E R Henry Wherrett and Benjamin v Catta Pty Ltd
[2004] TASSC 148
•15 December 2004
[2004] TASSC 148
CITATION: E R Henry Wherrett & Benjamin v Catta Pty Ltd [2004] TASSC 148
PARTIES: E R HENRY WHERRETT & BENJAMIN (a firm)
RUTHERFORD, Nigel Henry
v
CATTA PTY LTD (ACN 009 556 334)
AITKINS, Robert George
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 114/2003
DELIVERED ON: 15 December 2004
DELIVERED AT: Hobart
HEARING DATE/S: 27 May, 9 November 2004
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Parties – Joinder of party – Joinder of plaintiff after expiry of limitation period – Limitation defence available – Order of joinder will serve no useful purpose.
Supreme Court Rules 2000 (Tas), r184.
Liff v Peasley [1980] 1 WLR 781; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Ketteman v Hansel Properties Ltd [1987] 1 AC 189, applied.
Weldon v Neal (1887) 19 QBD 394; Lynch v Keddell (No 2) [1990] 1 Qd R 10; Grotherr v Maritime Timbers Pty Ltd [1991] 2 Qd R 128, considered.
Aust Dig Procedure [271]
REPRESENTATION:
Counsel:
Appellants: K B Procter SC
Respondents: M E O'Farrell
Solicitors:
Appellants: Murdoch Clarke
Respondents: Dobson Mitchell & Allport
Judgment ID Number: [2004] TASSC 148
Number of paragraphs: 37
Serial No 148/2004
File No FCA 114/2003
E R HENRY WHERRETT & BENJAMIN (a firm) and NIGEL RUTHERFORD HENRY v CATTA PTY LTD (ACN 009 556 334) and ROBERT GEORGE AITKINS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
BLOW J
15 December 2004
Orders of the Court
Appeal upheld.
The order made on 27 November 2003, that Robert George Aitkins be joined as plaintiff to the action, is set aside.
The application that he be joined, that was filed on 9 April 2002, is dismissed.
Serial No 148/2004
File No FCA 114/2003
E R HENRY WHERRETT & BENJAMIN (a firm) and NIGEL RUTHERFORD HENRY v CATTA PTY LTD (ACN 009 556 334) and ROBERT GEORGE AITKINS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
15 December 2004
The appeal is from an order made on 27 November 2003 that joined the second respondent, Robert George Aitkins ("Mr Aitkins"), as a plaintiff to the action.
The history of the action
In 1995, the first respondent ("Catta") commenced an action (No 1452/1995) for damages against Alan Hilder Pty Ltd for negligence and breach of contract with respect to some land. Essentially what Catta claimed was that in 1992 it was the registered proprietor of a number of parcels of adjoining land; that it held the parcels of land as trustee for the benefit of the Robert George Aitkins Family Trust; that Alan Hilder Pty Ltd carried on business as a surveyor; that acting as Catta's agent, Mr Aitkins engaged Alan Hilder Pty Ltd on or about 3 June 1992, to survey part of the land ("the Nichols block") and to prepare a survey plan that enabled it to be sold as a separate parcel; that the Nichols block had about 23 separate lots; that Alan Hilder Pty Ltd was instructed to cause the Nichols block to be made subject to certain rights of way in favour of other land of Catta that adjoined the Nichols block, so as to ensure that there was access to the other land across the Nichols block; that because of its breach of contract and/or negligence, Alan Hilder Pty Ltd failed to include the necessary rights of way; that on 28 June 1992 Catta agreed to sell the Nichols block to Nichols Constructions Pty Ltd and on 13 August 1992 the sale was completed; that Nichols Constructions Pty Ltd did not cooperate concerning rights of way and Catta could not have the road access it had planned over the Nichols block to the balance of its land; that Catta incurred loss and expense because it had to make other arrangements for such access and for the subdivision of the balance of its land.
In 1998, Catta commenced a fresh action (No 622/1998) for damages against the appellants for negligence and breach of contract with respect to the same land. Essentially what Catta claimed was that the first appellant was a firm of legal practitioners and the second appellant was a practitioner with the firm; that on or about 12 June 1992, Catta, through its agent, Mr Aitkins, engaged the appellants to act as its solicitors in the sale of the Nichols block to Nichols Constructions Pty Ltd and to prepare a schedule of easements to be noted on the title to the Nichols block; that terms of Catta's retainer of the appellants were that they would include in the schedule of easements for the Nichols block, for the benefit of the adjoining parcel of Catta's land, rights of way corresponding to the roadways on the subdivision that had been approved for the Nichols block and that they would advise Catta on the action necessary to ensure that Nichols Constructions Pty Ltd developed the Nichols block in accordance with the subdivision as approved; that because of the breach of contract and/or negligence of the appellants, they failed to act in a way that complied with those terms; and that the consequences as pleaded against Alan Hilder Pty Ltd were also consequences of the appellants’ failures and similar losses and expenses were claimed to have been incurred.
