Peter Skeen v the Northern Territory of Australia
[2018] NTLC 8
•10 May 2018
ABRIDGED VERSION
CITATION:Peter Skeen v The Northern Territory of Australia [2018] NTLC 008
PARTIES:PETER SKEEN, an infant, by LATISHA LAYT, his litigation guardian
V
THE NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: LOCAL COURT
JURISDICTION: Local Court
CLAIM NO:21728591
DELIVERED ON: 10 May 2018
DELIVERED AT: Darwin
HEARING DATES: 2 and 14 March 2018
DECISION OF: Judge Neill
CATCHWORDS:
Appearing in a proceeding; effect of procedural legislative amendments on
pre-existing proceedings; extension of period of validity of Statement of Claim;
suppression orders.
Local Court (Civil Procedure) Rules 2.04, 3.03 and 7.06
Interpretation Act ss 28(1) and (2), ss 63(7)
Limitation Act s 44
Evidence Act ss 57(1)(b)(iii)
Youth Justice Act s 49, 50 and 215B
Delegated Legislation in Australia - p 474 4th Edition Dennis Pearce and
Stephen Argument
Tucker v Walker & Ors - The Argus Law Reports Vol XXVI September 14 1920
Maxwell v Murphy - (1957) 96 CLR 261
Yrttiaho v The Public Curator of Queensland - (1971) 125 CLR 228
Anthony Horden and Sons Pty Ltd v Amalgamated Clothing and Allied Trades
Union of Australia - (1932) 47 CLR 1
Sarah Miller v JB Hi-Fi Limited – [2018] NTLC 10 per Judicial Registrar Johnson
The Commonwealth of Australia v D.K.B. Investments Pty Ltd – [1991] NTSC 58
REPRESENTATION:
Counsel:
Plaintiff:M. Littlejohn
Defendant:L. Peattie
Solicitors:
Plaintiff:NAAJA
Defendant:Solicitor for the Northern Territory
Judgment category classification: A
Judgment ID number: 008
Number of paragraphs: 77
IN THE LOCAL COURT AT
DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21728591
BETWEEN:
Peter Skeen, an infant, by
Latisha Layt, his litigation guardianAND:
The Northern Territory of Australia
REASONS FOR DECISION
(Delivered 10 May 2018)
JUDGE NEILL:
Introduction
The Plaintiff commenced this proceeding by Statement of Claim filed on 9 June 2017. At that time he was a minor and so commenced the proceeding by his litigation guardian. The Plaintiff is still a minor as at the date of these Reasons.
On 9 June 2017 when this proceeding was commenced a Statement of Claim was valid for service for 12 months after the date on which it was filed - see subrule 7.06(1) of the Local Court (Civil Jurisdiction) Rules (“the Rules”) as they stood on 9 June 2017. Accordingly, on the date of its filing this Statement of Claim was valid for service up to and including 9 June 2018.
The Plaintiff’s cause of action pleaded in the Statement of Claim is for compensation for alleged mistreatment while he was in detention at the Don Dale Youth Detention Centre.
The Plaintiff by his legal advisors did not serve the Statement of Claim on the Defendant and that remained the position as at 14 March 2018.
On 12 July 2017 various amendments to the Rules came into effect. Specifically, subrule 7.06(1) was amended to reduce the period of 12 months to six months. There were no other amendments to rule 7.06.
By interlocutory application dated 15 January 2018 the Plaintiff by his lawyers sought a declaration that the amendment to subrule 7.06(1) applied only to proceedings commenced on and after 12 July 2017. In the alternative, he applied for an extension of the period of validity of the Statement of Claim for service for a period of six months.
Additionally, the Plaintiff by his lawyers sought an order supressing publication of the name of the Plaintiff and also of his litigation guardian.
This interlocutory application was served on the Defendant’s lawyers by the Plaintiff’s lawyers. Both parties’ lawyers attended before Judge Macdonald on the first return date of the application on 22 January 2018, and the application was listed for hearing before me on 2 March 2018.
