Callow v Peterson

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CALLOW -v- PETERSON [2021] WASCA 167
CORAM:   QUINLAN CJ
MITCHELL JA
HILL J

HEARD:   17 AUGUST 2021
DELIVERED          :   15 SEPTEMBER 2021
FILE NO/S:   CACV 74 of 2020
BETWEEN:   MICHAELAH ROYLENE CALLOW
Appellant
AND
DESMOND JAMES PETERSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEMONIS DCJ
Citation: CALLOW v PETERSEN [2020] WADC 76
File Number            :   CIV 3587 of 2019

Catchwords:

Limitation of actions – Action under the Fatal Accidents Act1959 (WA) – Action commenced by a plaintiff who was a child at the time of the deceased's death – Whether relatives of the deceased who were adults at the time of the deceased's death can benefit from action brought by the plaintiff – Relationship between the Fatal Accidents Act1959 (WA) and the Limitation Act 2005 (WA)

Legislation:

Fatal Accidents Act 1959 (WA), s 4, s 6, s 7, s 8, s 9, s 9A
Limitation Act 2005 (WA), s 11, s 12, s 14, s 30, s 82

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant	:	T Lampropoulos SC & N F Morrissey
Respondent	:	P E Cahill SC & D M G Burton

Solicitors:

Appellant	:	Bradley Bayly Legal
Respondent	:	McCabe Curwood

Cases referred to in decision:

Avery v London and North Eastern Railway Company [1938] AC 606
Bendt v Green (Unreported, NSWSC, Library No 10326 of 1981, 7 April 1983)
Callow v Petersen [2020] WADC 76
Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95
Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Reports 80-223
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Wallis bnf v Lyco Industries Pty Ltd [2002] NSWSC 1215

JUDGMENT OF THE COURT:

Introduction and summary

This appeal concerns a question (or questions) of statutory construction concerning the interaction of the Fatal Accidents Act 1959 (WA)[1] and the Limitation Act 2005 (WA).[2]
[1] Fatal Accidents Act 1959 (WA) (Fatal Accidents Act).
[2] Limitation Act 2005 (WA) (Limitation Act).
The ultimate question posed by the appeal is this:
Where a plaintiff, in relation to whom the limitation period for commencing an action under the Fatal Accidents Act has not expired, commences an action under that Act on behalf of the relatives of the deceased, does that action enure for the benefit of those relatives of the deceased in relation to whom the limitation period for them to bring the action in their own name has expired?
In our view, the answer to that question is 'Yes'.
There is one action, and one action only, under the Fatal Accidents Act. The only issue arising under the Limitation Act is whether that action has been commenced within time. Where (as in the present case) the action has been commenced within time, the rights of both the plaintiff and any relatives of the deceased fall to be determined by the Fatal Accidents Act. There is nothing in the Fatal Accidents Act that limits the persons for whose benefit the action is commenced or conducted by reference to whether those persons could have independently commenced the action.
It follows that we would allow the appeal.
Our reasons for that conclusion are as follows.
Before turning to the relevant statutory provisions, it is appropriate to briefly set out the factual background.

Factual background

The appellant is the daughter of Christine Donelle Ryan. Ms Ryan died on 5 October 2013, after having been struck by a motor vehicle driven by the respondent.
On 17 September 2019, the appellant commenced an action against the respondent pursuant to s 9 of the Fatal Accidents Act. She was 19 years of age when she commenced the action.
The appellant brought the action for the benefit of herself and seven others. They were Robert Wayne Callow, Ms Ryan's de facto husband, and six other of Ms Ryan's children.
At the time of Ms Ryan's death, Mr Callow and two of Ms Ryan's children, Adrienne Ruth Ryan (Adrienne) and Lonnelle Rose Callow (Lonnelle) were all adults. 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.

Statutory context

We commence setting out the statutory context by identifying the relevant provisions of the Fatal Accidents Act.