On 14 February 2000, the two actions were consolidated into one action in which Catta was the plaintiff, Alan Hilder Pty Ltd was the first defendant and the appellants were respectively the second and third defendants. On 13 June 2000, Catta was given leave to amend its statement of claim in the consolidated action.
On 9 April 2002, Catta applied for an order that Mr Aitkins be joined as a plaintiff to the consolidated action. The application was contested by the appellants. On 27 November 2003, a judge made the order sought, publishing reasons for doing so. The appeal is from that order.
On 16 December 2003, the plaintiff, with leave, discontinued the consolidated action insofar as it was against Alan Hilder Pty Ltd.
Included in the papers prepared by Catta for the use of the judge who heard the application to join Mr Aitkins as a plaintiff, was a proposed further amended statement of claim for use in the action if Mr Aitkins became a plaintiff. No order has been made giving leave for that document to be so used. Counsel for the respondents conceded to this Court that it is not in a sufficiently fit state and will need to be altered. Therefore, the position at present is that Mr Aitkins has been joined as a plaintiff but there is not in existence an effective statement of his claim in the form of a pleading.
The application to join Mr Aitkins as a plaintiff
The reasons for Catta and Mr Aitkins wishing to have him added as a plaintiff are to be found in the following assertions of fact. Catta was incorporated and became trustee of a discretionary trust, the Robert Aitkins Family Trust. By 1986 it had purchased all of the relevant lands and held them in its capacity as trustee of the family trust. In 1988 Mr Aitkins married. He and his wife were the directors of Catta. The marriage broke down and was dissolved by the Family Court. Proceedings in that court relating to property were resolved by them when the court made orders by consent on 12 June 1992. Order 5 was "that Catta Pty Ltd as Trustees [sic] for the R G Aitkins Family Trust at its expense on or before 5.00pm on 30th June 1992 do all acts and things necessary and execute such deeds documents instruments and writings necessary to assign to the Husband the property situated at East Derwent Highway being the whole of the land comprised in Certificate of Title Volume 4491 Folio 96 subject to a mortgage to the National Australia Bank secured over the land". The land referred to in that order was the land referred to in this action with regard to which it was claimed that Catta had sought to ensure that it had the benefit of rights of way over the Nichols block. By order 6 it was ordered by consent that Catta as trustee for the R G Aitkins Family Trust do all things necessary to assign to Mrs Aitkins other land in the area. The transfer by Catta to Mr Aitkins of the land referred to in order 5 was registered on 25 September 1992, approximately a month after the sale of the Nichols block to Nichols Constructions Pty Ltd.
In an affidavit sworn by Mr Aitkins in support of the application to join him as a plaintiff, he said that it was always understood by the directors of Catta, and it was a fact, that the land transferred to him under order 5 and the land transferred to Mrs Aitkins under order 6, were held by them on trust for Catta in its capacity in turn as trustee of the Robert Aitkins Family Trust. He added that it was always intended that Catta would expend its funds on the development of the lands and would receive all of the benefit from their eventual sale. Catta in fact paid $144,719.39 towards the development of both pieces of land. All or many of the subdivided lots on the land transferred to Mrs Aitkins had been sold. Development of the land transferred to Mr Aitkins had not been completed, and he said that when it is subdivided and sold, the vendor will be Robert George Aitkins in trust for Catta Pty Ltd.
Referring to the land transferred by Catta to him as "land R", and to his ex-wife as “Lyn”, Mr Aitkins explained in his affidavit why it was sought to join him as plaintiff:
"24Actions 1452 of 1995 and 622 of 1998 were commenced in the name of Catta because the negligence alleged against all defendants occurred when Catta was the registered proprietor of land R, and because it is Catta which has suffered damage because it was not able to develop land R as it had intended.
25Lyn and I considered at all times that because Catta was the beneficial owner of land R, it was proper for it to be plaintiff. I have now been advised by my solicitors that even though Catta was the beneficial owner of land R, because I hold land R on trust for Catta, I should be made a plaintiff in these actions.
