Estate of the Late Sir Donald Bradman v Allens Arthur Robinson - [2010] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
THE ESTATE OF THE LATE SIR DONALD BRADMAN v ALLENS ARTHUR ROBINSON
[2010] SASC 71
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Layton)
29 March 2010
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING BREACH OF STATUTORY DUTY)
Sulan and Layton JJ (majority), Vanstone J (dissenting): The respondent sought and obtained summary judgment in respect of claims of negligence and breach of contract. The Judge determined that an application for extension of time within which to bring the proceedings had no reasonable prospect of success - whether the Judge erred in granting summary judgment.
Held (majority): the Judge erred in entering summary judgment - the issues are sufficiently complex and the evidence is sufficiently ambivalent to warrant the matter proceeding for determination at trial.

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - ACTIONS AGAINST DECEASED ESTATE
Whether the Judge erred in holding that the appellants had no reasonable prospect of establishing that the fact relied upon qualified as a recently ascertained material fact for the purposes of s 48(3)(b)(i) of the Limitations of Actions Act 1936 (SA) - whether the Judge erred in failing to give sufficient weight to the subjective nature of ascertainment - whether the Judge erred in holding that the fact relied upon was not material.
The discretion to extend time pursuant to s 48 is arguably enlivened - appeal allowed - order for summary judgment set aside.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - GENERALLY
Whether "the plaintiff" has an ambulatory meaning for the purposes of s 48(3)(b)(i) - whether in cases where the material fact has become known to the successor in title it must be a fact not previously ascertained by the predecessor in title.
Held (majority): The section should be given a meaning consistent with the natural construction of the word "plaintiff".
Limitation of Actions Act 1936 (SA) s 46A, s 48; Supreme Court Rules 2006 s 232; Survival of Causes of Action Act 1940 (SA) s 2, referred to.
Wickstead v Browne (1992) 30 NSWLR 1; Panopoulos v The Nominal Defendant (1990) 53 SASR 491, applied.
Lovett v Le Gall (1975) 10 SASR 479; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Ceneavenue Pty Ltd v Martin [2008] SASC 158; Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951; Wickstead v Browne (1993) 10 Leg Rep SL 2; Finlay v Silcon Industrial Pty Ltd (2003) 229 LSJS 14; Napolitano v Coyle (1997) 15 SASR 559; Healthcorp Ltd v Commissioner of Stamps Qld (1991) 22 ATR 220; Wright v Donatelli (1995) 65 SASR 307; Re Harry Simpson & Co Pty Ltd and Companies (1963) 81 WN (pt 1) (NSW) 207; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd and Others (1920) 38 CLR 129; Coopers Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980) 147 CLR 297; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275; Irving v Nishimura (1907) 5 CLR 233; Viscountess Rhondda's Claim [1922] 2 AC 339; James v Keogh (Question of Law Reserved No 4 of 2008) (2008) 102 SASR 51; Winkley v Paton (1943) 60 WN (NSW) 162; Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; Ryan v Davies Bros (1921) 29 CLR 527; Smith v Browne & Ors [1974] VR 842, considered.

THE ESTATE OF THE LATE SIR DONALD BRADMAN v ALLENS ARTHUR ROBINSON
[2010] SASC 71
FULL COURT: Sulan, Vanstone and Layton JJ
SULAN AND LAYTON JJ:
Introduction

This is an appeal against an order made by a judge for summary judgment in favour of the respondents and against resultant orders, that the claims for negligence and breach of retainer in proceedings instituted by them, be struck out. These orders were made as a consequence of the Judge concluding that the appellants had no reasonable prospect of establishing an entitlement of extension of time in which to institute those actions, pursuant to s 48 of the Limitations of Actions Act 1936 (SA) (“the Act”). The appellants appeal against the orders, primarily alleging that the Judge erred in his approach to the application of the legal principles for summary judgment. The appeal raises issues of alleged fact-finding errors and also whether the judge applied a threshold for summary judgment which was too low given the material before him.
The context of the appeal is that the executors of the estate of Sir Donald Bradman, who are the appellants, sought to institute proceedings alleging negligence and breach of retainer against solicitors who had acted on behalf of Sir Donald Bradman, who is the respondent. Two of the causes of action claimed, required an extension of time. These were struck out and hence they are the subject of this appeal. The respondent filed a notice of alternative contention arguing that ss 46A and 48 of the Act, prevented the appellants from being able to maintain these causes of action when the material facts upon they relied for the extension of time, were already known to Sir Donald.
Background
Sir Donald Bradman (“Sir Donald”) died on 25 February 2001, aged 92 years. Sir Donald was a household name in Australia and in other cricket-loving nations throughout the world. John Bradman, the son of Sir Donald, is one of the executors of Sir Donald’s estate.
During Sir Donald’s lifetime, he was concerned that his name and various trademarks of which he was the proprietor, would be exploited without his consent. Sir Donald entered into arrangements from time to time permitting individuals and organisations to use his name for commercial purposes. In April 1988, the Bradman Museum Trust (“the Trust”) was established. Initially, various individuals were appointed as trustees of the Trust. On 3 June 1994, the Bradman Foundation (“the Foundation”), was incorporated and took over as trustee of the Trust. The Foundation owns and operates the Bradman Museum (“the Museum”), at Bowral in New South Wales.
Mr Bruce Collins QC, was one of the persons who was integrally involved in the establishment of the Foundation and the Trust. Sir Donald donated many of his personal items to the Museum. Sir Donald authorised the Foundation to use his name and likeness for commercial purposes.
In 1992, Sir Donald applied to secure registration of a number of the trademarks which are based on his name in various countries. The countries included Australia, New Zealand, India, Pakistan, Barbados, Jamaica, the United Kingdom and South Africa. In 1994, Sir Donald assigned the trademarks to the Foundation for nominal consideration. Sir Donald also authorised the Foundation to apply for the registration of other trademarks in Australia and various overseas countries. Whilst he was alive, the Foundation consulted Sir Donald regularly regarding the commercial use of his name and likeness. The Foundation took into account his views.
In September 1991, following discussions between Sir Donald’s agent, Mr Collins, and Mr Jim Dwyer, a partner of Allens Arthur Robinson (formerly known as Allen Allen and Hemsley), the respondents (“Allens”), Mr Dwyer advised that Sir Donald should execute an authority instructing Allens to make an application on his behalf for registration of all trademarks of which he was then the proprietor. It was envisaged that Sir Donald would assign all his intellectual property rights to the Foundation, which could enter into various commercial arrangements as Sir Donald considered to be appropriate.
After Sir Donald’s death, differences developed between John Bradman and the Foundation about the use of the trademarks and the use of Sir Donald’s name. On 22 February 2006, Messrs Johnson Winter and Slattery (“JWS”), solicitors acting on instructions of the executors of Sir Donald’s estate and the Bradman family, wrote to the Foundation alleging that the commercial use of Sir Donald’s name could only be used if Sir Donald or his successors consented. JWS stated that Sir Donald had expressed a wish that, following his death, the consent of his successors was required. Their clients expressed concern that the Foundation had breached that understanding and had used the Bradman name in a manner not approved by the family. JWS alleged that trademarks had been registered incorporating Sir Donald’s name without consultation with the family or the executors. The executors and the Bradman family sought certain remedies, including cancellation of registrations to enable the estate to register various trademarks. The Foundation has failed to reconcile its differences with the executors and the Bradman family.
Over many years, there have been discussions and correspondence between John Bradman and Mr Dwyer as to the role Allens had played in the advice it had given to the Foundation and to Sir Donald about Sir Donald’s intellectual property interests. Some of those discussions occurred prior to Sir Donald’s death. However, those discussions and the correspondence became acrimonious after Sir Donald’s death, as did the disagreement with the Foundation.
The pleadings
On 1 August 2008, proceedings were instituted by the executors against Allens. The statement of claim alleges that, since 1988, Allens has acted as solicitors to the trustee of the Bradman Trust. It alleges that in or about September 1991, Allens commenced to act as Sir Donald’s solicitors and legal advisers in relation to advising Sir Donald on the best way of achieving his objectives of preventing others from exploiting his name and various trademarks of which he was the proprietor without his consent, and allowing the Trustee to administer the trademarks and to raise revenue through the limited exploitation of them strictly in accordance with Sir Donald’s and his family’s wishes.
It is alleged that the substance of the retainer, which was not recorded in a formal contract of retainer, is recorded in a letter from Allens to Mr Collins, dated 25 September 1991. The retainer was admitted by Mr Dwyer in his curriculum vitae which appeared on a website in August 2007, and which stated that “for over ten years he acted as legal adviser to Sir Donald Bradman”.
The plaintiffs allege, first, that Allens acted for the Trustee in advising on the best way to achieve the Trustee’s objectives for raising revenue through the commercial exploitation of various trademarks of which Sir Donald was the proprietor. Secondly, that it was Sir Donald’s wish and intention that he and his family would be able to prevent the Trustee from using the trademarks in any manner that they did not approve, and that Allens were aware of Sir Donald’s requirements. Thirdly, that it was an implied term of Sir Donald’s retainer that Allens would act with all due care, skill and diligence in acting as solicitors and legal advisers to him and, in particular, in providing advice and attending to the best way of achieving Sir Donald’s objectives.
The statement of claim alleges that Allens were negligent in the manner in which they advised Sir Donald, and that between 25 September 1991 and 1998 they were in breach of the said retainer.
Four categories of breach were alleged:
5.The reference to “the matters alleged in this statement of claim” is a reference to the transactions the subject of the four categories of breach, namely:
5.1     breaches in relation to the 25 September 1991 advice that Sir Donald should apply for, and assign to the Trustee of the Bradman Museum Trust certain trademarks;
5.2     breaches in relation to the 14 March 1994 statutory declaration of Sir Donald;
5.3     breaches in relation to the July 1994 assignment of certain trademarks by Sir Donald to the Foundation (as Trustee of the Bradman Museum Trust); and
5.4     breaches in relation to the 1998 proposal as to the registration of further trademarks and an agreement between Sir Donald, John Bradman and the Foundation as to a power of veto over the use of Sir Donald’s intellectual property.