Fatal Accidents Act

Section 4 of the Fatal Accidents Act creates a statutory cause of action. Section 4(1) in particular provides:
Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime.
Section 6 makes provision for the effect of the action under the Fatal Accidents Act and the mode of bringing it. Relevantly, s 6 provides:
(1A)Every action brought under this Act shall be for the benefit of relatives of the person whose death has been caused in any manner referred to in section 4.
(1B)The action shall be brought by and in the name of the executor or administrator of the deceased person as the case may be.
(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.
Section 7 provides:
No more than one action lies under this Act for and in respect of the same subject matter of complaint.
Section 8 requires the delivery of particulars of the person or persons for whom and on whose behalf the action is brought:
In every action under this Act the plaintiff shall deliver to the defendant or his solicitor, full particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.
As can be seen from s 6(1B), the action under the Act is to be brought by and in the name of the executor or administrator of the deceased. Section 9 provides for other persons to bring the action in certain 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.
Finally, s 9A makes further provision in relation to the inclusion of persons for whose benefit the action is brought. Section 9A provides:
(1)Where –
(a)an action under this Act has been commenced; and
(b)the court is satisfied that a person whose name is not included in the names of the persons for whose benefit the action is stated to have been brought is a person whose name should have been so included,
the court may, on application made by or on behalf of that person or of its own motion, order the action to proceed as if the name of that person had been so included.
(2)The court may order that any one or more of the persons for whose benefit an action has been brought be separately represented.
(3)Where the court makes an order under this section, the court may, at the same time or subsequently, make such orders in relation to procedure in the action as it thinks fit.
(4)The powers of the court under this section are in addition to and not in derogation of any other powers of the court.

Limitation Act

The Limitation Act, as its long title says, is an Act to 'provide for time limits for commencing civil legal proceedings and arbitrations'.
The general limitation period for the commencement of an action under the Fatal Accidents Act is found in s 14(2) of the Limitation Act. That section relevantly provides:
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 if 3 years have elapsed since the death.
The reference to commencement of the action in s 14(2) is, relevantly, a reference to the issue in an appropriate court of a writ in relation to the action.[3]
[3] Limitation Act, s 12(1).
Section 14, being in div 3 of pt 2 of the Limitation Act, has effect subject to pt 3.[4]
[4] Limitation Act, s 11(1).
Section 30 of the Limitation Act, which is in pt 3, provides:
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.
Also potentially relevant to the issues in this appeal is s 82, which provides:
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.
We turn, then, to the proceedings below.

Proceedings at first instance

The respondent applied for summary judgment in respect of the claim for the benefit of Mr Callow, Adrienne and Lonnelle, or alternatively, that those paragraphs of the Statement of Claim identifying Mr Callow, Adrienne and Lonnelle as persons for whose benefit the action was brought should be struck out.
The application was made on the basis that the cause of action on behalf of Mr Callow, Adrienne and Lonnelle was 'statute barred, the proceedings are not maintainable in law and the courts (sic) jurisdiction is not enlivened' on account of the fact that each had attained the age of majority at the time of Ms Ryan's death.[5]
[5] BAB, 40.
The learned primary judge (Lemonis DCJ) upheld the application and struck out the paragraphs of the Statement of Claim referring to Mr Callow, Adrienne and Lonnelle.[6]
[6] Callow v Petersen [2020] WADC 76 (Primary reasons).
While the learned primary judge concluded that there was only one cause of action created by the Fatal Accidents Act, his Honour nevertheless concluded that the Act conferred individual claims on each relative.[7] In that context, the learned primary judge introduced the notion of an 'expired claim', which first appears in the following passage:[8]
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.
[7] Primary reasons [32].
[8] Primary reasons [87].
The learned primary judge concluded:[9]
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.
…
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.
[9] Primary reasons [88], [90].
It is from this conclusion that the appellant appeals.

