Finemores (No. 3) Pty Ltd v Evans No. Scgrg-98-399 Judgment No. S6820

FINEMORES (NO. 3) PTY LTD V EVANS

[1998] SASC 6820

Full Court: Doyle CJ, Olsson and Lander JJ

LANDER J

This is a purported appeal by a defendant from a decision of a Judge in the District Court who allowed a plaintiff’s application for an extension of time within which to institute proceedings in that Court pursuant to s48 of the Limitations Of Actions Act and who ordered that the appellant pay the plaintiff’s cost of and incidental to the application and the order.

I have used the expression “purported appeal” because the respondent has claimed that no appeal lies from the order allowing an extension of time within which to appeal without leave of this Court and if leave was to be granted the appeal should be heard by a single Judge rather than the Full Court. The objection to the competence of the appeal was raised for the first time in the respondent’s outline.
Proceedings for an extension of time within which an action can be instituted may be determined by a Court at any time before or after the close of proceedings [s48(5) Limitations Of Actions Act]. In this matter the question of an extension of time was dealt with as a preliminary issue.
Section 43 of the District Court Act provides:
“43(1)... A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies -
(a)in the case of a judgment given by a Master or the Court constituted of a Master - to the Court constituted of a Judge;
(b)in the case of an interlocutory judgment given by a Judge - to the Supreme Court constituted of a single Judge;
(c)in any other case - to the Full Court of the Supreme Court.
(3)In the case of a judgment of the Court in its Administrative and Disciplinary Division, an appeal lies as of right on a question of law and by leave of the Supreme Court on a question of fact (but this principle may be displaced or modified by the provisions of the special Act under which the jurisdiction is conferred).
(4)A right of appeal conferred by this section extends to a legal practitioner or witness against whom an order for costs is made.”
As can be seen s43(2) provides that an appeal from an interlocutory judgment of a Judge of the District Court lies to this Court constituted of a single Judge. An appeal from a final judgment lies to the Full Court. Section 43(1) provides that an appeal from the District Court must be exercised in accordance with the Rules of Court of the Supreme Court.
If the order complained of is a final judgment an appellant is entitled to appeal to the Full Court provided the appellant complies with the procedure provided in r95. If the order complained of is an interlocutory judgment the appellant must proceed in accordance with r96A of the Rules.
Rule 96A.02 provides:
“(1).. Unless a Judge of the District Court has certified that the proposed appeal involves:
(a)A point of law of difficulty or importance which justifies it being reviewed on an interlocutory appeal; or
(b)A point of sufficient importance in the proceedings to warrant it being reviewed on an interlocutory appeal without waiting for the final judgment in the action,
......... any appeal against an interlocutory judgment under Section 43(2)(b) of the Act is subject to leave being obtained from the Court.
(2)Such leave or leave under Section 43(3) of the Act may be granted by a single Judge in chambers ex parte or upon such notice to the other parties as the Court may direct:
(a)Upon a summons which is to be issued within 14 days of the making of the judgment complained of;
(b)[repealed]
(c)On an application taken out within 14 days of the making of the judgment complained of in any proceedings already before the Court involving the same parties and relating to the subject matter of the proposed appeal.
(3)Immediately upon initiating the proceedings seeking such leave the party seeking the leave shall serve such proceedings upon the Registrar of the District Court who shall thereupon forthwith forward the District Court file on the matter to the Registrar of the Supreme Court.
(4)Where such leave to appeal has been refused by a single Judge Rules 94.02 and 94.03, mutatis mutandis, are to apply for leave to appeal to be sought from the Full Court.
(5)Where such leave to appeal has been granted ex parte Rule 94.04 is to apply to any rescission of that leave.
(6)Where all necessary parties are represented on the hearing for leave to appeal the single Judge may treat that hearing as the argument upon the appeal and determine the appeal accordingly.
(7)Upon any summons under subrule (2)(a) or any application under subrule 2(c) the Court may:
