Martinus v Kidd

[1982] HCA 64

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ.

MARTINUS v. KIDD

(1982) 150 CLR 648

11 November 1982

Limitation of Actions

Limitation of Actions—Personal injuries—Limitation period of three years—Power to extend time to bring action where material facts not known before two years after accrual of cause of action—Action against personal three years after cause of action accrued—Survival of liability—Statutory limitations—Limitation of Actions Act 1958 (Vict.), ss. 5(6), 23A—Administration and Probate Act 1958 (Vict.), s. 29(3).

Decisions

November 11.
The following written judgments were delivered:-
GIBBS C.J., MURPHY AND WILSON JJ. This is an appeal from a decision of the Full Court of the Supreme Court of Victoria. (at p649)

2. The appellant was on 4 April 1977 injured in a collision between two motor vehicles. On 20 March 1980 she issued a writ out of the Supreme Court of Victoria against Richard Maxwell Kidd and one Elliott, the drivers of the respective vehicles, claiming damages for the personal injuries that she sustained in the collision as a result of the negligence of the drivers. However Mr. Kidd had died on 7 November 1978, and letters of administration had been granted to Lois Eunice Kidd, the present respondent, on 30 October 1979. Those facts became known to the appellant's solicitors on 9 April 1980, and to the appellant herself on about 29 May 1980. After some interlocutory proceedings taken before a Master in August 1980, the appellant on 30 September 1980 issued a summons seeking an order under s. 23A of the Limitation of Actions Act 1958 (Vict.), as amended ("the Limitation of Actions Act") extending the time within which she might institute proceedings against the respondent as administratrix of the estate of Richard Maxwell Kidd. The application came before King J., who held that in the circumstances he had no power to grant it. That decision was affirmed by the Full Court by a majority (McInerney and Jenkinson JJ., Anderson J. dissenting). The present appeal is from that decision. (at p650)

3. It is provided by s. 29(1) of the Administration and Probate Act 1958 (Vict.), as amended ("the Administration and Probate Act") that, subject to the provisions of that section and to a proviso which is immaterial for present purposes, on the death of any person after 7 December 1942 all causes of action subsisting against or vested in him shall survive against, or (as the case may be) for the benefit of his estate. Section 29(3) of that Act then provides as follows:

"Where a cause of action in tort survives against the estate of a deceased person pursuant to the provisions of sub-section (1) of this section no proceedings in respect of the cause of action may be maintained against the estate of the deceased person except proceedings- (a) that were commenced against the deceased before his death and were pending and not barred at the date of his death; (b) that are commenced against his personal representative after his death in the period within which those proceedings might have been commenced against him if he had lived; or

(c) that were not barred at the date of his death and are commenced against his personal representative within six months after his personal representative takes out representation." (at p650)

4. No proceedings claiming damages for the appellant's injuries were commenced against Mr. Kidd before his death. The case is therefore not within par. (a) of s. 29(3). The question that then arises is whether par. (b) of s. 29(3) is applicable. Section 5(6) of the Limitation of Actions Act provides that no action for damages for (inter alia) negligence, where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, shall be brought after the expiration of three years after the cause of action accrued. That period of three years elapsed on 4 April 1980 and no proceedings had been commenced against the respondent before that date. It is at this point that the provisions of s. 23A of the Limitation of Actions Act fall for consideration. That section, so far as it is material, provides as follows:

"(1) This section applies to a cause of action in respect of personal injuries whether or not the cause of action accrued or is claimed to have accrued before the commencement of the Limitation of Actions (Personal Injuries) Act 1972. (2) Where on an application to a court by or on behalf of a person (in this section called 'the claimant') claiming to have a cause of action for damages for negligence, nuisance or breach of duty...the damages claimed by the claimant consist of or include damages in respect of personal injuries to any person and it appears to the court that- (a) any of the material facts relating to the cause of action (i) was not known to the claimant; and (ii) would not have been known to the claimant if he had taken all reasonable steps in the circumstances of the case to ascertain all the material facts- until a date later than two years after the cause of action accrued...and (b) there is evidence to establish the cause of action apart from any defence founded on the expiration of the period of three years after the cause of action accrued- the court may in its discretion order that the period within which an action on the cause of action may be brought be extended so that it expires at the end of one year after the date referred to in paragraph (a) or, provided that application was made to a court before the expiration of one year after that date, on such later date, if any, as is specified in the order. (3) For the purposes of sub-section (2) 'material facts' in relation to a cause of action include - ... (c) the identity of the person whose wrongful act, neglect or default constituted the negligence nuisance or breach of duty; (d) the identity of the person against whom the cause of action lies;