Grounds of appeal

There is one ground of appeal. It provides:
The learned primary Judge erred in law in concluding at Reasons [90] that the appellant cannot maintain her action in so far as it relates to Robert Callow, Adrienne Ryan and Lonnelle Callow in that his Honour:
(a)failed to adequately recognise that members of the relevant class of relatives under the Fatal Accidents Act 1959 (WA) (which only permits one action) are given two rights, namely a right to bring the action in their own name on behalf of themselves and on behalf of all the members of the class (if the deceased's executor/administrator has not commenced an action within 6 months of the death), and a separate right to share in the damages recovered in the action if it is brought by the executor/administrator or another member of the class; and
(b)failed to conclude that upon its proper construction, section 14 (and section 30) of the Limitation Act 2005 (WA) only applies to the former situation (the right to commence an action).
The respondent, in answering the appeal, contended by way of a notice of contention that the decision of the learned primary judge should be affirmed on the following further grounds:[10]
1.On a proper construction of the [Fatal Accidents Act], the right to commence a proceeding is a right held individually by each relative of the deceased identified in Schedule 2, which right is substantively exercised by delivering to the defendant the relevant particulars of that person or persons required pursuant to s 8 of the [Fatal Accidents Act].
2.On a proper construction of the [Limitation Act], and subject to any relevant statutory exception:
2.1 a member of the class identified in Schedule 2 to the [Fatal Accidents Act] who was over the age of 18 years at the date of the deceased's death is precluded from being named in the particulars provided to s 8 in respect of a proceeding commenced more than 3 years after the date of death;
2.2 a member of the class identified in Schedule 2 to the [Fatal Accidents Act] who was under the age of 15 years at the date of the deceased's death is precluded from being named in the particulars provided to s 8 in respect of a proceeding commenced more than 6 years after the date of death.
[10] Defendant's Notice of Contention [1], [2] (WAB 27).
Ultimately, of course, the resolution of this appeal is concerned with the proper construction of each of the Fatal Accidents Act and the Limitation Act read as a whole. The particular matters raised in the grounds of appeal and the notice of contention are, in essence, simply different aspects of the parties' alternative constructions of those Acts, read as a whole. It is therefore appropriate that the parties' submissions as to those matters be addressed together, rather than in a piecemeal fashion.

The appellant's submissions

The appellant's construction starts from the proposition, reflected in s 7 of the Fatal Accidents Act, that there is, and can only ever be, one action under that Act.[11]
[11] Appellant's Submissions [6] (WAB 6).
The appellant distinguishes between two separate rights: the right of a person to bring an action under the Fatal Accidents Act; and the right of a person to have his or her name included as a person on whose behalf the action is brought.[12]
[12] Wallis bnf v Lyco Industries Pty Ltd [2002] NSWSC 1215 (Wallis v Lyco ) [36] (Cooper AJ); Appellant's Submissions [12] (WAB 7).
The appellant's essential submission is that the Limitation Act is only concerned with the exercise of the first of these rights (i.e. the right to commence the action) and that, once it is recognised that the Limitation Act did not prevent the appellant from commencing the proceedings (which is not in dispute) and that the Fatal Accidents Act empowers the appellant to bring the action on behalf of herself and other relatives, 'that is the end of the matter'.[13]
[13] Appellant's Submissions [34] (WAB 15 - 16).
The learned primary judge's error, the appellant submitted, was to conclude that s 30 of the Limitation Act applied to Mr Callow, Adrienne and Lonnelle in such a way as to diminish the remedy available in the action commenced by the appellant. In that regard, the appellant submitted that the provisions of the Limitation Act barred the remedy only, by precluding commencement of proceedings (and therefore access to the courts) but did not diminish or alter the content of the remedy available in an action lawfully commenced.[14]
[14] Appellant's Submissions [36] (WAB 16).
The appellant accepted that it was necessary, under the Fatal Accidents Act for the particulars to identify any particular relative for whose benefit any award of damages under the Act is to be made. She submitted, however, that that requirement was a mechanism for the court to be able to assess damages and make orders under the Act.[15] In that regard, the appellant observed that, while an obligation was, by s 8, cast upon the plaintiff to identify the persons on whose behalf the action was brought, s 9A provided the necessary mechanism to rectify any omission in that regard.[16] The appellant submitted, however, that those mechanisms did not affect the commencement of the action, which could be commenced by a generally endorsed writ.[17]
[15] Appeal ts 4 ‑ 5.
[16] Appeal ts 3 ‑ 4.
[17] Appeal ts 4 ‑ 5.

