The Griffin Coal Mining Company Pty Ltd v Wigmores Tractors Pty Ltd (in liq) - [2000] WADC 316

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THE GRIFFIN COAL MINING COMPANY PTY LTD -v- WIGMORES TRACTORS PTY LTD (in liq) & ORS [2000] WADC 316

CORAM: COMMISSIONER LEY

HEARD: 23 FEBRUARY 2000

DELIVERED : 6 DECEMBER 2000

FILE NO/S: CIV 6799 of 1992

BETWEEN: THE GRIFFIN COAL MINING COMPANY PTY LTD
Plaintiff
AND
WIGMORES TRACTORS PTY LTD (in liq)
Defendant
HIH CASUALTY AND GENERAL INSURANCE LIMITED (008 399 004)
First Third Party
TYCO AUSTRALIA PTY LTD (008 399 004)
Second Third Party

Catchwords:

Practice - Application under O 16 r 1 - Long delay in bringing application - Application for extension of time - Adequacy of affidavit evidence - Principles to be applied

Joinder of parties - Order for joinder made within limitation period - Amended writ of summons not served until limitation period expired - Whether action only commenced against new party when amended writ of summons served

Waiver - Estoppel - Participation of defendant's solicitor in order for joinder - Whether limitation questions should be decided at interlocutory stage

Practice - Application to strike out statement of claim under O 20 r 19 - Leave to bring application out of time - Causes of action alleged to be time barred

Legislation:

Limitation Act 1935, s 38

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Dr J T Schoombee
Defendant:     Mr R J L McCormack
First Third Party           :     Mr R J L McCormack
Second Third Party       :     No Appearance

Solicitors:

Plaintiff:     Downings Legal
Defendant:     Talbot & Olivier
First Third Party           :     Srdarov Richards Burton
Second Third Party       :     Not Applicable

Case(s) referred to in judgment(s):

Bayne v Riggall (1908) 6 CLR 382
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits (1983) 154 CLR 87
Fernance v Nominal Defendant (1989) 17 NSWLR 710
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Ketteman v Hansel Properties Ltd [1988] 1 All ER 38
Michael & Anor v Nicolson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995
Morgan v Banning (1998 - 1999) 20 WAR 474
Seabridge v H Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46
Silkline Investments Pty Ltd & Ors v Challenge Ltd, unreported; SCt of WA; Library No 980610; 22 October 1998
Wardley Australia Ltd v Western Australia (1992) 175 CLR 515

Case(s) also cited:

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Cordinup Resorts Pty Ltd & Ors v Terana Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 970739B; 23 December 1997
Darley Maine Colliery Company v Mitchell (1886) 11 App Cas 127
Do Carmo v Ford Excavations Pty Ltd (1984) 58 ALJR 287
Elliott v Williams (1996) 15 SR (WA) 336
Lattimer v Shafran [1983] WAR 273
Leadbitter v Hodge Finance Ltd [1982] 2 All ER 167
Legione v Hateley (1982-1983) 152 CLR 406
Letang v Cooper [1965] 1 QB 232
Liff v Peasley [1980] 1 WLR 781
Liptons Cash Registers v Hugin [1982] 1 All ER 595
Marinelli v Jankovic [1983] WAR 287
McKechnie v Campbell (1996) 17 WAR 62
Moullin T/as R & J Moullin & Anor v Westralian Farmers Co-operative Ltd & Anor, unreported; SCt of WA; Library No 8455; 31 August 1990
Pillinger v Ropework Services International Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 7976; 10 May 1989
Plowman v Palmer (1914) 18 CLR 339
The Commonwealth v Verwayen (1990) 170 CLR 394
Theseus Exploration NL v Foyster (1972) 126 CLR 507
Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387
Webster v Lampard (1993) 177 CLR 598
Whitehall Holdings Pty Ltd & Ors v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189b; 13 December 1991

COMMISSIONER LEY: This is an appeal against the decision of Deputy Registrar Hewitt in chambers given on 4 November 1999 when he dismissed an application by the defendant, Wigmores Tractors Pty Ltd (in liquidation) ("Wigmores"), and the first third party, HIH Casualty and General Insurance Limited ("HIH"), for an order that judgment be entered for Wigmores against the plaintiff or, alternatively, an order that the plaintiff's statement of claim be struck out.

