WEIR v WEIR
[2007] SADC 113
•31 October 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WEIR v WEIR
[2007] SADC 113
Judgment of His Honour Judge David Smith
31 October 2007
LIMITATION OF ACTIONS
Extension of period of limitation - action for damages for personal injuries instituted out of time – material facts ascertained by plaintiff after the institution of the action – whether plaintiff can rely on such facts and qualify for extension of time – discussion of whether limitation of action provisions extinguishes cause of action or merely bars the remedy not the right.
Held: plaintiff’s application for extension of time failed to comply with extension of time provisions in Limitation of Actions Act 1936 and so remains statute barred.
Held: also that plaintiff’s failure to issue within limitation of time prescribed did not result in extinguishment of the cause of action but merely the barred remedy so that neither entry of Summary Judgment for defendant nor dismissal of plaintiff’s action was appropriate – plaintiff’s action as presently constituted is statute barred.
PROCEDURE
Practice - Summary Judgment - Appeal - triable issue of law - circumstances in which issue of law should be decided then and there.
Held: that as the issue, namely whether plaintiff's application for extension of time complied with the provisions of the Limitation of Actions Act 1936 was a discrete question of law and even if it be a complex issue of law and highly arguable it should be decided then and there.
Limitation of Actions Act 1936 (SA) s45, s48, referred to.
Hawkins v Clayton (1988) 164 CLR 535; Pirelli General Cable Works Ltd v Oscar Faber & Partners (1982) 2 AC 1; Footner v BHAS (1983) 33 SASR 58; Wardley v WA (1992) 175 CLR 514; Mills v Sola Optical Australia Pty Ltd (1987) 163 CLR 623; Smith v Land and House Property Corporation (1884) 28 Ch D 7; Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (1988) 146 LSJS 150; RG Carter Ltd v Clarke (1990) 2 All ER 209; Lovett v Le Gall (1975) 10 SASR 479; Napolitano v Coyle (1977) 15 SASR 559; Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364; Brook v Flinders University (1988) 47 SASR 119; Wright v Donatelli (1995) 65 SASR 307; Gehan v Samcor [1992] SASC 3294; Syrett v Vorbach (2001) 213 LSJS 185; Ward v Walton (1989) 66 NTR 20; Takapana Investments Pty Ltd v Tesco Information (1998) 82 FCR 25; La Marchia v Minister for Primary Industries (1992) 110 ALR 201; Bull v AG (NSW) (1913) 17 CLR 370; Golois v Shiptown Pty Ltd (1994) 175 LSJS 475; Cubillo and Another v The Commonwealth (No. 1) (1999) 89 FCR 528; Cubillo and Another v The Commonwealth (No. 2) [2000] FCA 1084; Dickin v BHP Billiton Ltd [2004] VSC 215; Robinson v Craven (1994) 63 SASR 267, considered.
WEIR v WEIR
[2007] SADC 113
The plaintiff instituted a claim for damages for personal injury against her stepfather for allegedly sexually assaulting her over a period of about nine years between 1992 and 2001 when she was a child. The action was instituted five days late. Upon discovering that the action was statute barred the plaintiff amended the claim to include an application to extend time.
The defendant applied to a Master for Summary Judgment contending that the application to extend time was ineffective, because it did not comply with the provisions of Limitation of Actions Act 1936 (SA). The Master refused the application because he considered that the application arguably complied with the said Act.
The defendant now appeals from that decision.
Circumstances
The facts upon which this matter has proceeded are as follows:
·The plaintiff was born on the 19th January 1984 and so was 21 years old on the 19th January 2005.
·On the 24th January 2005 she commenced proceedings against the defendant in which she sought damages for ongoing sexual assaults perpetrated upon her between 1992 and mid 2001, but these proceedings were statute barred. [1]
[1] The plaintiff’s cause of action is in tort and so by a combination of s35(c) and s36(1) she had three years from the accrual of her action to institute proceedings. Damages being the gist of an action in tort, the cause of action accrued when the plaintiff suffered damage (see Hawkins v Clayton (1988) 164 CLR 535 per Gaudron J at 599; Pirelli General Cable Works Ltd v Oscar Faber & Partners (1982) 2 AC 1; Footner v BHAS (1983) 33 SASR 58; Wardley v WA (1992) 175 CLR 514). But the damages were suffered by the plaintiff when she was an infant. And so perforce of s45(1) of the said Act she had three years from the time of attaining her majority in which to institute the action, namely the 19th January 2005. She issued on the 24th January 2005 – five days late.