The respondent's submissions

The respondent's construction starts from the proposition that the plaintiff in an action under the Fatal Accidents Act (either the executor or a person who commences the action pursuant to s 9) is a nominal plaintiff, who acts as a fiduciary in bringing the action.[18]
[18] Respondent's Submissions [7] (WAB 22).
The respondent then drew a distinction, also reflected in the learned primary judge's notion of an 'expired claim', between the 'claim' under the Act and the statutory cause of action. The gravamen of the respondent's case was put in these terms:[19]
The right to make a claim in respect of the statutory cause of action (i.e. commence a proceeding) belongs individually to each relative identified in Schedule 2. Not all members of the class must join in the proceeding. They do so by the inclusion of their name in the particulars to be provided to the defendant pursuant to s 8 and it is only by that process that a person has a right to share in any damages ultimately awarded. If a person's name is omitted from the particulars when the proceeding is issued, that person can apply to the court to have the action proceed as if their name had been included.
[19] Respondent's Submissions [8] (WAB 22).
In this latter respect the respondent relied upon the House of Lords' decision in Avery v London and North Eastern Railway Company.[20] Given the significant reliance that the respondent placed upon certain passages in that decision, it is appropriate that we set out those passages in full.
[20] Avery v London and North Eastern Railway Company [1938] AC 606 (Avery v London).
Avery v London concerned a number of actions brought by the widows and children of four deceased railway workers under three separate statutory regimes (the Fatal Accidents Acts 1846 & 1864, the Employers Liability Act 1880 and the Workmen's Compensation Act 1925). On the basis of advice, the widows and children made differing claims under the various Acts (having regard to the statutory limits that applied to each). In that context, the Court of Appeal had held that compensation must be awarded 'as though all the injured group were before the Court, and no one member is to get more compensation than he or she would have got if compensation were being assessed for all'.[21] In essence, the Court of Appeal treated the action as one for 'group compensation', whether a relative was included as part of the action or not.
[21] Avery v London, 612 (Atkin LJ).