[Footnotes omitted.]
Further, it is alleged that there was a breach of fiduciary duty in relation to the said retainer and the alleged retainer to act for the Trust.[1]
[1] Pleaded at [20] of the Amended Statement of Claim.
The claims in negligence and breach of contract became statute barred on 25 February 2007.
In the statement of claim, the executors sought an extension of time, pursuant to s 48 of the Act in which to bring proceedings. The statement of claim alleges the fact that Allens had acted pursuant to Sir Donald’s retainer, as Sir Donald’s solicitors and legal advisers in relation to the matters alleged in the statement of claim, was not ascertained by the executors until 2 August 2007, the time when John Bradman read the curriculum vitae of Mr Dwyer on his website in which Mr Dwyer stated that for over ten years he had acted as legal adviser to Sir Donald Bradman. It is further alleged that fact is a material fact to the plaintiff’s case.
Allens sought summary judgment in respect of the negligence and breach of contract claims. Allens contend, first, that where a cause of action survives to the benefit of the estate of a deceased person, any facts material to the plaintiffs’ case that were not ascertained until after the expiry of the limitation period must be facts which were not known to the deceased person. It is Allens’ contention that Sir Donald was aware that Allens acted as his solicitors and legal advisers throughout the relevant period. It is further contended that each of the plaintiffs were aware before 2 August 2007, and indeed by 13 March 2002, that Allens acted as the solicitors and legal advisers to Sir Donald in relation to the matters alleged in the statement of claim, and that any alternative contention is bound to fail. It is also contended that John Bradman was aware as early as July 1998 that Allens acted as the solicitors and legal advisers to Sir Donald and that he had acknowledged that role.[2] Further, it is contended that by 22 February 2006, when John Bradman sent a letter through his solicitors to the Foundation, that he had “sufficient belief” that Allens indeed acted as Sir Donald’s legal advisors.
[2] Exhibit DY7 to the affidavit of David Larcombe Yates sworn 17 October 2008.
The court proceedings
The application was heard by a judge, who concluded that it is beyond argument that the executors were aware of the fact that Allens acted as Sir Donald’s legal advisers before 2 August 2007 and, thus, before the 12 month period preceding the institution of the action provided for in the section. He concluded that the admission evidenced by the curriculum vitae was not material, having regard to all the evidence known to the executors at the time. He decided that the application to extend the time in which to institute the claim on the basis of the discovery of a material fact is bound to fail and that, therefore, Allens’ application for summary judgment must succeed.
The Judge decided that the Act applies to material facts ascertained by executors of a deceased person’s estate, even if those material facts were known to the deceased person before his or her death. He rejected Allens’ contention that, in the circumstances where a cause of action survives to the benefit of the estate of a deceased person, any facts material to the plaintiff’s case that were not ascertained until after the expiration of the limitation period must be facts which were not known to the deceased person.
The executors sought permission to appeal, which was granted on 31 July 2009. We shall deal with the grounds of appeal in more detail later in these reasons but, in summary, the executors complain that the Judge erred in failing to give any or sufficient weight to the subjective nature or aspect of “ascertainment” for the purpose of s 48 of the Act, and that he erred in concluding that it was unarguably the case that no evidence at the trial could have affected the trial Judge’s interpretation of the documents relied upon by the Judge in arriving at his conclusion.
On 15 September 2009, Allens filed a notice of alternative contentions in which they allege that the Judge was in error in concluding that, where the material facts alleged were known to the deceased person before his or her death and the limitation period had expired that, in any event, s 48 of the Act applies in respect of the executors’ action, notwithstanding that the period had expired during the lifetime of the deceased.
The Limitation of Actions Act
Section 48 of the Act provides:[3]
[3]    Pleaded at [33]-[35] of the Statement of Claim.
General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for —
(a)     instituting an action; or

(b)     doing any act, or taking any step in an action; or

(c)     doing any act or taking any step with a view to 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.
(2)A court may exercise the powers conferred by this section in respect of any action that—

…
(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; or
(ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances, and that in all the circumstances of the case it is just to grant the extension of time.
(3a) A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a)      it forms an essential element of the plaintiff's cause of action; or

(b)    it would have major significance on an assessment of the plaintiff's     loss.
The broad purpose of the Act is to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced. The general power conferred by the legislation is limited by subsection (3) which relevantly provides that the Court is not empowered to extend a limitation period unless it is satisfied that facts material to the plaintiff’s case were not ascertained by the plaintiff until some point of time occurring within 12 months before the expiration of the period of limitation, or occurring after the expiration of that period and that the action was instituted within 12 months after the ascertainment of those facts. Further, the Court must be satisfied that, in all the circumstances of the case, it is just to grant an extension of time.[4] In construing the section, we have adopted the approach of Judge White in Lovett v Le Gall,[5] a decision given in the Local Court of Adelaide on 24 December 1974, which decision was upheld by the Full Court. Judge White’s reasons were adopted by the Full Court. Judge White stated:[6]
In construing the section, regard should be had not only to the scope and policy of the original Limitation of Actions Act 1936-1959, but to the history of its piecemeal amendment in later years, and to the place which s. 48 has amongst those amendments. Section 48 is one of a number of amendments which ameliorate the hardship caused to some classes of plaintiffs, who would otherwise be barred from approaching the court by reason of the rigid time limit in s. 36 or by a wide variety of other very short limitation periods contained in other Acts in favour of the Crown and various statutory authorities. The latter difficulties were softened to some extent by new s. 47, first enacted in 1959, whereby short time limits were increased to six months without notice of action and twelve months with notice. The 1959 amendment has become obsolete by reason of the Crown Proceedings Act 1972, which places the Crown and statutory authorities in a similar position to that of personal defendants in relation to time limitations. The Crown Proceedings Act 1972 was assented to only one week before the abovementioned Statutes Amendment (Miscellaneous Provisions) Act 1972. I am impressed by the sequence of these events.
Section 45 and 46 of the Limitation Actions Act have for long provided some assistance to persons under a disability. Those two sections were repealed and re-enacted in a form more comprehensive and favourable to plaintiffs in the very Act which gave the Court the discretion to extend time in new s. 48. In addition, a new section 46a was enacted so as to exclude time from running in the case of death between the date of death and the date of grant of probate or letters of administration, or twelve months after death, whichever was the shorter period. I think that s. 48 must be viewed against this background of progressive exceptions to the previous rigidity of the limitation laws, and, in particular, against the background of substantial easing of rigid time limits. In my view, the words in the section are reasonably clear and the construction I have put on them is consistent with the above history of amendments.
[4] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628, 635.
[5] (1975) 10 SASR 479.
[6] Ibid, 488.
Principles governing summary judgment

The Judge observed that a claim will only be summarily dismissed pursuant to rule 232 Supreme Court Rules 2006 where it can realistically be shown that no further material which could possibly affect the exercise of the discretion could emerge at trial. The rule relevantly provides:
(1)     The Court may, on application by a party, give summary judgment for that party.
(2)     Summary judgment may only be given if the Court is satisfied that-
(a) if the applicant is a plaintiff – there is no reasonable basis for defending the    applicant’s claim; or
(b) if the applicant is the defendant- there is no reasonable basis for the claim      against the applicant.
It was accepted by both parties that in order for the application to succeed, Allens would need to establish that the executors have no reasonable prospects of obtaining an extension of time pursuant to s 48 of the Act.[7]
[7] Ceneavenue Pty Ltd and Others v Martinand Others [2008] SASC 158 at [81], as referred to in Bradman & Ors v Allens Arthur Robinson [2009] SASC 80 at [12]-[18].
In Ceneavenue Pty Ltd v Martin,[8] Debelle J explained the test for summary judgment:
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried. The fact that the expression “no reasonable basis” is used in both paragraphs (a) and (b) of r 232(2) suggests that the same test applies both when considering whether there is no reasonable basis for defending the plaintiff’s claim and when considering whether there is no reasonable basis for the claim against the defendant. The test in Rule 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
[8] [2008] SASC 158.
The Judge succinctly and correctly summarised the relevant legal principles in his reasons, and they bear repeating for the purposes of this appeal:[9]
[9]    Bradman & Ors v Allens Arthur Robinson [2009] SASC 80 at [24]-[28].
The authorities are replete with warnings about the seriousness of the step of refusing a litigant a full hearing.   There have been many attempts to explicate the “real question to be tried” formula. In Swain v Hillman Lord Woolf MR contrasted a claim that raises a real question with one which has a “fanciful” prospect of success, or one which is “bound to fail”.
The purpose of the rule is plain. In Swain Lord Woolf MR explained that it saves expense and achieves expedition. Importantly, he observed that it avoids the Court’s resources being used up on cases for no purpose.   The rule serves the interests of justice, because as Lord Woolf MR explained:
If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.
It follows from the object of the rule so stated that it is inappropriate to hold a mini-trial. In Three Rivers District Council v Bank of England (No 3) Lord Hope put it in this way:
It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hilman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.   (emphasis added)
A similar position was stated by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd, when he said:
The purpose of the enactment is to enable the court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. … It could not have been the intention of the parliament in introducing s 31A to the Federal Court Act to require the court to engage in lengthy and elaborate trials on an interlocutory basis for the purpose of determining whether or not a proceeding had no reasonable prospects of success.
Limitation of action points may, in some cases, be especially difficult to determine summarily. For example, in Wardley Australia Ltd v Western Australia, Mason CJ, Dawson, Gaudron and McHugh JJ said:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of a kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
In applying these principles, the Judge concluded at [30] – [31]:
I accept that the exercise of a discretion, like the discretion to extend time pursuant to s 48 of the Act, is particularly susceptible to subtle factual considerations which may emerge at trial. For that reason, even more caution must be taken before summarily rejecting a claim that seeks a favourable exercise of a discretion.
