O'DRISCOLL v J Ray McDermott, SA
[2006] WASCA 25
•22 FEBRUARY 2006
O'DRISCOLL -v- J RAY MCDERMOTT, SA [2006] WASCA 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 25 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:157/2004 | 16 NOVEMBER 2005 | |
| Coram: | MALCOLM CJ MCLURE JA MURRAY AJA | 22/02/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER O'DRISCOLL J RAY MCDERMOTT, SA |
Catchwords: | Private international law Choice of law Claim for breach of contract brought in District Court Personal injuries sustained in Indonesian waters Law of Singapore held to be the proper law Whether Limitation Act (Singapore) to be applied Whether claim barred by application of that law |
Legislation: | Limitation Act 1959 (Singapore), s 24A |
Case References: | Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Mercantile Mutual Insurance (Aust) Ltd v Neilson (2004) 28 WAR 206 Neilson v Overseas Project Corp of Vic Ltd (2005) 79 ALJR 1736 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'DRISCOLL -v- J RAY MCDERMOTT, SA [2006] WASCA 25 CORAM : MALCOLM CJ
- MCLURE JA
MURRAY AJA
- Appellant
AND
J RAY MCDERMOTT, SA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CHANEY DCJ
Citation : O'DRISCOLL -v- J RAY McDERMOTT SA [2004] WADC 187
File No : CIV 4160 of 1998
(Page 2)
Catchwords:
Private international law - Choice of law - Claim for breach of contract brought in District Court - Personal injuries sustained in Indonesian waters - Law of Singapore held to be the proper law - Whether Limitation Act (Singapore) to be applied - Whether claim barred by application of that law
Legislation:
Limitation Act 1959 (Singapore), s 24A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G R Donaldson SC
Respondent : Mr A R Beech SC
Solicitors:
Appellant : Friedman Lurie Singh & D'Angelo
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Mercantile Mutual Insurance (Aust) Ltd v Neilson (2004) 28 WAR 206
Neilson v Overseas Project Corp of Vic Ltd (2005) 79 ALJR 1736
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
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Case(s) also cited:
Nil
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1 MALCOLM CJ: In my opinion, this appeal should be dismissed for the reasons to be published by Murray AJA. There is nothing I would wish to add.
2 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Murray AJA. I agree that the appeal should be dismissed. However, I propose to state my own reasons for reaching that conclusion. The relevant facts, background and grounds of appeal are contained in the judgment of Murray AJA and not repeated here. For present purposes, it is sufficient to note that the appellant commenced proceedings in the District Court of Western Australia ("action") against the respondent for damages for personal injuries arising out of a breach of a contract of employment between the appellant and respondent ("contract"). By Western Australian choice of law rules, the proper law of the contract is Singaporean law.
3 At the time of commencement of the action, the common law (as declared by the High Court in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1) was that limitation provisions that merely barred the remedy not the right were characterised as procedural with the result that limitation was governed by the law of the forum (lex fori). In Western Australia, the limitation period for a contractual claim is six years from the date on which the cause of action accrued.
4 After the commencement of the action and after three years from the accrual date, the High Court changed its position on the characterisation of limitation provisions. It concluded that all limitation provisions were substantive and thus governed by the law to which the court is directed by its choice of law rule (lex causae): John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491). As a consequence, the appellant's contractual claim was prima facie governed by the limitation law of Singapore, in particular the LimitationAct, Cap 163 (1996) Rev Ed (Singapore) s 24A ("Singapore statute"). Section 24A provides for a limitation period of three years from the accrual date or alternatively, three years from the earliest date on which the plaintiff had "the knowledge required for bringing an action for damages in respect of the relevant injury".
5 In his first ground of appeal, the appellant contends that summary judgment ought not to have been entered against him because it was arguable that the limitation period under the Singapore statute had not
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- expired before the commencement of the action. Both parties accepted that Singapore limitation law applies and I will assume that to be so.
