, means that person;

   (e)in the case of an action of a kind to which the Law Reform (Miscellaneous Provisions) Act 1941 section 4 applies, means either the deceased person or a personal representative of that person.

   …

   82.Joint causes of action

   If, were it not for this Act, 2 or more persons would have a cause of action jointly but, because of this Act, an action on the cause of action cannot be commenced by one or more of them, an action on the cause of action may nonetheless be commenced by the other or others of them and judgment may be given accordingly.

2. Part 2 of the Limitation Act prescribes the relevant limitation periods for specified causes of action. In broad terms, this is done by instituting a general limitation period of six years, prescribed by s 13(1) which appears in pt 2 div 2. This general limitation period is however subject to pt 2 div 3, which provides for different limitation periods for certain actions: s 13(2).

3. Section 14(2) is in pt 2 div 3. It provides that an action under the Fatal Accidents Act for damages relating to the death of a person cannot be commenced if three years have elapsed since the death. 

4. Pursuant to s 11(1), both div 2 and div 3 of pt 2 have effect subject to pt 3; thus s 14(2) has effect subject to pt 3. Part 3 provides for extended limitation periods in certain specified scenarios. Section 30 is contained within pt 3. Section 30(1) provides that if a person is under 15 years of age at the time the cause of action accrued to the person, the applicable limitation period is six years from when the cause of action accrued to the child.[28]  This is subject to the exception that where the applicable limitation period is longer than six years, the longer period still applies.[29]

   [28] Claims for defamation are excluded from the operation of s 30: s 34.

   [29] Section 30(2).

5. By reason of s 11(1), the limitation period prescribed by s 14(2) is subject to s 30. Accordingly, the extension provided by s 30(1) of the Limitation Act (WA) applies to a cause of action under the Fatal Accidents Act.[30]  It was not always the case that children had the benefit of extended limitation periods in respect of claims brought under the Fatal Accidents Act. Prior to the enactment of the Limitation Act (WA), the limitation provisions for the bringing of claims under the Fatal Accidents Act were contained within s 7 of the Fatal Accidents Act.  In respect of that prior statutory regime, the Full Court of the Supreme Court held that the provisions of the Limitation Act 1935 (WA) which allowed for the extension of the limitation period for minors did not apply to claims brought under the Fatal Accidents Act.[31]

   [30] The defendant accepts this to be the case.

   [31] Scott v The State of Western Australia (1994) 11 WAR 382.

6. The Limitation Act (WA) also separately allows the court to extend the time to commence an action under the Fatal Accidents Act: s 39. This provision is directed specifically to such an action; it is not a general provision such as s 30.

7. An application for such an extension can be made by an administrator or executor, or by a person bringing an action under s 9(1) of the Fatal Accidents Act. 

8. Pursuant to s 39(3), a court may extend the time in which the action can be commenced if the court is satisfied of one of the following matters:

   (a)the proposed plaintiff was not aware of the physical cause of the death;

   (b)the proposed plaintiff was not aware that the death was attributable to the conduct of a person; or

   (c)the proposed plaintiff has been unable to establish the identity of the person by reason of whose conduct the death was attributable.  

9. As can be seen, these criteria are directed to the specific knowledge of the plaintiff proposing to bring the action.  In this case, it is accepted that none of the adult relatives fall within the criteria specified by s 39.

10. I will now turn to the applicable authorities, before outlining the parties' respective submissions.

Relevant authorities

1. From my own and the parties' research, there are primarily four authorities that deal with similar issues to that raised in this case.  They are, in chronological order, Bendt v Green,[32] Palmer v Riverstone Meat Co Pty Ltd,[33] Noja and Wallis bnf v Lyco Industries Pty Ltd.[34]

   [32] Bendt v Green (Unreported, NSWSC, 7 April 1983).

   [33] Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Reports 80-223.

   [34] Wallis bnf v Lyco Industries Pty Ltd [2002] NSWSC 1215.

