Wintle v Stevedoring Industry Finance Committee

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

No. 4950 of 2000

ANNE WINTLE

Plaintiff

v

STEVEDORING INDUSTRY FINANCE COMMITTEE

JAMES HARDIE & COY PTY. LTD.

C.S.R. LIMITED

First Defendant

Second Defendant

Third Defendant

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JUDGE:	HEDIGAN, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2000
DATE OF JUDGMENT:	11 April 2001
CASE MAY BE CITED AS:	A. Wintle v. S.I.F.C. & Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 94

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Application to consolidate new proceeding with former proceeding – Whether former proceeding still intact – Order 34 R.5.

Application to have issues of consolidation, amendment, limitation of actions and any applications for extension of time heard as issues preliminary to trial – Order that they be heard as preliminary issues.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Rush, Q.C. Mr B. Quinn	Slater & Gordon
For the 1st Defendant	Mr F. Saccardo	Blake Dawson Waldron
For the 2nd Defendant For the 3rd Defendant	Mr J. Forrest, Q.C. Mr D. Batt Mr J. Noonan	Arthur Robinson Hedderwick Ebsworth & Ebsworth

HIS HONOUR:

By writ of 6 April 2000 the plaintiff Anne Wintle commenced proceeding against three named defendants, namely Stevedoring Industry Finance Committee ("S.I.F.C."), James Hardie & Coy Pty. Ltd. ("James Hardie"), the second defendant, and C.S.R. Limited, third defendant ("C.S.R."). The second defendant has had a name change but all parties used its old title. The plaintiff Mrs Wintle is the widow of George Wintle ("the deceased") who died from mesothelioma on 12 May of 1989. The late Mr Wintle had worked virtually through the whole of the 1960s as a wharf labourer at the Port of Melbourne. In 1989, the deceased commenced a number of proceedings in this Court (including consolidated actions) against a number of stevedoring companies as defendants, including the first defendant in the current proceeding, 4950 of 2000. The deceased claimed that during that period and in the course of his work at the Port of Melbourne he worked pursuant to the directions of the Australian Stevedoring Industry Authority ("the Authority") the predecessor of S.I.F.C., the latter body being established pursuant to the Stevedoring Industry Act 1956. It is claimed, and not denied, that S.I.F.C. was liable to discharge the liabilities and obligations of the former Authority. The claim made by the deceased in his proceedings was that in the course of working for the various stevedoring companies he was obliged to unload and handle bags of asbestos fibre and thereby exposed to asbestos dust and fibres which he inhaled leading to his disease. The statement of claim for Mrs Wintle in the present proceeding alleges that the late Mr Wintle unloaded and handled bagged asbestos fibre imported into the port by James Hardie, including blue asbestos fibre manufactured, packed and shipped by C.S.R. Limited.

The deceased's proceeding against S.I.F.C. was consolidated on 14 March 1989 by the Listing Master with other proceedings commenced by the deceased against a number of stevedoring companies, seeking damages with respect to the identical injuries as were pleaded in the action against the Authority. An examination of the relevant files of the two of the original proceedings and the consolidated proceedings indicates that the Listing Master, Master Gawne, fixed a trial date for the hearing of the actions on 5 June 1989. This accelerated trial process was undoubtedly due to the terminal illness of the deceased who gave evidence on 26 April 1989 in a de bene esse hearing but, as my reference to the date of the death of the deceased indicates, Mr Wintle passed away prior to the trial date. The deceased had not been diagnosed as having mesothelioma until August 1988 and he was granted leave by this Court to extend the time within which to bring proceedings in respect of the causes of action against the S.I.F.C. on 5 April 1989. There were no further proceedings in this Court with respect to the deceased's mesothelioma condition and death thereafter until the present proceeding was commenced on 6 April 2000.

Essentially, the plaintiff Anne Wintle alleges that by reason of the negligence of the defendants the deceased contracted mesothelioma in the course of and as a result of his work exposing him to the ingestion of asbestos fibres between 1960 and 1969. The proceedings are brought pursuant to s.29 of the Administration of Probate Act 1958 by Mrs Wintle as the executrix of the estate of the deceased ("the estate claim") and pursuant to Part 3 of the Wrongs Act 1958. As a dependant of the deceased ("the Wrongs Act claim"). The proceeding was in effect disinterred as a consequence of the decision of the High Court of Australia in Crimmins v. S.I.F.C.[1]
[1](1999) H.C.A. 59: 74 A.L.J.R. 1.

