Holland by his next friend Roberta Ashworth Holland v The Metropolitan Health Services Board
[2001] WASCA 155
•21 MAY 2001
HOLLAND by his next friend ROBERTA ASHWORTH HOLLAND -v- THE METROPOLITAN HEALTH SERVICES BOARD [2001] WASCA 155
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 155 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2191/2000 | 8 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ KENNEDY J STEIN AJ | 21/05/01 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | CIV 2191 of 2000 Extension of time within which to appeal refused Leave to appeal refused CIV 2193 of 2000 Extension of time within which to appeal granted Leave granted Appeal allowed | ||
| PDF Version |
| Parties: | JUSTIN ROBERT HOLLAND by his next friend ROBERTA ASHWORTH HOLLAND THE METROPOLITAN HEALTH SERVICES BOARD CHRISTOPHER GUY LEACH |
Catchwords: | Tort Joint tortfeasors Action against one tortfeasor held to be barred by s 47A of the Limitation Act 1935 (WA) if facts alleged proven Action discontinued by plaintiff Subsequent amendment of statement of claim Remaining defendant given leave to issue and serve a third party notice on defendant against whom the action had been discontinued Order made granting leave to issue and serve third party notice subsequently recalling order Order set aside |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(1)(c) Limitation Act 1935 (WA), s 40 |
Case References: | Birkett v James [1978] AC 297 Brambles Constructions Pty Ltd v Helmers (1960) 114 CLR 213 George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 Hart v Hall & Pickles Ltd [1969] 1 QB 405 Harvey v R G O'Dell Ltd [1958] 2 QB 78 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338 King v Coupland [1981] Qd R 121 Littlewood v George Wimpey & Co [1953] 1 WLR 426 Littlewood v George Wimpey & Co [1953] 2 QB 501 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 Pointon v Walkley [1951] SASR 121 Watt v Rama [1972] VR 353 Alcoa of Australia Ltd v State Energy Commission of Western Australia (1995) 17 WAR 112 Australian National Airlines Commission v Newman (1987) 162 CLR 466 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 Boomalli Ltd v Hake [1985] WAR 7 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bunning v Cross (1978) 141 CLR 54 Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 Crossman v Le Fevre [1994] SASC 4899 Crowley v Glissan (1905) 2 CLR 402 Darke v Eltherington [1963] Qd R 375 DoCarmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson (1990) 64 ALJR 458 Girando v Girando (1997) 18 WAR 450 Holland v Board of Management of King Edward Memorial Hospital for Women (1995) 14 SR (WA) 305 Holland v Leach [1999] WADC 104 Holland v Leach [1999] WADC 5 Holland v Leach and Metropolitan Health Service Board [2000] WADC 18 Hudson v Venderheld (1968) 118 CLR 171 Hughes v Minister for Health [1999] WASCA 131 Jackamarra v Krakouer (1998) 195 CLR 516 Jacobs v London County Council [1935] 1 KB 67 Knight v Concorde Municipal Council [1973] NSWR 295 Letang v Cooper [1965] 1 QB 232 Magman International Pty Ltd v Westpac Banking Corporation (1981) 32 FCR 1 Mitchell v Board of Management of Royal Perth Hospital (1995) 14 SR (WA) 345 Posner v Roberts [1986] WAR 1 Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988 Ravot v Commissioner of Railways [1965] NSWR 1296 Ren v Mukerjee [1996] ACTSC 119 Rhodes v Swithenbank (1989) 22 QBD 577 Scott v State of Western Australia (1994) 11 WAR 382 Smith v Australian National Line Ltd (1993) 20 WAR 219 Smith v Australian National Line Ltd (2000) 75 ALJR 95 Smith v Tabain (1987) 10 NSWLR 562 State Energy Commission of Western Australia v Alcoa of Australia Ltd (1995) 17 WAR 131 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Yougarla v Western Australia (1999) 21 WAR 488 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HOLLAND by his next friend ROBERTA ASHWORTH HOLLAND -v- THE METROPOLITAN HEALTH SERVICES BOARD [2001] WASCA 155 CORAM : MALCOLM CJ
- KENNEDY J
STEIN AJ
- Appellant
AND
THE METROPOLITAN HEALTH SERVICES BOARD
Respondent
- Appellant
AND
CHRISTOPHER GUY LEACH
First Respondent
(Page 2)
- THE METROPOLITAN HEALTH SERVICES BOARD
Second Respondent
Catchwords:
Tort - Joint tortfeasors - Action against one tortfeasor held to be barred by s 47A of the Limitation Act 1935 (WA) if facts alleged proven - Action discontinued by plaintiff - Subsequent amendment of statement of claim - Remaining defendant given leave to issue and serve a third party notice on defendant against whom the action had been discontinued - Order made granting leave to issue and serve third party notice subsequently recalling order - Order set aside
Legislation:
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(1)(c)
Limitation Act 1935 (WA), s 40
Result:
CIV 2191 of 2000
Extension of time within which to appeal refused
Leave to appeal refused
CIV 2193 of 2000
Extension of time within which to appeal granted
Leave granted
Appeal allowed
(Page 3)
Representation:
CIV 2191 of 2000CIV 2191 of 2000
Counsel:
Appellant : Mr E M Heenan QC & Mr P A Monaco
Respondent : Ms C F Jenkins & Ms K E McDonald
Solicitors:
Appellant : Godfrey Virtue & Co
Respondent : State Crown Solicitor
CIV 2193 of 2000
Counsel:
Appellant : Mr E M Heenan QC & Mr P A Monaco
First Respondent : Mr C J L Pullin QC & Mr D Wallace
Second Respondent : Ms C F Jenkins & Ms K E McDonald
Solicitors:
Appellant : Godfrey Virtue & Co
First Respondent : Edwards Wallace
Second Respondent : State Crown Solicitor
CIV 2193 of 2000
Counsel:
Appellant : Mr E M Heenan QC & Mr P A Monaco
First Respondent : Mr C J L Pullin QC & Mr D Wallace
Second Respondent : Ms C F Jenkins & Ms K E McDonald
Solicitors:
Appellant : Godfrey Virtue & Co
First Respondent : Edwards Wallace
Second Respondent : State Crown Solicitor
(Page 4)
Case(s) referred to in judgment(s):
Birkett v James [1978] AC 297
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169
Hart v Hall & Pickles Ltd [1969] 1 QB 405
Harvey v R G O'Dell Ltd [1958] 2 QB 78
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338
King v Coupland [1981] Qd R 121
Littlewood v George Wimpey & Co [1953] 1 WLR 426
Littlewood v George Wimpey & Co [1953] 2 QB 501
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
Pointon v Walkley [1951] SASR 121
Watt v Rama [1972] VR 353
Case(s) also cited:
Alcoa of Australia Ltd v State Energy Commission of Western Australia (1995) 17 WAR 112
Australian National Airlines Commission v Newman (1987) 162 CLR 466
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
Boomalli Ltd v Hake [1985] WAR 7
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bunning v Cross (1978) 141 CLR 54
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
Crossman v Le Fevre [1994] SASC 4899
Crowley v Glissan (1905) 2 CLR 402
Darke v Eltherington [1963] Qd R 375
DoCarmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
Girando v Girando (1997) 18 WAR 450
Holland v Board of Management of King Edward Memorial Hospital for Women (1995) 14 SR (WA) 305
(Page 5)
Holland v Leach [1999] WADC 104
Holland v Leach [1999] WADC 5
Holland v Leach and Metropolitan Health Service Board [2000] WADC 18
Hudson v Venderheld (1968) 118 CLR 171
Hughes v Minister for Health [1999] WASCA 131
Jackamarra v Krakouer (1998) 195 CLR 516
Jacobs v London County Council [1935] 1 KB 67
Knight v Concorde Municipal Council [1973] NSWR 295
Letang v Cooper [1965] 1 QB 232
Magman International Pty Ltd v Westpac Banking Corporation (1981) 32 FCR 1
Mitchell v Board of Management of Royal Perth Hospital (1995) 14 SR (WA) 345
Posner v Roberts [1986] WAR 1
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988
Ravot v Commissioner of Railways [1965] NSWR 1296
Ren v Mukerjee [1996] ACTSC 119
Rhodes v Swithenbank (1989) 22 QBD 577
Scott v State of Western Australia (1994) 11 WAR 382
Smith v Australian National Line Ltd (1993) 20 WAR 219
Smith v Australian National Line Ltd (2000) 75 ALJR 95
Smith v Tabain (1987) 10 NSWLR 562
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1995) 17 WAR 131
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Yougarla v Western Australia (1999) 21 WAR 488
(Page 6)
1 MALCOLM CJ and KENNEDY J: We have had the benefit of reading in draft the reasons to be published by Stein AJ. We are in agreement with his Honour's reasons and with the orders which he has proposed. We desire, however, to make two brief observations.
