Tromp v Nambour Yandina United Soccer Club Inc

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 455 of 2001

PATSY RUTH TROMP	Plaintiff
v
NAMBOUR YANDINA UNITED SOCCER CLUB INC (previously NAMBOUR AND DISTRICT REDS SOCCER CLUB INCORPORATED AND YANDINA EAGLES SOCCER CLUB INCORPORATED)	First Defendant
COUNCIL OF THE SHIRE OF MAROOCHY	Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2001
DATE OF JUDGMENT:	19 December 2001
CASE MAY BE CITED AS:	Tromp v Nambour Yandina United Soccer Club Inc and Anor
MEDIUM NEUTRAL CITATION:	[2001] VSC 494

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Practice and Procedure: application to amend defence to plead “limitations defence” - intranational tort - accident in Queensland, proceedings in Victoria - substantive law including Limitation of Actions Act 1974 (Q’ld) - development of Common Law - Choice of Law (Limitation Periods) Act 1974 (Q’ld) - discretion of Court, amendment not allowed – application to extend limitation period – application pursuant to s. 31(2) of Limitation of Actions Act 1974 (Q’ld) – jurisdiction of Court to entertain application – application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. Fehring	Watson, Cudlipp & Hughes
For the Second Defendant	Mr A. Hamlyn-Harris	Louis Gross & Associates

HIS HONOUR:

These present proceedings were commenced by writ on 22 June 1999 in the County Court at Geelong against the first defendant only.

By the Statement of Claim, endorsed on the writ, the plaintiff alleged that on 17 August 1996 the first defendant occupied, managed and controlled a soccer ground at or near 3 Nichols Road, Yandina in Queensland (“the premises”). She alleged that on 17 August 1996 the first defendant operated a “flea market” on the premises and that on attending the market that day and while attempting to negotiate a trench on the premises she tripped and fell causing her to suffer injuries, loss and damage. The plaintiff alleged that she tripped and fell and suffered injuries loss and damage as a result of the first defendant’s breach of the duty that it owed her as occupier, controller and manager of the premises and as a result of the negligence of the first defendant. She alleged that she tripped and fell when her foot caught on netting or wire affixed to rails or goal posts which were lying in the trench that she was negotiating. In the alternative the plaintiff alleged that the trench netting or wire in the trench was a nuisance created and maintained by the first defendant and that her injuries, loss and damage were caused by that nuisance. The plaintiff claimed damages against the first defendant.

By its defence dated 18 August 1999 the first defendant, while admitting its corporate entity, joined issue with all other allegations made by the plaintiff. It specifically denied liability to the plaintiff and alleged contributory negligence against the plaintiff.

On 15 November 1999, pursuant to leave granted on 8 November 1999, the first defendant filed a third party notice joining the Council of the Shire of Maroochy (the second defendant) as a third party to the proceedings as they then stood. By the Statement of Claim endorsed on the third party notice it was alleged that the second defendant was the registered owner, as trustee, of the premises, that the first defendant was the lessee of the premises pursuant to a lease dated 30 May 1980, but that the second defendant was the occupier of the premises and it had, within its control and responsibility, the care and maintenance of the premises. The first defendant alleged against the second defendant that the injuries suffered by the plaintiff were caused by the negligence of the second defendant. The first defendant claimed against the second defendant indemnity and contribution in respect of the plaintiff’s claim against it.

By its defence to the third party Statement of Claim the second defendant while admitting that it was the trustee of the premises on which a soccer ground was situated, it denied that it was the occupier or that it maintained the premises, asserting that during the period from 1 July 1996 to 23 September 1996 the first defendant or alternatively the trustees of the Nambour Reds Soccer Club conducted the “flea market”. It further asserted that it had not placed the goal post in the trench, that it was not aware that the goal posts were in the trench or that people crossed the trench where it was alleged that the plaintiff crossed it. The second defendant denied liability to the first defendant.

On 19 April 2000 it was ordered that the plaintiff have leave to join the third party (the second defendant) as a defendant in the proceedings.

By the plaintiff’s amended writ filed on 5 May 2000 the plaintiff joined the second defendant as a defendant to the proceedings.

By her amended Statement of Claim the plaintiff alleged that the first defendant was the successor in law of the Nambour and District Reds Soccer Club Incorporated and its liabilities became liabilities of the first defendant. The plaintiff alleged against the second defendant that on 17 August 1996 it occupied, managed and controlled the premises, that it operated the flea market and that the plaintiff fell and suffered damages as alleged as a result of breach of the duty that it owed to the plaintiff or as a result of its negligences. She further alleged that the second defendant created and maintained the nuisance comprising the trench and netting or wire in it which caused the plaintiff to be injured. The plaintiff claimed damages against the second defendant.

By its amended defence dated 9 June 2000 the first defendant admitted that it was the successor in law of the Nambour and District Reds Soccer Club Incorporated and that the liabilities of that club became its liabilities. Otherwise the first defendant did not amend its defence relevant to the pleas made against it. Following that, the first defendant filed a notice of contribution against the second defendant.

On 20 June 2000 the second defendant filed its defence (dated 14 June 2000) to the plaintiff’s Statement of Claim. The second defendant while admitting that it was a body corporate, it did not admit that it was capable of being sued pursuant to the laws of Victoria. Further, the second defendant, while admitting it was the trustee of the land on which the soccer ground was situated it denied that it occupied, managed or controlled the premises and denied that it operated the “flea market”. The second defendant asserted that it did not place the railing or goal post in the trench, that it had no knowledge of the location of the railing, goal posts, netting or wire and that it was not aware that people crossed the trench where the plaintiff is alleged to have crossed it. The second defendant denied liability to the plaintiff. It alleged that the plaintiff’s injuries were caused and contributed to by her negligence. Further, the second defendant alleged that the plaintiff voluntarily assumed the risk of injury.

On 2 November 2000 the second defendant filed a summons seeking, inter alia, leave to file and serve an amended defence. That summons was made returnable before the Judge in the Directions Court of the County Court on 6 November 2000. That application was supported by an affidavit of Mark Williams, a solicitor, sworn on 2 November 2000. To that affidavit there was exhibited a draft amended defence. The amendment then sought by the second defendant was to plead that if the plaintiff was injured as alleged the proceedings were commenced after the expiration of three years from the date on which the cause of action arose and that the action against it was statute barred pursuant to s. 11 of the Limitation of Actions Act 1974 (Q’ld). That application is one of the proceedings now before this Court.

On the hearing of these applications, counsel for the second defendant sought an order that leave be granted to the second defendant to amend its defence, for it to plead not only that the plaintiff’s action against it was barred pursuant to the provisions of s. 11 of the Limitation of Actions Act 1974 (Q’ld) but that it was also barred by reason of s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic). In addition the second defendant sought to further amend its defence to plead “that the substantive law in respect of the plaintiff’s allegations is the law applicable to the jurisdiction in which the incident is alleged … to have occurred”, that is the Law of Queensland.

On 14 November 2000 a summons was filed on behalf of the plaintiff against the second defendant seeking an order that pursuant to s. 31(2) of the Limitations of Actions Act 1974 (Q’ld) that “the period of limitation for action against the second defendant be extended”. That application was directed to the second defendant only.

That summons was made returnable before the Judge in the Practice Court of the County Court on 17 November 2000.

Neither the application of the plaintiff against the second defendant or the application of the second defendant to amend its defence were heard before the County Court. To this matter I shall return.

On 22 February 2001 it was ordered that the proceedings be transferred to the Supreme Court at Geelong pursuant to s. 21(1) of the Courts (Case Transfer) Act 1991.

On 28 March 2001 it was ordered by a Master that the applications be referred to a Judge to hear and determine and a further order was made for the applications to be listed for hearing and determination. They came on for hearing on 16 October 2001.

The applications did not concern the first defendant and it took no part in the proceedings.

