Laws v Web Scaffolding
[2010] ACTCA 3
•23 February 2010
SHANE MICHAEL LAWS v WEB SCAFFOLDING PTY LTD
[2010] ACTCA 3 (23 February 2010)
APPEAL – whether extension of time should be granted
LIMITATION OF ACTIONS – personal injury – limitation period expired – proceedings struck out – onus on plaintiff to demonstrate just and reasonable to extend time – defendant bears evidential onus to establish actual prejudice if wishing to rely on actual prejudice
Limitation Act 1985 (ACT), ss 11, 36
Court Procedures Rules 2006 (ACT), r 75
Sessions v Phengsiaroun [2008] ACTSC 132
Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 16 – 2009
No. SCC 520 of 2007
Judges: Higgins CJ, Refshauge and North JJ
Court of Appeal of the Australian Capital Territory
Date: 23 February 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 16 - 2009
) No. SCC 520 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SHANE MICHAEL LAWS
Appellant
AND:WEB SCAFFOLDING PTY LTD
ACN 069 023 392
Respondent
ORDER
Judges: Higgins CJ, Refshauge & North JJ
Date: 23 February 2010
Place: Canberra
THE COURT ORDERS THAT:
The decision of the primary judge of 10 July 2009 be set aside and the decision of the Master of 5 June 2009 be restored including the order as to costs.
The defendant pay the plaintiff’s costs of the appeal to the primary judge and to this Court.
IN THE SUPREME COURT OF THE ) No. ACTCA 16 - 2009
) No. SCC 520 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SHANE MICHAEL LAWS
Appellant
AND:WEB SCAFFOLDING PTY LTD
ACN 069 023 392
Respondent
Judges: Higgins CJ, Refshauge and North JJ
Date: 23 February 2010
Place: Canberra
REASONS FOR DECISION
THE COURT:
This was an application for leave to appeal from a decision of the primary judge handed down on 10 July 2009. His Honour allowed an appeal from a decision of Master Harper who, on 5 June 2009, had ordered that the time for the plaintiff (appellant) to commence proceedings for damages for personal injury be extended to 1 August 2007. Leave is required for the plaintiff to appeal against the primary judge’s orders upholding that appeal and dismissing the application for extension of time.
The originating claim was filed on 1 August 2007. It alleged that the plaintiff suffered injury at work in consequence of the negligence of his employer. That injury occurred on or about 29 January 2001. It followed that the defendant could choose to plead a defence pursuant to s 11 Limitation Act 1985 (ACT). It did so on 5 December 2007.
Section 36 of that Act confers a discretion on the court to extend the period of limitation “if it decides that it is just and reasonable to do so”.
No further step was taken in the proceedings until 16 January 2009. On 10 December 2008 the proceedings had, pursuant to r 75 of the Court Procedures Rules 2006 (ACT), been struck out. On 20 January 2009, application was made to reinstate the proceedings.
In support of that application, Mr Little, the plaintiff’s solicitor, deposed that he had received instructions to act for the plaintiff in this matter on 9 February 2005.
On 10 November 2008, Mr Little took instructions concerning extension of time to commence proceedings should the reinstatement application succeed.
PROCEEDINGS BEFORE THE MASTER
The application to extend time was filed in court on 17 April 2009.
The Master heard those applications that day. It was agreed by the parties that the proceedings should be reinstated and the Master so ordered.
Mr Little gave evidence affirming that he first took instructions on 9 February 2005. He was aware the accident took place on 29 January 2001 and did advise the plaintiff of the six year limitation period. He could not recall if thereafter he reminded the plaintiff of that. It was not clear at that time nor for some time thereafter that the plaintiff wished to assert his common law rights. He made up his mind to do so, it seems, following a 2007 CT scan which revealed “pathology” in his back.
There was no assertion on behalf of the defendant of any specific prejudice flowing from the delay. The circumstances of the accident and the plaintiff’s ongoing pathology had been monitored by the employer’s workers compensation insurer since shortly after the accident.
Mr Pilkinton, for the defendant, whilst conceding that ongoing scrutiny, submitted that the insurer, at the latest after seven years from the date of the accident, was entitled to assume that no action was likely, taking account of the fact that an originating process was good for service for 12 months after issue. It was not apparent that there was a viable common law claim. Further, the delay made it less practicable to explore the causal link between the plaintiff’s current condition and the original accident.