It should be stated that the plaintiff Anne Wintle had initiated workers compensation proceedings which were resolved in January 1995. It was a term of the settlement of those proceedings that the plaintiff discontinue common law proceedings against the four defendants originally named in proceeding No. 1113 of 1989. However the proceeding against S.I.F.C. was not the subject of that agreement and that proceeding has never been discontinued. Thus, so far as the first defendant is concerned, the claim in the consolidated proceedings against S.I.F.C. and the claim in this proceeding 4950 of 2000 against S.I.F.C., in so far as the latter proceeding is brought on behalf of the estate of George Wintle, are in respect of the same cause of action.

By summons of 1 June 2000 (the proceeding by Anne Wintle being admitted to the Major Torts List) the plaintiff sought multiple orders concerning its management. The orders sought included (1) that the Supreme Court consolidated proceedings be amended to substitute Anne Wintle as the executrix of the estate of the late George Wintle as plaintiff; (2) that the current proceeding be consolidated with the amended claim in the 1989 consolidated proceedings and that the plaintiff's statement of claim in this proceeding 4950 of 2000 stand as the statement of claim in the consolidated action. Subsequently, I made orders by consent that the Court hear as preliminary issues the application by the plaintiff for the consolidation of this proceeding with the consolidated proceedings 1113 and 1114 of 1989; (3) orders concerning the limitations issues relating to the proceedings; and (4) orders with respect to issues arising Rule 34.05 of the Rules of this Court.

Notwithstanding the consensual nature of the order made concerning a preliminary hearing on the limitation issues, the plaintiff subsequently abandoned that position and has argued that the issue of whether or not this proceeding is statute barred by virtue of the provisions of s.5 of the Limitation of Actions Act 1958 and/or by the provisions of s.20 of the Wrongs Act 1958 ought to be left to be determined as part of the trial of the action. The plaintiff's position is that the question of the consolidation of the present proceeding with the earlier consolidated proceedings and the question arising as to the continuing life of the 1989 proceedings arising by virtue of Order 34 Rule 5 can and ought to be determined prior to the trial of the proceeding between the plaintiff and Wintle and the present defendants. Subsequently on 1 September 2000 the plaintiff made application for leave to maintain the proceedings against the respondents notwithstanding that a period of six years may have elapsed since the accrual of her cause of action, pursuant to the provisions of s.23A of the Limitations of Actions Act 1958. The application also was that the s.23A application be determined in the current proceedings. It was not clear from the summons itself whether that involved an application by the plaintiff for it to be determined in the current proceedings but prior to trial or within the proceedings themselves at trial. It did appear, however, from the argument before me advanced by Mr Rush, Q.C. who with Mr Quinn appeared for the plaintiff, that his position was the s.23A application, as well as the Limitation of Actions Act and Wrongs Act issues, should be heard at the trial of the proceeding, not before it.

Ultimately, all defendants issued summonses seeking resolution of these issues. Taking these summonses in order of their issue, the second defendant James Hardie sought an order pursuant to Rule 47.04 that the following questions be tried before the trial of this proceeding:

(a) having regard to such relevant and admissible evidence as has been adduced, are the plaintiff's claims against the second defendant in so far as brought by her as executrix of the late George Wintle, barred by the operation of s.5 of the Limitations of Actions Act 1958; and

(b) having regard to such relevant and admissible evidence as has been adduced, are the plaintiff's claims against the second defendant in so far as brought by her pursuant to Part 3 of the Wrongs Act 1958, barred by the operation of s.20 of that Act.

The third defendant by summons of 11 October sought similar orders with respect to essentially the same two questions (a) whether the estate claim against the third defendant for the benefit of the estate pursuant to the provisions of s.29 of the Administration of Probate Act 1958 was barred by the operation of s.5 of the Limitations of Actions Act; and (b) whether the plaintiff's claim against the third defendant, that is the dependants' claim pursuant to Part 3 of the Wrongs Act was barred by s.20 of the Wrongs Act. On 15 November 2000 the first defendant issued a summons in essentially the same form. All defendants have relied upon s.5 of the Limitation of Actions Act and s.20 of the Wrongs Act by way of defence.

The position of the first defendant is in one respect different from the other defendants. If the plaintiff's proceeding is not terminated as a consequence of the provisions of Order 34.05, that is, that that Rule does not intervene to dismiss the 1989 consolidated proceedings, the issue of any Limitations of Actions Act defence by S.I.F.C. in respect of the estate claim would not arise.