(a)Direct that the appeal be referred to the Full Court for determination;
(b)Stay any proceedings or order in the District Court which are related to the appeal.”
If a certificate has been given under r96A.02(1) or if leave is granted under r96A.02(2) and the matter not disposed of in accordance with r96A.02(6) a notice of appeal must be lodged within fourteen days of the grant of the certificate or the giving of leave [r96A.03]. If the matter is determined by a single judge, there having been no direction under r96A.02(7)(a), no further appeal lies to the Full Court without leave of that Judge or the Full Court (r96A.05).
If the District Court Judge’s order was a final order, or to put it in the negative not an interlocutory judgment, this appeal is competent, otherwise the appellant has failed to comply with the appropriate procedures.
An interlocutory judgment is not defined in the District Court Act and the definition of judgment, in that Act does not assist in determining what is an interlocutory judgment.
To determine whether this is an interlocutory or final order the question which must be asked and answered is: “Does the judgment or order as made finally dispose of the rights of the parties?”: Licul v Corney (1976) 8 ALR 437; Carr v Finance Corporation of Australia (No. 1) (1981) 147 CLR 246; Atco Industries v Ancla Maritima (1984) 35 SASR 408 at 410. In Licul v Corney (supra) Gibbs J said:
“One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh [1971] 2 QB 597; [1971] 2 A11 ER 865 - is that the test depends on the nature of the application made to the court. The other view which, since Hall v Nominal Defendant (1966) 117 CLR 423; [1966] ALR 705, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
In determining whether a judgment is final or interlocutory, therefore, the Court will have regard to the legal effect of the judgment rather than the practical effect: Carr v Finance Corporation of Australia Ltd (No. 1) (supra).
A judgment or order extending the time within which a party might institute an action does not finally dispose of the rights of the parties. It is a procedural step in the proceedings. The Limitations Of Actions Act requires a claim for damages for personal injuries to be brought within three years from the date the cause of action arose. In that sense it sets up a procedural bar to actions instituted after that time. However, the Act, at the same time, sets up a procedure where the harshness of that time limit may be ameliorated if the party seeking to bring an action outside that three year time limit can satisfy the threshold test contained within s48 of that Act and obtain the benefit of an exercise of discretion in that party’s favour. The dispensing section recognises that a decision on this matter can be given before any trial of the issues between the parties [s48(5)].
The procedure and the judgment or order allowing for an extension of time are interlocutory in nature. The order does not finally dispose of the rights of the parties. The rights of the parties will only be finally disposed of when the Court decides upon the merits of the action, which, if this interlocutory judgment stands, can now go forward.
The appellant relied upon Carslake v Guardian Assurance Company (1977) 15 SASR 378. In that case a plaintiff brought proceedings against an insurer pursuant to s113 of the Motor Vehicles Act. The proceedings were brought more than three years after the accident. The defendant pleaded s36 of the Limitations Of Actions Act as a defence to the whole of the action. At trial a District Court Judge held that the action was statute barred and dismissed the action.
Bray CJ, after referring to Hall v Nominal Defendant (1966) 117 CLR 423 and Licul v Corney (supra) and the dictum to which I have referred, decided that the judgment was final in that it finally disposed of the plaintiff’s rights. Walters J, after referring to the same dictum, decided that the judgment was an interlocutory one. In my opinion, the decision of Bray CJ is to be preferred. The judgment appealed from in that case did bring the plaintiff’s case to finality. It did finally dispose of the plaintiff’s rights.
However, that case is no support for the proposition that this judgment is a final judgment. The circumstances are quite different. In Carslake v Guardian Assurance Company the decision of the District Court Judge brought the plaintiff’s case to an end. By reason of the judgment the action was dismissed. It could not, except by appeal, be proceeded with.
In this case the judgment simply allows the respondent to proceed with her action. The judgment does not finally dispose of the respondent’s rights. Those rights, if any, are still to be ascertained.
