David Jones Limited v BI (Contracting) Pty Ltd
[2012] SADC 7
•8 February 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
DAVID JONES LIMITED v BI (CONTRACTING) PTY LTD
[2012] SADC 7
Reasons for Ruling of His Honour Judge Jennings
8 February 2012
PROCEDURE
Matter adjourned to enable the parties to place further evidence before the Court on the issue of prejudice.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s6; Limitation of Actions Act (1936) (SA) s48, referred to.
Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS; Pond v WorkCover 1999 SASC 362, considered.
DAVID JONES LIMITED v BI (CONTRACTING) PTY LTD
[2012] SADC 7
This is an application that seeks a ruling that the within proceedings are within time or if not, that an extension of time should be granted.
It arises from the following facts.
Mr Philip Murphy was employed by the plaintiff as a display artist at its David Jones Rundle Street store between 1967 and 1978.
On 19 April 2007 Mr Murphy instituted proceedings in the Dust Diseases Tribunal of New South Wales against the plaintiff claiming damages for personal injury. He alleged that he was suffering from mesothelioma as a result of exposure to asbestos whilst working for the plaintiff.
On 8 October 2007 the plaintiff consented to judgment in favour of Mr Murphy in the sum of $435,000 all inclusive.
On 23 April 2008 the plaintiff served upon the defendant a letter of demand. The letter alleged that the defendant carried out the application of sprayed asbestos at the store at which Mr Murphy worked. It sought contribution to the damages that it had paid to Mr Murphy.
Thereafter there were some negotiations between the plaintiff and the defendant but settlement was not reached.
On 7 October 2010 the plaintiff issued the within proceedings against the defendant. It did so pursuant to the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (the Law Reform Act).
That Act relevantly provides as follows:
6. Right to contribution
(1) A person who is liable in damages for harm suffered by another may recover contribution from a third person who is also liable in damages for the same harm.
…
(3) An action for contribution may be brought –
…
(b) by way of a separate action brought within the relevant time limit against the person from whom contributon is sought.
(4) The relevant time limit is the longer of the following -
(a)the period within which the person who suffered the harm could have brought an action against the person from whom contribution is sought;
(b)two years after the damages payable by the person entitled to contribution are finally determined.”
The plaintiff accepts that the proceedings were not brought within two years after the damages payable were finally determined.
It contends, however, that they were brought within the period within which Mr Murphy could have brought an action against the defendant. It says that in the jurisdiction within which Mr Murphy issued the proceedings, under the relevant legislation, there is no time limit.
In the alternative, it contends that if the relevant period has to be determined under South Australian legislation, the relevant time limit is three years. Next it says that because these proceedings were issued within three years of the settlement of Mr Murphy’s claim they are within time.
Finally it contends that in any event the Court is empowered by s 48 of the Limitation of Actions Act (1936) (SA) to extend time and that in the circumstances of this case it should.
That section provides as follows:
48 (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for –
( a) instituting an action ;
…
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
…
(3) This section does not –
…
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied -(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; …”.
The plaintiff contends that s 48(1) of the Limitation of Actions Act applies. It contends that as the defendant had been on notice since April 2008 that contribution was sought; in its defence the defendant has admitted that it carried out sprayed asbestos operations in the same locality where Mr Murphy was working; the length of the delay is not substantial; and the prejudice that the plaintiff will sustain by being denied the extension of time could be great, the extension should be granted.
The defendant contends that s 48(3) of the Limitation of Actions Act applies and that therefore, for this application to succeed, the plaintiff needs to esbtalish a new material fact, and that it has failed to do so.
Consideration
If the plaintiff’s argument that there is no limitation period were correct, it would mean that the relevant time limit within which to issue proceedings based upon a contribution would depend upon the jurisdiction that the original injured party chose to initiate proceedings within. Those limitations vary from State to State.
In my view it cannot have been Parliament’s intention for there to be such uncertainty. I therefore conclude that the limitation periods must be reckoned by reference to the relevant South Australian legislation.
The plaintiff’s alternative argument on the limitation point must also be rejected. I think it is plain enough that s 4(a) of the Law Reform Act refers to the time during which the injured party should have issued proceedings against the party from whom contribution is sought. Pursuant to s 36 (1a) of the Limitation of Actions Act that period was three years after the injury first came to Mr Murphy’s attention. In his Statement of Claim in the Dust Diseases Tribunal, Mr Murphy alleged that he was diagnosed with mesothelioma in February 2007. Accordingly the time limit pursuant to s 6(4)(a) of the Law Reform Act had expired before the within proceedings were brought.
Accordingly the plaintiff needs an extension of time.
The defendant did not make any submissions to counter the assertion made by the plaintiff that the relevant time limit within which to issue these proceedings was prescribed by the Law Reform Act not the Limitation of Actions Act.
In my view the plaintiff’s argument that s 48(1) of the Limitation of Actions Act applies is unassailable. Accordingly proof of the ascertainment of a material fact is not required.
It does not follow however, that the extension of time should be granted.
The authorities make it clear that ultimately the fate of the application depends upon whether the interests of justice require it to succeed. The Full Court of the Supreme Court in Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS make it clear that there is no encyclopedic listing of relevant factors. However the cases have consistently said that important considerations are the length of delay, the explanation for the delay, and the relevant prejudice to the parties if the application succeeds or fails.
In Pond v WorkCover 1999 SASC 362 Lander J makes the point that in explaining the delay it is important that the parties seeking the indulgence provide a frank and candid explanation.
In my opiniion such an approach should be applied in a case such as this.
I accept that the defendant has been on notice for a considerable time that a claim for contribution was being sought and was aware of that fact within the relevant time period.
I accept that the plaintiff may be severely prejudiced by the refusal to grant an extension.
I note that the defendant has not placed any evidence before the Court to establish any prejudice beyond having to potentially meet a claim that is statute barred.
All of this goes some way to exercising discretion in the plaintiff’s favour.
There is, however, an essential missing ingredient, and that is a frank and candid explanation for the delay.
Because this was not raised in the course of argument and the defendant itself was under some uncertainty as to whether the focus of the interlocutory hearing was to simply determine whether an extension was required, as opposed to whether it should be granted, I think that the plaintiff should, in all the circumstances, be given the opportunity to place further evidence before the Court.
I therefore adjourn further consideration of this application to 22 March 2012 at 10am to enable the plaintiff to place such further evidence before the Court as it wishes to do so and I grant the defendant liberty to file any answering affidavits that it may wish to do so.
The plaintiff is to file any such affidavit by 23 February 2012. The defendant is to file any answering affidavits by 16 March 2012.
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