·In the proceedings, as originally issued, there was no application to extend the applicable three year time limitation.
·In August 2005 the plaintiff received a copy of a report of the psychiatrist Dr S Guha and learned that Dr Guha was of the opinion that:
· she had problems regarding low mood, anxiety and decreased self confidence of long duration which occurred in the background of longstanding physical and sexual abuse by the defendant when she was aged between seven and 17 years;
· her predominant complaint when examined was of low mood, severe apprehension, intrusive thoughts about her past sexual abuse, avoiding male company, hyper vigilant and fearful and she had depressive cognitions with no active suicidal thoughts;
· she suffered a major depressive disorder with additional diagnosis including evidence of Post-traumatic Stress Disorder; and
· she required ongoing medication for her condition and that she would benefit from regular counselling.
·Having ascertained that Dr Guha held those views, the plaintiff then applied for leave to amend into her proceedings an application to extend the time limitation.
·That application was granted on the 14th October 2005. The plaintiff, pursuant to that leave, amended the particulars of claim by adding a pleading in which she sought an extension of time pursuant to s48 of the Limitation of Actions Act 1936 (SA) on the basis firstly, of having instituted the action within 12 months after ascertaining the above views of Dr S Guha and secondly, on the basis that she was entitled to a favourable exercise of discretion.
·On the 15th November 2006 the defendant applied for Summary Judgment and for dismissal of the action as being statute barred because the plaintiff had instituted the action before ascertaining the facts material to her case rather than within 12 months after as s48(3) required.
·On the 23rd May 2007 the Master refused the application on the basis that the plaintiff’s application for extension of time “arguably” complied with the extension of time provisions in the said Act (see [63-66]).
The Argument
The argument focuses upon the first of the qualifying preconditions for an application to extend time in s48(3)(b)(i) which provides:
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff;
(The italics are mine and are the applicable portion of the provision.)
The plaintiff says that the subsection, properly construed, permits her to institute the action before ascertaining facts material to her case. The defendant’s response is that the plain meaning of the subsection is that a plaintiff must first ascertain the facts and then, within twelve months after doing so, institute the otherwise statute barred action. So the defendant contends in this case that the plaintiff does not qualify for an extension of time because she has instituted the action before ascertaining the facts material rather than after.
Before construing the subsection I direct myself as to the nature of this appeal. It has an important bearing on what decision this Court should make.
Nature of appeal – nature of application for Summary Judgment – whether there should be a final determination
This appeal is instituted pursuant to s43(2)(a) of the District Court Act 1991 and is by way of rehearing, which means that this Court may exercise its own discretion without regard to the manner in which it was exercised by the Master (see Police v Cadd[2]; O’Brien Lovrinov Crafter Pty Ltd v Corradini[3]; see also Transeast Pty Ltd v Commonwealth Bank[4]). An appeal by way of rehearing does not mean that this Court should not give appropriate weight to, in this case, the decision of the Master (see In re Flinders Trading Co Pty Ltd[5]).
