Farr v Centurion Transport Co Pty Ltd t/as Centurion Transport - [2023] WADC 128

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   FARR -v- CENTURION TRANSPORT CO PTY LTD t/as CENTURION TRANSPORT [2023] WADC 128
CORAM:   VERNON DCJ
HEARD:   27 JULY 2023
DELIVERED          :   3 NOVEMBER 2023
FILE NO/S:   CIV 4840 of 2022
BETWEEN:   CHRISTOPHER FARR
Plaintiff
AND
CENTURION TRANSPORT CO PTY LTD t/as CENTURION TRANSPORT
Defendant

Catchwords:

Appeal from registrar's decision - Application to strike out writ and statement of claim - Scandalous, frivolous or vexatious - Abuse of process - Expiry of limitation period

Legislation:

Limitations Act 2005 (WA), s 14(1), s 55(1)(a), s 55(1)(b)
Rules of the Supreme Court 1971 (WA), O 20 r 19, O 16 r 1

Result:

Appeal and application dismissed

Representation:

Counsel:

Plaintiff	:	Mr J J Sheldrick
Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Maurice Blackburn
Defendant	:	Momentum Legal

Case(s) referred to in decision(s):

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Bristow v Grout, The Times, 3 November 1986 QBD
Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703
Commonwealth v Mewett (1995) 59 FCR 391
Commonwealth v Verwayen (1990) 170 CLR 394
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
McKechnie v Campbell (1996) 17 WAR 62
Meyer v Solomon [2019] WASC 458
Peruvian Guano Co Ltd v Bockwoldt (1883) 23 CH D 225
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Wardley Australia Ltd v The State of Western Australia [1992] HCA 55, (1992) 175 CLR 514
Young v Holloway [1895] P 87

VERNON DCJ:

By an application dated 21 December 2022 the defendant applied to strike out the plaintiff's writ of summons and statement of claim filed 7 November 2022 as being scandalous, frivolous or vexatious or alternatively an abuse of process, pursuant to O 20 r 19(1)(b) and (d) of the Rules of the Supreme Court 1971 (WA) (RSC). The grounds of the application were that the plaintiff's cause of action is statute barred.
The application was dismissed by Registrar Nunn on 17 February 2023. By a notice of appeal dated 22 February 2023 the defendant has appealed the registrar's decision.
Both the application and the appeal were filed within the time allowed by O 20 r 9(3) of RSC and r 15(2) of the District Court Rules 2005 (WA) (DCR) respectively.
An appeal from the decision of a registrar under r 15(1) of the DCR is by way of a new hearing and it is not necessary for the defendant to establish any appellable error on the registrar's part: DCR r 15(6) and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28.
Order 20 r 19(1) provides as follows:
The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court.
In this case there is no practical difference between sub-rule (1)(b) and (1)(d). A pleading may be an abuse of process if there is such a complete legal bar to the action that it must fail: Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 109. An obviously unsustainable pleading is also frivolous and vexatious: Young v Holloway [1895] P 87, 90, Peruvian Guano Co Ltd v Bockwoldt (1883) 23 CH D 225, 230. Such an application may be supported by affidavit evidence.
The jurisdiction must be exercised with circumspection. However, if the factual or legal basis for exercising the jurisdiction is made out, the court has a duty to intervene: McKechnie v Campbell (1996) 17 WAR 62, 75.
It is only in the clearest of cases that limitation questions should be decided before a hearing of the action where the cause of action accrues upon damage being sustained: Wardley Australia Ltd v The State of Western Australia [1992] HCA 55, (1992) 175 CLR 514, 533 ‑ 534.

The pleadings

The plaintiff's claim against the defendant is for damages alleged to be caused by the defendant's negligence or breach of statutory duty as the plaintiff's employer.
In summary, the plaintiff's statement of claim alleges that:
(a)On 6 June 2019 the plaintiff sustained a knuckle injury while attempting to unhitch a trailer from a prime mover in the course of his employment with the defendant;
(b)Following the accident the plaintiff was advised that the accident had not caused any significant injury;
(c)The plaintiff continued to work in his usual employment and was certified as having full capacity for work from 8 July to 2 October 2019;
(d)Sometime after the accident the plaintiff became aware that he had suffered a not insignificant personal injury. No date is specified. However, the particulars state that the plaintiff reported the onset of burning pain and electric shock type symptoms in his right hand. On 17 February 2020, a surgeon told the plaintiff that the injury was more severe than he had previously been advised and recommended surgery;
(e)The personal injuries alleged to be suffered by the plaintiff comprised:
a.Soft tissue injury to the right finger and stenosis of the flexor tenosynovitis;
b.Neuropathic pain in the ulnar nerve distribution;
c.Complex regional pain syndrome;
d.C7 nerve entrapment;
e.Psychological sequalae.
The defendant has not yet filed a defence.

