DJ v RHS and JF - [2004] ACTSC 12

DJ v RHS and JF
[2004] ACTSC 12 (2 April 2004)

LIMITATION OF ACTIONS – whether discretion exists to extend time to commence personal injury action – discretion removed by statute.
STATUTORY INTERPRETATION – interpretation to give effect to legislative intent.

Limitation Act 1985, s 36

Civil Law (Wrongs) Amendment Act (No 2) 2003, s 16B(4)

Legislation Act 2001, ss 139, 141, 142

Supreme Court Rules, O 29

The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited (1920) 28 CLR 129

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Debates of the Legislative Assembly for the Australian Capital Territory, 24 June 2003, 21 August 2003

Ipp, DA Final Report: Review of the Law of Negligence, 2002

No SC 789 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 2 April 2004

IN THE SUPREME COURT OF THE  )
  )  No SC 789 of 2003
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:DJ
Applicant

AND:RHS
First Respondent

AND:JF
Second Respondent

ORDER

Judge:  Connolly J
Date:  2 April 2004
Place:  Canberra

THE COURT DETERMINES THAT:

There is no jurisdiction to extend time to allow this action to be commenced.

By notice of motion dated 28 November 2003 the applicant seeks an order pursuant to s 36 of the Limitation Act 1985 (the Limitation Act) extending the period within which she may bring a personal injuries claim to within seven days of the date of the order. The personal injuries claim relates to a medical procedure which the applicant underwent on 22 September 1995 to terminate a pregnancy. She seeks to bring an action for emotional and psychiatric damages arising, it will be claimed, from a negligent failure to provide appropriate counselling before undertaking the termination. Due to the nature of the claim an order was made on 6 February 2004 to prohibit publication of the names of the parties to this action.

The matter came before me on 5 March 2004 for a ruling on whether there was jurisdiction for the Court to entertain an application for an extension of time in the circumstances of this case. The Legislative Assembly by the Civil Law (Wrongs) Amendment Act (No 2) 2003 (the Civil Law (Wrongs) Amendment Act (No 2)) made substantial changes to the law relating to personal injuries claims, and it is the contention of the respondents that the effect of the changes contained in that legislation, which amended certain parts of the Limitation Act, was to remove the discretion formerly granted to the Court to extend time.

The parties were in agreement that this point should be determined before embarking on any hearing on the merits of an extension of time application. The determination of a point of law before a trial is provided for by O 29 of the Supreme Court Rules.

The applicant alleges a cause of action which arose on 22 September 1995. Under the law as it previously stood, a personal injuries claim had to be commenced within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DJ v RHS and JF

Details

AGLC: DJ v RHS and JF [2004] ACTSC 12
Case: [2004] ACTSC 12
Decision Date

CaseChat Overview and Summary

The case of DJ v RHS and JF [2004] ACTSC 12 involves DJ, the applicant, seeking an extension of time to bring a personal injury claim against RHS and JF, the first and second respondents respectively. The claim relates to a medical procedure performed by RHS on DJ on 22 September 1995 to terminate her pregnancy, for which she seeks emotional and psychiatric damages, alleging a negligent failure to provide appropriate counselling. The core legal issue before the court was whether the statutory changes introduced by the Civil Law (Wrongs) Amendment Act (No 2) 2003 removed the court's discretion to extend the time limit for commencing personal injury claims under section 36 of the Limitation Act 1985.

Justice Connolly considered the implications of the legislative changes and the legislative intent behind them. The court found that the amendments introduced by the Civil Law (Wrongs) Amendment Act (No 2) effectively removed the discretionary power of the court to extend the limitation period for personal injury claims. Specifically, section 16B of the Limitation Act, which was added by the amendment, set a three-year limitation period for personal injury claims arising after 1 July 2003 and established a transitional rule for claims arising before that date. The court concluded that for claims such as DJ's, which arose before 1 July 2003, the limitation period was the earlier of three years from the date of the injury or the period that would have applied before the amendment. Given that DJ's cause of action arose on 22 September 1995, the previous six-year limitation period had expired on 22 September 2001. Consequently, DJ's claim was not maintainable as it was brought beyond the applicable limitation period.

The court's reasoning was grounded in statutory interpretation principles, emphasizing the importance of giving effect to the legislative intent. The court rejected the applicant's argument that the limitation period should be extended to include any additional time the court might have granted under the former discretion. The court found clear legislative intent to remove the discretion to extend time, as evidenced by the legislative history and the responses of the Attorney-General and opposition spokesperson during the parliamentary debates. This interpretation aligns with the statutory provision that the interpretation achieving the purpose of the Act is to be preferred.

The outcome of the case was that the application for an extension of time was dismissed. The court held that DJ's claim was statute-barred, and therefore, the court had no jurisdiction to extend the limitation period.

Orders