Turagadamudamu v PMP Ltd - [2009] NSWCA 120

No judgment structure available for this case.

Reported Decision: 75 NSWLR 397[2010] ALMD 6590

New South Wales

Court of Appeal

CITATION: Turagadamudamu v PMP Limited [2009] NSWCA 120
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 December 2008

JUDGMENT DATE:
26 May 2009

JUDGMENT OF: Beazley JA at 1; Ipp JA at 141; Campbell JA at 142

DECISION: 1. Grant leave to appeal;
2. Appeal dismissed;
3. Set aside the order for costs made by the trial judge and note that there is no order as to costs in respect of the hearing at first instance and on appeal with the intent that the parties bear their own costs of each of those proceedings.

CATCHWORDS: LIMITATION OF ACTIONS – proceedings for damages for personal injury – statutes of limitation – expiration of primary limitation period and secondary limitation period – whether an order can be made under the Limitations Act, s 60C after the expiry of the secondary limitation period - PROCEDURE – commencement of proceedings for damages for personal injury – whether the filing of a notice of motion with a statement of claim annexed commences proceedings – whether an order can then be made nunc pro tunc - LIMITATION OF ACTIONS – proceedings for damages for personal injury – whether the statutory requirement in the Limitations Act, s 68A confers a substantive right on the opposing party

LEGISLATION CITED: Civil Procedure Act 2005, s 16 and 63
Companies Act 1961 (Vic), s 199
Corporations Law (Cth), s 459P
Fatal Accidents Act 1959 (WA), s 7
Legal Profession Act 2004, s 347
Limitation Act 1969, s 11, s 18A, s 60C, s 60G, s 60H, s 63, s 78, and sch 5, cl 4.4
Limitation of Actions Act 1974 (Qld), s 31
Limitations of Actions Act 1958 (Vic), s 23A
Motor Accidents Act 1988
Uniform Civil Procedure Rules 2005, Pt 6, Pt 18, r 4.10, r 6.1, r 6.2, r 6.3, r 6.5, r 6.6, r 6.24, r 6.28, r 12.11, r 18.1, r 25.2 and r 36.4
Workers Compensation Act 1987, s 151D and 151Z

CATEGORY: Principal judgment

CASES CITED: Bestobell Overseas Ltd v Carden [1988] VR 891
Bingham v England (1996) 23 MVR 331
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Clarke v Bailey (1993) 30 NSWLR 556
Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported)
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Jol v State of New South Wales (1998) 45 NSWLR 283
Ketteman v Hansel Properties Ltd [1987] 1 AC 189
Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305
Re Sydney Formworks Pty Ltd [1965] NSWR 646
Re Testro Bros Consolidated Ltd [1965] VR 18
Salido v Nominal Defendant (1993) 32 NSWLR 524
Sandrin v W&M Riggs Mechanical Repairs [2006] NSWCA 194
SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249
Simms v Western Area Health Service [2003] NSWSC 445
Trpenoski v BHP Flat Products [2003] NSWCA 176
Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394
Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6

TEXTS CITED: B Cairns, Australian Civil Procedure, 5th ed (2002) Lawbook
E R Hardy Ivamy, Mozley and Whiteley's Law Dictionary, 11th ed (1993)
ButterworthsRitchie’s Uniform Civil Procedure Rules New South Wales, (April 2009), vol 1

PARTIES: Savenaca Turagadamudamu (Appellant)
PMP Limited (formerly known as Pac-Rim Printing Pty Limited) (Respondent)

FILE NUMBER(S): CA 40701/07

COUNSEL: D E Baran (Appellant)
P Webb QC; G Hickey (Respondent)

SOLICITORS: Monaco Solicitors (Appellant)
Moroney Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 5634 of 2006

LOWER COURT JUDICIAL OFFICER: Robison DCJ

LOWER COURT DATE OF DECISION: 4 July 2008

- 54 -

CA 40701/07

BEAZLEY JA
IPP JA
CAMPBELL JA
26 May 2009

Savenaca Turagadamudamu v PMP Limited

Headnote

On 2 December 1998, Mr Turagadamudamu (also known as Mr Turaga) seriously injured his wrist whilst working as an assistant binder at PMP Limited (PMP) to whom his services had been hired out by his employer Dunhill Personnel Pty Limited (Dunhill). In 2002 Mr Turaga settled Workers Compensation proceedings against Dunhill. In 2006, after changing solicitors, Mr Turaga decided to bring proceedings against PMP. Pursuant to the Limitation Act 1969, s 18, the primary limitation period of three years expired on 2 December 2001. Under the Limitation Act, s 60C, the limitation period could be extended for a further period of up to five years (the secondary limitation period). That period expired on 2 December 2006.

On 23 November 2006, Mr Turaga filed a notice of motion in the District Court seeking an extension of the limitation period. The notice of motion was heard and determined by Robison DCJ on 4 July 2007, but no point was raised that the secondary limitation period had expired. His Honour, in the exercise of his discretion, dismissed the notice of motion.

On appeal, Mr Turaga submitted that Robison DCJ erred in the exercise of his discretion by not granting an extension of the limitation period under s 60C. During oral argument, the Court raised the question whether it had jurisdiction to make an order pursuant to s 60C, after the secondary limitation period has itself expired.

Held

(1) The Court does not have power to make an order nunc pro tunc extending the limitation period after the expiration of the secondary limitation period: [41] and [83].

Guss v Veenhuizen (No 2)

Emanuele v Australian Securities Commission

Re Testro Bros Consolidated Ltd

Re Sydney Formworks Pty Ltd

Dandashli v Dandashli

Whisprun Pty Ltd v Sams & Ors

Mealing v Chand

Trpenoski v BHP Flat Products

Sandrin v W&M Riggs Mechanical Repairs

Jol v State of New South Wales

Clarke v Bailey

SDW v Church of Jesus Christ of Latter-Day Saints

(2) Proceedings for damages are commenced by the filing of a statement of claim. An action for damages for personal injuries is not commenced by the filing of a notice of motion with a draft statement of claim annexed: [46].

Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard

(3) The Limitation Act, s 68A does not provide a party with a substantive right to have the extinction of the limitation period pleaded against him or her: [89]-[90]]

(4) The failure of a party contesting a notice of motion to assert that a court does not have jurisdiction to make an order does not constrain the court from determining that question: [92].

CA 40701/07

BEAZLEY JA
IPP JA
CAMPBELL JA
26 May 2009

Savenaca Turagadamudamu v PMP Limited

Judgment

1 BEAZLEY JA: Savenaca Turagadamudamu (also known as Sam Turaga) seeks leave to appeal from the decision of Robison DCJ refusing him an extension of time under the Limitation Act 1969, s 60C to bring proceedings against PMP Limited (PMP). Section 60C permits the court to extend the primary limitation period for up to a further five years (the secondary limitation period).

2 The application for leave to appeal has been heard as if on appeal.

3 Mr Turaga contended that the trial judge erred in the exercise of his discretion in refusing an extension of the limitation period under s 60C. However, the Court raised a preliminary question for consideration, which if decided against Mr Turaga, is determinative of his appeal. The preliminary question is whether an order can be made under s 60C, after the secondary limitation period has itself expired. The preliminary question raises a second issue, namely, what constitutes the bringing of an action for the purposes of the Limitation Act.

4 The preliminary question has been the subject of previous comment in this Court: see Sandrin v W&M Riggs Mechanical Repairs [2006] NSWCA 194, although the underpinning procedural steps in that case were different from the present case. In that case, which is discussed below, the Court held that an order could be made retrospectively, but in circumstances where a statement of claim had already been filed. Here, no statement of claim has been filed.

5 Since the Court heard final argument in this matter on 4 December 2008, it has delivered its decision in Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6, which determined that an action for personal injuries is commenced by the filing of a statement of claim. The implications of Windsurf for this case are such that it is likely that the appeal cannot succeed. However, as the preliminary question was raised by the Court, it is appropriate to determine whether the trial judge erred in the exercise of his discretion. If Mr Turaga does not succeed in establishing error, the jurisdictional issue raised in the previous paragraphs does not directly arise.

6 The factual background to the application can be stated briefly. On 2 December 1998, Mr Turaga suffered a crush injury to his left wrist, whilst working as an assistant binder at PMP. Mr Turaga’s services had been hired out to PMP by his employer, Dunhill Personnel Pty Limited (Dunhill). Mr Turaga’s injuries were serious and he suffered significant ongoing disability.

7 Mr Turaga brought proceedings in the Workers Compensation Commission against Dunhill. Those proceedings were settled. Subsequently, Mr Turaga decided to bring proceedings against PMP. This decision was made after Mr Turaga changed solicitors. By that time, the primary limitation period had expired. On 23 November 2006, Mr Turaga filed a notice of motion in the District Court seeking an extension of time in which to commence proceedings. The secondary limitation period expired on 2 December 2006.

8 The notice of motion was heard and determined by Robison DCJ on 4 July 2007, after the secondary limitation period had expired. No point was raised that the secondary limitation period had expired. His Honour, in the exercise of his discretion, dismissed the notice of motion.

9 The order made by Robison DCJ was interlocutory and Mr Turaga thus needs the leave of this Court to appeal. That leave should be granted. The preliminary question is an important matter that affects Mr Turaga’s rights and his claim for damages is not insignificant. Even if the preliminary question was not in issue, it would be appropriate to grant leave. If the trial judge erred in the exercise of the discretion under s 60C, Mr Turaga would have been kept out of a significant claim for damages.