26My view that Catta was the correct plaintiff was formed as a result of advice which I received from Catta's current solicitors and its former solicitors, Piggott Wood & Baker to the effect that Catta was the correct plaintiff. I accepted that advice at the time.
27The real issue in these actions is the substantial loss which has been suffered by the beneficial owner of land R. So that the issue can be determined, I consent to be joined as plaintiff to these actions."
Mr Aitkins was not cross-examined on his affidavit, nor were its contents challenged by other evidence.
Mr Aitkins' history of the matter is puzzling, possibly because of lack of information. The reason for Catta transferring pieces of land to the husband and wife, which it held as trustee of the family trust, so that they could hold them on trust for Catta in its capacity in turn as trustee of the family trust, is impossible to understand. However, it is unnecessary to know the reason.
What the respondents now say is that when the court actions were instituted by Catta, the first against Alan Hilder Pty Ltd and the second against the appellants, claiming loss and damage because Alan Hilder Pty Ltd and the appellants had not done what they should have done to ensure that Catta's land had the benefit of rights of way over the Nichols block, its land had been transferred by Catta to Mr Aitkins. It is not clear what cause or causes of action Mr Aitkins claims to have against the appellants and it is difficult to understand that a cause of action based on contract could have arisen, but no point about such questions was raised by the appeal.
I also note that Catta did not purport to sue in its capacity as trustee of the land which it claimed should have had the benefit of a right of way. Its only claim to be a trustee in its statements of claim, as amended from time to time, was that at one time it was the owner and registered proprietor of the Nichols block as trustee for the family trust.
It appears to have been assumed at the hearing of the application that if Mr Aitkins had at that time commenced a fresh action for damages against the appellants, they would have been able to successfully defend the action by relying on the six year limitation period in the Limitation Act 1974, s4, and that by joining Mr Aitkins as a plaintiff in the consolidated action, they would be prevented from doing so. The learned judge considered the application on that basis. At the first hearing of the appeal counsel made submissions on the same basis. However, after reserving their decision, it appeared to the members of the Court that there was available to the appellants an argument that the making of the order joining Mr Aitkins as a plaintiff was futile and would serve no useful purpose, because the appellants would be able to successfully defend his claim by means of the limitation defence, notwithstanding the joinder. As a result, the parties were invited to make further submissions to the Court about the matter at a hearing on 9 November.
Ground 1
The ground is:
"1His Honour erred in finding that r 184 (1) (c) of the Supreme Court Rules 2000 applied in the circumstances of the case."
The relevant parts of r184 are:
"(1) At any stage of a proceeding and whether or not any relevant limitation period has expired, the Court or a judge, either on or without application, may order –
(a)that the name of a party improperly or erroneously joined be struck out; or
(b)that the name of a person who ought to have been joined as a party or whose presence may be necessary for the Court or judge to adjudicate on and settle all the questions involved in the proceeding be added; or
(c)if through a genuine mistake a proceeding has commenced in the name of the wrong person as plaintiff or applicant or it is doubtful if it has commenced in the name of the right plaintiff or applicant, that any other person be added or substituted as plaintiff or applicant.
(2) ...
(3) ...
(4) A person must not be added as a plaintiff or applicant without his or her consent in writing.
(5) ...
(6) Unless otherwise ordered, a proceeding against a party whose name is added as defendant or respondent is taken to have begun on the service of the originating process on that party.
(7) An application under subrule (1) –
(a)may be made to the Court or a judge at any time before trial or at the trial of the action; and
(b)is to be made in a summary manner.
(8) If an order is made under subrule (1) or (2)(b) –
(a)the originating process is to be amended accordingly; and
(b)the plaintiff or applicant is to file a copy of the originating process as amended; and
(c)any new defendant or respondent is to be served with the amended originating process in the same manner as originating process is served; and
(d)the proceeding continues as if the new defendant or respondent had originally been made a defendant or respondent."
This ground of appeal reflects what was submitted to the learned judge by the appellants. However, they conceded in this Court that r184(1)(b) applied and accepted that there was no point in maintaining the ground of appeal, which they abandoned.
Grounds 2 – 7
The appellants did not rely on grounds 2 – 6 as discrete grounds upon which the appeal should be upheld. They relied upon ground 7 only for success. The grounds are:
"2His Honour erred in determining that the discretion to allow the joinder of a party to an action when a time limit had expired depended on different considerations when the intended party was a plaintiff from those which applied to an application to add a defendant.