Even though s 48(5) of the Act expressly provides that an application for an extension of time may be determined before the close of pleadings, it seems to me that that sub-section is addressed more to preliminary determinations of the issue on a full hearing of the application than to summary judgment applications. Nonetheless, I am satisfied that if it is shown that an application for a favourable exercise of a discretion is bound to fail it should be disposed of summarily. There is no reason to distinguish doomed applications for discretionary relief from other doomed factual and legal claims. The summary dismissal of a discretionary claim does not mean that the relevant discretion has been exercised without having regard to all relevant matters. The claim will only be summarily dismissed where it is shown that, realistically, no further material, which could possibly affect the exercise of the discretion, could emerge at trial. [Emphasis added]
Given the Judge’s finding that the appellants had no reasonable prospect of establishing the circumstances, which enliven the discretion to extend time, he considered it strictly unnecessary to decide how the discretion under s 48 might be exercised. Nonetheless, he observed that he would not have dismissed the executors’ common law claims if there was any prospect that they could establish that they had ascertained a material fact within the prescribed time. However, on the basis of the objective evidence which he had gleaned from the correspondence which was tendered, he concluded that the discretion would necessarily be exercised against the executors. We will refer in more detail to the correspondence later in these reasons.
The material fact
The material fact relied on by the appellants was a biographical note about Mr Jim Dwyer, a partner of Allens, posted on the Allens website and later read by John Bradman (“the Website CV”). The relevant passage reads as follows:
Jim’s list of clients includes Sony Music Australia, Sony Computer Entertainment, Burger King, International Celebrity Management, Phillips and the Ritz Hotel of Paris. For over 10 years he acted as legal advisor to Sir Donald Bradman. His advice is sought by the legal and business community in Australia and from overseas.
The Judge held at [45]:
That statement, at the very least, represents that from time to time over a period of 10 years Mr Dwyer had acted for Sir Donald as a legal adviser. It is also possible, if not an even more natural construction, to read that statement as an admission that Sir Donald had engaged Mr Dwyer on a general retainer as his legal adviser over that entire period. (emphasis added)
He observed that the fact is capable of being material for the purposes of s 48 in a number of ways. First, as a revelation of a historical fact that Mr Dwyer had acted as Sir Donald’s legal adviser. He observed at [46]:
The statement can be regarded as a material fact in two different but related ways. First, it may be seen as a revelation of the historical “fact” that Mr Dwyer acted as Sir Donald’s legal adviser. I have italicised the word “fact” because it would be a fact for the purposes of s 48 of the Act, even if it were ultimately disproved in the subsequent proceedings. In its character as a revelation, the statement may be compared to the hearsay communication of a material fact to a plaintiff. The hearsay account through which the plaintiff ascertains the material fact may not be admissible in evidence to prove that fact, but the fact so communicated will nonetheless constitute a material fact for the purposes of s 48 of the Act.
He further concluded that a second way in which the website CV could be regarded as a material fact is in its character as an item of admissible evidence. He held that the statement in the website CV itself is evidence of an admission against interest.
The Judge observed at [48]:
There can be no question that the executors first ascertained the fact of the existence of that evidential material within the relevant period. Insofar as the executors rely on the website CV as an item of evidence, the primary issue in this case is the materiality of that evidence in the context of the other material known to the executors and their claim. The question is: did Mr Dwyer’s admission that he was Sir Donald’s “legal advisor” add anything to the material supporting the executors’ case that Allens owed the duties pleaded by the executors? The executors accept that the materiality of the evidence of the admission must be assessed against all of the information already known by them.
Ascertainment of the material fact
Insofar as the executors relied on the website CV as an historical revelation, the issue was when the executors first ascertained that fact. The appellants needed to demonstrate that they could satisfy the requirements of s 48(3)(b)(i) of the Act which provides:
(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 Judge explored the meaning of the word “ascertainment” for the purposes of s 48 at [47] of his reasons:
… In this case that enquiry raises the legal question: what degree of certainty is implied by the word “ascertained”? If a plaintiff is completely ignorant of the fact before the revelation on which he or she relies, no difficulty arises. Similarly, a plaintiff who merely suspects a fact has probably not yet ascertained it. Beyond that, the point at which it can be said a fact is ascertained may be problematic. Two features of the statutory context in which the word “ascertained” is used must be kept steadily in mind when assessing the degree of certainty that it imports. Firstly, s 48 of the Act is concerned with the discovery of a factual basis that supports the making of a legal claim. Secondly, a material fact may have been ascertained with a sufficient degree of certainty, even if it is subsequently disproved in the course of the proceedings.
Correspondence before reading the website CV
The Judge observed that the appellants accepted that John Bradman knew that Allens had acted as Sir Donald’s solicitor before reading the website CV. At the same time the Judge noted that the appellants contended that even though John Bradman knew that Allens had acted for Sir Donald to procure the registration of the trademarks and assign them to the Foundation, he had a “limited and vague understanding of the nature of the retainer” and did not know that Allens’ retainer extended to advising Sir Donald about whether it was in his best interest to procure and assign the trademarks.
The Judge observed at [49]:
… The executors’ case is that even though John Bradman knew that Allens had acted for Sir Donald to procure the registration of the trademarks and assign them to the Trustee, he did not know that Allens’ retainer extended to advising Sir Donald about whether it was in his best interests to assign the trademarks.
He described the operative retainer as giving rise to a duty in the following manner:[10]
… It is difficult to understand why the bare instruction to assign the trademarks, which were patently personally and commercially valuable, would not be sufficient to impose on Allens a duty to advise Sir Donald on the wisdom of the course of action he proposed. Nonetheless, I accept that the fact that Allens actually gave legal advice to Sir Donald, as well as attending to the registration and assignments of the trademarks, would be a fact material to the executors’ action, because it negates the possibility that Allens had, for some unexplained reason, been engaged on an unusually limited basis.
[10] [2009] SASC 80, [50].
The Judge then turned to a consideration of the relevant correspondence. In considering the CV as a revelation, the issue was when the executors (in particular, John Bradman) first “ascertained” that fact. When considering the website CV, statements made by John Bradman in correspondence which indicated an awareness of the nature of the professional relationship between Sir Donald and Allens were considered to be important. When considering the revelation as an item of evidence, the strength of the express or implied admissions made by Allens in that correspondence was considered to be a critical consideration.
It is not necessary to give a detailed explanation of the correspondence upon which the Judge based his findings as this will be dealt with later in the context of the submissions on appeal. While the Judge did however adopt a substantially objective view of the correspondence, he did refer to certain evidence contained in an affidavit of John Bradman sworn on 18 November 2008 which he considered important in terms of John Bradman’s knowledge. The evidence refers to a letter of demand to the Foundation as Trustee of the Bradman Museum Trust from JWS and dated 22 February 2006. The letter expressed concern over the commercial use of the Bradman name. The Judge concluded that the letter of demand demonstrates that the executors had considerable knowledge of the nature of Mr Dwyer’s retainer.[11]
It is the Bradman Estate’s claim that, in these circumstances, the assignment of the trade marks to the Foundation pursuant to the Deed should be set aside, due to the conflict of duties which Allens had in acting for both Sir Donald and the Foundation, in circumstances where Sir Donald and the Foundation each had competing interests.
…
In or about August 1998, Sir Donald (then aged 90) and the Foundation each instructed Allens to advise on and to attend to the registration of further trade marks incorporating the Bradman name and the negotiation and drafting of an agreement dealing with the future commercial exploitation, both before and after Sir Donald’s death, of the Bradman name.
…
It is the Bradman Estate’s claim that, again due to the conflict of duties which Allens had in acting for both Sir Donald and the Foundation in circumstances where Sir Donald and the Foundation each had competing interests, these trade marks are held by the Foundation on constructive trusts for the Estate and that, so far as those trade marks registered in Australia are concerned, the Estate should be registered as the owner of the trade marks or their registrations cancelled under sections 85 and/or 88 of the Trade Marks Act.
[11] AB 51.
The Judge made the following observation with respect to the letter:[12]
The letter largely speaks for itself. It can be inferred from its contents that, at the very least, John Bradman believed on reasonable grounds the assertion of fact made in that letter that Allens had been engaged to advise Sir Donald.
[12] [2009] SASC 80 [76].
John Bradman referred to the letter in his affidavit:[13]
… Whilst I had sufficient belief to instruct Johnson Winter & Slattery to make such an assertion, I was still not clear as to Allen’s role. Part of my intention in causing that letter to be sent was to “flush out” Allen’s position in relation to their role in relation to my father and his intellectual property.
[13] Ibid, [77].
The Judge concluded at [78]:
… If John Bradman had a belief that Allens had acted as Sir Donald’s adviser it is irrelevant that he was not “clear” about the extent of Allens role as an adviser. The website CV could not have added any clarity, it claimed no more than that Mr Dwyer had acted as an adviser and gave no further details about his role. If John Bradman was sufficiently certain of the fact and nature of Allens’ engagement to advise Sir Donald for the purposes of sending a letter of demand, it is difficult to see how it can be contended that he had not, by that date, ascertained that fact within the meaning of s 48(3) of the Act.
After considering various statements made by John Bradman in the correspondence prior to 2007, which the Judge concluded was indicative of awareness of the nature of the professional relationship between Sir Donald and the respondent, he said:[14]
…the correspondence to which I have referred showed, beyond any argument, a high degree of certainty that Allens acted as the legal advisers of Sir Donald. There is no reasonable prospect that the executors could establish that they ascertained that Mr Dwyer had acted as Sir Donald’s legal adviser for the first time when John Bradman read the website CV.
In light of the correspondence to which I have referred it is fanciful to imagine that the executors’ case on when John Bradman first ascertained, or came to believe, that Allens acted as Sir Donald’s legal adviser would improve in the course of any oral evidence he, or anyone else, could give at trial. It is impossible to imagine the existence of any documentary evidence that would cast any doubt on the conclusion to which the documentation produced on this application inevitably leads.
[14] Ibid, [79]-[80].