The Defendant’s Standing
The Plaintiff by his lawyers engaged the Defendant’s lawyers in correspondence concerning this proceeding from shortly after the proceeding was commenced on 9 June 2017, and ongoing. They did not serve the Statement of Claim. The Plaintiff by his lawyers served a sealed copy of the interlocutory application dated 15 January 2018 on the Defendant’s lawyers. The Defendant’s lawyers attended before Judge Macdonald on 22 January 2018 and subsequently before me on 2 March 2018.
On 2 March 2018 the Defendant had still not been served with the initiating Statement of Claim. The Defendant had filed neither a Notice of Defence nor an Appearance in the proceeding. Nevertheless the Defendant sought to appear on 2 March 2018 and be heard in response to the Plaintiff’s interlocutory application dated 15 January 2018.
The Defendant had no right of appearance on 2 March 2018 to respond to the interlocutory application dated 15 January 2018, or at all. “….it is not competent for a defendant to take any step in an action until he appears...”- see Tucker v Walker and Others per Schutt J of the NSW Supreme Court reported in “The Argus” Law Reports vol. XXVI September 14 1920.
It was always open to the Defendant once it became aware of this proceeding, initially through the Plaintiff’s lawyers’ correspondence and later through service of the interlocutory application dated 15 January 2018, to attend at the Registry of the Local Court and file an Appearance, even where the Defendant had not been served with the initiating Statement of Claim. In Tucker v Walker and Others, Schutt J went on to say: “….the proper course for the Defendants here , who allege that the Plaintiff is wilfully abstaining from serving them with the writ….would be apparently, to enter an Appearance voluntarily. This may, it seems, be done in any case by a Defendant who has knowledge of the issue of a writ against him, but who has not been served with it, and is sometimes referred to as an ‘appearance gratis’...”.
If the Defendant had filed such an Appearance in this proceeding it would then have been entitled to take a copy of the initiating Statement of Claim and file and serve a Notice of Defence to that, without having to wait for the Plaintiff to serve it with the Statement of Claim.
This difficulty for the Defendant was in any event resolved on 2 March 2018 when I received an undertaking from the Defendant’s counsel to file an Appearance in the proceeding that day. On that basis I permitted the Defendant to appear and be heard in response to the interlocutory application. The formal Appearance of the Defendant was indeed filed later on 2 March 2018.
The Effect of the Amendment to Subrule 7.06(1)
The amendments to the Rules which came into effect on 12 July 2017 did not include any transitional provisions providing guidance as to the timing of the effects of the amendments. The question raised in this matter is therefore whether the amendment coming into force on 12 July 2017 to subrule 7.06(1) had any effect on the period of validity of the Plaintiff’s Statement of Claim previously filed on 9 June 2017.
The Plaintiff submits that his Statement of Claim remains valid for service until and including 9 June 2018. The Defendant submits that it became stale and was no longer valid for service after 9 December 2017, six months after it was filed.
The common law position with amending statutes was set out by Dixon CJ in Maxwell v Murphy (1957) 96 C.L.R. 261 at page 267 as follows:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events”.
In other words, there is a presumption that unless there is a clear intention appearing from the amending statute, the amendment will not apply to an existing proceeding.
However Dixon CJ went on to identify an exception to this presumption, as follows:
“But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption (emphasis added). Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in (citation omitted) “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done”.
In other words, an amending statute will apply to a pre-existing proceeding when the amendment involves matters of practice and procedure and not rights and liabilities.
The High Court of Australia considered this distinction further in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 (“Yrttiaho”). There, a Supreme Court Rule provided that where no step in a proceeding had been taken for six years, no further step could be taken without an Order of the Court. This Rule was amended on 12 February 1966 to reduce the six years to three years. The Plaintiff in that case had commenced proceedings but had taken no steps after 22 May 1963. He then applied on 15 August 1967 for leave to proceed.