Pursuant to s. 5(1)(a) of the Limitations of Actions Act 1958 (Vic) it is provided that the limitation period for an action founded on tort is six years from the date on which the cause of action accrued.

Section 11 of the Limitation of Actions Act 1974 (Q’ld) has at all relevant times provided:

“11.Notwithstanding any other Act or law or rule of law, an action for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”

The plaintiff’s action against the first defendant was commenced on 22 July 1999, within the limitation period of three years as provided by the Limitation of Actions Act of 1974, Queensland, the State in which it alleged that the plaintiff was injured and within the period of 6 years as provided by s. 5(1)(a) of the Limitation of Actions Act of Victoria, the State in which the plaintiff’s proceedings are was brought. However, with respect to the action of the plaintiff against the second defendant, that action was commenced by the amended writ to which the second defendant was joined as a party to the proceedings, which was filed on 5 May 2000. Having regard to the date on which it is alleged that the plaintiff was injured, the plaintiff’s action against the second defendant was commenced within the limitation period provided by the Limitation of Actions Act 1958 (Vic) but outside the period provided by the Limitation of Actions Act 1974 (Q’ld ). By its defence filed on 20 June 2000 the second defendant did not plead that the plaintiff’s action against it was statute barred, as it now seeks to do.

The express power of the Court and the discretion of the Court in exercising that power to amend a defence of a defendant to a proceeding is vested in it pursuant to Rule 36.01 which provides:

“(1)For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity, the Court may at any stage order that any document in the proceedings be amended or that any party have leave to amend any document in the proceedings.”

By Rule 36.01(2) “document” is defined to include a pleading.

Pursuant to s. 31(1) of the Limitation of Actions Act 1974 (Q’ld ) it is provided that s. 31 “applies to actions for damages for negligence trespass, nuisance or breach of duty”… “where the damages claimed by the plaintiff”… “consist of or include damages in respect of personal injury to any person…”. Subsections (2) and (3) provide, as relevant:

“(2)where an application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitations is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired –
(a)…
(b)before an application is made under this section in respect of the right of action.”

Section 30 of that Act provides:
“30. For the purposes of this section and sections 31, 32, 33 and 34 –
(a)the material facts relating to a right of action include the following –
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)‘appropriate advice’, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, as the case may require;
(d)a fact is not within the means of knowledge of a person at a particular time if but only if –
(i)the person does not at that time know the fact; and
(ii)so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact.”

In the Commonwealth v Verwayen[1], Dawson J. said:

“A defendant who fails to plead a period of limitation may apply for leave to amend his defence to enable him to do so. The appellant did that in this case and was granted leave. The considerations which govern a decision to grant or refuse leave to amend are of a different kind from those which go to establish an estoppel. The rules of court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties (see now O. 36, r. 1 of the Supreme Court Rules (Vict.)) and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment…. The usual terms which are imposed are an order for costs or an adjournment. In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial.”

[1](1990) 170 CLR 396 at 456.

In McKain v R.W. Miller and Co (SA) Pty Ltd[2], a worker, who was resident in New South Wales sued his employer in the Supreme Court of New South Wales for damages in negligence in respect of an injury sustained by him in South Australia on 22 February 1984. The plaintiff’s statement of claim was filed on 4 January 1990. The period of limitation provided by s. 36(1) of the Limitations Act 1936 (SA), for actions in which damages claimed consisted of or included damages for personal injuries was 3 years. The period of limitation provided by s. 14(1) of the Limitation of Actions Act (NSW) for a cause of action founded on tort was 6 years from the date on which the cause of action first accrued. By its amended defence the defendant alleged that the plaintiff’s action was statute barred by reason of s. 36(1) of the Limitations Act of South Australia. If the New South Wales statute applied the plaintiff’s claim was not barred and the defence of the defendant would be of no avail. The majority of the Court, Brennan, Dawson, Toohey and McHugh JJ. held that s. 36(1) of the Limitation of Actions Act 1936 (SA) was a procedural law and not a substantive law for the purpose of applying the conflict of law rules and that it did not extinguish the civil liability which the plaintiff was able to bring an action to enforce. They held that the provisions of the South Australian statute being procedural in nature it did not effect the action brought by the plaintiff in New South Wales to enforce the cause of action existing under the Common Law of that State.
[2](1991) 174 CLR 1.

Section 48(1) of the Limitations Act of South Australia provided that where an Act, regulation, rule or by-law prescribed or limited the time for instituting an action a court may extend the time prescribed or limited to such an extent and upon such terms (if any) as the justice of the case may require. Section 48(3)(b) provided criteria to the courts jurisdiction to extend the time in which the proceedings may be brought. Mason C.J. and Deane J. held in McKain v R.W. Miller and Co (SA) Pty Ltd that s. 36(1) of the Limitations Act (SA) should be classified as Substantive Law and formed part of the Law to be applied by the Court of the forum and that it was able to be pleaded by way of defence in the proceedings in New South Wales. They further held that the Supreme Court of New South Wales had jurisdiction to extend the time in which the plaintiff may bring his proceedings as the provisions of s. 48(1) of the Limitation of Actions Act (SA) also formed part of the Substantive Law to be applied by the Court of the forum.

In Stevens v Head[3] the plaintiff (appellant) had been injured when struck by a motor vehicle at Tweed Heads in New South Wales. She sued the driver of the motor car in the District Court held at Southport, Queensland and recovered damages in negligence. The trial judge assessed damages according to the law of Queensland applicable to the assessment of damages for personal injuries caused by motor accidents in that State. The Full Court of the Supreme Court of Queensland allowed an appeal on the ground that the law of New South Wales should have been applied in the assessment of damages. On appeal from that decision the majority of the Court (Brennan, Dawson, Toohey and McHugh JJ.) applied their decision in McKain v R.W. Miller and Co (SA) Pty Ltd holding that s. 79 of the Motor Accidents Act 1988 (NSW) was a law with respect to the quantification of damages and was “not to be construed as containing substantive provisions for the purposes of the conflict of law rules governing the assessment of damages for extraterritorial but intranational torts” and that “Therefore it is not the law which a Queensland Court applies in assessing damages for non-economic loss suffered by a plaintiff who was injured in an accident occurring in New South Wales”[4].
[3](1993) 176 CLR 433.
[4](1993) 176 CLR 433 at 460.

In John Pfeifer Pty Ltd v Rogerson[5] in which judgment was delivered on 21 June 2000, the day after the second defendant filed its defence in these proceedings, Rogerson was employed by the applicant in the Australian Capital Territory where it had its principal business office. Rogerson was injured while working for the applicant in New South Wales. On the trial of the proceedings before a Master of the Supreme Court of the Australian Capital Territory the question arose whether, in assessing Rogerson’s damages, the law to be applied was that of the Australian Capital Territory or that of New South Wales. If the New South Wales law was applicable the damages to be awarded was limited by Part 5 of the Workers Compensation Act 1987 (NSW). The Master found that the applicant was liable to Rogerson and held, following Stevens v Head that the law of the Australian Capital Territory was applicable when assessment damages and awarded damages in an amount agreed. Each of the Full Court of the Australian Capital Territory and the Full Court of the Federal Court dismissed the applicant’s appeal. The applicant sought special leave to appeal to the High Court against the decision of the last-mentioned Court. As stated in the opening paragraph of the joint judgment of Gleeson C.J., Gaudron, McHugh, Gummow and Hayne JJ., at p.1110:

“The applicant submits that the Court should reformulate the principles that govern how a claim in tort, brought in the courts of one Australian jurisdiction (here the Australian Capital Territory) should be determined when some (or, in this case all) of the relevant facts occurred in another Australian jurisdiction (here New South Wales). The particular question is what effect the courts of the jurisdiction in which the proceedings are brought should give to legislation of the jurisdiction in which the tort was committed.”