..." (at p651)

5. The argument submitted on behalf of the appellant was that s. 23A applies to allow an extension of the limitation period provided by s. 29(3)(b) of the Administration and Probate Act. The submission was that if Mr. Kidd had lived, the proceedings might have been commenced against him not only within the period of three years mentioned in s. 5(6) of the Limitation of Actions Act, but also within the extended period allowed by the court under s. 23A(2) of the latter Act. Further, it was said, the period might be extended in the present case, because one of the material facts relating to the cause of action - viz. the identity of the administratrix against whom the cause of action lies (see s. 23A(3)(d)) - was not known to the appellant until a date later than two years after the cause of action had accrued. We cannot accept this submission. We shall assume, although we need not decide, that "the period within which those proceedings might have been commenced", within the meaning of s. 29(3)(b) of the Administration and Probate Act, includes the period as extended under s. 23A. However, there was no ground on which the period might have been extended had Mr. Kidd lived. While he remained alive, the appellant knew all the material facts, including the identity of the person against whom the cause of action lay, who, during his lifetime was Mr. Kidd. So far as the evidence shows the period within which the proceedings might have been commenced against Mr. Kidd if he had lived was the period of three years prescribed by s. 5(6) of the Limitation of Actions Act. It is not possible, for the purpose of deciding what was the period within which the proceedings might have been commenced against Mr. Kidd if he had lived, to make the assumption that he had died. The period mentioned in s. 29(3)(b) expired on 4 April 1980. The case therefore does not come within s. 29(3)(b) of the Administration and Probate Act. (at p652)

6. The appellant made the alternative submission that s. 23A(2) of the Limitation of Actions Act applies of its own force so as to enable the court to extend the time mentioned in s. 29(3)(c) of the Administration and Probate Act. The case does not fall within s. 29(3)(c) if that section stands alone and is unaffected by s. 23A(2), because no proceedings were commenced against the personal representative (the respondent) within the period of six months after the respondent took out representation - a period which expired on 30 April 1980. However the submission was that the power given by s. 23A(2) of the Limitation of Actions Act is not limited to the extension of the periods mentioned in that Act, but enables the court to extend the period of six months mentioned in s. 29(3)(c) of the Administration and Probate Act. We were informed that an argument was addressed to King J. in support of this submission, but the question was not argued in the Full Court, although the notice of appeal to that Court raised it. Since the matter was raised at first instance, no objection can be taken to the point being taken again in this Court. (at p652)

7. Section 23A of the Limitation of Actions Act applies to any cause of action in respect of personal injuries: see sub-s. (1). The opening words of sub-s. (2) are wide enough to include the case in which a tortfeasor has died and the cause of action has survived against his estate. Having regard to the beneficial operation which the section is intended to have, it should not be read down to limit its application to the extension of the limitation periods provided by the Limitation of Actions Act itself, unless there appears some indication that the legislature so intended. In argument Mr. Berkeley for the respondent suggested a number of reasons why such an intention should be attributed to the legislature. In the first place he referred to s. 33 of the Limitation of Actions Act which provides as follows:

"The periods of limitation prescribed by this Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment including, without affecting the generality of the foregoing, the provisions of section twenty-nine of the Administration and Probate Act 1958 and section twenty of the Wrongs Act 1958."