Background

These proceedings were commenced by a generally indorsed writ of summons on 30 October 1992. At that time, the proceedings were brought against two defendants: Australian Consolidated Investments Ltd ("ACI") and Wormald Australia Pty Ltd ("Wormald"). In the writ, the plaintiff claimed damages from ACI and Wormald for breach of contract and negligence in relation to the sale and supply by ACI to the plaintiff of Caterpillar 789 diesel rear dump trucks in or about 1988.
Wormald entered an appearance to the writ on 23 November 1992. ACI did not. On 4 February 1993, the plaintiff discontinued its action against ACI.
Nothing else happened in the action until 17 January 1996, when Wormald filed an application for an order that the action be dismissed for want of prosecution. That application was listed for hearing on 14 March 1996.
However, on 5 February 1996, the plaintiff filed a chamber summons in which it sought "leave to join Wigmores Tractors Pty Ltd (in liquidation) in substitution for Australian Consolidated Investments Ltd as the first defendant to this action". The application was supported by an affidavit sworn by Teresa Lusi, an articled clerk employed by the plaintiff's solicitors, on 5 February 1996. In her affidavit, Ms Lusi deposed that:
(a)On 27 November 1987, the plaintiff had purchased from Wigmores seven Caterpillar 789 dump trucks to be used at the plaintiff's coal mine near Collie;
(b)The purchase specifications for one of the trucks ("the truck") provided that an Ansul manually operated fire suppression system be installed in the truck;
(c)On 15 February 1990 the truck caught fire;
(d)When that occurred, the driver of the truck attempted unsuccessfully to operate the fire suppression system activator, and the truck was extensively damaged by the fire;
(e)The plaintiff wished to allege in the action that Wigmores had breached a duty of care which it owed to the plaintiff or, alternatively, had breached an express and/or implied term of the contract under which it sold the truck to the plaintiff, by supplying the truck to the plaintiff without an adequately installed fire suppression system.
Ms Lusi also said in her affidavit that the application was being made to allow the plaintiff to proceed against Wigmores before the limitation period expired on 15 February 1996.
Wigmores was at that time represented by Jackson McDonald in respect of the plaintiff's claim. The application for leave to join Wigmores was made returnable before a Registrar in chambers on 13 February 1996. I am not sure how but it seems that Jackson McDonald were aware of that return date. On the morning of that day, Chris Thompson, an employee of the plaintiff's solicitors, spoke by telephone with Terence William Joseph Walsh, a solicitor employed by Jackson McDonald. Thompson asked Walsh Wigmores' position in relation to the application for joinder. Walsh told him that Wigmores would neither consent to nor oppose an order that Wigmores be joined in substitution for ACI. Walsh also told Thompson that, if such an order were made, he (Walsh) would also seek orders that:
(a)Copies of all court documents in the action be served on Jackson McDonald; and
(b)Unless leave of the court were first obtained, no execution issue in respect of any judgment entered against Wigmores.
Thompson and Walsh duly attended on the hearing of the chamber summons that afternoon. Walsh neither consented to nor opposed an order that the plaintiff have leave to join Wigmores in substitution for ACI as the first defendant in the action. Accordingly, that order was made. Walsh then moved for orders in terms of (a) and (b) above. Those orders were made, by consent, and no order was made as to costs.
The following day, 14 March 1996, Wormald's application for an order dismissing the action against it for want of prosecution was heard and was successful. The action as against Wormald was dismissed.