3His Honour erred in determining that the existing plaintiff, Catta Pty Ltd and the intended plaintiff, Robert George Aitkins:
(a)had identical interests,
(b)had a 'synonymous' real identity and
(c)were 'in real terms' the same entity
or, alternatively, erred in placing undue weight on those matters in reaching his decision.
4His Honour erred in determining that the fact that the appellants had always known of the identity of the intended plaintiff and his relationship with the existing plaintiff was relevant to the question of joinder of the intended plaintiff.
5His Honour erred in finding that the intended plaintiff had an existing claim in the action as trustee or agent for Catta.
6His Honour erred in finding:
(a)that the joinder of the intended plaintiff did not add a new cause of action to the proceedings or
(b)that, even if it did, this did not matter 'when the identity of the additional party is synonymous with the existing one'.
7His Honour erred in holding that the matters identified by him in paragraph 18 of his reasons constituted 'special' or 'peculiar' circumstances, for the purposes of the operation of the rule in Weldon v Neal (1887) 19 QBD 394."
In view of the conclusion I have come to concerning the futility of the joinder in this case it is unnecessary to consider these grounds. I observe that because it was assumed that in the normal course of events, joinder would prevent the pleading of a limitation defence that would ultimately be successful, the learned judge considered whether the case was an appropriate one for allowing the raising of such a defence against Mr Aitkins' claim. His Honour applied Queensland cases in which it was held that in special or peculiar circumstances the rule in Weldon v Neal (supra) may not apply to prevent the pleading of a cause of action after a relevant limitation period has expired. Lynch v Keddell (No 2) [1990] 1 Qd R 10; Grotherr v Maritime Timbers Pty Ltd [1991] 2 Qd R 128. The Full Court of Queensland extended the use of the exception to cases where an application for the joinder of a new party was being considered and the Court had power to order that the effective date of the joinder was to be deemed to have taken place at a time prior to the expiration of a limitation period, and held that if special or peculiar circumstances were demonstrated, the order for joinder could be made and backdated accordingly. In this case, the learned judge concluded that he was satisfied that special or peculiar circumstances had been made out and therefore, that it was appropriate to make the order for joinder of Mr Aitkins.
Was it futile to make an order for joinder?
An amendment to a pleading usually takes effect from the date of the original pleading or perhaps, from the date of commencement of the proceedings. It was for that reason that Weldon v Neal (supra) was decided in the way it was. However, an order that adds a person as a party does not usually relate back in time. For this jurisdiction, the Supreme Court Rules, r184(6), provide that unless it is otherwise ordered, a proceeding against a party whose name is added as a defendant is taken to have begun on the service of the originating process on that new party. When read alone, subr184(8)(d) might be thought to mean that if a new defendant is joined as a party, the joinder relates back to the date upon which the proceedings commenced. However, such an interpretation would be in conflict with subr(6), and I respectfully agree with the conclusion of Underwood J in Stilbo Pty Ltd v MCC Pty Ltd (supra) at 102, that there is no conflict and that subr(8)(d) does not have the effect of relating back in the sense I have been discussing. There is no express provision in the rule for the situation when a new plaintiff is added. Therefore, in such a case the order takes effect only from the date of the amendment of the writ. Byron v Cooper (1844) 11 Cl & Fin 556; Liff v Peasley [1980] 1 WLR 781; Ketteman v Hansel Properties Ltd [1987] 1 AC 189; Cockerill v Westpac Banking Corporation (1991) 32 FCR 36; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236. The rules do not permit the making of an order joining a new plaintiff to have a different effective date.
Mr Aitkins has not yet filed or delivered his statement of claim against the defendants. No doubt he will add it to the statement of claim of Catta so that, in a sense, the statement of claim will be amended. But that will not derogate from the fact that he became a party on the date the writ was amended, by adding him as a party, and that his action as against the defendants was commenced on that day. That being so, when he comes to file and deliver his statement of claim against the defendants they will be able to plead a good limitation defence, for the cause of action must have arisen more than six years before the action is deemed to have been commenced against them. Through their opposition to the joinder of Mr Aitkins and by their counsel, they have made it clear that they will plead the defence.
