Smith v Council of the Shire of Wakool - [2002] NSWSC 964

No judgment structure available for this case.

CITATION: Smith v Council of the Shire of Wakool [2002] NSWSC 964

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 10106/02

HEARING DATE(S): 8 October 2002

JUDGMENT DATE: 17 October 2002

PARTIES :

Christopher Ernest Smith (Appellant)
Council of the Shire of Wakool (Respondent)

JUDGMENT OF: Studdert J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 699/98

LOWER COURT
JUDICIAL OFFICER : Mr A.C. O'Donaghoe

COUNSEL : M. Kumar (Appellant)
M. Green (Respondent)

SOLICITORS: Farrell Lusher (Appellant)
Phillips Fox (Respondent)

CATCHWORDS: Appeal from Local Court - application to amend statement of claim - application refused - whether exercise of discretion miscarried. Local Courts (Civil Claims) Rules - Pt 16 r 4 - whether rule ultra vires.

LEGISLATION CITED: Limitation Act
Supreme Court Act
Local Courts Act
Trade Practices Act
Suitors Fund Act

CASES CITED: House v The King (1936) 55 CLR 499
The State of Queensland v J.L. Holdings Pty Limited (1997) 189 CLR 146
Australia & New Zealand Banking Group Limited v Larcos (1987) 13 NSWLR 286
Weldon v Neal (1987) 19 QBD 394
Jennings v Credit Corporation Australia (2000) 48 NSWLR 709

DECISION: See para 31

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 17 October 2002

10106/02 CHRISTOPHER ERNEST SMITH v COUNCIL OF THE SHIRE OF WAKOOL
JUDGMENT

1 HIS HONOUR: This is an appeal from a decision of the Local Court at Wagga Wagga. The appellant, Chris Smith, was the plaintiff in proceedings before that court, and in those proceedings he sued the Council of the Shire of Wakool, seeking damages for conversion. His claim was unsuccessful and the learned magistrate determined the action in the defendant’s favour. The appellant contends that in so deciding the action the magistrate erred in law.

2 According to the appellant’s statement of claim as originally filed in the Local Court, the action below concerned sixty-eight head of cattle owned by the appellant which were impounded “on or about 11 August 1992”. That pleading further asserted conversion by the defendant “on or about 12 August 1992”. That statement of claim was filed on 14 August 1998 and on 23 October 1998 the respondent’s solicitors wrote to the appellant’s solicitors seeking particulars of the claim. However, the letter for particulars began:

“We note that your client’s alleged claim against our client is statute barred. Please make the relevant application to the court to seek leave to commence proceedings and serve the appropriate documentation on us in due course.”

3 The appellant did not act on the invitation to apply to the court for leave and, indeed, the respondent did not plead the statute of limitations in its defence until given leave to do so at the hearing.

4 In responding to the request for particulars abovementioned, by letter dated 11 December 1998 the appellant’s solicitors expressed the conversion date as being “15 August 1992” (para 2), but also particularised the critical date as being “17 August 1992” (para 4). Curiously, however, the appellant’s solicitor did not take the opportunity when writing that letter to spell out that it was the plaintiff’s case that the tort of conversion was committed on 17 August 1992 when the cattle were sold. If that was the date that the appellant’s cause of action arose, the Limitation Act did not bar the pursuit of the claim.

5 When the action came on for hearing on 18 December 2001, the appellant sought to amend his statement of claim by adding further particulars of the claim in conversion and by adding an alternative basis for the claim in negligence. The respondent opposed this application and it was refused by the magistrate. The appellant does not challenge that decision here.

6 For its part, the respondent sought leave to amend its defences and the transcript records:

“GLASCOTT: Your Worship, I have a further amended notice of grounds of defence which was served a long period of time ago, and I seek to file that in court. That was notified to the plaintiff’s solicitors I think it may have been early this year or late last year. My instructing solicitor is just checking that now, your Worship. It adds one further defence which is under the Limitation Act, and this – it’s alleged that the claim is in fact out of time, the six year limitation period having expired before the filing of the statement of claim. That is the only further matter the further amended notice of grounds of defence raises. I’d seek to file that in Court, your Worship.