That application was inside six years from the last step taken in May 1963 but outside three years. If the amendment to the rules applied to that pre-existing proceeding, the Plaintiff was out of time and would have to recommence his proceedings from the beginning, with consequential limitation problems to confront.
The five judges constituting that High Court held unanimously that “….in its application to the pre-existing proceeding, the amending Rule was only of a procedural character and hence, according to the rules of common law concerning the retrospective operation of amending statutes, the presumption that the amendment might not to be understood as applying to events which occurred before the amendment was displaced”- see Yrttiaho, headnote (1).
Gibbs J considered the question from page 239.8 to page 243.1. He noted at page 241.1 the distinction between cases where the new three year period might have already elapsed before the amendment came into effect and those where there was still time to run in a reduced three year period after the amendment came into effect. He acknowledged that the amendment “…might have affected vested rights if it applied to cases where the three year period had elapsed before the amendment took effect”. However, he noted that in the case before him the Plaintiff had still had time to act after the amendment came into effect because three years had not at that date elapsed since the Plaintiff had taken the last step in the proceeding.
For this reason, Gibbs J concluded that in that case the operation of the amendment “….was purely procedural. The amendment did not impair the applicant’s right or bar his cause of action. After the amendment took effect the appellant remained entitled to continue with his action and enforce his right. It is true that it then became necessary for him to take a fresh proceeding in the action before 24th June 1966, unless he could obtain leave of the Court or a judge, whereas previously the rule had allowed him until 24th June 1969 for this purpose. This only means that the rule governing the manner in which the action has to be conducted had been amended. The change was one in procedure; the amendment to the rule affected the manner in which the appellant might proceed in his action for the purpose of enforcing his right but the right remained enforceable. It is also true that the appellant cannot now proceed in the action, and is barred by statute from bringing another action to enforce the right, but that is due, not simply to the fact that the rule was amended, but to the inaction of the appellant or his legal advisers after the amendment was gazetted (emphasis added)”.
Gibbs J went on at pages 241 and 242 to identify other cases where this distinction had been recognised – that is, where the particular facts of a given case could be determinative of whether an amendment could be seen as purely procedural in its effect, or whether it affected some accrued right. In other words, the same amendment could in one case be interpreted as merely procedural, and applicable, but in another as affecting an accrued right, and not applicable.
In the present case, the amendment to subrule 7.06(1) reducing the period of validity for service of the Statement of Claim from 12 months to six months came into force on 12 July 2017. The Plaintiff’s Statement of Claim had already been filed on 9 June 2017. Accordingly, if the amendment applied to his Statement of Claim the Plaintiff still had until 9 December 2017 in which to serve it – an ongoing period of nearly 5 months.
On the evidence before me, the Plaintiff did not serve his Statement of Claim on or before 9 December 2017. Indeed, he had still not done so by 14 March 2018. It was submitted before me on 2 March 2018 that if the amendment was held to apply to this Statement of Claim, and if no extension of time was granted to the Plaintiff in which to extend the period of its validity then the Plaintiff would have to recommence his proceedings and he would then be confronted with a limitation defence. However, in the words of Gibbs J above:
“… that is due, not simply to the fact that the rule was amended, but to the inaction of the appellant or his legal advisers after the amendment was gazetted”.
Subsection 63 (7) Interpretation Act (NT)
This subsection provides:
“(7) Subordinate legislation or a provision of subordinate legislation must not be expressed to take effect or be in terms that it takes effect from a date before the date of notification in the Gazette if:
(a) the rights of a person (other than the Territory or a statutory corporation) existing at the date of notification would be affected in a manner prejudicial to the person”.
Subsection 63(7A) then provides:
“Subordinate legislation or a provision of subordinate legislation made in contravention of subsection (7) is of no effect”.