Issues on the appeal

10 I have already stated the preliminary question that has arisen for determination. The issue is of some complexity and accordingly, a statement of the questions that need to be determined to answer the question is useful.

11 Those questions may be stated as follows. Given that Mr Turaga filed an application prior to the expiration of the secondary limitation period, then, for the purposes of s 60C:

(a) Did Mr Turaga, by the filing of the notice of motion with a statement of claim annexed, commence proceedings for damages for personal injury?

This question raises for consideration how an action for damages for personal injuries is commenced.

(b) If Mr Turaga commenced proceedings by filing the notice of motion with the statement of claim annexed, could an order be made nunc pro tunc so as to operate on that statement of claim? (This question assumes that proceedings were commenced on the date the notice of motion was filed.)

This question raises for consideration the circumstances in which an order may be made nunc pro tunc or so as to operate retrospectively.

(c) If filing the notice of motion with the statement of claim annexed did not constitute the commencement of proceedings, is it sufficient for the purposes of s 60C that a notice of motion is filed prior to the expiration of the secondary limitation period?

nunc pro tunc

12 It is first necessary to consider the relevant terms of the Limitation Act.

The

Limitation Act

and its operation in this case

13 Pursuant to the Limitation Act, s 18A the primary limitation period to bring an action against PMP is three years. That section provides:

“ 18A Personal injury

(1) This section applies to a cause of action, founded on negligence … or breach of duty, for damages for personal injury …

Action

any proceeding in a court

14 The primary limitation period for Mr Turaga to commence proceedings for damages for his injury against PMP thus expired on 2 December 2001.

15 Pursuant to the Limitation Act, s 60C, that period may be extended for a period not exceeding five years. (This has been referred to above as the secondary limitation period.) That section provides:

“ 60C Ordinary action (including surviving action)

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .

16 The secondary limitation period expired on 2 December 2006.

17 A cause of action is extinguished upon the expiry of the limitation period: the Limitation Act, s 63. It should be noted that the application of the limitation period is a question of substance and not procedure: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 at [100]; (2000) 203 CLR 503 at 544. See also Limitation Act, s 78(2) which provides that a limitation law is to be regarded as part of the substantive law of the State.

18 Mr Turaga did not file any court process in relation to a claim against PMP until 23 November 2006, when he filed the notice of motion the subject of the determination by Robison DCJ. Mr Turaga sought the following orders in the notice of motion:

“1. That the time for commencing proceedings against [PMP] be extended to 2 December 2006 pursuant to Section 60C of the Limitation Act 1969 (NSW).

2. In the alternative, an order that the time for commencing proceedings against [PMP] be extended pursuant to Section 60G of the Limitation Act(NSW).

annexed

19 The statement of claim annexed to the notice of motion bore a notation for the solicitor’s certification under the Legal Profession Act 2004, s 347. Section 347(2) requires that court documentation on a claim for damages is not to be filed unless accompanied by a certification that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in the proceedings has reasonable prospects of success.

20 The form of certification on the prescribed form requires the plaintiff’s solicitor’s signature. In this case, the certification on the annexed statement of claim did not bear the solicitor’s signature. Presumably, this was because the annexed statement of claim was a draft and intended to be filed in the proceedings. Depending on what is required for an action to be commenced, there is a question in this case as to whether that was sufficient to commence proceedings, even if the document was annexed as a draft.

21 Mr Turaga contended that he had brought his action for damages for personal injury prior to 2 December 2006, because he had annexed his proposed statement of claim to the notice of motion filed on 23 November 2006. Accordingly, provided he could persuade the Court to exercise its discretion under s 60C, an order extending the limitation period up to 2 December 2006 could be made after that date. In other words, Mr Turaga seeks that an order extending the limitation period be made so as to operate retrospectively, or to use the language of earlier legal jurisprudence, to make an order nunc pro tunc.

Procedural rules relating to bringing an action for personal injuries

22 One of the questions in issue in this case was how an action for personal injuries is commenced and, in particular, whether here proceedings were commenced on 23 November 2006 by the annexing a form of statement of claim to the notice of motion. It is necessary to consider the rules of court that govern that process.

Commencement of an action

23 The Uniform Civil Procedure Rules 2005 (the UCPR), Pt 6 makes provision for commencing proceedings.

24 UCPR, r 6.1(1) provides that:

“Except by leave of the court, a party may not take any step in proceedings, including any appearance in court, unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.”

25 UCPR, r 6.2(1) provides that:

by filing

26 UCPR, r 4.10(3) provides that a document is filed when it is lodged for filing. Subrule (1) provides that a person may lodge a document for filing:

27 Pursuant to UCPR, r 6.3(d)(ii):

“Proceedings of the following kinds must be commenced by statement of claim:

….

(d) proceedings on a claim for damages for breach of duty (however arising) and the damages claimed consist of or include:

(ii) damages in respect of personal injuries to any person”

28 Where proceedings have been commenced by the wrong process, UCPR, r 6.5 and r 6.6 provide that such proceedings will be taken to have been duly commenced as and from the date of filing the ‘wrong’ document and permit the court to make orders relating to the continuation of the proceedings. Those orders include that a pleading filed in the proceedings be treated as if filed as an affidavit: UCPR, r 6.5(2) or that any affidavit stand as a pleading: UCPR r 6.6(3).

29 Although this case does not involve an application to add a party to proceedings, mention should be made of UCPR, r 6.24 which provides that a party may be joined as a party to proceedings. UCPR, r 6.28 then provides:

“If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order.”

30 The following procedural provisions are also relevant to the issues that are raised on the appeal.

31 Applications for court orders are made by motion. See UCPR, r 18.1 which provides:

“An interlocutory or other application is to be made by motion unless these rules otherwise provide.”

32 Ritchie’s Uniform Civil Procedure Rules New South Wales (April 2009), vol 1 at 6615, states in the “Introductory note” to Pt 18 that Pt 18 governs the ordinary procedure for making interlocutory or procedural applications in pending matters. It is apparent that it does not apply to orders that are sought by way of final relief on the action.

33 UCPR, r 25.2 provides that the court, in an urgent case, may make certain orders, upon application of a person who seeks to commence proceedings in a court. Such orders include an order extending the operation of a caveat. There is no provision in r 25.2 for the making of an order for an extension of the limitation period. That raises the question whether the matters specified in subr (1) are exclusive. The introductory words of the subrule:

“In an urgent case, the court, on the application of a person who intends to commence proceedings, may do any of the following …”

34 On the assumption that UCPR, r 25.2 does not apply, there does not appear to be any specified procedure in the UCPR for obtaining an extension of the limitation period where a statement of claim (or summons) has not been filed. However, the court has power, under the Civil Procedure Act 2005, s 16 to give directions in circumstances not covered by the rules. Section 16 provides:

“(1) In relation to particular civil proceedings, the court may give directions with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide.

35 No direction was given under s 16 in this case, nor was any point taken, either before the trial judge or on the appeal, relating to the procedural correctness of filing a notice of motion seeking an order under s 60C of the Limitation Act that the time be extended to commence proceedings. Before the trial judge, the only question was whether the discretion under s 60C should be exercised in Mr Turaga’s favour. On the appeal, the focus was how proceedings for a claim for damages were commenced.

36 However, I have raised the correctness of this procedure and the question as to how proceedings are brought for the following reasons. First, there is a question in this case as to whether, by filing a notice of motion with a statement of claim annexed, an action for personal injuries had been brought for the purposes of the Limitation Act.

37 Secondly, it appears that the procedural aspects relating to obtaining an order to extend the limitation period do not find a recognisable home within the Civil Procedure Act and the UCPR. This is relevant if, as is contended here, an order may be made so as to operate retrospectively. A party seeking an extension of the limitation period may or may not have success, depending upon what procedures are adopted.

38 The following examples demonstrate the point just made. If a party seeks to add a party to an existing proceeding and plead a cause of action against that party, the date of commencement of proceedings in respect of that person is the date of the order adding the person as a party or such later date as the court may order: UCPR, r 6.28. Under the rule a retrospective order cannot be made. If the order adding the person as a party is made after the expiration of the limitation period (either the primary period, or after the maximum period of extension under s 60C), the claim will have been extinguished by the operation of s 63. Presumably, the court would not, in the exercise of its discretion, make the order adding the person as a party, unless the proposed new defendant waived reliance on the limitation period. Even if the order was made, the proposed new defendant could plead the expiration of the limitation period. Such a plea would succeed, as the action would have been extinguished. In this scenario, it would be irrelevant that the notice of motion to join the proposed new defendant was filed prior to the expiration of the limitation period.

39 Rather than seek to join a party in the above scenario, a plaintiff might commence separate proceedings against the new defendant. If it was intended to commence those proceedings after the expiration of the primary limitation period, then an order under s 60C would be required. The plaintiff could proceed in either of two ways. A notice of motion could be filed, as happened here, with a statement of claim annexed or exhibited to an affidavit. Alternatively, the statement of claim could be filed and a notice of motion brought to extend the limitation period. In either case, if a retrospective order could be made, it would be irrelevant that the order extending the limitation period was not made until after the expiration of the secondary limitation period.

40 It is apparent that the consequence of a construction of s 60C which permits a retrospective order to be made, is that a party who commences separate proceedings against a new defendant obtains an advantage in respect of a substantive right that is not permitted by the rules, had the application been brought to add the proposed new defendant as a party to existing proceedings.