That section expressly excludes the application of "the periods of limitation prescribed by" the Limitation of Actions Act to actions to which s. 29 of the Administration and Probate Act applies, but it is significant that the section does not provide that the Limitation of Actions Act itself shall have no application to such actions. The section stands in contrast to s. 32 of the Limitation Act 1939 (U.K.) which was considered in Airey v. Airey (1958) 2 QB 300 , and which provided that that Act should not apply to any action for which a period of limitation was prescribed by another enactment. It would have been very easy for the legislature to have confined the power given by s. 23A to the extension of limitation periods prescribed by the Limitation of Actions Act, but it has not done so. Section 33 renders inapplicable to an action of the present kind any limitation period prescribed by the Limitation of Actions Act, but it does not prevent s. 23A from applying directly to enable the court to extend the period (six months after representation was taken out) fixed by s. 29(3)(c) of the Administration and Probate Act as that within which an action may be brought against the personal representative. (at p653)

8. Then it was submitted on behalf of the respondent that the period of "two years after the cause of action accrued" which is mentioned in s. 23A(2)(a) of the Limitation of Actions Act must be a period commencing on the date on which the cause of action accrued against the personal representative. If that were so, the section would not be applicable, for all material facts became known to the appellant before two years had elapsed from the date on which the respondent was appointed personal representative. However, under s. 29 no new cause of action comes into being against the estate of the deceased tortfeasor; the existing cause of action survives: see Airey v. Airey (1958) 2 QB, at p 308 . The period of two years mentioned in s. 23A(2)(a) commences when the cause of action accrues against the tortfeasor who later dies. (at p654)

9. The respondent further relied on the words "any defence founded on the expiration of the period of three years after the cause of action accrued" in s. 23A(2)(b). Those words do of course refer to the limitation period prescribed by s. 5(6) of the Limitation of Actions Act, which applies in the case where the tortfeasor remains alive, and it was submitted that it was significant that the section does not refer to the other limitation periods fixed by s. 29(3) of the Administration and Probate Act. However, the commencing words of s. 29(3) indicate that a cause of action may survive under s. 29(1) notwithstanding that no proceedings may be maintained in respect of it. The fact that the proceedings were not brought within the time required by pars. (a), (b) and (c) of s. 29(3) does not mean that there is no evidence to establish a cause of action; it means that the proceedings cannot be maintained against the estate, unless of course the time can be extended. The commencing words of s. 23A(2)(b) do not provide a sufficient indication that the section is inapplicable to an action of the present kind. (at p654)

10. Finally it was said that a proceeding under s. 23A would itself be a proceeding in respect of the cause of action which survives against the estate, and should thus itself be brought within the times provided by s. 29(3). We doubt if the words of s. 29(3) are wide enough to include proceedings brought to obtain an extension of time, but if they are, a sufficient answer to the respondent's submission is that the two sections would then be inconsistent and s.23A of the Limitation of Actions Act, which came into force in 1972, would prevail over s. 29(3) of the Administration and Probate Act, which was enacted in 1965. (at p654)

11. None of these arguments has convinced us that the general words of sub-s. (1), and those commencing sub-s. (2), of s. 23A should be given a restricted meaning. No doubt the position of s. 23A in the Limitation of Actions Act, the provisions of s. 4, which states that the provisions of Pt I (which contains the sections prescribing periods of limitation) have effect subject ot Pt II (which provides for the extension of limitation periods) and the other matters which we have mentioned all suggest that the draftsman of s. 23A had uppermost in mind the extension of the limitation periods prescribed by Pt I. But the wide words used in s. 23A, and the striking departure made in s. 33 from the English model, lead to a different conclusion. Of course there are good reasons for strictly limiting the period within which proceedings may be brought against the estate of a deceased person. However, the same reasons do not exist where the proceeding is in substance against an insurer and in any case the discretion conferred by s. 23A(2) enables the court to refuse to grant an extension of time if that course is necessary. (at p655)

12. We have not overlooked that in 1972 s. 20 of the Wrongs Act 1958 (Vict.) which deals with actions under the Victorian equivalent of Lord Campbell's Act, was also amended by giving the court a power of extension similar to that conferred by s. 23A of the Limitation of Actions Act. It may therefore be clear that s. 23A does not apply to s. 20 of the Wrongs Act, but that does not necessarily entail the consequence that it does not apply to s. 29(3) of the Administration and Probate Act. (at p655)