A finding that a judgment allowing a party an extension of time within which to institute an action is interlocutory is consistent not only with the principle in Licul v Corney but also consistent with authority: Morton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454; Border Auto Wreckers (Wedonga) Pty Ltd v Strathdee (1997) 2 VR 31. A decision of the Court of Appeal of England to the contrary turned upon the express words of a Rule of Court dealing with final and interlocutory orders: Dale v British Coal Corporation [1993] 1 All ER 317.
It was submitted by Mr Roberston, who appeared for the appellant, that s38A of the Limitations Of Actions Act was relevant in determining whether this was an interlocutory matter. That section, which was enacted in 1994 provides:
“(1) A limitation law of the State is a substantive law of the State.
(2)A limitation law of another State or a Territory of the Commonwealth, or of New Zealand, is to be regarded as a substantive law of that place and applied accordingly.
(3)If a court in this State applies a limitation law of another State or a Territory of the Commonwealth, or of New Zealand, a discretion conferred by that law is to be exercised, as far as practicable, in the same way as courts in that other place exercise the discretion in comparable cases.”
I cannot agree that s38A is in any way relevant to a question of whether an order allowing for an extension of time under s48 is interlocutory or final. Section 38A was enacted to deal with problems relating to conflicts of law and to ensure that actions brought outside this State for causes of actions arising in this State would be governed by the time limits provided for in the Limitations Of Actions Act. It also provides for courts in this State to have regard to limitation laws of other States and Territories and New Zealand and treat them as substantive rather than procedural laws in considering causes of actions arising outside the State. The section simply makes substantive what would otherwise be procedural. It has no application to this matter.
The appellant’s appeal is incompetent. The appellant should have sought a certificate from the trial Judge or leave of a Judge of this Court. The appeal, if leave was granted, should have been heard by a single Judge.
Ordinarily an appeal which requires leave but has been brought without leave would be simply dismissed as incompetent: Southern Cross Exploration NL v All Risks Insurance Co (No. 2) (1990) 21 NSWLR 200.
It was agreed, however, that in the event that this Court determined the order complained of was interlocutory in nature, the Court would treat the notice of appeal as an application for leave to appeal and in the event that the Court believed leave was appropriate deal with the appeal. In the event that this Court was of the opinion that leave to appeal should be refused then it was agreed that the notice of appeal should be dismissed.
The criteria for granting leave to appeal from an interlocutory order made by a Judge of the District Court is provided for in r96A.02.(1).
There is no reason to think that an application for leave to appeal would be dealt with other than in accordance with a consideration of the granting of a certificate by a District Court Judge under that rule. The criteria for a consideration by the Supreme Court of an application for leave to appeal must be the same as the criteria to be considered by a Judge of the District Court in determining whether a certificate should issue.
The applicant, in this case “the appellant”, must satisfy the Court, however relevantly constituted, that the proposed appeal involves a point of law of difficulty or importance or involves a point of sufficient importance in the proceedings to justify or warrant the particular matter being reviewed on an interlocutory appeal. Leave therefore can be granted on matters of law or fact or mixed law and fact but only on matters of law if they raise matters of difficulty or importance and only on matters of fact if the matters of fact involve a point of sufficient importance. In any case the Court must consider whether the point of law or matter of fact justifies or warrants the review on an interlocutory appeal.
The plaintiff, who was born on 23 July 1951, and was at all material times sui juris, issued proceedings out of the District Court on 18 May 1995 against seven defendants claiming damages for personal injury, loss and damage allegedly arising out of assaults occasioned by the first, second and third defendants and/or breach of duties on the part of those defendants and for breach of duty of the part of the fourth, fifth, sixth and seventh defendants and in their capacity vicariously for the assaults and breaches of duty of the first, second, third and fourth defendants.