2 Section 40 of the Limitation Act 1935 (WA) extends what would otherwise be the limitation period in respect not only of a person under the age of 18 years when the cause of action accrued, but also in respect of a person who is "insane". In the latter case, an action may be commenced after the person concerned becomes sane "as if that was the time at which the cause of action accrued". That is to say, time does not run against a person who is not sane. The expression "insane" has been given a broad meaning in Pointon v Walkley [1951] SASR 121 at 124 - 125 and in King v Coupland [1981] Qd R 121 at 122 - 123. On the evidence before us, it appears probable that the plaintiff is "insane" within the meaning of that expression in s 40. If this is the position, unless there is a change in the child's condition, time would still not run after he has attained the age of 18.
3 In relation to pre-natal injuries, in Watt v Rama [1972] VR 353, the Full Court of the Supreme Court of Victoria upheld a child's claim for a pre-natal injury resulting from an accident to the mother early in her pregnancy, on the basis that the cause of action did not accrue until the child was born. The case has been followed on a number of occasions since 1972. See also the discussion in Fleming, The Law of Torts, 9th ed (1998) at 181 - 184.
STEIN AJ:
Introduction
4 The history of this litigation is most unfortunate. It does, however, raise some serious issues. To understand the questions now before the Court, and how they have arisen, it is necessary to recount some of the delay-ridden history.
5 The proceedings arise out of events surrounding the birth of the plaintiff, Justin Robert Holland, on 22 November 1977 at the King Edward Memorial Hospital for Women (the hospital). The plaintiff, by his next friend and administrator, Roberta Ashworth Holland (his mother) sues for damages for negligence for personal injury suffered during the birth procedure. The plaintiff's injuries were severe - foetal hypoxia
(Page 7)
- causing severe brain damage and cerebral palsy. The degree of permanent disability is extreme and includes complete tetraplegia, total limitation of upper and lower limb functions and an absence of voluntary hand functions. Justin requires continuous assistance for mobility, transportation and physical needs. He has no verbal communication and is totally incapacitated for any paid employment.
History of the Proceedings
6 The proceedings were commenced by writ of summons issued on 31 August 1990, that is, almost 13 years after the plaintiff's birth. The Court has not been informed of any reason for this delay in the commencement of the proceedings. The writ was issued without the leave of the Court. Two defendants were named in the statement of claim. The first was what is now The Metropolitan Health Services Board (the Board) since the King Edward Memorial Hospital is a public hospital under the Hospitals Act 1927. The second defendant, Christopher Guy Leach, is a medical practitioner specialising in obstetrics and gynaecology at the hospital. He had the care of the plaintiff's mother during her pregnancy and delivery.
7 The statement of claim alleged negligence by the hospital staff and by Dr Leach. Both defendants filed appearances and, in September 1991, each filed a defence. The first defendant's defence included an allegation that the plaintiff's claim was barred by s 47A of the Limitation Act 1935 (WA). Indeed, on 30 August 1991, the first defendant filed a chamber summons to strike the plaintiff's claim out. This application was heard on 29 October 1991 and dismissed on 5 December 1991. Thereafter, the action proceeded in a somewhat desultory fashion over the next three years with discovery, further particulars, an amended statement of claim by leave, amended defences and interrogatories.
