Waung v Subbotovsky

[1969] HCA 30

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

WAUNG v. SUBBOTOVSKY

(1969) 121 CLR 337

31 July 1969

Limitation of Actions

Limitation of Actions—Simple contract—Extension of time—Person beyond the seas when cause of action accrued—Time to run after return from beyond the seas—Whether necessary for person to have been within jurisdiction before accrual of action—The Statute of Limitations, 1623 (21 Jac. I c. 16 (Imp.)), s. VII.

Decision

July 31. BARWICK C.J. delivered the judgment of the COURT as follows:-
The only question which has been argued by the appellant in this appeal is whether a person who has not been in the State of New South Wales before the accrual of the cause of action upon which he subsequently sues in that State, and who has come into that State for the first time to prosecute his action, can be regarded as a person who was, at the time the cause of action accrued, a person "beyond the Seas" within the meaning of s. VII of The Statute of Limitations, 21 Jac. I, made applicable in New South Wales in 1828. (at p340)

2. The argument has been that the expression "returned from beyond the Seas" in the latter part of s. VII can only be satisfied by a person who has therefore at some time been in New South Wales. The endeavour has been made to qualify the expression "beyond the Seas" in the earlier part of s. VII by this suggested denotation of the word "returned". (at p340)

3. However, so long ago as 1770, it was decided that a person who had not been in England was within the exception in s. VII, that is Strithorst v. Graeme (1770) 2 Bl W 723 ; 3 Wils KB 145 (96 ER 424 ; 95 ER 980) . That was the interpretation of the statute at the time its operation was introduced into the colony of New South Wales. That view of the terms of the section was adopted in 1852 in Ruckmaboye v. Lulloobhoy Mottichund (1852) 8 Moo PCC 4 (14 ER 2) , and in 1853 in Lafond v. Ruddock (1853) 13 CB 813 (138 ER 1422) . These cases were followed by Walsh J. sitting at nisi prius in 1959 in Societe Egyptienne Financiere v. Clyde Industries Ltd. (1960) SR (NSW) 315 ; 77 WN 111 . (at p340)

4. In my opinion, it is far too late in the day to ask this Court to overrule this course of decision. But, in any case, for my part I respectfully agree with what Maule J. said in Lafond v. Ruddock (3), namely, that the construction placed on the section by Jervis L.C.J. in this case was supported by plain commonsense as well as by authority. Jervis L.C.J. said (1853) 13 CB, at p 819 (138 ER, at p 1424) :

"The fair meaning of the two sections" (that is to say ss. 3 and 7 of the statute) "together is, that an action on simple contract shall be brought within six years of the accrual of the cause of action ; but that, if the plaintiff is abroad at the time the cause of action accrues, - whether he be a foreigner or an Englishman, - the six years run from the time of his first coming into England." (at p340)

5. I understand the Chief Justice when he said, "whether he be a foreigner or an Englishman", to be referring, not to nationality or to any matter of allegiance, but to the quality of having been or not having been in England at some time prior to the accrual of the cause of action. In my opinion, Walsh J. was right to follow these decisions and was correct when he held that a person, including a corporation, living or "residing" at all material times out of New South Wales could not have The Statute of Limitations applied successfully against him and that time would not run against such a person until he or it came into New South Wales. (at p341)

6. I am also prepared to accept the reasons given by the Supreme Court for refusing to accept the appellant's submission in connexion with The Statute of Limitations. (at p341)

7. In my opinion, for all these reasons, this appeal should be dismissed. (at p341)

Orders

Appeal dismissed with costs.