Whether s 48 applies to the executors’ actions
The Judge rejected Allens’ contention that the construction of s 48 would preclude reliance on that section by the executors at all, or at least in the circumstances of this case.
Their first contention related to the conferral of power under s 46A of the Act which provides:
46A—Extension of period of limitation where cause of action survives
Where a cause of action survives for the benefit of the estate of a deceased person, the time limited for the commencement of the action shall be extended by a period equal to the period between the death of the deceased and the grant of probate or letters of administration to the executor or administrator of his estate, or by a period of twelve months, whichever is the lesser.

With respect to the submission that it would be contrary to the conferral of power under s 46A of the Act to further extend the time pursuant to s 48 of the Act, the Judge observed at [33]:
The finite extension of time allowed by s 46A addresses the practical difficulty of bringing proceedings in the period between death and the grant of probate. Section 48 of the Act is designed to remedy a very different mischief. There is no reason to read down s 48 of the Act, and in so doing, deny executors and beneficiaries any relief from the hardship that may be caused by the late discovery of material facts. It is at least arguable that s 46A of the Act does not reduce the scope of s 48 of the Act.
It was Allens’ further contention that in an action brought by the executors of a deceased person, s 48 requires the material fact to have been ascertained by the deceased and not the executors. Counsel argued that the material fact must have been ascertained by the plaintiff, and that in cases brought by the executor or executors of deceased persons it is the deceased person, and not the executor, who is the plaintiff for the purposes of s 48(3)(b)(i). This submission was further amplified in their Notice of Alternative Contention discussed hereafter.
The Judge rejected Allens’ contention having regard to a number of considerations. First, he concluded that Allens’ submission could not be supported by the plain terms of s 48(3)(b)(i), which expressly refer to the “plaintiff”, as it is the executors, rather than the deceased person, who are in such a matter the “plaintiff”. He found that the term “plaintiff” is a term that means, and only means, the person who commences, or subsequently prosecutes a cause of action. The Judge further held that the construction given to the section by Allens would likely lead to unjust results. At [37] he observed:
… There is good reason to allow the Court a discretion to extend time in cases where the executors first ascertain the fact after the period of 12 months from the deceased’s discovery has elapsed. I accept that the policy reasons for denying the benefit of s 48 of the Act to executors who discover a material fact that was well known to a testator for a period of more than 12 months before his death are greater. However, the terms of s 48 of the Act do not readily allow for the implication of words which would distinguish between the three types of case to which I have referred.
The Judge considered that the proposed construction would cause further difficulties in that it would be difficult to find a simple form of words that could be inserted to give the section the meaning for which Allens contends. He referred to the “very limited capacity of the courts, in the exercise of their judicial power, to ‘supply the omission of the legislature’”.
In rejecting the respondent’s contentions, he concluded at [41]:
In my view, the circumstance that a material fact merely enlivens a discretion to extend time is a further reason not to strain the language of s 48 of the Act to deal with unmeritorious reliance on material facts in circumstances like those pressed by Allens; unmeritorious claims of that kind can be addressed by a proper exercise of the discretion
The appeal
There are a number of issues raised on the appeal. The substantive complaint is that the Judge erred in summarily dismissing the appellants’ claim. The primary ground of appeal is that the Judge was in error in holding that the appellants had no reasonable prospect of establishing that the fact relied upon qualified as a recently ascertained material fact for the purposes of s 48(3)(b)(i) of the Act. Counsel for the appellants submits, first, that the Judge erred in failing to give any, or sufficient weight to the subjective nature of “ascertainment” and in overlooking or rejecting without an adequate basis the affidavit evidence of John Bradman. Secondly, the Judge erred in failing to focus upon the precise nature and extent of the retainer which was ascertained by John Bradman. That is, a retainer to advise in respect of the four transactions which are the subject of the proceedings. Thirdly, he erred in holding that the admission in the website CV was not “material” in the sense that it went no further than the admission made by Mr Dwyer in the letter dated 13 March 2002.
Allens submit that s 48(3)(b)(i) of the Act is not capable of applying to material facts ascertained by the executors of a deceased person’s estate where those facts were known to the deceased person before his death. They also contend that where a cause of action vests in another person, the reference to “plaintiff” under that section is to have an ambulatory meaning as applying to the person in whom the cause of action is capable of being pursued, from time to time.
Application for summary judgment
In summarily dismissing the action, counsel for the appellants does not dispute the formula upon which the Judge directed himself.[15] He applied Ceneavenue v Martin.[16] It is contended that the Judge erred in applying the principle to the circumstances of the case. Further, the Judge was in error when considering the application of s 48 of the Act to the facts of the case.
[15] [2009] SASC 80, [22], [23] and [31].
[16] Ceneavenue Pty Ltd & Ors v Martin & Ors [2008] SASC 158.
The appellants argue that the relevant correspondence gives rise to an interpretation other than the one determined by the Judge. At the very least, they argue that there is an alternative interpretation reasonably open which the Judge failed to appreciate. Counsel submits that all that is required to be established is that an alternative interpretation is arguable, and that further colour and context can be given to the evidence in deciding the issues at trial. In Ceneavenue v Martin, Debelle J said[17]:
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.
[17] [2008] SASC 158, [82].
The appellants emphasised the observations made in Swain’s case that “the rule is designed to deal with cases that are not fit for trial at all”.[18]
[18] The cases of Swain v Hillman and Three Rivers District Council v Bank of England (No 3) referred to earlier.
In Wickstead v Browne,[19] Kirby P observed that where proceedings involve multiple causes of action there is little merit in prematurely shutting out the appellant from arguing one of the causes of action where the facts and evidence to be adduced is relevant to both. This is to be distinguished from cases where summary determination might save a respondent from the continuation of useless proceedings. Kirby P observed this to be the case for a disputed action of negligence which was also based upon an alleged breach of fiduciary duty:[20]
… But as the trial must now proceed, there is merit (as it seems to me) in permitting the appellant to present his case in various ways. The marginal utility to the respondent of preventing the appellant from proceeding upon the alternative cause of action in negligence is minimal. But the marginal cost of doing so would be very great if, subsequently, the trial was concluded, limited by the orders proposed, and it was held, either by this Court or by the High Court of Australia, that the appellant’s cause of action in negligence was viable;
2. Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence.
[19] (1992) 30 NSWLR 1.
[20] Ibid, 5.
In an application for special leave to appeal to the High Court, the Court (Deane, Toohey and Gaudron JJ) granted leave and allowed the appeal.[21] Their Honours said that they were “in general agreement with the reasons given by Justice Kirby in the Court of Appeal.”
[21] Wickstead v Browne (1993) 10 Leg Rep SL 2.
The case was subsequently applied in Telecom Vanuatu Ltd v Optus Networks Pty Ltd.[22] White J noted that there is a threshold question as to whether there is a practical advantage which outweighs the potential disadvantage in deciding whether the question is arguable. In considering this proposition, regard will be had to the prolonged and serious nature of the argument which will need to be weighed against obviating the necessity for a trial and the substantial burden of preparing for trial and the trial itself.[23]
[22] [2005] NSWSC 951.
[23] [2005] NSWSC 951, [23]–[25].
The circumstances of this case turn on a consideration of an application for extension of time for specified causes of action as opposed to the merits of the causes of action themselves. However, in light of the fact that the matter will proceed to trial regardless of the outcome of the summary judgment application, the principle observations of Kirby P are apposite.
The discretion to summarily dismiss an action, thereby depriving a party of a full hearing on the merits, should be exercised with extreme caution. The exercise of discretion under the section is particularly susceptible to subtle factual considerations which may emerge at trial. In deciding to summarily dismiss the claim, the Judge was satisfied that no further material which could possibly affect the exercise of discretion could emerge at trial.
Counsel for the appellants submit that the Judge either failed to give adequate consideration to or misinterpreted the affidavit evidence of John Bradman. It was submitted that the Judge was in error in overlooking or rejecting John Bradman’s affidavit evidence without adequate basis. In particular, it is alleged that the Judge overlooked John Bradman’s explanation of his understanding of the correspondence and erred in concluding that neither oral evidence nor additional documentary evidence could possibly have altered the position. The ground of appeal relating to the Judge’s consideration of John Bradman’s affidavit evidence will be considered in more detail later. However, we observe that John Bradman’s affidavit evidence gives a different explanation of the correspondence than that found by the Judge.
While it may be argued that, on the evidence presently available, John Bradman’s explanation may be less than compelling, that is immaterial for the purposes of deciding an application for summary judgment. In order to be satisfied that this case is one fit for summary dismissal, the Court must be satisfied that John Bradman’s explanation of the relevant correspondence, based on his affidavit evidence, is one which is clearly unreasonable or fanciful and that the appellants’ case is bound to fail. On the other hand, if the determination of the question of extension of time were to proceed to trial and if the appellant failed, the appellants would at least have failed in a hearing on the merits. The respondent would in any event, still have an appeal of that decision as of right.
The relevant retainer
It is necessary to first deal with the ground relating to the Judge’s approach to the interpretation of the correspondence. The appellants submit that the distinction between the relevant retainer and other irrelevant retainers was critical and overlooked by the Judge in the assessment of the case.
The appellants contend that the recently ascertained material fact relied upon by the appellants is a retainer to advise Sir Donald that extended or related to the relevant transactions, as pleaded in the statement of claim, as opposed to for example, a retainer or retainers from time to time to advise or assist Sir Donald in respect of other matters not relevant to the transactions which are the subject of the proceedings. It is contended that the relevant retainer does not encompass the respondent’s involvement in or conduct in relation to the irrelevant transactions which did not necessarily indicate or entail a duty to advise in relation to those transactions.
The appellants link the relevant retainer to the material fact in the following way. The material fact is a revelation of a fact that there was a continuous retainer for over 10 years to act as legal advisor to Sir Donald. While the appellants accept that they were previously aware of other irrelevant retainers, their case is that they did not ascertain the existence of the relevant retainer until 2 August 2007.