On 23 February 1996 pursuant to the order made on 13 February 1996, the plaintiff's solicitors filed an amended writ of summons in which the name and address of ACI, as first defendant were deleted and the name and address of Wigmores were inserted in their place. There was no amendment to the indorsement of claim. It read:
"The plaintiff's claim is for damages in respect of loss and damage by the breach of contract and or negligence of the defendants, their servants and or agents in relation to the sale and supply by the first defendant of Caterpillar 790 diesel rear dump haul trucks to the plaintiff in or about 1988 and for consequential loss and damage resulting therefrom."
A copy of the amended writ of summons was served on Jackson McDonald later the same day 23 February 1996.
Also on that day, Jackson McDonald entered an appearance to the amended writ on behalf of Wigmores.
On 28 March 1996, the plaintiff filed and served a statement of claim.
In the statement of claim, the plaintiff alleged:
"3.In or about September 1988, the plaintiff engaged the defendant to construct seven dump trucks in accordance with specifications contained in a 'request for quotation' dated 14 September 1988, prepared by the plaintiff.
4.Specification 29 of the request for quotation referred to in paragraph 3 required the first defendant to 'install an Ansul manually operated fire suppression system to incorporate automatic engine shut down overriding engine delay shutdown timer' into each dump truck.
5.The plaintiff took delivery of the trucks from the defendant in or about early 1988.
6.On 14 February 1990, a fire occurred in the engine compartment of dump truck no. 5301, which was one of the dump trucks constructed by the defendant for the plaintiff. The automatic engine shutdown facility in the Ansul fire suppression system failed to function and dump truck no. 5301 was substantially damaged by fire."
It was then alleged that the failure by Wigmores to fit the truck with a properly functioning Ansul fire suppression system was a breach by Wigmores of its contract with the plaintiff to sell and supply the truck and/or was a breach of a duty of care owed by Wigmores to the plaintiff. After the statement of claim had been served, nothing more happened until 13 August 1998 when Wigmores issued a third party notice against HIH which, Wigmores alleged, was obliged to indemnify it against the plaintiff's claim pursuant to an insurance policy which HIH had allegedly issued to the Dallhold/Bond Group of Companies.
On 18 September 1998, Wigmores issued another third party notice, against Tyco Australia Pty Ltd ("Tyco"), alleging that Tyco was obliged to indemnify Wigmores against the plaintiff's claim because it had been negligent in failing to install properly functioning Ansul fire suppression equipment into the truck with reasonable care and skill.
On 10 December 1998, Wigmores filed a defence in which it did not admit most of the allegations in the statement of claim and pleaded, in the alternative, that if the plaintiff had suffered loss as a result of the Ansul fire suppression system failing to function, which Wigmores denied, that resulted from the negligence of Tyco. It was not alleged in the defence that the plaintiff's claim against Wigmores was time barred.
However, on 31 May 1999, Wigmores filed a chamber summons in which it sought leave to amend its defence to include an allegation that the plaintiff's claim was time barred because it was commenced more than six years after the alleged causes of action arose. On 13 July 1999, Wigmores was granted leave to amend its defence to make that allegation.
On 27 July 1999, Wigmores and HIH joined together to bring the application which was dismissed on 4 November 1999 and from which this appeal is brought.