8 On 1 November 1994, the Board sought orders that the applicability of s 47A of the Limitation Act be determined as a preliminary issue. This preliminary issue eventually went to trial before Kennedy DCJ on 17 July 1995. Her Honour delivered judgment on 9 August 1995. The judgment on the preliminary question of law is the subject of an application for an extension of time within which to appeal. Orders were made by Judge Kennedy as follows:
"1. The answer to the question is that if the matters pleaded in the statement of claim in paragraphs 1,3,5, and 7-12A (inclusive) of the plaintiff's further amended statement of
(Page 8)
- claim are accepted as proven then the plaintiff's action is barred by S.47A of the Limitation Act 1935.
- 2. The plaintiff do pay the defendants costs of the issue in terms to be agreed.
3. There be liberty to apply regarding costs."
9 Her Honour concluded that if certain matters in the statement of claim are accepted as proven, then the plaintiff's action is barred by s 47A.
10 On 6 October 1995 the Crown Solicitor (on behalf of the Board) wrote to the plaintiff's solicitors referring to Judge Kennedy's decision. The letter indicated that the first defendant could strike out the plaintiff's statement of claim against the hospital because it was an abuse of process and doomed to failure due to s 47A. The letter suggested that it would be easier for the plaintiff to file, by consent, a notice of discontinuance of action. Alternatively, the Board could apply to have the claim struck out. On 9 May 1996 the Crown Solicitor again wrote indicating that unless a notice of discontinuance was received immediately, a summons to strike out the statement of claim would be filed. The plaintiff's solicitors agreed and forwarded a minute of consent to the discontinuance to the Crown Solicitor, which was returned on 23 May 1996. The order of discontinuance was first extracted by the solicitors for the Board on 22 April 1999. It should also be mentioned that no approval of the Court under RSC O 70 r 10 was ever sought notwithstanding that the plaintiff was patently a "disabled person" within the Order. The rule refers to a "settlement or compromise". It is unclear that the discontinuance falls within these words as, without more, discontinuance by a plaintiff is not a defence to any subsequent action: O 23 r 2(2).
11 In the meantime the action proceeded against Dr Leach, the remaining defendant, albeit in a dawdling fashion. In September 1998, Dr Leach filed an application to strike out the plaintiff's claim for want of prosecution. It was not until 14 July 1999 that this application was heard by Nisbet DCJ. His Honour refused the application on 19 July 1999 despite finding that the plaintiff's delays were "inordinate", that only a weak and totally inadequate attempt had been made to excuse the delay and this was itself an "attempt to fudge the issues" raised by the defendant. According to his Honour, the complete failure to explain the delay warranted censure.
(Page 9)
12 However, his Honour did not find that the delay would give rise to a substantial risk so that it may not be possible to have a fair trial of the issues or that it was likely to cause serious prejudice to the defendant: Birkett v James [1978] AC 297. His Honour noted that the limitation period against the defendant doctor would not expire for another 2 1/2 years, since it did not run until the plaintiff attained his majority when he turned 18 years. See s 40 of the Limitation Act. Presumably, injuries suffered prior to birth would fall within the section. His Honour also noted that it was a general prejudice, rather than a particular prejudice, which was said to be occasioned. The summons of the defendant was accordingly dismissed.
13 On 9 September 1999 the plaintiff applied for leave to further amend his statement of claim. This application came before Nisbet DCJ on 27 October 1999. It was opposed by the defendant because the fresh allegations alleged negligence by Dr Leach in respect of his resuscitation of the plaintiff following his birth, see par 11C(l) to (t). Previously the focus of the defendant's conduct had been upon the course of the pregnancy and immediately preceding delivery. His Honour said that the new particulars raised an entirely new issue of negligence. However, in the end Nisbet DCJ decided, with some reluctance, that the amendments should be allowed and leave be given. His Honour also granted leave to the defendant to serve a third party notice against the Board.