The causes of action were said to arise on 21 May 1989 when the plaintiff was driving her motor vehicle on the Sturt Highway in the State of Victoria.
She claims in her Statement of Claim that on that day, at about 6.30pm, the first named defendant stopped a motor vehicle which he was driving across the Sturt Highway thereby preventing her vehicle travelling along the highway. She claims that the first named defendant then alighted from his motor vehicle and attacked her motor vehicle with a crow bar causing substantial damage. She claims he also threatened her. She claims that his actions amounted to an assault. In addition she claims that his actions were negligent.
She further claims that the second and third defendants also assaulted her in separate incidents shortly after the alleged assault by the first defendant. She claims that the second and third defendants drove their motor vehicles so as to constitute a threat and put her in fear of her life.
In the alternative she claims against the second and third defendants that they were guilty of negligence in the driving and management of their motor vehicles.
In respect of the fourth, fifth, sixth and seventh defendants, the plaintiff claims that they were negligent as employers of the first, second and third defendants in “the management, direction and control of (its) servants, agents or employees and caused or contributed to the plaintiff’s injuries”. In the alternative she claims that the fourth, fifth, sixth and seventh defendants are vicariously liable for their employees namely the first, second and third defendants.
It is clear from the Statement of Claim that, at the time of issue of the proceedings, the plaintiff was not able to identify which of the fourth, fifth, sixth and seventh defendants employed the first, second or third defendants. The claims against the fourth, fifth, sixth and seventh defendants are put in the alternative.
The plaintiff’s claim is for damages for personal injuries arising out of the separate alleged assaults and acts of negligence.
Section 36 of the Limitations Of Actions Act provides that all actions in which the damages claimed consist of or include damages in respect of personal injuries must be commenced within three years next after the cause of action accrues and not after. In those circumstances the plaintiff was under an obligation to commence her proceedings before 21 May 1992. She did not and the proceedings were issued nearly six years after the cause of action accrued.
The plaintiff was thereby obliged to seek an extension of time within which to bring the proceedings, which she did. In the amended Statement of Claim she pleaded:
“38.. In the event that the plaintiff’s claim against one or all of the defendants is statute barred by reason of Section 36 of the Limitation of actions Act 1936 (as amended) and in so far as is necessary the plaintiff seeks an extension of time in which to institute the said action pursuant to Section 48 of the Limitations of Actions Act 1936 and in particular pursuant to Section 48(3)(b) of the said Act.
PARTICULARS OF GROUNDS UPON WHICH THE PLAINTIFF SEEKS AN EXTENSION OF TIME
38.1On the 17th day of may (sic) 1995 the plaintiff had read to her the draft Statement of Claim which was subsequently filed herein on the 18th day of May 1995.
38.2As a result of having the draft Statement of Claim read to her and as a result of a discussion with her solicitor the plaintiff learned on the 17th May 1995 that Dr Kalnins had diagnosed her as suffering from a Post Traumatic Stress Disorder at the time she was discharged from the Fullarton Private Hospital on or about the 26th day of June 1989.
38.3In all the circumstances it is just and equitable that the plaintiff be granted an extension of time.”
The application for an extension of time in paragraph 38 was added by way of amendment pursuant to leave granted by a Master of the District Court on 1 November 1996. The application should have been included in the proceedings at the time the proceedings were initiated but nothing turns on that [s48(4)].
Section 48 of the Limitations Of Actions Act provides for the power to extend periods of limitations. It provides:
“48.(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.
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5)Proceedings under this section may be determined by the court at any time before or after the close of pleadings.
(6)This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.”