The appellants contend that the Judge has erred in approaching the matter on the basis that it is sufficient to defeat the appellants’ application for an extension of time on the basis that John Bradman knew of some retainer, regardless of the nature and scope of the retainer.
Interpretation of s 48(3)
The appellants argue that the Judge erred in that his reasoning rested substantially on an objective analysis of the relevant correspondence and had insufficient regard to the subjective nature of “ascertainment” for the purposes of s 48(3). In holding that the admission in the Website CV was not “material” in the sense that it went no further than the admission in the 13 March 2002 letter, the appellants say the Judge was in error. We will refer to the detail of that letter later in these reasons.
In determining the matters raised by the appellants, there are two issues to be considered. First, whether the fact contained in the Website CV is material to the appellants’ case and, secondly, whether John Bradman ascertained the material fact within the relevant period.
The material fact
The Judge considered that the Website CV might be material in its character as a revelation of the extent and nature of the retainer. In relation to the website CV as an item of evidence and in particular, an admission against interest, the Judge concluded that the admission was not material as it did not add anything to what he described as Mr Dwyer’s “unequivocal admission that he had provided legal advice to Sir Donald over a 14 year period” in the 13 March 2002 letter.
In assessing the materiality of the fact, the Judge assessed the Website CV against the background of information already known to the plaintiff through correspondence. In doing so, this necessarily required a consideration of the state of mind of the plaintiff prior to ascertaining the relevant fact, which necessarily imports a subjective element.
The issue of materiality however, is to be resolved only by way of an objective enquiry.[24] Whether or not the Website CV contains an admission already present in the earlier correspondence does not on any reading, deprive the fact contained in the website CV of its materiality.
[24] Sola OpticalAustraliaPty Ltd v Mills (1987) 163 CLR 628.
The meaning of the words “facts material to the plaintiff’s case” in s 48(3) of the Act was considered in Lovett v Le Gall.[25] Bray CJ, with whom Walters J agreed, concluded:
[A] fact is material within the meaning of the sub-section if it is of such significance as to be able to influence the determination of the case.
[25] (1975) 10 SASR 479.
Wells J said:[26]
It seems to me that that passage must be read as a whole. When it is so read, the word "material" denotes, in my opinion, facts that are not only relevant to the issues – which, I apprehend, may include the issue of damages – but are also of such a nature and of such weight that they may fairly be taken into account by a plaintiff who is in the course of considering whether he should or should not prosecute his claim to trial. Similarly, the word "case" has a much wider purview than the expression "cause of action"; it comprehends, in my opinion, all evidence, law and argument to be relied on in court by the party concerned.
[26] (1975) 10 SASR 479 at 485-486.
The appellants concede that the test of whether a fact is material for the purposes of s 48 is to be determined by objective inquiry. The High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Sola Optical[27] discussed the meaning of materiality, observing that the question is to be decided on a purely objective basis. The Court said:[28]
There is no warrant for writing into the Act a further qualification that, to attract the operation of s. 48(3)(b)(i), there must be some interaction between the material fact and the plaintiff’s decision to sue. It is materiality to the plaintiff’s case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff’s mind would complicate the court’s task and impede rather than advance the purpose of the Act. 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. The Shorter Oxford English Dictionary defines the word "material", inter alia, to mean "Of such significance as to be likely to influence the determination of a cause". Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to "facts material to the plaintiff’s case".
[27] (1987) 163 CLR 628.
[28] (1987) 163 CLR 628, 636-637.
In Finlay v Silcon Industrial Pty Ltd,[29] Doyle CJ, with whom Nyland and Lander JJ agreed, referred to the High Court’s judgment in Sola Optical. He said, in response to the passage in the previous paragraph:[30]
This reflects a liberal approach to the meaning of s 48(3)(b)(i), and makes the exercise of ultimate discretion all the more important.
[29] (2003) 229 LSJS 14.
[30] (2003) 229 LSJS 14 at [73].
It is well established that corroborative evidence can constitute a material fact.[31] Counsel for the respondent submits that the Website CV contains an identical admission by Mr Dwyer, as appears in earlier correspondence and that this cannot amount to corroboration of evidence in the way described in Napolitano.[32] This however, does not affect the materiality of the fact. If the Website CV were found to contain an identical admission to one made earlier, this would be a matter to be considered in the context of whether it had previously been ascertained.
[31] Napolitano v Coyle (1977) 15 SASR 559.
[32] Ibid.
In assessing the materiality of the fact, that being that Mr Dwyer acted as legal advisor to Sir Donald Bradman for over 10 years, one must have regard to its relevance to the issues. The fact is at the very least, arguably relevant to establishing the nature and extent of the relevant retainer, and those transactions which give rise to breaches of the relevant retainer or retainers over the identified 10 year period. For the purpose of establishing the nature and extent of the retainer, the fact is capable of having a bearing on the case in both its character as a revelation or as an item of evidence.
In concluding that the fact could not be material in its character as an item of evidence given that it did not add to the admission contained in a letter of Mr Dwyer of 13 March 2002, the Judge was in error. The fact that, on one interpretation, the fact contained in the Website CV was contained in earlier items of correspondence is relevant to a determination of whether the material fact was a new material fact. In other words, whether it had previously been ascertained by the plaintiff. In assessing materiality, one need only have regard to the relevance of the fact and its bearing on the issues to be decided. In our view, the fact contained in the website CV is a material fact.
Ascertainment of the material fact

The next question is whether the appellants had ascertained the material fact and, if so, when they so ascertained that fact. In order for the discretion to be enlivened, the appellants, in particular John Bradman, must demonstrate that the fact materially relevant to these proceedings was not known to him personally before the critical date of 2 August 2007.
The appellants on the one hand submit that the question of whether a material fact has been ascertained by the plaintiff is an entirely subjective inquiry. The respondent on the other contend that the authorities support an objective approach. We consider the test to be applied for the purpose of determining whether a material fact has been “ascertained” is to be determined objectively. It is to be determined by consideration of a reasonable person having all the facts and circumstances as known to the plaintiff.
Central to a consideration of whether a material fact has been ascertained is a consideration of whether there is a requirement that the material fact be new or whether it can be a fact already known to the plaintiff, in which case, it is simply the level of appreciation a reasonable person in the circumstances of the plaintiff derives from the material fact which is the sole determinant as to whether the fact has been ascertained pursuant to s 48.
It seems that whether a material fact has been ascertained turns on the question of whether a fresh circumstance has come to the knowledge of the plaintiff.[33]
[33] Healthcorp Ltd v Commissioner of Stamps Qld (1991) 22 ATR 220, 228.
In Sola Optical,[34] the plaintiff had suffered injury during the course of employment by the defendant. The relevant material fact which was ascertained by the plaintiff appeared in a report containing the opinion of a surgeon to the effect that, notwithstanding some improvement, the plaintiff continued to suffer a loss of function of the arm which he estimated as at 80 per cent.
[34] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628.
The Court held that, while the plaintiff had knowledge of the physical disabilities she suffered, it was material to her case to learn the effect that those disabilities had on her capacity to function expressed in terms of a percentage loss of function. That conclusion gave rise to a new material fact. It was not simply the appreciation of a fact already known to the plaintiff, as was alleged by the appellants in that case.
In Wright v Donatelli[35] the plaintiff learned for the first time of his doctor’s opinion which was contained within a report. Even in circumstances where the doctor’s opinion accorded with the plaintiff’s own knowledge and where the medical practitioner had relied entirely upon the plaintiff’s own history, the court held:[36]
Whilst it may be that Mr Cohen’s opinion is in accord with the appellant’s own knowledge, that does not mean that Mr Cohen’s opinion is not a material fact. I think the learning of Mr Cohen’s opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.
[35] (1995) 65 SASR 307.
[36] Ibid, 321.
It follows that the test of “ascertainment” requires at least a degree of subjectivity. In Panopoulos v The Nominal Defendant,[37] the Court considered the meaning of ascertainment in the context of s 115 of the Motor Vehicles Act. That section provided:
[37] (1990) 53 SASR 491, 502.
115.(1) Where –
(a) death, or bodily injury, has been caused by, or has arisen out of the use of, a motor vehicle;
and
(b) the identity of the vehicle has not after due inquiry and search been ascertained,
a person who could have obtained a judgment in respect of that death or bodily injury against the driver may recover by action against the nominal defendant the amount of the judgment that he could have recovered against the driver (emphasis mine)
…
The plaintiff in that case was injured when the defendant’s vehicle ran into the rear of the plaintiff’s vehicle. The difficulty faced by the plaintiff was whether or not the plaintiff had proved within the meaning of s 115(1)(b), that “the identity of the vehicle has not after due inquiry and search been ascertained.”
Perry J referred to the Oxford English dictionary definition, which reads:[38]
“ascertain. I. to make subjectively certain: ie a person certain of a fact, or a thing certain to the mind. 1.trans. To make (a person) certain, sure, or confident; to certify, assure; To inform, apprise, tell. 2. refl. To make oneself certain or confident; to gain trustworthy information. 3.trans. To make (a thing) certain to the mind; to render certain what or which it is. arch. 4. To make certain to us the existence of, establish as a certainty. Obs 5. To find out or learn for a certainty by experiment, examination, or investigation; to make sure of, get to know. (The only current use.) II. To make (a thing) objectively certain, to fix. 9. To make certain the existence or occurrence of; to reduce to a certainty. Obs.”
[38] Ibid.
Perry J noted that dictionary meanings should be considered with caution when used to construe an Act of parliament. He said:[39]
One must be careful in having regard to dictionary definitions in the process of construing an Act of Parliament. However, consistently with that definition, and the ordinary understood meaning of the word, in order for the identity of a vehicle to be “ascertained” within the meaning of s 115, in my view the identity must be established clearly enough for the identity to be “certain” or “definite”.
This does not mean scientific certainty. The word “ascertained” where it appears in the section, must be construed consistently with its context and with the object of the section.