Thus the matters to be addressed by me on these applications are as follows and will be addressed in the following order:

(a) Whether the effect of Order 34.05 is such as to deem the 1989 proceedings stand dismissed.

(b) Whether the issue as to whether or not this proceeding should be consolidated with the earlier consolidated proceedings in 1989 should be tried and determined as an issue prior to the trial of the proceeding.

(c) Whether the issue as to the estate claim and the Wrongs Act are statute barred by reason of the applicable provisions of the Limitations of Actions Act and the Wrongs Act can or should be tried as a preliminary issue prior to the trial of the action by the plaintiff against the three defendants.

(d) Whether the plaintiff's application leave to extend the time pursuant to s.23A of the Limitations of Actions Act 1958 should be heard and determined preliminary to the trial of the proceeding.

Before turning to the consideration of these matters, it is necessary briefly to refer to the evidence on affidavit which has been filed. A number of affidavits of Mr Peter Gordon, the solicitor for the plaintiff in the proceedings, were filed and relied on. His affidavit of the 1 June 2000 was not the subject of any dispute, it being primarily devoted to giving some of the history of the earlier proceeding.

Two later affidavits of Mr Gordon were much wider in scope. An affidavit of 3 August 2000 was directed not only to the history of this proceeding but was concerned to address other and numerous similar proceedings against the current defendants. In many paragraphs of this affidavit Mr Gordon addresses matters said to point to the awareness of the second defendant of the nature and circumstances of exposure by waterside workers (such as Mr Wintle) to asbestos and that the second defendant was well aware that such exposure was likely to pose a serious risk to the health of such workers. Similar issues were addressed in relation to the third defendant C.S.R. concerning blue asbestos derived from the Wittenoom Mine owned and operated by C.S.R. and other matters concerning C.S.R.'s alleged admissions in other proceedings by another plaintiff, cf. sections in the affidavit under the headings of "Conduct of S.I.F.C.", "Conduct of C.S.R. Ltd". The section "The acts and omissions of the second defendant" also addresses the plaintiff Anne Wintle's unawareness of acts and omissions of the defendants. It also addressed the issue that if it was necessary to obtain an extension of time, it would be just and reasonable to grant it and that the defendants would not be prejudiced by any order of that kind. There were 32 exhibits to that affidavit which was answered by affidavits on behalf of each of the defendants, namely Mr Perry for the first defendant S.I.F.C., Miss Crabtree of the solicitors for James Hardie, and Mr Rowell, solicitor for C.S.R.. There were a further 14 exhibits to a later affidavit which set out facts claimed by Mr Gordon to undermine the bona fides of the defences raised to the plaintiff's claim. I should state that the affidavit of Mr Rowell for C.S.R. strongly attacked many of the propositions, both of a legal and historical nature, asserted in Mr Gordon's affidavit, in effect claiming that misrepresentation of the position of C.S.R. and what had occurred in other litigation had been a feature of Mr Gordon's affidavit. This affidavit was accompanied by a substantial volume of exhibits. I will but briefly refer to this material in the course of dealing with counsel's submissions.

The plaintiff Anne Wintle filed an affidavit of 2 August 2000 in which she stated that the description in Mr Gordon's affidavit of her personal and family circumstances, the history of the previous litigation and her state of absence of knowledge concerning the defendants was correct. According to Mrs Wintle she did not participate in any legal conferences or discussions about the claims prior to Mr Wintle's death. Thus, it is said, she was unaware of the nature of the advice given to him. She was not permitted to be present during the taking of evidence de bene esse.

Should the consolidated proceedings stand dismissed by virtue of the provisions of Order 34.05?

This Rule was inserted in the Supreme Court Rules in 1996 by statutory Rule No. 138 as part of Part 2 of the Rules dealing with Case Management. Rule 34.05 is headed "Case Management" and, in so far as is here relevant, states:
"(1)Any proceeding commenced by writ filed before 1st November 1996 shall stand dismissed on 1st July 1997 unless, before 1st July 1997 –
(a)it has been admitted to one of the following lists ... Major Torts List;
(b)it has been set down for trial pursuant to Order 48 or an order has been made that it be fixed for hearing; or
(c)the Court constituted by a judge has ordered that this Rule not apply to the proceeding.

(2)The Court constituted by a judge may reinstate any proceeding that stands dismissed by the operation of paragraph 1."