6 Another relevant preliminary issue related to the evidential foundation for the determination of the question in issue (that is, whether it was arguable the action was not statute-barred). Foreign law is a question of fact not law and must be pleaded and proven. Generally, evidence on the subject must be given by a person who is an expert in that law. When there is no, or incomplete, evidence of foreign law, the presumption is that the foreign law is the same as the law of the forum: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 at [116] and [125] per Gummow and Hayne JJ, [249] per Callinan J and [261] per Hayden J.
7 The appellant submitted that Neilson is authority for the proposition that, apart from the presumption, evidence of how the foreign court would apply its substantive law to the facts of the case is not merely admissible but is required. I will return to this proposition later. It is unnecessary to resolve the matter in relation to ground 1, because both parties accepted that the appellant was entitled to rely on the presumption that Singapore law is relevantly the same as Western Australian law for the purpose of interpreting the Singapore statute. For myself, I query the need to rely on the presumption when, on my assessment, the fact is established by the unchallenged expert evidence of Dr Tiong Min Yeo.
8 The appellant relied on s 24A(2)(b) of the Singapore statute which prevents an action being brought after the expiration of three years from the earliest date on which the plaintiff had the knowledge required before bringing an action for damages in respect of the relevant injury. In particular, he relied on s 24A(4)(d) which materially provides:
"In subsections (2) and (3), the knowledge required for bringing an action for damages in respect of the relevant injury or damage (as the case may be) means knowledge –
(a) …
(b) …
(c) …
(d) of material facts about the injury or damage which would lead a reasonable person who had suffered such injury or damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant
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- who did not dispute liability and was able to satisfy a judgment."
9 The appellant's contention was that the change in the Australian conflicts law resulting in the characterisation of all limitation provisions as substantive is a material fact about the injury or damage so that time does not begin to run under s 24A(2)(b) until the appellant had knowledge of that change. I agree with Murray AJA that the proposition is not arguable. It is apparent from the terms of s 24A(4)(d) and from its wider context that it is confined to information about the injury or damage that enables the claimant to assess whether that injury or damage is of such a nature or extent as to justify the institution of legal proceedings. That construction is consistent with the expert evidence of Dr Tiong Min Yeo.
10 Further, and in any event, the Singapore statute is a domestic law (which Singapore characterises as procedural for conflicts purposes) that is intended to apply to proceedings commenced in Singaporean courts. There is nothing to indicate that there was an intention to cover changes in foreign conflicts rules that may impact on the outcome of proceedings in foreign courts applying Singaporean law. I would dismiss ground 1.
11 In his second ground of appeal, the appellant contends that summary judgment ought not to have been ordered because the respondent had failed to adduce expert evidence of Singapore's choice of law rules. I infer that no such evidence was adduced at the original hearing because the preponderance of academic and other opinion before the High Court decision in Neilson was that under Australian conflict rules, the lexcausae did not include the choice of law or other conflict of law rules of a foreign country to which our choice of law rules direct us (what is referred to as the "no renvoi solution"). Neilson was delivered after the determination of the summary judgment application the subject of this appeal.
12 The High Court in Neilson held that for international torts, the lex causae includes the choice of law rules of the lex causae. Both parties accept for the purposes of the appeal that this principle extends to contracts. What was not addressed in any detail was whether the principle extends to all of the conflict of law rules of the foreign lex causae including, inter alia, the conflicts classification rules. The question is whether the classification under Australia's conflicts rule of limitation as substantive is determinative or whether we also defer to a contrary (conflicting) classification of the foreign lexcausae, and with what result?
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13 Apart from the issue of whether a law is substantive or procedural, conflicts may also arise because the lex causae chooses different connecting factors to determine the applicable law or uses the same connecting factors but applies them differently or characterises a law differently (for example, as a claim in tort rather than contract or vice versa). Once you apply the foreign laws' choice of law rules, there is no reason to shrink from doing that in relation to these other sources of conflict: Neilson per Gummow and Hayne JJ at [107]. That is consistent with the stated object of the Neilson principle which is said to be to avoid different outcomes: Neilson per Gleeson CJ at [13], Gummow and Hayne JJ at [90] – [91] and Kirby J at [199].
