Delfin v Civdec - [2003] NTSC 33

Delfin v Civdec [2003] NTSC 33
PARTIES:DELFIN LEND LEASE PTY LTD

v
CIVDEC CONSTRUCTIONS PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:165 of 2002 (20216251)
DELIVERED:  10 April 2003
HEARING DATES:  27 March 2003
JUDGMENT OF:  MILDREN J
CATCHWORDS:

Appeal – Interlocutory appeal from Master – Limitation of action – Extension of time – pleading struck out – whether pleading receipt of a report without more is sufficient compliance under r 13.07
Statutes:
Limitation Act s 44
Supreme Court Act s 31
Supreme Court Rules rr 13.07, 77.05, 83.04
Cases:
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636-637, referred to
Territory Insurance Office v Kouimanis Pty Ltd & Kouimanis unreported [2002] NTSC 68, referred to
Wright v Donatelli (1995) 65 SASR 307 at 321, referred to
REPRESENTATION:
Counsel:
Appellant:B.J. Jenner
Respondent:  J.Reeves QC
Solicitors:
Appellant:Morgan Buckley
Respondent:  Hunt & Hunt
Judgment category classification:    B
Judgment ID Number:  Mil03296
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Delfin v Civdec [2003] NTSC 33

No. 165 of 2002 (20216251)
BETWEEN:

DELFIN LEND LEASE PTY LTD

Appellant

AND:

CIVDEC CONSTRUCTIONS PTY LTD

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 10 April 2003)

This is an appeal from the Master pursuant to s 31 of the Supreme Court Act (NT) from interlocutory orders striking out paragraphs 55 and 56 of the appellant's amended statement of claim. Those paragraphs read as follows:
55To the extent necessary, the Plaintiff seeks an extension of time in which to institute the action herein pursuant to the provisions of Section 44(3)(b)(i) of the Limitations Act (NT).
56The action herein was instituted within twelve months after facts material to the Plaintiff's claims were ascertained by it in that on or about 24 September 2002 it received the written opinion of Dr Peter Mitchell dated 24 September 2002 as to the causes of the distortion of Woodlake Boulevard in the Fairway Waters project referred to therein for the first time.
Master Coulehan also struck out a number of other paragraphs in the amended statement of claim (which are not the subject of this appeal) and gave leave to the appellant to file and serve a further amended statement of claim within 28 days. There is no reason why the appellant cannot replead paragraphs 55 and 56 of the amended statement of claim, but the appellant claims that the Master was wrong to strike out those paragraphs and seeks to challenge the learned Master's order to the extent that it relates to those two paragraphs.
Notwithstanding r 77.05(1)(b) of the Supreme Court Rules which provides that an appeal from the Master lies only by the leave of a Judge, it is now clear that that rule is partly invalid and no leave is required: see Territory Insurance Office v Kouimanis Enterprises Pty Ltd & Kouimanis (unreported [2002] NTSC 68 per Martin CJ). Nevertheless r 77.05(2) still applies so that the appeal is still an appeal in the strict sense.
Counsel for the respondent to the appeal, Mr Reeves QC, suggested that the appeal was out of time. Unfortunately, when r 77 was amended sub-rs 77.05(3), (4), (5) and (6) which dealt with the procedure on an appeal from the Master appear to have been repealed in error. Consequently, the relevant rule dealing with the time in which an appeal must be lodged is