[2] (1997) 69 SASR 150 per Lander J at 189
[3] [1999] SASC 1549
[4] (1990) 157 LSJS 447 at 450 per Perry J
[5] (1977) 20 SASR 14 at 28
The Master correctly directed himself to the principles applicable to ordinary applications for Summary Judgment pursuant to Rule 25.04 of the District Court Rules 1987, namely that an applicant can succeed in only the clearest of cases, such as where there is no arguable merit in the claim and no serious issues of fact or law to be tried (see Wicklow Enterprises Pty Ltd v Doysal Pty Ltd[6]; and see also Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd[7]). However, this application was not “ordinary”. It sought the resolution of a discrete point of law, namely the proper construction of s48(3)(b)(i) of the said Act. In RG Carter Ltd v Clarke[8] Lord Donaldson of Lymington MR in the Court of Appeal, with whom Stocker and Woolf LJJ agreed, said at 213g:
If a judge is satisfied that there are no issues of fact between the parties, it would be pointless for him to give leave to defend on the basis that there was a triable issue of law. The only result would be that another judge would have to consider the same arguments and decide that issue one way or another. Even if the issue of law is complex and highly arguable, it is far better if he then and there decides it himself, entering judgment for the plaintiff or the defendant as the case may be on the basis of his decision. The parties are then free to take the matter straight to this court, if so advised. This was the situation in the classic case of Cow v Casey [1949] 1 All ER 197, [1949] 1 KB 474. But it is quite different if the issue of law is not decisive of all the issues between the parties or, if decisive of part of the plaintiff’s claim or of some of those issues, is of such a character as would not justify its being determined as a preliminary point, because little or no savings in costs would ensue. It is an a fortiori case if the answer to the question of law is in any way dependent on undecided issues of fact.
[6] (1985) 124 LSJS 225
[7] (1988) 146 LSJS 150 at 153
[8] (1990) 2 All ER 209
The issue here is plainly “of such a character as would justify it being determined as a preliminary point” and so should be decided one way or the other. I consider that the Master should have done so. Certainly, as I am rehearing the point, I intend to decide it.
The question of whether the defendant, if successful in this appeal, should have Summary Judgment in his favour, is another matter, with which I will deal in due course.
With those principles in mind I turn to the construction of the material portion of s48(3) of the said Act.
The meaning of “instituting the action within 12 months after the ascertainment of facts” (s48(3)(b)(i))
Section 48(3) of the said Act empowers the Court to extend periods of limitation prescribed by the Act itself.
The material provisions of s48 are:
(3) This section does not—
(a) ................
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied –
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(3a) ................
(3b) ................
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5)...................................
(6)...................................
(The italics are mine)
So a plaintiff is entitled to an extension of a limitation of time prescribed by the said Act, if he or she satisfies the Court of the following two requirements:
1)that he or she, either:
· instituted the action within 12 months after he or she ascertained facts material to her case and such ascertainment occurred at a point in time within 12 months before the expiration of the time limitation or after the expiration of the period of limitation (see s48(3)(b)(i)); or
· failed to institute the action within time by reason of representations or conduct of the defendant (see s48(3)(b)(ii)); and
2)that “in all the circumstances of the case it is just to grant the extension of time” (see s48(3)(b)).
The exercise of discretion embodied in the second paragraph only arises if the plaintiff qualifies for it by establishing one or other of the requirements in the first paragraph. Of course to qualify is not necessarily to succeed.
As indicated, the focus in this appeal is upon part only of the language of the first of the two qualifying conditions. Putting aside what the subsection may or may not mean as to the timing of the institution of the action relative to the ascertainment by the plaintiff of facts material to her case, there is no argument about the meaning of “facts material to the case” or who should ascertain such facts. These matters are well settled (see Mills v Sola Optical Australia Pty Ltd[9]; see also Smith v Land and House Property Corporation[10]). In particular, it is agreed that, in learning of the fact that Dr Guha held the views particularised above, the plaintiff ascertained facts material to her case within the meaning of those words in s48(3). So too this appeal does not involve any consideration of the exercise of discretion embodied in the above second paragraph.
[9] (1987) 163 CLR 623 at 636
[10] (1884) 28 Ch D 7
As indicated, the plaintiff’s argument is that the subsection does not require that the ascertaining of facts material necessarily precede the institution of the action. She contends that she has complied with the subsection, notwithstanding the fact that she has instituted the action within 12 months before ascertaining facts material to her case rather than within 12 months after, as the subsection seems to require. This surprising argument has some equally surprising authoritative support.
So I turn to the construction of the words of the subsection dealing with this matter of timing.
Though the subsection ultimately is to be construed in the context of the section as a whole, the material portion of s48(3)(b)(ii) is the following sentence:
... that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff ...