14 However, the appellant confined his challenge to the adequacy of the evidence on Singapore's choice of law rules. He must be held to this formulation because following the late amendment to the grounds of appeal, the respondent tendered further expert evidence from Dr Yeo as to Singapore's choice of law rule for contractual claims. Dr Yeo's evidence is that the Singapore conflict of law rules are based on the English common law; the Singapore choice of law rule for contract is the proper law of the contract; the proper law of the contract is derived in a way that is consistent with the common law; the proper law of the contract is that chosen by the parties, whether expressly or impliedly, provided the choice is bonafide and legal and in the absence of choice, is the law of the country with which the contract has the most real and substantial connection.
15 The appellant contends that this evidence is inadequate because it does not address the question of what a Singapore court, applying that law, would do on the facts of this case or the Singaporean law relating to renvoi.
16 Both parties seemed to accept that Neilson requires the forum court to determine the conflicts questions in issue by reference to how the foreign court would determine them in proceedings commenced there (in this case, what was the proper law of the contract). I will assume that to be correct. The appellant goes further and says it applies to both conflicts questions as well as other substantive foreign law issues. It is unnecessary to consider whether that is correct. He also contends that these matters (subject to the presumption) must be proved by expert evidence on the ultimate issue. I doubt the correctness of the last proposition: see Gleeson CJ at [17] and Gummow and Hayne at [119] - [123]. If there is evidence that identifies and expounds in general terms the scope, meaning and effect of relevant statutory and non-statutory foreign law, that should
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- be sufficient to enable the forum court to determine how that foreign law would be applied by the foreign court to the facts of the particular case (see Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79 at 84 - 85 per Lindgren J). However, even if the appellant is correct, the presumption of sameness can fill the gaps. Where, as here, the source and content of the foreign law is the same as Western Australian law, it is appropriate to rely on the presumption in a summary judgment application.
17 In this case, the evidence establishes that Singapore's choice of law rule is in all the material respects the same as that of Western Australia: both apply the same common law rule. Having provided evidence as to how a Singapore court would approach the determination of the question of what is the proper law of the contract, the respondent relies on the presumption of sameness only to the extent of the application of the proven principles to the given facts. Based on that presumption, the answer to the question of what a Singapore court would have concluded is provided by the unchallenged finding of Nisbet DCJ in 2001 in the action that the proper law of the contract is the law of Singapore.
18 Further, as the lexfori and lex causae have the same choice of law rule and apply it in the same way, there is no relevant conflict and no need to consider the respective jurisdiction's attitude to renvoi. Accordingly I would dismiss ground 2. If I had not reached this conclusion, I would have granted the respondent's application to adduce further evidence on the issues arising from the appellant's late amendment.
19 The respondent relied on an alternative ground which was that regardless of what a Singapore court would determine to be the lexcausae of the contract, the evidence established that Singapore law characterised limitation as procedural to which the lex fori applied, and a Singapore court would (like the Western Australian court applying its conflicting characterisation of limitation) find that the action was statute-barred. This submission is based on the premise that there must be proof of what a foreign court would do if it was the forum court. Even if that premise is correct, it is arguably confined to what the lex causae treats as substantive: see Neilson per Kirby J at [187]. However, in view of my conclusion on what a Singapore court would determine to be the proper law of the contract, it is unnecessary to resolve this matter.
20 For these reasons, I would dismiss the appeal.
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21 MURRAY AJA: The appellant alleges that on 28 March 1995 while he was employed by the respondent company as a quality control inspector pursuant to a contract of employment entered into in the Republic of Singapore, he was working on what was described as a "jacket installation" on a barge in Indonesian territorial waters. While he was inspecting an area of work he was required to walk across scaffolding boards on the barge. As he did so, one shifted, and the appellant alleges he fell and was injured.