41 A number of comments may be made about such an outcome. First, it is to be observed that UCPR, r 6.28 gives effect to the substantive nature of a limitation provision. Secondly, it must be open to doubt whether a provision affecting substantive rights can operate differently depending upon a fortuitous choice of procedure. Both of these considerations tend, therefore, to indicate that it is unlikely that an order can be made under s 60C so as to operate retrospectively.

What the cases say about the bringing of an action

42 This Court recently held that proceedings on an action for personal injuries have to be commenced by filing a statement of claim: Windsurf. The issue in Windsurf was whether the filing of a notice of motion to join proposed new defendants constituted the commencement of the action in negligence against the new defendants. The last date to which the limitation period could be extended was 31 May 2006. The notice of motion was accompanied by an affidavit which annexed the proposed amended statement of claim in which the new defendants were nominated as parties and a claim was pleaded against them.

43 Bell JA (as her Honour then was) observed, at [9], that the “bringing or commencement of proceedings is a procedural matter that is dealt with by the rules of court”: see UCPR, r 6.2. Her Honour also noted the statement in Bernard Cairns, Australian Civil Procedure, 5th ed (2002) Lawbook Co at 79, that a “proceeding is commenced when the originating process is issued by the registry of the court”. Her Honour concluded that the filing of the notice of motion did not constitute the commencement of an action. Her Honour’s decision was reached after a consideration of Fernance v Nominal Defendant (1989) 17 NSWLR 710 and Ketteman v Hansel Properties Ltd [1987] 1 AC 189.

44 Sackville AJA agreed with Bell JA, although only by deference to the decisions to which her Honour referred. But for those decisions, his Honour would have held that filing the notice of motion constituted an “action” within the limitations legislation, being a “proceeding in a court”: at [112]-[113].

45 Bell JA also rejected a submission that the plaintiff’s position could be regularised under the Civil Procedure Act, s 63 which permits the Court to rectify irregularities arising as a result of failing to comply with the Civil Procedure Act or the UCPR. Her Honour concluded, however, that s 63 did not assist the plaintiff as there had been no failure to comply with any provision of the Civil Procedure Act. As her Honour observed, at [24]:

“There was no procedural flaw in the events that happened. Ms Leonard did not bring an action for damages for negligence against Windsurf within one year of May 2005. Her motion to join Windsurf to the proceedings was one means of bringing an action for damages for negligence against Windsurf but it did not operate with that effect until at the earliest an order was made granting leave.”

46 Accordingly, Mr Turaga did not bring an action for damages for personal injuries by the filing of a notice of motion with the statement of claim annexed.

Can an order be made

nunc pro tunc

in this case?

47 However, the question remains whether, by filing the notice of motion prior to the expiration of the secondary limitation period, an order could be made retrospectively or nunc pro tunc. The answer to this question depends upon the proper construction of s 60C. However, an understanding of the operation of an order nunc pro tunc is necessary to determine whether, upon the proper construction of s 60C, such an order could be made.

48 Nunc pro tunc means, literally, “now instead of then”. ERH Ivamy, Mozley and Whiteley's Law Dictionary, 11th ed (1993) Butterworths, at 184, defines nunc pro tunc as:

"Now instead of then; meaning that a judgment is entered, or document enrolled, so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day."

49 The power of a court to make such an order now finds expression in UCPR, r 36.4(3) which provides:

“Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.”

50 It might be possible that an appropriately provisioned rule of court could permit an extension of the secondary limitation period after that period had expired. However, courts have always exercised caution in making orders nunc pro tunc. An order nunc pro tunc is classically made where procedural matters are involved. It should not be used where to do so would affect the vested rights of third parties: Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 at 53, 55. A limitation provision such as is involved here involves substantive rights and r 36.4(3) does not, of its own force, assist Mr Turaga.

51 An example of the appropriate use of a nunc pro tunc order is where the leave of the court is required before the commencement of proceedings. Examples of this are frequently found in corporations and bankruptcy cases. In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 the Court was concerned with the Corporations Law (Cth), s 459P. Section 459P(5) specified that persons not listed in s 459P(1) could not apply for a company to be wound up except by leave of the court. The relevant leave was not obtained. Dawson, Toohey and Kirby JJ each held that a failure to obtain leave to commence proceedings was a mere defect or irregularity which did not affect the validity of the order. The defect could be “cured” by granting leave nunc pro tunc, even by an appellate court.

52 Dawson J, in a short judgment, stated at 125:

nunc pro tunc

Re Testro Bros Consolidated Ltd

53 Toohey J, in his judgment, at 128, also adopted the approach of Sholl J in Re Testro Bros Consolidated Ltd.

54 Kirby J, at 152, referred to the reluctance of the courts to invalidate acts “done pursuant to a statutory provision because of a failure to comply with a prior procedural condition” (emphasis added).

55 In Re Testro Bros Consolidated, Sholl J was concerned with the Companies Act 1961 (Vic), s 199. That section provided that, except with the leave of the Court, an action or proceeding could not be proceeded with or commenced against a company under the control of an official manager. Sholl J said:

“Such legislation is aimed at preserving the control of the Supreme Court over the administration of a company's affairs, a purpose which is sufficiently achieved by interpreting sections like s 199 rather as conferring a control of a directory character on the Court, than as setting up an absolute bar like a statute of limitations.’

56 This approach was followed by McLelland CJ in Eq in Re Sydney Formworks Pty Ltd [1965] NSWR 646.

57 There are a series of decisions in this Court dealing with limitation provisions under the Workers Compensation Act 1987 and the Motor Accidents Act 1988, in which it has been held that an order may be made so as to operate retrospectively: see, for example, Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported); Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394; Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305; and Trpenoski v BHP Flat Products [2003] NSWCA 176. The Workers Compensation Act and the Motor Accidents Act under consideration in those cases each contained provisions that proceedings could not be commenced after a specified limitation period without the leave of the Court. The leave provisions were construed as condition precedents of a procedural nature, so that an order could be made to operate retrospectively.

58 These cases were relied upon in Sandrin as supporting the entitlement to an order nunc pro tunc in an application under s 60C. Both the circumstances and the question in issue in Sandrin were different from those that apply here and require a little explanation as the matter was procedurally complex. In Sandrin, the statement of claim was filed notwithstanding that leave to commence proceedings under the Workers Compensation Act had been refused, but before an appeal from that refusal had been heard and determined.

59 The facts were as follows. The plaintiff sustained injuries whilst undertaking work for the defendant. As the matter evolved, the status in which he sustained injury, that is, as an employee or as a person retained to do work for the defendant, was uncertain. His claim, if properly brought as an employee, was governed by the Workers Compensation Act and the limitation period under s 151D had expired. Under s 151D(2), a potential plaintiff needed leave of the court to commence proceedings if the limitation period had expired. If he was not an employee, the limitation period was governed by the Limitation Act. The primary limitation period under that Act had also expired. As already discussed above, under s 60C the court could extend the limitation period for a further five years.

60 Having failed to commence proceedings within either limitation period, the plaintiff filed a notice of motion seeking leave to commence proceedings out of time under the Workers Compensation Act 1987 (the notice of motion for leave to proceed under the Workers Compensation Act). The plaintiff did not, at that time, seek to contend that his injury was non-employment based. The notice of motion for leave to proceed under the Workers Compensation Act was dismissed. The plaintiff sought leave to appeal.

61 Prior to the determination of the application for leave to appeal and the appeal, (which I will refer to as the workers compensation appeal) the plaintiff filed a statement of claim in which he pleaded alternatively that his injuries were suffered in his capacity as an employee of the defendant or whilst otherwise retained to do work for the defendant. Next, the plaintiff filed a notice of motion seeking an extension of the limitation period, pursuant to the Limitation Act, s 60C. That application was made in respect of the alternative, non-employment basis upon which the plaintiff was seeking to advance his claim. That application was also dismissed.

62 The secondary limitation period, which was relevant to the non-employment basis of the claim, then expired.

63 Thereafter, the Court heard the workers compensation appeal from the dismissal of the notice of motion for leave to proceed under the Workers Compensation Act and granted leave under s 151D to commence proceedings out of time. The Court ordered that the time to commence proceedings be extended to one month from the date of the Court’s orders. That order was made in ignorance that a statement of claim had been filed. The plaintiff did not file a fresh statement of claim, his position being that the extension granted by the Court of Appeal under s 151D was sufficient to regularise the proceedings commenced by the statement of claim already filed. In other words, he contended that Court of Appeal’s order was, in effect, an order nunc pro tunc.

64 An application to strike out the statement of claim was then filed, but was dismissed and the plaintiff was directed to file any application for an extension of the limitation period. This of course was the second such application. That application came before a different trial judge. During the course of the hearing of that application, a question arose as to the status of the proceedings constituted by the filing of the statement of claim. The trial judge held that the proceedings commenced by the statement of claim were no longer in existence, as the court considered that the Court of Appeal’s orders in the workers compensation appeal were prospective in nature and, therefore, did not apply to overcome the irregularity constituted by the filing of the statement of claim. The trial judge also considered that the first refusal of the extension of the limitation period for the non-employment claim meant that there was no proceeding that could be pursued by the plaintiff.

65 In that context, Tobias JA (with whom I and Santow JA agreed) noted, at [23], that the parties did not dispute that where proceedings had been commenced before leave was granted pursuant to either the Workers Compensation Act or the Limitation Act, “an order may be made retrospectively granting leave to commence out of time, and that such an order will have the effect of curing what would otherwise be only a procedural irregularity”: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286-290; Whisprun Pty Ltd v Sams at [14], [15] and [19]; Mealing v P Chand t/as Fastfix; Trpenoski v BHP Flat Products.