2. In respect of each of these authorities, the relevant limitation legislation operated to suspend the limitation period applicable to children for varying periods of time. Here, pursuant to s 30, the limitation period is in effect extended, not suspended. However, I do not think the requisite interpretative analysis is affected by the conceptual difference between suspension and extension.

3. The applicable scenario and the result in each of these authorities are as follows.

4. Bendt is a decision of a single judge of the Supreme Court of New South Wales.  In Bendt, the plaintiff was an infant at the time of the deceased's death.  The action was brought on behalf of the plaintiff, her two sisters (also infants at the time of the deceased's death) and her mother, the deceased's widow.  The court held the applicable limitation legislation did not prevent a person who was statute barred from bringing the action themselves, from being included as a beneficiary where the action is brought by a person who was not statute barred.[35]  Further, the court held that this result accorded with the policy that lies behind the need to have exceptions to a system of limitations where persons under disability are involved.  However, to my mind, this reasoning does not directly engage with the question whether it is consistent with such policy grounds for persons who are not under the applicable disability to benefit from the exceptions.

   [35] Bendt (9).

5. Palmer is a decision of a Master of the Supreme Court of New South Wales.  In Palmer, the action was brought by the deceased's wife and four of her and the deceased's children.  The four children were all under age at the time of the deceased's death.  The two younger children were not barred from bringing the claim because of their prior disability of infancy.[36]

   [36] Palmer (68,252 - 68,253).

6. It was held that the action could be maintained on behalf of all of the children and also on behalf of the widow.  The reasoning in Palmer is very much dependent upon the language of the applicable legislation. Specifically, the reasoning predominantly relies on the operation of s 63 of the Limitation Act 1969 (NSW), in respect of which there is no similar provision in the Limitation Act (WA).

7. In Noja, the action was brought by the deceased widow, who was out of time to do so.  The action was brought on the widow's behalf and also on behalf of her children.  The time within which the youngest child could bring the action had not expired.  The court held the suspension of the time period for the youngest child to bring the action had no effect in relation to other members of the family who were not under a disability.  However, the court granted the widow leave to bring the proceedings upon other grounds which were available to her. 

8. The critical reasoning of the Full Federal Court in Noja is set out as follows at (108) ‑ (109):

   Section 30 of the Limitation Ordinance operates where a person has a cause of action, the limitation period fixed by the Ordinance for that cause of action has commenced to run and the person is under a disability. We are of opinion that, for the purposes of s 30, each of the members of a deceased's family is to be regarded as a person who has a cause of action within the meaning of those words in the provision. We are also of opinion that the section is to be read as affecting only the limitation period as it affects the person under disability, its effect being to suspend the running of the limitation period in so far as it affects the right of that person to bring, or to participate in, an action brought under s 7 or s 13 of the Compensation (Fatal Injuries) Act and to fix the date of expiration of the limitation period so far as it affects that person by reference to the date upon which the disability ceases or the person under the disability dies. In other words, s 30 is to be applied separately to any of the members of the deceased's family who are under a disability: it has no effect in relation to such a member who is not under a disability. That that view gives effect to the intention of the legislature is, we think, supported by the provisions of s 52 of the Limitation Ordinance which provides:

   Where, were it not for this Ordinance, 2 or more persons would have a cause of action jointly and, by this Ordinance, an action on the cause of action is not maintainable by one or more of them, an action on the cause of action is nonetheless maintainable by the other or others of them and judgment may be given accordingly.

9. The Compensation (Fatal Injuries) Ordinance 1968 (ACT) under consideration in Noja provided that not more than one action shall be brought against a person in respect of a death and further, that such action shall be for the benefit of those members of the deceased person's family who sustained damage by reason of the deceased's death.[37]

   [37] Noja (100).