The limitation of time in relation to claims for personal injuries is prescribed by the Limitations Of Actions Act itself and so therefore a party who seeks an extension of time within which to bring proceedings has to satisfy the court of the matters contained in s48(3)(b).
Assuming there are no representations or conduct of the kind mentioned in s48(3)(b)(ii) it is necessary that a plaintiff seeking an extension of time in which to bring proceedings for damages for personal injuries, satisfy the Court of the following:
1...... That facts material to the plaintiff’s case were not ascertained by the plaintiff until a point of time within twelve months before the expiration of the period of limitation or after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts.

and

2...... That in all the circumstances of the case it is just to grant the extension of time.

There can be no doubt that the onus is upon the plaintiff seeking the extension of time to satisfy the Court of both of those matters.
As has already been made clear the plaintiff’s application for an extension of time was opposed and the learned trial Judge heard the application as a preliminary matter (s48(5)).
In this case the plaintiff claimed that on 17 May 1995, that is the day before the issue of these proceedings, her solicitor read to her the draft Statement of Claim which was subsequently filed in these proceedings and, as a result of hearing of the contents of the Statement of Claim, she learnt, on 17 May 1995, that Doctor Kalnins had diagnosed that she was suffering from a post traumatic stress disorder at the time she had been discharged from the Fullarton Private Hospital on or about 26 June 1989.
In opposing the extension of time the appellant denied that it was appropriate for the plaintiff to have an extension of time within which to commence proceedings and particularised why it was that it said that it was not in the circumstances of the case just that the plaintiff be granted an extension of time.
It pleaded:
“9.3.. Denies that in the circumstances, it is just and equitable that the plaintiff be granted an extension of time.
Particulars
9.3.1 The fourth defendant does not admit that the plaintiff ascertained for the first time on 17 May 1995 that she was suffering from a post-traumatic stress disorder at the time she was discharged from the Fullarton Private Hospital on or about the 26th day of June 1989;
9.3.2 The fourth defendant is substantially prejudiced in defending the within action due to the effluxion of time from the date of injury;
9.3.3 The subject incident of which the plaintiff complains is alleged to have occurred on the 21st day of May 1989;
9.3.4 The main allegations made by the plaintiff with respect to the alleged incurring of physical and psychological damage are made against the first defendant;
9.3.5 The whereabouts of the first defendant are unknown to any party to these proceedings;
9.3.6 The first defendant is no longer in the employ of the fourth defendant;
9.3.7 The fourth defendant is prejudiced in the conduct of its defence by reason of the delay in bringing these proceedings has resulted in the fourth defendant being unable to obtain any information about the subject incident from the first defendant;
9.3.8 Further, the fourth defendant is prejudiced in its ability to obtain any witness statements or other information concerning the subject incident.”
The plaintiff herself gave evidence and called, in support of her case, Miss Jeffries, her solicitor. A number of reports were also tendered in support of the application.
The learned trial Judge accepted the evidence of the plaintiff and of the plaintiff’s solicitor that the plaintiff’s solicitor had read to her the draft Statement of Claim. I think he found that that occurred not as particularised in the Statement of Claim on 17 May 1995 but on 28 April 1995. He further found that that draft Statement of Claim was sent to counsel for settling and after settling it became the Statement of Claim attached to the summons.
He found that there was a subsequent meeting between the solicitor and the plaintiff which did occur on 17 May 1995. It was at that meeting that the plaintiff’s solicitor advised of the contents of a medical report of Doctor Kalnins dated 4 August 1992.
The learned trial Judge accepted that the plaintiff was not previously aware of Doctor Kalnins’ opinion and he found that in those circumstances on 17 May 1995 the plaintiff was made aware of a material fact within the time prescribed by s48(3)(b)(i).
The learned trial Judge then considered whether he ought to exercise his discretion in favour of the plaintiff. He found that the defendant had not established any real prejudice in relation to the delay and accordingly exercised his discretion to grant the relief sought and made an order extending the time within which the plaintiff could bring her proceedings to the date the proceedings were instituted.
The appellant seeks to appeal against that decision on three grounds. They are:
“1..... The Learned Judge erred in finding that on 17 May 1995, the plaintiff ascertained a fact material to her case.
2.The Learned Judge erred in finding that the diagnosis of Doctor Kalnins was a fact.
3...... The Learned Judge erred in finding that the diagnosis of Doctor Kalnins was “material”.”
It can be seen from those proposed grounds of appeal that the appellant does not take issue with the exercise by the learned trial Judge of the discretion in favour of the plaintiff. The thrust of the appellant’s complaint is that the plaintiff did not make out the threshold requirement that she ascertained a material fact within the time prescribed.
The plaintiff’s evidence, which was accepted by the learned trial Judge, was that she had not read any of the medical reports prior to 17 May 1995. She therefore did not know that on 4 August 1992 Doctor Kalnins had reported that he had previously diagnosed her as suffering from a post traumatic stress disorder. The learned trial Judge found that she had learnt that Doctor Kalnins had made such a diagnosis for the first time on 17 May 1997. The ascertainment of that information in the opinion of the trial Judge amounted to the ascertainment of a material fact within the relevant time span and thus satisfied the threshold test.
No complaint is made about the finding that the plaintiff learnt of Doctor Kalnins’ diagnosis for the first time on 17 May 1997. The appellant’s complaint is that this diagnosis does not amount to a material fact for two reasons. First, it is not a fact. Secondly and in any event it was not material.