The appeal

The appeal was instituted by a notice of appeal filed on 9 November 1999. That notice purports to have been filed on behalf of HIH only and not on behalf of Wigmores. However, counsel who appeared both before me and the before the learned Deputy Registrar said that he appeared for both HIH and Wigmores. I will therefore treat the appeal as though it was brought by both parties. However, it is difficult to see how an appeal from a refusal of an application for judgment under O 16 could be brought by a third party.
An appeal from a Registrar is to be conducted as a hearing de novo. In addition, there is discretion in the court to admit into evidence on the hearing of the appeal any additional evidence which is directly relevant to the matters in issue and which it would be unjust not to admit: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
In that regard, Wigmores and HIH sought leave to adduce the affidavit of Neil Philip Gentilli sworn 18 February 2000 and the affidavits of Walsh and Rebecca Jane Freeman both sworn on 21 February 2000. The plaintiff did not object to the tender of those affidavits and they were admitted into evidence.

Application for judgment

The principal application was made by Wigmores and sought an order under O 16 r 1(1) that judgment be entered for Wigmores against the plaintiff.
An application under O 16 must be made within 21 days of the entry of appearance, or at any later time by leave of the court. Wigmores entered an appearance to the amended writ of summons on 23 February 1996. However, it did not file its application for judgment until 27 July 1999, well over three years later. Therefore, it needed leave to bring the application.
It does not appear that the question of leave was argued before the learned Deputy Registrar. There is no mention of it in either set of written submissions which were filed prior to that hearing and the learned Deputy Registrar does not mention it in his reasons for decision. That does not prevent me from dealing with it. As I say above, this is a hearing de novo.
When leave is sought to bring an application out of time, the onus is on the applicant to explain the delay by evidence on affidavit: Michael & Anor v Nicolson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995.
The application is supported by a number of affidavits. However, the only ones which contain material which might explain the delay in bringing the application are the affidavit of Timothy Albert Harley sworn 3 August 1999 ("the Harley affidavit"), the affidavit of Gray Porter sworn 18 August 1999 ("the Porter affidavit") and the affidavit of Rebecca Jane Freeman sworn 8 October 1999 ("the Freeman affidavit").
In the Harley affidavit, the deponent says that he is a claims manager employed by HIH. He then deposes to something of the history of the action, as related to him by the solicitor for HIH, Graeme Charles Richards of Srdarov Richards Burton. He then says:
"11.I have been further informed by Mr Richards and verily believer (sic) that on or about 18 May 1999, in the course of preparing advice to me, he became aware, on reviewing copies of the court documents filed by all parties in this matter, that the plaintiff's claim against Wigmores had been commenced more than six years after its alleged causes of action had arisen.
12.I have also been informed by Mr Richards and verily believe that on 18 May 1999 Srdarov Richards Burton wrote to Wigmore's (sic) solicitors suggesting that Wigmores seek leave to amend its defence to plead a defence under the relevant provisions of the Limitation Act 1935 (WA), as amended and then apply for defendant's summary judgment against the plaintiff.
13.I have been further informed by Mr Richards and verily believe that Wigmores applied for leave to amend its defence to plead a defence under the Limitation Act and that on 13 July 1999 Deputy Registrar Harman allowed Wigmores to amend its defence to plead a defence under section 38 of the Limitation Act."
In the Porter affidavit, the deponent says that he is a solicitor employed by Talbot & Olivier, who had replaced Jackson McDonald as the solicitors for Wigmores, and has conduct of the action on behalf of Wigmores. He also relates the history of the action and then says:
"10.On 18 May 1999 Srdarov Richards Burton wrote to Talbot & Olivier suggesting that Wigmores seek leave to amend its defence to plead a defence under the relevant provisions of the Limitation Act 1935 (WA), as amended, and then apply for summary judgment against the plaintiff.
11.Wigmores applied for leave to amend its defence to plead a defence under the Limitation Act and on 13 July 1999 Deputy Registrar Harman allowed Wigmores to amend its defence to plead a defence under section 38 of the Limitation Act."
In the Freeman affidavit, the deponent says that she is a solicitor employed by the solicitors for HIH. Annexed to the Freeman affidavit is a letter from the solicitors for HIH to the plaintiff's solicitors dated 1 June 1999, which would appear to be the first occasion on which anyone on the defence side of the action suggested to the plaintiff's solicitors that the plaintiff's claim might be time barred.
It is not entirely clear when it was that Wigmores first became aware of the date on which the plaintiff alleged its causes of action accrued. The chamber summons for the order joining Wigmores as a defendant is addressed to both Wormald's solicitor and to Wigmores itself. Walsh does not say in his affidavit that he had a copy of the chamber summons and a copy of Ms Lusi's affidavit before he appeared on 13 February 1996, but it seems likely that he did.
If Walsh did then have a copy of Ms Lusi's affidavit he and, therefore, Wigmores, would have known that, according to the plaintiff, its causes of action against Wigmores had accrued on 15 February 1990 and would become time barred on 15 February 1996. That was slightly but not materially amended in the statement of claim served on Jackson McDonald on 28 March 1996, in which it was alleged that the causes of action accrued on 14 February 1996. Therefore, when, by 16 February 1996, an amended writ of summons had not been served on Wigmores' solicitors pursuant to the order made on 13 February 1996, Wigmores knew everything it needed to know to allow it to mount a challenge to the action on the ground that it was time barred.
However, Wigmores did not mount any challenge then and did not do so until more than three years later. The only reason for that delay that can be gleaned from the affidavits is inadvertence or the failure by Wigmores' solicitors to realise that the limitation argument was available. In fact, it seems that they never realised that themselves. It was not until they were told about it by the solicitors for HIH on 18 May 1999 that they understood the position. Even then, it took them over two months to file the application.
In my opinion, that is not an adequate basis for the grant of leave, particularly where the delay is so long. However, even where the delay in bringing an application is long and there is not a satisfactory explanation for it, the interests of justice may still demand that leave be granted if the application is so meritorious that it should not be refused simply because it has not been bought within the procedural time limits. Accordingly, I now turn to consider whether this is such an application.
Under O 16, a defendant can obtain summary judgment against the plaintiff if the defendant can establish that the plaintiff's claim is vexatious or frivolous, that the defendant has a good defence on the merits or that the action should be disposed of summarily. However, it has long been held that the power under O 16 should be reserved for exercise in actions that are absolutely hopeless: Bayne v Riggall (1908) 6 CLR 382 at 398 per Barton J; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90 per Dixon J. It is also the case, as with applications for summary judgment by a plaintiff, that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits (1983) 154 CLR 87 at 99.

