Milera v State of South Australia - [2015] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
MILERA & ORS v STATE OF SOUTH AUSTRALIA
[2015] SADC 97
Reasons of His Honour Judge Cuthbertson
23 June 2015
PROCEDURE
Application to strike out statement of claim by first plaintiff.
HELD: Proceedings not out of time at the time when s 48 of Limitation of Actions Act (1936-1972) enacted giving Court discretion to permit proceedings to proceed that are out of time. Accordingly there remains a discretion to extend time for issue of proceedings and they are therefore not bound to fail and therefore are not vexatious and oppressive and therefore there is no basis for striking out the pleading.
Limitation of Actions Act 1936 (SA) s 36, s 45; Limitation of Actions Act 1936-1972 (SA) s 48, referred to.
Edward Coke, Institutes of the Laws of England Coke 4 Inst. 330, discussed.
Maxwell v Murphy (1957) 96 CLR 261; Van Vliet v Griffiths (1979) 20 SASR 524; Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Saraswati v R (1991) 172 CLR 1, considered.

MILERA & ORS v STATE OF SOUTH AUSTRALIA
[2015] SADC 97

The first plaintiff was born on 9 May 1948.
The acts alleged to have occurred giving rise to a cause of action occurred sometime in 1960 when it is said that the first plaintiff was unlawfully removed by the defendant’s agents from his father.
The first plaintiff issued his claim against the defendant in the Adelaide Magistrates Court on 29 July 2009.
Ordinarily the time for bringing the action would have commenced to run in 1960. At that time the Limitation of Actions Act 1936 (SA) provided that the time limit for bringing a personal injuries claim expired 3 years after coming to full age.
On 9 May 1969 the plaintiff turned 21 years old, at that time the age of majority.
The Limitation of Actions Act 1936 (SA) which came into operation on 13 August 1936 then read as follows:
Section 36
(1) All actions in which the damages claimed consist of or include damages in respect to personal injuries to any person, shall be commenced within 3 years next after the course of action accrued but not after.
(2) In this section “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
At all relevant times “Action” is defined in s 3(1) of the Limitations of Actions Act to include “legal proceedings of all kinds”.
The proceedings include a claim for damages for impairment of the plaintiff’s physical or mental condition and therefore these proceedings comprise an action to which s 36 of the Limitation of Actions Act 1936 (SA) applies.
There was no provision for the Court to extend time for the issue of proceedings until 18 May 1972. There was, however, a provision for the assistance of persons under a disability including minors.
Until 1972, the relevant part of s 45 of the Limitation of Actions Act 1936 read as follows:
Section 45 – Persons under Disability
(1) If at the time when the right of any person to […] bring any of the actions mentioned in this Act first accrued, that person was an infant, idiot, lunatic or of unsound mind then that person, or the person claiming through him, may notwithstanding that the period of limitation fixed by this Act has expired may […] bring an action within the time limited by this Act after his coming to full age or becoming of sound mind or his death, which so ever first happened.
It is admitted by the defendant for the purposes of this application that the first plaintiff was a person of unsound mind prior to attaining the age of majority and that he ceased being of unsound mind in about 1988 as asserted in paragraph 62 of the Fourth Statement of Claim.
On 18 May 1972 some 3 years and 9 days after coming to full age, the Limitation of Actions Act 1936-1972 came into force. Section 48 of the Act provided the Court with a discretion to allow actions to proceed that were out of time. Thereafter the various amendments to the legislation have always permitted a discretion in the law for the Court to permit actions to proceed out of time subject to various conditions to be fulfilled.
If s 45 is to be interpreted that the 3 years limitation fixed by the Limitation of ActionsAct did not commence running until after he became of sound mind, that is about 1988, then clearly the action was not out of time at the time the amendments to the Limitation of Actions Act 1936 (SA) were made that gave the Court a discretion to permit actions to proceed out of time.
I am bound by the authority of the High Court and the Full Court of the Supreme Court in the matters of Maxwell v Murphy (1957) 96 CLR 261, Van Vliet v Griffiths (1979) 20 SASR 524 and Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58 to hold that the action once extinguished cannot be revived.