Summary of the parties' submissions

In summary the defendant submits:
(a)Section 14(1) and s 55(1) of the Limitations Act 2005 (WA) (the Act) apply to the plaintiff's claim.
(b)The test of whether an injury is 'not insignificant' in s 55(1) of the Act is objective and the necessary considerations are:
(i)what the claimant knew about the injury he had suffered; and
(ii)what knowledge about the injury should be imputed to the claimant.
(c)Medical records and other documents ('the documents') prepared in relation to the plaintiff's claim against the defendant as his employer under the Workers' Compensation and Injury Management Act1981 (WA) evidenced that before 7 November 2019 the plaintiff was either:
(i)aware that he had suffered a not insignificant personal injury to his right ring finger in a workplace incident on 6 June 2019; or
(ii)had experienced the first symptom, clinical sign or other manifestation consistent with his having sustained a not insignificant personal injury in that workplace incident.
(c)Accordingly, the action accrued before 7 November 2019 and that the writ was filed out of time.
The documents were annexed to the affidavit filed in support of the application of Ayden Robert Glover sworn 21 December 2022. The defence submitted that the documents were admissible as to the truth of their contents because they were business records within the meaning of s 79C of the Evidence Act 1906 (WA).
The plaintiff submitted that:
(a)It was not open to the court to dismiss the claim on the basis that it was frivolous, vexatious or an abuse of process on the basis of a claim that the limitation period had expired;
(b)The documents were inadmissible hearsay;
(c)Even if the documents were considered they did not establish to the requisite standard when the plaintiff became aware that he had sustained a not insignificant injury;
(d)The plaintiff objected to the defendant relying on s 55(1)(b) of the Act as the application referred only to the criteria in s 55(1)(a);
(e)The injury triggering the operation of s 14(1) and s 55(1)(a) of the Act was not the dislocation of the right ring finger but rather reflex sympathetic dystrophy and complex regional pain syndrome, that being the 'personal injury' for which the plaintiff received a whole of person impairment assessment which enabled the plaintiff to bring the proceedings. The plaintiff submitted the defendant had not identified any expert evidence that addressed when the first symptom, clinical sign or other manifestation of these conditions had arisen.
In response to the point raised in [14(e)] above, the defendant submitted that, where there is more than one injury, it is the first that is material for the purpose of determining the relevant date, relying on Bristow v Grout, The Times, 3 November 1986 QBD. The defendant conceded that there is no Australian authority (or any more recent authority) on this point.

Summary of the issues

The issues raised by the appeal (leaving aside the issue raised in [14(d)] above) were therefore:
(a)Is it open to me to grant the defendant's application under O 20 r 19 on the basis that the writ and statement of claim were filed outside the limitation period provided for by s 55(1)(a) or (b) of the Act (assuming it is open to me to consider s 55(1)(b));
(b)What is the relevant personal injury for the purpose of determining the limitation period;
(c)Are the contents of the documents admissible in the application as to the truth of their contents;
(d)If the documents are admissible do they establish when the plaintiff became aware that he had suffered a not insignificant injury; and
(e)Is the plaintiff's claim statute barred?

Is it open to dismiss the claim on the basis asserted by the defendant?