10. In the extract set out at [59] above, the Full Court referred to s 52 of the Limitation Ordinance (ACT) as supporting the court's interpretation. Section 52 is directed to a situation where two or more persons have a joint cause of action and by reason of the Limitation Ordinance (ACT), one or more of them is not able to maintain that cause of action. Section 52 provides that in such circumstances, those persons who still are within time to bring the claim may do so. Section 52 thus addresses, and overcomes, the scenario that a joint cause of action may be lost to all claimants if it cannot be maintained by some of them. Section 82 of the Limitation Act (WA) is to the same effect as s 52 of the Limitation Ordinance (ACT). 

11. As I read Noja, the significance of s 52 to the court's reasoning is that s 52 proceeds on the premise the Limitation Ordinance (ACT) may result in persons with a joint cause of action being subject to different limitation periods. Given the cause of action itself would have a prescribed limitation period, s 52 recognises that a suspended limitation period available to one person, is not per se available to others who are out of time. Understood in this way, s 52 supports the Full Court's preferred interpretation because it recognises that the benefit of a suspended limitation period available to one joint claimant does not extend to the other claimants.

12. Wallis is a decision of an Acting Justice of the New South Wales Supreme Court.  In Wallis, the deceased's son brought the action.  While the action was brought after the expiry of the relevant limitation period, that period was suspended for the duration of the son's legal disability and therefore the action as brought by the son was in time.  The son applied to join his mother as a person for whose benefit the action was brought.  The court held the mother should be joined in that capacity and in doing so declined to follow Noja. Cooper AJ noted as follows at [36]:

    Each member of that class has two separate and distinct rights.  First, he/she may maintain the action.  Secondly, he/she may be named as a beneficiary of the action so maintained.  The Act allows such a member to maintain the action and/or to be named as a beneficiary in such an action.  If such a member does not maintain the action in the sense of being named as a plaintiff, then he/she may still be named as a beneficiary in that action.

13. In Wallis, s 75 of the Limitation Act (NSW) was of similar effect to s 52 of the Limitation Ordinance (ACT) referred to in Noja.[38]  Cooper AJ declined to follow Noja, stating that it was not relevant to the circumstances of the case in Wallis.[39]In that respect, his Honour held that the deceased's mother was not seeking to maintain a cause of action in her own right, or jointly with her son. Rather, the son was maintaining a single cause of action, which was for his and his mother's benefit. It seems to me this is why his Honour was of the view s 75 of the Limitation Act (NSW) did not apply, there being no joint cause of action. 

    [38] Wallis [24].

    [39] Wallis [39] - [40].

14. The reasons for decision in Wallis do not appear to directly engage with the interpretive analysis undertaken in Noja of s 30 of the Limitation Ordinance (ACT), it being the provision which provided for the suspension of the applicable limitation period.  In Wallis, the equivalent provision was s 52 of the Limitation Act (NSW),[40] however his Honour did not approach the issue before him as being resolved by the construction of this provision. Rather, as is apparent from the extract set out at [63] above, in Wallis the issue was approached by reference to the mother having 'two separate and distinct rights' - a right to maintain the action and a right to be named as a beneficiary in an action maintained by another.  Thus, it seems to me that Noja and Wallis each encapsulate different approaches to the resolution of the issue.

    [40] Wallis [6].

15. There is a factual difference between the scenarios presented in Noja and Wallis.  In Noja, the plaintiff, being the deceased's widow, was statute barred from bringing the action.  She was seeking to maintain the action because the time within which the youngest child could bring the action had not expired.  In Wallis, the plaintiff, being the deceased's son, was within time to bring the action, and the question was directed to whether others who were out of time to bring the action, could be named as a person on whose behalf and for whose benefit the action was brought.  Thus, in Noja the plaintiff was out of time to bring the action, while in Wallis the plaintiff was within time.  Accordingly, the scenario arising in Wallis is of greater similarity to that which presents in this case.