On appeal, the House of Lords disagreed. Lord Atkin, for example, said of the claim under the progenitor of the Fatal Accidents Act:[22]
If a claim were made under Lord Campbell's Act after 1846 it is manifest, I venture to think, that no question of group compensation arises. The action for damages, to which for the first time by s. 1 the tortfeasor is made liable, is by s. 2 expressed to be for the benefit of the wife, husband, parent and child of the person killed: the words 'parent' and 'child' are by s. 5 expanded to include grandparents and step‑parents, grandchildren and step‑children. But they obviously are not the group to whom compensation is to be awarded: they form the class injured, members of which may recover compensation: and the only proceeding in which such injured members may recover compensation is in an action brought for them and naming them, with an express statutory provision in s. 4 that with the declaration there must be delivered full particulars of the person for whom and on whose behalf the action is brought, and of the nature of the claim. The jury are to give damages proportionate to the injury to the parties respectively for whom and for whose benefit the action shall be brought; and the amount so recovered after deducting the costs not recovered—in the words of the Act—'shall be divided amongst the before mentioned parties in such shares as the jury by their verdict shall find and direct.'
The amount of the injury is a question of fact in each case, and when found the damages constitute a legal debt due to each of the persons to whom the jury have awarded damages. There is no room for consideration of a dependant not named and therefore not before the jury. The quantum of damages in such a case is not a proportion of a limited sum. It would not be different though one or more injured persons had not claimed. One action alone can be brought, and the persons who stand out stand out for ever. If they have been improperly excluded from the action by the representative plaintiffs they may, no doubt, before the verdict of the jury, apply to be named as parties to benefit; or, possibly, they may have some legal or equitable remedy against the representative plaintiffs. But after verdict they have no possible claim against the defendant. Nor can the defendant assert their existence to influence the jury's decision as to damages. The altruistic tortfeasor who says to the jury 'the present persons may have been injured: but I have injured others who are not before you. They are not here and I cannot give particulars of their loss, but you must please take them into account' has never yet appeared in the Courts in such an action.
[22] Avery v London, 612 - 614 (Atkin LJ).
Lord Macmillan said, to similar effect:[23]
In stating in general terms that the action is to be for the benefit of certain designated relatives of the deceased, the statute might seem to have overlooked that some of them might not desire to make any claim or might not have suffered any injury by the deceased's death. It sufficiently appears, however, from the subsequent language of the statute that the jury are to be concerned only with those who have suffered injury resulting from the death and whose claims are before the jury for adjudication. It seems to have been assumed that the plaintiff in furnishing particulars of those on whose behalf the action was brought would include the names of all those who had suffered injury by the death and desired to have their claims put forward, for no provision is made for the possible omission, wilful or negligent, of the name of a relative entitled to claim and desirous of claiming. However that may be, it is, I think, plain that the jury can deal only with the cases of those who are mentioned in the particulars and whose claims are brought before them by the plaintiff or who are themselves plaintiffs. The damages which the jury are to give are to be such as they may think proportioned to the injury resulting from the death to the parties respectively, and the jury clearly cannot assess and apportion damages due to parties who are not before them and whose claims have not been the subject of evidence.
[23] Avery v London, 618 - 619 (Macmillan LJ).
From these passages, which emphasise the need for the persons for whose benefit the action is brought (or, more properly 'before the [court] for adjudication') to be properly particularised, the respondent submitted that the 'architecture' of the Fatal Accidents Act embodies the notion of 'claims' by persons 'who had suffered injury by the death and desired to have their claims put forward'.[24]
[24] Appeal ts 14 ‑ 15.
By this approach, the respondent emphasised the 'agency' or 'autonomy' of the 'claimants' in relation to the proceeding brought on their behalf. The respondent put the position thus:[25]
We come back to Avery v London. Nobody is obliged to join in a fatal accidents claim, even though they fall within schedule 2. They may if they wish, but it's not that they must. And a fiduciary is only acting on their behalf by including their name in the particulars. So it is through that agency that the relative who puts forward their particulars acts, and that is the mechanism for the commencement of proceedings.
[25] Appeal ts 29.
On this basis, the respondent submitted, in essence, that it was the 'claim' made in the particulars served under s 8 that must be brought within time. Subject to any statutory exception, the effect of s 14(2) of the Limitation Act, the respondent submitted, is to preclude a member of the class identified in sch 2 who was over the age of 18 years at the date of the deceased's death from being named in the particulars provided under s 8 in respect of a proceeding commenced more than 3 years after the date of death.[26] Sections 30(1) and 31(1) of the Limitation Act were to similar effect in relation to the limitation periods prescribed by those sections.
[26] Respondent's Submissions [8] (WAB 22).
Thus the respondent emphasised the paramountcy of s 8 for whether a particular person has made, or is able to make, a 'claim'. This paramountcy can be seen reflected in propositions in the respondent's notice of contention.
The respondent recognised, in the course of submissions, that this construction could give rise to potentially difficult issues of fact in circumstances in which an action is brought by a plaintiff, within time, but where particulars of the persons on whose behalf the action is brought are not delivered until some time after, during which the limitation period relevant to the particular claimants elapses. In those circumstances, the respondent submitted, it might be necessary for the solicitors for the plaintiff to 'say whether or not the particulars … were always intended to include and they held instructions in relation to this group of relatives or nots (sic) that are now sought to be particularised'.[27] While there was no potential for such issue to arise on the appellant's construction, the respondent nevertheless maintained that it did not cut across the concept and the principle that the particularisation of those who claim 'is all important'.[28]
[27] Appeal ts 32.
[28] Appeal ts 32.
Finally, the respondent submitted that his construction was not undermined by the fact that, in accordance with s 7 of the Fatal Accidents Act, that there is but one action under that Act. In that regard, the respondent submitted that s 82 of the Limitation Act made clear that some potential plaintiffs might be prevented from pursuing an action, whereas others might not, notwithstanding that there is a single cause of action. The limitation periods are, the respondent submitted, 'plaintiff‑focused'.[29]
[29] Appeal ts 34.