No defendant advanced any submission or argument to say that the consolidated proceeding No. 1114 of 1989 should be stand dismissed by virtue of the operation of this Rule. An examination of the file contains the order made by Master Gawne, then the Listing Master of this Court. At that time, Mr Rush of counsel appeared for the plaintiff and Mr Bongiorno, Q.C., with Mr Rattray, appeared for the defendant S.I.F.C.. By that order dated 14th April 1989 the Master ordered that the actions numbered 1113 of 1989 and 1114 of 1989 be consolidated and heard together, that is they became proceeding 1114 of 1989. Paragraph 12 of the order was to this effect: "That this action (that is 1114 of 1989, the consolidated proceeding) be called over on Wednesday 31st May 1989 and that it be fixed for hearing on Monday 5th June 1989."

As a consequence of that it follows from the provision of Rule 34.05(1)(b) that the proceeding does not stand dismissed by virtue of operation of the Rule and I so decide. In those circumstances, because of the specifics of the order, it is not necessary for me to consider the exercise of my discretion to reinstate the proceeding if it had stood dismissed by the strict operation of the Rule.

Consolidation of this proceeding with the 1989 consolidated proceedings.

As far as I can determine from the arguments advanced on this issue, all parties were agreed that this was an issue that ought be considered and determined prior to the commencement of the trial of the proceeding. No party developed their arguments which will have to be advanced on a later occasion.

Should the issue of whether the estate claim pursuant to s.29 of the Administration of Probate Act is barred by the operation of s.5(1) of the Limitations of Actions Act, and whether the Wrongs Act (dependancy) claim is barred by s.20(1) of the Wrongs Act be heard and determined prior to the trial of the proceeding?

Each defendant argued that they should. The plaintiff submitted that this was an issue to be determined at trial.

The remaining issue is:

Should the plaintiff's application for an extension of time pursuant to s.23A of the Limitations of Actions Act, if the proceedings are statute barred, be heard prior to the commencement of the trial of the proceeding, that is as a preliminary issue or should it be heard as part of the trial of the action?

It is self-evident that these questions are separate but linked and counsel each addressed them in conjunction with the other. I propose to do the same.

When argument commenced before me, the first application was made on behalf of the plaintiff, although essentially the plaintiff's position was to be respondent to the defendants' applications (notwithstanding that the plaintiff herself had a positive application for an order for consolidation and for a subsequent s.23A application). This application by the plaintiff was for an order pursuant to Rule 47.02 of the Rules of this Court for a direction that the action proceed not as to be tried by jury but by a judge alone.

Rule 47.02(3) provides as follows:

"Notwithstanding any signification under paragraph 1, the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury."

Mr Rush's argument was that the issues involved in the proceeding, detailed through the affidavit material and outlines of argument made it clear that there are issues concerning the 1989 proceeding, the estate claim and the dependency claim and the matters surrounding them such that it was in the interests of justice and the efficient and expedient use of time and resources of both the Court and the parties that this matter should proceed to be heard by a judge alone.

The first defendant neither opposed nor consented to that. The second defendant's position was the same as that of the first defendant. The third defendant consented to the application. All defendants still wanted a preliminary determination of the issue of whether the proceedings was statute barred and of the consolidation issue and, as I apprehend, any s.23A application. The plaintiff appeared to accept that if I ordered the present proceeding be heard without a jury, it would follow that the 1989 consolidated proceeding, if consolidated with this proceeding, would also have to be tried by judge alone.

I am inclined to the view that the plaintiff's application for an order that the matter be tried by a judge alone was at least in part driven by a belief that the plaintiff had a better chance of resisting the applications for a preliminary determination of the limitations issue, and to attain the incorporation of that issue in the trial itself, if the trial was to be conducted before a judge sitting without a jury. Nevertheless, there are some unusual complexities about this proceeding and, bearing in mind the position adopted by the defendants, I am of the view that it is in the interests of justice, and will lead to a more economic despatch of the litigation, if it were to be tried by a judge alone. Accordingly I propose to accede to the plaintiff's application and I make that order.

Before addressing counsel's argument it will be convenient to reproduce the relevant sections of the relevant legislation. Section 5 of the Limitations of Actions Act 1958 (No. 6295/1958):

"(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -
(a)actions founded on simple contract (including contract implied in law) or (subject to sub-section (1A)), actions founded on tort including actions for damages for breach of a statutory duty;
...

(1A)An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows -
(a)that he has suffered those personal injuries; and
(b)that those personal injuries were caused by the act or omission of some person.