That sentence read in the context of the subsection as a whole is couched in quite clear ordinary English words which are amenable to a literal and ordinary meaning interpretation.
The language clearly means that the action is to be instituted:
·within 12 months of the plaintiff ascertaining facts material to her case; and
·after the said ascertainment.
The use of the two adverbs “within” and “after” in close conjunction with one another in the sentence spells out a defined span of time during which the otherwise statute barred action can be instituted. An adverb, in grammar, is a word which qualifies or modifies the sense of a verb, participle, adjective or other adverb. At the risk of being over obvious:
·“Within” means “circumscribed by” not beyond; not exceeding; not overstepping ...”
·“after” means “... subsequently; later in time; ...”
(See Websters 20th Century Dictionary 1950 Ed)
So the sentence means that, not only must the action be instituted within 12 months of the ascertainment of the facts material, but also the 12 months during which that can be done, runs from after the ascertainment of the facts. There is no basis for reading the sentence as not containing the adverb “after”. And at the risk of sounding absurd, certainly no basis for reading “after” as “before”.
There is no ambiguity much less absurdity in the meaning of this provision.
The clear intent of the legislation is to ameliorate the strictures of the time limitations set out in the Act by requiring a tardy litigant to, first ascertain a fact material to his or her case, and then within 12 months of doing so, institute the action. Having done so, including endorsing it with a statement to the effect that an extension of time is sought, the tardy plaintiff would qualify for an extension of time but ultimate success would depend upon the favourable exercise of the court’s discretion.
I turn now to the cases which have something to say directly and indirectly about the meaning of this subsection.
The leading cases, such as Sola Optical Australia Pty Ltd v Mills (supra), Lovett v Le Gall[11], and Napolitano v Coyle[12], do not focus upon the relative timing of the ascertainment of the facts material on the one hand, and the institution of the otherwise statute barred action on the other. I would suggest that such was the case because the language in that respect is so clear. The debate which lead to the decisions in Sola Optical both in the Full Court of the Supreme Court of South Australia[13] and the High Court (supra) concerned broadly whether the ascertainment of the facts material needed to be “pivotal” or influential in the formation of the decision to sue or in other words whether the test for ascertaining facts material was subjective or objective and whether the plaintiff personally had to ascertain the facts. Nowhere in the debate was there the vaguest of suggestions that the section could be complied with if the action was instituted before the ascertainment of the fact material. The case of Brook v Flinders University[14], which concerns amending existing proceedings to include an application to extend time, does not gainsay the above proposition. It was not argued before me that it did and so elaboration is not necessary.
[11] (1975) 10 SASR 479
[12] (1977) 15 SASR 559
[13] (1987) 46 SASR 364
[14] (1988) 47 SASR 119
However, there are persuasive judicial comments in the cases about the meaning of the qualifying condition in the legislation which make it plain that the ascertainment of the material facts must both precede and be within 12 months of the institution of the otherwise statute barred action. I turn to two such authorities.
In Napolitano v Coyle (supra) Bray CJ had occasion to construe the extension of time provision in the 1972 Limitation of Actions Act 1936 (SA). He took the view that for the purpose s of the case there was no material difference between the 1972 Act and the 1975 Act. The facts were commonplace. The plaintiff was injured driving to work. He was late instituting proceedings and sought an extension of time relying, inter alia, upon facts which he had ascertained from police and medial reports in the months at times before the issue of his writ. His Honour granted the application to extend. The facts and the outcome are not important here. At 568 Bray CJ said:
I have to decide two questions.
The first is whether I am satisfied that facts material to the plaintiff’s case were not ascertained by him until after or within twelve months before the expiration of the period of limitation and also within twelve months before the commencement of the action.
The second is whether, if I am so satisfied, it is in all the circumstances fair and equitable to grant the extension.