14 However, the Board then moved to set aside the third party notice on the basis that it could not be joined as the third party because it maintained that it had been discharged from the suit (as defendant) by order of Kennedy DCJ on 9 August 1995. This application was also heard by Nisbet DCJ in late 1999. In giving reasons for judgment on 1 February 2000 his Honour said:
"In the circumstances presently before me, I find that by reason of the position of the defendant having altered so dramatically since the plaintiff's application to amend his statement of claim was heard by me, it is appropriate for me to reconsider the application in the light of the prejudice that the (proposed) amendments may now work to the defendant."
15 The dramatic change of circumstances mentioned by his Honour was a reference to the High Court decision in James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53. This decision led Nisbet DCJ to believe that the Board could not be joined as a third party. In these altered circumstances his Honour formed the opinion that the competing
(Page 10)
- prejudice to the defendant, Dr Leach, and to the plaintiff in refusing the controversial amendments to the statement of claim, could best be balanced by the recall of the orders he had made on 29 October 1999. Consequently, on 11 April 2000, his Honour made the following orders:
"1. So much of the Judgment and proposed Orders of 29 October 1999 as gave the Plaintiff leave to amend his Statement of Claim by the addition of further particulars of negligence in paragraphs 11C(b), (m), (n), (r), (s) and (t), are hereby recalled.
2. So much of the Judgment and proposed Orders of 29 October 1999 as gave the Defendant leave to issue and serve a Third Party Notice to the Metropolitan Health Service Board, are hereby recalled.
3. The application of the Plaintiff to so amend the Statement of Claim is adjourned sine die.
4. Liberty to all parties to apply.
5. Costs reserved."
17 A number of questions arise for consideration. Principally but not exclusively, these are:
1. Was the decision of Kennedy DCJ of 9 August 1995 correct?
2. In any event, what was the status and effect of the orders of Kennedy DCJ?
3. Should time to appeal the decision of Kennedy DCJ be extended by in excess of 5 years?
4. Can Dr Leach proceed with the third party claim against the Board?
(Page 11)
- 5. Should the plaintiff be permitted to amend his statement of claim?
18 Depending on the answers to some of the above questions, others may not need to be answered by the Court.
The status and effect of the orders of 9 August 1995
19 It is convenient to first examine the status and effect of the orders made by Kennedy DCJ on 9 August 1995. An examination of the issue may start with George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169. The case revolved around the English counterpart of s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA). The facts of Wimpey appear from page 170 of the law report. The plaintiff succeeded in obtaining judgment against George Wimpey & Co but his claim against BOAC failed and was dismissed as statute barred since it was a public authority under s 21 of the Limitation Act 1939. The trial Judge, Parker J, said that BOAC was entitled to judgment against the plaintiff Littlewood in the action on the ground that his claim against it was statute barred [at 171]. It is plain that judgment was entered for BOAC against the plaintiff. Accordingly, Wimpey's claim for contribution from BOAC failed because it had been sued by Littlewood and held not liable. The Court of Appeal affirmed the judgment of Parker J.
20 In examining the provision, it is clear that in the House of Lords, Viscount Simonds was referring to the party from whom contribution was claimed being held not liable by judgment because the Limitation Act was successfully pleaded. Lord Reid said that "liable" in the section meant held liable by judgment. He concluded that "if sued" must have a temporal connotation. Lord Keith, although in dissent, noted that BOAC had been held not liable on a technical plea that the action against it was out of time.
21 For the instant case what is important about Wimpey is that BOAC had obtained a judgment against the plaintiff on the basis that his claim against it was statute barred.
22 Wimpey was applied by McNair J in Harvey v R G O'Dell Ltd [1958] 2 QB 78. His Honour thought that the phrase " … would if sued have been liable" meant "who would, if sued at any time, have been [held] liable". Against this construction, the third party argued that it was unjust and unreasonable that she should be exposed to action many years after
(Page 12)
- she had, by lapse of time, become protected as against the original injured party. On the other hand, the first defendants pointed out that it was unreasonable that their rights against their joint tortfeasor should be determined by the action of the plaintiff not proceeding against the other tortfeasor in due time. It was further submitted that if the limitation contended for by the third party is adopted, it would be necessary for every person involved in an accident causing injury, for which he may be held liable, or a right over against another party, to commence declaration proceedings within the limitation period, even if the former party had not yet been sued. His Honour saw the arguments based on inconvenience as equally balanced. This led him to adopt the literal construction of the provision [at 109 - 110].