66 Strictly, the language in which the finding was made insofar as it related to the Limitation Act was not apt. Under the workers compensation legislation, leave is required to commence proceedings out of time. There is no secondary limitation period as is the case with the Limitation Act. Under the Limitation Act, s 60C, leave is not required to commence proceedings out of time. Rather, the limitation period may be extended by order of the court for a period of up to five years after the expiration of the primary limitation period.

67 The question then arose whether such an order could be made where the secondary limitation period itself had expired. Again, the respondent conceded that it would be open to it to order that the limitation period be extended up to and including 26 November 2001 (the date on which the statement of claim was filed) and if that order was made, it would have the effect that the proceedings commenced by the statement of claim were commenced within the extended limitation period. As the date to which the period was thereby extended would be less than five years from the expiration of the primary limitation period, the limit contained in s 60C(2) would not thereby be offended.

68 As I have indicated, the question in this case is different from that in Sandrin. Here, the plaintiff did not file a statement of claim within the secondary limitation period. Given the different facts and also given that concessions were made in Sandrin that orders nunc pro tunc could be made, that case is not properly to be regarded as authority for the question in issue in this case.

69 There are a number of decisions to the effect that an order extending the limitation period cannot be made nunc pro tunc, although, as the discussion in those cases demonstrates, the caselaw is inconsistent and the legislation under consideration in the cases was various.

70 In Clarke v Bailey (1993) 30 NSWLR 556, the court was concerned with the Limitations Act, s 60G. Pursuant to that Act, Sch 5, cl 4.4, the court was empowered to make an order under s 60G or s 60H in relation to a cause of action within, relevantly, the period of three years commencing on 1 September 1990. The trial judge had refused a declaration that the court had power to antedate an order made after 1 September 1993, where the application for extension under that Act was made prior to 1 September 1993.

71 On appeal, the trial judge’s refusal of the declaration was upheld. The argument advanced on appeal was that where proceedings were commenced before 1 September 1993, but an order was not made on or before that date, the court was empowered to grant an extension at some later time and it could do so by antedating such order to take effect nunc pro tunc. By so doing, the court was thereby able, in effect, to “ ‘make’ its order within the period specified by the statute” (at 568).

72 Kirby P (Mahoney and Sheller JJA agreeing) rejected this argument, stating, at 569, that by its terms, Sch 5, cl 4(4)(b) required that “any order made by the court should be made within the period ending on 1 September 1993”. His Honour considered that the terms of Sch 5, cl 4(4)(b):

Limitation Act

73 Schedule 5, cl 4 has since been amended so as to permit the court to make an order extending time under, relevantly, s 60G, if an application for such an order is made within a specified time. I will return to this wording when considering the proper construction of s 60C.

74 In Bestobell Overseas Ltd v Carden [1988] VR 891, the Full Court of the Supreme Court of Victoria (Young CJ, Murray and Fullagar JJ) was concerned with the Limitations of Actions Act 1958 (Vic), s 23A. Subsection (2) provided, relevantly:

“Where on an application to a court by [a claimant] claiming to have a cause of action for damages for negligence … in respect of personal injuries … [and material facts relating to the cause of action were not known] … until a date later than two years after the cause of action accrued … the court may in its discretion order that the period within which an action on the cause of action may be brought be extended so that it expires at the end of one year after the [two year period] or, provided that application was made to a court before the expiration of one year after that date, on such later date, if any, as is specified in the order.”

75 The Court held that s 23A did not empower a court to make an order nunc pro tunc extending the period within which an action on the cause of action may be brought. The Court held, at 894, that the section “contemplates an action to be commenced in the future and commenced pursuant to an order made under the section”. The Court rejected the argument that s 23A was directed to an action already commenced. Rather, the section:

“… enacts a procedure which enables a claimant to make application to a court to obtain an order extending the time within which he may commence an action.”

76 In Bingham v England (1996) 23 MVR 331, the Court was concerned with a cause of action conferred on relatives of a deceased person by the Fatal Accidents Act 1959 (WA). Section 7(1) provided that the cause of action brought under the Act:

“… shall be commenced within twelve months after the death of the person in respect of whose death the cause of action arose.”

77 Section 7(2)(c) provided for an extension of that period in the following terms:

“… [an] application may be made to the Court for leave to bring an action at any time before the expiration of six years from the date of the death of the person in respect of whose death the cause of action arose.”

78 The proposed plaintiff under the Fatal Accidents Act commenced proceedings by way of summons three days before the expiration of the limitation period seeking an extension of time under s 7(2)(c). The application was refused. The plaintiff appealed, but the appeal was filed after the expiration of the six year period.

79 Kennedy ACJ considered that the Court should follow the decision of this Court in Clarke v Bailey, as well as the decision of the Victorian Full Court in Bestobell Overseas Ltd v Carden to the effect that the power to grant an extension of time under the Fatal Accidents Act, s 7 was a power to grant leave to bring an action that had not yet been brought. His Honour further held that an order could not be made nunc pro tunc.

80 Ipp J (as his Honour then was), in expressing his agreement with Kennedy AJC, added, at 345-346:

“Section 167(1)(a) of the Supreme Court Act 1935 (WA) entitles the judges of the Supreme Court to make rules of court for regulating and prescribing the procedure and the practice to be followed in the Supreme Court, including the manner in which, and the time within which, any applications (which under the Act or any other Act are to be made to the court) may be given. Order 42 r 2 provides that a judgment or order of the court ‘shall be dated as of the day on which it is pronounced, given or made, unless the court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day’.

…

81 In SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249 Simpson J was dealing with an application for extension of time under the Limitation of Actions Act 1974 (Qld), s 31. In that case, the proposed plaintiff filed a summons on 1 November 2004 seeking an extension of the limitation period. Her Honour held that the plaintiff had all material facts of a decisive character within her means of knowledge for the purposes of s 31, by 28 October 2004.

82 Accordingly, an extension of the limitation period to bring the action was permitted to 28 October 2005. Simpson J stated, at [25], that an “action is brought” by the commencement of substantive proceedings, that is, by the filing of a statement of claim or other originating process. Her Honour stated that an action was not brought by filing a summons seeking an extension of time in which to do so.

83 Her Honour had been referred, inter alia, to the decision of this Court in Sandrin and, in particular, to the reference therein to the ability of the court to make an order nunc pro tunc. Her Honour noted that the power of the court to do so was uncontroversial. However, she considered that the statutory provisions with which she was concerned were in clear terms. The court was only entitled to make an order extending the limitation period for one year after the relevant date had been identified. As her Honour stated, at [30]:

“… the court is … limited to the one year extension. It is simply not possible to claw back the time that has elapsed since 28 October 2005 [being the last date upon which the court could make an order].”

The proper construction of s 60C

84 I have already set out the terms of s 60C at [15] above. Section 60G provides a different basis for the extension of the limitation period. The different basis is not presently relevant. However, a comparison of its terms assists in the determination of the question whether an order under s 60C can be antedated provided an application is made within the secondary limitation period. The section provides:

“ 60G Ordinary action (including surviving action)

(1) …

85 Section 60G does not have within its terms the permissible period of extension. That is provided in Sch 5, cl 4. An earlier form of this provision was discussed by this Court in Clarke v Bailey. The form of Sch 5, cl 4(4) with which the Court was concerned Clarke v Bailey was:

“4.(4) The court may make an order under section 60 G … in relation to a cause of action referred to in this clause, within:

(b) the period of 3 years commencing on 1 September 1990.”

86 The wording of s 60G incorporating Sch 5, cl 4(4) (in its earlier form), is in different terms to s 60C. Schedule 5, cl 4(4)(b) (in its earlier form) expressly provided that if an order was to made, it was to be made within three years commencing on 1 September 1990. Section 60C provides that a court may order that the limitation period on the cause of action be extended for a period not exceeding five years. Notwithstanding the difference in the terms of the two sections, I am of the opinion that their effect is the same. The court may order an extension of the period for the cause of the action. Both sections have to be read in conjunction with s 18A (set out at [13] above). It is useful to set the section out again, so as to read it in context with ss 60C and 60G.

“ 18A Personal injury

or such period as is extended under s 60C or s 60G

87 When the limitation period is read in its extended form, one is driven back to what is required to commence an action. As I have already discussed, that is by filing a statement of claim. Mr Turaga has not filed a statement of claim and, accordingly, his action is extinguished.

Requirement to plead the limitation point

88 Finally, Mr Turaga sought to resist this possible outcome by relying on the Limitation Act, s 68A. That section provides:

“(1) Where in proceedings before a judicial tribunal a question arises as to extinction under this Division of a right or title, a party to the proceedings shall not have the benefit in those proceedings of any such extinction of that right or title unless, as part of the proceedings, the party has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal that the right or title has been so extinguished.

89 Mr Turaga submitted that s 68A provided him with a substantive right to have the extinction of the limitation period pleaded against him and that PMP could not take advantage of any argument that the cause of action had been extinguished when it had not been argued below.

90 I do not agree. In general terms, a statutory requirement that a matter be pleaded does not confer a substantive right on the opposing party. When regard is had to the particular terms of s 68A, it deprives a party, that is, the intended defendant, of asserting its substantive right unless it pleads that the cause of action has been extinguished. In this case, PMP did not do so when it was defending the notice of notion. However, if the court had no jurisdiction to make an order extending the limitation period, a failure to plead extinguishment on the hearing of the notice of motion cannot confer that jurisdiction. The position would have been different had Mr Turaga commenced proceedings and PMP had not pleaded the extinguishment.