(The italics are mine)
In Wright v Donatelli[15] the Full Court had occasion to reinforce the ratio decidendi of the High Court in Sola Optical and to do so effectively overruled its own decision in Gehan v Samcor[16]. Lander J, with whom Cox and Perry JJ agreed, at 353, set out what was necessary to qualify for an extension of time under s48(3) in the following terms:
The cause of action for damages for personal injuries is prescribed by the Act itself, and therefore s 48(3) applies. To qualify for an extension of time under s 48(3), the appellant must establish that facts material to his case were not ascertained by him until a point of time occurring within the 12 months before the issue of proceedings, on 3 March 1994, and further, the appellant must establish that in all the circumstances of the case it is just to grant the extension of time.
(The italics are mine)
[15] (1995) 65 SASR 307
[16] [1992] SASC 3294 (del 5 March 1992)
The only case in South Australia which deals directly with this confined issue is Syrett v Vorbach[17]. In that case, Burley DCJ held that material facts ascertained after the commencement of the action could not be relied upon in an application to extend time. In so construing s48(3), His Honour drew not only upon the plain meaning of the words but also the legislative history and the clear implication of the authorities, most of which I have mentioned. In particular he declined to follow the decision of Ward v Walton[18], which of course did not bind him.
[17] (2001) 213 LSJS 185
[18] (1989) 66 NTR 20
For reasons of judicial comity and consistency I would follow the decision of Syrett (supra) unless persuaded that it was “plainly wrong” (see Takapana Investments Pty Ltd v Tesco Information[19]; see also Halsburys Laws of England[20]; La Marchia v Minister for Primary Industries[21]). For the reasons set out hereunder, I consider that it is plainly correct.
[19] (1998) 82 FCR 25 at 32
[20] 4th Ed at [1244]
[21] (1992) 110 ALR 201 at 204
I turn now to the authorities relied upon by counsel for the plaintiff, Mr Ward.
The first is the Full Court of the Supreme Court of the Northern Territory’s decision of Ward v Walton (supra). The material provisions of the Limitation Act 1981 (NT) are a mirror image of those in the Limitation of Actions Act 1936 (SA). The facts in the Northern Territory case were similar to that which exist here. Mrs Ward was injured in a motor vehicle accident on 4th March 1982. She had three years in which to institute proceedings. She issued a writ on the 15th March 1985 which was 11 days out of time. It was not until the 15th August 1986 that she discovered a fact material to her case and on that basis sought an extension of time. The trial judge held that Mrs Ward did not come within the terms of the section because she instituted proceedings before ascertaining the facts material. On appeal Ashe CJ, with whom Gallop J agreed and Rice J dissented, upheld the appeal deciding that the plaintiff’s application did comply with the section. At page 23 His Honour the Chief Justice said:
But it seems to me equally open, in the context of this subsection, to regard the time limits fixed as the outer limits within which the action can be brought. The object seems to be to extend the time the plaintiff can bring her action by one year after the ascertainment of material facts; be those facts ascertained before the expiration of the limitation period or after. Thus the requirement that the action be instituted within 12 months after ascertainment means only, in this case, that the outer limit, or the last date within which the action had to be brought, was 15 August 1987. The inner limit, or earliest date that the action could be brought, would be 4 March 1982; so that any action within those limits would suffice. If the plaintiff had already brought the action before ascertainment she was then within those limits.
(1989) 99 FLR 21
Then at 24 and 25 His Honour The Chief Justice concluded in the following terms:
It seems to me, therefore, that the requirement of s 44(3)(b)(i) that an action be instituted “within 12 months after” the ascertainment of material facts by the plaintiff is properly met by showing that the action was instituted at a time not later than 12 months after the ascertainment of those facts by the plaintiff, and if the action was instituted on 15 March 1985 then that is a time not later than the maximum time limit allowed.
So effectively Asche CJ has interpreted the subsection to mean that the period of limitation is extended to a point of time 12 months after the ascertainment of the facts material, which he characterised as the “outer limit”, and provided the action is instituted before then, the plaintiff qualifies for an extension of time. Indeed Asche CJ took the view that the section would permit the action to be instituted more than 12 months before the ascertainment. He called that the “inner limit” (see [30] at 23). Accordingly, Mrs Ward qualified though she instituted the action 17 months before she ascertained the material facts upon which she based her application to extend time.