Subsection 48(2) of the Acts Interpretation Act 1901 (Commonwealth) was formerly in similar terms to subsection 63(7) of the NT Act. Subsection 48(2) was considered by the High Court of Australia in a number of Decisions between 1942 and 1947. In summary, the High Court considered that where subordinate legislation affected only the future operation of existing rights and did not affect such rights before the commencement date of such legislation then it did not contravene subsection 48(2). This is discussed in the text “Delegated Legislation in Australia” – 4th edition by Dennis Pearce and Stephen Argument from page 474 to page 478. The learned authors conclude that subsection 63(7) of the Interpretation Act (NT), as well as a similar Tasmanian provision, would be subject to the same consideration.
I am satisfied that subrule 7.06(1) of the Rules as amended on and from 12 July 2017 is not expressed to take effect from a date before 12 July 2017. I am satisfied that it is not in terms that it takes effect from a date before 12 July 2017.
I am satisfied that while the amendment to subrule 7.06(1) of the Rules coming into force on 12 July 2017 does affect the future operation of proceedings commenced before 12 July 2017, it does not operate so as to have any effect on such proceedings before 12 July 2017.
I am satisfied and I rule that subsection 63(7) of the Interpretation Act does not apply to the operation of subrule 7.06(1) of the Rules as amended on 12 July 2017.
Conclusion as to Effect of Amendment
I rule that the amendment to subrule 7.06(1) of the Rules on 12 July 2017 reducing the period of validity of a Statement of Claim from 12 months to six months applies to the Statement of Claim filed in this proceeding on 9 June 2017. I rule that the Statement of Claim ceased to be valid after Monday 11 December 2017, noting that 9 December 2017 was a Saturday – subsection 28(2) of the Interpretation Act.
Extending the Period of Validity
The Plaintiff has applied in the alternative by order 3 of his application filed 15 January 2018 to extend the period of validity of the Statement of Claim for service. He has sought to rely on rule 2.04 of the Rules. Subrule 7.06(2) provides for such an extension. However, subrule 7.06(3) provides:
“An application for an extension under subrule (2) is to be made on or before the day on which a Statement of Claim ceases to be valid”.
Subrule 7.06(4) allows the Court to make further orders extending the validity of a Statement of Claim more than once, but such further orders are expressly “subject to subrules (2) and (3)”.
The Plaintiff has sought to rely on rule 2.04 which provides:
“The Court may dispense with compliance with a requirement of these Rules either before or after the time for compliance arises”.
Rule 2.04 refers to “compliance with a requirement of these Rules”. This is distinct from the Court’s extending a time fixed by the Rules or by an order of the Court. This situation is separately and specifically dealt with in rule 3.03, which provides:
“(1) The Court may extend or reduce a time fixed by these Rules or fixed, extended or reduced by an order.
(2) Subject to Rule 7.06 (emphasis added), the Court may extend a time under subrule (1) before or after the time expires whether or not an application for the extension is made before the time expires.”
Subrules 7.06(2) and (3) specifically require than an application to extend the period of validity of a Statement of Claim must be made before the Statement of Claim becomes invalid. The power of the Court to extend time set out in rule 3.03 is expressly made subject to rule 7.06.
There is a principle of statutory interpretation that where a particular procedure is designed to achieve something, other general procedures in the same instrument are thereby excluded. In Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (“Anthony Horden”) Gavan Duffy CJ and Dixon J said:
“When the Legislature specifically gives a power by particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power”.
In the present context rule 3.03 is the particular provision of the Rules which “prescribes the mode” for the exercise of an extension or a reduction of a time fixed by the Rules, and it thereby excludes the operation of the general provision in rule 2.04 which might otherwise have been relied upon to extend the period fixed by the Rules for the period of validity of a Statement of Claim.
I rule that rule 2.04 does not empower the Court to extend the period of validity of a Statement of Claim where the application to extend is made after the period of validity has already expired.