91 Mr Turaga raised a number of other arguments as to why the jurisdictional issue should not be permitted to be argued. In particular, he relied on the fact that PMP did not plead the ultimate statutory bar, contrary to the requirements of UCPR, r 12.11(1)(g) and the Limitation Act, s 68A. This effectively restates the matter with which I have just dealt and should also be rejected, although something further should be said about UCPR, r 12.11(1)(g). That rule provides:

“(1) In any proceedings, the court may make any of the following orders on the application of a defendant:

(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings …”

“(2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.

(3) Notice of motion under subrule (2):

(b) must bear a note stating the applicant’s address for service.

92 UCPR, r 12.11 has particular relevance for foreign parties who may wish to object to the jurisdiction of a New South Wales court. However, I do not consider that in this case it can be said that by contesting the notice of motion without asserting that there was no jurisdiction to make an order, this Court is thereby constrained from determining that question. There are a number of reasons for this but there is a practical one that provides a sufficient answer. If this Court allowed the appeal and ordered that the matter be remitted for rehearing, the question of jurisdiction could then be raised.

93 It follows, in my opinion, that the appeal should be dismissed.

Consideration of the discretionary basis upon which the application was rejected

94 Should I be wrong in this, however, it is appropriate to consider whether the trial judge erred in the exercise of his discretion. In an amended notice of appeal, Mr Turaga contended the following:

1. His Honour made a material error of fact by determining that the document headed “ Preliminary Advice on Common Law ” and dated 15 February 2001 was created for the purposes of giving the advice effectively “ at large ”;

2. His Honour erred by making a material error of fact in finding that the document headed “ Preliminary Advice on Common Law ” brought into play persons beyond that of employer;

3. His Honour erred by making a material error of fact, namely that Mr Turaga made a decision not to take on common law proceedings;

4. His Honour failed to take into account or gave insufficient weight to a relevant matter, namely that there was no evidence before him to demonstrate that Mr Turaga had ever been advised of the Limitation Act , s 18A, as it related to any cause of action that he may have had against PMP;

5. His Honour failed to take into account or gave insufficient weight to the failure by PMP to adduce evidence of any s 151Z settlement between PMP and Mr Turaga’s employer together with concessions made as to the existence of an arguable cause of action and sufficient evidence from the s 151Z proceedings to discount any actual prejudice that was suffered by PMP in exercising the discretion to extend time; and

6. His Honour erred in the application of legal principle by failing to apply the principle that the conduct of Mr Turaga’s former solicitor and counsel in not advising him of the limitation provisions of the Limitation Act as applicable to a cause of action against PMP was not a bar to the discretion to grant an extension of time pursuant to s 60C.

Case at first instance

95 The essential basis upon which Mr Turaga contended that the discretion to extend the limitation period should have been exercised in his favour, was that he was never advised by his former solicitors, PK Simpson, what was meant by “common law” and that he did not know the difference between a common law action and any other kind of action and, in particular, a workers compensation action (at 18). As I understand his case, it was that in the absence of correct legal advice, he was not in a position to make an informed decision about the commencement and prosecution of proceedings against PMP and that his failure to do so was the fault of his former solicitors.

96 Mr Turaga’s assertion did not withstand cross-examination and there was contemporaneous documentary evidence that his Honour also considered contradicted Mr Turaga’s case. The trial judge made an adverse finding against his credit and his reliability, particularly his reliability as an historian and held that Mr Turaga had decided not to bring common law proceedings against PMP. He thus rejected the application for an extension of the limitation period.

The trial judge’s consideration of the evidence and the finding

97 Mr Turaga’s application for an extension of the limitation period was contained in his affidavit, in which the following emerged. Mr Turaga first attended the offices of PK Simpson in relation to his accident in January 1999. At this first consultation, Mr Turaga said that he informed a person at PK Simpson that he worked for Dunhill and that he was sent to PMP, where he was injured. He said he informed the interviewer as to how he injured himself.

98 On 22 February 1999, Mr Turaga signed a Retainer Agreement with PK Simpson in respect of workers compensation proceedings. Thereafter, according to Mr Turaga, between March 1999 and November 2002, he attended no less than three medicolegal appointments with doctors arranged by PK Simpson and had no less than two meetings with Mr Jurisich of counsel. Mr Turaga stated that in that period he was also told, either by a solicitor from PK Simpson, or by Mr Jurisich, that his case was going to be taken to the “common law court”. He said he agreed with that. Mr Turaga said, however, that he was not told anything further about common law and it was never explained to him what a “common law court” was. Mr Turaga asserted that he had no understanding of the difference between a common law claim for damages and a workers compensation claim. He said he did not enquire about the difference because at that time, he thought all compensation was the same.

99 On 19 November 2002, Mr Turaga attended a court in Goulburn Street. The trial judge inferred that this was the Workers Compensation Court. Mr Turaga said that he understood that his case was to be heard that day and he was taken into a small room by Mr Jurisich and his solicitor from PK Simpson. He said he was informed by Mr Jurisich that the insurer had offered $32,500 and that Mr Jurisich said to him:

“You don’t want to have to go to court again. If you lose this case … you will have a big bill to pay as well as your medical bill.”

100 Mr Turaga said that he agreed to accept the insurer’s offer, because although he did not understand what Mr Jurisich had told him, he was afraid of the prospect of having to pay money in legal costs.

101 On 19 November 2002, Mr Turaga signed an Authority to Settle which was witnessed by his solicitor, and in which he instructed his solicitor to settle his matter for $32,500 plus a sum for medical expenses. The Authority noted that he would continue to receive weekly compensation benefits and medical expenses. The settlement was stated to be in respect of his claim for lump sums pursuant to s 66 and s 67, although the amount payable for those claims was left blank. At the bottom of the Authority, under a heading “Common law”, Mr Turaga acknowledged that he had been fully advised in respect of his rights to commence proceedings to recover common law damages and that he did not wish to commence such proceedings.

102 Mr Turaga’s evidence was that he did not understand that by accepting the settlement he was not entitled to recover common law damages in respect of his injury and it was only later, upon consulting his solicitors, that he became aware that the settlement constituted an election and that he had waived his right to sue his employer for damages. This evidence does not accurately reflect Mr Turaga’s legal position, as that election was made by the filing of the application for workers compensation. However, nothing turns on this for present purposes. Mr Turaga contended that in his entire dealings with his former solicitor, he was at no time made aware that he might have a common law claim against PMP.

103 The trial judge summarised the evidence to which I have just referred. His Honour then considered the documentary evidence in the case, as well as Mr Turaga’s evidence in cross-examination.

104 The first document to which his Honour referred was dated 22 December 2001. As with other documents prepared by PK Simpson in this case, this was a pro forma document containing a number of insertions and amendments. In its pro forma emanation, it was headed “Re: instructions to commence common law proceedings”. The word “NOT”, in handwriting, had been inserted between the words “to” and “commence”. There was at least one set of initials and possibly two, next to that amendment.

105 The first paragraph of the Instructions stated:

“1. To commence common law proceedings in respect of injury suffered by [Mr Turaga] on 2 December 1999 whilst employed by [Dunhill].”

NOT

106 Mr Turaga accepted that he signed the document, but said that the handwritten insertion of the word “NOT” was not his writing and he did not initial the insertion.

107 The Instructions dated 22 December 2001 appeared to countermand an earlier instruction given on 21 February 2001. That instruction was in a similar format to the document of 22 December 2001. Relevantly, it was an Instruction to commence common law proceedings in respect of injuries that Mr Turaga suffered on 2 December 1998 “whilst employed by Dunhill”.

108 The context in which the instructions of both 21 February and 22 December 2001 were given is revealed in an affidavit of Joanna Nikolau, solicitor, who had carriage of the matter in the offices of PK Simpson. Her affidavit of 22 December 2001 was sworn in Mr Turaga’s workers compensation proceedings, specifically in support of an application that Mr Turaga’s workers compensation application against Dunhill be restored to the list.

109 Ms Nikolau referred to the filing of Mr Turaga’s application for determination on 25 July 2000, which claimed s 66 and s 67 benefits. She stated that on 25 February 2001 (this was clearly an error: the correct date is 21 February 2001), Mr Turaga gave instructions that he wished to proceed at common law. She stated that on 22 February 2001, an application was made to have the matter stood over to the pending list in the Workers Compensation Court, so that the commencement of common law proceedings could be investigated. Ms Nikolau stated that on that occasion, however, the application for determination was struck out. Ms Nikolau continued:

“Following further investigations a conference was held with [Mr Turaga] on 22 December 2001 wherein he gave instructions he no longer wished to proceed at common law and wished for the matter to be completed in the Compensation Court as soon as possible.”

110 Mr Turaga conceded under cross-examination that he was advised sometime in 2001 that he could bring an action against his employer for a more significant amount of money if the employer was at fault. Mr Turaga also acknowledged that during the course of the discussion in relation to “fault”, there was a reference to “negligence”. He acknowledged that in respect of this issue, he understood it was either the employer or someone else who had to be at fault in order to succeed in an action based upon negligence.