Bearing those matters in mind, the identity of a vehicle should be regarded as ascertained for the purposes of the section if a reasonable person acquainted with the known facts and circumstances, would conclude that more likely than not a given vehicle was the vehicle concerned. (emphasis mine)
[39] Ibid.
Perry J decided that the test is objective, but it imports an element of subjectivity in that it turns on a consideration of a reasonable person who is acquainted with the known facts and circumstances of the plaintiff. While the section referred to is different to s 48, the meaning of the word ‘ascertain’ remains unaltered by the context of the section.
There is further support for the proposition that ascertainment is to be determined objectively whilst retaining an element of subjectivity, as we have described. In Napolitano[40] the Court observed:
... A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters of course are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases, may not be of great significance, has left all the rest to the discretion of the court.
[40] Napolitano v Coyle (1977) 15 SASR 559, 569.
A plaintiff is not required to actively search for facts. What is important is whether those facts have come to the knowledge of the plaintiff. It then becomes a question of how a reasonable plaintiff perceives those facts with regard to all the relevant facts and surrounding circumstances.
Further, there is no requirement that a plaintiff has acted reasonably or with due diligence in discovering the relevant facts.[41] Bray CJ said:
…There is no requirement of due diligence. The material facts are those relating to the plaintiff’s case, not to his cause of action. There is no reference to what might have been discovered by taking appropriate action. There is no specification of what are material facts and there is no requirement that they should be decisive or such as would have had a determining influence in the decision of a reasonable man to take proceedings.
[41] Ibid.
If the question of ascertainment is to be determined entirely subjectively, as submitted by the appellants, this could result in a number of absurdities. It would be entirely open to a plaintiff to claim to have misread or misunderstood the facts which it has before it and, if believed, then that would be sufficient to enliven the section without any regard to the reasonableness of the plaintiff’s claim. It would necessarily require a court to embark on the difficult and burdensome exercise of inquiring into the plaintiff’s mind and making a determination solely on that basis.
The object and purpose of the section must serve the dual purpose of ensuring that plaintiffs are not shut out of a meritorious claim by inflexible time limits, and affording protection to a defendant in relation to stale claims. In applying a subjective test, a plaintiff, no matter how mistaken on the facts as presented before him, would be eligible to seek relief under the section. This flies in the face of the broad rationales which are said to underlie the enactment of limitation periods. They support the notion that a plaintiff’s interests in seeking an extension of time must be viewed with respect to the protection afforded to a defendant from actions being brought against it out of time. The provision has regard to the fact that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it occurred and that it is desirable for people to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them after a certain time. It also has regard to the fact that the public interest requires that disputes be settled as quickly as possible and that as time goes by, relevant evidence is likely to be lost.[42]
[42] Australia, Review of the Law of Negligence: Final Report, (Chairman; Justice David Ipp), (2002).
It follows that the relevant test is that enunciated in Panopoulos v The Nominal Defendant.[43] That is, the Court must consider what a reasonable person acquainted with the known facts and circumstances would conclude about Allens’ role in acting as Sir Donald’s legal adviser under the relevant retainer prior to and after the viewing of the Website CV.
[43] (1990) 53 SASR 491.
Interpretation of the Website CV
The appellants submit that on a fair reading, Mr Dwyer was saying that he had acted under a general retainer for Sir Donald over the past years. They submit that the true interpretation of the wording is a matter for trial but contend that their reading is at the very least, a possible reading, if not an even more natural construction.
As discussed earlier, the appellants contend that the Judge erred in holding that the admission in the Website CV was not material in the sense that it went no further than the admission in the 13 March 2002 letter. The appellants therefore submit that the Judge’s approach to the material was fundamentally flawed in that he misconstrued the comparison between the relevant material and the CV, for the purposes of finding a revelation and also in determining its status as evidence. They say that the material which was relied upon by the Judge as a previously known fact, even if viewed objectively, was ambiguous and could not therefore be said to amount to disclosure of the same fact contained within the Website CV.
The appellants contentions regarding the precise nature and extent of the retainer as ascertained by John Bradman is to be assessed by comparing the terms of the curriculum vitae of Mr Dwyer , that “for over 10 years he acted as legal adviser to Sir Donald Bradman”, with the earlier correspondence. In circumstances where the material fact was already known to the appellants, the requirements under s 48 of the Act will not be met. An assessment of the correspondence necessarily requires application of the test in Panopoulos v The Nominal Defendant.[44] That is, this Court must consider whether a reasonable person acquainted with the known facts and circumstances, would conclude that more likely than not that Allens had acted as Sir Donald’s legal adviser concurrently and continuously for over 10 years under the relevant retainer for Sir Donald, the Bradman family and the Bradman Foundation. This exercise requires not only a consideration of the relevant correspondence, but also a consideration of John Bradman’s sworn affidavit which provides his explanation and understanding of the relevant correspondence.
[44] (1990) 53 SASR 491, 502.
The affidavit material
Given a finding that the test of ascertainment requires an element of subjectivity, it is necessary to consider John Bradman’s evidence with respect to the explanation he gives for the relevant correspondence.
No application was made to cross-examine John Bradman on his affidavits and there was no challenge to his credit. The appellants submit that John Bradman gives a perfectly sensible and plausible explanation for his understanding. When having regard to all of these factors, one must also bear in mind that for the purpose of summary judgment, the evidence of the plaintiff must be taken at its highest. It is not however necessary for me to make any findings with respect to his explanations for the purposes of this appeal.
In his affidavit sworn 18 November 2008, John Bradman states that he does not recall being aware of any role that Allens had in relation to the use of his father’s name or the Bradman trademarks until 1998. Even at that time, he did not know the detail of their earlier involvement or the precise nature of their role from 1998 onwards. He contends that Allens’ role was not something that drew his attention in any detail until some years after his father’s death. He states:[45]
My understanding from 1998 was that, while there was an agreement in relation to the use of my father’s name and the Bradman trademarks between my father and the Bradman Foundation, nevertheless the Bradman Foundation consulted with my father in relation to the use of the Bradman name and trademarks, and that my father retained control over the use of the Bradman name and trademarks. I am not aware of any occasion where the Bradman Foundation acted contrary to my father’s wishes prior to his death. My understanding was that following my father’s death the Bradman Foundation would continue to consult with my father’s family, and to afford us control over the use of the Bradman name and trademarks.
[45] AB 587.
After Sir Donald’s death in 2001, and in his capacity as executor, John Bradman had dealings with the Bradman Foundation. Over the years the relationship between them deteriorated over disputes involving the use of the Bradman name and trademarks. The disputes resulted in a mediation in November of 2006.
It was in about January 2007 that it became apparent to John Bradman that the family had lost effective control over the use of the Bradman name and trademarks.
He said:[46]
While I had, in the years following my father’s death and leading up to the mediation made some attempts to try and understand the role of Allens in the dealings that had led to the transfer of the Bradman trademarks to the Bradman Foundation, my concerns as to the role of Allens were heightened both by my realisation as to the loss of control over the Bradman name and trademarks as a result of the breakdown of the negotiations with the Bradman Foundation following the mediation, and my realisation that the 2004 Memorandum of Understanding had in fact been drafted by Allens.
[46] AB 587-8
It was at that time that John Bradman began to give consideration to the role of Allens in properly advising his father, and whether he should bring proceedings against Allens. However, he expressed reluctance to do so in circumstances where he was unsure about the precise role Allens had played at the time they acted as solicitor for Sir Donald and in relation to the dealings with the Trust.
The position however, altered:[47]
The position changed on 2 August 2007, when I happened to obtain a copy of Mr Dwyer’s curriculum vitae printed from the Allens’ website (see paragraph 81 below). I regarded the statements on this website to be an admission by Mr Dwyer that he and his firm were acting for my father at all relevant times. This admission was a critical factor in my ultimate decision (in consultation with the other executor’s [sic] of my father’s estate) to issue these proceedings.
[47] AB 588.
It is the main force of the submission that the correspondence about Allens’ role was confusing to John Bradman, and that he only became convinced about their role when he read the CV. He maintains that while he was aware that Allens had acted for his father in relation to certain matters, he was not clear what their role had been in relation to the Bradman name and trademarks, and in particular, in relation to the initial registration and assignment of the trademarks.
Consideration of relevant correspondence
Counsel for the appellants rely on various documents exhibited to John Bradman’s affidavit of 18 November 2008. Counsel submits that at the very best for the appellants, they are equivocal as to the existence of a retainer and at the worst they are against the existence of a retainer.
Counsel for the appellants referred to a letter of 10 November 1993 as an example of the ambiguous nature of the correspondence. The letter is addressed to Mr Mulvaney who was the Chief Executive Officer of the Museum. The letter refers to Mr Bruce Collins QC. The appellants contend that Mr Brue Collins’ role in the matter is a source of great confusion to John Bradman.
Counsel submits further confusion arises in a letter dated 20 July 1994 from Allens which gives the impression that they are acting for the assignee not the assignor. The letter reads:
We act for the assignee of the above trade marks The Bradman Foundation.
In arriving at his conclusion, the Judge referred to two paragraphs of a letter of Mr Dwyer, dated 13 March 2002 (bolded below), responding to the letter from John Bradman. There are, however, other relevant paragraphs which the appellants submit change the meaning of the two passages to which the Judge also referred:[48]
As you flagged, John, when we spoke recently, I am in a difficult situation. As you know my association began way back in I think 1987 when the Bradman Oval, (as we now know it) the Pavilion, the Museum and the network of licences etc were very much a dream. Allen Allen and Hemsley has throughout the past fourteen years given its unwavering support to me and to David and those of my colleagues who have provided their legal advice to either The Bradman Foundation or to Sir Donald or to you or the family. We take great pride in our association and share in the sense of satisfaction at what has been achieved with limited funding and in a relatively short time. ...