(1B)Sub-section (1A) as amended by the Limitation of Actions (Amendment) Act 1989 applies to each case where the date on which a person first knew the matters specified in paragraph (a) and (b) of that sub-section is within six years before the commencement of that Act."
"23A
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following -
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

(4)The powers conferred on a court by sub-section (2) may be exercised at any time notwithstanding -
(a)that more than six years has expired since the cause of action accrued; or
(b)that an action in respect of such personal injuries has been commenced.

(5)An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate."

The Wrongs Act 1958 (6420 of 1958, as amended) provides as follows:

"20.
(1A)Where the death of a deceased person was caused by an injury consisting of a disease or disorder contracted by a person and the person did not know before he died -
(a) that he had suffered the injury; or
(b)that the injury was caused by the act or omission of some person -

an action in respect of the injury shall be commenced within six years after the date when the person claiming to have a cause of action under this Part first knows -
(c)that the death was caused by the injury; and
(d)that the injury was caused by the act or omission of some person -

or, where an application is made to a court under sub-section (2), within the period referred to in the order of the court.
(2)Where on an application to a court by a person claiming to have a cause of action under this Part, it appears to the court that -
(a)the death of the deceased person was caused by a wrongful act, neglect or default; and
(b)the deceased did not before his death bring an action in respect of the wrongful act neglect or default -

the court subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines."

The Wrongs Act otherwise provides in the balance of s.20 substantially the same conditions as in s.23A.

I proceed to summarize counsel's submissions. These are in an abbreviated form as I will necessarily deal with the arguments advanced on either side when expressing my conclusions. I state now, however, that with respect to such matters that I conclude should be tried as preliminary issues that my reasons will advisedly be brief.

Mr Saccardo for the first defendant said that the trial itself would take two to three weeks. I note no one disagreed with that and, it might be thought, the estimate is conservative. Mr Gordon suggested that the case would be some weeks. There are three defendants in this case and on a reading of the affidavits (which in my judgment are much directed to trial issues rather than to the preliminary issues) it will occasion no surprise if the proceeding, even in front of a judge alone, lasts a month. Mr Saccardo submitted that with respect to the Wrongs Act claim, the limitation issue can be decided on the pleadings in the consolidated proceedings. Since the Wrongs Act provisions meant that the proceeding had to be commenced within six years of the death, subject to s.20(1A), the claim could be determined on the pleadings. Thus, he submitted that the excepting provision involved that the deceased did not know before he died that he had suffered the injury or that it was caused by the act or omission of some person. In effect, he argued that since the late Mr Wintle had brought proceedings claiming negligence by the first defendant causing the relevant disease, it was axiomatic that he knew before he died of the injury and the cause of it by the first defendant. He argued that this point thus should not be left for trial since, if it were, the first defendant, as a matter of commonsense and caution, would have to prepare for the whole trial. He also said that since all were agreed that the consolidation aspect would have to be argued out before trial, there was no point in avoiding annexing this issue to the debate at the same time. As I have indicated, the Limitations of Actions Act will not avail the first defendant, in view of the conclusion concerning the inapplicability of the bare provision of Order 34 Rule 5. He accepted that the estate claim in the second proceeding mirrors the issues in the earlier consolidated proceedings. He argued that the issues of law and fact arising on the statutory limitations issues were quite discrete and separable from those arising between the plaintiff and S.I.F.C. on the substantive claim at trial. Thus he contended that the issues should be determined prior to trial. He referred to Hickey v. Women & Childrens Healthcare Network[2] and Perry v. Royal Women's Hospital[3].
[2]Unreported, Supreme Court of Victoria, Hedigan, J., 11 June 1998.
[3]Beach, J. 14 May 1991.

Mr Forrest for the second defendant argued that the s.5(1A) argument and the s.20(1A) arguments ought to be determined as preliminary issues under Rule 47 for three reasons: (1) the issues were discrete issues, only be involving the question of the knowledge of the plaintiff and the deceased; (2) if it were determined as a preliminary issue, there must be a significant saving in cost for all of the parties, if it were determined in favour of the applying party; (3) that to leave the limitation point matter to trial involved treating the vast array of material put on affidavit material as though it were admissible like that at the trial. He claimed that the only affidavit material admissible at the trial on this issue would be the affidavit of the late Mr Wintle and his evidence viva voce given in the evidence de bene esse. Thus, he argued, all of the material put forward by the plaintiff was meant to be a diversion, in effect to hoodwink the Court into believing that the irrelevant facts presented in the plaintiff's affidavits would form part of the trial. That was the time at which they should be confronted. The submission is that this was a deliberate obfuscation, an attempt to introduce irrelevant issues to these applications under the specious suggestion that the issues are so intertwined that they ought to be heard together. He argued that the issues concerning limitations arising under the two Acts referred to were simple and discrete and could be heard in a couple of days, as was frequently done. He referred to, as an example, a matter argued before me in the matter of Hickey in which both the s.5(1A) and s.23A arguments were heard in the course of the two-day case. Here, he contended that the only cross-examination will be that of Mrs Wintle on the question of her knowledge because all of the matters in relation to knowledge were confined to Mr Wintle's knowledge and Mrs Wintle's knowledge.