There is in my view no cannon of statutory construction which would justify such a rewriting of the section.
This approach by Asche CJ was later described as “a beneficial interpretation”. Even if the extension of time provisions could be characterised as remedial or beneficial so that a liberal or beneficial interpretation was required, such a wholesale recasting of the language would not be justified. In Bull v AG (NSW)[22], Isaacs CJ said at 384 of the interpretation of such provisions:
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially ... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.
(See also Statutory Interpretation in Australia 5th Ed by Pearce & Geddes Chapter 9).
[22] (1913) 17 CLR 370
There is no ambiguity in the language much less any absurdity such as was asserted by both majority Justices in Ward v Walton (supra). The effect of the interpretation of the majority is impermissibly to rewrite the section ignoring the reference to the commencement of proceedings after the ascertainment of the material facts.
A matter which was not agitated in Ward v Walton (supra) was the significance of the requirement that the belated proceedings be endorsed with a statement to the effect that the plaintiff seeks an extension of time. Section 44(4) of the Northern Territory Act like s48(4) of the South Australian Act provides as follows:
(4) Where an extension of time is sought under this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
The obvious legislative intent is that, at the time of instituting the action, the plaintiff has a basis for seeking an extension of time. The Ward v Walton construction of the subsection would permit a plaintiff to issue, and then wait for facts to emerge in the fullness of time which would support an application to extend time. Is the defendant obliged to wait for this felicitous event? Rather, the defendant to any such proceedings is entitled to know on what basis the extension is sought (see Golois v Shiptown Pty Ltd[23]). This impediment to the acceptance of the interpretation of the section by Asche CJ in Ward v Walton (supra) is canvassed by Burley DCJ at [19] in Syrett (supra).
[23] (1994) 175 LSJS 475 at 476
In the stolen generation case of Cubillo and Another v The Commonwealth (No. 1)[24], in the context of an application to stay, O’Loughlin J had occasion to consider the construction of s44 of the Limitation Act 1981 (NT). At 583 His Honour said:
Whether the decision in Ward v Walton should be followed was raised during the course of argument. Mr Meagher QC argued that this Court is not bound to, and should not, follow the decision of the majority in that case. His claim is simply stated; it is based on the language of s 44(3)(b)(i) of the Limitation Act:
“Facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period [that does not apply here] or occurring after the expiration of that period [and it is said that this is the case] and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff.” (Emphasis added.)
The argument for the Commonwealth is that the presence of the word "after" shows, in a temporal sense, that the ascertainment of the material facts must precede the institution of the proceedings. There are, in my opinion, two answers to this argument. The first is that there is yet to be a finding as to the date when the causes of action in tort and for breach of statutory duty arose. The second is the beneficial interpretation given to the provision by Asche CJ (with whom Gallop J agreed). The Chief Justice said, in effect, that the requirement of s 44(3)(b)(i) that an action be instituted within 12 months after the ascertainment of material facts by an applicant is properly met by showing that the action was instituted at a time no later than 12 months after the ascertainment of those facts by the applicant. If, therefore, facts were ascertained after the institution or proceedings, the action must, of necessity, have been instituted within 12 months after the ascertainment. In the interests of maintaining precedent, I feel that I should follow the decision of the Full Court; it could not be said that it is plainly wrong even though it might be said that it strains the language of the subparagraph.
(The italics are mine)
[24] (1999) 89 FCR 528
I would suggest, with respect, that O’Loughlin J was rightly uncomfortable with adopting the interpretation of Asche CJ in Ward v Walton (supra).
In the second Cubillo case[25], O’Loughlin J effectively reiterated his adoption of the reasons in Ward v Walton (supra).
[25] [2000] FCA 1084
In neither Cubillo decision is there any independent analysis of the language of s44(3)(b)(i) of the Limitation Act 1981 (NT). Cubillo is an unconvincing support for the construction contended for by the plaintiff here. It is not binding on this Court.
