Colchester GR Pty Ltd v Case

[2003] NSWCA 383

CITATION:	Colchester GR Pty Ltd v Case [2003] NSWCA 383
HEARING DATE(S):	9 September 2003
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Handley JA at 1; McColl JA at 21; Foster AJA at 22
DECISION:	1. Orders 3 and 4 of 20 March 2003 in the Division set aside; 2. In lieu thereof order that the respondent have leave within 42 days to file a statement of claim claiming damages for injuries sustained as a result of an accident at work on 15 November 1997; 3. Subject to this variation the appeal is dismissed with costs; 4. If the respondent does not file a statement of claim within 42 days the appellant, if so advised, may apply to this Court for a variation of the costs orders in the Division and in this Court.
CATCHWORDS:	LIMITATION - extension of time - informed decision not to sue - change of mind - explanation - pressure from husband led to first decision - discovery of his adultery led to second decision - no prejudice - extension granted - D
LEGISLATION CITED:	Workers' Compensation Act 1987 s 151D(2)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
PARTIES :	Colchester GR Pty Ltd (Claimant) Maryanne Case (Opponent)
FILE NUMBER(S):	CA 40301/03
COUNSEL:	C Hoeben SC/D Brogan (Claimant) S Norton SC/J Young (Opponent)
SOLICITORS:	Bartier Perry (Claimant) Marsdens Law Group (Opponent)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 10296/01
LOWER COURT JUDICIAL OFFICER :	Shaw J

CA40301/03

HANDLEY JA
McCOLL JA
FOSTER AJA

19 DECEMBER 2003

COLCHESTER GR PTY LTD v MARYANNE CASE

CATCHWORDS

LIMITATION – extension of time – informed decision not to sue – change of mind – explanation – pressure from husband led to first decision – discovery of his adultery led to second decision – no prejudice – extension granted

FACTS

The plaintiff was injured at work on 15 December 1997 when a stack of heavy cartons collapsed and struck her on the back. On 31 October 2000, having received proper advice from her solicitors, she instructed them that she did not wish to commence common law proceedings. In coming to that decision she acted under considerable pressure from her husband. Shortly after the limitation period expired she learned that her husband was having an affair with another woman and she changed her mind. On 23 November she instructed her solicitors to bring common law proceedings and the employer’s insurer was notified by letter on 1 December. The summons for leave under s 151D(2) of the Workers’ Compensation Act to bring proceedings out of time was filed on 2 February 2001. The employer had not been prejudiced. Master Harrison refused leave but Shaw J reversed this decision and granted leave. The employer applied for leave to appeal which was granted. HELD: (1) The Judge fell into error in holding that a time barred plaintiff had a prima facie right to bring proceedings and a Court would have to re-exercise the discretion; (2) Although the plaintiff had made a deliberate, properly informed decision not to pursue her common law rights, she had made that decision under pressure from her husband; (3) This explanation, the very short delay, and the absence of prejudice made if just and reasonable to grant leave: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 CA, per Ipp AJA at paras 142, 151 apply.

ORDERS

1. Orders 3 and 4 of 20 March 2003 in the Division set aside.

2. In lieu thereof order that the respondent have leave within 42 days to file a statement of claim claiming damages for injuries sustained as a result of an accident at work on 15 November 1997.

3. Subject to this variation the appeal is dismissed with costs.

4. If the respondent does not file a statement of claim within 42 days the appellant, if so advised, may apply to this Court for a variation of the costs orders in the Division and in this Court.

CA40301/03

HANDLEY JA
McCOLL JA
FOSTER AJA

19 DECEMBER 2003

COLCHESTER GR PTY LTD v MARYANNE CASE

Judgment

1 HANDLEY JA: This is an appeal by an employer from a decision of Shaw J who reversed a decision of Master Harrison and gave leave under s 151D(2) of the Workers’ Compensation Act for an action to be brought against the appellant after the three year limitation had expired. Leave to appeal was granted following the hearing of the appellant’s summons for leave to appeal on which the Court heard full argument.

2 The respondent was injured at work on 15 November 1997 when a stack of cartons each containing six coke bottles collapsed and struck her on the back. She claims to have suffered back injuries which have since led to depression and chronic pain syndrome. She has been receiving weekly payments of workers’ compensation since 12 December 1997.

3 She said that she consulted a firm of solicitors in December 1997 or perhaps in early 1998 in relation to her claim for workers’ compensation. At some time, apparently during 2000, having heard something about the common law rights of injured workers from an acquaintance she telephoned her then solicitor and asked about that matter. Sometime later her solicitor arranged for to see one of the partners so that he could explain her common law rights to her.

4 The respondent was not happy with this interview and on 14 September 2000 instructed her present solicitors. She then received an explanation, which she agreed during oral evidence before the Master she fully understood, about the distinction between common law rights and workers’ compensation and she was told that she would have to commence common law proceedings by 15 November that year at the latest.

5 She had a further meeting with her solicitor on 31 October when she decided not to commence common law proceedings and signed a document recording those instructions. Her oral evidence, which differed from her affidavit evidence, was that she then fully understood her rights but decided not to take common law proceedings because her husband insisted that she didn’t.

6 Shortly after the limitation period expired the respondent discovered that her husband was having an affair with another woman and she felt able to ignore his instructions and do something for herself. On 23 November she instructed her solicitors to bring common law proceedings and the defendant was notified by letter on 1 December. The summons seeking leave to bring the proceedings out of time was filed on 2 February 2001.