Disposition

For the reasons that follow, we prefer the construction advanced by the appellant.
As with any question of statutory construction, the Court's task must begin and end with the statutory text, as a whole, considered in its context, including its objectively discerned statutory purpose.[30]
[30] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] ‑ [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
In the present context, the one lodestar, about which all are agreed, is that there is one action, and one action only, under the Fatal Accidents Act. While various persons may, at various times, have the capacity to commence that action, those differing capacities do not alter that fundamental starting point. And, as the respondent readily accepted, the appellant in this case was within time to commence the (single) action when she commenced the proceedings against the respondent for relief under the Act.
The action in this case was validly commenced within time.
As a matter of both text and purpose, the 'commencement of the action' is the only matter addressed by the Limitation Act. Section 14(2) of the Limitation Act refers to an 'action under the Fatal Accidents Act', s 12(1) refers to the 'commencement of an action' and s 30 refers to 'an action on [a cause of action]'. Properly construed, all of those references to 'action' are references to the same thing: the indivisible 'action' created by s 4(1) of the Fatal Accidents Act.
By its terms, the Limitation Act does not concern the powers or duties of the court in which such an action has been properly commenced. Where an action under the Fatal Accidents Act has been commenced within time, it is in the Fatal Accidents Act that any limitation on the court's powers or duties in relation to the action must be found.
In this regard, the appellant's submission that, once the action has been validly commenced, insofar as the Limitation Act is concerned 'that is the end of the matter',[31] must be accepted. In this regard, the appellant's construction has the attraction that it accords with Ockham's Razor; that is, it is a construction that does not, and does not need to, engage with extra‑legislative concepts such as 'expired claim', 'claimant', 'agency' or 'autonomy'. On the contrary, the appellant's construction begins and ends with the statutory text. The Limitation Act has nothing to say about 'claims' under the Fatal Accidents Act (whatever those 'claims' may be); only 'actions' under that Act.
[31] Appellant's Submissions [34] (WAB 15 - 16).
In that regard, for the purposes of the Limitation Act, the fact that one person might be prevented from commencing an action by reason of the effluxion of time, while another is not, does not affect the court's jurisdiction in relation to the action once it is validly commenced. This is made clear by s 82 of the Limitation Act, in relation to joint causes of action, which concludes that in such a case 'judgment may be given accordingly'.
What 'judgment may be given' in any particular case will be dependent upon the nature of the cause of action and the remedies available to the court in relation to that cause of action. The Limitation Act has nothing to say in relation to that question.
The real issue in the present case, therefore, is whether the Fatal Accidents Act itself evinces an intention to restrict the class of persons for whom and on whose behalf the action (properly brought) is brought, by reference to the effluxion of time.
In our view, it does not.
The respondent's construction placed much emphasis on the 'claims' in respect of which the action is brought and, in turn, on what may be characterised as the 'claimants'. The notion of a 'claim' finds little expression in the terms of the Fatal Accidents Act.[32] Where the word 'claim' is used, in our view, it is used simply to refer to an incident of the 'action' brought by the relevant plaintiff. In this sense, a 'claim' under the Fatal Accidents Act has no independent existence outside the existence of the action itself. This is, in our view, the proper way to understand the emphasis in Avery v London on the fact that the action will only include those 'claims' that are brought forward in the proceedings.
[32] See Fatal Accidents Act, s 5(3)(b), s 6(3) and the heading of s 8.
According to this understanding, to speak of a 'claim' under the Fatal Accidents Act is simply a shorthand conceptual tool to describe the interest that the various persons for whose benefit the action is brought, have in the outcome of the action. As Avery v Londondemonstrates, that conceptual tool may, in some contexts, be a useful one. The conceptual tool should not, however, as the respondent's construction would do, be reified so as to turn the concept into an 'action within an action', which is reposed in the persons for whose benefit the action might be brought and which 'action within an action' might be 'lost' by the effluxion of time.
The respondent's construction, in this regard, supposes that the relatives of the deceased are each possessed of a 'claim' (which is itself a 'cause of action') under the Fatal Accidents Act and that the 'action' brought by the relevant plaintiff is simply the means by which the nominal plaintiff brings those 'claims' before the court for adjudication. This explains the respondent's emphasis on what he described as the relationship of 'agency' between the nominal plaintiff and the persons for whom and on whose behalf the action is brought (the 'claimants').[33]
