Gardner v Wallace

[1995] HCATrans 323

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 5491

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M33 of 1995

BETWEEN:C. GARDNER

Plaintiff

- and -

R. WALLACE

Defendant

DAWSON J

AT MELBOURNE, TUESDAY THE 31ST DAY OF OCTOBER 1995

MR M. MCGARVIE:   I appear on behalf of the plaintiff in this matter.

HIS HONOUR:   Yes, Mr McGarvie.  This is an application for leave to serve out of the jurisdiction?

MR MCGARVIE:   It is, your Honour, yes.  It is a matter involving an accident on the Gold Coast where Mr Chris Gardner, my client, seeks to sue a contractor who he will allude caused the injury as a result of the pavement laid on the ground where he fell in Queensland, and an exhibit within my affidavit reveals that the defendant, Mr Wallace, now lives in New Zealand.

HIS HONOUR:   Yes.  I have read the papers.  Why was the writ issued in the High Court?

MR MCGARVIE:   Well, I am greatly assisted by your decision in the case of Fielding v Doran, your Honour, where we have issued in the High Court -well the matter was first issued in the County Court and I should correct a reference to the Supreme Court in my affidavit.  In fact, I suggested that there were concurrent Supreme Court proceedings in Victoria.  They are concurrent County Court proceedings.  But because of the limitation period in Queensland being three years, and because of legislation introduced in Victoria preventing us relying on the statute of limitations of six years in Victoria, when this matter was issued it was out of time. 

It was issued against the Gold Coast City Council as the first named defendant and Ross Wallace as the second named defendant.  So, that although proceedings have not yet been discontinued, they probably need to be in the County Court matter.  The only remedy I can see available to the plaintiff is to issue it in the High Court, similarly to the case of Fielding v Doran and have it remitted to a state court to be heard.

HIS HONOUR:   Well, what limitation period applies then?

MR MCGARVIE:   Well, as you discussed in Fielding v Doran, it is possible that if it was remitted to a Victorian court, the limitation period would still be three years, but if it is remitted to a Queensland court, probably no limitation period applies because of the absence of a limitation period applying to matters in the High Court.

HIS HONOUR:   But does not the limitation period in Victoria apply, if you issue it in Victoria?

MR MCGARVIE:   If we issue in the County Court of Victoria or if we issue in Victoria ‑ ‑ ‑ 

HIS HONOUR:   In the High Court of Victoria there is a limitation period, is not it procedural?

MR MCGARVIE:   Well, I do not know that that is what the High Court has found in previous judgments.  My understanding is that the High Court is not touched by the State Limitation Acts, and that for a matter that might have expired in the state jurisdiction the High Court's jurisdiction can be invoked.

HIS HONOUR:   Have you got Fielding v Doran there?

MR MCGARVIE:   I do, your Honour. 

HIS HONOUR:   Perhaps you could just direct my attention to the relevant part.

MR MCGARVIE:   Yes:

In my view, however, it is unnecessary to have regard to these considerations, that is, consideration of limitation, because I have reached the ...(reads)... if applicable into operation.

My understanding - do you want me to pass this up, your Honour.

HIS HONOUR:   It might be helpful, yes.

MR MCGARVIE:   My understanding in this area is that the Limitation of Actions Act can be - the effect of a State Limitation of Actions Act can be avoided by having the matter issue out of the High Court.

HIS HONOUR:   Yes.  Well, I understand the point.  That is so that both in Queensland and in Victoria the limitation period has expired.

MR MCGARVIE:   That is correct.  And it happens to have expired in Victoria, not because - well, within the six years, but because of the legislation passed by the Victorian Parliament last year called the Choice of Law Limitation Period Act which requires the limitation period of the state in which the accident occurs to apply.

HIS HONOUR:   I see.

MR MCGARVIE:   Although we can issue proceedings in Victoria and have the matter heard in Victoria because the plaintiff resides here and he has suffered damage here, the limitation period is three years.

HIS HONOUR:   Yes.

MR MCGARVIE:   That County Court - - -

HIS HONOUR:   Otherwise the limitation period would be what?

MR MCGARVIE:   Otherwise in Victoria the limitation period would be six years.

HIS HONOUR:   Yes, I see.

MR MCGARVIE:   The limitation period in Queensland is three years.

HIS HONOUR:   Yes.

MR MCGARVIE:   This proceeding in the Victorian matter was issued outside the three year limitation period, and after the Choice of Law Limitations Act was proclaimed in Victoria.

HIS HONOUR:   Yes.