7 The Master found that the respondent’s oral and affidavit evidence about her understanding of her common law rights was contradictory and unreliable. She was not prepared to attribute this to the drugs she was taking to control her pain.

8 The Master held that it was not just and reasonable to extend the time because of the many contradictions in the respondent’s evidence. She said that the medical issues would largely depend on the veracity of the respondent’s description of her symptoms. The unreliability of her evidence would make it difficult for the defendant to prepare for trial and it would suffer actual prejudice. Accordingly she refused to grant an extension.

9 The respondent’s appeal was heard by Shaw J and allowed. His Honour held that the Master’s exercise of discretion had miscarried because she had given “too much weight … to questions of credibility at an interlocutory stage” and “insufficient weight … to the prima facie right of a citizen to bring an application to the courts, albeit out of time” (para 14). Later the Judge said that the Master had given “insufficient weight or relevance … to the importance of the applicant being allowed to advance her claim in the judicial system so as to vindicate what she claims are her rights” (para 16).

10 He held that the employer had not been able to identify any tangible prejudice and had not alleged that the claim was frivolous or vexatious. He concluded that it was fair and just to grant the modest extension of time that had been sought.

11 Section 151D(2) prescribes a three year limitation period but “with the leave of the Court” permits proceedings after that period has expired. The leading authority on this section is the decision of this Court in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 (Itek Graphix) which lays down the relevant principles.

12 In my judgment Shaw J fell into error when he held that the plaintiff had a prima facie right to bring proceedings in the Courts and that the Master had given this factor insufficient weight. After the expiration of the limitation period a plaintiff has no prima facie right to bring common law proceedings at all. For similar reasons the importance of a plaintiff being allowed to advance his or her claim in the judicial system to vindicate what are claimed to be their rights is not entitled to any weight in the exercise of the discretion.

13 The Parliament has decided that claims of this nature should be brought within three years. If they are not brought within that period they are time barred unless the plaintiff can persuade a court to exercise its discretion in favour of granting leave. The Parliament has decided that it is important, as a general rule, that claims such as this respondent’s not be brought after three years. The Judge’s decision that significant weight should be given to the importance of the plaintiff being allowed to advance her claim out of time was in direct conflict with the statute.

14 The general rule established by Parliament must override the general interests of time barred plaintiffs in obtaining access to justice. As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:

“A limitation period … represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires … may sometimes be overridden by the facts of an individual case.”

15 The Judge’s exercise of discretion therefore miscarried and this Court must re-exercise the discretion.

16 Shortly before the limitation period expired the respondent made a deliberate decision, on proper advice, that she would not commence common law proceedings. She changed her mind a few weeks later and eight days after the limitation period expired she instructed her solicitors to commence such proceedings. The defendant’s insurer was notified by the respondent’s solicitor by letter dated 1 December, 15 days outside the limitation period.

17 The unreliability of the respondent’s evidence in other respects does not affect the explanation in her oral evidence for her sudden change of mind and the short delay. Mr Hoeben SC who appeared for the appellant did not suggest that it had been prejudiced and this concession was properly made. The appellant’s insurer was on notice of the accident within a few days and has kept itself informed of the plaintiff’s condition through medical examinations by various specialists.

18 The critical factor is the respondent’s deliberate decision not to pursue her common law rights, and as Itek Graphix demonstrates this will generally preclude an extension of time. See per Ipp AJA at paras 91, 98. The facility for leave does not exist to enable a would be plaintiff who has made a deliberate and properly informed decision to change his mind. There is no right to make a second properly informed choice and leave should only be granted in such a case in quite exceptional circumstances. The existence of such an exception was recognised by Ipp AJA in Itek Graphix [above at paras 142, 151] where his Honour said:

“… the true cause of the respondent's change of mind remains obscure. This is relevant keeping in mind the onus that she bears to explain her conduct … in allowing the limitation period to expire … In taking the various decisions that her course of conduct involved, the respondent was not under any duress of any kind and there were no compelling external pressures that she had to face.”

19 That of course is this very case. The respondent’s husband did not want her to commence common law proceedings and put pressure on her to ensure that she did not do so. As soon as this pressure was removed by her knowledge of his infidelities she changed her mind. In my judgment these facts, and the complete absence of prejudice provide proper grounds for an exercise of the discretion in her favour.

20 The appeal therefore fails in substance but the orders below should be varied. Order 3 was as follows: “Grant leave to the applicant to commence the proceedings out of time”. We were informed that a statement of claim has not yet been filed and the open ended order enabled the respondent to defer making a final election between her common law and statutory rights to lump sum compensation. However this Court should not allow the order granting leave to remain open ended. It will also be necessary to make provision against the possibility that the respondent does not commence common law proceedings. The following orders should be made:

1. Orders 3 and 4 of 20 March 2003 in the Division set aside.

2. In lieu thereof order that the respondent have leave within 42 days to file a statement of claim claiming damages for injuries sustained as a result of an accident at work on 15 November 1997.

3. Subject to this variation the appeal is dismissed with costs.

4. If the respondent does not file a statement of claim within 42 days the appellant, if so advised, may apply to this Court for a variation of the costs orders in the Division and in this Court.

21 McCOLL JA: I agree with Handley JA.

22 FOSTER AJA: I agree with Handley JA.

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Last Modified: 12/22/2003