I turn finally to the Victorian case of Dickin v BHP Billiton Ltd[26]. In that case the plaintiff when working for BHP Billiton Ltd at Whyalla between 1969 and 1978 was exposed to asbestos and as a consequence contracted lung cancer. The cancer was discovered in 1988. He instituted proceedings in the Supreme Court of Victoria on the 23rd November 2001. The action was, on its face, statute barred. Accordingly, he sought to amend the proceedings by trying to extend time pursuant to s48(3) of the South Australian Limitation of Actions Act 1936 which applied. In so doing he relied upon material facts ascertained by him on the 12th December 2001, which was after the issuing of the writ. So the facts in that case are on all fours with both Ward v Walton and this matter. The application for extension of time was tried as a preliminary point before Ashley J. His Honour held, following Ward v Walton (supra) that the plaintiff was entitled to an extension of time and so ordered. At [21] and [22] His Honour proceeded to explain why he was disposed to follow Ward v Walton (supra).
21 First, the defendant’s submission really proposes that the pertinent sub‑section be read as if it required that action be instituted after the ascertainment of the facts by the plaintiff and within 12 months of such ascertainment. But that is not what the sub‑section says. The guiding concept is that the action must be instituted within 12 months after the facts are ascertained. It is the ascertainment of facts which sets the 12‑month period running. Naturally, the period is prospective from the time when the facts were ascertained; hence "after".
22 Second, the judgment of Asche CJ in Ward shows that “within” has often enough been read to mean “before the end of”. “Within” can be so read in the context of s. 48(3)(b)(i) without doing any violence to the word “after”, having regard to the import of the latter word as I described it a moment ago.
(The italics are mine)
[26] [2004] VSC 215
Referring to [21] above a comparison of the material language of s48(3)(b)(i) and the submission of counsel, as articulated by Ashley J, demonstrates, contrary to the judges view, that the submission was, all but ‘word for word’, a repeat of the plain language of the subsection.
Further, in reference to [22], even if the word “within” be read as “before the end of”, it does not change the obvious sense of the language of the subsection because of the inclusion of the word “after”. So what, I may ask, is the difference in meaning between “... within twelve months after ...” on the one hand and “before the end of twelve months after ...” on the other.
I suppose Ashley J’s view, like that of Asche CJ could withstand the above criticisms if there was some arguable basis for going behind the language of the subsection such as ambiguity. In my view, there is no ambiguity. The language is plain and simple and manifestly free of complexity.
Neither the ensuing five points nor the cases referred to by Ashley J deflect me from my view as to the construction of the subsection. In any event, the decision is not binding on this Court.
Conclusion – What orders to make
The above examination of the authorities and in particular those relied upon by the plaintiff’s counsel does not alter my view, as earlier expressed, as to the construction of the subsection (see [19-26] above).
This being an appeal by way of rehearing, I am empowered to make my own decision. The issue here is a discrete question of law. I take the view, in accordance with that said by the Master of the Rolls Lord Donaldson of Lymington in RG Carter Ltd (supra), that I should decide the point, even if there is an arguable position to the contrary. I am strongly of the view, however, that the point is attended by no difficulty at all and that the line of authority spawned by the decision of Ward v Walton (supra) like the decision itself, is erroneous. I decline to follow Ward v Walton, Cubillo and Dickin. The plaintiff fails to qualify for an extension of time pursuant to s48(3)(b)(i) of the Limitation of Actions Act 1936 because she instituted this action before rather than after ascertaining of facts material to a case and so she has not complied with the section. Her claim remains statute barred.
Therefore this appeal succeeds insofar as it challenges the conclusion of the Master that the plaintiff had an arguable entitlement to an extension of time.
The question now is what orders are appropriate? The defendant appellant seeks an order that the Master’s decision be set aside and that Summary Judgment be entered in his favour. That would spell the effective end of the plaintiff’s right of action against the defendant. That would be inappropriate in the circumstances of this matter.
In this case the defendant faced with the defective claim of the plaintiff had three courses of action open, namely:
·an application to strike out pleadings;
·an application to determine the application for an extension of time as a preliminary point; or
·application for Summary Judgment.