At para. 87 (p. 1125) of their judgment those members of Court said:
“… the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element”.

[5](2000) 74 ALJR 1109.

Further at para 99 (p. 1127) their Honours said that, “Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural matters.” They identified those principles as being, “First, litigants who resort to a court to obtain relief must take as they find it” and “Secondly matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance and not with issues of procedure. At paras 100 – 102 (p. 1127) their Honours said:

“These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.
Development of the common law in the manner we propose is consistent with the assumption that underlies the State legislation with respect to limitation periods to which we have earlier referred and, also, with the terms of that legislation. That being so, there is no reason why the Court should leave the common law to operate in a manner that does not properly take account either of the fact of federal jurisdiction or the nature of the Australian federation.
Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.”

In allowing the appeal those members of the Court held that in assessing damages the Master should have had regard to the provisions of the New South Wales legislation upon which the applicant relied as it should have been classified as provisions about a substantive issue and governed by the law of the lex loci delicti. To the matter of “the State legislation with respect to limitation periods to which we have earlier referred”, I shall return.

On behalf of the second defendant it was submitted, in reliance on John Pfeifer Pty Ltd v Rogerson, that the provisions of the Limitation of Actions Act 1974 (Q’ld ) should be classified as substantive law to be applied in these proceedings and that the period of limitation applicable was a period of 3 years from the date on which the cause of action arose. It was submitted that to allow the amendment sought would not cause the plaintiff to suffer prejudice in the real sense, such that an order for costs could not compensate.

However, in addition to changes brought about to the Common Law by the decision in John Pfeifer Pty Ltd v Rogerson counsel for the second defendant referred to and relied on s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic), which came into operation on 23 November 1993. That section provides:

“If the substantive law of another place being another State or Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.”

In John Pfeifer Pty Ltd v Rogerson, in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, their Honours at para 48 (p. 1119) said:

“In McKain, the statutory limitation provision of the place of commission of the tort was classified as procedural. Procedural issues being governed by the law of the forum, it was held that no effect should be given to the limitation provision of the place of commission. And in Stevens, the legislation of the place of commission (which placed limits on the amount of damages recoverable) was held not to deal with the substantive issue of heads of damage but the procedural issue of quantification of damages. Again, therefore, quantification was governed by the law of the forum and it was held that no effect should be given to the statute of the place of commission. Subsequent to McKain, legislation was enacted in several jurisdictions to provide that time limitation laws are to be treated as substantive rather than procedural.”

The Choice of Law (Limitation Periods) Act 1993 (Vic) was “State legislation with respect to limitation periods” referred to in para 101 of the judgment of Gleeson C.J., Gaudron, McHugh, Gummow and Hayne JJ. in John Pfeifer.

Although in Gardner v Wallace[6], Dawson J., who was one of majority in McKain v R.W. Miller & Co (SA) Pty Ltd, at p. 98 suggested that those responsible for the drafting of s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic), may have misconceived the effect of the decision in McKain, when regard is had to the joint judgment of Gleeson C.J., Gaudron, McHugh, Gummow and Hayne JJ. in John Pfeifer Pty Ltd v Rogerson, it is to be concluded that, that which those responsible for the drafting of s. 5 achieved was that the “application of any limitation period would… be governed… by the lex loci delicti”. It follows that before the occurrence of the accident, the subject of these proceedings and before the writ was issued in the County Court, by reason of the provisions of s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic), in the circumstances in this case, the application of any limitation period was governed by the provisions of s. 11 of the Limitations of Actions Act 1974 (Q’ld ) and that the period of limitation was three years from the date on which the cause of action arose. That result was not brought about by the development of the Common Law from the time of the decision in McKain v R.W. Miller & Co (SA) Pty Ltd although such development had the same effect when consideration is had to Limitations Legislation in intranational actions.
[6](1995) 184 CLR 95.

On behalf of the plaintiff it was submitted in substance that on 5 May 2000 the amended writ, joining the second defendant as a defendant to the action was filed, and that by its defence filed on 20 June 2000 the second defendant, did not plead that the proceeding against it was barred. It was submitted that since that time and until it issued its summons now before the Court the second defendant participated in the interlocutory proceedings and processes of the proceedings and that in effect it was too late now to permit the amendment sought. It was submitted that the prejudice that would be suffered by the plaintiff, if the amendment sought by the second defendant was permitted, could not be compensated for by an order as to costs.

In Ketteman v Hansel Properties[7] Lord Keith of Kinkel when considering the nature of prejudice that may be said to be suffered by a plaintiff if a defendant was permitted to amend his defence to plead a limitation defence, at p. 203 said:

“It is not a relevant type of prejudice that the allowance of the amendment will or may deprive him of success which he would achieve if the amendment were not to be allowed. In my opinion, no sensible distinction can be drawn for this purpose between amendment seeking to plead limitation and any other sort of amendment. I am not aware of any authority for drawing such a distinction nor have I experience of any practice to that effect.”

[7] [1987] AC 189.

It is not suggested in this case on behalf of the plaintiff that it should be held that the second defendant is estopped from making the amendment sought or that by reason of the second defendant’s failure to make the application at an earlier time or to plead the limitation defence in its original defence the plaintiff has been now deprived of joining another party as a defendant within the period of limitations.

As referred to earlier, it was on 19 April 2000 that an order was made in the County Court giving leave to the plaintiff to join the now second defendant as a defendant to the proceedings. That order was made under Rule 9.06 of the Rules of the County Court. Rule 9.11(1) of the County Court provided:

“Where an order is made under R. 9.06 or 9.08 the writ or other originating process filed in the Court shall be amended accordingly within the time specified in the order, and otherwise within 10 days after the making of the order and a reference to the order, the date of the order and the date on which the amendment is made shall be endorsed upon the originating process.”

Rule 9.11(2) and (3)(a) of the County Court Rules, which were and are in the same terms as the same numbered rules of this Court provides:
“(2)The filing of a copy of the originating process amended and endorsed as required by paragraph (1) shall be a sufficient compliance with that paragraph.
(3)Where an order is made under Rule 9.06 or 9.08 adding or substituting a person as a defendant –
(a)the proceeding against the new defendant commences upon the amendment of the filed originating process in accordance with paragraph (1) or (2).”

The amended writ by which the second defendant was named as a defendant to these proceedings was filed on 5 May 2000. It was on that day that the proceedings against the second defendant commenced. Accordingly it follows that if the amendment to the defence of the second defendant, as now sought by it, is permitted, the plaintiff would be faced with the defence, of that defendant, that her action against that defendant was statute barred at the time that it was commenced.

However the application of the second defendant should not be determined in isolation from the determination of the plaintiff’s application, for if that application is acceded to, it may result in any limitation defence now sought to be pleaded by the second defendant being rendered futile. It is to that application that I now turn.

The starting point is that this Court has jurisdiction to determine, whether pursuant to s. 31(1) of the Limitation of Actions Act 1974 (Q’ld ) the period of limitation provided by s. 11 of that Act should be extended. At Common Law and by operation of s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic) the provisions of s. 11 and s. 31 of the Limitation of Actions Act 1974 (Q’ld ) for the purpose of these proceedings are the part of the substantive law to be applied by this Court. Specifically s. 31(2) of that Act provides for the application to be made to “a court”. Further on it being determined that the relevant provisions of the Queensland Act are part of the substantive law to be applied by the Court, that said by Mason C.J. and Deane J. in McKain v R.W. Miller & Co Pty Ltd, as to the Supreme Court of New South Wales having jurisdiction to extend the limitation period provided by s. 48(1) of the Limitation of Actions Act (SA) have direct application to the present application under consideration.

In exercising the discretion to be exercised in determining this application under s. 31(2) of the Limitation of Actions Act 1974 (Q’ld ) this Court is required by s. 6 of the Choice of Law (Limitation Periods) Act 1993 (Vic) to exercise “that discretion, as far as practicable”… “in the same manner in which it is exercised in comparable cases by courts” of Queensland.