There is a substantial body of authority in support of a rule that leave should not be given to add a person as a party outside the limitation period, if a limitation defence could be successfully pleaded, and particularly so if the joinder is challenged by defendants who assert an intention to rely on the defence. Liff v Peasley (supra); Bridge Shipping Pty Ltd v Grand Shipping SA (supra); Mabro v Eagle, Star and British Dominions Insurance Co Ltd [1932] 1 KB 485; Hudson v Fernyhough (1889) 61 LT 722; Ketteman v Hansel Properties Ltd (supra) at 199 – 200; Davies v Elsby Brothers Ltd [1960] 3 All ER 672; Stout v Wenham Builders [1980] 1 NSWLR 426; Brown v DML Resources Pty Ltd (2001) 188 ALR 469. It was at one time thought that the reason for the rule was that the joinder would relate back to the original commencement of the action and that the added party would be deprived of the limitation defence. However, it is now accepted that there is no relation back and that the reason for the rule is that to add the new party will be futile and serve no useful purpose because it is obvious that the limitation defence will be successfully pleaded. Ketteman v Hansel Properties Ltd (supra); Bridge Shipping Pty Ltd v Grand Shipping SA (supra) at 236; Brown v DML Resources Pty Ltd (supra) at 488; Stilbo Pty Ltd v MCC Pty Ltd (supra) at 102.
I agree with the submission of counsel for the respondents that even if the joinder is allowed to remain, when Mr Aitkins files and delivers his statement of claim against the defendants it will not operate, so far as concerns a limitation defence, from a date prior to his joinder as a plaintiff, and that will be so notwithstanding that he may plead his statement of claim by adding it to the existing statement of claim of Catta. It will be the first occasion upon which Mr Aitkins will have pleaded his claim against the defendants and it will not affect the rule that his action against them will be deemed to have been brought on the date of the amendment to the writ, in accordance with the authorities to which I have referred. The limitation defence is bound to defeat his claim against them.
The power given by r184(1) to add a new party to existing proceedings is expressed "whether or not any relevant limitation period has expired". Counsel for Mr Aitkins submitted that the words must be interpreted as having some operation and that if there is to be no relation back of the date upon which Mr Aitkins' action is deemed to have been brought, the words have no operation. However, that is not correct and I will give some examples to demonstrate it. So far as concerns the joinder of a new defendant, the opening words of subr(6) allow a judge to order that the joinder is to have effect from a date earlier than the date of service of the originating process on that defendant. The circumstances that arose in Lynch v Keddell (No 2) (supra) and Grotherr v Maritime Timbers Pty Ltd (supra) are examples. Another situation that comes to mind is where an application to join a party is made after the expiration of a limitation period but there is power to extend time. See for example, the Limitation Act, s5(3). Further, there might arise on the hearing of an application for joinder some uncertainty about whether a limitation defence is available or uncertainty about whether the defendant will seek to rely on it. I note also that in Stilbo Pty Ltd v MCC Pty Ltd (supra) at 99, Underwood J referred to the possibility that an order joining a party outside a relevant limitation period might be made in exceptional cases.
Notwithstanding that subr184(1) gives a power to order the joinder of a new party even though a relevant limitation period has expired, there is nothing in the rule that enables an interpretation to the effect that joinder of a plaintiff operates from a date earlier than the date of the amendment of the writ following the order for joinder. I am not persuaded that this Court should interpret the rule in a way contrary to the authorities to which I have referred. In my view, no principle of statutory interpretation permits it to do so.
While the learned judge was empowered to order the joinder of Mr Aitkins, the ultimate consequence of such an order appears not to have been considered by his Honour. The appellants have made it clear that on receipt of a statement of claim they will plead the limitation defence. Nothing was raised by Mr Aitkins to suggest that the defence may not succeed. In the factual circumstances of this case it must be assumed that Mr Aitkins will have no answer to the defence and that it will defeat his claim against the appellants. That being so, it was futile to order the joinder of Mr Aitkins for it could serve no useful purpose. With respect, error was made by the learned judge when he applied the possible exception to the rule in Weldon v Neal, based on special or peculiar circumstances, to the application for joinder.
I add that if there is any doubt concerning whether a defendant might rely on a limitation defence, or do so successfully, it may well be appropriate, depending on all the other circumstances of the case, to order joinder and allow the limitation defence issues to be determined on the hearing of a subsequent application or at the trial. What I hold in this case is that because there is no suggestion that the limitation defence was unavailable to the appellants, it was futile to order Mr Aitkins' joinder. His action against the appellants will inevitably fail.