The basis upon which Wigmores says that it is entitled to judgment is that the claim against it was commenced more than six years after the causes of action accrued and that, therefore, the claim may not lie by virtue of the provisions of s 38 of the Limitation Act 1935. It is common ground between the parties that the plaintiff's alleged causes of action against Wigmores in contract and in tort accrued on 14 February 1990. It is also common ground that, therefore, the limitation period in respect of both causes of action expired at midnight on 14 February 1996. However, the parties are at issue as to whether the action was commenced by the plaintiff against Wigmores on 13 February 1996, when the order that Wigmores be joined as a defendant to the action was made, or on 23 February 1996, when the plaintiff served Wigmores' then solicitors with a copy of the amended writ of summons in which Wigmores was named as a defendant pursuant to the order made on 13 February 1996.
I have already mentioned, at an earlier point in these reasons, the terms of the order made on 13 February 1996. They were that:
1.The plaintiff have leave to join Wigmores in substitution for ACI as the first defendant to this action;
2.Copies of all court documents to be served on Messrs Jackson McDonald by the plaintiff within 10 days and throughout the proceedings;
3.No execution issue against Wigmores in any judgment obtained in this matter without leave of the Supreme Court;
4.No order as to costs.
It seems that considerable confusion has been caused as a result of the words "in substitution for ACI as the first defendant to this action". As I have previously observed, the action against ACI was discontinued on 4 February 1993. Therefore, by 13 February 1996, ACI was not a defendant in the action. As a result, Wigmores could not have been "substituted" for it. In my view, that means that the order, notwithstanding its terms, was one for joinder of Wigmores as a defendant and not one for substitution of Wigmores for ACI.
Therefore, the applicable rule is O 18 r 6 which relevantly provides:
"(1)…
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just either of its own motion or on application –
(a) …;
(b)order that any person that ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
…"