r 83.04 which requires the appeal to be instituted within 28 days after the material date. That being so, the appeal is not out of time.
The action in this case arises out of the development of land at Palmerston described in the amended statement of claim as "the Fairways Waters project". A series of contracts involving the respondent as well as other parties, are pleaded in relation to the construction of roads for the project. The appellant has alleged a number of breaches of those contracts. Additionally, the appellant has pleaded a case in negligence. The respondent's application before the Master was to strike out those pleadings as against it and the learned Master concluded that the statement of claim did not inform the respondent as to the case it had to meet and was embarrassing.
So far as paragraphs 55 and 56 of the statement of claim are concerned, the learned Master held that it was:
... difficult to understand how a written opinion, of itself, could have any relevance to any issue to be proved or any bearing on the case. It may, of course, contain material facts that would satisfy the requirements of the section, but these are the matters which should be pleaded. The pleading does not raise an issue against the second defendant.
At the hearing before the Master, the opinion of Dr Mitchell was handed to the learned Master without objection and likewise both parties without objection referred me to various parts of the report.
Section 44(4) of the Limitation Act provides as follows:
Where an extension of time is sought under this section in respect to the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to the section.
Strictly speaking, s 44(4) does not require a party seeking an extension of time to plead anything in the statement of claim. All that is required is an endorsement on the initiating process with "a statement to the effect that the plaintiff seeks an extension of time pursuant to this section" (i.e. s 44 of the Limitation Act).
However, r 13.07(1) requires a party to plead specifically a fact or matter which that party alleges makes a claim or defence of the opposite party not maintainable, or a fact or matter which if not pleaded specifically might take the opposite party by surprise, or which raises a question of fact not arising out of the preceeding pleadings.
I think that that rule does require a party to plead in a statement of claim that an extension of time is sought and the matters of fact upon which the plaintiff relies in order to bring itself within s 44. That I am told is the general practice and it is what the appellant has sought to do in this case.
The grounds of appeal as set out in the notice of appeal are as follows:
(1)In a claim involving assertions of building work in breach of contract and tort the Learned Master erred as a matter of law in determining that the expression of an expert opinion could never be relevant to an issue to be proved and could never be of sufficient importance to be likely to have a bearing on the case.
(2)In the alternative to a paragraph 1, (sic), the Learned Master erred as a matter of law in determining the question of the application of section 44(3)(b)(i) of the Limitation Act at a time when the Court proposed to allow the plaintiff to file and serve an amended claim repleading its assertions of building work in breach of contract and tort.
Since Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628, it has been clear that there is no need, in order to attract the operation of s 44, for there to be any interaction between the material fact and a plaintiff's decision to sue. What needs to be shown is "materiality to the plaintiff's case", which is a broad general requirement capable of satisfaction by objective enquiry. As was said by Wilson, Deane, Dawson, Toohey and Gaudron JJ at p 636:
A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case.
However, the material fact must be ascertained by the plaintiff personally and not by the plaintiff's agent: see Sola Optical Australia Pty Ltd v Mills, supra¸ at 637. In the case of a corporate plaintiff, the material facts must be ascertained by the board of directors or by the person who is the mind and will of the company.
There is authority for the proposition that the fact of the existence and the contents of an expert report is capable of being material to the appellant's case in the sense that the report represented available evidence that could be called in support of the appellant's case; see Solar Optical Australia Pty Ltd v Mills, supra, at 638; Wright v Donatelli (1995) 65 SASR 307 at 321.
However, the present pleading is, in my view, defective because all that is alleged in paragraph 56 is that a written opinion was received by the appellant on a particular date as to the causes of the distortion of Woodlake Boulevard in the Fairway Waters project. It is not alleged that anyone on behalf of the plaintiff read the opinion. It is not alleged that the opinion is evidence which could be called in support of a case that might be made out against the respondent. There is nothing that alleges that the respondent had anything to do with the construction of Woodlake Boulevard. I agree with the learned Master that the mere fact that a written opinion is given by an expert, is by itself not enough. I would therefore dismiss ground 1 of the appeal.
As to ground 2 of the appeal, I am unable to see how the learned Master erred in dealing with the question of whether or not the application for an extension of time had been properly pleaded at a time when the appellant was to be permitted to file and serve an amended statement of claim repleading assertions of building work in breach of contract and tort. The inadequacy of the pleadings relating to the application for an extension of time was already apparent. No amount of the repleading of the causes of action would save those pleadings. I therefore consider that ground 2 of the notice of appeal must also be dismissed.
In the result, the appeal is dismissed with costs.

---------------------