111 The trial judge summarised the effect of this cross-examination as follows:

“… [Mr Turaga] conceded that by 2001, he had formed the view that he had an injury as PMP had not provided proper instruction in relation to the machine and that the work system was dangerous. So those are all matters, clearly within his knowledge, in that important year. So he acknowledged further that in 2001, he did consider that PMP was at fault in relation to his injury.”

112 Mr Turaga’s concessions clearly placed his counsel in a quandary, as there had been no mention of these matters in Mr Turaga’s affidavit. His re-examination was, therefore, of more than usual importance. However, as the following passages from the cross-examination and the re-examination reveal, the attempt to rehabilitate Mr Turaga’s evidence was not successful.

113 As there is a question whether Mr Turaga understood or had been advised that he could bring proceedings in negligence against PMP within the primary limitation period, it is appropriate to set out the relevant evidence, which commenced in cross-examination as follows:

“[Cross-examination] Q. Sir what I suggest to you is that when you spoke to Mr Jurisich, Mr Simpson or Mr Simpson’s employed solicitor, you were advised by either all or each of those persons that you could bring an action against your employer for more significant money if you were able to prove that they were at fault, that is they were negligent, they’d done the wrong thing in connection with your injury in the course of your employment, do you recall being given that advice?
A. Yes.

Q. You were given that advice back in 2001, correct?
A. Yes.

Q. What was explained to you was there were two systems, there was the workers comp system which just meant there was no fault, you had the injury, you got weekly payments of compensation and you got some lump sums as well, do you recall that?
A. Yes.

Q. And then there was the second system – albeit that you may not have heard the term common law – there was a second system whereby you could sue your employer for more compensation or damages – for more compensation if you were able to prove that they’d actually been at fault, do you recall that?
A. For negligence.

Q. For negligence.
A. Yes.

Q. So the term that they used with you at that time in 2001 was not common law but rather the word negligence?
A. Yes.

Q. Did you understand negligence to mean that your employer or someone else had to be at fault to succeed in the action?
A. Yes.

…

Q. Were you spoken to about negligence at that time in 2001?
A. Yes.

…

Q. So both Mr Simpson and Mr Jurisich spoke to you about negligence?
A. Yes.

Q. And about bringing an action in negligence?
A. Yes.

Q. Bringing a court case in negligence?
A. Yes.

Q. And in bringing a court case in negligence you had to prove that your employer or someone else was at fault?
A. Yes.

Q. When you were at PMP you knew that you were employed by [Dunhill], didn’t you?
A. Yes.

…

Q. Remember speaking to [Mr Jurisich and Mr Simpson] in 2001 about negligence?
A. Yes.

Q. You understood that negligence required you to prove fault?
A. Yes.

Q. And that negligence action that they spoke about related to the negligence, that is the fault, associated with how you got injured, that is by putting your hand in the machine?
A. Yes.

…

Q. And that your employer may be responsible for your putting your hand into the machine?
A. Yes.

Q. Or that PMP who were supervising you could be responsible for you putting your hand into the machine?
A. Yes.

Q. That was when they spoke to you about the negligence action it was in relation to proving fault against your employer or against PMP?
A. Yes.

Q. This was back in 2001?
A. Yes.

…

Q. By 2001 after your injury you knew that – or was it your view that you hadn’t been given proper instruction by PMP when you first came to work there?
A. Yes.

Q. Was it your view that you were encouraged to use a particular work practice, that is putting your hand into the machine, that wasn’t particularly safe?
A. Yes.

Q. That was certainly something that you knew after speaking to Mr Jurisich and Mr Simpson in 2001?
A. Yes.

Q. You know that having been given no instruction and being encouraged to do something which was not safe that PMP were at fault in relation to not giving instruction and encouraging you to do something unsafe?
A. Yes.

Q. You knew that in 2001?
A. Yes.

Q. At some stage in 2001 or after was a decision made not to commence negligence actions against your employer or PMP?
A. I recall Mr Jurisich mention that it was too late to proceed to negligence.

…

Q. Is it the case certainly that by 2001, which is two years before giving this statement, you’d formed a view that you’d received your injuries because PMP hadn’t provided you with proper instructions in how to use the machine?
A. Yes.

Q. The work system in place of people putting their hands in the machine was dangerous?
A. Yes.

114 Initially, in re-examination, Mr Turaga said he had first heard of the concept of negligence in a conference with Mr Jurisich and Mr Simpson of counsel between 1999 and 2002, but he said the concept was not further explained. He said he did not understand that negligence meant fault, and he denied he had received any advice in relation to negligence in the context of the liability of PMP. However, he contradicted this and agreed that he did in fact get advice in relation to PMP when it came to the issue of negligence.

“Q. Mr Turaga you gave some answers regarding the term negligence. When was the first time you ever heard that term negligence?
A. During my conference with Simpson and Jurisich.

Q. All right then, doing the best you can, when was that?
A. Between 1999 and 2002.

Q. Was it ever explained to you precisely what negligence meant?
A. No, they didn’t explain anything. They just say roughly to sue the employer PMP for negligence, that’s all.

…

Q. Was there ever any advice given to you regarding negligence and PMP?
A. No.

Q. What was the advice regarding negligence against whom?
A. Against PMP.

115 His Honour considered that Mr Turaga’s evidence was “somewhat inconsistent when it [came] to that particular issue”. He observed there were further inconsistencies in other parts of his evidence and concluded, at 21, that he had “significant reservations about the credibility” of Mr Turaga.

116 There was other documentary evidence which his Honour considered supported the likelihood that Mr Turaga had received advice in respect of bringing common law proceedings against PMP. First, there was a preliminary advice on common law given by Mr Jurisich. This advice set out Mr Jurisich’s assessment of the various components of common law damages and was forwarded to PK Simpson under cover of a letter dated 15 February 2001, together with an advice on quantum at workers compensation. In the covering letter, Mr Jurisich expressed his opinion that Mr Turaga should commence common law proceedings and set out a number of matters that should be attended to, should that occur. There was a reference in the preliminary advice to the expiration of the limitation period, correctly stated to be 2 December 2001.

117 His Honour concluded that it appeared that at least in the early part of 2001, advice was obtained to commence common law proceedings and instructions given to do so. His Honour considered that the written instruction of 21 February 2001 in respect of common law proceedings was not confined to the commencement of proceedings against the employer and was broad enough to encompass an instruction to commence proceedings against PMP.

118 The trial judge next referred to a document dated 26 April 2001. That document was a handwritten note to “Lesley” from “Peter”, presumably the principal of PK Simpson. The note made reference to the workers compensation proceedings “discontinued as [sic] [common] law”. There was also a statement that Dunhill was not negligent and there was a question mark against a reference to PMP possibly being negligent. The note concluded (perhaps inconsistently, given the reference to the workers compensation proceedings being discontinued):

FACTORY

119 The next document was an office memo from “PKS” to “Lesley/Gabriella” dated 2 October 2001. The memo referred to the note of 26 April 2001 and said the matter was discontinued on 22 February 2001 “because there was common law”. The memo continued:

“3. However, [Mr Turaga] was working for a personnel agency.

4. Consequently, a common law action cannot be taken against the personnel agency but against the factory where [Mr Turaga] was working, under ‘Occupiers Liability’.

Gabby

“PKS,

I don’t know re: the above. The solicitor will have to have a look.
If you like I can give it to Colin to look at.

120 The trial judge next referred to an authority to commence workers compensation proceedings only, dated 22 December 2001, which contained an acknowledgement by Mr Turaga that:

“… you have explained to me the difference between the workers compensation legislation and common law and the choice between, and I accept your advice that my claim is most advantageously resolved under the workers compensation no fault scheme.”

121 Mr Turaga had said in evidence that he did not understand what that acknowledgement meant and that it had not been made clear to him. However, his Honour considered the documentary evidence pointed to the contrary and that Mr Turaga had been selective in his evidence in respect of matters he could or could not recall. In this regard, his Honour considered, at 26, Mr Turaga’s recollection to be “completely unreliable”.

122 Finally, at 26, his Honour referred to the memorandum of 22 December 2001, as well as the “Application for determination”, which his Honour considered not to be an application, but rather, a document evidencing instructions that Mr Turaga provided on 13 March 2003 and, in particular, instructions “not to start a claim for [common law]” which was “now out of time”. His Honour concluded:

“… clearly [Mr Turaga] in my view was given the benefit of the advice when it came to matters of common law and the like. The full extent of the that advice is not really revealed in the material, but I draw the inference and indeed comfortably so in view of the concessions made by [Mr Turaga] under cross-examination and to some extent in re-examination, having regard to the documentary evidence as a whole, that he was indeed given certain advice about that, and that needs to be taken into account in that context.”

123 His Honour found that there was an arguable cause of action and that Mr Turaga had been given specific advice in relation to a claim against PMP. His Honour concluded that Mr Turaga had made a decision not to take on common law proceedings. His Honour accepted that was undoubtedly due to costs consequences should he fail in the common law proceedings and the benefit under the workers compensation provisions of not having to prove fault. His Honour reiterated, at 28:

“Nevertheless, it would seem to me that [Mr Turaga] made a decision at the time, having regard to the advice he was given at the time and accordingly in my view, he should be bound by that decision.”

124 His Honour reminded himself that as the limitation period had expired, there was a presumption of prejudice in respect of PMP. His Honour considered that there was actual prejudice to PMP in that the Workers Compensation Act, s 151Z proceedings had been taken and concluded between Dunhill and PMP, although that was not a determinative factor in the outcome of Mr Turaga’s application for an extension of the limitation period.