16. However, I do not see this factual difference as affecting the correct approach to be taken.  To my mind, it remains an interpretive analysis.  Also, as I have explained, it seems to me that in Noja, s 52 of the Limitation Ordinance (ACT) was relied on as supporting the statutory construction of s 30 which the court found. Understood in this way, s 52 informed the interpretive process which the court undertook. Its relevance was not dependent upon the particular circumstances which arose in Noja. 

17. When the reasoning in Noja is understood in the way I have just expressed, in my view the approach taken in Wallis does not undermine the reasoning in Noja.  Further, I consider the approach to the issue taken in Noja is the preferred approach. In this respect, as I explain below, in my view the correct approach to resolution of the issue is the proper interpretation of s 30 of the Limitation Act (WA), it being the provision which grants the extension of time to a person under disability.  This was the approach taken in Noja.[41]

    [41] Noja (107).

18. I turn now to the parties' submissions.

Parties' submissions

Approach to resolution of the issue raised – defendant's primary position

1. The defendant's primary contention is that the issue should be resolved by s 14(2) of the Limitation Act (WA) being read as if the words 'or joined in' are added after the words 'be commenced' such that s 14(2) would then read:

   14.Personal injury, Fatal Accidents Act 1959 actions - 3 years

   …

   (2) An action under the Fatal Accidents Act 1959 for damages relating to the death of a person cannot be commenced or joined in if 3 years have elapsed since the death.

1. The defendant says that on this interpretation, where the limitation period for a particular relative to commence the action has expired, that relative can then apply under s 9A of the Fatal Accidents Act to be joined as a person for whose benefit the action has been brought. The defendant says that in determining such an application, the court can then consider the reasons for the particular relative's delay in making a claim. With respect, I do not think this is the correct approach. I read s 9A as granting to the court a power to include additional persons for whose benefit the claim has been brought, where that person was omitted from the initial claim. It is therefore directed to the person having been omitted from the claim. I do not see it as directed to providing the court with an ancillary power to determine whether on discretionary grounds a person should be allowed to participate in the claim, where the particular person is themselves statute barred from bringing the claim. That being so, I do not see s 9A is intended to operate as an adjunct to the Limitation Act (WA). 

2. Further, it seems to me the additional words bring to s 14 the concept of 'joined in', which is at variance with the language of 'commenced'. Furthermore, the effect of such additional words would require consideration of those provisions in the Limitation Act (WA) that provide for extensions of time, so as to determine whether, and if so to what extent, they also should be read as containing additional words. Thus, the effect of the additional words cannot be said with sufficient certainty to be limited to the operation of s 14. In my view, for these reasons overall, s 14 should not be read as including the additional words which the defendant suggests.  Instead, I consider the correct approach is to consider the application of the relevant extension provision relied on by Michaelah in bringing the action.

3. Accordingly, in my view the correct approach to resolution of the issue is to consider the proper interpretation and effect of s 30 of the Limitation Act (WA).  As I have explained, s 30 is an exception to s 14. Pursuant to s 14, an action cannot be commenced if three years have elapsed since the death. Section 30 provides for an exception to this in respect of a person who was a child under 15 at the time the cause of action accrued. Therefore, in my view, the critical question is the extent to which the limitation extension provided for by s 30, affects the operation of s 14. I see the specific question for resolution being whether, on the proper construction of s 30:

   1.an action brought by a person in reliance on s 30 is for the benefit of all relatives, irrespective of whether they were themselves able to bring the action as a plaintiff; or

   2.the action is only for the benefit of those persons who meet the characterisation of disability prescribed by s 30.[42]

   [42] See Noja (107).

4. The defendant also submits that overall the regime implemented by the Fatal Accidents Act contemplates disparate and divergent interests.  Further, the Fatal Accidents Act confers rights on a group of individuals rather than a class of person.[43]  In addition, the defendant submits the reasoning in Noja has application here given the similarities between the legislative regime under consideration in Noja to the Western Australian provisions. 