I do not agree that Doctor Kalnins’ opinion is not a fact for the purpose of s48(3)(b)(i). In Sola Optical (Australia) Pty Ltd v Mills (1987) 163 CLR 628 the High Court was called upon to consider s48 in circumstances where a claim had been brought for damages for personal injuries outside the time limit prescribed by s36 of the Limitations Of Actions Act.
The plaintiff in that case suffered an injury on 23 June 1981. In October 1981 she instructed her solicitors to institute a claim for damages against her employer. Her solicitors neglected to bring the proceedings within three years. On 20 March 1985, in the course of a consultation with her solicitor, the plaintiff became aware that a surgeon, who had examined her in 1982 and 1983, had expressed a view in a report, dated 20 January 1984, that she was still suffering from a loss of function as a result of her injury. Proceedings were instituted against the employer in this Court on 11 June 1985. The writ was endorsed with a statement that the plaintiff sought an extension of time pursuant to s48 of the Limitations Of Actions Act.
A Judge of this Court granted the extension sought on the ground that the plaintiff’s discovery on 20 March 1985 of the surgeon’s assessment of her loss of function constituted the ascertainment of a fact material to her case within the meaning of s48(3)(b)(i). That decision was affirmed by a majority on appeal to the Full Court.
The employer appealed to the High Court arguing inter alia that the ascertainment by the plaintiff of the surgeon’s opinion, as to the degree of loss of function, was not in the circumstances of the case the ascertainment of a fact material to the plaintiff’s case.
The High Court said at 636:
“A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. 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”.”
In particular in dealing with the argument that the surgeon’s opinion as to the degree of disability suffered by the plaintiff was not a fact the Court held that the expression of such an opinion was an opinion as to the effect of the disabilities upon the functional capacity of the plaintiff. It further held that it was material for the plaintiff to learn that a medical assessment of the effect of those disabilities upon her capacity to function had been expressed in the terms enunciated by the surgeon. In the opinion of the High Court, the opinion expressed by the surgeon, although significantly earlier in time than the date upon which the proceedings were commenced, was still material.
In my opinion, in this case, Doctor Kalnins’ opinion that the plaintiff was suffering from a post traumatic stress disorder does amount to the expression of a fact. The fact is that was his opinion. In my opinion the fact was material because it identified precisely the plaintiff’s condition at the time that she was released from hospital. The ascertainment of Doctor Kalnins on 17 May was, in my opinion, the ascertainment of a material fact.
The appellant argued that the fact was not material because there was no suggestion at the hearing of this application that the appellant contested that the plaintiff’s mental condition was due to the events of 21 May 1989. It was submitted that the fact was not material because no-one denied that she had a post traumatic stress disorder at the time to which Doctor Kalnins refers.
There are a number of answers to that submission. First, the hearing of an application for an extension of time will not usually require either party to set out their case at length. It will not usually be possible to discern what matters will be in issue at trial. Materiality cannot be judged upon a perception of how the parties might conduct their cases at trial. Whether a fact is material is to be judged according to whether the fact is likely to have a bearing on the case. Whether the fact in due course is admitted or not is not to the point. The question is whether the fact is, however proved, likely to have a bearing on the case. Secondly the defendant’s conduct on an application of this kind cannot disqualify the plaintiff from the right to an order for an extension of time. It does not follow that because a fact which has been learnt by a plaintiff has not been challenged the fact is not material. Thirdly, a defendant cannot, even by admitting the fact, render the fact not material. Otherwise a defendant could disentitle a plaintiff to an extension of time simply by admitting the fact to be true. Take for example the situation where a plaintiff learnt for the first time, after a limitation period had expired, of the identity of the person who had committed a tort upon him or her causing personal injury. The defendant could not by admitting his or her identity and by admitting liability for the tort thereby render that information not material. Whether it is admitted or not the fact remains material if it is likely to have a bearing on the case. Fourthly, in this case the appellant has denied in its defence that the plaintiff sustained injury, loss or damage as alleged by the plaintiff in her Statement of Claim as a result of any act or omission on its part. It seems to me, notwithstanding the appellant’s conduct on this application, that causation is a live issue and the plaintiff continues to bear the responsibility of proving that her damages are the consequence of some act or omission on the part of the appellant.
It follows therefore that, in my opinion, the learned trial Judge did not err in finding that the plaintiff had made out the threshold requirement under s48(3)(b)(i).
As I have already said there was no complaint about the exercise by the learned trial Judge of his discretion in favour of the plaintiff.
In my opinion the appellant has not established that if leave to appeal was granted this matter would raise any point of law of difficulty or importance. Nor, in my opinion, has the appellant shown that the matter raises any matter of sufficient importance to warrant leave being granted.
In my opinion, even if leave was granted, for the reasons I have already given I would dismiss the appeal.
However, in my opinion, the orders of the Court should be:
1. Leave to appeal refused.
2. The Notice of Appeal of 19 March 1998 dismissed as incompetent.

DOYLE CJ

I agree with the orders proposed by Lander J and with his reasons for proposing those orders. There is nothing that I wish to add.

OLSSON J

I agree.

[1998] SASC 6820

27 August 1998