13. The short question of construction that arises in the present case is by no means free from difficulty, but we conclude that the court did have power under s. 23A of the Limitation of Actions Act to extend the period of six months fixed by s. 29(3)(c) of the Administration and Probate Act. Mr Berkeley submitted that if we reached that conclusion we should send the matter back to the Supreme Court for further consideration. However it seems to us that once it is concluded that the conditions of the section are satisfied, there can be no reason, in the circumstances of the present case, to refuse to exercise the discretion in favour of the appellant. (at p655)

14. We would allow the appeal, would set aside the judgment of the Full Court and in lieu thereof order that the appeal to that court be allowed. For the order made by King J., we would substitute an order that it be ordered pursuant to s. 23A of the Limitation of Actions Act 1958 (Vict.), as amended, that the period within which an action may be commenced by the appellant under s. 29(3)(c) of the Administration and Probate Act 1958 (Vict.), as amended, against the respondent be extended so that it expires two months after the judgment of this Court is pronounced. We would order that the appellant pay the costs of the application to King J., but that the respondent pay the appellant's costs of the appeals to the Full Court and to this Court. (at p655)

MASON J. In what circumstances can an extension of time be granted in respect of the limitation period for an action in Victoria commenced out of time against the personal representative of a deceased tortfeasor? That is the sole issue which the Court needs to resolve here. (at p655)

2. The appellant brought an action for negligence alleging personal injury arising from a collision between two cars on 4 April 1977. The action was brought against one Elliott, the driver of the car in which the appellant was travelling as a passenger, and one R. M. Kidd, the driver of the other car. The writ was issued against these two defendants on 20 March 1980. Meanwhile there had been a most significant occurrence. Kidd had died on 7 November 1978 and letters of administration of his estate had been granted to the respondent on 30 October 1979. Unfortunately the appellant's solicitors were unaware of this occurrence until 9 April 1980, nearly three weeks after the writ was issued. They became aware of Kidd's death after an attempt was made to serve a copy of the writ on him. The appellant herself did not learn of Kidd's death and the appointment of Kidd's administratrix until her solicitors informed her on 29 May 1980. (at p656)

3. On 15 August 1980 the appellant made an application to Master Bergere of the Supreme Court of Victoria to amend the writ by striking out Kidd and adding his administratrix. The Master struck out Kidd but refused to add the administratrix because the limitation period of three years prescribed by s. 5(6) of the Limitation of Actions Act 1958 (Vict.), as amended ("the Limitation Act") had expired on 4 April 1980. (at p656)

4. The appellant then applied for an order under s. 23A of the Limitation Act extending the time within which she could institute proceedings against the administratrix. King J. refused the application, holding that s. 29 of the Administration and Probate Act 1958 (Vict.), as amended ("the Administration Act") governs the time within which a cause of action in tort may be maintained against the estate of a deceased person and that, as no provision is made in s. 29 for an extension of that time, s. 23A of the Limitation Act is inapplicable. An appeal to the Full Court was dismissed by majority (McInerney and Jenkinson JJ., Anderson J. dissenting). From that decision the appellant now appeals to this Court. (at p656)

5. Section 5(6) of the Limitation Act provides that no action for damages for, inter alia, negligence, where the damages claimed include damages in respect of personal injuries, shall be brought after the expiration of three years after the cause of action accrued. But s. 5(6) is contained in Pt I and s. 4 provides that the provisions of that Part have effect subject to the provisions of Pt II. (at p656)

6. Part II contains s. 23A. That section provides, inter alia:

"(2) Where on an application to a court by or on behalf of a person (in this section called 'the claimant') claiming to have a cause of action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) the damages claimed by the claimant consist of or include damages in respect of personal injuries to any person and it appears to the court that - (a) any of the material facts relating to the cause of action - (i) was not known to the claimant; and (ii) would not have been known to the claimant if he had taken all reasonable steps in the circumstances of the case to ascertain all the material facts) - until a date later than two years after the cause of action accrued or is claimed to have accrued or, if the claimant was under a disability when the cause of action accrued or is claimed to have accrued, two years after the claimant ceased to be under the disability, whichever last occurred; and (b) there is evidence to establish the cause of action apart from any defence founded on the expiration of the period of three years after the cause of action accrued - the court may in its discretion order that the period within which an action on the cause of action may be brought be extended so that it expires at the end of one year after the date referred to in paragraph (a) or, provided that application was made to a court before the expiration of one year after that date, on such later date, if any, as is specified in the order. (3) For the purposes of sub-section (2) 'material facts' in relation to a cause of action include - (a) the fact of the occurrence of negligence, nuisance or breach of duty on which the cause of action is founded; (b) the nature of the wrongful act, neglect or default that constituted the negligence, nuisance or breach of duty; (c) the identity of the person whose wrongful act, neglect or default constituted the negligence nuisance or breach of duty; (d) the identity of the person against whom the cause of action lies; (e) the fact that the negligence, nuisance or breach of duty caused personal injury; (f) the nature of the personal injury so caused; (g) the extent of the personal injury so caused; and

