| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : O'DRISCOLL -v- J RAY McDERMOTT SA [2004] WADC 187 CORAM : CHANEY DCJ HEARD : 13 SEPTEMBER 2004 DELIVERED : 17 SEPTEMBER 2004 FILE NO/S : CIV 4160 of 1998 BETWEEN : PETER O'DRISCOLL Plaintiff
AND
J RAY McDERMOTT SA
Defendant
Catchwords: Summary judgment - Foreign lex causae - Foreign limitation period - Claim in contract - Whether limitation period applies - Substantive or procedural provision
Legislation: Foreign Limitation Periods Act 1984 (England)
Limitation Act 1959 (Singapore)
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Result:
Appeal dismissed
Judgment for defendant Representation:
Counsel:
Plaintiff : Mr J G Staude
Defendant : Dr J J Edelman
Solicitors:
Plaintiff : Friedman Lurie Singh
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65
Maxwell v Murphy (1957) 96 CLR 261
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Noske v McGinnis & Ors (1932) 47 CLR 563
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Case(s) also cited:
Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76
Dey v Victorian Railways Cmrs (1949) 78 CLR 62
Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 460
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1 CHANEY DCJ: On 17 May 2004, a deputy registrar gave summary judgment for the defendant under O 16 r 1 of the Rules of the Supreme Court. The plaintiff appeals against that order. The appeal is a hearing de novo.
Background 2 The writ of summons in this matter was issued on 29 October 1998. It concerns a claim for damages for personal injuries suffered by the plaintiff while working on a barge in Indonesian territorial waters. The accident is said to have occurred on 28 March 1995. The defendant was the plaintiff's employer at the relevant time. 3 The action has had a somewhat tortured history. It is not necessary to recount that history in detail. Significant for present purposes, however, is the judgment of Nisbet DCJ delivered on 23 August 2001 concerning the issue of the law to be applied in relation to various aspects of the pleaded claim. For present purposes, the critical aspect of that decision is that His Honour found that, in relation to the proposed claim in contract, the proper law to be applied both in relation to liability and quantum of damages for breach of contract, was the law of the Republic of Singapore. Originally, the plaintiff based his claim both in negligence and breach of contract. Subsequent to His Honour's decision in relation to the proper law to be applied, the claim in negligence was abandoned, and the plaintiff pursued a claim only in contract. 4 In May 2003, the defendant brought an application to re-amend its defence. The proposed new amendment was to insert a paragraph alleging that "the within action was brought after the expiration of three years from the date the alleged cause of action accrued and is therefore barred by s 24A of the Limitation Act 1959 (Singapore) as amended by Act 22 of 1992." Contemporaneously, the defendant applied for summary judgment pursuant to O 16 r 1 on the basis that the limitation defence which it sought to introduce into the pleading is unanswerable. 5 The learned Deputy Registrar granted leave to amend the defence, and no appeal is brought in relation to that order. He also concluded that the plaintiff had no answer to the limitation defence, and accordingly granted judgment in favour of the defendant. It is that decision which forms the subject matter of this appeal.
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The Limitation Act (Singapore)
6 The defendant relied upon an affidavit of Tiong Min Yeo, an associate professor in law at the National University of Singapore in order to prove the applicable law of the Republic of Singapore. Associate Professor Yeo said that a claim for personal injuries based on negligence, nuisance, or breach of duty, whether that duty arises from contract, statute or otherwise is governed by s 24A of the Limitation Act (Singapore). That section is in the following terms: "24A (1) This section shall apply to any 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 any written law or independently of any contract or any such provision). (2) An action to which this section applies, where the damages claimed consist of or include damages in respect of personal injuries to the plaintiff, or any other person, shall not be brought after the expiration of – 7 There follow a number of other subsections which are not of significance to the present proceedings. 8 It follows that, if that limitation period applies to the plaintiff's action, there being more than 3 years between the date on which the accident occurred (which Associate Professor Yeo said would be the latest date on which cause of action in this case could have accrued) and the commencement of the action by the plaintiff, the plaintiff's action would be statute barred. Associate Professor Yeo said that there is no provision in the legislation for any discretionary judicial extension of limitation periods, either generally or in respect of personal injury claims.
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9 Associate Professor Yeo said that "presently under the private international law of Singapore laws on limitation of actions are characterised as substantive only if they extinguish the right, but are considered to be procedural if they merely bar the action to enforce the right in court." He described s 24A as "procedural in this sense" but said that in the domestic law of Singapore "issues of limitation are substantive to the extent that the defendant's right to plead the limitation statute in a defence will be regarded as a substantive right in determining whether such rights have been removed retrospectively by amending legislation." He added that "the law of Singapore does not purport to inform other countries how its limitation laws are to be characterised for the purposes of their own private international law."
10 There was no challenge to the evidence as to the law of Singapore in Associate Professor Yeo's affidavit, and indeed, the plaintiff relied upon it to a degree in support of his submissions. I accept Associate Professor Yeo's affidavit as proving the relevant law of Singapore for the purposes of this application.
The issue for determination 11 The issue which arises in this application is whether the proper law of Singapore to be applied to the claim in contract in this case includes s 24A of the Limitation Act (Singapore). The plaintiff contends that it is at least arguable that the limitation provision is procedural rather than substantive with the consequence, the plaintiff submits, that this Court should not apply the 3 year time limit to the plaintiff's action at least in the context of a summary judgment application. 12 The plaintiff's position is based upon what might be termed the traditional approach to the application of foreign limitation statutes by domestic courts applying the law of the foreign jurisdiction. That position is encapsulated in the passage referred to by the plaintiff in Dicey & Morris on The Conflict of Laws, Sweet & Maxwell, [13th Edition], Vol 1 at p 172 which reads: "English law distinguishes two kinds of statutes of limitation. Those which merely bar a remedy and those which extinguish a right; this common law rule was well established, although it was subjected to searching judicial criticism, doubting whether the distinction between 'right' and 'remedy' provided an acceptable basis on which to proceed. Statutes of the former kind are procedural, whilst statutes of the latter kind are substantive."