BENCH: Ms Brook?

BROOK: I’m sorry, your Worship, what--

BENCH: Well Mr Glascott’s seeking to file that document, what are your views?

BROOK: I’ve got no objection to that.

BENCH: No objection?

BROOK: To the defence going in.

BENCH: All right. It is a little late, I would have rejected it clearly if you’d have objected, but BY CONSENT AMENDED DEFENCE MAY BE FILED.”

7 The amended defence raised squarely the defence under the Limitation Act.

8 The appellant also sought to amend the date of the alleged conversion in the statement of claim first filed by substituting for “on or about 12 August 1992” the date “17 August 1992”. The transcript records that the solicitor for the respondent informed the court there was no issue as to the date on which the cattle were sold. I record here a further passage from the transcript of proceedings:

“GLASCOTT: Well your Worship, yes, that does meet the claim, and that is the case. There is no issue as to the date of the actual sale. The claim does raise that the act of conversion occurred on 12 August but if that’s sought to be amended to 17 August that would then overcome the defence raised under the Limitation Act.

BENCH: Well what do you say about whether I – perhaps short of allowing an amended statement of claim to be filed at this late stage, what do you say about amending – if I permit the amendment that’s sought to the statement of claim at this late stage?

Unless there’s a further particular added to clarify the act of conversion being 17 August, I anticipate that’s what my friend intends to allege, I formally object to that. But I cannot say that 17 August is the incorrect date of sale

BENCH: You object on the basis – on what basis, the delay or--

I am in this position, your Worship, that I can meet it

BENCH: You could still meet it even if I granted it at this stage of the claim, but--

GLASCOTT: Yes, yes, I concede that. I am not taken – I am not prejudiced by that allegation in the current circumstances.

BENCH: But if it’s not granted – I mean you say you’d be arguing that the Statute of Limitations would prevent – would preclude the matter continuing really.

GLASCOTT: That’s right.

BENCH: I haven’t looked at the Act, is there any dispute as to that if that was the case, Ms Brook?

BROOK: Your Worship, our position would be that the act of conversion occurred on 17th and therefore the matter is within the limitation period as action was commenced on 14th, three days within the end of the limitation period, your Worship.”

(Emphasis added)

9 The learned magistrate refused to allow the amendment sought by the appellant by substituting the later date of the conversion and then proceeded to determine the action against the appellant without hearing any evidence. In fairness, however, I would point out that it would seem from something that was said by the solicitor for the appellant that unless the sale date of 17 August 1992 was the relevant date the claim would be defeated by the statute.

10 It is desirable that I here record the reasons for the decision reached in the Local Court in their entirety:

“This is an action commenced by Chris Smith against the Council of the Shire of Wakool. The action was commenced in the Wagga Local Court on 14 August 1998 and the cause of action is that the plaintiff was the owner of 68 head of cattle, the subject of claim; that the defendant was a body created by the Local Government Act; on or about 11 August 1992 the plaintiff alleges that the defendant impounded 68 head of cattle owned by the plaintiff; on or about 12 August 1992 the defendant proceeded to convert the stock unlawfully and has wrongfully deprived the plaintiff, and the plaintiff claims damages as a result. A defence was filed on 15 December in general and broad terms and no doubt had there been any motion in relation to that that defence would have been struck out as it certainly lacked particularisation.