The application for extension of time was made under s 36 of the Limitation Act.
On 5 June 2009, the Master handed down a decision granting the extension of time sought.
The plaintiff explained his delay in pursuing the matter as arising “from a combination of factors including my pursuit of my career, my remaining optimism that my pain would go away and my commitment to my family”.
There was no explanation for the delay during 2008.
Once the action was struck out on 6 December 2008 pursuant to Rule 75(2) of the Court Procedures Rules, the solicitors for the parties agreed that the plaintiff should not seek an extension of time until the matter was reinstated.
The Master noted that, up to February 2005, the plaintiff took no action as he believed the injuries to have been more minor than they turned out to be. That explanation, the Master accepted, was reasonable. The solicitors also then put the insurer on notice that a common law claim was in contemplation.
However, nothing happened promptly thereafter. The Master found that delay to be “extraordinary”. Nor did the defendant’s solicitors do anything to progress the matter despite their awareness that proceedings had been commenced.
His Honour appropriately referred to prior authority particularly Sessions v Phengsiaroun [2008] ACTSC 132.
In consideration of the factors in favour of and adverse to the plaintiff, the Master found that:
23 …[t]he considerations to be taken into account on the present application are finely balanced. The explanations for the various delays are not particularly persuasive. On the other hand, notwithstands the general presumption that delay inevitably leads to some prejudice, I am not satisfied that there is likely to be prejudice to any significant degree caused to the defendant or the insurer if an extension is granted. I am not satisfied that the delay has resulted in the defendant losing its right to a fair trial.
24 On balance, it seems to me that the justice of the case favours the grant of the extension of time which is sought.
In the result, the plaintiff was ordered to pay the defendant’s costs.
PROCEEDINGS BEFORE THE PRIMARY JUDGE
The primary judge heard an appeal against that decision of the Master on 9 July 2009. Mr Pilkinton, for the defendant, submitted that the Master had failed to appreciate that the plaintiff had been informed of the limitation period. That was, relevantly, an error enabling the discretion to extend time to be re-exercised.
There was, Mr Pilkinton submitted, significant prejudice to the defendant. The lapse of four years had deprived the insurer of the need to examine the ongoing progress of the disabilities now complained of.
His Honour commented to Mr Crowe SC (for the plaintiff) at the outset of his submissions that:
I’m finding it difficult to see in the Master’s decision adequate recognition of the fact that your client bore the onus to justify an extension of time.
That had not been a point relied on by the defendant’s counsel.
Mr Crowe pointed out that the Master had relied on both Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541 and Sessions v Phengsiaroun, in each case the point had been affirmed that an applicant bore the legal onus to justify the grant of an extension of time.
His Honour then raised a question as to whether the plaintiff needed to establish a “satisfactory explanation” for the delay in order to persuade the court that it was just and reasonable to extend time. That issue was addressed by counsel.
The primary judge reserved his decision until 10 July 2009. In that decision, his Honour noted that:
[5]On 20 January 2009 an application was made to reinstate the proceedings. However, the proceedings which the plaintiff had purported to commence were already statute barred by s 11 of the Limitation Act. Section 36 of the Limitation Act provides that a court may extend a limitation period if it decides that it is just and reasonable to do so. The court is directed to pay regard to all the circumstances of the case including a number of specified factors. Those specified factors in turn include, as is usual, the length of, and reason for, delay on the part of the plaintiff and the extent to which there is likely to be prejudice to the defendant if an extension of time is granted.
[6]As no extension of that period had been granted pursuant to s 36 of the Limitation Act, the defence relying on the limitation period was irresistible. Unless an extension of time was granted there would be no competent proceeding upon which Rule 75 could operate or to which the application for reinstatement of the proceedings filed on 20 January 2009 could relate.
[7]However, notwithstanding an intimation from the defendant that the applicant should amend the application for reinstatement to include an application to extend the limitation period no such step appears to have been taken until the application for reinstatement was heard by Master Harper on 17 April 2009, at which time also he granted leave to file in court an application for an extension of the limitation period. By this time more than 8 years had passed since the injury upon which the plaintiff wished to sue.
His Honour then noted that Master Harper had found the explanation for delay unsatisfactory and yet had granted the extension sought.