Section 44 of the Limitation Act
I received submissions from both parties as to whether the time for service of the Plaintiff’s Statement of Claim could be, or should be, extended for a further period of six months pursuant to the Rules. Both parties addressed the Rules. Both parties made submissions on the evidentiary basis for the exercise of my discretion, if it existed. However, neither party addressed the provisions of section 44 of the Limitation Act (NT).
The relevant provisions of section 44 are set out in subsections (1) and (2) as follows:
“(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character (emphasis added) prescribes or limits the time for:
(a) instituting an action;
(b) doing an act, or taking a step in an action(emphasis added); or
(c) doing an act or taking a step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.
(2) A court may exercise the powers conferred by this section in respect of an action that it:
(a) has jurisdiction to entertain; or
(b) would, if the action were not out of time, have jurisdiction to entertain (emphasis added)”.
Subsection 44(3)(b)(i) limits the factual ambit for an extension of time, but only in respect of a limitation period established by the Limitation Act itself. It has no operation where the limitation period is established by some other Act. In this case the limitation period is established by subrules 7.06 (1) and (3) of the Rules pursuant to the Local Court Act, and subsection 44(3)(b)(i) of the Limitation Act therefore does not apply.
The principle established in Anthony Horden is limited to conflicting provisions in the same instrument. I am satisfied and I rule that it has no application to conflicting provisions in different instruments – that is, in different pieces of legislation. In this case, section 44 of the Limitation Act provides a broad, statutory power for an extension of time whereas the Rules being subordinate legislation provide a subordinate power.
The application of section 44 of the Limitation Act to permit the extension of the period of validity of a Local Court Statement of Claim, even where the period of validity had expired before the extension application was made, was recently considered by Judicial Registrar Johnson of this Court in Sarah Miller v JB HI-Fi Limited [2018] NTLC 10 (“Miller”). That was delivered on 9 March 2018, seven days after the submissions before me on 2 March 2018. Judicial Registrar Johnson in paragraph 19 concluded that section 44 of the Limitation Act granted “the jurisdiction to entertain the Plaintiff’s application as if it were not out of time”. I respectfully agree. That conclusion is plainly properly available on the basis of the wording in subsections 44(1)(b) and (2)(b) above when considered together.
The extension of any time pursuant to section 44 of the Limitation Act and the extent of any such extension, is within the Court’s discretion. That discretion must be exercised judicially.
The considerations for extending the period of validity of a writ in the NT Supreme Court are relevant to an extension pursuant to section 44 of the Limitation Act when that applies to the period of validity of a Statement of Claim in the NT Local Court.
Mildren J of the NT Supreme Court in The Commonwealth of Australia v D.K.B Investments Pty Ltd. [1991] NTSC 58 from page 4 to page 6 identified the following considerations:
“No criteria are set out in the Rules of court which determine the factors to be considered on whether to grant or refuse such an application. Rule 5.12(3) provides that an order may be made before or after the expiry of the Writ. The relevant legal principles which apply to the exercise of the court's discretion in these matters are as follows:
1. The court will not grant the extension unless good reason is shown for the extension: Irving v. Carbines (1982) VR 861; Soper v. Matsukawa (1982) V.R. 948; Kleinwort Benson Ltd v. Barbrak Ltd (1987) 1 AC 597; (1987) 2 WLR 1053.
2. Whether there is good reason depends on all the circumstances of the case. The question whether an extension should be allowed was one for the discretion of the judge who is entitled to have regard to the balance of hardship between the parties and the possible prejudice to the defendant if an extension is allowed: Kleinwort Benson Ltd v. Barbrak Ltd, supra; Zappelli v. Falkiner and Others (Supreme Court of Victoria, O'Bryan J, unreported, 21/9/87).
3. The fact that the action is statute barred if the extension is not granted may be a good reason for extending the Writ. As O'Bryan J observed in Zappelli, supra: “In my view, should the extension not be granted the plaintiff's claim against the defendants may be time-barred and they would have to look to their solicitors for a remedy. Such a result would be inconvenient, time-consuming, wasteful of costs and tend to bring the law into disrepute. Further delay in the prosecution of this proceeding is contrary to the interests of justice”.