The matter has some considerable history before the Court because it came before the registrar on 21 July 2000 and a motion was dealt with on that day. But a direction – and a direction was made by the registrar that particulars required by one of the parties be supplied within 14 days. The matter then came before this Court on 1 September 2000 and the registrar noted that the particulars were still outstanding, and he made a further order that all outstanding particulars are to be supplied, and adjourned the matter then until 29 September 2000. It appears that further particulars still were outstanding on that day and he directed again that particulars be provided within 14 days. He directed an exchange of statements by 24 November 2000 and that statements of agreed facts and issues be filed by 8 December 2000, and adjourned the matter to 15 December 2000 for review.

On that day another registrar dealt with the matter and noted the file “Neither party has complied with the timetable. It is to be fully complied with by 15 January” and then he or she adjourned the matter then to 19 January. On that day a further order made by the registrar, “Statements to be exchanged by 2 February 2001”, and he adjourned the matter to 16 February 2001. On that – it’s very difficult to read the registrar’s handwriting, but a hearing was set on 25 June, although the matter was adjourned to 11 May 2001, for confirmation of the hearing date.

On that date the hearing date of 25 June was confirmed. On 12 June 2001 the matter was re-listed before the Court and for some unknown reason her Worship, my colleague, vacated the hearing on 25 June and adjourned the matter to today for hearing and indeed it had priority in the diary today and I was ready to commence and the matter at 10am. For some reason – for various reasons, unexplained, the parties weren’t ready to commence and the matter commenced a little bit late in time.

As a threshold, prior to the hearing commencing, the plaintiff sought at this stage to file an amended ordinary statement of claim, and the defence opposed that, and it said that it received notice of that some 15 minutes before the application was made. However, the defence also sought to file an amended defence, but it says notice had been given of that some time last year to the plaintiffs and although I indicated in my determination that likewise I would have refused the filing of that document it was agreed to by the plaintiff that that amended defence could be filed. It raised, in addition to matters originally referred to in the original defence, that the defendant claimed that the plaintiff’s statement of claim is statute barred under section 14(1)B of the Limitation Act 1969. And although that defence was filed by consent, that amended defence was filed by consent, it would be – remain in issue as to whether in any event I suppose the defendant could have raised that proposed defence, or that issue, even if it’s not raised as a defence, as an issue in the proceedings given its contention that the matter is statute barred.

The Limitation Act 1969 indeed provides at s 14(1)B that “An action on any of the causes listed in the section is not maintainable if brought after the expiration of a limitation period of six years running from a date on which the cause of action first accrues to the plaintiff and excludes areas relating to compensation to relatives and contribution between tortfeasors.” And the terms of that section are quite clear.

The plaintiff raises, however, that there has never been any issue between the parties that the date of the alleged conversion was 17 August. However the defence in its submissions today says that the conversion commenced on the date the cattle were impounded and some authority is relied on in relation to that. The plaintiff says that the act of conversion didn’t commence until the council made a decision to actually convert the stock, to sell it or to do otherwise what it proposed to do given the alleged failure of the plaintiff to pay whatever fees were required in respect of the cattle, and there seems to be a reasonable argument on both sides.

Both the plaintiff and the defendant say that the conversion, the act of conversion occurred on different dates. If the plaintiff’s arguments are accepted the date of conversion might well have been after 14 August 1992, in which case the action wouldn’t have been statute barred. If the defendant’s argument is true obviously the date of conversion is, in any event, before 14 August. On its argument the date the cattle were impounded, 11 August, and clearly the action would be statute barred. In any event, on the surface it is statute barred given the dates that are referred to in the statement of claim, the amendment to which I haven’t granted based on the argument of the defence, given the lateness in time in which it was filed, a notice given to the defence 15 minutes before the submission was made on this the hearing day.

So I suppose it could be said in some ways that the defence, at this stage, is taking a fine technical point in relation to relying on the Limitation Act . There is some commentary, and there have been decisions in relation to the statutes of limitation and limitation periods, and indeed Pt 16 r 4 of the Local Courts Civil Claims Rules 1988 canvasses statutes of limitation and provides circumstances in which a court may, with leave, amend any mistake made so as to allow matters to proceed. Subsection (3) of that rule, for example, r 4, indicates that “Where there has been a mistake in the name of the party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make the amendment to correct the mistake whether or not the effect of the amendment is to substitute a new party. Where on or after the date of filing a statement of claim is or becomes entitled to sue in any capacity the Court may order that the plaintiff have leave to take an amendment having the effect that the plaintiff sues in that capacity”.