From the affidavit of the plaintiff’s solicitor sworn on 14 November 2000, in support of his client’s application and in opposition to the application of the second defendant, the following facts and matters appear:

(a)on 7 October 1999 after the first defendant had delivered its defence, which did not admit that it occupied, managed and controlled the soccer ground on which the “flea market” was conducted, the plaintiff’s solicitors wrote to the first defendant’s solicitors asking whether they raised any objection to giving discovery of documents set out in a schedule furnished. That schedule included, “all and any documentation relating to the ownership, occupation, management and/or control of the premises of the defendant”; “all and any documentation relating to the operation by the defendant of a flea market at the premises on the said date”; “all and any documentation relating to the circumstances and/or cause of the incident including any report or like memorandum or document relating to the incident made either to, by or on behalf of the defendant”; “all and any documentation relating to the construction, inspection, maintenance or repair of any part of the premises referred to in paragraph 8 of the statement of claim herein, where the incident is alleged to have occurred”;
(b)again on 27 October 1999 the plaintiff’s solicitors wrote to the first defendant’s solicitor referring to the fact that a direction hearing would be held by a judge of the County Court, at which time, discovery would be sought in accordance with the schedule enclosed which was in the same terms as the schedule previously provided to the solicitors for the first defendant. The plaintiff’s solicitor sought to be informed as to whether the first defendant raised any objection to giving discovery;
(c)on 2 November 1999 the solicitors for the first defendant wrote a letter to the solicitors for the plaintiff which in part stated:
“Our investigations have revealed that it would be prudent for us to seek to join the council of the Shire of Maroochy as a party to the proceedings. We have forwarded a draft pleading to our town agents for re-engrossing. There are solicitors on the record acting for the council who are taking their clients’ instructions to accept service of the proceedings. Irrespective of instructions they receive, service will be able to be affected quickly.”
The letter further indicated that the plaintiff’s solicitor would be served with a copy of the third party proceeding;
(d)on 5 November 1999 the solicitors for the plaintiff received a facsimile letter from the first defendant’s solicitors advising that their principal intended to join the present second defendant as a third party. The facsimile transmission also included a copy of the proposed third party notice.
(e)on 8 November 1999 it was ordered by the County Court, inter alia that the first defendant file and serve a sworn affidavit of documents by 31 December 1999;
(f)on 22 November 1999 the first defendant’s solicitors wrote a letter to the plaintiff’s solicitors informing them that they expected to be able to provide their clients affidavit of documents shortly;
(g)on 21 December 1999 the solicitors for the first defendant forwarded to the solicitors for the plaintiff copy of an affidavit of documents. In that affidavit of documents there was listed in part 1 of schedule 1, a lease dated 20 May 1980, licences “to conduct community flea market” dated 29 November 1999, 18 October 1995, 24 September 1996, a letter of appointment Nambour and District Soccer Club dated 17 December 1996 and a copy title search dated 10 October 1999;
(h)on 21 January 2000 the plaintiff’s solicitor received from the first defendant’s solicitors copies of documents as had been requested. Those documents included a lease dated 20 May 1980 given by the Council of the Shire of Maroochy to the Nambour Reds Soccer Club and a licence granted by the Maroochy Shire Council to Nambour Reds Soccer Club, to conduct a community flea market. The subject of such lease and licence was identified by the solicitor for the plaintiff as being in respect of the premises on which the flea market was conducted at the time that it alleged that the plaintiff was injured. The lease was for a period of 20 years from 1 July 1988. It provided that it may be terminated before the expiration of the lease. The first licence to conduct the community flea market was stated that it was to be in force from 18 October 1995 to 30 June 1996. The second licence provided for a period from 4 September 1996 to 30 June 1997. The copy documents provided included a search document issued by the Department of Natural Resources Queensland. It identified the land being the Yambuna Race Course which was held by the second defendant as trustee. There was noted an encumbrance being a lease of part of the land to the Nambour Reds Soccer Club commencing on 1 July 1980 and terminating 30 June 2000. That was the period of the lease to which I have previously referred. By the terms of the lease the lessee was obliged to maintain all buildings on the land leased and any structural improvement placed on the land by the lessee and that the lessee would be responsible for ‘maintenance of such improvements’;
(i)on 31 January 2000 the plaintiff’s solicitor received from the first defendant’s solicitors a copy of the third party notice which was then directed to the present second defendant. By the Statement of Claim of the first defendant annexed to the third party notice, it alleged that the second defendant was the registered owner as trustee of the land described in the search document (which was identified as the premises) that the first defendant was the lessee of the premises at the relevant time, that it intended to rely on the terms of the lease ‘for their full meaning and effect’ and that the second defendant was ‘an occupier of the premises and had within its control and responsibility the care and maintenance of the premises’. The first defendant further alleged against the second defendant that the injuries suffered by the plaintiff were caused by the second defendants negligence. The particulars of negligence included that second defendant failed to give the plaintiff warning of the steepness of the slope that the plaintiff was negotiating, that it failed to take reasonable steps to improve the surface traction of the slope, that it exposed the plaintiff to a risk of damage, that it allowed the area of the premises to be used as a thoroughfare which was inherently unsafe and that it failed to remove the netting or wire or goal posts until after the incident which had caused the plaintiff to be injured.

(j)On 10 March 2000 the solicitors for the plaintiff wrote a letter to the solicitors for the first defendant requesting a copy of the second defendant’s defence to the third party notice. That defence was received by the solicitors for the plaintiff on 24 March 2000. By that defence the second defendant admitted that it was trustee of the land, described in the search document to which I have referred. It admitted that a soccer ground was situated on the premises, that the Nambour Reds Soccer Club was the lessee of the premises pursuant to a lease dated 30 May 1980 and that the first defendant was an incorporated club consisting of an amalgamation of the Nambour and District Reds Soccer Club Incorporated and another club. The second defendant denied that it was an occupier of the premises and that it had within its control and responsibility the care and maintenance of the premises. Further by its defence the second defendant asserted that from October 1995 to 30 June 1996 the flea market was conducted pursuant to the licence granted by it to the Nambour Reds Soccer Club, that it was a condition of the licence that the flea market would be conducted pursuant to its community flea market policy pursuant to which it was required to indemnify the second defendant against any claim arising from the conduct of the market. The defence further asserted that on 20 August 1996 the Nambour Reds Soccer Club applied to renew the licence to conduct the community flea market which licence was renewed on 24 September 1996 and that during the period 1 July 1996 to 23 September 1996 the first defendant conducted the flea market pursuant to which it was obliged to comply with the second defendant’s community flea market requirements. The second defendant further asserted that it had not placed the goal posts in the position in the trench, that it was not aware of them being in the trench, that it was not aware that people crossed the trench at the location where the plaintiff crossed it and that the first defendant had encouraged people to cross the trench at the location that the plaintiff crossed it;
(k)on 17 July 2000 the plaintiff’s solicitors were served with a copy of the second defendant’s affidavit of documents.

There was also filed in these proceedings an affidavit sworn by the plaintiff on 8 August 2000 in which she gave her residential address as 310 Bawtree Road, Leopold in the State of Victoria. From that affidavit the following facts appear relating to the circumstances of the action which occurred on 17 August 1996. On that day while holidaying in Queensland the plaintiff attended, with friends, a flea market conducted on a soccer ground in Nichols Road, Yandina, Queensland which market comprised a number of stalls scattered over a soccer ground. The car in which she was travelling was parked in a position where other cars were also parked and in order to get to the flea market it was necessary for her and her friends to traverse a ditch or trench (which I shall refer to as a trench), as there was no apparent bridge, walkway or other formal entry point to the flea market. Before crossing the trench she observed a goal post which was in the trench, in such a position as it formed a hand rail to a point at or about the bottom of the trench. She did not see any netting in the trench but as she crossed the bottom of the trench her right ankle became trapped in netting which was in the trench, causing her fall and fracture her left hip and shoulder. She was admitted to the Nambour Hospital where she received in-patient treatment and after some 8 days she was transferred to the Geelong hospital where she was an in-patient for a further period of time. Since sustaining the aforesaid injuries she has continued to undergo medical and surgical treatment and continues to suffer persistant pain and discomfort to both her left shoulder and hip.