23 The next case of note is Hart v Hall & Pickles Ltd [1969] 1 QB 405. It is convenient to quote from the judgment of Lord Denning MR to understand the point being determined by the Court of Appeal.
"Those words [in s 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935] as construed by the House of Lords, cover two situations: (1) where a tortfeasor has been sued and has been held liable; and (2) where a tortfeasor has not been sued, but, if he had been sued, he would have been held liable. The words do not cover a third situation: (3) where a person who is alleged to be a tortfeasor has been sued and has been held not liable. If he has been held not liable on the merits of the case, clearly he cannot be sued for contribution. If he has been saved from liability by reason of the Statute of Limitations, again he cannot be sued for contribution: see George Wimpey & Co. Ltd. v. B.O.A.C. But here we have a fourth situation: (4) where a person (who is alleged to be a tortfeasor) has been sued but the action has been dismissed against him for want of prosecution. Does this relieve him of any liability to make contribution?"
24 Lord Denning stated that for a person to be exempted from contribution, he must have been "sued to judgment" and found not liable. Where an action had been dismissed for want of prosecution, the defendant had not been "sued to judgment". The Master of the Rolls referred to the like construction by Parker J in Littlewood v George Wimpey & Co [1953] 1 WLR 426 at 439 and of Morris LJ in the same case on appeal [1953] 2 QB 501 at 522 - 523.
(Page 13)
25 Lord Denning continued, "There has been no finding on the merits. There has been no judgment that the defendant is not liable." Such an order was interlocutory and not a final decision. The plaintiff could start again subject to the statute of limitations.
26 Davies LJ and Winn LJ agreed, the latter stating that "sued" meant "sued to judgment", [at 413]. He added:
"I think there is, therefore, a fundamental dichotomy, implicit in the underlying reasoning, between the expression 'held not liable, scilicet, by a judgment,' and, on the other hand, by contrast, the expression 'sued and not held liable.'"
27 I turn then to the High Court decision in Seltsam, supra. This case concerned the effect of a consent judgment between a plaintiff and defendants 1 and 2 for damages where a claim for contribution was still afoot between defendant 1 and a third defendant. That third defendant had, with the consent of the plaintiff, a judgment entered in its favour. The order touching the third defendant had been made with the knowledge of defendants 1 and 2. The third defendant, having a judgment in its favour against the plaintiff, sought to have the cross-claim against it by defendant 1 struck out. The Dust Diseases Tribunal made that order and an appeal was dismissed by the NSW Court of Appeal.
28 The joint judgment of Gaudron and Gummow JJ in Seltsam, supra, at [16], after reciting the factual circumstances, quoted from Brennan J in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 670 states that:
" … So long as the judgment holding Pilbara not liable stands on record, the shipping company is unable to assert that Pilbara is a tortfeasor who 'is or would if sued have been liable' to Hamersley."
29 In par [25] their Honours make reference to Windeyer J in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221:
"… to a person whose liability as a tortfeasor has been ascertained, ordinarily by judgment, …".
30 Again, with reference to Helmers (at 218), their Honours concluded that there can only be recovery of contribution if one answers the description in par (i) or par (ii). They added, "Those who have been sued to judgment, whatever its outcome, do not fall within (ii)."
(Page 14)
31 The respondent submitted that it was a tortfeasor who was sued but recovered a final judgment in its favour. Their Honours stated that this circumstance did not come within the first or second limb of the provision and that there was no third category by reference to the circumstances of being sued and held not liable.
32 The joint judgment at [38] then made reference to Hart to the effect that where a contribution proceeding had been dismissed for want of prosecution, that person answers the description of one who "would if sued have been, liable in respect of the same damage". This was because the phrase "if sued" was rendered inapplicable "only if the tortfeasor had been sued to judgment and the dismissal for want of prosecution was but an interlocutory order".
33 However, the order dismissing the plaintiff's action against the respondent "was a final order which brought that action to an end", [40]. Their Honours added that the plaintiff's cause of action against the respondent merged in the judgment thus destroying its independent existence.
