Ralph Gilbert Darson and Seas Sapfor Harvesting Limited v Electricity Trust of South Australia No. SCGRG 89/263 Judgment No. 4004 Number of Pages 3 Limitation of Actions

[1993] SASC 4004

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MILLHOUSE J

CWDS
Limitation of actions - extension of time for bringing action - plaintiffs failure to institute the action "representations or conduct of the defendant" - "all the circumstances of the case" - Held - limitation of time applies only to placitum (ii) and does not fetter discretion as to "the circumstances". Limitations of Actions Act s48(3)(b)(ii). Lovett v Le Gall 10 SASR 479, applied.

HRNG ADELAIDE, 2 June 1993 #DATE 25:6:1993
Counsel for plaintiff:     Mr B Lander
Solicitors for plaintiff:    Piper Alderman
Counsel for respondent:     Mr R White
Solicitors for respondent: Mouldens

ORDER
Appeal allowed.

JUDGE1 MILLHOUSE J Appeal from a Master. He struck out some particulars from a paragraph in a Statement of Claim because of the interpretation he put on s48(3) of the Limitation of Actions Act. 2. The action arises out of a bushfire in the South-East on 16 February 1983. The third plaintiff seeks an extension of time within which to take its proceedings. (In the Statement of Claim the third defendant is described as the "fourth named" plaintiff: the Master's order had the effect of removing another plaintiff thus making the plaintiff previously fourth now the third; there is no appeal against his order removing the other plaintiff.) 3. The Statement of Claim is a long one but only three paragraphs are relevant:-
    "24. Facts material to the fourthnamed plaintiff's case were not
    ascertained by it until a point in time occurring after the
    expiration of the period of limitation in tort prescribed by
    Section 35 of the said Act (namely 16th February 1989), and this
    action by the fourthnamed plaintiff was instituted within 12
    months after the ascertainment of the facts by the fourthnamed
    plaintiff.
    (1) In May 1991 the fourthnamed plaintiff first learned that the
    defendant asserted that it was not a party to the Narraweena
    Agreement.
    (2) At the same time, the fourthnamed plaintiff first learned that
    the defendant asserted that the fourthnamed plaintiff was not a
    party to an agreement made on or about 10th February 1989, whereby
    the defendant agreed not to plead the provisions of the Limitation
    of Actions Act against the claim made by the fourthnamed plaintiff
    in these proceedings.
    25. Furthermore, or in the alternative to the matters alleged in
    paragraph 24 hereof, the fourthnamed plaintiff's failure to
    institute its action in tort within the period of limitation
    prescribed by Section 35 of the Act resulted from the
    representations and conduct of the defendant, or of the solicitors
    for the defendant (being persons whom the fourthnamed plaintiff
    reasonably believed were acting on behalf of the defendant) and
    was reasonable in view of those representations and that conduct
    and other relevant circumstances.
    ... (There follow a long list of particulars dating from 4
    February 1988 to 17 April 1991.)
    26. In the circumstances referred to in paragraphs 24 and 25
    hereof:-
    26.1 The fourthnamed plaintiff claims that it is just tht the
    period of limitation be extended; and
    26.2 The fourthnamed plaintiff claims the defendant is estopped
    from denying, or alternatively, has waived its right to allege,
    that:
    26.2.1 The fourthnamed plaintiff is not a party to the Narraweena
    Agreement; and
    26.2.2 The fourthnamed plaintiff has failed to institute its claim
    within the period required by section 35 of the Limitation of
    Actions Act.
    The Master has struck out all the particulars in paragraph 25
    referable to matters after the 16 February 1989.
    Whether he should have granted the application of the defendant to
do so turns on the meaning of s48(3)(b)(ii) of the Act:-
    "(3) This section does not-
    .............
    (b) empower a court to extend a limitation of time prescribed by
    this Act unless it is satisfied-
    ..........
    or
    (i) ........... or
    (ii) that the plaintiff's failure to institute the action within
    the period of the limitation resulted from representations or
    conduct of the defendant, or a person whom the plaintiff
    reasonably believed to be acting on behalf of the defendant, and
    was reasonable in view of those representations or that conduct
    and any other relevant circumstances, and that in all the
    circumstances of the case it is just to grant the extension of
time." 4. The Master gave no written reasons for his decision. I have read the transcript of argument before him. In the course of it Mr I Robertson for the plaintiffs said:- " And that's the point: that the period from the expiration of the limitation period to the date of institution of proceedings is relevant ............. otherwise no overall assessment can be made." The Master replied, "I can't accept what you are saying." Thus his decision. 5. The point at issue is this: whether the limitation applies both to the "representations or conduct of the defendant" and to "all the circumstances of the case" or whether the limitation applies only to the former, allowing a Court to take into account "all the circumstances of the case" up to the institution of the proceedings. 6. Mr Bruce Lander QC, for the appellants, argued that the representations must be made within the period of limitation but that the discretion to consider "all the circumstances of the case" was at large, without restriction as to time. 7. He relied on several passages in the reasons of Judge White (as he then was) in Lovett v Le Gall (10 SASR 479) to the effect that passing the test in placitum (ii) is a condition precedent to the exercise of discretion: placitum (ii) imports a time limit but once the condition precedent has been met then time is not relevant to the exercise of the discretion: a Court may take into account everything that has happened between the parties at any time. 8. Mr Richard White, for the defendant/respondent, on the other hand, argued that it is a matter of the state of the pleadings: much of what is pleaded in paragraph 25 is not relevant to that paragraph and should therefore be struck out: the plaintiffs/appellants can then take their chance of being allowed to amend paragraph 26 where it may be relevant. (I should say that the Master in his order gave leave to the plaintiffs to file an amended Statement of Claim.) 9. I think Mr White's argument is a most technical one. In my view it would be absurd to fetter a Court's discretion, quite artificially, by imposing a cut-off time beyond which it could not, in the exercise of its discretion, take account of the actions of the parties. That would be a most restrictive interpretation of s48(3)(b)(ii), one which I am not willing to accept without the strongest indication in the wording that I am bound to do so. I can see no such indication. 10. I accept Mr Lander's proposition that the limitation of time applies only to placitum (ii) and does not extend to "the circumstances" which make it "just to grant the extension of time." 11. Those words are at large and govern both placitum (i) and placitum (ii) but they are not part of either placitum: they are separated from both placita and not governed by the time restrictions within the placita. The appeal is allowed and I shall hear counsel as to the order I should make.