On 23 September 1996 the plaintiff consulted her present solicitors with respect to the accident and the injuries sustained by her. At that stage she believed that the ground where she fell was controlled or owned by “the soccer club” and that the detail of that ownership could be obtained from the shire council. In or about mid-1999 she was aware that a writ had been issued on her behalf against the soccer club and on or about 25 November 1999 she was told by her solicitor that the soccer club had joined or sued the Shire, the second defendant. She has deposed that at that time she still believed that the soccer club was responsible for her injuries and were in control of the ground where she fell and was injured but on that occasion she was told by her solicitor that as the soccer club has asserted that the Shire had control of the area where she fell it would be prudent for him to take proceedings to join the second defendant as a defendant to the proceedings. She left the matter up to her solicitor.

On 22 June 2001 the plaintiff consulted counsel and was told by him that a bundle of discovered documents had been sent to her solicitors under cover of a letter dated 22 August 2000 from the solicitors for the second defendant and that another bundle of documents had been sent under cover of a letter dated 10 November 2000 from the solicitors for the first defendants. She exhibited to her affidavit a number of items of correspondence and bundles of the documents discovered by the first defendant and second defendant. She had not seen this correspondence before conferring with counsel on 22 June 2001 nor had she seen the documents discovered.

From the letters and documents exhibited to the affidavit of the plaintiff the following facts appear:

(a)On 27 February 1997 the solicitors for the plaintiff wrote to, “Mr J Hall, manager, Legal Services, Maroochydore Shire Council, Nambour”. In that letter the solicitors stated that they have been instructed by the plaintiff that she had sustained injury at the Nambour Reds Soccer Club located at 3 Nichols Road, Yandina on 17 August 1996 when the plaintiff had attended a flea market which was taking place on the soccer ground. The letter asserted that the council was responsible for the public facility and that the plaintiff had been injured by reason of the council’s negligence and that they had been instructed to recover damages on behalf of the plaintiff. The letter, in part, stated, “We would be grateful if you would forward this correspondence to your insurance company and have them contact this office with a view to discussing the matter further”.
(b)On 6 March 1997 a letter was written for the Chief Executive Officer of the Maroochy Shire Council to the plaintiff’s solicitors referring to the letter of the plaintiff’s solicitors dated 27 February 1997 and advising that, “The Nambour Reds Soccer Club leases that part of the reserve pursuant to a Section 343 lease”. The letter suggested that all further correspondence be directed to the club giving its address and further advising that a copy the letter of the plaintiff’s solicitors of 27 February 1997 had been forwarded to the Soccer Club, care of the secretary. The letter concluded by stating that the writer anticipated, “That the club insurers will be in contact with you in due course”.
(c)On 28 July 1997 the plaintiff’s solicitors wrote to the secretary of the Nambour Reds Soccer Club stating that they had been advised by the Chief Executive Officer of the Maroochy Shire Council that it had forwarded the previous letter of demand to the Soccer Club and stating that unless the solicitors received a response to the letter legal proceedings would be issued against the Club without further notice.
(d)By a letter from the secretary of the Nambour Yandina United Soccer Club dated 18 August 1997 the solicitors for the plaintiff were informed that they had not received a letter of demand from the shire council. The letter, in part, said, “I trust that you will correspond with Insurance Exchange of Australia directly”. The insurer’s address was given. In that letter was enclosed a letter from the secretary of the Soccer Club to the insurer which, in part, stated, “Please note that the department of the council was in error, we do hold a licence to run the markets a copy of which I am also enclosing”.
(e)On 26 August 1997 the solicitors for the plaintiff wrote to the insurer asking it to advise its attitude to the plaintiff’s claim.

As relevant to this application there was sworn and filed an affidavit of the solicitor for the second defendant, Williams, on 15 November 2000 deposing to a number of facts in answer to submissions and contentions made in the affidavit of the plaintiff’s solicitor, Gibbons, sworn on 14 November 2000. It is convenient to deal with a number of those facts as deposed to by Williams with reference to the submissions and contentions made by Gibbons in his affidavit. I deal with those as follows:

(a)As to the contention that the terms of the lease were not within the means of knowledge of the plaintiff until a copy of it was provided by the first defendant’s solicitors on 18 January 2000, the second defendant’s solicitor deposed that on 6 March 1997 the second defendant, by letter, informed the plaintiff’s solicitors that the “Nambour Reds Soccer Club leases that part of the reserve pursuant to a Section 343 lease” and that had a “current reserve search been carried out at the Titles Office in Queensland it would have revealed to the plaintiff or her representatives that the council was the trustee of the land upon which the injuries are alleged to have occurred and that there was a lease of the land to the first defendant’s predecessor, a copy of which lease could have been obtained from the Titles Office. Further it was deposed by the solicitor for the second defendant that access to the second defendant’s own file in relation to the land, the first defendant and the flea market could have been obtained by the plaintiff or her representatives at any time before these proceedings were instituted by making an application, “to the Council under Queensland’s Freedom of Information Legislation”.

From the affidavits filed as are relevant to this application I conclude that at the time that the plaintiff first consulted her solicitors on 23 September 1996 she was of the belief that where she fell and was injured was controlled or owned by the “soccer club” which later became identified as the first defendant. She was aware in or about mid-1999 that a writ had been issued on her behalf against the first defendant. On or about 25 November 1999 the plaintiff was informed by her solicitor that the first defendant had joined or sued the Shire, the now second defendant. At this time she still believed that the first defendant controlled the ground where she fell. She was told by her solicitor that the first defendant was asserting that the present second defendant was in control of the ground where she fell and she was advised that it would be prudent to join the present second defendant as a defendant. She left the matter to her solicitor. On 22 June 2001, when she had a conference with counsel, she saw, for the first time, the letter of demand that her solicitor had written to the present second defendant on 27 February 1997. She also saw, for the first time, the letters passing between her solicitors and the first defendant and her solicitors and the present second defendant during the period 27 February 1997 to 22 August 1997. She had not been aware of this correspondence before that time as she had left the matter in the hands of her solicitors. At this time the plaintiff also saw, for the first time, copies of documents discovered by the first defendant which had been furnished to her solicitors on or about 10 November 2000 and copies of discovered documents of the present second defendant which had been furnished to her solicitor on behalf of the present second defendant on or about 22 August 2000.