[33] Appeal ts 11, 24, 29.
Again, while the notion of 'agency' might be a useful analytical (and analogical) tool to describe, in certain respects, the relationship between the plaintiff and the persons for whom the action is brought, that tool (or analogy) should not be used to import limitations into the Fatal Accidents Act that are not to be found in the statutory text. There is nothing, in the text of the Fatal Accidents Act, to support a limitation in s 6(2), s 8 or s 9A, in relation to the identification of the persons on whose behalf the action has been properly brought by the plaintiff, by reference to the effluxion of time.
There being nothing in the Fatal Accidents Act in this regard, once an action has been commenced within time under the Fatal Accidents Act, by any person who may do so, the action is to proceed, and be determined, in accordance with that Act. The only limitation on the persons for whom the action is brought is that they must be relatives of the deceased, as defined by sch 2, whose names have been particularised under s 8 or s 9A.
For these reasons, in our view, the learned primary judge erred in concluding that s 14 and s 30 of the Limitation Act operated to preclude a person who was a relative of the deceased, as defined by sch 2, but who could no longer commence an action under the Fatal Accidents Act, from being included as one of the persons for whose benefit an action that has been properly brought by another person (within time).
Whatever else a 'claim' under the Fatal Accidents Act may be, it is not an 'action' within the meaning of the Limitation Act.
It is not necessary, in this context, for us to address in detail the decisions referred to by the learned primary judge in relation to legislation in New South Wales and the Australian Capital Territory.[34] Those cases were decided in different contexts and are not binding on this Court in any event. It suffices to observe that the constructions of the Fatal Accidents Act and the Limitation Act that we prefer are generally consistent with the approach adopted in Bendt v Green, Palmer v Riverstone and Wallis v Lyco.
[34] Bendt v Green (Unreported, NSWSC, Library No 10326 of 1981, 7 April 1983) (Bendt v Green); Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Reports 80-223 (Palmer v Riverstone); Wallis v Lyco; Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95(Noja v Civil & Civic).
Noja v Civil & Civic is the only decision that might be thought to support the respondent's construction. The action in that case was brought by the deceased's widow, in relation to whom the relevant limitation period had expired, on behalf of herself and her children. The limitation period within which the youngest child could have brought the action had not expired.
The circumstances in Noja v Civil & Civic may, therefore, be described as precisely the inverse of those in the present case; whereas in this case, the plaintiff who was within time brings the claim for persons that include persons who could no longer bring an action, in Noja v Civil & Civic a person who was out of time, purported to bring the action on behalf of persons who could have brought their own action. In that regard, the issue raised in the present case, where the plaintiff was clearly within time to commence the action, did not arise. Moreover, the final result in Noja v Civil & Civic was that an extension was granted for the plaintiff to bring the proceedings.
Nevertheless, in the course of its reasons in Noja v Civil & Civic, the Court did conclude as follows:[35]
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.
[35] Noja v Civil & Civic, 108 (Sheppard, Neaves & Miles JJ).
At one level, the final sentence of this passage is consistent with our preferred construction: s 30 of the LimitationAct does indeed apply separately to any person otherwise entitled to commence an action under the Fatal Accidents Act. That is why, for example, the appellant in the present case was able to commence the action when she did, but Mr Callow, Adrienne and Lonnelle were not. As we have sought to explain, however, s 30 does not have anything further to say about the powers and duties of the court under the Fatal Accidents Act in relation to an action once that action has been properly commenced.
In that regard, insofar as the Court in Noja v Civil & Civic concluded, by way of obiter, that the right of a person to 'participate in' (as opposed to commence) an action is subject to a limitation period, in our view, for the reasons we have given, that conclusion was wrong.

Conclusion

For the above reasons, we would uphold the ground of appeal and reject the notice of contention. The appeal must therefore be allowed. The orders made by the learned primary judge should be set aside and substituted with orders dismissing the respondent's application for summary judgment and to strike out parts of the Statement of Claim.
We will hear the parties as to the final orders in the appeal.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
15 SEPTEMBER 2021

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