22 Originally he pleaded a cause of action in negligence, but in 2002 his statement of claim was amended and his action currently relies on breach of implied terms in the appellant's contract of employment with the respondent. Those implied terms are concerned with duties of care which it is alleged the respondent owed to the appellant. Nonetheless, there is no claim in tort currently pursued.
23 The action was originally commenced in both tort and contract in the District Court on 29 October 1998, some 3 years and 7 months after it is alleged the appellant suffered the personal injuries in respect of which he sues for damages.
24 On 23 August 2001, Nisbet DCJ, for reasons which his Honour then gave, but to which I need not refer, determined various preliminary issues. For present purposes it is sufficient that his Honour held that the proper law of the contract was the law of the Republic of Singapore, the place where the contract was alleged to have been made. On the other hand, as to the cause of action in tort, the effect of his Honour's determination was that, at least in relation to quantum, the applicable law was the law of Western Australia, where the action had been brought, and his Honour declared that various provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA) (as it was then called) would apply to the appellant's claim in negligence.
25 The statement of claim was amended on 1 August 2002 by order of a registrar of the District Court so as to abandon the claim in negligence. Although we were told that it is proposed to bring an action to again pursue that claim, alleging that the accident occurred, not in Indonesian territorial waters but on the high seas, the matter before us is to be dealt with simply upon the basis of the alleged breach of the contract pleaded to have been made in Singapore.
26 The action is defended and by its amended defence the respondent alleges that the action having been brought after the expiration of 3 years
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- from the date when the alleged cause of action accrued, the action is barred by the Limitation Act 1959 (Singapore), s 24A. I shall return to this provision shortly.
27 On 1 May 2003 the respondent applied for summary judgment on the ground that the limitation defence was unanswerable. A Registrar of the District Court granted that application and dismissed the appellant's action. From that decision, an appeal was brought to Chaney DCJ. It is accepted that such an appeal involves a hearing de novo. The final order made by his Honour was that the appeal be dismissed. From that order the appeal is brought to this Court pursuant to the District Court of Western Australia Act 1969 (WA), s 79(1)(a).
28 Chaney J started from the point of the judgment of Nisbet J which held, uncontroversially so far as the proceedings before Chaney J were concerned, that the proper law of the alleged contract in relation to liability and the quantum of damages for breach of contract, was the law of Singapore. There was expert evidence as to the content of that law, in the form of an affidavit by Associate Prof Yeo of the National University of Singapore, that the limitation period which would in Singapore be applicable to the case was that provided by the Limitation Act (Singapore), s 24A.
29 That section is in the following terms:
"(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 –
(a) 3 years from the date on which the cause of action accrued; or
(b) 3 years from the earliest date on which the plaintiff has the knowledge required for bringing an action for damages in respect of the relevant injury, if that period expires later than the period mentioned in paragraph (a).
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- (3) An action to which this section applies, other than one referred to in subsection (2), shall not be brought after the expiration of the period of –
(a) 6 years from the date on which the cause of action accrued; or
(b) 3 years from the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action, if that period expires later than the period mentioned in paragraph (a).
(4) In subsections (2) and (3), the knowledge required for bringing an action for damages in respect of the relevant injury or damage (as the case may be) means knowledge –
(a) that the injury or damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
(b) of the identity of the defendant;
(c) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant; and
(d) of material facts about the injury or damage which would lead a reasonable person who had suffered such injury or damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(5) Knowledge that any act or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant for the purposes of subsections (2) and (3).
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- (6) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire –
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.
(7) A person shall not be taken by virtue of sub-section (6) to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
30 As has been seen, the appellant's claim in this case is for damages for breach of the pleaded duties expressed as implied terms of the contract between the appellant and the respondent. It was therefore clear, his Honour thought, that under s 24A(2), the action could not be brought after the expiration of 3 years from the date on which the cause of action accrued. Professor Yeo's evidence was, again it seems uncontroversially, that the cause of action accrued when the contract was allegedly breached so as to cause personal injuries to the appellant for which he sued for damages. The action would then become statute-barred on 28 March 1998 and, as has been seen, this action was not commenced until 29 October 1998.