(h) the extent to which the personal injury was caused by the negligence, nuisance or breach of duty." (at p657)

7. The critical provision is s. 33, which provides:
"The periods of limitation prescribed by this Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment including, without affecting the generality of the foregoing, the provisions of section twenty-nine of the (Administration Act) and section twenty of the Wrongs Act 1958." (at p657)

8. In the Administration Act s. 29(1) states that on the death of any person all causes of action subsisting against him shall survive against his estate. Section 29(3) then goes on to say:

"Where a cause of action in tort survives against the estate of a deceased person pursuant to the provisions of sub-section (1) of this section no proceedings in respect of the cause of action may be maintained against the estate of the deceased person except proceedings - (a) that were commenced against the deceased before his death and were pending and not barred at the date of his death; (b) that are commenced against his personal representative after his death in the period within which those proceedings might have been commenced against him if he had lived; or

(c) that were not barred at the date of his death and are commenced against his personal representative within six months after his personal representative takes out representation." (at p658)

9. The respondent, in submitting that there is no power in the present case to grant an extension pursuant to s. 23A of the Limitation Act, has two strings to her bow. She says, first, that the construction of the two statutes evinces an intention that s. 23A should not have any application to a case involving the survival of an action against a deceased estate. Secondly, she says that, even if s. 23A can apply to survival of actions, it is not brought into play in the particular circumstances of this case. (at p658)

10. The focal point of the first argument is s. 33 of the Limitation Act. That provision saves periods of limitation prescribed by other enactments. Section 23A enables the court in its discretion to order that a period of limitation be extended. Thus, once a period of limitation prescribed by s. 5(6) is extended by order of the court under s. 23A(2), the period of limitation fixed by s. 5(6) has effect, subject to the order under s. 23A(2). That, in my opinion, is the consequence of s. 4 when it provides that the provisions of Pt I have effect subject to the provisions of Pt II. Indeed, s. 4 seems to confine the consequences of an extension under s. 23A to the limitations prescribed by the Limitation Act. Although there is some difficulty in describing a period of limitation so extended by order under s. 23A as a period "of limitation prescribed by" the Limitation Act, I consider that the language of s. 33 is capable of application to such a situation and that it should be so applied, the object of the section being to preserve the integrity of limitation periods fixed by other statutes, including the Administration Act. It would indeed be an odd consequence if a period of limitation prescribed by s. 5(6) did not apply to an action governed by s. 29 of the Administration Act, but such a period of limitation once extended did so apply. (at p658)

11. I doubt whether this reasoning leads to the conclusion that s. 33 of the Limitation Act prohibits the application of s. 23A to an action governed by s. 29 of the Administration Act. But the reasoning indicates that the integrity of the period of limitation fixed by s. 29 of the Administration Act cannot be affected by an order extending time under s. 23A of the Limitation Act, except in so far as s. 29 by its own terms takes account of the making of such an order. (at p659)

12. True it is that the language of s. 23A is in general terms. The section speaks of any action for damages for negligence where the damages claimed include damages for personal injuries. Its application to a cause of action surviving against a deceased estate is not expressly excluded. The cause of action which survives against the estate is not a different cause of action from that which the plaintiff had against the deceased tortfeasor. It is the same cause of action. Nor is s. 23A expressly confined to extending the periods of limitation prescribed by the Limitation Act. Indeed, the section ". . . applies to a cause of action in respect of personal injuries whether or not the cause of action accrued or is claimed to have accrued before the commencement of the Limitation of Actions (Personal Injuries) Act 1972" (s. 23A(1)). (at p659)