Mr. Forrest argued that the general discretionary power under Rule 47.04 to order that a question in the proceeding be heard and determined before the trial of the relevant proceeding ought to be here exercised, as being particularly appropriate in this case. He accepted that the alteration of the mode of trial to that of judge alone removed some of the difficulties of a jury trial, but argued that nevertheless the evidence relevant to the limitation provisions, apparently claimed to be relevant on this issue by the plaintiff's material, were completely inadmissible at trial whether it was a judge alone or a jury. He submitted that the operation of each of the limitations provisions only raised questions as to: (1) the basic facts giving rise to the proceedings, namely the nature and timing of Mr. Wintle's employment and illness, the date of his death and the relationship of the plaintiff to Mr. Wintle; and (2) the key factual issue, namely the knowledge of the late Mr. Wintle and the plaintiff in connexion with the matters referred to in the sub-sections. There was, of course, the issue of the correct legal construction of the sub-sections as well.

He accepted that the matters referred to in sub-paragraph 17(a)(1), as deposed in the Gordon affidavit of 1 June 2000, were not in dispute and were not in issue at the trial. The other matters referred to in sub-paragraph 17(a) and (b) are entirely irrelevant. He referred to my own decision in Hickey v. Women's and Children's Heath Care Network[4]. He said there was no overlap of any of the evidence which would be presented at the trial and that all of the matters addressed by Mr. Gordon in his affidavit and exhibits would never admissible at trial and were not relevant. If it was sought to be said that they were related to the issue of prejudice, that did not arise in relation to the operation of the limitations provisions, although it did in relation to s.23A of the Limitations of Actions Act. He said no unconfined factual inquiry would arise under Rule 47.04 if the questions were appropriately formulated, as they were susceptible of appropriate articulation. Costs of a substantial order and court time would be saved and a preliminary hearing was a more efficient conduct of the litigation. He referred to a number of authorities: Dunstan v. Simmie[5]; Jacobson v. Ross[6]; my own decision in Becton Construction and Engineering (International) Pty. Ltd. v. S.G.I.C. (S.A.)[7]; Marcon Imports Pty. Ltd. v. IOOF Australia Trustees Ltd.[8]. He claimed that there was no problem in this case of being able to frame the questions and have the necessary evidence available. He submitted that all the evidence relevant to the determination of the operation of the provisions had been prepared and filed and served by the plaintiff (see the affidavits of Peter Gordon 1 June and 3 August, and possibly the affidavit of David Kilpatrick of 2 August 2000). In response to a question from me, he indicated that no other evidence would be sought to be called on the preliminary issue of the limitations provisions, although Mrs Wintle would be cross-examinable and cross-examined on her affidavit. He claimed that there was no known judgment in the Supreme Court of the limitation issue being determined at trial.
[4]Supra.
[5][1978] V.R. 669.
[6][1995] 1 V.R. 337 at 340-41 and 352.
[7]Unreported, Supreme Court of Victoria, Hedigan, J., 8 July 1993, at 5-8.
[8]Unreported, Supreme Court of Victoria, Harper, J., 3 July 1997 at 5-6.