31 Professor Yeo's evidence was that under the private international law of Singapore, s 24A would be regarded as a procedural law rather than as a substantive law because it did not extinguish the right which became vested in the appellant when the cause of action accrued, but it barred the capacity to bring an action to enforce the right.
32 The question then was whether the District Court in WA, applying the law of Singapore as the proper law of the contract, would apply s 24A to the case so as to make it inevitable that the appellant's claim would be dismissed on the ground that it was statute-barred. It would do so if Western Australian law, the law of the forum, by its choice of law rules, had that result. And that result would ensue if, according to Western Australian law, a limitation provision such as s 24A was properly to be regarded, not as a procedural rule, as would be the case in Singapore, but as a substantive law. His Honour so held, dismissing the appeal on 17 September 2004 and therefore affirming the Registrar's order.
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33 In so holding, his Honour used three High Court decisions to which he had been referred. The first is McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1. That was a case where a worker sued his employer for damages for negligence in respect of an injury he suffered while working in SA. Under the SA Limitation of Actions Act 1936, a 3-year limitation period was prescribed and the action would have been barred, although under that law it was possible for the court to extend the prescribed limitation period as an act of discretion. The law was held to be procedural in character and therefore it would not be applied by the court in NSW so as to defeat the plaintiff's claim in tort. The SA Act was described by the majority as a true statute of limitation which did no more than prevent resort to the courts to enforce the plaintiff's claim. It did not extinguish liability and destroy the cause of action.
34 On the other hand, those in the minority, particularly Mason CJ and Deane J, would have held that because the SA Limitation of Actions Act did not merely govern or regulate the mode or conduct of court proceedings, but was clearly a statute of limitations, it was not a procedural law but should be classed as substantive. Therefore, because the NSW court would apply the substantive law of SA, the place where the tort was allegedly committed, in dealing with the plaintiff's claim, it would apply the SA law as to limitation of action. But it would apply all of that law and the NSW court would therefore have the power to exercise its discretion to extend the limitation period if that was required to do justice in the case.
35 The next case was John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. Again, that was a tort case where an action for damages for personal injury suffered in NSW had been brought by the plaintiff in the ACT. The relevant NSW law put a cap on the quantum of damages which might be awarded for non-economic loss. No such law existed in the ACT and so the question was whether the ACT Supreme Court was to apply that cap in assessing the damages to be awarded. It was so held by the Court, adopting the formulation by Mason CJ in McKain to determine that the particular NSW law under consideration was substantive rather than procedural and was therefore to be applied by the ACT court as part of the lex loci delicti. Having decided therefore that the law limiting the award of damages was substantive rather than procedural, McKain was not followed in holding that the claim was to be dealt with in the ACT subject to that law.
36 The third case relied upon by Chaney J was Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491. That was actually a
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- forum non conveniens case where it was sought to stay an action for negligence brought in NSW in respect of a motor vehicle accident in New Caledonia. The stay was refused, holding that the matter might continue in the NSW court, applying foreign law as the lex causae.
37 It was put to his Honour that those decisions should be confined in their effect to actions in tort, but that submission was rightly not accepted, leading his Honour to conclude that, according to the choice of law rules of this jurisdiction where the action would be tried, the law as to limitation of action was a substantive law, not procedural, and would be imported with other substantive Singaporean law to defeat the appellant's claim.
38 McKain was decided in December 1991. In this State, its effect was legislatively reversed as between the Australian States and Territories and NZ by the Choice of Law (Limitation Periods) Act 1994 (WA) to which Chaney J does not appear to have been referred when he dealt with the case in September 2004. The Act was proclaimed to come into operation on 27 May 1994. The operative provisions are s 5 and s 6. They are in the following terms:
"5. Characterization of limitation laws
If the substantive law of another place being another State, a Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.