13. Notwithstanding these considerations, my view is that s. 23A does not empower an extension of the times fixed by s. 29 of the Administration Act. Quite apart from the effect of s. 33, which has already been examined, the place of s. 23A in Pt II of the Limitation Act indicates that its function is related to the periods of limitation prescribed by that Act. The section immediately follows s. 23, the first provision in Pt II, which is specifically aimed at periods of limitation prescribed by the Limitation Act. (at p659)

14. The question which remains is whether the appellant's action was commenced within the time limited by s. 29(3)(b) of the Administration Act. Section 29(3)(b) enables proceedings in respect of a cause of action in tort surviving against a deceased estate pursuant to sub-s. (1) to be maintained against the estate of the deceased person, so long as the proceedings are commenced against the personal representative after the deceased's death in the period within which the proceedings might have been commenced against the deceased had he lived. The reference to "the period within which those proceedings might have been commenced against (the deceased) if he had lived" is apt in my view to signify the period of three years prescribed by s. 5(6) of the Limitation Act as it may be extended by order under s. 23A. (at p659)

15. However, I have some difficulty in accepting that s. 29(3)(b) is to be applied on the footing that the Court is entitled to decide whether any, and if so what, extension would have been granted had the plaintiff made application under s. 23A for an extension of time within which to bring his action against the deceased. But, assuming this to be so, there is here no basis for concluding that such an order would have been made. It is not suggested that such an order could have been made, the appellant's ignorance of the deceased's death having no relevance to an application for an extension of time within which to commence an action against the deceased. (at p660)

16. For these reasons I would dismiss the appeal. (at p660)

BRENNAN J. The appellant commenced an action in the Supreme Court of Victoria on 20 March 1980 claiming damages for personal injuries against two defendants, B. Elliott and Richard M. Kidd. By her statement of claim, she alleged that her injuries were caused by the negligence of the defendants in driving their respective motor cars when they came into collision on 4 April 1977. Unbeknown to the appellant, the defendant Kidd had died on 7 November 1978 and on 30 October 1979 letters of administration had been granted to his widow, Lois Eunice Kidd. On 15 August 1980, the appellant applied to the Master to strike the name of Richard M. Kidd out of the action, and that order was made. An application to substitute his personal representative failed before the Master because the period of limitation prescribed by s. 5(6) of the Limitation of Actions Act 1958 (Vict.) had expired. Application under s. 23A of that Act to extend the time within which proceedings might be instituted against Mrs. Kidd as administratrix of her late husband's estate was made to King J. who refused the application, holding that the relevant limitation period was to be found in s. 29(3) of the Administration and Probate Act 1958 (Vict.) and that the periods therein prescribed could not be extended pursuant to s. 23A of the Limitation of Actions Act. An appeal to the Full Court was dismissed. (at p660)

2. Section 29(1) of the Administration and Probate Act provides in familiar terms that all causes of action subsisting against a person who dies survive against his estate. But for that provision, the appellant's cause of action against Mr. Kidd would not have survived Mr. Kidd's death. Sub-section (3) of that section limits the time within which a cause of action in tort surviving against the estate may be maintained. That sub-section provides:
"Where a cause of action in tort survives against the estate of a deceased person pursuant to the provisions of sub-section (1) of this section no proceedings in respect of the cause of action may be maintained against the estate of the deceased person except proceedings -
(a) that were commenced against the deceased before his death and were pending and not barred at the date of his death; (b) that are commenced against his personal representative after his death in the period within which those proceedings might have been commenced against him if he had lived; or (c) that were not barred at the date of his death and are commenced against his personal representative within six months after his personal representative takes out representation." (at p661)