This is all the more so where the solicitors are the clients’ own employees, as is the case here. Be that as it may, the fact that the action is statute barred if the extension is not granted does not increase the burden of proof upon the plaintiff: Soper v. Matsukawa, supra; Williams v. F.S. Evans and Sons and District Council of Stirling (1988) 52 SASR 237; Kleinwort Benson Ltd v. Barbrak Ltd, supra.
4. The discretion should only be exercised adversely to the plaintiff where the plaintiff's default has been intentional and contumelious or where there has been inordinate or inexcusable delay on the part of the plaintiff or its solicitors giving rise to a substantial risk that a fair trial is not possible or to a substantial risk of serious prejudice to the defendant: Birkett v. James (1978) AC 297;Van Leer Australia Pty Ltd v. Palace Shopping K.K. and Another (1981) 34 ALR 3; Mahon v. Frankipile (Australia)Pty Ltd (1990) 157 LSJS 52."
Applying these principles to the present case, the application in my opinion must be granted. Firstly, the reason for the delay was ignorance, incompetence and oversight by the Plaintiff’s solicitor; not by a deliberate or contumelious decision on its part or that of its solicitor. Secondly, there is no risk of prejudice to the defendant in this case; indeed, none has been alleged. Thirdly, there is no substantial risk that a fair trial may not be had. The issues to be debated are still able to be litigated - certainly the Defendant has not attempted to show otherwise. Although the onus of showing good reason for granting the extension rest on the Applicant, the Defendant in this regard bears an evidentiary onus to raise facts which it says amount to prejudice, or an inability to obtain a fair trial and if it does not do so, the court may assume that there are none: Williams v. F.S. Evans, supra, at 249 per Bollen J. Although the delay here is very considerable, and the correspondence between the parties did not in specific term alert the Defendant that the Plaintiff intended to sue the Defendant for damages for breach of contract, in the absence of any submission from the defendant that there was substantial risk of prejudice or an inability to get a fair trial, the balance of hardship favours the granting of the extension”.
The evidence before me relevant to the exercise of my discretion to extend the 6 month period of the validity of the Statement of Claim is set out in the affidavit of John Leslie Birrell made 15 January 2018. Mr Birrell is the solicitor at NAAJA for the Plaintiff. No affidavit material was filed on behalf of the Defendant.
The evidence in respect of the length of the delay appears in part from the Court file. That is, the Statement of Claim initiating the proceeding was filed on 9 June 2017 and the Plaintiff’s interlocutory application seeking among other things an extension of the 6 month period was filed on 15 January 2018. I have ruled that the period of validity of the Plaintiff’s Statement of Claim was 6 months, which when calculated from the day after 9 June 2017 - subsection 28(1) of the Interpretation Act - expired after Monday 11 December 2017. Accordingly, I find that the delay was from 12 December 2017 to 14 January 2018 inclusive, a period of 34 days.
I note that the Defendant invited the Plaintiff to serve his Statement of Claim in a letter dated 17 August 2017 – annexure JGB-4 to Mr Birrell’s affidavit. I note that the Plaintiff did not accept that invitation and that the Statement of Claim remained unserved as at 14 March 2018 when this application was last argued before me.
The Plaintiff’s explanation for not serving the Statement of Claim is set out in subparagraphs 7(b) and 7(c) of Mr Birrell’s affidavit. This is first, that the Plaintiff wished to engage the Defendant in pre-litigation negotiations along the lines of the Supreme Court’s Practice Direction 6 of 2009. This shows a basic misunderstanding on the Plaintiff’s part. Practice Direction 6 of 2009 is a Practice Direction of the Supreme Court of the Northern Territory. It has no application to the practice and procedure in the Local Court. It is of course always desirable that parties to actual or potential litigation talk to each other and disclose their positions in good faith with a view to a prompt and economical resolution of their dispute. However, that approach is not specifically provided for in our Local Court jurisdiction. It is certainly not mandated. Accordingly, a desire on the part of one party to negotiate rather than litigate a dispute does not fetter the options nor limit the rights of another party, and it does not excuse the first party from complying with time limits in the Rules for either the filing or the service of the initiating Statement of Claim.