   [43] Defendant's submissions, par 73.

5. The defendant accepts Noja is not binding on me, which it is not. Ultimately, the defendant submits that the proper construction of s 14 of the Limitation Act (WA) prohibits a beneficiary who is barred themselves from bringing a claim, from claiming through a plaintiff who is not barred from bringing the claim.[44]

   [44] Defendant's submissions, par 18.

6. The plaintiff submits that it is clear from the Fatal Accidents Act that only one action can be brought.[45] With this, I agree. The plaintiff further submits that s 6 of the Fatal Accidents Act, when read with s 9 and s 9A, makes it clear the provisions are remedial in character and are intended to ensure the action includes all dependant relatives. The plaintiff submits that it follows that the provisions should be construed so as to give the most complete remedy, which is consistent with the language used.[46]

   [45] Plaintiff's submissions, par 20.

   [46] Plaintiff's submissions, par 21.

7. Further, the plaintiff submits that Bendt, Palmer and Wallis all support the legitimate joinder of Mr Callow, Adrienne Ryan and Lonnelle Callow as persons for whose benefit the claim is brought.[47]  The plaintiff submits the reasoning in those cases is consistent with the Western Australian legislation and emphasises there can only be one action and the dependent relatives are people within a class for whom the action is brought.

   [47] Plaintiff's submissions, par 27.

Disposition

1. As I observe above, in my view, the critical question for the disposition of this application is the proper construction of s 30 the Limitation Act (WA), and its interaction with the Fatal Accidents Act. 

2. The evident purpose of s 30(1) is to address the disadvantage which may arise when a cause of action accrues to a person while they are a child under 15 years of age. Section 30 achieves this by providing for a limitation period of six years from when the cause of action accrued to the child, except where the applicable limitation period is longer than six years in which case the longer period still applies.[48]  Thus, the interests of the child are protected by ensuring that the minimum limitation period to which a child under 15 years of age is subject is six years.[49]

   [48] Section 30(2).

   [49] Except for claims for defamation: s 34.

3. The language of s 30 makes clear that it is directed only to the interests of the affected child - the cause of action spoken of is a cause of action that accrues to the affected child. There is nothing within s 30 or pt 3 div 1 from which an intention to benefit persons other than the relevant child can be discerned. Accordingly, in my view, it is difficult to discern a statutory purpose for s 30 consistent with the result that adults who have not taken up their own opportunity to bring an action, benefit from the extension granted to a person who was a child under 15 years of age at the time of the deceased's death.

4. Further, while s 30 is of general operation, in my view the necessary interpretative analysis must be undertaken by also having regard to the specific cause of action in respect of which s 30 is engaged, and also, the limitation regime applicable to that cause of action. Therefore, in determining the proper construction of s 30, I need to have regard to both the nature of a fatal accidents claim and also the relevant provision by which the limitation period for that action is imposed. That is, the effect and intended scope of operation of s 30 must be discerned having regard to the potential cause of action to which it applies.

5. In the context of a claim under the Fatal Accidents Act, s 30 will only be of any consequence where the action has not been commenced within three years since death, either by any executor or administrator, or a relative under s 9. If it is so commenced, the child is entitled to the benefit of that action, irrespective of whether they are a plaintiff.

6. For the reasons set out at [32] above, in my view, notwithstanding that only one action may be brought, the Fatal Accidents Act confers individual claims for each relative. Furthermore, s 9A recognises that an action is still maintainable even though all possible claimants are not named as being persons for whom the claim is brought. Thus, while s 7 speaks of only one action under the Fatal Accidents Act, the action is not defeated by the absence of all possible claimants.  In addition, even where a person who ought to have been included is omitted, the court retains a discretion as to whether the action should be amended to include that person.  Further, as was observed in Noja, a member of the class may elect not to claim, or may lose the right to participate by electing to pursue another remedy.[50]

   [50] Noja (108).