There’s leave granted to allow the filing of a new cause of action and there is some law in terms of decisions of McGee v Yeomans in 1977. It seems some authority in a decision of Proctor v Jetway Aviation Pty Limited in 1984 to the effect that the rule, r 5, “empowers a court to amend a statement of claim to include a cause of action the limitation period in respect has expired after the statement of claim was filed.” and that “That rule”, it said, “in terms of change of name in any event, displaces a rule of practice laid down in a decision of Weldon v Neil in 1887, that except in very peculiar circumstances an amendment will not be allowed which sets up a cause of action which at the time of the amendment is barred by a statute of limitations”. And it’s reinforced that r 4 endows a court with “a general discretion, when justice so requires, to allow an amendment, notwithstanding that it raises a statute barred cause of action”. There has also been some consideration of the fact that “it is not possible by judicial decisions to establish in advance categories of amendments which it would be just or unjust to allow. The discretion having been set free should not again be contained by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff if the amendment is refused and the prejudice to the defendant if it is granted”.

So that decision more or less indicates that notwithstanding the content of the rule, r 4, Pt 16 r 4, and notwithstanding the Legislation itself which appears to be in strict terms, s 14(1)B of the Limitation Act , there is some discretion allowed by the Civil Claims Rules for a court to consider an amendment such as this. And in doing that, and determining whether I should grant the amendment, it’s a matter of considering all the circumstances.

I am not sure what the situation would be as to the precise date of impounding. It’s possible that based on any legal interpretation of the decisions, and even the commentaries by the noted writers in the areas of torts and negligence, that there may be some substance in the argument in fact that the action of conversion didn’t commence in this case until the council made a decision to dispose of the stock other than be returning them to the defendant. That may well be a cogent argument that could be made in the proceedings.

Someone needs to look at the circumstances and the history of this matter, and I have already outlined the history of the matter in terms of the default, it would appear, by both parties for, on various occasions over periods of months, a failure to comply with the timetable set by the Court. In recent time, although they haven’t yet commenced, the Chief Magistrate of New South Wales has set a very stringent set of guidelines applying to matters before this Court, and they commence during the next sittings of the Court after this week. They commence on 7 January next year. I think, although it’s not referred to in the practice notes that her Worship the Chief Magistrate has released, she has made commentary in various addresses to particularly Local Courts organisations that she doesn’t believe the Local Court should become a repository for plaintiffs and defendants who seek to file actions and run the actions over a number of years having the matters appearing before the registrars of the Court, and before magistrates of the Court, or being listed before registrars or magistrates of the Court over lengthy periods of time. And she expects, quite rightly, strict compliance with those practice directions. I stress though in effect of practice notes they have not commenced and will not commence until 7 January.

But I wonder in looking at the way this matter has been conducted whether it would fall squarely within the practice notes that have been developed to achieve certain time standards both in the criminal and civil jurisdiction of this Court. I would think that this matter squarely fits within that description because it’s not until the hearing date, until I call upon the parties to commence the case and to commence to lead evidence in the case, that the plaintiff seeks to file an amended ordinary statement of claim which inter alia seeks to amend any possible deficiency in terms of the cause of action.

Now I am aware of the weight of those authorities and the fact that there is discretion, and the fact that the Court shouldn’t be confined by rigid technicalities in terms of applications of these – well in this case this Legislation as to the statute of limitations, but it seems to me most unusual indeed that this would be left to a point in time in the proceedings where the first witness is called to give his or her evidence. It’s got to be remembered of course also that the matter has been to an arbitrator for determination. Quite properly the details of that are not available to me, and I understand this matter is now before me by way of an application for a re-hearing based on the arbitrator’s determination.

