WEIR v WEIR

[2008] SADC 149

District Court of South Australia

(Civil: Appeal Against a Master's Decision)

WEIR v WEIR

[2008] SADC 149

Reasons for Decision of His Honour Judge Clayton (ex tempore)

5 November 2008

LIMITATION OF ACTIONS

Extension of period of limitation - action for damages for personal injuries instituted out of time – material facts ascertained by plaintiff.

Whether amendment of Statement of Claim to incorporate the endorsement required by s 48(4) of Limitations of Actions Act 1936 was precluded either by the rule in Weldon v Neal or as being prejudicial to the defendant.

HELD: Amendment to include the claim for an extension of time did not involve the addition of a new cause of action which was statute barred and was not contrary to Weldon v Neal.

Amendment allowed.

Limitations of Actions Act 1936 s 48, s 48(3)(b)(i), s 48(4), referred to.
Woolworths (SA) Pty Ltd v Cauchi (2001) SASC 48; Robinson v Craven (1994) 63 SASR 267; Weldon v Neal (1887) 19 QBD 394, considered.

WEIR v WEIR
[2008] SADC 149

1. This is an appeal from an order of Master Norman which was advised to the parties in reasons posted on 19 September 2008. The learned master ordered that the plaintiff be at liberty to amend her Statement of Claim in the terms sought in the application.

2. In the relevant application, which was filed in the District Court on 9 April 2008, the plaintiff merely sought leave to amend the pleadings. The application did not set out the terms of the amendment. The terms of the amendment are set out in a proposed Amended Statement of Claim.

3. I should digress to briefly mention some of the history of the action. The history of the action is set out extensively in the reasons of the master.

4. The claim was commenced in the Magistrates Court on 19 February 2005. The plaintiff claims damages as a result of sexual abuse by the defendant, who is her stepfather, from about the age of eight years for at least seven years. The alleged abuse would therefore have occurred between approximately 1992 and 1999.

5. The plaintiff was born on 19 January 1984, according to the Particulars of Claim. She obtained her majority on 19 January 2002 which was when time started running. The three-year limitation period would have expired on 19 January 2005. The claim was not issued in the Magistrates Court until Monday, 24 January 2005, that is, a few days after it became statute barred. The defendant pleads that the claim is barred.

6. The Particulars of Claim in the Magistrates Court were amended in a way which is not entirely clear at the moment to include a para.7 which claimed an extension of time within which to institute the action pursuant to s 48 of the Limitations of Actions Act 1936. The grounds for the application were set out in para.7. In particular it was alleged that the facts material for the plaintiff’s case were not ascertained by her until on or after June 2004. Greater detail of those facts is contained in the Amended Statement of Claim.

7. In a way which is not at the moment clear to me the action was transferred to the District Court. It appears that an application was made in this Court to strike out the amendment. Master Norman made an order on 23 May 2007 and the defendant appealed from that order. On 31 October 2007 Judge Smith ordered that the appeal be allowed, that the order of Master Norman on 23 May 2007 be set aside and that the following judgment be substituted. The fiat reads:

   1.     The paragraphs in the plaintiff’s statement of claim seeking an extension of time pursuant to the Limitations of Actions Act 1936 are struck out.

   2.      The claim is statute barred.
   
   

8. As was discussed arguendo a short time ago, it can be assumed that the paragraphs which were struck out were para.7 of the Statement of Claim.

9. As to para.2 of his Honour’s order, I think that paragraph is really of the nature of a declaration rather than an order finally determining the action. It seems clear that Judge Smith did not regard his order as finally determining the action. In any event no suggestion has been made before me that the action has been finally determined by para.2.

10. The proposed amendment is contained in para.8 of the proposed Amended Statement of Claim which was filed in the District Court on 6 February 2008. The proposed paragraph claims an extension of time within which to institute the action pursuant to s 48 of the Limitations of Actions Act 1936 on the basis that facts material to the plaintiff’s case were established on 23 June 2004.

11. Further particulars of the allegation are contained in sub-paras.8.2 to 8.7 inclusive. The defendant opposed the amendment before Master Norman and now appeals from his decision. The grounds of the appeal are first that the Master erred by allowing the amendment. Secondly, the master erred by failing to find that the proposed amendment would cause irreparable prejudice and injustice to the plaintiff. Third, the Master erred by failing to find that the rule in Weldon v Neal operates to disallow an amendment. Some particulars are given as to grounds which I will not read out at the moment.

12. I have read a detailed submission by Mr Britten-Jones who appeared as counsel for the appellant. I have also heard oral submissions by Mr Britten-Jones and Mr O’Loughlin who appeared for the respondent.

13. The first observation I would make is that the proposed amendment does not seek to introduce a new cause of action which is statute barred. The proposed amendment only seeks to add the endorsement which is required by subs 48(4) of the Limitations of Actions Act 1936 where an extension of time is sought pursuant to the section in respect of the commencement of the action.

14. In my opinion the rule in Weldon v Neal has no application to this matter. The application to amend relies on rule 53.01 which permits a party to amend at any time with leave. It is common ground that it is not an application pursuant to rule 53.03. The grant of an amendment under rule 53.01 is discretionary.

15. The second observation which I make is that the present application is not the hearing of the application to extend the time limited for instituting the action. That application would be heard at the trial or at a special appointment prior to the trial. That hearing would involve a consideration of the merits of the application to extend the time.