7. Pursuant to s 9 of the Fatal Accidents Act, every relative at the time of death is able to commence the action in their own name, where there is either the absence of, or inaction by, an executor or administrator.  Further, every relative is able to seek an extension of time pursuant to s 39 of the Limitation Act (WA) if they were not sufficiently apprised of the circumstances of the deceased's death in a manner reflected by s 39.

8. Further, a person who was a child at the time of the deceased's death will not have had any responsibility to the other relatives in respect of bringing a fatal accidents claim.  That person is in a different position to say an administrator or executor, or a guardian, whose inaction in commencing an action may impact on those to whom they had a responsibility to act.  Given such a child would not have had a similar responsibility, there is no apparent policy rationale for a limitation extension afforded to the child, to flow through for the benefit of relatives who were adults at the time of death.

9. I agree with the plaintiff's submission that s 9 and s 9A are remedial in character. Section 9 remedies the absence of, or inaction by, an executor or administrator by allowing for a relative to bring the claim. Section 9A remedies the omission of a relative from the claim, by allowing for the omitted relatives to be included as persons for whose benefit the claim is brought. I accept these provisions should be the subject of liberal interpretation.[51] However, s 9 and s 9A of the Fatal Accidents Act, and s 30 of the Limitation Act (WA), address different subject matters. Collectively, s 9 and s 9A provide for processes which enable all relatives to bring, or participate in, the claim. Section 30 on the other hand is directed to extending the limitation period for a person who is regarded as being of disability because of their young age at the time the cause of action accrued to them. In my view, a liberal interpretation of s 9 and s 9A does not warrant an extension of s 30 so as to benefit persons other than those to whom it is specifically directed.

   [51] Pearce and Geddes [9.2].

10. I see the key factors in the interpretive analysis as being the policy rationale behind s 30, the independent nature of the claim for each relative, the right each relative has to commence the action in their own name and the limitation extension afforded where a relative is not sufficiently apprised of the circumstances of the deceased's death. When regard is had to these factors, in my view, on its proper construction, s 30 does not operate as a broad catch all such as to allow an otherwise expired claim to be brought for the benefit of all relatives, irrespective of whether they meet the criteria of disability the subject of s 30.

11. Therefore, in my view, the extension of time which s 30 affords is only for the benefit of those persons who were children under 15 at the time of death. It is only to this extent that the limitation period put in place by s 14 is affected. That is, the limitation period is only disturbed such as to enable a claim to be brought by, and for the benefit of, persons who meet the criteria prescribed by the section at the time the action is commenced.

12. In respect of the authorities referred to by the parties, I consider the reasoning in Noja to be the most persuasive. It directly engages with what I consider to be the critical issue, namely the interpretation and effect of s 30.

13. For these reasons, I am of the view that the claim brought on behalf of Mr Callow, Adrienne Ryan and Lonnelle Callow is not maintainable.

14. I consider the appropriate course to take is to strike out that aspect of the claim from the statement of claim.  I therefore propose to strike out the references in the statement of claim to Mr Callow, Adrienne Ryan and Lonnelle Callow.

15. In coming to this view, it would seem that I do have power, whether inherent or under O 16 of the Rules of the Supreme Court 1971 (WA), to summarily dismiss part of a claim.[52]  However, I consider the appropriate exercise of my discretion is to strike out the relevant parts that I have identified, as opposed to entering summary judgment.  Proceeding in this way allows the affected persons to apply in the future to be joined as a person for whose benefit the action is brought, if a different (new) pathway to do so is identified.[53]

    [52] Cardaci v Filippo Primo Cardaci as Executor and Trustee of Marco Antonio Cardaci [2018] WASC 100 [44].

    [53] In saying this, I am not suggesting that I consider there is such a pathway.  Rather, I wish to preserve the position in the event one is identified.

16. I will hear from the parties as to the precise form of orders required and also as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

CM
Associate to Judge Lemonis

8 JUNE 2020