It seems to me rather amazing, having regard to the contents of exhibit 1, a letter from Phillips Fox addressed to Farrell Lusher dated 23 October, which opens “We act for Wakool Council in the above proceedings. We note that your client’s alleged claim against our client is statute barred. Please make the relevant application to the Court to seek leave to commence proceedings and serve the appropriate documents on us in due course”. That letter is dated 23 October 1998. On the day of the hearing today the plaintiff seeks to amend its claim and I regard that as most extraordinary in the circumstances. And although I don’t believe it’s appropriate to rule on the question of when the act of conversion actually commenced, it is in my view that the amendment should not be allowed and BY VIRTUE OF S 14(1)B OF THE LIMITATION ACT , I ENTER A VERDICT FOR THE DEFENDANT IN THE ACTION.”

11 The decision to refuse the appellant the opportunity to amend the statement of claim so as to substitute the date of sale was a decision which involved the exercise of a discretion. It is not sufficient for the appellant to persuade this Court that it would have been appropriate to exercise the discretion with a different result. Rather what the appellant must show is that the exercise of discretion involved error, and I refer to the much cited joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

12 It has been submitted that the reasons expressed by the magistrate reveal a number of errors which caused the exercise of the court’s discretion to miscarry. I summarise the reasons expressed by Ms Kumar as follows:

(a) the magistrate did not pay any expressed regard to the acknowledgement by the respondent that it was in a position to meet the amendment and would not be prejudiced by it. Hence the amendment would have caused no delay of the hearing;

(b) allied to this was the concession that the date upon which the cattle were sold was not in issue (see para 8 above);

(c) particulars had been given by the appellant that the date of sale was 17 August 1992;

(d) the magistrate did not pay due regard to the fact that the amendment sought was to substitute for what was a non specific conversion date (namely one expressed to be “on or about”) a specific date which it was common ground was the date upon which the cattle were sold;

(e) an examination of the reasons of the magistrate shows that the magistrate determined the claim to be statute barred without first determining the event which caused the action to accrue. Did the action arise when the cattle were impounded or when they were subsequently sold? It was submitted that the magistrate reasoned inconsistently in determining that it was not “appropriate to rule on the question of when the act of conversion actually commenced” whilst at the same time determining “by virtue of s 14(1)(b) of the Limitation Act” the respondent was entitled to a verdict and judgment (para 10 above);

(f) the magistrate was influenced in his decision to refuse to allow the appellant to amend the date by the understanding that there had been an earlier arbitration (see para 10 above). It is common ground that there was no arbitration in this case;

The State of Queensland v J.L. Holdings Pty Limited

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

13 It seems to me that there is much substance in the appellant’s submission that the exercise of discretion miscarried in the present case. In my opinion, since the respondent was able to meet the amendment without the necessity for any adjournment, justice required that the amendment be allowed. Moreover, it seems to me to be clear that the magistrate misdirected himself and was influenced in the decision he reached to refuse the amendment by the mistaken belief that there had been some earlier arbitration hearing which should have alerted the appellant to the need to articulate his amendment application earlier.

14 Having declined to allow the amendment, the magistrate found that the claim was statute barred, and this was the finding that determined the outcome of the action. No such finding could be made without first determining the date upon which the cause of action first accrued: s 14(1) of the Limitation Act, 1969. The learned magistrate did not determine this critical date.

15 I am persuaded by the appellant’s submissions, and for the above reasons, that the exercise of discretion in refusing the amendment miscarried.

16 Mr Green, in his extremely thoughtful and thorough submissions, argued that this Court ought not to disturb the decision of the magistrate. He argued that Pt 16 r 4(5A) of the Local Courts (Civil Claims) Rules is ultra vires. This rule provides relevantly:

“4 Statutes of limitation

(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the court may, in the circumstances mentioned in that subrule, make an order giving leave accordingly, notwithstanding that that period has expired .