125 His Honour then gave consideration to the other matters that were required to be taken into account under s 60E. In dealing with those matters, his Honour took into account the length of the delay and reasons for the delay; the fact that Mr Turaga was aware of the injury as soon as it occurred, as well as its nature and extent soon thereafter; and, importantly, that he became aware of a connection between the injury and PMP’s negligence within the limitation period. His Honour found that nothing in the conduct of PMP had induced the delay. His Honour took into account that Mr Turaga had received medical and other expert advice. His Honour also had regard to the extent of Mr Turaga’s injury. His Honour then posed for himself the question, whether, in all of the circumstances, it was just and reasonable to grant an extension of the limitation period. He rejected that it was. In doing so, his Honour not only relied upon the factual matters to which I have referred, but also upon Mr Turaga’s credibility.

Challenge to trial judge’s factual findings and discretionary determination

126 I have already set out the grounds of appeal in the amended notice of appeal. They can be summarised as raising the following issues (stated in the order in which I propose to deal with them): whether his Honour’s discretion miscarried because he failed to discount any actual prejudice to PMP: ground 5; whether his Honour made material errors of fact in determining that the written instructions that Mr Turaga gave to his solicitors included common law proceedings against PMP: grounds 1 and 2; and in finding that Mr Turaga made a decision not to take common law proceedings: ground 3; whether his Honour failed to take into account a relevant matter, namely, that there was no evidence that Mr Turaga was advised of the limitation period: ground 4; and whether his Honour’s discretion miscarried because he failed to apply the principle that a solicitor’s negligence is not a bar to extending the limitation period: ground 6.

Failure to discount actual prejudice

127 This submission picks up the language of Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 and in particular, that used by McHugh J. In that case, his Honour stated, at 555:

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.”

128 The “presumptive prejudice” to which his Honour referred in the passage just cited is the prejudice arising from the fact the limitation period has expired. McHugh J explained that a defendant’s potential liability to a plaintiff expires at the end of the primary limitation period. An extension of that period, if granted, results in the imposition of, in effect, a new legal liability on the defendant. The rationale for limitation periods, discussed by his Honour and which does not need repetition here, meant, on McHugh J’s analysis, that the limitation provision was the general rule and an extension provision was an exception to that. An applicant for extension has a positive burden of demonstrating that the justice of the case required the extension. As his Honour explained at 553:

“The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

129 Dawson J agreed with McHugh J, in particular agreeing that the intended plaintiff had an onus to establish that the commencement of action beyond the limitation period would not result in significant prejudice to the prospective defendant. Toohey and Gummow JJ emphasised, at 550, that the real question in determining whether there should be an extension of the limitation period was “whether the delay has made the chances of a fair trial unlikely”. Their Honours noted that if the chances of a fair trial had not been made unlikely by the delay, then there was no reason the discretion should not be exercised in favour of the respondent. Importantly, their Honours refused to interfere with the decision of the trial judge, because they were not persuaded that his Honour’s exercise of the discretion miscarried. Whilst their Honours considered that it would have been open to his Honour to reach the opposite conclusion, that is, that a fair trial would be possible, they stated that to dismiss the appeal by reference to the exercise of the discretion would be for the court to substitute its own exercise of discretion and that was not warranted.

130 In this case, his Honour considered that there was the usual presumptive prejudice and some actual prejudice, given that the amount of indemnity to which PMP was entitled pursuant to the provisions of the Workers Compensation Act, s 151Z had already been determined in the indemnity proceedings between PMP and Dunhill. However, his Honour treated that as being relevant, but not determinative. There was no error in his Honour’s approach which, in any event, was favourable to Mr Turaga. There were other aspects of the case which were not in dispute, namely, that Mr Turaga had suffered a significant injury and that there was an arguable cause of action. Those matters, however, did not compel an extension of the limitation period. Rather, they were prerequisites to any favourable consideration of whether the limitation period should be extended. In my opinion, this ground of appeal should be rejected.

Material errors of fact

131 This challenge relates to his Honour’s findings in respect of the documentary evidence. In my opinion, there is force in Mr Turaga’s submissions that his Honour erred in interpreting the preliminary advice on common law and the instructions given on 21 February 2001, as extending to PMP. Contrary to his Honour’s view, the documents upon which he relied, both in their express terms and given the surrounding circumstances, related to proceedings against Dunhill. Mr Jurisich’s “Preliminary Advice on Common Law” was as between Mr Turaga and Dunhill, as was the covering letter. PK Simpson’s letter seeking the advice was in like terms. There was no reference in that letter, or in Mr Jurisich’s advice, to PMP. More tellingly, the “common law” computations in Mr Jurisich’s “Preliminary Advice on Common Law” were based on the threshold amounts then applicable to the damages provisions of the Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act 1998. In other words, those computations related to a claim against Dunhill.

132 There was other evidence which indicates that his Honour’s findings on these matters was erroneous. Ms Nikolau’s affidavit is of particular importance, because it explains how the 21 February 2001 and the 22 December 2001 Instructions came about. It is apparent from that affidavit that the instructions given on both of those occasions related to proceedings against Dunhill. Further context to the 22 December Instructions is found in the PK Simpson internal memos of 26 April 2001, 2 October 2001 and in particular that of 4 December 2001.

133 Even if the Instructions of 22 December 2001 are taken in isolation, it is apparent that they relate to Dunhill. Not only was the document entitled as between Mr Turaga and Dunhill, the instruction was to take workers compensation proceedings and not to take common law proceedings. Workers compensation proceedings were only available against Dunhill. If PK Simpson was intending to give advice and take instructions in respect of proceedings against PMP, particularly in circumstances where that claim was statute barred, it would be expected that any documentation relating to the advice or the instructions would be express. There is no mention of PMP in the document. At the most there was a generic reference to common law proceedings arising out of injuries received in the employment of a specified party, which, at a stretch, was wide enough to cover a common law action against a third party tortfeasor. However, it is unlikely to be an instruction to commence proceedings against a third party tortfeasor. As I have said, there was no such reference, unless there was an express reference to that effect. When the surrounding circumstances here are taken into account, the conclusion is overwhelming that this was not such an instruction.

134 His Honour’s finding that the Instructions of 21 February 2001 and 22 December related to proceedings against PMP as well as against Dunhill was an integral part of his reasoning process that lead him to conclude that Mr Turaga had made a decision not to commence common law proceedings against PMP. When that foundation is removed there is a real question whether it was just and reasonable to grant an extension of time. As one of the bases upon which his Honour reached his conclusion was not correct I would have allowed the appeal and remitted the matter for redetermination. It would not have been appropriate for this Court to itself determine whether the limitation period would be extended (if such a course was available), because there was a serious credit issue that could only be properly resolved by this Court on the transcript.

Failure to apply the principle that the negligence of a party’s legal representatives is not a bar to extending the limitation period

135 This ground was initially articulated in the following terms:

Simms v Western Area Health Service

136 In supplementary written submissions, it was argued that in circumstances where there was an issue as to whether Mr Turaga received advice, the question of his credit should not have been determinative of his application. The submission made reference, inter alia, to Simms v Western Area Health and Salido v Nominal Defendant (1993) 32 NSWLR 524.

137 The trial judge did not refer to this line of authority although he was referred to it in submissions. It is apparent, however, that he did not consider it relevant, because his central finding was that Mr Turaga had made a decision not to take common law proceedings. That finding is directly challenged and is resolved by the conclusion I have reached in respect of the challenge to the material errors of fact. However, the particular challenge with which I am presently dealing infers that the former solicitors were negligent in not advising Mr Turaga that an application could be made for an extension of the limitation period. It is not clear that this ground was run at trial. Rather, the focus at trial appeared to be the failure of the solicitors to give any specific advice in relation to PMP, and that to the extent that any advice had been given was “generic and bleak”. However, as I have already concluded that there was error in his Honour’s construction of the critical documentary evidence it is not necessary to determine whether this ground of appeal should be entertained and if entertained, would have been made out.

Conclusion

138 Had the secondary limitation period not expired in this case, so that the appeal from his Honour’s discretionary refusal of the application for an extension of time was of utility, I would have allowed the appeal for the reasons given at [131]-[134]. However, given my conclusion that an order extending the limitation period cannot be made once the secondary limitation period has expired, it is necessary to dismiss the appeal.

139 The matter upon which Mr Turaga has failed is one that was raised by the Court. In those circumstances, I consider that the parties should bear their own costs, both of the appeal and at first instance.

140 Accordingly, I propose the following orders:

1. Grant leave to appeal;

2. Appeal dismissed;

3. Set aside the order for costs made by the trial judge and note that there is no order as to costs in respect of the hearing at first instance and on appeal with the intent that the parties bear their own costs of each of those proceedings.

141 IPP JA: I agree with Beazley JA and the additional comments of Campbell JA.

142 CAMPBELL JA: I agree in broad terms with the reasons of Beazley JA, but would prefer to give my own reasons why the decision in Sandrin does not stand in the way of the orders her Honour proposes.

143 The explanation requires some consideration of the factual circumstances with which the Court was concerned in Sandrin. There, a worker had been injured while carrying out work for the defendant on 7 July 1994. Complications arose from there being doubt about whether the worker was an employee, or an independent contractor. If he was an employee, the time limit for an action against his employer arose under section 151D Workers’ Compensation Act 1987, and leave under section 151D was needed if the employee was to be entitled to commence court proceedings after expiry of that time limit. If the worker was an independent contractor, the limitation period for an action against the person who had engaged him arose under section 18(2) Limitation Act 1969, and the power to extend that limitation period arose under section 60C Limitation Act.