In anticipating the arguments to be advanced founded upon the statements of the High Court in Wardley Australia Ltd. v. Western Australia[9] that in general it was undesirable for limitations issues to be dealt with prior to trial, Mr Forrest submitted that the Court’s statements were in the context of the difficulty of knowing the date from which the time began to run, in the absence of hearing all of the evidence and the surrounding circumstances. This is not such a case. It was also contended that the decision of the Federal Court in Cubillo v. The Commonwealth[10] was irrelevant and distinguishable. He argued that there were numerous examples of s.5(1A) applications being dealt with as a preliminary issue. Mr Forrest also submitted that the plaintiff’s s.23A summons should be heard and determined before trial, a matter which would only arise if his submissions were accepted. When that summons would have to be determined had nothing to do with Order 47.04 and the matters about which a court would have to be satisfied under Order 47.04 do not necessarily arise in respect of a s.23A summons. He said the only evidence relevant to the s.23A application additional to the material already referred to was the evidence relied on by the second and third defendants as to prejudice, set out respectively in the affidavits of Miss Crabtree of 23 and 24 August 2000 and Mr Rowell in the affidavit previously referred to. This material, he said, was in fact prepared at the instigation or with the support of the plaintiff. He contended that the matters which his client might advance in respect of the issue of prejudice on the s.23 application did not necessarily draw in evidence of what might be said at the trial about, for example, what missing witnesses might have said. He contended that the authorities did establish that s.23A applications should not be deferred to trial and ordinarily that was not the case. Thus, in effect, he distinguished both Wardley and Cubillo for the present purposes. He argued that in Cubillo the matters that bore upon the success or otherwise of the s.23 application were relevant in Cubillo to the trial but would be entirely irrelevant at trial here. He said there were numerous examples of the Court's hearing and determining s.23A summonses before trial including asbestos related claims. Indeed, Wintle v. Conaust & Ors[11] was such an example.
[9](1992) 175 C.L.R. 514.
[10][1999] 89 F.C.R. 528.
[11][1989] V.R. 951.

Essentially, Mr Forrest was submitting that in this case the only relevant issues under s.5(1A) and s.20(1A) were knowledge of the material facts which depended upon inferences from the relevant material at the commencement of the 1989 action. The question of knowledge had no connection with substantive trial issues, about which of the parties were involved in and to what extent the exposure of the late Mr Wintle to asbestos. Thus he submitted all of the issues – consolidation, limitation of actions under the two Acts referred to and the s.23A application, all ought to be heard as preliminary issues. Mr Noonan for the third defendant adopted Mr Forrest's submissions, there being no material difference in his client's position for the present purpose.

Mr Rush for the plaintiff argued that this proceeding ought to be consolidated with the earlier proceedings and that an order consolidating this amended writ and amended statement of claim naming Mrs Wintle as plaintiff should be made. It seems to be that all the parties agree they wish to address that matter at pre-trial submissions at a later stage. My present impression is that there is not much disagreement about that but the form of it and its consequences have not been explored in submissions before me. Mr Rush contended that the statements of the High Court in Wardley were "in the plainest of terms" that it was undesirable that limitation questions should be decided in interlocutory proceedings in advance of the hearing of the action, "except in the clearest of cases." This was that there is no room for argument that the principle was confined to the factual matrix in Wardley itself. He said that this was not a clear case because the court could not access the circumstances in which the plaintiff and her late husband sustained damage without evidence of the matters referred to in paragraph 17 of the "amended" statement of claim. The statement of claim has not been amended by order but there was produced to me a proposed amended statement of claim which extensively expanded the factual matrix specifying the negligence of the first, second and third defendants. His argument appeared to involve the proposition that the matters there raised were all connected with the limitations point. He contended that the issues relevant to the limitations defences and the limitations applications were not separate from the trial issues as they could not be determined without reference to evidence of the matters relevant to liability. Thus, it was fundamental to his argument that the issue arising under the limitations defences was not only about the issue of knowledge but the issue of breach of duty. This was, he said, because one of the events bearing on when the cause of action accrued was knowledge by a plaintiff that the personal injury was caused by an act or omission of some person. He contended that this meant that proof of the existence of the acts and omissions was a precondition by the operation of s.5(1A). He relied upon Dedousis v. The Water Board[12] and an earlier decision De Carmo v. Ford Excavations Pty. Ltd.[13] However these cases appear to have been cases of preliminary applications for extension of time on behalf of the plaintiff, and were concerned to address the way in which the plaintiff's case might be put. He contended the statutory provisions considered in those cases, whilst different to the limitations provisions involved in this case, meant that the evidential requirements were the same in each case. Mr Rush argued that time did not run against any particular defendant until knowledge was acquired of the acts and omissions of the particular defendant.
[12](1994) 181 C.L.R. 171 at 181.
[13](1984) 154 C.L.R. 234.