It was submitted on behalf of the plaintiff that it was not until or about 25 November 1999 when the plaintiff’s solicitor told her of the fact that the first defendant was asserting that the second defendant was in control of the land where she fell, that the plaintiff was aware of a “material fact of a decisive character” relating to the right of action against the present second defendant. It was submitted that that material fact of a decisive character was that the first defendant, whom she believed was in control of the ground where she fell, had asserted and alleged that in fact the second defendant was in control of that ground. It was submitted on behalf of the plaintiff that it was the assertion or allegation of this matter by the first defendant which resulted in leave being granted on 8 November 1999 for the first defendant to join the second defendant as a third party and which was the basis of leave being granted to the plaintiff on 19 April 2000 to join the present second defendant (which up to that time was a third party only) as a defendant to the proceeding which was followed on 5 May 2000, by the plaintiff filing her amended writ in which the present second defendant was named as a defendant to the proceeding. It was submitted on behalf of the plaintiff that in such circumstances the Court should exercise the discretion as provided by s. 31 of the Limitation of Actions Act 1974 (Q’ld) and extend the period of limitation for the action brought by the plaintiff against the present second defendant to a date in November 2000 at the latest. It was submitted on behalf of the plaintiff that in the circumstances of this case the plaintiff had commenced proceedings against the second defendant after she became aware of the material fact of a decisive character relating to her right of action against the present second defendant, that that material fact was not within the means of the plaintiff’s knowledge until 25 November 1999 which was a date, “after the commencement of the year last preceding the expiration of the period of limitation for the action” and that the provisions of s. 31 of the Limitation of Actions Act 1974 (Q’ld) contemplated applications within the time frame such as the present. In support of that submission reference was made to Opacic v Patane[8] in which it was held, as accurately stated in the headnote, “That Section 31(2) did not apply only to cases where proceedings were commenced and an application for an extension of the limitation period was made after the applicant acquired the means of knowledge of a material fact of a decisive character relating to his right of action. It was also applicable to cases where the applicant commenced proceedings after the expiration of the limitation period but before he acquired the means of knowledge of such a fact”. It was submitted on behalf of the plaintiff that the Court, in exercise of its discretion, should extend the period of limitation for the plaintiff’s action against the present second defendant to a time up to November 2000. It was submitted that if that was done it would result in the plaintiff’s action against the present second defendant, which was commenced by filing her amended writ on 5 May 2000, to be within the extended period of limitation thereby enabling her to prosecute her claim against the present second defendant.
[8][1997] 1 Qd.R. 84.

It is pertinent to note at this point that the application of the plaintiff to extend the period of limitation for the purpose of her action brought against the present second defendant was filed on 14 November 2000 being returnable on 17 November 2000 but it was not heard on that date. Although it was the primary submission made on behalf of the plaintiff that the period of limitation for her action against the second defendant be extended until November 2000 it was also submitted that all that was necessary, in exercise of the Court’s discretion, was for it to be ordered that the period be extended until the day after the plaintiff had filed her amended writ in these proceedings as that would result in the proceedings instituted against the second defendant by the plaintiff being within the period of limitation so extended.

On behalf of the second defendant it was submitted that for the Court to grant an extension of the limitation period pursuant to s. 31(2)(a) of the Limitation of Actions Act 1974 (Q’ld) the Court needed to be satisfied of three matters. The first was that a material fact of a decisive character was not within the knowledge of the applicant until after the limitation had expired. The second, it was submitted, was that there needed to be evidence from which the Court could form an opinion that the plaintiff had a right of action against the respondent to the application. The third matter was that the justice of the case required that the extension be granted.

It was submitted that insofar as the plaintiff sought to rely on the fact that she was not aware of the existence of the lease between the first and second defendant as being a material fact of a decisive nature which was not within her means of her knowledge and that the plaintiff sought to contend that it was not within the means of her knowledge until the first defendant’s solicitors on 18 January 2000 provided a copy of the lease to the plaintiff’s solicitors, that could not be relied on as a basis for the Court ordering that the limitation period, relevant to the plaintiff’s action against the second defendant, be extended. A number of submissions were addressed to the Court on behalf of the second defendant to support this primary submission. However, the case as presented and put on behalf of the plaintiff on this application did not seek to rely on the fact that the subject lease was not sighted by the plaintiff’s solicitors until a copy of it was obtained on discovery on 18 January 2000. Rather the case put on behalf of the plaintiff on this application was that to which I have referred. Accordingly, I put to one side the submissions made on behalf of the second defendant relating to the lease being sighted for the first time by the plaintiff’s solicitors on 18 January 2000. As to the matters relied on by the plaintiff in support of this application, it was submitted, in substance, on behalf of the second defendant, that the fact that on 25 November 1999 the plaintiff became aware of the fact that the first defendant had joined the present second defendant as a third party was not a material fact of a decisive character which was not within the means of knowledge of the plaintiff until that time. It was submitted that as from the time that the plaintiff’s solicitors first wrote a letter of demand to the present second defendant, on 27 February 1997, and received a reply on behalf of the Chief Executive of the second defendant on 6 March 1997, it was within the means of knowledge of the plaintiff of the relationship existing between the first defendant and the second defendant which gave rise to the third party proceedings being instituted by the first defendant against the present second defendant.

In Do Carmo v Ford Excavations Pty Ltd[9] the Court considered the provisions of ss. 57(1)(b)(i) and 58(2) of the Limitations Act 1969 (NSW) which were in like terms as ss. 30(a)(i) and s. 31(2)(a) of the Limitation of Actions Act 1974 (Q’ld). Deane J. at p. 249-5 said:
[9](1984) 154 CLR 234.

“I agree… with Wilson J’s conclusion that ignorance of the existence of a cause of action is not in itself ignorance of a material fact for the purpose of ss. 57 and 58 of the Limitation Act 1969 (NSW)…
The ignorance of a material fact to which those sections refer is, in my view, ignorance of a factual matter in the ordinary sense and not ignorance of the law itself or of the legal consequences of the material facts.”

Dawson J. at p. 254 said:

[I]t seems to me that reference to material facts in para (i) of s. 57(1)(b) does not include a reference to a cause of action in negligence but is rather a reference to facts which constitute the acts or omissions including those facts which are necessary to show the negligent character of those acts or omissions upon which such a cause of action might be founded.”

In Dick v University of Queensland[10] Thomas J.A. applied those statements to the provisions of the Limitation of Actions Act 1974 (Q’ld) which are presently under consideration.

[10][2000] 2 Qd.R. 476.

It was on 25 November 1999 that the plaintiff knew that the first defendant had joined the present second defendant as a third party. Although believing that the first defendant was responsible for her injuries, in substance, at that time she became aware of the fact that there must have been available to the first defendant facts and matters which led it to conclude and allege that there was negligence on the part of the second defendant which was a cause of the plaintiff falling and being injured on 17 August 1996. The fact that the plaintiff first came to know, on 25 November 1999, was not the legal effect of that fact, but rather the fact that facts and matters known to the first defendant were such as to enable it to bring third party proceedings against the present second defendant alleging that its negligence was a cause of the plaintiff falling and being injured.

It is not an uncommon occurrence in a Common Law action where a plaintiff may have sued one party in negligence for injuries received and damage suffered knowing that another party may have been involved. In such circumstances when the party sued joins the other as a third party the plaintiff then becomes aware of the fact that there is known to the party sued facts which has caused it to join the other party in third party proceedings alleging that by its acts or omissions that other party was liable in negligence to the plaintiff. In such circumstances a prudent plaintiff, no doubt acting on advice would institute proceedings directly against the third party.

Although it may be said that in this case it was within the knowledge of the plaintiff that there existed, by reason of the lease between the first defendant and the present second defendant, a relationship being relevant to the basis on which the first defendant joined the present second defendant as a third party, that which the plaintiff knew as on 25 November 1999 was not limited to that fact but rather that which she knew on 25 November 1999 was that there existed to the knowledge of the first defendant facts and matters which caused it to allege that negligence on behalf of the present second defendant was a cause of the plaintiff being injured and suffering damage. It was not until the plaintiff became aware and had knowledge of the fact, on 25 November 1999, that the first defendant had joined the present second defendant as a third party that she was aware that the first defendant had knowledge of such facts or matters.

By s. 30(a) of the Limitation of Actions Act 1974 (Q’ld) the expression, “material fact relating to a right of action” are defined to include those matters set out in sub-paras. (i)-(v). By its very terms s. 30(a) is not conclusive of what may constitute “material facts relating to a right of action”. In my view, the facts that became known to the plaintiff on 25 November 1999 do constitute “material facts relating to a right of action”. In addition, on that occasion, the plaintiff became aware of the fact of the occurrence of negligence of the second defendant on which a right of action against it was founded, she had knowledge of the identity of that person against whom the right of action lay, the second defendant, and she had knowledge that the negligence of the second defendant caused her injury. She obtained knowledge of each of those four matters on 25 November 1999 in consequence of being informed by her solicitor that the first defendant had instigated third party proceedings against the present second defendant.

