Gronemyer v The Commonwealth of Australia & Anor No. DCCIV-03-20178

[2003] SADC 174

GRONEMYER v THE COMMONWEALTH OF AUSTRALIA & THE STATE OF SOUTH AUSTRALIA
[2003] SADC 174

Judge Allan
Civil

1. The plaintiff claims damages for injury and loss suffered on 4 July 1956 in an incident involving a locomotive at Port Pirie.  He was aged 4½ years at the time. The injury was severe and involved loss of his left lower limb.  He alleges the injury was caused by the negligence of the defendants.

2. The proceedings were instituted on 10 February 2003; well out of time.  The plaintiff seeks an extension of time to institute the action pursuant to Section 48 of the Limitations of Actions Act 1936.  That section relevantly provides as follows:

   “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 could, 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.

   ……..

   (5)Proceedings under this section may be determined by the court at any time before or after the close of pleadings.

   …….”

3. The plaintiff relies on subsections (3)(b)(i) and (3)(b)(ii).

4. The first defendant sought an order that the extension of time point be dealt with as a preliminary matter.  The plaintiff sought orders as to the time and place of the trial.  Key witnesses for the plaintiff live at Port Pirie, are elderly, and, in the case of one of them, in poor health.  The applications were heard together by a Master.  On 21 October 2003, the Master made the following orders:-

   1.that the first defendant’s application for an order that the Limitation of Actions Act determination be heard as a preliminary issue be refused;

   2.     that the matter be set down for an urgent trial;

   3.that subject to any directions to the contrary by the trial Judge or the Chief Judge, the action be heard at first instance in the Port Pirie District Courthouse and that any evidence of Mrs. Gronemyer be heard at her home;

   4.the matter be listed for directions on Monday 27 October, 2003 at 9.45 a.m., for further orders, and hear the parties on the question of costs;

   5.that the Registry notify all parties including the second defendant of these orders.

5. The first defendant appealed against the orders contained in paragraphs 1, 2 and 3.  After hearing argument, I dismissed the appeal.

6. The cases say that, subject to the relevant circumstances, it is undesirable for an issue to be tried as a preliminary point unless that issue is a discrete one the determination of which will resolve, effectively, all issues between the parties to the litigation and which will not involve a consideration of evidence relevant to other, substantive issues in the litigation.

7. In the present case, the determination of the extension of time issue as a preliminary point will only be decisive of all issues between the parties if it is determined in favour of the defendants and there seems to be no dispute that, at least in part, the evidence relevant to the determination of that issue will also be relevant to the issues of liability and damages; some overlapping of evidence; a situation not alleviated by the state of the pleadings.  Accordingly, in my view, the learned Master exercised his discretion in the appropriate way: and that is why I dismissed the appeal so far as it relates to the extension of time point.

8. So far as the orders relating to the time and place for trial are concerned, with respect, the learned Master was correct: key witnesses live at Port Pirie, are elderly and, in the case of one of them, in poor health.

9. I dismissed the appeal for these reasons.