3. In the present case, par. (a) has no application: no proceedings were commenced against Mr. Kidd before his death. Paragraph (b) has no application: no proceedings were commenced against his personal representative before the expiration of three years after the cause of action accrued, that being the period within which proceedings might have been commenced against Mr. Kidd if he had lived (s. 5(6) of the Limitation of Actions Act). That period expired on 4 April 1980. If that period had been extended during Mr. Kidd's lifetime by an order of the court made pursuant to s. 23A, the extended period would have been the effective period of limitation, for s. 5(6) has effect subject to the provisions of Pt II and Pt II includes s. 23A (see s. 4). The extended period of limitation would then have been the period within which proceedings might have been commenced against Mr. Kidd if he had lived, and that extended period would have been the relevant period for the purposes of s. 29(3)(b) of the Administration and Probate Act. However, no order was made extending the time within which proceedings might have been commenced against Mr. Kidd, and par. (b) thus has no application. (at p661)

4. Paragraph (c) has no application: no proceedings were commenced against Mrs. Kidd as personal representative within six months after she took out representation. That period expired on 30 April 1980 without process being issued.

5. However, it was submitted that the periods prescribed respectively by par. (b) and par. (c) might be extended by order pursuant to s. 23A of the Limitation of Actions Act. That section provides:

"(1) This section applies to a cause of action in respect of personal injuries whether or not the cause of action accrued or is claimed to have accrued before the commencement of the Limitation of Actions (Personal Injuries) Act 1972. "(2) Where on an application to a court by or on behalf of a person (in this section called 'the claimant') claiming to have a cause of action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) the damages claimed by the claimant consist of or include damages in respect of personal injuries to any person and it appears to the court that - (a) any of the material facts relating to the cause of action - (i) was not known to the claimant; and (ii) would not have been known to the claimant if he had taken all reasonable steps in the circumstances of the case to ascertain all the material facts - until a date later than two years after the cause of action accrued or is claimed to have accrued or, if the claimant was under a disability when the cause of action accrued or is claimed to have accrued, two years after the claimant ceased to be under the disability, whichever last occurred; and (b) there is evidence to establish the cause of action apart from any defence founded on the expiration of the period of three years after the cause of action accrued - the court may in its discretion order that the period within which an action on the cause of action may be brought be extended so that it expires at the end of one year after the date referred to in paragraph (a) or, provided that application was made to a court before the expiration of one year after that date, on such later date, if any, as is specified in the order.'

Sub-sections (3) and (4) do not assist the consideration of the submission. (at p662)

6. Each of the periods prescribed respectively by par. (b) and par. (c) of s. 29(3) of the Administration and Probate Act is a "period within which an action on the cause of action may be brought". Although the periods respectively prescribed by par. (b) or par. (c) fall literally within the quoted phrase taken from s. 23A(2) of the Limitation of Actions Act there are indicia in par. (b) and in s. 23A(2)(b) which show that the death of a person against whose estate the cause of action survives furnishes no ground upon which the power conferred by s. 23A may be exercised in order to extend those respective periods. (at p662)

7. The period prescribed by par. (b) can be ascertained only upon the hypothesis stated, namely, "if he had lived". The period cannot be ascertained upon an hypothesis that the tortfeasor has died and the court has, on that account, extended the time prescribed by s. 5(6) of the Limitation of Actions Act. The fact of death is not material in ascertaining the period prescribed by par. (b). (at p662)

8. The impediment to the application of s. 23A to extend the time prescribed by par. (c) arises from the terms of s. 23A itself. Two parts of the section should be mentioned. First, s. 23A(2)(a). The operation of the section hinges on the plaintiff's ignorance of "material facts relating to the cause of action . . . until a date later have accrued". It may be thought that this part of s. 23A requires the plaintiff's ignorance of a material fact to exist during a period commencing when the cause of action accrues or is claimed to have accrued and terminating later than two years thereafter. If that construction were adopted, neither the death of a tortfeasor nor the taking out of representation by his personal representative would be material facts of which the plaintiff could be ignorant during the required period for, ex hypothesi, those facts do not occur until some time after the accrual of the cause of action against the deceased tortfeasor. In my opinion, however, that is not the true construction. Section 23A(2)(a) looks first to the material fact and then directs attention to the occasion when that fact was known or would have been known if reasonable steps had been taken. If that occasion is later than two years after the accrual or claimed accrual of the cause of action, s. 23A(2)(a) is satisfied. It is satisfied in the present case, for letters of administration were not granted to Mrs. Kidd until later than two years after the cause of action accrued on 4 April 1977. (at p663)