It is not in dispute that s 14(1) and s 55(1) of the Act apply to the plaintiff's claim.
Section 14(1) of the Act provides that 'an action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued'.
Section 55(1) of the Act provides that:
A cause of action for damages relating to a personal injury accrues when the only or earlier of such of the following events as are applicable occurs -
(a)the person become aware that he or she has sustained a not insignificant personal injury;
(b)the first symptom, clinical sign, or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.
In calculating the three‑year period, the date the cause of action is said to have accrued is not included in the calculation of the period: s 61(1)(b) Interpretation Act 1984 (WA).
Section 3(1) of the Act provides that a 'personal injury' 'includes a disease, impairment of a person's physical condition, and mental disability'.
Accordingly, in order for the writ filed on 7 November 2022 to have been filed within the limitation period in s 14(1) of the Act the plaintiff must have become aware that he had sustained a not insignificant personal injury, or there must have been the first symptom, clinical sign or other manifestation of personal injury consistent with the plaintiff having sustained a not insignificant personal injury, on or after 7 November 2019.
A 'not insignificant personal injury' does not mean 'any' injury. Whether the injury suffered is 'not insignificant' is a question of fact. In Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 at [40] Pullin, Newnes and Murphy JJA held that:
It is plainly the case that the purpose of s 55 is to avoid time running while a person is unaware that he or she has suffered a 'not insignificant' personal injury; that is, an injury which is not trifling' or 'of no consequence': Macquarie Dictionary. Whether or not an injury is of such a nature must depend on the extent of the injury itself. The effect of s 55 is that the cause of action accrues when the person first becomes aware that they have suffered such a personal injury or there is some symptom, clinical sign or other manifestation consistent with such a personal injury. The relevant criterion in awareness, or means of awareness, of the existence of a personal injury which is not insignificant.
In submitting it was not open to the court to dismiss the plaintiff's claim on the basis that it is frivolous, vexatious or an abuse of process, the plaintiff relied on the decision of French J in Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703.
In Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703 the defendant applied to dismiss the plaintiff's claim pursuant to a Federal Court rule effectively identical to O 20 r 19(1)(b) and (d) on the basis that claim was brought outside certain time limits specified in the Trade Practices Act 1974 (Cth) (TPA).
French J held that those provisions did not operate to extinguish the plaintiff's cause of action but rather gave the defendant a defence which might be pleaded in bar to the remedy the plaintiff sought if the defendant chose to do so. Until that occurred the question of limitation did not arise for the court's consideration: Carey‑Hazell v Getz Bros& Co (Aust) Pty Ltd [2001] FCA 703 [35] ‑ [37] citing in particular Commonwealth v Mewett (1995) 59 FCR 391, 398 (Cooper J) and Commonwealth v Verwayen (1990) 170 CLR 394.
French J said:
38To plead a cause of action which is, on the face of it, out of time cannot, without more, amount to an abuse of process where the expiry of the limitation period does not extinguish the cause of action. For until the respondent has pleaded it is not known whether the statutory time bar will be raised. And if the time limitation is pleaded, the applicant may raise in reply some plea in waiver or estoppel on the part of the respondent. It is not always the case that a respondent will plead the limitation point. In some cases, particularly when the respondent has been aware of the applicant's concerns for a long time and that action is a possibility, it may regard it as inappropriate to raise the plea. For the same reasons, it cannot be said that the commencement of the proceedings out of the time defined by a non‑extinguishing limitation provision is frivolous or vexatious.
39As is said in McGee's Limitations Periods at p 347:
'…it is not as a general proposition an abuse to bring an action on a time-barred claim, since there is always the possibility that the defendant will chose not to plead the statute. Consequently an application on this ground will succeed only if the defendant is able to show something more, such as that a previous action on the same facts has been dismissed for disobedience to a peremptory order of the court – mere dismissal for want of prosecution is insufficient. The inevitable conclusion is that reliance on Order 18, rule 19 will vary rarely be appropriate…'
Whilst it might be said in this case that it is practically inevitable that the defendant will raise the limitation defence in its pleadings given the nature of the application, that does not operate to distinguish Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703. In that case the respondent had raised the limitation defence in submissions on the application but had not pleaded the limitation period in bar of the action.
Carey-Hazell v Getz Bros& Co (Aust) Pty Ltd [2001] FCA 703 was cited with approval by Vaughan J in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 in the context of an application for leave to issue a writ pursuant to O 67 r 5 of the RSC.
In Ex Parte Gates Vaughan J reviewed the English and Australian authorities on this issue, noting that the English authorities countenanced a strike out application on the grounds of abuse of process or that the proceedings are frivolous or vexatious where the defendant had made it clear it would rely on the limitation defence but where that defence had not been pleaded. His Honour concluded:
49… I consider that French J's exposition in Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd sets out the law in Australia. Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd is the most recent authority. French J also provides the most comprehensive review of the authorities and a conclusion that is consistent with the principle that a cause of action is not extinguished by the expiry of a limitation period. The statement of principle in Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd is also consonant with the warning of the plurality in Wardley Australia Ltd v Western Australia that it is undesirable that limitation questions should be decided in interlocutory proceedings except in the clearest of cases.
50… While under Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd it may not be possible to characterise the proceedings as an abuse of process of the court or frivolous or vexatious, it will still be possible for the defendant to apply for summary dismissal under O16 of the Rules of the Supreme Court on the basis that the defendant has a good defence on the merits.
As with the provisions considered by French J in Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703, and s 38 of the Limitation Act 1935 (WA) considered by Vaughan J in Gates, the provisions of the Act 'bar the remedy not the right, must be pleaded to be invoked, and can be waived': Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127, (2017) 51 WAR 341 [46(e)]; see also Meyer v Solomon [2019] WASC 458 [184].
Whilst, as noted by Vaughan J in Ex Parte Gates, the matters raised by the defendant could form the basis of an application for default judgment under O 16 RSC the defendant's application is not brought under that provision.
Accordingly, the appeal and the application must fail.
I have considered whether I should make any comment in these reasons on the merits of the other arguments raised in the appeal given that they were the subject of significant argument before me. Ultimately I have determined that it is not appropriate for me to do so.

Conclusion

The appeal and the defendant's application dated 21 December 2022 are dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to Her Honour Judge Vernon
3 NOVEMBER 2023