MR MCGARVIE:   And accordingly, the only remedy available to Mr Gardner is now to sue as an individual in one state to sue an individual in another state so he cannot maintain his action against the Gold Coast City Council because it is a corporation, but he can maintain his action against the contractor, Ross Wallace.

HIS HONOUR:   Yes.  Now, what has happened to the County Court summons, I take it, is it?

MR MCGARVIE:   That is still alive.

HIS HONOUR:   Not been served.

MR MCGARVIE:   Yes, it has been served.  It was served first both on the Gold Coast City Council and Ross Wallace.  Ross Wallace did not enter an appearance for some time.  The insurers of Gold Coast City Council retained a firm in Melbourne here and by pure coincidence the public liability insurer of Ross Wallace is the same as the public liability insurer of the Gold Coast City Council, so that the solicitors defending both the Gold Coast City Council and Ross Wallace in the Victorian proceedings are retained by the same insurance company representing both defendants, and accordingly, the second named defendant in the County Court action, Ross Wallace in this action, I am quite satisfied is insured, is indemnified by a policy of insurance for this incident, and at this stage his solicitors, the insurer's solicitors, have refused to accept service of these High Court proceedings on his behalf, so they are making me work for my results here by serving Ross Wallace in New Zealand.

HIS HONOUR:   If I took the view that the matter is effectively barred by a limitation period - - -

MR MCGARVIE:   Yes.

HIS HONOUR:   What effect would that have on your right to an order to serve outside the jurisdiction?  You depose that there is a good cause of action.

MR MCGARVIE:   There is a good cause of action, yes.  If you ruled that - - -

HIS HONOUR:   Albeit it may be a statute-barred one.

MR MCGARVIE:   - - - the matter was barred, then I would not seek to maintain leave to serve this man out of time;  it would be pointless.

HIS HONOUR:   I suppose one could say, well, the statute of limitations has to be pleaded before the action is barred.  Is that not so?

MR MCGARVIE:   By the defence? 

HIS HONOUR:   Yes.

MR MCGARVIE:   By a defence, yes.

HIS HONOUR:   It would be asking too much to suppose they would not plead it, but nevertheless that is - - -

MR MCGARVIE:   It would be only speculation.

HIS HONOUR:   Yes.

MR MCGARVIE:   And also, your Honour, the law probably - they probably would plead it.  I do not know.  They probably would, but the law is much clearer in relation to the limitation period in a matter brought before the High Court in favour of the plaintiff in this case.  It has been pleaded in the County Court proceedings.

HIS HONOUR:   Yes.

MR MCGARVIE:   And correctly, I believe.

HIS HONOUR:   Yes.  What I am really asking is what discretion do I have in making or refusing an order to serve out of the jurisdiction?

MR MCGARVIE:   I cannot answer that, your Honour.  The factors I would ask you to take into account are the very real prospect that the matter will be defended by an insurer who has already retained solicitors in Melbourne, that the block to - the log across my path at the moment once lifted will probably
allow me to conduct normal proceedings against a represented insured defendant in Melbourne.

HIS HONOUR:   Yes.  Well, apparently all I have got to be satisfied is that on the evidence that there is a good cause of action, or at least that you depose to the fact that there is, that there is a country where the defendant is most probably to be found, and the other grounds on which the application is made, well, you have made those clear.  Very well.  Now, what - I propose to consider this, but if I were to grant the - what time would you want for the entry of an appearance?  It is New Zealand.  It is not very far away, really.

MR MCGARVIE:   No.

HIS HONOUR:   21 days?

MR MCGARVIE:   21 days.

HIS HONOUR:   Yes.  And why do you ask for service of notice as opposed to the writ?

MR MCGARVIE:   I may - there is no design in requesting that.  Possibly I have asked for less than - - -

HIS HONOUR:   You are jogging memory, but is - - -

MR MCGARVIE:   - - - I should have asked for.

HIS HONOUR:   - - - it not that notice is generally reserved for those countries where the Queen's Writ does not run?

MR MCGARVIE:   I see.  Well, I may well have been mistaken in requesting the notice.  I may have misread the rules, your Honour.  I should not admit that, I suppose.  There is no design in requesting notice.  If there is a better - - -

HIS HONOUR:   It is a question of what you are asking for.

MR MCGARVIE:   - - - approach, then - I beg yours?

HIS HONOUR:   It is a question of what you are asking for.

MR MCGARVIE:   Yes.  Well, I would seek leave to serve the writ.

HIS HONOUR:   Yes.  Very well.  I think perhaps I ought to consider the matters which I have raised with you, so I will do that and you will be notified when I am prepared to give the result.

MR MCGARVIE:   If your Honour pleases.

AT 9.50 AM THE MATTER WAS ADJOURNED
INDEFINITELY