The Plaintiff by his lawyers further explained his delay on the basis he was awaiting the completion of the taking of evidence and then the Report of the Royal Commission into the Protection and Detention of Children in the Northern Territory late in 2017 (“the Royal Commission”). I accept that this might well provide a basis for delay in drafting a Statement of Claim while awaiting details of evidence and a statement of principles potentially relevant to drafting pleadings. It is not clear however why the ongoing proceedings of the Royal Commission provided any basis for a delay in serving a fully pleaded Statement of Claim which had been prepared and filed as early as 9 June 2017.
I note there is no evidence before me of any prejudice to the Defendant if the validity of the Plaintiff’s Statement of Claim is extended for any period.
I am satisfied that the Plaintiff’s claim will be statute-barred pursuant to section 215B of the Youth Justice Act if the period of validity of the Statement of Claim is not extended. Although the time in that eventuality could theoretically be extended by an application pursuant to section 44 of the Limitation Act, it is preferable that such issues be considered now in the context of this application and without the restriction which would arise in a later application pursuant to subsection 44(3)(b)(i) of the Limitation Act .
I note numbered paragraph 4 in the above observations of Mildren J. I am satisfied and I find that the Plaintiff’s delay was not “intentional and contumelious”. I find there has not been “inordinate or inexcusable delay on the part of the Plaintiff or its solicitors giving rise to a substantial risk that a fair trial is not possible or to a substantial risk of serious prejudice to the Defendant”.
I am satisfied on balance that the validity of the Plaintiff’s Statement of Claim filed 9 June 2017 should be extended for a period of six months. I do not commence those additional six months from the date of these Reasons. Rather, I will commence them from the date the Statement of Claim ceased to be valid, on 11 December 2017. This means that the Statement of Claim will now be valid to be served up to and including 11 June 2018.
Suppression Order
Publication suppressed
Costs
The Plaintiff sought an order for the costs of his interlocutory application dated 15 January 2018. However the Plaintiff has been unsuccessful on the issues involved in orders 1 and 2 of that application. He has been granted an extension of time as sought in order 3 but not on the basis submitted. In any event, the extension of time sought in order 3 is an indulgence which is required because of the Plaintiff’s own conduct and not because of any act or omission on the part of the Defendant.
The questions raised by this application were substantial. I am satisfied the usual starting point that the parties bear their own costs of an interlocutory application is not appropriate here. The Defendant will have its costs.
Orders
Pursuant to subsections 57(1)(b)(ii) and (iii) of the Evidence Act all oral submissions made and written submissions and affidavit material filed in relation to the suppression of the names of the Plaintiff and his litigation guardian, together with the part of the Decision of Judge Neill given 10 May 2018 in this proceeding under the heading “Suppression Order”, are forbidden to be published except to the parties and within the Court.
The Plaintiff’s application to suppress his name and the name of his litigation guardian is otherwise dismissed and interim order 1 made by Judge Macdonald on 22 January 2018 is revoked.
Subrule 7.06(1) of the Local Court (Civil Procedure) Rules as amended on 12 July 2017 applies on and after 12 July 2017 to the period of validity of the Plaintiff’s Statement of Claim filed 9 June 2017.
Pursuant to subsection 44(1)(b) of the Limitation Act the time in which the Plaintiff may serve his Statement of Claim filed on 9 June 2017 is extended to 4:00pm on Monday 11 June 2018.
The Plaintiff pay the Defendant’s costs of and incidental to the interlocutory application dated 15 January 2018 certified fit for counsel, to be taxed in default of agreement at 100% of the Supreme Court scale.
Dated this 10th day of May 2018
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