The defendant took the third course which in the circumstances is perhaps the least preferable course. However, my decision would have been the same irrespective of what course the defendant had taken.
The real effect of what I have decided is that the statute of limitations remains as a bar to the plaintiff’s remedy. It does not extinguish her right of action such as to justify me dismissing it in this instance. In the case of Robinson v Craven[27] the Full Court decided that the time limitations contained in the Limitation of Actions Act 1936 (SA) do not have the effect of extinguishing the causes of action, rather they bar the remedy leaving the cause of action intact. In particular, the court held that a judgment obtained in default of appearance was valid even in circumstances where the action was out of time and no extension of time had been granted. At 268 King CJ said:
[27] (1994) 63 SASR 267
The sole substantial ground of appeal is that the judgment in default of appearance was not valid because the action was out of time and no extension of time had been granted.
The plaintiff's action is for damages for personal injury. Section 36 of the Limitation of Actions Act requires such an action to be brought within three years of the accrual of the cause of action. The legal effect of limitation provisions in terms identical with or similar to s 36 is well settled by authority. The result of the authorities was stated by Mason CJ in Commonwealth v Verwayen (1990) 170 CLR 394 at 405:
"Although the terms of s 5(6) are such that it is susceptible of being read as going to the existence of the jurisdiction of a court to hear and determine an action of the kind described, limitation provisions similarly expressed have not been held to limit the jurisdiction of courts. Instead, they have been held to bar the remedy but not the right and thus create a defence to the action which must be pleaded: Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at 58-59; The Llandovery Castle [1920] P 119 at 124; Dismore v Milton [1938] 3 All ER 762; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398; Ketteman v Hansel Properties Ltd [1987] AC 189 at 219."
The effect of failure to plead the Statute of Limitations was stated by Windeyer J in Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488 as follows:
"On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action and a common law cause of action, as if he does not it is assumed that he intends to waive it."
The need for the Statute of Limitations to be specifically pleaded was endorsed in this Court in Ganzis v Ganzis [1963] SASR 194.
Once a decision is made that a plaintiff cannot rely upon facts ascertained after the commencement of proceedings, to support an application to extend time, the statute barred cause of action should not be permitted to proceed. Superficially this should lead to an order dismissing the plaintiff’s claim. However, if it is accepted that the defect in the plaintiff’s claim is to be found in the pleadings, the appropriate response to such a conclusion would be to strike out the offending part of the pleading, and allow a party to re-plead rather than proceed to any order dismissing the claim or entering judgment for the defendant. The only exception to this principle is where it is patently obvious that the defect cannot be remedied by amendment.
An application for Summary Judgment does not usually involve a contest as to the sufficiency of pleadings. Rather, it goes to the merits of the claim, whether the application is by the plaintiff or the defendant. Because of that, it might be said that the orders on appeal should be to quash the Master’s decision and to enter judgment for the defendant. However, on this application by the defendant, the reality of what has been identified as erroneous in the Statement of Claim is the reference to a fact ascertained after the commencement of the proceedings. If that reference should be struck out, the plaintiff’s course of action survives but it is statute barred (see Robinson v Carter (supra)). I have no means of knowing whether the plaintiff is otherwise able to amend to plead facts upon which she can rely. The plaintiff should be permitted to make the decision whether to apply again to amend or to accept defeat and discontinue. The latter course does not necessarily preclude her from starting again. In these circumstances, I do not think it appropriate to proceed to a dismissal of the plaintiff’s claim.
I would quash the Master’s decision and strike out the offending passages in the Statement of Claim. If the plaintiff does not, within a reasonable time, either discontinue or apply to amend, the defendant may then apply for judgment by reference to proceedings which contain no application to extend time.
So in summary my decision is:
·the application for extension of time is ineffective because it does not comply with s48(3) of the Limitation of Actions Act 1936 in that the action was instituted before the material facts relied upon were ascertained by the plaintiff;
·the decision of the Master made on the 23rd May 2007 is quashed; and
·paragraph 7 of the Amended Particulars of Claim, in which the application to extend time is pleaded, is hereby struck out.
I will hear the parties as to the question of costs.
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