6. Exercise of discretion under limitation law
Where a court of this State exercises a discretion conferred under a limitation law of a place being another State, a Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place."
" 'limitation law' means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when
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- a proceeding on, or the arbitration of, the claim is commenced."
- The decision to which Chaney J came is clearly an application of the common law in this case, consistent with the answer which would be provided by this legislation in the different factual circumstances to which it applies.
40 This case involves no discretionary provision within s 24A of the kind described in s 6 of the Choice of Law (Limitation Periods) Act, but such a provision was involved in the case, very recently decided, of Neilson v Overseas Project Corp of VicLtd (2005) 79 ALJR 1736, a decision of the High Court in a case which emanated from WA. Ms Neilson lived here, but while in China with her husband, who worked for the respondent, she slipped and fell down the stairs of the apartment provided by the respondent. Nearly six years after that incident she took action in this Court for damages for negligence.
41 The matter was dealt with by McKechnie J at first instance. His Honour applied Rogerson and Zhang in holding that the applicable law governing the case was the lex loci delicti, which would provide the limitation period. His Honour therefore held that Article 136 of the General Principles of Civil Law of the People's Republic of China applied. The Article provided a 1-year limitation period, but by Article 137, a Chinese court could extend the limitation period to the extent necessary if it found "special circumstances". His Honour held there were special circumstances and extended the limitation period.
42 The balance of the case concerned an article of the General Principles not reflected in the law of Singapore which, although it generally applied, "the law of the place where the infringement occurred", also permitted, where both parties were nationals of the same country or domiciled in the same country, the application of the law of that country where that was different from the law to be generally applied. Under that provision McKechnie J applied WA law, the common law, and gave judgment for Ms Neilson.
43 His Honour was reversed by the Full Court: Mercantile Mutual Insurance (Aust) Ltd v Neilson (2004) 28 WAR 206, which was in turn reversed by the High Court. The decision principally turns on the question whether Article 146, the renvoi or reference back provision, could properly be applied by the trial Judge. As I have said, no such provision arises in this case and so I may pass over the complexity of the debate upon that question. For present purposes, it is sufficient to note
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- that it was accepted that laws of limitation were part of the substantive law. It was upon this Court's view that the lex loci delicti, the law of China, did not include the choice of law provisions of that law that the appeal to the High Court turned. The case therefore provides no assistance in resolving the issues which arise on this appeal.
44 The appeal against the decision of Chaney J was brought on grounds which challenged the correctness of his Honour's view that s 24A of the Singapore Limitation Act was substantive in character. The grounds put the proposition, argued before Chaney J, that the authorities upon which his Honour relied were to be confined to cases of tort. Those grounds have been abandoned. At the hearing, the appellant sought to substitute new grounds as follows.
"1. The learned Judge erred in law in failing to address the following question:
(a) On the basis that the lex causae was the law of Singapore.
(b) On the basis that the Limitation Act (Singapore) applied to the plaintiff's action;
The Court erred in not finding that it was arguable that by s 24A of the Limitation Act (Singapore) the time for bringing the action was 3 years from the time that the plaintiff became aware or could reasonably have become aware of the decision of the High Court in Pfeiffer v Rogerson (2000) 203 CLR 503, or alternatively, Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491.
2. The Learned Judge erred in law by ordering summary judgment where the defendant had failed to adduce expert evidence of the choice of law rules of the law of Singapore, being the lex causae."
45 The Court granted leave to substitute those grounds. It did so conditionally upon the receipt of further evidence from Professor Yeo in the form of his answers to specific questions directed to him by the respondent's solicitors. In addition, we granted liberty to the respondent to adduce further evidence of an expert nature if, as a consequence of the argument on the appeal, the respondent considered that it needed to do so. No such application was made.