At the time of the enactment of s 48 the first plaintiff was not out of time if under the previous enactment of s 45 the operative factor was that he was still then of unsound mind.
The first plaintiff was out of time, however, if the operative factor was that he had come of full age on 9 May 1969.
The defendant argues that s 45 of the Limitation of Actions Act 1936 is to be read such that the first plaintiff ceased to be under a disability when he ceased being an infant and became of full age which was on 9 May 1969 and that therefore the time limit expired upon 3 years from then namely on 9 May 1972.
If that were the case, the time limit would have expired prior to the enactment on 18 May 1972 of s 48 of the Limitation of Actions Act 1936-1972 which for the first time provided a discretion in the Court to extend the time for the bringing of out of time actions.
If that were the case the authorities[1] I have referred to would compel me to hold that the action had no prospects of success whatsoever.
[1] Maxwell v Murphy (1957) 96 CLR 261, Van Vliet v Griffiths (1979) 20 SASR 524 and Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58.
I am of the view that s 45 must be interpreted to mean that, if the plaintiff’s disability was being an infant, then the time to bring an action would expire 3 years after his coming to full age whereas if the plaintiff’s disability was being of unsound mind then the period of limitation would expire 3 years after him ceasing to be of unsound mind. In other words 3 years after he last was subject to a disability. If he was subject to more than one disability then 3 years after the last of the disabilities ceased to exist.
The intent of the enactment is to provide that the time limit within which to bring an action should run for 3 years from the time the person ceased to be under a disability. The disability may be one of infancy, idiocy, lunacy or being of unsound mind.
The primary object of statutory interpretation is to construe the legislation “according to the intent of them that made it”.[2]
[2] Coke 4 Inst. 330.
The duty of the Court is “to give the words of a statutory provision meaning that the legislature is taken to have intended them to have”.[3]
[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384.
If the particular plaintiff had more than one disability it would be odd if the provision which is to protect persons under a disability was to be construed that coming out of one of the disabilities triggers the commencement of the time period for the bringing of litigation.
Logically, if the legislature wanted to provide for the assistance of those under disability it would be the last of the disabilities from which the plaintiff was suffering that he came out of that would trigger the running of the time period for the issue of proceedings.
The interpretation which the defendant seeks to place on s 36 that the time limit for the issue of proceedings start to run when the first plaintiff came of full age, even though he remained of unsound mind, would provide a capricious and irrational result which a statutory provision is presumed not to have.[4]
[4] Saraswati v R (1991) 172 CLR 1, 21 – 23.
In my view s 45 should be taken to read as follows:
Section 45
If at any time when the right of any person to […] bring any of the actions mentioned in this Act first accrued, that person was an infant, idiot, lunatic or of unsound mind then that person, or the person claiming through him, may notwithstanding that the period of limitation fixed by this Act has expired may […] bring an action within the time limited by this Act after his coming to full age or becoming of sound mind [as the case may be] (my words) or his death whichsoever first happened.
If the disability is not being of full age then the disability ends when the person becomes of full age. On the other hand if the disability is being an idiot, lunatic or of unsound mind then the disability does not cease upon the person becoming of full age. Rather, the disability ceases upon the person ceasing to be an idiot, lunatic or of unsound mind.
As the first plaintiff asserts and the defendant does not dispute for the purposes of this decision, the plaintiff was of unsound mind right up until 1988 then the time limit under the Act does not cease to run until 3 years after the plaintiff came of sound mind.
By that time s 48 of the Limitation of Actions Act 1936-1972 had been enacted and came into force permitting the extension of time by discretion.
It is not possible for me to determine without evidence whether the criteria for an extension of time has been made out.
Accordingly I cannot say that the first plaintiff’s action is doomed to failure and therefore I cannot make a finding that the proceedings are vexatious and oppressive.
There is no basis before me to strike out the proceedings or enter summary judgment.
Accordingly the application is dismissed.
I will hear the parties as to costs.