O'Brien v Sterling Clothing (Holdings) Limited
[1989] TASSC 135
•20 December 1989
Serial No B57/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: O'Brien v Sterling Clothing (Holdings) Limited [1989] TASSC 135; B57/1989
PARTIES: O'BRIEN, Carol Lillian
v
STERLING CLOTHING (HOLDINGS) LIMITED
FILE NO: M473/1989
DELIVERED ON: 20 December 1989
JUDGMENT OF: Underwood J
Judgment Number: B57/1989
Number of paragraphs: 16
Serial No B57/1989
File No M473/1989
CAROL LILLIAN O'BRIEN
v STERLING CLOTHING (HOLDINGS) LIMITED
REASONS FOR JUDGMENT UNDERWOOD J
20 December 1989
This is an appeal from an order of the Master. The respondent was employed by the appellant. She claimed that in January 1985, she sustained personal injury by accident arising out of and in the course of her employment. She first consulted a solicitor about her injury in April 1987. On 30 November 1988, her solicitors filed an originating application in the following form.
"ORIGINATING APPLICATION INTENDED TO BE SERVED
IN THE SUPREME COURT OF TASMANIA
HOBART REGISTRY
No M473 of 1988
IN THE MATTER of Section 5
(3) of the Limitation Act 1974–and–
IN THE MATTER of Carol
Lillian O'Brien
BETWEEN: CAROL LILLIAN O'BRIEN Plaintiff
–and–
STERLING CLOTHING (HOLDINGS) LIMITED Defendant
TO: Sterling Clothing (Holdings) Limited
OF: Tasman Street, Devonport and other persons served with this application.
Carol Lillian O'Brien of 128 Susan Street, Turners Beach in Tasmania applies for the following orders:
1That the time within which the applicant be permitted to bring an action for damages for personal injuries for the negligence (sic) of the respondent be extended to such time as the Court thinks necessary.
2 Such further or other orders as the Court deems meet.
DATED this 30th day of November 1988."
[There followed the name and address of the applicant's solicitors and the notice of hearing].
This application first came on for hearing on 24 April 1989. It was then adjourned to enable the applicant to file affidavits and amend the application. The hearing resumed on 9 May 1989. The court record discloses that an order was made "that the time for the filing of further affidavits and the amended application be extended until today. The amended application provided by par1:—
"That the time within which the applicant be permitted to bring an action for damages for personal injuries occasioned to the defendant during the month of January 1985 as a result of the negligence and/or breach of duty and/or breach of contract of employment and/or breach of statutory duty on the part of the defendant, its servants or agents".
At the hearing, the application was further amended by adding at the end of paragraph 1, the words, "be extended for such time as the court deems necessary". Counsel for the respondent noted that in an affidavit, filed between 24 April and 9 May, the applicant deposed to the receipt of compensation. He sought and obtained an adjournment to take instructions with respect to this.
The hearing was due to resume on 28 June 1989 but, on 21 June, the respondent filed an interlocutory application. This interlocutory application sought an order that the reference to the Limitation of Actions Act be deleted from the title to the proceedings and be replaced by a reference to the Workers' Compensation Act. The application also sought an order, which appears to have been entirely unnecessary, that paragraph 1 be amended in terms identical to those substituted by the order made on 9 May 1989. the Master made an order allowing the amendments sought and this appeal is brought against that order.
Prior to its amendment in 1986, the Workers Compensation Act 1927, s9(7) provided that where a worker has been paid compensation, no proceedings shall be maintainable against the employer unless they are commenced within twelve months after the accident. Section 9(8) gave the court a power to extend that time for a further period of twelve months.
The Workers' Compensation Amendment Act 1986, came into force in 18 August 1986 by s4, subss9(7) and 9(8) of the 1927 Act were amended by substituting three years for twelve months in each case. Section 6 of the amending Act is a transitional provision. Subsection (1) enacts that the amending Act does not apply where a worker has neither commenced proceedings to recover damages within twelve months after the accident, nor made an application for an extension of time within a further period of twelve months. This subsection does not apply to the respondent, for the second period of twelve months referred to in s9(8) did not expire until January 1987, after the amending Act came into force.
In language which is not entirely as clear as it might be, s6(2) of the amending Act provides in effect, that where a worker has not commenced proceedings within the first twelve months but, at the date the amending Act comes into force (18 August 1986) the second period of twelve months has not elapsed, the amendment to s9(7) has no effect. This subsection applies to the applicant.
Subsection 6(3) of the amending Act retains any right to apply for an extension of time which was extant immediately prior to the amending Act coming into force and gives the court a power to extend the time limited by s9(7) for a further period not exceeding three years. This subsection also applies to the appellant.
In result, as at 18 August 1986, the plaintiff's then right to make an application for an extension of time was preserved by the amending Act and the court given a power to extend the time within which proceedings could be commenced for a further three years—i.e. up until January 1989. During the course of argument on the appeal, I raised with counsel an alternative possible construction of subss(2) (3) but on reflection, I am satisfied that the above is the proper construction of those subsections.