The Court invited submissions from the parties about these issues. However, no ground of appeal raised them. It is plainly in the interests of the parties that the joinder of Mr Aitkins be rescinded because it would be futile to allow his participation as a plaintiff to continue. I would therefore resolve this appeal by inviting the appellants to amend their grounds of appeal by adding a ground asserting that the order of joinder should not have been made because it could serve no useful purpose. Once the ground has been added, I would uphold the appeal, set aside the order made on 27 November 2003 that Robert George Aitkins be joined as a plaintiff to the action and dismiss the application that he be joined, that was filed on 9 April 2002. Other orders may be necessary as a consequence and I would hear counsel in that regard.
File No FCA 114/03
E R HENRY WHERRETT & BENJAMIN (a firm) and NIGEL RUTHERFORD HENRY v CATTA PTY LTD (ACN 009 556 334) and ROBERT GEORGE AITKINS
REASONS FOR JUDGMENT FULL COURT
EVANS J
15 December 2004
I agree with the reasons for judgment prepared by Crawford J and the course that he proposes.
File No FCA 114/2003
E R HENRY WHERRETT & BENJAMIN (a firm) and NIGEL RUTHERFORD HENRY v CATTA PTY LTD (ACN 009 556 334) and ROBERT GEORGE AITKINS
REASONS FOR JUDGMENT FULL COURT
BLOW J
15 December 2004
I agree with the reasons for judgment prepared by Crawford J and the course that he proposes. There is a little that I would like to add in relation to the availability of a limitation defence when a new plaintiff is added after the expiry of the limitation period.
Whether or not a limitation defence is available in that situation depends on the interpretation of the provision imposing the limitation period. In this case, the provision in question is the Limitation Act 1974, s4(1)(a), which reads as follows:
"4 ¾ (1) Except as otherwise provided in this Division, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say:
(a)actions founded on simple contract (including contract implied by law) or founded on tort, including actions for damages for a breach of statutory duty".
When an interlocutory order is made adding a new plaintiff who has not previously been a party to an action, the bringing of the action by that new plaintiff is not something that occurred prior to the making of the order. For the purposes of s4(1), the bringing of the action occurred no earlier than the day of the order.
In Byron v Cooper (1844) 11 Cl & Fin 556, 8 ER 1212, the House of Lords considered the effect of a defendant having been joined as a party after the expiration of the limitation period prescribed by the Tithes Act 1832 (2 & 3 Will 4, c 100), s3 of which provided:
"That this Act shall not be prejudicial or available to or for any plaintiff or defendant in any suit or action relative to any of the matters beforementioned, now commenced, or which may be hereafter commenced, during the present session of Parliament, or within one year from the end thereof."
It was held that the joinder of the defendant did not relate back to the date the suit was commenced, but that the date of the defendant being added was the date of the suit's commencement in relation to him.
A different approach was taken in some subsequent English cases. See, for example, Mabro v Eagle, Star and British Dominions Insurance Co Ltd [1932] 1 KB 485. However Byron v Cooper was followed by the House of Lords in Ketteman v Hansel Properties Ltd [1987] AC 189. The limitation provision with which that case was concerned was almost identical to our s4(1)(a). The correctness of the conclusion reached in that case was acknowledged by Dawson J in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236.
Ketteman related to the joinder of defendants. The only reported case relating to the applicability of Ketteman to the joinder of plaintiffs, as far as I am aware, is Cockerill v Westpac Banking Corporation (1991) 32 FCR 36, a decision of Pincus J. His Honour took the view that there was no reason to distinguish Ketteman, ie, that there was no reason to draw a distinction between the addition of a plaintiff or applicant and the addition of a defendant or respondent.
I agree. I base my conclusion primarily on the requirement that an interpretation of the Limitation Act, s4(1)(a) that promotes the purpose or object of that Act is to be preferred to an interpretation that does not promote that purpose or object: Acts Interpretation Act 1931, s8A(1). Much has been written as to the purposes and objects of limitation statutes. See, for example, the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550 – 556. In a nutshell, I think it can be said that limitation statutes are intended to promote the early resolution of disputes, and to protect litigants from the loss of relevant evidence over time and the oppression of allowing an action to be brought long after the circumstances giving rise to it have passed. I think it follows that the purpose or object of the Limitation Act will be promoted by interpreting s4(1) on the basis that the bringing of an action by an added plaintiff is something that occurs at the time that plaintiff is added, and not before. It follows that the making of an order adding a plaintiff after the expiry of a limitation period does not deprive a defendant of a limitation defence that would be available if that plaintiff were to bring a separate action.
0
6
1