For the plaintiff to succeed in the present application it is not sufficient for her to establish merely that a material fact relating to a right of action against the present second defendant was not within the means of her knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. It is necessary, further, for the plaintiff to establish that the material fact was, “of a decisive character”. With respect to this matter reference must be had to s. 30(b)(i) and (ii) of the Limitation of Actions Act 1974 (Q’ld) which I have set out earlier in my judgment.

As at 25 November 1999 the plaintiff had knowledge of the fact that the first defendant had sued the present second defendant as a third party in the proceeding. In my view, a reasonable person knowing of those facts and being aware of the injuries sustained by the plaintiff and having taken appropriate advice, of the nature that it would appear that the plaintiff received from her solicitor on this occasion, would regard those facts as showing that an action on the right of action against the present second defendant, apart from the expiration of a period of limitation, would have reasonable prospects of success resulting in an award of damages sufficient to justify bringing the action that she took against the present second defendant on the right of action. I am satisfied that such reasonable person would regard those facts as showing that it was in the plaintiff’s interest, taking account of her circumstances, to bring an action on the right of action against the present second defendant.

I next turn to consider the provisions of s. 30(d) of the Limitation of Actions Act 1974 (Q’ld).

Before 25 November 1999 the plaintiff did not know that the first defendant had taken third party proceedings against the present second defendant. She did not know before that time that the first defendant had knowledge of facts and matters sufficient for it to allege that there was negligence on the part of the present second defendant which was a cause of the plaintiff sustaining injuries and suffering loss and damage. On 5 November 1999 the plaintiff’s solicitors sighted a draft third party notice, this, no doubt, led to the plaintiff’s solicitors conferring with her on 25 November 1999. Insofar as it may be said that it was within the means of knowledge of the plaintiff before 25 November 1999 to have knowledge of the fact that the first defendant was aware of such facts and matters as to cause it to allege that there was negligence on the part of the present second defendant which was a cause of the plaintiff being injured and suffering loss and damage, in my view, the plaintiff had before 25 November 1999 taken all reasonable steps to ascertain the fact of the knowledge of the first defendant insofar as she had engaged solicitors to act on her behalf relating to the injuries sustained and loss and damage suffered in consequence of falling on 17 August 1996. It was after the plaintiff’s solicitors became aware of the draft third party notice and on 25 November 1999 that the plaintiff became aware of the facts that I have referred to. She did not know of those facts before that time and before that time she had taken all reasonable steps to ascertain such facts by engaging solicitors who on the ascertainment of such facts conferred with her.

In order for the plaintiff to be successful on the present application it is necessary for the plaintiff to establish the matters as provided in s. 31(2)(b) of the Limitation of Actions Act 1974 (Q’ld), that is, that the plaintiff must put before the Court such material as, “It appears to the Court – that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation”.

In Smith v Browne[11] Kaye J. considered an application brought pursuant to the provisions of s. 23A of the Limitation of Actions Act 1958 (Vic), as it was then enacted. The application was for an extension of time in which proceedings could be brought in which damages were sought for personal injuries. Pursuant to the legislation as then existed it was necessary for the Court to be satisfied that there was “evidence to establish the cause of action apart from any defence founded upon the expiration of the period of three years after the cause of action accrued”. His Honour, at p. 847, said:
[11][1974] VR 842.

“To succeed in his application, it must appear to the Court that there is evidence to establish that the applicant has a cause of action. This does not require the Court to conduct a preliminary hearing to satisfy itself that evidence available to the applicant will enable him to prove his case. For those purposes it is sufficient that the applicant should adduce evidence from which the Court is able to form an opinion that he has a cause of action against a party for damages in respect of personal injuries suffered by him.”

In Evans v Repco Transmission Co Pty Ltd[12] Gowans J. had a similar application before him, as that heard by Kaye J. in Smith v Browne. At p. 152 Gowans J. said:
[12][1975] VR 150.
“I do not accept the contention that the actual evidence must be adduced before the Court by the applicant. I think the language of the sub-section is satisfied, if it is made to appear to the Court that the evidence exists and can be adduced.”

His Honour further said on that page:
“Further I do not accept the contention that the test is whether the evidence would launch a case before a jury. It may be a useful touchstone, but the language to be satisfied is the language of the statute and that must be considered in the light of the particular circumstances.”

In Minoque v Bestobel Industries Pty Ltd[13], which was an appeal from a decision of trial judge on an application brought pursuant to s. 31(2) of the Limitation of Actions Act 1974 (Q’ld), it appears that the trial judge cited Smith v Browne and Evans v Repco Transmission Co Pty Ltd and said:
“In my view what must appear to the Court is that there is evidence which can be adduced from which the Court could form an opinion that the applicant has a right of action.”

[13][1981] Qd.R. 356.

On the appeal Douglas J., with whom Wanstall C.J. and Matthews J. agreed at p. 358, accepted that the decisions of Smith v Browne and Evans v Repco Transmission Co Pty Ltd were decisions which should have been followed by the trial judge, agreed with the statement of the trial judge to which I have referred.

In my view, on the material put before the Court on this application it appears that as a result of falling in the circumstances referred to and at the place referred to the plaintiff sustained personal injuries. It appears that the first defendant initiated third party proceedings by filing a third party notice on 15 November 1999. I am satisfied from these facts that it has been made apparent to the Court that there is evidence available to establish the right of action that the plaintiff has against the present second defendant apart from a defence founded on the expiration of a period of limitation. By such third party proceedings the first defendant has alleged against the present second defendant that there was negligence on its part which was a cause of the plaintiff being injured and sustaining loss and damage. The fact that such action was brought by the first defendant against the second defendant satisfies me to the necessary degree that there is evidence to establish a right of action in the plaintiff against the present second defendant.

The decisive time for the purpose of this action is the time at which the plaintiff had knowledge of a material fact of a decisive nature which was not within the means of her knowledge before that time. The decisive time in the circumstances of this application, as advanced on behalf of the plaintiff, is 25 November 1999. That time is a time, “after the commencement of the year last preceding the expiration of the period of limitation for the action” of the plaintiff against the present second defendant. The period of limitation as provided by s. 11 of the Limitation of Actions Act 1974 (Q’ld) is that provided by s. 11 of the Act being, “3 years from the date on which the cause of action arose”. The cause of action arose in respect of the plaintiff’s claim on 17 August 1996. Being satisfied as I am that the “material fact of a decisive character relating to the right of action” of the plaintiff, as I have previously referred to and identified, “was not within the means of knowledge of the applicant” until 25 November 1999 which is, “a date after the commencement of the year last preceding the expiration of the period of limitation for the action” no extension is able to be granted pursuant to s. 31 of the Limitation of Actions Act 1974 (Q’ld) to commence an action beyond 25 November 2000: Mills v Comalco Aluminium Ltd[14]. It is to this point of time that on behalf of the plaintiff it was submitted that whereas the Court may extend the period of limitation with respect to the plaintiff’s action against the second defendant until November 2000 it is sufficient for the purpose of the plaintiff’s application that the period is extended to a date subsequent to 5 May 2000 which is the date on which the plaintiff instituted its proceedings against the second defendant.
[14]SC Q’ld: FC: 6 November 1991, Thomas J at p. 7, (unreported).

On being satisfied that the material fact of a decisive character relating to the right of action of the plaintiff against the second defendant of which she first had knowledge on 25 November 1999 was not within the means of her knowledge before that date and being satisfied, on the evidence, that there is evidence to establish that a plaintiff had and has a right of action against the second defendant apart from the defence founded on the expiration of a period of limitation, which the second defendant seeks to raise by amendment to its defence to the plaintiff’s Statement of Claim in the action commenced against it on 5 May 2000, it is necessary to consider whether, in exercise of the Court’s discretion, an order should be made under s. 31(2) of the Limitation of Actions Act 1974 (Q’ld).

