Howard and Nasir v Northern Territory of Australia

[2003] NTSC 63

Howard & Nasir v Northern Territory of Australia [2003] NTSC 63

PARTIES:HOWARD, CHRISTINE

AND

NASIR, DARIUS

v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:                SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JURISDICTION:  INTERLOCUTORY APPLICATION

FILE NUMBER:  171/01 (20018782)

DELIVERED:  29 MAY 2003

HEARING DATE:                 14 MAY 2003

REASONS OF:  THE MASTER

CATCHWORDS:

PRACTICE - Northern Territory – joinder of party - statute barred claim - application for extension of time - Limitation Act section 44

STATUTES - Northern Territory - Limitation Act section 44 - joinder - statute barred claim - application for extension of time

STATUTES - Northern Territory - Police Administration Act section 162 - validity - effect of Limitation Act

Vershuuren v Toms Tyres 86 NTR 1, followed.

Creedon v Measey Investments 69 NTR 19; CTG v Yamamori (1992) NTSC 2098; Danae

Investments v MacIntosh Nominees 11 ACSR 523; Kingston Earthworks v Iles (1997) 6 TAS R 433, referred.

REPRESENTATION:

Counsel:

Plaintiff  Mr Shand QC

Defendant:  Mr Macdonald

Proposed Defendant:               Mr Grant

Solicitors:

Plaintiff  NAALAS

Defendant  Solicitor for the Northern Territory

Proposed Defendants              Hunt & Hunt

Judgment category classification

Judgment ID number   mas13

Number of pages  7

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

Howard & Nasir v Northern Territory of Australia [2003] NTSC 63

No. 171 of 2001 (20018782)

BETWEEN:

CHRISTINE HOWARD

First Plaintiff

and

DARIUS NASIR
           Second Plaintiff

and
NORTHERN TERRITORY OF AUSTRALIA
           Defendant

CORAM:       MASTER COULEHAN

REASONS FOR DECISION

(Delivered 29 May 2003)

1. This proceeding was commenced in the Local Court on 17 November 2000, the plaintiffs claiming damages, including aggravated damages, for assault and battery alleged to have been committed on 17 September 2000 when the first plaintiff was taken into custody by the NT police.  The first plaintiff also claims damages for false imprisonment.  It is admitted in the defence that the first plaintiff is entitled to damages, but not aggravated damages.

1. On 12 June 2002, it was ordered that the proceeding be transferred to this Court.  The transfer did not take place until 4 November 2002.  The reason for the delay has not been explained, but it does not appear to have been due to the fault of either of the parties.

1. A summons was filed on behalf of the plaintiffs on 27 March 2003, seeking the joinder of several named persons as defendants and leave to file an amended statement of claim.  The proposed amended statement of claim pleads additional causes of action, namely, trespass and negligence.  The plaintiffs also seek to add a claim for punitive damages.  The liability of the defendant does not extend to such damages (section 163(3) of the Police Administration Act), but the liability of the proposed defendants may. The persons sought to be joined are alleged to have been members of the police force who were involved in the incidents the subject of this proceeding. The defendant is alleged to be vicariously liable for their actions pursuant to section 163 of the Police Administration Act.

1. The application is opposed by the defendant and the proposed defendants. The principal argument was as to the effect of section 162 of the Police Administration Act. Section 162 provides that “…all actions and prosecutions against any person for anything done in pursuance of this Act shall be commenced within 2 months after the act complained of was committed, and not otherwise.”  It is common ground that the acts complained of in this proceeding were done in pursuance of the Act.

1. The joinder of the proposed defendants would appear to be appropriate, pursuant to r9.06(b)(i), on the grounds that it is necessary to ensure that all questions in the proceeding are completely and effectively determined and adjudicated.  It was not suggested to the contrary, although it was submitted on behalf of the defendant that the joinder would complicate and protract the proceeding and the plaintiffs delay should militate against allowing the joinder.  These submissions assume a general discretion to grant or refuse an application pursuant to r9.06(b)(i).  I doubt that there is such a broad discretion, but in any event, the complaint was made promptly and the delays have not been such as to occasion any apparent prejudice to the proposed defendants.

1. It is argued on behalf of the plaintiffs that section 162 does not apply to this proceeding by reason of the provisions of the Limitation Act.  That Act purports to consolidate the law relating to the limitation of actions and the plaintiffs causes of action are founded on tort, for which cause of action there is a limitation period of 3 years.