The interlocutory application to amend the originating application was opposed before the Master and on appeal on the basis that, if granted, the appellant would be deprived of a complete answer to the application to extend time, namely, that since January 1989 the Court has had no jurisdiction to make an order extending the time limited by the Workers' Compensation Act, s9(7). As the application to amend par1 of the originating application was unnecessary, the only part of the application that needs consideration is that part which seeks an amendment to the title by deleting "section 5(3) of the Limitation Act 1974" and substituting "section 9(8) of the Workers' Compensation Act 1927".
With great respect to those who think otherwise the proposed amendment is concerned only with a matter of form and not substance. Section 9(8) provides that the jurisdiction to make an order extending time for the commencement of the proceedings is invoked "upon application being made in that behalf by a worker" and "after giving the employer an opportunity of being heard".
Such application was made by the document filed on 30 November 1988 as amended at the hearing on 9 May 1989. When that application is finally determined, the employer will be given an opportunity to be heard and consequently the court will have jurisdiction to make the order sought.
The application may be defective in that it does not comply with the Rules of Court. It does comply with Civil Process Rules O1, r3(u) in that, being a proceeding for an extension of time, the proceedings were commenced by an application to a judge in Chambers. The application names the correct parties and sufficiently sets out the order sought. However, it does not comply with Civil Process Rules, O8 which provides:—
"The forms set forth in Schedule 1 shall be used for the purposes to which they relate in accordance with the annotations (if any) following each form."
It is not easy to identify which Part or Parts of the Schedule apply to this application. Form 2, Part D is applicable.
D In applications generally, if inter partes
BETWEEN A.B. Applicant,
and
CD Respondent."
Also Form 2, Part F is applicable—
"F In applications to which Order 1, rule 3 refers in—
paragraph (u).
Ex parte AB
There has been non–compliance with Part F but no complaint was made with respect to this either before the Master or on this appeal. Arguably, the concluding words at the end of all the various versions of Form 2 are not applicable.
"In cases not provided for in this form, where the jurisdiction of the Supreme Court is given it by an Act other than the Supreme Court Civil Procedure Act 1932, the title of the proceedings shall begin with 'In the matter of the' and the short title of that Act".
This application, being an application for an extension of time within he meaning of Order 1 rule 3(u) is provided for in Form F. However, in my view it is unnecessary to consider this matter of detail.
It is a well established rule that generally, amendments will not be allowed if they give rise to a cause of action which is statute barred at the time the application for amendment is made. See Weldon v Neal (1887) 19 QBD 394; Coutts & Co v Duntroon Investment Corporation Ltd [1958] 1 All ER 51; Marshall v London Passenger Transport Board [1936] 3 All ER 83. If granted, the proposed amendment will not plead a "cause of action" which was statute barred at the time of the application. A cause of action is every fact which, if travelled by the respondent, the applicant has to establish in order to obtain the relief claimed. See Cooke v Gill [1873] LR 8 CP 107; Read v Brown (1889) 22 QBD 128. In Patterson v Richards [1963] VR 179 Sholl J quoted with approval the following passage from Smith v Wilkins and Davies Constructions Company Limited [1958] NZLR 958 at p.188:–
"The term 'cause of action' has been defined in a number of ways, the definitions best known being those of Lord Esher in Read v Brown (supra) and that enunciated in Jackson v Spittal (1870) LR 5 CP 542. This second, 'the act on the part of the defendant which gives the plaintiff the cause of complaint,' was adopted in our Court of Appeal in Dillon v Macdonald (1902) 21 NZLR. 375 4 GLR 415. Neither of these definitions, however, can be treated as entirely all–embracing and neither was coined for the purposes of the particular Rules which I am now considering. The issue is, I think, put as clearly as anywhere in the words of Lord Wright, MR, in Marshall v London Passenger Transport Board (supra) as being whether the new pleading involves 'a new departure, a new head of claim, or a new cause of action' (ibid. 87). In other words, is it something essentially different from that which was pleaded earlier? Such a change in character may be brought about in my view, by alterations in matters of law or a fact, or both."
The originating application in the present case, filed and served within time, identifies the correct parties and, as amended on 9 May 1988, clearly seeks an order described in the Workers' Compensation Act, s9(8). In purported compliance with a procedural requirement prescribed by the the Civil Process Rules, the heading of the application specified a statute. However, the applicant does not wish to rely on that statute but does wish to rely on another statute to obtain the order sought. The procedural requirement that the title of an application specify the Act where jurisdiction is given by an Act other than the Supreme Court Civil Procedure Act, is a matter of form and not substance. Compliance with this procedural requirement is not essential to any "cause of action". If it were, inadvertent failure to refer to any Act in the title would defeat an application, The applicant does not claim that it will suffer any prejudice if the title is amended and in my view the amendment ought to be allowed. The appeal is dismissed.
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