In Brisbane South Regional Health Authority v Taylor[15] the Court was concerned with an application brought under s. 31(2) of the Limitation of Actions Act 1974 (Q’ld). At p. 544 Dawson J. said:

“The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of the applicant where in all the circumstances, justice is best served by doing so. The onus of satisfying the Court that the discretion should be exercised in favour of the applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J. that once the legislature has selected a limitation period, to allow the commencement of an action outside the period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”

[15](1966) 186 CLR 541.

At p. 554 McHugh said when referring to the provisions of the Limitation of Actions Act 1974 (Q’ld):

“The scheme of the Act is that s. 11 forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless it is given under s. 31. It follows that an application for extension must show that justice will be best served by accepting that the particular proceeding from the general prohibition which s. 11 imposes. In this context, justice includes all the relevant circumstances relating to the application including the various rationales of the enactment of the limitation period involved. That the applicant has a good cause of action and was unaware of a ‘material fact of a decisive character relating to the right of action’ does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion… The object of the discretion, to use the words of Dixon C.J. in a similar context, ‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.[16] In determining what the justice of the case requires the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”

[16]Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473.

In this case the second defendant delivered its defence to the plaintiff’s Amended Statement of Claim in the action brought by her against the second defendant on 5 May 2000. It did not seek to rely on a limitation defence notwithstanding the provisions of s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic). It was only after judgment had been delivered in John Pfeifer Pty Ltd v Rogerson that the second defendant instituted proceedings by summons in the County Court on 2 November 2000 for leave to amend its defence. Initially the ground relied on by the second defendant seeking leave to amend its defence to plead a limitation defence pursuant to s. 11 of the Limitation of Actions Act 1974 was the change brought about to the Common Law with respect to an action such as the present, from the time of delivery of the judgment in John Pfeifer Pty Ltd v Rogerson. It was on the hearing of this application that the provisions of s. 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic) were also relied on. On 15 November 1999 the present second defendant was joined by the first defendant as a third party in the proceeding. If an order in favour of the plaintiff was not made pursuant to s. 31(2) of the Limitation of Actions Act 1974 (Q’ld) and the second defendant was granted leave to amend its defence to plead a defence of limitations, pursuant to s. 11 of that Act the plaintiff would be faced with an insurmountable defence of the second defendant but it would continue as a third party in the proceeding. In the circumstances of this case, the conclusion, that I have reached, is that justice is best served by it being ordered pursuant to s. 31(2) of the Limitation of Actions Act 1974 (Q’ld), extending the period of limitation for the action of the plaintiff presently existing against the second defendant as instituted by the plaintiff on 5 May 2000.

However, it is necessary to consider whether such order can be made at this time. On behalf of the plaintiff it was submitted that the Court should make an order in the form of a nunc pro tunc order so as to give effect to any order extending the period of limitation with respect to the proceeding commenced by the plaintiff against the second defendant on 5 May 2000. No argument was addressed to the Court on behalf of the second defendant why such an order should or could not be made in the circumstances of this case. No argument was addressed to the Court on behalf of the second defendant why such an order could not be made now if the Court was satisfied on the facts of this case that an order should be made in favour of the plaintiff extending the period of limitation for the action commenced by her against the present second defendant on 5 May 2000. It was submitted on behalf of the second defendant that if the Court was minded to make an order extending the period of limitation for the action of the plaintiff that it should also order that leave be granted to the second defendant to amend its defence to plead a limitation defence.

From the file of these proceedings it appears that on 6 November 2000, which was the return date of the second defendant’s application to amend its defence, it was ordered that the second defendant’s application to amend its defence be referred to the Practice Court on 17 November 2000 for determination. That was the return day of the plaintiff’s summons, issued on 14 November 2000, to extend the period of limitation. On 17 November 2000 the applications were adjourned to 24 November 2000. On that latter day it was ordered that the proceedings be stayed pending an application to be made to transfer the proceedings to this Court. As referred to earlier in my judgment, on 7 February 2001 the proceedings in the County Court were transferred to this Court.

As previously referred to in Opacic v Patane[17] the Full Court held that the provisions of s. 31(2) of the Limitation of Actions Act 1974 (Q’ld) not only applied to a case where proceedings were commenced and an application for an extension of the limitation period was made after the applicant acquired the means of knowledge of a material fact of a decisive character relating to the applicant’s right of action, but the section was applicable where the applicant had commenced proceedings after the expiration of the limitation period and before he or she acquired the means of knowledge of such fact.
[17][1997] 1 Qd.R.84.

Davies J.A. at p. 87 said:

“It is true that the application for an extension of time was made before [the applicant] became aware of the material fact relied on. It is also true that s. 31(2), by permitting an order for extension of time to one year after the date on which the material fact came within the knowledge of the applicant, contemplates that proceedings will ordinarily be commenced and an application for an extension of time made after an applicant has acquired the relevant knowledge. But there is no reason of principle or policy why the section would be read down to apply only to that case. That would have the effect of excluding from the operation of the section an applicant for no other reason than that he has commenced proceedings outside the limitation period but before he acquired the relevant means of knowledge.”

It is to be seen from this judgment that the provisions of s. 31(2) of the Limitation of Actions Act 1974 (Q’ld) differ from and are distinguishable from the provisions of s. 23A of the Limitation of Actions Act 1958 (No. 6295) (Vic) as it was before being amended by the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic), which were considered by Little J. in Tung v Augustine[18] and the Full Court in Bestobel Overseas Ltd v Carden[19].
[18][1973] VR 616.
[19][1988] VR 891.

The discretion vested in the Court pursuant to s. 31(2) of the Limitation of Actions Act 1974 (Q’ld) empowers the Court to extend the period of limitation for an action so that it expires at the end of one year after the date identified in sub-s. (2)(a). In this case that date was 25 November 1999. Within one year of that date the plaintiff had commenced proceedings against the second defendant and had issued the present application for an order to extend the period of limitation for the action commenced by her which were returnable within the period of one year. In my view there is nothing in the language of s. 31(2) that would require it to be construed that in a case such as the present the order of the Court extending the period of limitation must be made before the expiration of a period of one year from the “date” identified in s. 31(2). Accordingly, I am of the view that at this time, by order the Court, it is able to extend the period of limitation to a date subsequent to 5 May 2000, being the date on which the plaintiff’s proceedings were commenced against the second defendant, but not later than 25 November 2000. Having regard to the fact that the application of the plaintiff made on 14 November 2000 was returnable on 17 November 2000, in my view it is appropriate in the exercise of the Court’s discretion to extend the period of limitation for the action commenced by the plaintiff against the second defendant to 17 November 2000.

If I am in error in my interpretation of s. 31(2) of the Limitation of Actions Act 1974 (Q’ld), in the circumstances of this case and having regard to the fact that no argument was addressed why a nunc pro tunc order could not be made in this proceeding it could be ordered, now as for 17 November 2000 that the period of limitation for the action of the plaintiff against the second defendant be extended to 17 November 2000.

Having reached the conclusion that it is appropriate to order that the period of limitation be extended for the action of the plaintiff against the second defendant it would be futile and of no point to grant leave to the second defendant to amend its defence to plead a limitation defence as sought by it. Accordingly, I do not propose to order, in exercise of the Court’s discretion, that the second defendant have leave to amend its defence to plead a limitation defence as sought by it in these proceedings.

For the above reasons I make the following orders:

1. That the second defendant’s summons filed on 2 November 2000 be dismissed.
2.That on the plaintiff’s summons against the second defendant filed on 14 November 2000, the period of limitation for the action of the plaintiff against the second defendant commenced on 5 May 2000 be extended so that it expires on 17 November 2000.

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[2001] VSC 494

19 December 2001