Ireland v Wightman

[2013] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

IRELAND v WIGHTMAN

[2013] SASCFC 116

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)

23 October 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

This is an application for permission to appeal against the judgment of a Judge of this Court under section 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). The Judge dismissed an appeal against the judgment of a Magistrate made on 13 December 2012, which granted an extension of time for the plaintiff, and respondent, to institute proceedings for injuries sustained pursuant to section 48 of the Limitation of Actions Act 1936 (SA). Whether an issue of public importance arises concerning the meaning of subsection 48(3) of the Limitations of Actions Act.

Held:

(1)  Permission to appeal granted (at [11]).

(2) An issue of public importance arises concerning the interpretation of section 48 of the Limitations of Actions Act (at [10]).

Supreme Court Act 1935 (SA) s 50 and s 50(4)(a)(ii); Limitation of Actions Act 1936 (SA) s 48, s 48(3a)(a) and s 48(3a)(b); Law Reform (Ipp Recommendations) Act 2004 (SA), referred to.
Crawford Earthmovers Pty Ltd v Fitzsimmons [1972] 4 SASR 116; Bamford v Pozenel [2001] SASC 414; Stokolosa v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334; Politharis v Westpac Banking Corporation (2008) 258 LSJS 269, considered.

IRELAND v WIGHTMAN
[2013] SASCFC 116

Full Court:      Gray, Anderson and Stanley JJ

THE COURT.

1. By notice of appeal dated 27 September 2013, the appellant seeks permission to appeal against the judgment of a Judge of this Court delivered on 6 September 2013 in Ireland v Wightman.[1] The appellant seeks permission to appeal under section 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) as the decision the subject of the proposed appeal was given on an appeal from the Magistrates Court.

   [1]    Ireland v Wightman [2013] SASC 139.

2. The Judge dismissed an appeal against the judgment of a Magistrate made on 13 December 2012, which granted an extension of time for the plaintiff to institute proceedings for injuries sustained pursuant to section 48 of the Limitation of Actions Act 1936 (SA). The application for extension proceeded as a preliminary question on the application of the respondent. The Magistrate found that the facts learned by the respondent from reading a report from a psychologist formed an “essential element of the plaintiff’s cause of action” within the meaning of subsection 48(3a)(a). The Magistrate held that these facts would have “a major significance on the assessment of the plaintiff’s loss” within the meaning of subsection 48(3a)(b) and exercised the discretion to extend time.

3. On appeal, the Judge overturned the finding that facts in the report formed an essential element of the respondent’s cause of action but upheld the finding that the report would have a major significance on the assessment of the plaintiff’s loss and did not disturb the exercise of discretion.[2]

   [2]    Ireland v Wightman [2013] SASC 139, [123]-[124].

4. This Court’s practice is to grant permission to appeal only if a question of general principle arises.  Usually the Court considers whether there is reason to doubt the correctness of the decision under consideration.  According to that practice, a second appeal from a single judge to the Full Court should be restricted to cases which raise a question of general principle of importance.[3]  That principle is satisfied where the Full Court is requested to express a definitive view so that the principle has application well beyond the case under consideration.[4]  However, ultimately, the court must act in the interests of justice.

   [3]    Crawford Earthmovers Pty Ltd v Fitzsimmons [1972] 4 SASR 116, 122.

   [4]    Bamford v Pozenel [2001] SASC 414, [27].

5. The judgment on appeal turns upon the proper construction of provisions that appear to limit the jurisdiction to grant an extension of time in circumstances where a plaintiff relies upon the ascertainment of a material fact for the purpose of an application to extend time. Section 48 of the Limitation of Actions Act is of particular relevance.  That section provides:

   (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.

   (3a)A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—

   (a)it forms an essential element of the plaintiff's cause of action; or

   (b)it would have major significance on an assessment of the plaintiff's loss.

   Example—

   In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes—

   (a)a substantial reduction of the plaintiff's capacity to work; or

   (b)that the plaintiff will require substantially more medical care than previously expected; or

   (c)a significant loss of expectation of life.

   (3b)In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—

   (a)the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and

   (b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and

   (c)the nature and extent of the plaintiff's loss and the conduct of the parties generally; and

   (d)any other relevant factor.

   (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.

6. Subsection 48(3a) of the Limitation of Actions Act was inserted into the Act as part of the reforms brought about by the Law Reform (Ipp Recommendations) Act 2004 (SA). These reforms introduced, inter alia, a threshold requirement for a fact to qualify as material to a plaintiff’s case so as to enliven the jurisdiction for a court to extend time under subsection 48(3)(b) of the Act.  These provisions came into force in respect of causes of action accruing after 2004.  Aside from the decision under appeal, there does not appear to be any decision that considers the purport or effect of the new subsections 48(3a) or 48(3b) in the Limitation of Actions Act.[5] 

   [5]    The subsection was considered in Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; affirmed on appeal (2009) 262 LSJS 317, but no matters of principle emerge.

7. The appellant seeks to challenge the meaning given to subsection 48(3a) by the Judge. In particular, the meaning of the requirement that a fact newly ascertained must have “a major significance on the assessment of the plaintiff’s loss” is in contention.

8. The appellant submits that the evidence adduced on the application for permission establishes that the operation of the amendments introduced by the Law Reform (Ipp Recommendations) Act, particularly the meaning of subsection 48(3a)(b), are matters of considerable public importance. It is contended that these matters raise questions of general principle that will have application well beyond the case under consideration, especially in the realms of personal injury matters.

9. It would be beneficial for this Court to consider the effect of subsections 48(3a) or 48(3b) of the Limitation of Actions Act, in particular, the meaning of “a major significance on the assessment of the plaintiff’s loss”.

10. We consider that an issue of public importance arises concerning the interpretation of section 48 of the Limitations of Actions Act.

11. In the circumstances, permission to appeal is granted.