(2) (Repealed)

(3) …..

(4) …..

(5) Where a plaintiff, in a statement of claim, makes a claim on a cause of action arising out of any facts, the court may order that the plaintiff have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim on that new cause of action.

(5A) An amendment made pursuant to an order made under this rule shall, unless the court otherwise orders, relate back to the date of filing of the statement of claim .

(6) This rule does not limit the powers of the court under rule 1.”

17 Mr Green submitted that the above rule cannot revive a claim where the Limitation Act has already extinguished it. In short, he submitted the Local Court Rule cannot override the effect of the express provisions of the Limitation Act, and in particular in the present context s 14.

18 It is to be observed that the Local Court Rule above set out is the counterpart of Pt 20 r 4 of the rules of this court. However, Mr Green drew attention to s 6 of the Supreme Court Act, and that provides:

“6 Inconsistency with rules

Any Act in force immediately before the commencement of this Act which is inconsistent with the rules is superseded to the extent of such inconsistency and while such inconsistency continues to exist.”

19 Mr Green argued that absent a counterpart to s 6 in the Local Courts Act, Pt 16 r 4(5A), to the extent that it purports to avoid the effect of the Limitation Act, is beyond power.

20 I do not accept that submission, preferring the submissions advanced on behalf of the appellant by Ms Kumar, who adopted the earlier written submissions of Mr Gow.

21 There is no inconsistency between the provisions of the Limitation Act and the provisions of the relevant rule. What the rule does is, in essence, to determine when the cause of action pleaded is regarded as having been expressed, that is at the date of filing of the statement of claim.

22 In reaching this conclusion, I have had the advantage of considering the authorities to which I shall now refer and with the reasoning in which I respectfully agree.

23 In Australia & New Zealand Banking Group Limited v Larcos (1987) 13 NSWLR 286 Rogers J had occasion to consider the effect of Pt 20 r 4 of the Supreme Court Rules, determining that it gave the court power to allow amendments notwithstanding the earlier expiration of a statutory limitation. The effect of the rule was to displace the rule of practice expressed in Weldon v Neal (1987) 19 QBD 394 at 395 by Lord Esher MR:

“We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

24 In Larcos an amendment to pleading was allowed outside the three year limitation period set by s 82 of the Trade Practices Act and before allowing the amendment Rogers J rejected a submission that Pt 20 r 4 was invalid as being inconsistent with s 82(2) of the Trade Practices Act. His Honour said (at 295):

25 Larcos was applied in Jennings v Credit Corporation Australia (2000) 48 NSWLR 709. In Jennings Santow J had occasion to consider the retroactive operation of Pt 16 r 4 of the Local Courts (Civil Claims) Rules and its relationship to the Limitation Act. His Honour said (at para 52):

“As was said by Rogers J in Australia & New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286, regarding the comparable provision of Pt 20, r 4 of the Supreme Court Rules 1970, it is the rules of court which determine when an action is taken to be brought for limitation purposes. It is not the limitation statute, which itself is a procedural not substantive law: McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1.”

26 Later (at para 61) Santow J said:

“But even apart from those reasons, the relevant Local Courts (Civil Claims) Rules 1988, which define for limitation purposes when an action is brought, here operate with retroactive effect, even if the action otherwise failed to stop time running when first brought. The order for substitution presupposes both assignments have been effected and confirms their outcome, in terms of the identity of the plaintiff. The getting in of the legal estate after the limitation period had expired thus permits the substitution order. This when made operates retroactively by force of Pt 16, r 4, to the date of the original statement of claim, like the ratification of an agency, notwithstanding that the limitation period has expired.”