34 In short, there was a judgment on the record in the respondent's favour so that it could not be said that the plaintiff's claim against it was still awaiting final determination.
35 Callinan J at [138] came to the same conclusion that the appeal should be dismissed. The minority comprised Kirby J with whom McHugh J agreed. While apologising at [46] for adding to the "gallons of ink" spilt over the meaning of the legislation, it was the opinion of Kirby J that "if sued" meant, adopting a purposive construction, "if sued to judgment on the merits": [84]-[85]. His Honour saw the phrase as envisaging a completed action where the target tortfeasor has been sued to judgment (and one fully dealt with on the merits).
36 What does Seltsam and the other authorities say to the circumstances of this case? Here the orders of Kennedy DCJ of 9 August 1995 purported to answer a preliminary question. Nothing more. The orders were clearly interlocutory. They did not constitute a final judgment on the record in favour of the board. The board could have chosen to proceed to seek judgment but it did not. Instead, it required the plaintiff's consent to a notice of discontinuance. Having chosen its course, it is difficult to see how the board can now contend that it has been found not liable to the plaintiff by a final judgment.
(Page 15)
37 Applying Hart, it is clear that a statute of limitation defence can lead to a final judgment on the merits, but Lord Denning MR stressed the need to be "sued to judgment and found not liable". See also Parker J and Lord Morris in Littlewood v Wimpey. That, of course, did not occur here. There is no final judgment on liability inherent in an order answering a preliminary question. It is, as I have said, interlocutory. As Winn LJ said in Hart, the board has not been sued to judgment and held not liable by a judgment. The facts of Wimpey are that there was a judgment in favour of BOAC on the basis that the claim was statute barred and the action was dismissed. Not so here.
38 The plaintiff's cause of action against the board did not merge into the judgment because there was no final judgment. There has been no finding that the board was not liable to the plaintiff. Accordingly, the independent existence of the plaintiff's cause of action was not destroyed. The plaintiff could bring a fresh action, even if out of time, because a limitation defence is a technical bar which may not be availed of by a defendant. Further, it may well be that the discontinuance by the plaintiff is a nullity or, at least, liable to be set aside, since it was not approved by the court under O 70 r 10, because the plaintiff was a "disabled person". See Jarvinen v Minister for Health (WA)(1998) 19 SR (WA) 338 per Fenbury J at 341.
Implications of Above Conclusion
39 The reasoning and above conclusions remove the reason for the recall by Judge Nisbet of his orders of 29 October 1999 allowing the plaintiff to amend his statement of claim and to give leave to Dr Leach to issue a third party notice against the board. In my view, his Honour was entitled on that occasion to make the orders which he did.
40 The delay in appealing his decision of 1 February 2000 (and orders of 11 April 2000) is not such as would lead to the conclusion that it would be inappropriate to extend the time within which to appeal and grant leave to appeal.
41 The delay was around four months and has been partially explained. Nor does any prejudice to the board outweigh that faced by the plaintiff. The granting of the extension of time will enable the Court to do justice between the parties.
(Page 16)
42 In my opinion, the appeal against Nisbet DCJ's recall of his orders should be allowed and the orders which his Honour made on 29 October 1999 should be restored.
43 As a result, I find it unnecessary to address the appeal against Kennedy DCJ's orders of 9 August 1995 regarding the applicability of s 47A of the Limitation Act. The delay in seeking to appeal her Honour's orders is in excess of 5 years. No adequate explanation has been given for this gross and inordinate delay. In the circumstances, I do not see that granting an extension of time within which to appeal would be justified. Accordingly, the extension of time should be refused, as should the application for leave to appeal.
44 I propose the following orders:
CIV 2191 of 2000
1) Extension of time within which to appeal refused;
2) Leave to appeal refused;
CIV 2193 of 2000
1) Extension of time within which to appeal granted;
2) Leave granted;
3) Appeal allowed;
a) Orders made by Nisbet DCJ on 11 April 2000 be set aside;
b) Orders made by Nisbet DCJ on 29 October 1999 be reinstated.
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