16. In my opinion the proposed amendment does not involve the withdrawal of an admission. The suggested admission in para.7 of the former Statement of Claim has been struck out by Judge Smith. In any event I do not regard the proposed pleading as giving rise to the withdrawal of an admission. At most there may be an inconsistency between the pleadings in the old para.7 and the proposed para.8. Any conflict between those paragraphs would no doubt be raised as a credibility issue on the hearing of the application to extend time, that is when the court is required to determine the merits of the application to extend time.

17. Before the court can extend a limitation of time it must be satisfied as to the matters referred to in subs 48(3)(b)(i), that is that facts material to the plaintiff’s case were not ascertained by her until some point of time occurring within 12 months before the expiration of the period of limitation or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff. It must also be satisfied that in all the circumstances of the case it is just to grant the extension.

18. It is the last limb of para.(i) which became the focus of the debate on this appeal. As I have mentioned the claim became statute barred on 19 January 2005. The proposed amendment alleges that the plaintiff ascertained material facts on 23 June 2004; that is within 12 months before the expiration of the period of limitation. The proposed plea would satisfy the requirements of subs 48(3)(b)(i). As I have mentioned it is not an amendment to introduce a new cause of action but what is proposed is an amendment to incorporate the endorsement required by subs 48(4).

19. In his reasons the master was not required to and did not adjudicate on the merits of the extension of time which is claimed. Whether it would be just to grant the amendment is a matter which will need to be determined at the hearing of the application.

20. A question could arise as to whether the endorsement required by subs 48(4) can be added to initiating proceeding after the proceedings have been issued. Mr Britten-Jones did not suggest that this was not the case.

21. Largely, the appeal turns upon the interpretation of that last limb or the words in the last limb of 48(3)(b)(i). I do not interpret subs 48(4) to mean that the initiating process must contain the endorsement at the time that the proceedings are issued. That is made clear by the decision of Olsson J in Woolworths (SA) Pty Ltd v Cauchi (2001) SASC 48, in particular at paras.62-63. Also the reasons of King CJ in Robinson v Craven (1994) 63 SASR 267 at 269, in particular the second paragraph on that page.

22. I interpret subs 48(4) of the Limitations of Actions Act 1936 to require that the endorsement be included in the originating process at the time that the application for extension is made, which may be a time subsequent to the issue of the originating proceeding, as is the case here.

23. The appellant has argued that an amendment would result in irreparable prejudice and that an injustice will arise from the amendment. That appears in para.18 and following of the written submission. Mr Britten-Jones argued that the effect of the amendment would be to take away a defence presently available to the defendant, that is the defence arising by reason of subs 48(3)(b)(i) that the action was not instituted within 12 months after the ascertainment of the material facts by the plaintiff.

24. A defendant is likely to suffer some prejudice, in the sense of detriment, whenever an extension of time is granted. Whether the prejudice in this case is of the nature contended by Mr Britten-Jones is really a matter which the court should consider at the hearing of the application for the extension of time, that is when the court comes to consider whether in all the circumstances of the case, it is just to grant the extension of time as required by the concluding words of subs 48(3).

25. All that the master was required to determine was whether the Statement of Claim should be amended to include the endorsement which would permit a consideration of those issues.

26. Whether the defendant has been deprived of a defence under 48(3)(b)(i) is a matter which should be raised at the hearing of the application to extend.

27. I do not interpret subs 48(3)(b)(i) in the way contended for, by Mr Britten-Jones.

28. If I can borrow from the words of Mr O’Loughlin, the appellant seeks to promote an interpretation of s 48 that the defendant is entitled to a pleading of the alleged material fact within 12 months. In effect, that is what Mr Britten-Jones has argued. Either that the originating action should raise the matter within 12 months or the material facts should be incorporated into the pleading by amendment within 12 months after the ascertainment of the facts by the plaintiff.

29. As I have said I do not interpret subs 48(3)(b)(i) in that way. I think the interpretation contended for by the defendant is contrary to the dicta of King CJ to which I have referred. That is, I find that there is no requirement that there must be a pleading containing the material fact either by way of an original pleading or an amended pleading within 12 months.

30. I note Mr Britten-Jones’ submission that in Weldon v Neal, Lord Esher said at p.395: ‘That it was a settled rule of practice that amendments are not admissible when they prejudice the rights of the opposite party.’ However, as I’ve said, Weldon v Neal and the cases which follow Weldon v Neal are concerned with amendments which introduce new causes of action. That is different from the situation here.

31. The argument that the defendant will be prejudiced is one which can be made at the hearing of the application for extension of time.

32. On an appeal from a master it is not necessary for the appellant to show an error. The appeal from a master is an appeal by way of rehearing. However, I should indicate that I agree with the conclusion of the learned master in para.113: ‘That the plaintiff has not made the admission with respect to which it is necessary to seek or for her to seek leave to withdraw.’ I agree with the conclusion of the master in para.118: ‘That rule 53.03 has no application in this case’.

33. I agree with the conclusion of the master in para.121: ‘That the plaintiff’s application is not precluded by reason of the operation of the rule in Weldon v Neal.’ As I have said, this is not an application to introduce a statute barred cause of action, but it is an application to include the endorsement required by subs 48(4).

34. In my opinion the appeal should be dismissed and the plaintiff should be at liberty to amend her Statement of Claim in the terms sought in file document No.27.