There was, his Honour concluded, an error of principle reflected in the passages extracted at [20] above. That was that an onus was imposed on the defendant:
[17]With respect, accepting these passages as a reliable indication of the analysis undertaken, it seems to me that the plaintiff’s application was not assessed by reference to the onus which he carried. Rather, an onus was imposed on the defendant. That was an error of principle. The defendant did not bear the onus to defeat the application. There was, in accordance with Brisbane South Regional Health Authority, a clear and positive onus on the plaintiff to justify an extension of time.
Further, his Honour concluded, the plaintiff had not:
[21]… succeeded in showing that the defendant would not be prejudiced by the delay for which the plaintiff was responsible.
THE ONUS OF PROOF ISSUE
On the hearing of the matter before this Court, Mr Crowe SC submitted that the primary judge had erred in not adverting to the evidential onus as distinct from the legal onus in relation to the issue of prejudice to the defendant by reason of the delay.
The true position, Mr Crowe SC submitted, was that the defendant bore an evidential onus to establish any actual prejudice. It had not discharged that onus. He conceded that presumptive prejudice might in some cases outweigh the prejudice to the plaintiff in being unable to pursue an otherwise substantial claim for damages, notwithstanding an absence of proved actual prejudice.
Both parties agreed that the overall onus is on the plaintiff to demonstrate that it is just and reasonable to extend time. That onus remains with the plaintiff throughout. If a defendant, however, wishes to rely on actual prejudice then he, she or it bears the onus of adducing or pointing to evidence sufficient to establish that fact.
That proposition was unanimously supported by the High Court in Taylor’s case (supra). In that case, Toohey and Gummow JJ explained (at 547) the evidentiary onus thus:
“[t]here is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant”.
Kirby J explained the evidentiary onus in more detail, stating (at 566-7) that:
“…because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the "evidentiary onus" resting on a proposed defendant in relation to such an issue. The Court of Appeal held, and the appellant accepted, that it bore such an "evidentiary onus"
More broadly, Taylor’s Case stands for the principle that the critical question is whether the plaintiff has shown that, notwithstanding the delay, a fair trial is possible (see Toohey and Gummow JJ, 548; McHugh J, 555).
His Honour’s failure to distinguish between the legal onus and the evidential onus was plainly at variance with Taylor’s case. For the court to have found the existence of actual prejudice, it fell to the defendant to adduce evidence of such prejudice. This does not amount to a reversal of the legal onus. No error can be found in the Master’s reasoning at [20] above, or with the finding that the defendant had failed to meet its evidentiary onus. Rather, the Master’s reasoning was, rightly, directed to the primary issue; namely, whether or not, in spite of the delay, a fair trial was possible.
That being so, it follows that the decision of the Master should not have been disturbed by his Honour.
FURTHER ISSUES FOR CONSIDERATION
The plaintiff also raised a number of further arguments which, it contended, warranted overturning the judgment of the primary judge.
The plaintiff took issue with the ventilation before the primary judge of possible other causes for the plaintiff’s ongoing disabilities which had not been raised before the Master as a potential issue. As the appeal is allowed on the onus issue, no findings on this issue are required.
The plaintiff contended that his Honour erred by considering proof of a satisfactory explanation for the delay to be an essential condition for the grant of an extension of time. It is common ground that s 36 Limitation Act does not make that consideration more than a matter to be taken into account.
As argument progressed it emerged that, although the primary judge had found error by the Master concerning the discussion between the plaintiff and his solicitor regarding the limitation period, his Honour had dismissed that issue as immaterial. Whilst the defendant sought to have the primary judge’s findings regarding the plaintiff’s awareness of the limitation period upheld, no notice of contention was filed challenging his Honour’s finding that the Master’s error was immaterial. Consequently, it is not open for determination in this Court.
It follows, as we announced on 6 November 2009, that the decision of the primary judge should be set aside and that of the Master restored including the order as to costs.
We ordered the defendant to pay the plaintiff’s costs of the appeal to the primary judge and to this Court.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 23 February 2010
Counsel for the Appellant: Mr R Crowe SC with Mr Hausfeld
Solicitor for the Appellant: Maliganis Edwards Johnson
Counsel for the Respondent: Mr S Pilkinton
Solicitor for the Respondent: DibbsBarker
Date of hearing: 6 November 2009
Date of reasons for decision: 23 February 2010
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