9. The second part of s. 23A which calls for consideration is s. 23A(2)(b). This provision requires the Court to consider whether there is evidence to establish a cause of action if one disregards ("apart from") "any defence founded on the expiration of the period of three years after the cause of action accrued". The terms of this provision are different from the corresponding provision in the earlier United Kingdom Act and from similar provisions in force in New South Wales and Queensland. Section 23A was inserted in the Limitation of Actions Act by the Limitation of Actions (Personal Injuries) Act 1972 (Vict.) which follows the concepts expressed by, but not the precise form of, the Limitation Act 1963 (U.K.). The New South Wales provisions are to be found in ss. 58 and 59 of the Limitation Act 1969 (N.S.W.); the Queensland provisions in ss. 31 and 32 of the Limitation of Actions Act 1974 (Q.). The defence which s. 2(2)(a) of the Limitation Act (U.K.) requires the court to disregard is "any defence under section 2(1) of the Limitation Act 1939"; the defence which both the New South Wales and Queensland Acts require the court to disregard is "any defence founded on the expiration of a limitation period" (N.S.W.) or "a defence founded on the expiration of a period of limitation" (Q.). The generality of the latter provisions stands in contrast with the particularity of the Victorian provision. The relevant defence to which the Victorian provisions relates is the provisions in s. 5(6) which, like s. 23A, applies to causes of action in respect of personal injuries and which prescribes the period of three years after the accrual of the cause of action as the limitation period. Unlike the New South Wales and Queensland provisions, the Victorian provision does not require the Court to disregard a defence of limitation other than a defence founded on the expiration of three years after accrual of the cause of action. Unlike the New South Wales and Queensland provisions, there is no Victorian provision relating expressly to the extension of time for instituting "Surviving Actions" (N.S.W., s. 59; Q., s. 32). (at p664)

10. A defence founded on s. 29(3) of the Administration and Probate Act is not a defence "founded on the expiration of the period of three years after the cause of action accrued"; the passage of that period of time might not exhaust the periods mentioned in pars. (a)(b) and (c). In the present case, a defence founded on s. 29(3) would not have been available until 30 April 1980 (par. (c)), and that date was more than three years after 4 April 1977 when the cause of action accrued. As s. 49(3) prevents the appellant from establishing the cause of action upon which the appellant seeks to sue the administratrix, the requirements of sub-s. (2)(b) of s. 23A of the Limitation of Actions Act cannot be satisfied and no order can be made thereunder. (at p664)

11. The drafting of s. 23A owes much to the earlier United Kingdom Act which, as Lord Reid allowed, had "a strong claim to the distinction of being the worst drafted Act on the statute book" (Central Asbestos Co. Ltd. v. Dodd (1973) AC 518, at p 529 ). The 1972 amending Act which substituted s. 4 and inserted s. 23A in the Limitation of Actions Act does not suggest that the legislature intended the limitation period prescribed by s. 29(3) of the Administration and Probate Act to be subject to the provisions of s. 23A of the Limitation of Actions Act. Rather, it intended that, while the period prescribed by s. 5(6) of the latter Act may be extended under s. 23A, neither the period prescribed by s. 5(6) nor any extension of it is to apply to a surviving action even though it be a surviving action in respect of personal injuries: see s. 33 of the Limitation of Actions Act. (at p664)

12. It follows that an extension of the time in which to commence proceedings against Mrs. Kidd as administratrix of her husband's estate could not be ordered under s. 23A. The appeal should be dismissed. (at p664)

Orders

Appeal allowed with costs.

Judgment of the Full Court of the Supreme Court of Victoria set aside and in lieu thereof order:
(1) that the appeal to that Court be allowed with costs;
(2) that the judgment of King J. be set aside and in lieu thereof it be ordered as follows:
"that pursuant to s. 23A of the Limitation of Actions Act 1958 (Vict.), as amended, the period within which an action may be commenced by the applicant under s. 29(3)(c) of the Administration and Probate Act 1958 (Vict.), as amended, against the respondent be extended so that it expires two months after 11 November 1982"; and (3) that the appellant pay the costs of the application to King J.