I propose to restrict the articulation of my reasons on the limitation of actions issue. This is because the issue on that respect remains to be fully argued and resolved. Whilst the observations of the High Court in Wardley are generally regarded as indicating the desirability of dealing with a limitation of actions issue at trial rather than before the hearing of the action, the Court itself in no way denied the existence of cases in which this might be done. The specific statement was:

"We should, however, state in the plainest of terms that we regard it as undesirable the limitation questions of the kind under consideration should be decided in the interlocutory proceedings in advances of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

I note the language was with respect to "limitation questions of the kind under consideration". Wardley was concerned with when time began to run. Here, under the terms of the statute, the issue is one of knowledge and steps. Moreover, I am of the view that the decision in Cubillo as to the preliminary hearing of the limitation issues is of little assistance here. That too was a case of a judge sitting alone and was concerned with when certain causes of action accrued and, if they were barred, whether time should be extended. In Cubillo the question whether the relevant claims were statute barred, and as to whether the prejudice against the Commonwealth was such that the time should not be extended, were issues to be decided. But the resolution of those issues in Cubillo depended upon the dates when the relevant rights had accrued, a matter which was strongly in dispute and strongly fought. They were clearly bound up with the trial issues because the ascertainment of the facts as to that were what the case was in large part about, namely dependent upon the resolution of evidentiary matters in conjunction with the legal issues. Those matters were bound to be relevant at the trial of the substantive claims, and they were. So far as the s.23A application is here concerned, the evidence and the legal issues would be irrelevant at the trial of the action.

Many of the matters referred to Mr Gordon's affidavit of 1 June are not in dispute but I am not of the view that the preliminary determination of the operation of the limitations provisions will involve any serious overlap with the evidence or argument which would be presented at the trial of the proceeding, leading to any risk of inconsistent findings, or unnecessary duplication of cost or inefficient despatch of the legal process. Many of the matters addressed both in the affidavits and exhibits to affidavits to Mr Gordon and Mr Rowell, and multiple exhibits, seem to me to be of dubious relevance and admissibility at the trial, although no decision about that could be presently made. Some of it may relate to damages. However most of them have got nothing at all to do, in my judgment, with the issues involved in consideration of the limitation provisions in this case. Some argument appeared to be advanced that those matters were relevant on the issue of prejudice to defendants. However, that is not a view which I presently share and, if there were any issue of prejudice, then it would be a matter for the defendants to raise. The whole of their argument appears to be that the matters dealt with in Mr Gordon's affidavit are not relevant to any issue here, or for that matter at trial. Unlike Wardley, it seems to me that the question of the operation of the limitations provisions is in the main, a discrete and separate question from any of the matters to be raised substantively at trial. For that reason the factual inquiry will be necessarily confined. Thus I view the limitation of actions issue as appropriate to be determined prior to the trial either by formulation of questions under Rule 47.04 or, since the matter is under trial management, by identifying the issues to be had out in a preliminary way. Whilst neither solution is ideal, the issues of avoiding unnecessary costs and the use of Court resources in an economic way are important matters. Having formed these views, I deem it desirable to go no further at this point of time lest I trespass upon arguments not yet fully developed or possibly fresh arguments.

I specifically enquired of Mr Forrest whether it was intended to call any further evidence if both the limitations matter and the s.23A application were heard as preliminary issues. As I understood him, other than the cross-examination of Mrs Wintle, there will be no further evidence called. Moreover, whilst he made no specific admission with respect to the s.23A application, he made it clear that it would not be his client's submission (and I note that Mr Noonan adopted Mr Forrest's position for the third defendant) that on the pleadings as they stood the plaintiff could not "make it appear" that the granting of an extension of time would be other than just and reasonable. The defence case was pinned to the prejudice said to arise from the elapsing of time. He adverted to the affidavits of Ms Crabtree and Mr Rowell. No further evidence on prejudice is intended to be called.

So far as the Order 23A application is concerned I am of the view that that, if necessary, ought be heard at the same time as the other issues by way of a preliminary hearing, in much the same way as the matter was dealt with in Hickey.

I have given close consideration to the arguments advanced and the authorities referred to, e.g. Brisbane South Regional Health Authority v. Taylor[14] and Taylor v. Western General Hospital[15] and of course the submissions made by counsel. Since the final decision concerning the limitation issues and the Order 23A matter have to be made, it is entirely undesirable that I say anything further at this point of time. I am prepared to hear counsel about the form of questions or the formulation of the way in which all of the issues to which I have referred might be best addressed. The proposed questions set out in paragraph 2 of the second defendant's proposed orders, as a schedule to its written submissions, appear to me to be satisfactory. I invite the parties to consider these matters including an appropriate description of the issue as to the consolidation of the proceedings. The parties should also consider if any further affidavit or other material should be filed. I expect the parties to agree on short minutes as to the appropriate orders, in the light of this decision.
[14](1996) 186 C.L.R. 541.
[15][1986] V.R. 256.

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[2001] VSC 94

11 April 2001