John, David and I continue to work on a range of legal matters almost on a daily basis for the Foundation. I would be very saddened indeed if there were to be any long term ill feeling between you (and your family) and Richard and the Foundation. I have the highest regard for Richard with whom I have worked now for many years and seen him in action in many situations (dealing with the likes of Tom Thompson, the Bradman Corporation, property developers, pirates, the Federal Police, print and media journalists and a range of other persons, some rather colourful or questionable.) (emphasis mine)
Because of my role as adviser both to you, your father and the family and at the same time my role in acting for the Foundation over all those years I have no choice but to refrain from getting involved in dealing with the issues which you have raised in your correspondence with me and with Richard.
[48] AB 327-8

There is much support for the proposition that s 48 is a remedial provision designed to eliminate injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which the action was to be commenced.[62]
[62] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628, 635.
In our view, the wording of the provision is abundantly clear.
We therefore reject the notice of alternative contentions.
We also add that the interpretation of these provision by the Judge does not mean that executors of an estate are always able to prosecute a cause of action for the benefit of an estate based on facts which may be later ascertained by them simply on the basis of their own assessment of what is in the interests of the estate. There are many factors which may affect the ultimate success of such a prosecution, including knowledge, prior actions and expressed intentions of a deceased. These and other matters may be required to be resolved by a trial judge after hearing all of the evidence.
We would allow the appeal and set aside the order entering summary judgment. We would remit the question of whether time should be extended to the trial Judge.
We would make the following orders:
1. The appeal is allowed.
2.The order for summary judgment be set aside and the consequential orders made on 29 June 2009 be set aside.
VANSTONE J:
Introduction
The estate of the late Sir Donald Bradman, by his executors, appeals against a decision of a judge of this court, dismissing an application for an extension of time within which to bring certain claims and giving summary judgment to the defendants in respect of claims against the defendants for breach of retainer and breach of duty, which claims were dependent upon the application.
The plaintiffs and appellants, John Russell Bradman, Raymond Leslie Dawkins and Robert John Patterson, are the executors of the estate of the late Sir Donald Bradman. Sir Donald died on 25 February 2001. They have instituted proceedings against the solicitors Allens Arthur Robinson (Allens) alleging a number of instances of breach of retainer, negligence and breach of fiduciary duty stemming from advice Allens gave, or omitted to give, to Sir Donald concerning the registration and transfer of numerous trademarks, of which he was the proprietor. The retainer relied upon and pleaded is a retainer that commenced in September 1991 between Sir Donald and Allens and which continued until his death. Only the claims in contract and in tort are in issue here. The claims based on breach of fiduciary duty were not encompassed in the orders made by the judge and so remain on foot.
The first alleged breach of duty occurred on about 25 September 1991, when Allens advised Sir Donald about the registration and assignment to the Trustee of the Bradman Trust (later the Bradman Foundation) of all trademarks of which Sir Donald was the proprietor. Further breaches are alleged to have occurred subsequently, in relation to registration of Sir Donald’s name and all forms of his signature as trademarks throughout the world, as well as assignment of the trademarks to the Bradman Foundation. It is alleged that Allens acted negligently and in breach of the retainer by failing to advise Sir Donald on the nature, effect and value of the trademarks and how the assignments would affect his capacity, and the capacity of his family, to control the way in which the trademarks and signatures were exploited. The statutory time limitation for bringing actions in tort or contract is six years. Most of the actions were out of time well before Sir Donald’s death.
The final breach is alleged to have occurred between 1999 and 2001 during which time Allens was instructed to negotiate and draft an agreement between Sir Donald, John Bradman and the Trustee, which would enable Sir Donald and his successors to control the Foundation’s use of the intellectual property associated with Sir Donald. It is pleaded that Allens breached its duty to exercise care, skill and diligence and its fiduciary duty to Sir Donald in this connection.
The last of the claims in tort and contract became statute barred by February 2007, being six years after Sir Donald’s death. In support of their application for an extension of time, the executors allege that the fact that Allens acted as Sir Donald’s legal advisers, as alleged in the claims, was not ascertained until 2 August 2007. It is pleaded that on that day John Bradman read on the Allen’s website the curriculum vitae of a solicitor and partner of Allens, Mr Dwyer, that “for over 10 years he acted as legal advisor to Sir Donald Bradman”. The executors allege that whilst they were aware that Allens had acted for Sir Donald in some general way, it was not until John Bradman read that curriculum vitae that they, through John Bradman, became aware of the retainer that forms the basis of these proceedings. (The knowledge of one executor is taken to be the knowledge of all: Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 516 per Isaacs J.) Curiously, there is no admissible evidence to prove that Mr Dawkins and Mr Patterson knew nothing of the relevant retainer until that time. However, it does not appear that anything was made of this point before the learned judge.
The executors rely on s 48 Limitation of Actions Act 1936 (SA) (the Limitation Act) which is relevantly in the following terms:
48—General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)    instituting an action; or
(b)    doing any act, or taking any step in an action; or
(c)doing any act or taking any step with a view to 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.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a)    the court has jurisdiction to entertain; or
(b)the court would, if the action were not out of time, have jurisdiction to entertain.
(3)     This section does not—
(a)    apply to criminal proceedings; or
(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; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
Allens sought an order for summary dismissal of the claims in tort and contract. They argued that since most of those causes of action that had expired during the lifetime of Sir Donald, it was not open to the executors to seek such an extension. In the alternative it was put that the executors did not satisfy the threshold test for an extension of time contained in s 48, namely the ascertainment of facts material to the plaintiff’s case.
The judge hearing the application rejected Allens’ argument that the executors could not seek an extension of time where it was based upon the ascertainment of a fact which had been well known to Sir Donald. However the judge granted summary judgment, because the terms of s 48 were not met. He found that the limited information in the curriculum vitae was already known to the executors and so was not “ascertained” at that point, and, if viewed as an item of evidence, was not “material” to the executors’ case.
The appellants raise three main grounds of appeal. In summary, they submit that the judge erred:
1. in failing to give any, or sufficient, weight to the subjective nature of “ascertainment” for the purposes of s 48(3)(i)(b) of the Limitation Act, and/or in overlooking or rejecting without an adequate basis the affidavit evidence of John Bradman;
2. in failing to focus upon the precise nature and extent of the retainer which was ascertained by John Bradman, that is, a retainer to advise in respect of the transactions the subject of these proceedings; and
3. in holding that the statement against interest in the curriculum vitae was not “material” in that it went no further than the admission in the 13 March 2002 letter.
By way of notice of alternative contention, the respondent argues that the judge should have found that s 48(3)(b)(i) Limitation Act is not capable of applying to material facts ascertained by the executors of a deceased person’s estate, at least where those facts were known to the deceased.
Whether facts material to the plaintiffs’ case were recently ascertained
In order to enjoy the benefit of s 48 Limitation Act the appellant had to satisfy the judge that facts material to the plaintiffs’ case were not ascertained until a point within twelve months prior to the institution of the action: s 48(3)(b)(i).
John Bradman’s unchallenged affidavit evidence was that on 2 August 2007 he saw on the Allens’ website information about Mr James Dwyer, the Allens partner who had dealt with, and acted for, Sir Donald for many years. The relevant part of it read:
Jim’s list of clients includes Sony Music Australia, Sony Computer Entertainment, Burger King, International Celebrity Management, Phillips and the Ritz Hotel of Paris. For over 10 years he acted as legal advisor to Sir Donald Bradman. His advice is sought by the legal and business community in Australia and from overseas.
This was treated by the judge as having two potential uses to the executors as a material fact. First, it operated as an historical revelation. Then, it could be used as an item of evidence in the form of an admission against interest.
Examining the first use, the executors accept that John Bradman knew, before reading this statement, that Allens had acted for Sir Donald and that they had acted in respect of registering trademarks and assigning them to the Bradman Foundation. However, they contend that John Bradman did not know of Allens’ precise role and, in particular, they did not know that Allens’ retainer extended to advising whether it was in Sir Donald’s best interests to proceed with such an assignment.
In finding against the executors on this issue of ascertainment, the judge surveyed a quantity of correspondence passing between Mr Dwyer and John Bradman, dating back to the 1990s concerning work done by Allens relating to the Bradman Museum Trust, the Bradman family, the Museum Trust’s trademark, registering future trademarks, the Bradman Foundation, as trustee for both the Museum Trust and the Bradman Trust, and its relationship with Sir Donald. John Bradman continued to instruct Allens on some of these matters after Sir Donald’s death. It is apparent that a very large amount of (pro bono) work was done by Allens on Sir Donald’s behalf. It is unnecessary to consider this earlier correspondence in any detail. It is sufficient to set out the judge’s summary of its thrust. He said at [58]:
It is plain from that course of correspondence that John Bradman was aware, at least from 1998, of the role of Mr Dwyer as an adviser to his father about the steps he should take in defining the relationship between himself and his family on the one hand and the Trust on the other.
I do not understand that this finding is challenged. Importantly, the judge effectively found that later correspondence, starting in 2002, foreclosed any issue about the breadth of John Bradman’s understanding of Allens’ wide-ranging retainer.
The correspondence to which I refer commences with a letter from Mr Dwyer to John Bradman dated 13 March 2002 in which he explicitly acknowledged his role as provider of legal advice to the Foundation, Sir Donald, John Bradman and the Bradman family over a period of fourteen years. Part of it is as follows:
As you know my association began way back in I think 1987 when the Bradman Oval, (as we now know it) the Pavilion, the Museum and the network of licences etc were very much a dream. Allen Allen and Hemsley has throughout the past fourteen years given its unwavering support to me and to David and to those of my colleagues who have provided their legal advice to either The Bradman Foundation or to Sir Donald or to you or the family. We take great pride in our association and share in the sense of satisfaction at what has been achieved with limited funding and in a relatively short time.
John Bradman’s reply of 29 May 2002 provides both evidence that he read the letter and evidence that he accepted the assertions within it. I jump to a letter of demand dated 22 February 2006 sent by Messrs Johnson Winter & Slattery on John Bradman’s instructions. There it was put on behalf of the executors that:
In or about 1991, each of Sir Donald (then aged 83) and the then Trustee (“the Trustee”) of the Bradman Museum Trust (“the Trust”), Depero Pty Limited, retained Allen Allen & Hemsley (“Allens”) to advise on and attend to the registration of the Australian and overseas trademarks incorporating the Bradman name, and the assignment of such trademarks and associated goodwill to the Trustee.