1. The plaintiffs sought to derive some support from the second reading speech of the Leader of the Opposition in the parliamentary debate on the Bill on 20 August 1981, in which he suggests that actions taken against public officials will fall under the general limitations section of the Act.

1. Section 5 of the Limitation Act provides “This Act does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to in section 3.” In Vershuuren v Toms Tyres 86 NTR 1, 7, the Full Court said: -

“Section 44 on its face, gives power to the court to extend a time limitation prescribed in ‘this or any other Act….’. This broadly expressed power should only be confined within narrow limits if there is a plain and unambiguous provision elsewhere in the Act which requires this to be done. We do not think that s.5 is such a provision. In our opinion the words of that section are concerned with the preservation of special limitation periods prescribed by enactments other than those referred to in section 3. The effect of section 5 is only that those limitation periods are preserved. The effect of the section is not to deprive s.44 of its efficacy to permit the making of orders for extensions of periods of time which are prescribed by the Limitation Act or any other Act. ”

The provisions of section 3 refer to certain Imperial Acts and Acts of the Territory and the State of South Australia that are set out in the Schedule.  These do not include the Police Administration Act.  It follows that the limitation period prescribed by section 162 remains in force.

1. The joinder of a party after the expiry of a relevant limitation period is usually not allowed because to do so would serve no useful purpose (see Creedon v Measey Investments 69 NTR 19, 29 - 30), but the plaintiffs are seeking an extension of time pursuant to section 44 of the Limitation Act. The proposed defendants argue that the provisions of section 44 do not apply, and that, in any event, it is not open to join the proposed defendants on this basis.

1. The argument is that section 162 of the Police Administration Act is mandatory in operation and prevails over the general power in section 44 of the Limitation Act. It is difficult to reconcile this with section 44(1), which provides that the court may extend time where “any other Act” prescribes a time limit for instituting an action, and section 5 of the Limitation Act, as construed in Toms Tyres v Vershuuren. Section 6(3)(b) of the Limitation Act provides that the Act does not apply to a prosecution for an offence.

1. The proposed amended statement of claim includes a claim for an extension of time, although equivocally expressed, in that it is made “if necessary”. Section 44 of the Limitation Act does not require that an application for an extension of time be made prior to the institution of proceedings, and section 44(4) provides that an action may be instituted in the normal manner, but the process by which the action is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to the section. Section 44(5) provides that proceedings under section 44 may be determined at any time before or after the close of pleadings. There was no argument as to the sufficiency of the endorsement, but, insofar as it may be deficient, it may easily be rectified (see O.36 and CTG v Yamamori (1992) 5 NTSC 2098,2110).

1. It remains open for the plaintiffs to bring an application for an extension of time. No particulars have been provided as to the basis for this application, but it is not constrained by the requirements of section 44(3)(b) because that sub-section only applies to limitation periods prescribed by the Act (see Danae Investments v MacIntosh Nominees 11 ACSR 523,532 - 533). In these circumstances, it is not possible to conclude that the joinder would serve no useful purpose. Some assistance may be derived from Kingston Earthworks v Iles (1997) 6 TAS R 433, which relates to the rule in Weldon v Neal, now abolished in the Northern Territory, but the principle is the same.

1. There was no argument as the proposed amended statement of claim.  Apart from the joinder of the proposed defendants, it also raises new causes of action.  The rule in Weldon v Neal has been abrogated by section 48A of the Limitation Act.  Notwithstanding the expiry of a relevant limitation period, the Court may allow an amendment if it is satisfied that no other party would be prejudiced (see also r36.01(6)).  No such prejudice is apparent here.

1. It will be ordered that the prospective defendants be added as parties and the plaintiffs be granted leave to file and serve an amended statement of claim in the terms of the document annexed to the affidavit of Alison Emily Hanley sworn on 31 March 2003.

1. The parties all sought costs.  The defendant and the proposed defendants argue that the plaintiffs are seeking an indulgence and therefore should pay costs in any event. However, the plaintiffs were not aware of the names of the proposed defendants until after the period prescribed by section 162 had expired, which made this application necessary.  The defendant and the proposed defendants acted reasonably in defending this application and there is no reason to order otherwise than is provided by r63.18.  The defendant is entitled to the costs of, and occasioned by, the amendments to the statement of claim, and costs thrown away, by reason of r63.11(7).

________________________________