In addition, O 18 r 8 provides:
"(1)Where an order is made under Rule 6, the writ by which the action in question was begun must be amended accordingly and must be indorsed with –
(a)a reference to the order in pursuance of which the amendment is made; and
(b)the date on which the amendment is made,
and the amendment must be made within such period as may be specified in the order or, if no period is specified, within 14 days after the making of the order.
…
(4)Where by an order under Rule 6 … a person is to be added as a party … that person shall not become a party until –
(a)where the order is made under Rule 6, the writ has been amended in relation to him under this Rule and (if he is a defendant) has been served on him …"
In Seabridge v H Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46, the English Court of Appeal considered a very similar rule (O 15 r 8) and held that where a defendant was joined, the action against that defendant was commenced when the amended writ was received and stamped in the central office of the court and not when a copy of the amended writ was subsequently served on the new defendant.
The question arose again in Ketteman v Hansel Properties Ltd [1988] 1 All ER 38 in which the House of Lords overruled Seabridge and held that the action was not commenced against the new defendant until the amended writ of summons had been served.
The matter was also considered by the New South Wales Court of Appeal in Fernance v Nominal Defendant (1989) 17 NSWLR 710. That was a case in which the plaintiff had commenced proceedings for damages against the Nominal Defendant in respect of personal injuries arising out of the use of an unidentified motor vehicle. Subsequently, the driver of the other vehicle was identified. The plaintiff then obtained by consent an order pursuant to s 58 of the Limitation Act 1969 (NSW) for an extension of time within which to bring proceedings against the identified driver of the motor vehicle and obtained a further order that the identified driver be joined as a defendant in the proceedings. However, the plaintiff failed to file and serve an amended statement of claim before the expiration of the extended limitation period.
The plaintiff argued that the action had been commenced against the identified driver when he obtained the order joining the identified driver as a defendant. However, the Court of Appeal applied the same principle that had been applied by the House of Lords in Ketteman and held that the action against the identified driver did not commence until the amended statement of claim had been filed and served.
The only local authority to which I was referred was the decision of Master Sanderson in Silkline Investments Pty Ltd & Ors v Challenge Ltd, unreported; SCt of WA; Library No 980610; 22 October 1998. In that case, an application was made to add a plaintiff. Arguably, the applicable limitation period had expired. Master Sanderson considered that the provisions of O 18 r 8 were determinative of the matter. He referred to Ketteman and expressed the view that if the proposed plaintiff were added, it would not be deemed to have been added until the writ was actually amended. I think he meant, consistently with Ketteman, that the action by the new plaintiff would not commence until an amended writ, including the name of the new plaintiff, was filed and served. In the result, he did not add the proposed party as a plaintiff but added it as a defendant instead.
In my opinion, a proper application of O 18 r 8 and the authorities to which I have referred lead to the conclusion that the action in this case was not commenced against Wigmores until the amended writ of summons was served on its solicitors on 23 February 1996. By then, the relevant period of limitation had expired.
However, that is not the end of the matter. The plaintiff submits that because Wigmores did not oppose the order for joinder on 13 February 1996 and, rather unusually, appeared by counsel when the application for joinder was made and moved for and obtained orders of its own, Wigmores should be taken to have waived any right which it may have had to rely on the limitation defence. Further or alternatively, the plaintiff submits that, in very much the same circumstances, Wigmores is estopped from now raising the limitation defence.
Wigmores and HIH, on the other hand, contend that there is no substance in those submissions made by the plaintiff and maintain that the defence based upon s 38 of the Limitation Act is a sufficient basis for the application for judgment.
However, there is high authority which warns against deciding questions of limitation of action at an interlocutory stage. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 515 at 533 the High Court (Mason CJ and Dawson, Gaudron and McHugh JJ) said:
"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."
Similar sentiments were expressed by Wheeler J in Morgan v Banning (1998-1999) 20 WAR 474 at 480 and 486.
Neither of those cases involved the complex factual matrix which must of necessity be carefully analysed when a court is asked to decide whether the doctrines of waiver and estoppel can be invoked to prevent the extinguishment of an otherwise time barred action. An attempt at that type of factual analysis was begun in the affidavit evidence which was adduced by Wigmores and HIH on this appeal. However, that evidence is presently untested and it may well be the case that the plaintiff sees the need to call evidence of its own on those issues. In those circumstances, it is simply not possible at this stage to say whether the limitation defence raised by Wigmores will provide a complete answer to the plaintiff's claim. It certainly cannot be said that the plaintiff's claim is hopeless.
Accordingly, I do not believe that the application for judgment is so compelling that it would be contrary to the interests of justice not to grant leave for it to be brought out of time. I would refuse the application for leave.

Application to strike out statement of claim

Although this is an alternative to the application for judgment, it is brought on essentially the same basis: that the action against Wigmores was commenced after the expiration of the relevant limitation period and that, therefore, the statement of claim dated 26 March 1996 cannot disclose a reasonable cause of action by the plaintiff against Wigmores. It is brought under O 20 r 19.
It is a rather unusual application. An application to strike out a statement of claim is usually mounted on the basis that the statement of claim, on its face and without reference to any evidence, does not disclose a reasonable cause of action. In this case, Wigmores and HIH are saying that it is the evidence of when the action was commenced that reveals the absence of a reasonable cause of action.
Under O 20 r 19, unless the court orders otherwise, an application to strike out a pleading must be brought within 21 days after the pleading was served. The statement of claim was served on 28 March 1996. Therefore, the application should have been filed by 18 April 1996. It was not filed until 27 July 1999, over 3 years later.
The same principles that apply to applications for leave to file applications for judgment out of time apply to applications for extensions of time within which to file applications to strike out pleadings. For the same reasons that I believe it cannot be said that there is no serious question to be tried on the issue of limitation, I do not believe it can be said that the causes of action disclosed in the statement of claim are manifestly untenable: General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125.
In those circumstances, I would refuse the application to extend the time within which to file the application to strike out the statement of claim.

Conclusion

Accordingly, the appeal will be dismissed.