144 After the limitation period arising under both Acts had expired, on 9 August 2000, the worker filed a Notice of Motion in the District Court seeking leave under the Workers’ Compensation Act (but no relief under the Limitation Act) to commence proceedings out of time. Judge Robison dismissed that Notice of Motion. The worker sought leave to appeal against that decision.

145 Before the Application for Leave to Appeal was determined, the worker filed a Statement of Claim, out of time, and without leave. That Statement of Claim was held, by the Court of Appeal in Sandrin, to be wide enough to encompass claims he made both as an employee and as an independent contractor. The Statement of Claim was filed on 26 November 2001 – approximately seven years and four months after the date of injury, and thus within the secondary limitation period under the Limitation Act.

146 In April 2002 (also within the secondary limitation period) the worker filed a Notice of Motion in the proceedings he had commenced in November 2001, seeking an extension of time under the Limitation Act, concerning the claims he wished to make on the basis that he had been an independent contractor. That Notice of Motion was dismissed by Judge Bowden in June 2002, and no appeal was taken concerning that dismissal.

147 In February 2003 the Court of Appeal heard the Summons for Leave to Appeal against the decision of Judge Robison, and made an order in the following terms:

Workers Compensation Act

1987

Workers Compensation Act

1987

148 The worker did not commence any fresh proceedings. One of the disputes before the Court of Appeal in the 2006 Sandrin decision was whether order 1 that the Court of Appeal made in February 2003 was in itself sufficient to regularise the commencement of the 2001 proceedings out of time.

149 It was in that context that Tobias JA said (at [23]):

Workers’ Compensation

Act

Limitation Act

Jol v State of New South Wales

Whisprun Pty Ltd v Sams

Mealing v P Chand t/as Fastfix

Trpenoski v BHP Flat Products

150 Later, on 15 July 2004, the worker filed another Notice of Motion in the District Court seeking an extension of the limitation period under the Limitation Act in respect of the non-employment component of the 2001 proceedings. Her Honour Judge Ashford dismissed that Notice of Motion. The 2006 Sandrin proceedings in the Court of Appeal were an appeal from that decision of Judge Ashford.

151 As the reasons of the Court of Appeal in the 2006 Sandrin case make clear at [38]-[48] the essential issue on the appeal was a question of construction of the 2003 orders of the Court of Appeal. The Court held that, as a matter of construction, Order 1 made in 2003 had the effect that leave was granted to commence the 2001 proceedings out of time, insofar as leave could be granted under section 151D Workers’ Compensation Act.

152 At [50] Tobias JA said that:

“… so much of the 2001 proceedings as alleged a duty of care owed by the opponent to the claimant arising out of its non-employment relationship also remains on foot.”

153 Tobias JA (with whom Beazley and Santow JA agreed) held that Judge Ashford had not dealt with the application to extend the period of time under the Limitation Act on its merits, and therefore the question of whether the limitation period should be extended under section 60C, up to the date of filing of the 2001 Statement of Claim, was remitted to be decided on its merits.

154 Tobias JA dealt with a final argument of the opponents as follows:

Limitation Act

54 Although the notice of motion determined by the primary judge was filed after that date (on 15 July 2004) it is properly conceded by the opponents that if the court on remittal was otherwise prepared to grant the application, it would be open to it to order that the limitation period be extended up to and including 26 November 2001. Such an order would have the effect that the 2001 proceedings commenced on that date were so commenced within the extended limitation period. The relevant extension would, of course, be less than five years and would not, therefore, offend the limits contained in s60C(2).”

155 As appears from both paras [23] and [54] there was a concession, not a decision by the Court, that an order may be made retrospectively granting leave to commence out of time. Further, the factual situation that the Court was concerned with in Sandrin was fundamentally different to the present situation in that in Sandrin proceedings had been commenced within the secondary limitation period, while in the present case proceedings were not commenced within the secondary limitation period.

156 For these reasons, the decision in Sandrin poses no obstacle to the orders that Beazley JA proposes.

157 It is appropriate to point out that the extent (if any) to which a court may make orders retrospectively extending a limitation period will be affected by the provisions of both section 63 and 60M Limitation Act. The following discussion is not intended to apply when a power of extension of a limitation period is sought under some provision other than section 60C.

158 Section 63 provides for the extinction of a cause of action to recover damages upon the expiration of a limitation period. Were it not for section 60M, section 63 would have the effect that Mr Turaga’s cause of action would have been extinguished on the expiry of three years from the date he was injured, 2 December 1998. However, section 60M provides:

“(1) Applications and orders may be made under Subdivision 2 or 3 as if Division 1 of Part 4 had never been in force.

(2) An order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3 even though the limitation period has already expired.”

159 Section 60C is in Subdivision 2, while section 63 is in Division 1 of Part 4. Thus, in its application to the present case, section 60M means:

“(1) Applications and orders may be made under section 60C as if section 63 had never been in force.

(2) An order for the extension of a limitation period, and an application for such an order, may be made under section 60C … even though the limitation period has already expired.”

(5) However, the terms of section 60C itself do not permit the limitation period to be extended for any period exceeding five years after expiry of the primary limitation period. In other words, section 60M enables both an order for extension of the limitation period, and an application for such an order, to be made after expiry of the limitation period. But the order for extension that section 60M empowers the court to make in those circumstances is only an order under section 60C. Section 60C has an inbuilt restriction on the Court’s power to make orders for extension, namely that the Court is not empowered to extend the limitation period for a period greater than five years beyond the primary limitation of three years. Thus, if proceedings have not actually been commenced within five years of expiry of the primary limitation period, there will be no point in the Court using its power under section 60M to make orders after expiry of the limitation period. That is the situation concerning Mr Turaga’s application for extension of time.

160 I agree with the orders proposed by Beazley JA.

**********

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Citations

Turagadamudamu v PMP Ltd [2009] NSWCA 120

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CITATION:	Turagadamudamu v PMP Limited [2009] NSWCA 120 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 December 2008
JUDGMENT DATE:	26 May 2009
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 141; Campbell JA at 142
DECISION:	1. Grant leave to appeal; 2. Appeal dismissed; 3. Set aside the order for costs made by the trial judge and note that there is no order as to costs in respect of the hearing at first instance and on appeal with the intent that the parties bear their own costs of each of those proceedings.
CATCHWORDS:	LIMITATION OF ACTIONS – proceedings for damages for personal injury – statutes of limitation – expiration of primary limitation period and secondary limitation period – whether an order can be made under the Limitations Act, s 60C after the expiry of the secondary limitation period - PROCEDURE – commencement of proceedings for damages for personal injury – whether the filing of a notice of motion with a statement of claim annexed commences proceedings – whether an order can then be made nunc pro tunc - LIMITATION OF ACTIONS – proceedings for damages for personal injury – whether the statutory requirement in the Limitations Act, s 68A confers a substantive right on the opposing party
LEGISLATION CITED:	Civil Procedure Act 2005, s 16 and 63 Companies Act 1961 (Vic), s 199 Corporations Law (Cth), s 459P Fatal Accidents Act 1959 (WA), s 7 Legal Profession Act 2004, s 347 Limitation Act 1969, s 11, s 18A, s 60C, s 60G, s 60H, s 63, s 78, and sch 5, cl 4.4 Limitation of Actions Act 1974 (Qld), s 31 Limitations of Actions Act 1958 (Vic), s 23A Motor Accidents Act 1988 Uniform Civil Procedure Rules 2005, Pt 6, Pt 18, r 4.10, r 6.1, r 6.2, r 6.3, r 6.5, r 6.6, r 6.24, r 6.28, r 12.11, r 18.1, r 25.2 and r 36.4 Workers Compensation Act 1987, s 151D and 151Z
CATEGORY:	Principal judgment
CASES CITED:	Bestobell Overseas Ltd v Carden [1988] VR 891 Bingham v England (1996) 23 MVR 331 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Clarke v Bailey (1993) 30 NSWLR 556 Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported) Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Jol v State of New South Wales (1998) 45 NSWLR 283 Ketteman v Hansel Properties Ltd [1987] 1 AC 189 Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305 Re Sydney Formworks Pty Ltd [1965] NSWR 646 Re Testro Bros Consolidated Ltd [1965] VR 18 Salido v Nominal Defendant (1993) 32 NSWLR 524 Sandrin v W&M Riggs Mechanical Repairs [2006] NSWCA 194 SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249 Simms v Western Area Health Service [2003] NSWSC 445 Trpenoski v BHP Flat Products [2003] NSWCA 176 Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394 Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6
TEXTS CITED:	B Cairns, Australian Civil Procedure, 5th ed (2002) Lawbook E R Hardy Ivamy, Mozley and Whiteley's Law Dictionary, 11th ed (1993) ButterworthsRitchie’s Uniform Civil Procedure Rules New South Wales, (April 2009), vol 1
PARTIES:	Savenaca Turagadamudamu (Appellant) PMP Limited (formerly known as Pac-Rim Printing Pty Limited) (Respondent)
FILE NUMBER(S):	CA 40701/07
COUNSEL:	D E Baran (Appellant) P Webb QC; G Hickey (Respondent)
SOLICITORS:	Monaco Solicitors (Appellant) Moroney Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	5634 of 2006
LOWER COURT JUDICIAL OFFICER:	Robison DCJ
LOWER COURT DATE OF DECISION:	4 July 2008