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46 Ground 1 raises a new point overlooked when the parties were before Chaney J. The ground correctly directs attention to the question whether the point raised is arguable. But as it is a point concerning the proper construction of s 24A, such a point may often, and in my opinion in this case does, resolve itself into considering whether the point raised by the ground is right or wrong. In my respectful opinion, the ground raises a point which is wrong. It is not arguable.
47 The submission is that, given that in the District Court the law of Singapore was to be applied as the lex causae, and given that the Singapore law as to limitation was to be treated by the District Court as a substantive law applicable to the case, then it may be accepted that under s 24A(1), as the appellant's claim is framed, s 24A has application to this action.
48 It is submitted then, that although, as Chaney J found, the application of s 24A(2)(a) would operate to bar the action, s 24A(2)(b) had application to provide a different and later period of limitation. It is argued that the "knowledge required for bringing an action for damages in respect of the relevant injury" under subs (2)(b) was the knowledge that, as declared by the High Court in Rogerson and Zhang, the District Court would accept that the law as to limitation of action was substantive law and would therefore import the 3-year limitation period provided in s 24A rather than the 6-year period applicable under Western Australian law, the Limitation Act 1935 (WA) s 38(1)(c)(v). The true limitation period therefore, it is asserted, is at the earliest three years from the publication of the High Court's reasons in Rogerson on 21 June 2000, by which time of course the action had already been instituted.
49 If that understanding is correct, then the argument is neatly circular. By adopting as the relevant knowledge required for bringing an action for damages in respect of the relevant injury the earliest date on which the High Court made it clear that the applicable law of limitation was the law of Singapore, a limitation period is achieved which commences to run well after the action was instituted and which defeats the application of a limitation period of three years commencing to run on the date on which the cause of action accrued as provided by the same law of Singapore.
50 Section 24A(4) bears on the question by setting out for the purpose of subs (2) what is the knowledge required for bringing an action for damages in respect of the relevant injury. It will be observed that pars (a), (b) and (c) are all concerned with matters which bear upon the capacity to sue, questions of causation and the identity of the true defendant. For the
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- appellant, reliance is placed upon subs (4)(d) which, it is agreed, does bear the character of being concerned with facts which provide the prospective plaintiff with knowledge of the true nature of the injury or damage suffered, which would make it worthwhile suing the defendant upon the basis that the plaintiff was guaranteed recovery from a defendant who did not dispute liability and was able to satisfy the judgment. But, it is submitted, it is also a provision concerned with knowledge that the law as to the applicable limitation period had changed to reduce it from a period of six years by the application of the Limitation Act of Western Australia to a period of three years by the importation as part of the lex causae of the Limitation Act of Singapore.
51 In that regard, it will be noticed that the appellant is apparently unabashed by the fact that to apply the Limitation Act of Singapore in the way contended for would give a limitation period which would expire on 21 June 2003, three years after the date upon which the judgment in Rogerson happened to be delivered by the High Court. On the other hand, by the Limitation Act of Western Australia, the six-year period would expire earlier on 28 March 2001.
52 Of course, the appellant would never be expected on his own to learn of the change in the law effected by the decision in Rogerson and so presumably the argument needs to call in aid s 24A(6)(b), subject to the qualification made by s 24A(7). In other words, the appellant might reasonably be expected to acquire knowledge of the change of the law by receiving the expert advice of his solicitors here, at some time presumably fairly soon after the case was decided.
53 Further, this knowledge needs to be treated as knowledge of a "material fact". The fact would be that the common law of Western Australia changed so as to import Singapore law to provide the applicable limitation period governing the appellant's capacity to pursue his action. I find it difficult to see how one can escape the view that the relevant knowledge would be the knowledge of what the limitation period was as a matter of law.
54 The appellant seeks to escape that conclusion by arguing that what the law was in Western Australia would be a matter of fact for the purposes of courts in Singapore. It should be accepted, he argues, that in Singapore as well as in Western Australia, foreign law is a question of fact. Then the appellant argues that the common law of Western Australia is to be taken as a fact for the purpose of s 24A(4)(d). Again, the argument seems to me to be neatly circular. It amounts to this as I
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- understand it. If the action had been brought in Singapore, then the law as to limitation of action in Western Australia ought to be accepted to be susceptible of proof as a matter of fact. That makes the law as declared in Rogerson a fact and it remains a fact when a court in Western Australia comes to apply the Limitation Act of Singapore as part of the law governing the case before the Court here.