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13 As the plaintiff noted, the English Common Law position was altered by the Foreign Limitation Periods Act 1984 (England) which deemed the limitation provisions of the applicable foreign law to be substantive. The plaintiff contends that, in the absence of legislative intervention of that nature in Australia, the common law position remains unchanged, at least in relation to actions based in contract.
14 The defendant relies upon the decisions of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 as authority for the proposition that limitation laws of a foreign jurisdiction are to be treated as substantive and not procedural. 15 In John Pfeiffer Pty Ltd the Court was concerned with proceedings commenced in the Australian Capital Territory in relation to personal injuries suffered in New South Wales. The New South Wales legislation had the effect of limiting the damages recoverable. All seven members of the Court held that a limitation on damages, not being directed to governing or regulating the mode or conduct of court proceedings, was a matter of substance rather than procedure. In reaching that conclusion, the judgments adopted the formulation put forward by Mason CJ in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 26-27 where he said "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural, and all other provisions or rules are to be classified as substantive (John Pfeiffer Pty Ltd at 543-544, 569-575). 16 In Zhang the High Court accepted (at [75] )the submission that "the reasoning and conclusion in Pfeiffer that the substantive law for the determination of rights and liabilities in respect of intra Australian torts is that lex loci delicti should be extended to foreign torts, despite the absence of the significant factor of Federal considerations. In the joint judgment of five members of the court, it was said (at [67] ) that: "When an Australian Court selects a non Australian lex causae it does so in the application of Australian, not foreign, law. While the content of the rights and duties of the litigants is determined according to that lex causae, it is necessary to recall that the selection of the lex causae is determined by Australian choice of law rules."
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17 In accepting the submission that the lex loci delicti should be extended to foreign torts, it was said (at [76] ) that :
"To that outcome, several caveats should be entered. In Pfeiffer reference is made to the difficulty in identifying a unifying principle which assists in making the distinction, in this universe of discourse, between questions of substance and those of procedure. The conclusion was reached that the application of limitation periods should continue to be governed by the lex loci delicti and, secondly, that 'all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.' (Original emphasis). We would reserve for further consideration, as the occasion arises, whether that latter proposition should be applied in cases of foreign tort." 18 The Court did not express any caveat as to the proposition that limitation periods should be governed by the lex loci delicti. 19 The plaintiff in these proceedings accepts that, were he to pursue an action in tort, and were the law applicable to that tort to be the law of Singapore, the effect of the Pfeifferand Zhang decisions would be that the limitation period contained in s 24A of the Singapore Limitation Legislation would bar his action. He submits, however, that the decisions in Pfeiffer and Zhang should be confined in their application to the law of torts, and not extended to claims, such as that made in this case, brought in contract. The plaintiff's submits that, the claims in both Pfeiffer and Zhang being claims in tort, their operation should not be construed any more widely than in relation to that area of law. 20 In my view, that submission should not be accepted. 21 As was said in the joint judgment in Pfeiffer, the adoption of the formulation put forward by Mason CJ in McKain has significant consequences which include "first, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure". (My emphasis) 22 In addressing the issue of substance and procedure, the Court made reference to the traditional distinction between questions of substance and questions of procedure. It did not do so in the context only of tort law. To do so would have made a distinction not made in the academic writings on the issue, and a distinction which would enjoy no logical foundation. As counsel for the defendant observed, in discussing the
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traditional approach to treating statues of limitation as procedural, the Court made reference (at [98] ) to a series of cases illustrating the point. Included amongst those was Noske v McGinnis & Ors (1932) 47 CLR 563, a case concerning a contract, and decisions relating to the enforcement of statutory rights (John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 and Maxwell v Murphy (1957) 96 CLR 261). 23 In my view, there is no basis for construing the decisions in Pfeiffer and Zhang insofar as they determine that foreign limitation provisions should be treated as substantial and not procedural, as limited only to claims arising in tort. 24 It was argued that the consequence of that view is that potential plaintiffs, affected by foreign limitation periods that have expired before Pfieffer was decided, may be worse off than had the change in approach been brought about by legislation. That is because, it was argued, new legislation would not have affected accrued rights. If that proposition is correct, then, as the plaintiff accepts, that is a consequence which flows to plaintiffs with claims in tort. The fact that the same consequence flows to plaintiffs with claims in contract is no sufficient foundation to construe the High Court's judgment narrowly and artificially. 25 Further, it is no answer for the plaintiff to argue that Associate Professor Yeo's evidence is that for the purpose of Singaporean rules of conflict of laws, a court in Singapore would regard limitation issues as procedural. As observed in the joint judgment in Zhang, the selection of the lex causae is determined by Australian choice of law rules. 26 The plaintiff accepts that if the treatment of limitation periods is a question of substance rather than procedure in relation to claims brought in contract, then the plaintiff's claim in this case would be barred by s 24A of the Limitation Act 1959 (Singapore). That provision is, in my view, a substantive provision affecting the rights of the plaintiff in this case, and there is no real question to be tried as to the applicability of the limitation period to this claim. There is no question that, if the limitation provision applies, the plaintiff will have no answer to the defence, and accordingly, there should be summary judgment for the defendant.
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