27 The Limitation Act provisions and Pt 16 r 4 address differing ends. It is the rule which determines when the action is considered to have been commenced, and this in the context of considering when an action is taken to be brought for the purposes of the Limitation Act. Part 16 r 4 allows an amendment, the effect of which is to determine that the claim as expressed following the amendment is taken as expressed on the date of filing of the pleading. The rule is, in my view, intra vires.

28 Mr Green next submitted that even if the amendment was allowed with accompanying retrospective effect under Pt 16 r 4, the action would still be barred because of the operation of s 21 of the Limitation Act. That section provides:

“21 Successive wrongs to goods

Where:

(a) a cause of action for the conversion or detention of goods accrues to a person, and

(b) afterwards, possession of the goods not having been recovered by the person or by a person claiming through the person, a further cause of action for the conversion or detention of the goods or a cause of action to recover the proceeds of sale of the goods accrues to the person or to a person claiming through the person,

an action on the further cause of action for conversion or detention or on the cause of action to recover the proceeds of sale is not maintainable if brought after the expiration of a limitation period of six years running from the date when the first cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

29 It was submitted that the appellant’s case properly analysed involved a conversion prior to the date of sale and at the time when the cattle were first impounded. If this be correct, that earlier conversion was more than six years before the filing of the statement of claim because the cattle were seized, according to the pleading, on 11 or 12 August 1992. Hence s 21 operated to bar an action for conversion on the later date upon which the appellant was seeking to rely. On the other hand, the appellant submitted that the only conversion occurred on the date of sale so that s 21 is not enlivened.

30 Mr Green referred to a number of authorities which would bear upon the nice question as to the date upon which any conversion may be found to have occurred. However, it seems to me that the competing submissions I have recorded above emphasise that there are factual issues that cannot be determined on this appeal and which can only be determined in the Local Court. The question as to if and when conversion occurred may well involve consideration of earlier authorities but that consideration must await the determination of the relevant factual issues.

31 The conclusion I have reached therefore is that this appeal should succeed and I now make the following orders:

1. An order allowing the appeal and setting aside the judgment of the Local Court of 18 December 2001.

2. An order that the appellant be granted leave to amend his statement of claim filed in the Local Court on 14 August 1998 by substituting for the date expressed in para 4 the following date: “17 August 1992”.

3. An order that the matter be remitted to the Local Court at Wagga Wagga for retrial.

4. An order that costs of the first trial abide the outcome of the second trial in the Local Court.

5. An order that the respondent pay the appellant’s costs of the appeal to this court.

**********

Last Modified: 10/18/2002

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Citations

Smith v Council of the Shire of Wakool [2002] NSWSC 964

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CITATION:	Smith v Council of the Shire of Wakool [2002] NSWSC 964
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 10106/02
HEARING DATE(S):	8 October 2002
JUDGMENT DATE:	17 October 2002
PARTIES :	Christopher Ernest Smith (Appellant) Council of the Shire of Wakool (Respondent)
JUDGMENT OF:	Studdert J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	699/98
LOWER COURT JUDICIAL OFFICER :	Mr A.C. O'Donaghoe

COUNSEL :	M. Kumar (Appellant) M. Green (Respondent)
SOLICITORS:	Farrell Lusher (Appellant) Phillips Fox (Respondent)
CATCHWORDS:	Appeal from Local Court - application to amend statement of claim - application refused - whether exercise of discretion miscarried. Local Courts (Civil Claims) Rules - Pt 16 r 4 - whether rule ultra vires.
LEGISLATION CITED:	Limitation Act Supreme Court Act Local Courts Act Trade Practices Act Suitors Fund Act
CASES CITED:	House v The King (1936) 55 CLR 499 The State of Queensland v J.L. Holdings Pty Limited (1997) 189 CLR 146 Australia & New Zealand Banking Group Limited v Larcos (1987) 13 NSWLR 286 Weldon v Neal (1987) 19 QBD 394 Jennings v Credit Corporation Australia (2000) 48 NSWLR 709
DECISION:	See para 31