55 In my opinion, these are arguments which are not sustainable. But the short point is that the ground cannot be made good on the basis of the proper interpretation of s 24A, as to which there was some evidence in the affidavit of Professor Yeo. He says there, "Latent injuries are caught by s 24A(2)(b)." Professor Yeo explained further that in Singapore, under the Interpretation Act (Singapore) s 9, it is permissible in interpreting a statute to look to extrinsic materials, including the content of a second reading speech made by the appropriate Minister in the Parliament. Professor Yeo quotes the second reading speech as observing that one of the objects of the legislation amending the Limitation Act to bring it to its present form was to make amendments along the lines of the Limitation Act 1980 (UK) and the Latent Damage Act 1986 (UK). The Minister said:
"What it does is to extend the limitation periods for personal and non-personal injury claims by providing an alternative starting date for the limitation period, ie, the date the aggrieved person has knowledge of the damage. The limitation period would be computed from the date that expires later."
56 In any event, the High Court in Neilson made it clear that, to the extent that there might be thought to be some deficiency in the evidence as to the proper interpretation and application of a foreign statutory instrument, the Court here would assume that the foreign law was the same as our law and that would require the Court here to construe s 24A as it would approach the construction of an Australian Act expressed in the same terms: per Gummow and Hayne JJ at 1758 [125], Callinan J at 1781 - 1782 [249] - [250] and Heydon J at 1785 [267].
57 On that basis, to the extent that there is a lacuna in the evidence of Professor Yeo, in my opinion, the ordinary and natural meaning of the words used in s 24A(4)(d) fits the provision into the scheme of subs (4) generally, in the context of subs (6) and (7). In other words, s 24A(2)(b) is intended to extend the 3-year limitation period by starting it from the earliest date, after the date on which the cause of action accrued, on which the plaintiff knows, or reasonably ought to know within the context of subs (6) and (7), that the injury or damage sustained has reached its full
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extent attributable in whole or in part to the default of the proposed defendant, whose identity is known or whose relationship to the person who caused the injury or damage is known to be such as to make him liable for the harm sustained, and that the extent of the injury or damage is known and is such that it should lead a reasonable person to consider it sufficiently serious to sue for damages on the basis that the action would be guaranteed to produce a favourable result against a defendant who was able to satisfy a judgment.
58 Section 24A(5) militates against acceptance of the appellant's submissions because it makes irrelevant knowledge that at law the act or omission which has caused injury or damage to the plaintiff would constitute actionable negligence, nuisance or breach of duty. In other words, knowledge of the law is not relevant to the consideration of subs (2)(b). There is no basis, I think, for the view that subs (4)(d) is concerned with knowledge of the law in respect to the applicable limitation period.
59 As to ground 2, there is evidence on affidavit by Professor Yeo that under Singapore law the choice of law rule is that which applies under Western Australian law. Singapore law would apply as the proper law of the contract. Further, as to limitation of action, Western Australian law would apply Singapore law because it would hold the matter of limitation to be substantive law. Singapore courts would reach the same conclusion on the ground that their Limitation Act was procedural and therefore, for them, would be part of the law of the forum.
60 There is no reference in the evidence to any applicable renvoi rule. In those circumstances, applying Neilson, I can see no reason why one would not assume that in that respect the law of Singapore was the same as that of Western Australia with the result that the question of renvoi may be ignored.
61 In the final analysis, it seems to me that neither ground of appeal may be upheld. It follows that Chaney DCJ was right to dismiss the appeal from the Registrar's order dismissing the appellant's action, because there was no answer to the limitation defence. I would dismiss the appeal.
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