This amounts to an assertion made by solicitors for the executors to the effect that Allens had been engaged to advise Sir Donald (and others) in respect of the registration and assignment of trademarks using the Bradman name.
Of this letter, John Bradman says in his affidavit of 18 November 2008:
… Whilst I had sufficient belief to instruct Johnson Winter & Slattery to make such an assertion, I was still not clear as to Allen’s role. Part of my intention in causing that letter to be sent was to “flush out” Allen’s position in relation to their role in relation to my father and his intellectual property.
The judge held at [78] that this assertion could be understood as conceding the very issue on the application. If John Bradman’s understanding of the retainer at this point comprehended the matters referred to in the correspondence highlighted, then, he found, it was immediately apparent that the very general assertion in the curriculum vitae could have added nothing to John Bradman’s awareness. The judge said at [78]:
If John Bradman was sufficiently certain of the fact and nature of Allens’ engagement to advise Sir Donald for the purposes of sending a letter of demand, it is difficult to see how it can be contended that he had not, by that date, ascertained that fact within the meaning of s 48(3) of the Act.
Thus the judge found against the executors on the requirement of a recent ascertainment.
The judge then considered the potential use of the website statement and its materiality as an item of admissible evidence. He said it could be classified as an admission against interest by Allens that they acted for Sir Donald. Again the judge was against the executors on the basis that, by reason that the same earlier correspondence and the admissions by Allens contained in it, the fact of their having acted was not open to dispute. The later admission added nothing and was therefore not material: [82].
The executors argue that the trial judge erred in failing to give any, or sufficient, weight to the subjective nature of “ascertainment” for the purposes of s 48(3)(i)(b).
Senior Counsel for the executors put that, unlike the question of materiality, ascertainment is a subjective concept. What matters is not what the person in question was told, but what he perceived and understood. Senior Counsel referred to Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628. There, the new fact relied on was an expert report recording the plaintiff’s symptoms and putting a percentage figure on her level of disability. What was there relevant and sufficient was her new appreciation of a specialist’s assessment of facts already known to her, being the functional capacity of her arm.
The essence of the executors’ complaint is that the trial judge overlooked, or rejected without adequate explanation, John Bradman’s unchallenged affidavit evidence that, at all times prior to reading the website CV, he was unsure as to the role played by Allens, and in particular whether they had a retainer to advise Sir Donald in respect of the relevant transactions.
Relying on that affidavit, the executors argue that when John Bradman read the website curriculum vitae, he ascertained for the first time Allens’ involvement in the retainer the subject of these proceedings, namely a retainer to advise Sir Donald that extended or related to the relevant transactions outlined above and from which the executors allege the breaches occurred. They contrast this retainer with other irrelevant retainers, namely retainers from time to time to advise or assist Sir Donald in respect of other matters not relevant to the transactions which are the subject of these proceedings.
Whether or not something is ascertained by a person comes down to a question of fact. I do not think that this case turns on argument as to whether “ascertained” is to be interpreted as having an objective gloss. Most dictionary definitions of “ascertain” include the meanings find out, or learn, or make certain. I am content to apply those ordinary understandings of the word. Whether something is ascertained is, as I said, a question of fact.
It is true that John Bradman’s assertion on oath that he was “not clear” as to Allens’ role in acting for Sir Donald “in connection with the registration and application for the registration of trademarks and the assignment of those trademarks to the Foundation” (Affidavit of 18 November 2008 [80]) was not challenged before the judge. However, in my mind, whatever the nature of John Bradman’s pre-existing knowledge, the statement in the curriculum vitae was, quite simply, incapable of adding to it, or clarifying it. The statement could not have been more general. It was consistent with Mr Dwyer having provided legal advice on any manner of topic. It was in no way inconsistent with Sir Donald having received legal advice from other quarters. It was, in its context, more of a boast than an admission. To anyone who knew there had been some level of professional relationship between Sir Donald and Allens, it was uninformative. Obviously, it bore on a material matter. But John Bradman could not have ascertained anything from it. I agree with the judge that it is “impossible to imagine” that exploration of this issue at trial could affect this conclusion. The issue was one suitable for summary disposition.
I also agree with the judge’s analysis of the immateriality of the website statement, when viewed as an item of evidence. There was myriad evidence to support the fact that Allens had acted for Sir Donald. The very correspondence, which was plainly available to John Bradman, proved as much and with far more specificity. It does not appear that the retainer had ever been denied. The so-called admission, viewed as an item of evidence, was not material.
The Notice of Alternative Contention
Before the judge at first instance, Allens argued that the executors were precluded from relying on s 48 Limitation Act either at all, or at least in the circumstances of this case. Allens submitted that s 48(3)(b)(i) is not capable of applying to material facts ascertained by the executors of a deceased person’s estate, at least where those facts were always known by the deceased person. It was argued that even if the reference to “the plaintiff” in s 48(3)(b)(i) were to be given an ambulatory meaning and held to extend to the executors, permitting the section to operate on the ascertainment of a material fact by executors, it must still be a fact not known to the deceased. It was put to this Court that “plaintiff” could be read as “plaintiff, or the person from whom the plaintiff claims title to sue”. Allens argued it would be at least unusual if the executors were in a better position to sue than was Sir Donald himself.

The judge rejected this argument, giving several reasons. He observed that pursuant to the Survival of Causes of Actions Act 1940 (SA), a cause of action survives for the benefit of a deceased’s estate. The power to institute proceedings on behalf of the estate is vested in the executors. Where that power is exercised, it is the executors who are the plaintiff, not the deceased. That being the case, as a matter of plain reading, “plaintiff” in s 48(3)(b)(i) Limitation Act should not be deconstructed to refer to the deceased. To do so would be, without warrant, to read into the provision words of limitation. Moreover, he said that it would not be easy to find a formula to express the meaning contended for by Allens. Next, he found that to so construe s 48(3)(b)(i) could lead to unjust results. For example, a testator might have intended to bring an action, within time, but have died before doing so. Executors might not find out about the cause of action until after the “grace” period allowed by s 46A Limitation Act. Under the interpretation propounded by Allens, an undeserving wrongdoer might benefit.
On appeal, the executors adopted the reasons of the trial judge. The executors rely on the plain meaning of the section, and say that even if acceptance of the executors’ argument could lead to promotion of unmeritorious claims, this could best be dealt with by the exercise of the discretion.
The powers of an executor derive from the will of the testator. When an executor is appointed by a will, he derives title from the will, and the property of the deceased vests in him from the moment of the testator’s death: Ryan v Davies Bros (1921) 29 CLR 527 at 536. Pursuant to s 2(1) of the Survival of Causes of Actions Act 1940 (SA) a cause of action vested in a person at the time of his death survives for the benefit of his estate. Time continues to run notwithstanding death, subject only to s 46A Limitation Act.
As a general principle a successor in title can be placed in no better position than an assignor at the time of assignment. Executors and assignees take an action subject to any impairments: Re Harry Simpson & Co Ltd and Companies Act 1936 (1936) 81 WN(Pt1)NSW 207 at 209 per Jacobs J. The interest which devolves to the executor is the estate or interest held by the deceased at the time of his death: Butterworths, Halsbury’s Laws of Australia, Vol 24 (at 16 March 2010), IV Administration of Estates, “The interest taken by multiple grantees” [395-4020].
Read as a whole, s 48(3)(b)(i) yields the conclusion that it is ascertainment of material facts by the plaintiff personally that is required. Consistent with this it has been held that ascertainment of material facts by the plaintiff’s agent, such as the plaintiff’s solicitor, or, in the case of a plaintiff under a disability while under the care of a parent, by the parent, was not relevantly the ascertainment of knowledge by “the plaintiff”: Sola Optical at 637-638; Lovett v Le Gall (1975) 10 SASR 479 at 484; Smith v Browne & Ors [1974] VR 842. I accept that the argument that ascertainment by executors suffices is stronger where the cause of action survives for the benefit of a testator’s estate.
It is clear that Sir Donald knew that Allens acted for him in relation to the relevant matters. It would be incongruent in terms of the policy of s 48, if not an abuse of it, to permit “ascertainment” by the executors of a material fact, especially something which Sir Donald knew throughout, to enliven the power to extend time, at least where the time had run at the date of the testator’s death. Perversely, this would allow the ascertainment to be through the agency of the testator himself. To hold so would lead to some abhorrent results. Suppose a testator dies, leaving behind a volume of memoirs, telling of a long and richly satisfying life. It might contain descriptions of diverse actionable wrongs done him; all out of time. He might explain his reasons, laudable and generous, for declining to pursue them. He might allow himself some small congratulations at the wisdom of his forbearance. All these facts are revealed to his executors as they read the memoirs. Seeing scope for enhancement of the estate, they might launch multiple actions, relying on their ascertainment, from the memoirs, of material facts to satisfy s 48. That the facts were material, and were ascertained by the executors, would not be in doubt. To interpret s 48 as allowing an extension of time in such circumstances would be, to my mind, unjustifiable. In my view, it is no answer to say that the legislation preserves to the judge a discretion, although I acknowledge the discretion is a wide one: Sola Optical at 637. I consider that the section contemplates that it is the original owner of the cause of action who must do the ascertaining of material facts under s 48(3)(b)(i), and if the section is to extend to executors where a cause of action has survived, then the material facts must have been unknown to the testator. To hold otherwise would be to allow executors to assume a superior position in prosecuting a claim than that of the testator whose claim it was.
Conclusion
In my opinion the judge was correct in his finding that the executors had no reasonable prospect of establishing that facts material to the case were ascertained by them within twelve months of the action and therefore correct to dismiss the common law claims. I would uphold the dismissal of the claims on the additional basis that ascertainment of material facts known to Sir Donald could not suffice to enliven the s 48 discretion.
I would dismiss the appeal.