Wintle v Stevedoring Industry Finance Committee (No 4)
[2003] VSC 102
•8 April 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4950 of 2000
| ANNE WINTLE | Plaintiff |
| v | |
| STEVEDORING INDUSTRY FINANCE COMMITTEE JAMES HARDIE & COY PTY LTD) CSR LTD | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2003 | |
DATE OF JUDGMENT: | 8 April 2003 | |
CASE MAY BE CITED AS: | Wintle v Stevedoring Industry Finance Committee and Ors (No. 4) | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 102 | |
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Contribution – meaning of s. 23B(3), Wrongs Act 1958 – whether expiry of period of time specified by s. 20(1) of Wrongs Act operates to extinguish the right of action created by Part III of that Act, or operates to bar the remedy.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Gordon (solicitor) | Slater & Gordon |
| For the First Defendant For the Third Defendant | Mr R. Gorton QC | Blake Dawson Waldron Ebsworth & Ebsworth |
HIS HONOUR:
Before me is a summons filed 5 February 2003 by Stevedoring Industry (“SIFC”) directed to CSR Ltd (“CSR”). It seeks, in substance, judgment in its favour upon a contribution claim brought against it by CSR, which is defendant to a proceeding brought by Mrs Wintle. Senior counsel for SIFC and CSR, referring to Rule 47.04, agreed that they sought before trial the determination of a question in the proceeding arising between their clients. They stipulated certain facts which should be taken to be established for the purposes of determining that question.
Anyone who is familiar with this litigation knows that it has had a long and tortured history, traceable in part through a series of decisions in this Court: Wintle v Conaust (Vic) Pty Ltd and ors[1], Wintle v SIFC and ors[2], Wintle v SIFC and ors (No. 2)[3], Wintle v SIFC and ors (No. 3)[4]. The trial of the proceeding as between Mrs Wintle and CSR is fixed for 4 June this year. The trial apart, all that remain are certain claims for contribution, including the claim by CSR against SIFC[5]. It is unquestionably desirable, against the background which I have described, that this application be dealt with as the parties asked me to do. I consider that the appropriate course is that I should formally state and then determine the following question under Rule 47.04:
“Upon the facts assumed by SIFC and CSR to be established for the purposes of this application, must the claim for contribution by CSR against SIFC fail upon the proper construction of Parts III and IV of the Wrongs Act 1958?”
[1][1989] VR 951 and [2001] VSC 315.
[2][2002] VSC 265.
[3][2002]VSC 294.
[4][2002] VSC 369.
[5]The totality of the claims for contribution are identified in Wintle (No.3) at para.4.
I acknowledge, in determining to follow this course, the problem of determining a question upon facts which are agreed but which might not necessarily be established at trial. The circumstances of this litigation are, however, at least in my experience, unique; and I consider that, SIFC and CSR having agreed upon something at last, the Court should not refuse to act upon that agreement. To what I have just said I add this: counsel particularly mentioned certain agreed facts. The argument also necessarily assumed circumstances disclosed by court documents filed in this and the related proceeding[6] - matters to do with the identity of parties, and timing. Those matters were all entirely uncontroversial.
[6]No. 1113 of 1989.
The totality of the matters which I should assume were as follows:
· The late Mr Wintle worked on the Melbourne waterfront at least between 1960 and 1969.
· He was exposed to asbestos in his work in breach of duty owed to him by each of SIFC and CSR.
· He developed Mesothelioma in consequence of his exposure to asbestos in breach of duty owed to him by each of SIFC and CSR.
· The Mesothelioma caused his death on 12 May 1989.
· In his lifetime he commenced a proceeding in respect of his Mesothelioma. The proceeding was brought against SIFC and certain other defendants; but not CSR. He claimed that SIFC had owed him a duty of care, and that breach of that duty had resulted in his contracting Mesothelioma, it being productive of pain and suffering, expense, and incapacity for work.
· The present plaintiff, the dependent widow of the late Mr Wintle, commenced a proceeding under Part III of the Wrongs Act (“the Act”) by writ filed 6 April 2000. The plaintiff claimed that each of SIFC, James Hardie Coy Ltd and CSR had owed her late husband a duty of care and had breached that duty; and that in each case the breach was relevantly causative of injury, incapacity and death.
· Each defendant raised a defence that the claim against it was statute-barred.
· The plaintiff thereafter compromised her claims against SIFC and Hardie.
· The plaintiff made application for extension of time under s. 20(2) of the Act by summons filed 1 September 2000. Eventually it was pursued with respect to CSR. On 25 July 2002 I ordered that the period within which the plaintiff might bring an action on the cause of action against CSR be extended to 1 August 2002.
· CSR commenced its contribution proceeding against SIFC in the period which began with my order of 25 July and which ended on 1 August 2002. That was within the period specified by s. 24(4)(a)(i) of the Act.
· At the time when CSR commenced its claim for contribution against SIFC any action which the plaintiff might have commenced against SIFC under Part III of the Act would have been statute barred. Mr Wintle having brought an action in his lifetime against SIFC for injury resulting from its alleged breach of duty, s. 20(1) of the Wrongs Act would have applied, and the plaintiff could have gained no assistance from either of s. 20(1A) or (2).
CSR’s entitlement to contribution depends upon the proper meaning of s. 23B of the Wrongs Act.
Section 23B(1) says this:
“Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).”
The concept of liability in respect of damage is elucidated by s. 23A(1). Thus:
“For the purposes of this Part a person is liable in respect of any damage if the person who suffered that damage, or anyone representing the estate or dependents of that person, is entitled to recover compensation from the first-mentioned person in respect of that damage whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise.”
Section 23A(1) does not advert to the requirement of s. 23B(1) that liability be in respect of the same damage. As to that requirement, counsel for SIFC conceded that if CSR and SIFC, as the case might be, is or was liable in respect of damage suffered by Mrs Wintle, then it was in respect of the same damage.
Upon the matters set out in [4] it cannot be said that SIFC is liable to the plaintiff. Mr Kaye of Queens Counsel, who appeared with Mr Noonan for CSR, did not argue to the contrary.
Section 23B(1) is not the last word on entitlement to contribution. Sub-ss. (2) and (3) expand, in my opinion, the circumstances in which the entitlement exists – sub-s. (2) from the standpoint of a party claiming contribution, sub-s. (3) from the standpoint of a party against whom a claim for contribution is made. Mr Gorton of Queens Counsel, who with Mr Grainger appeared for SIFC, submitted, as I understood it, that sub-s. 3 did not have such an effect. He argued that “… you don’t rewrite ss. 23A(1) and 23B(1) by using s. 23B(3)”.[7] I think that giving s. 23B(3) the effect which on its face it clearly has involves no such exercise. The conclusion which I have reached is in no way inconsistent with anything said in Arthur Young and Anor v Brunswick N/L and Ors [8]. That case required no consideration of the effect of s. 23B(3). Callaway JA briefly referred to that sub-section[9]. He did so in language not inconsistent with my conclusion.
[7]T19.
[8][1999] 1 VR 388.
[9]At [29].
Sub-section (3) is relevant to the present case. It says this:
“A person shall be liable to make contribution by virtue of sub-section (1) notwithstanding that the person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based.”
The structure of the sub-section is that liability to make contribution survives cessation of liability save in specified circumstances. According to the arguments of counsel the specified circumstances should be differently understood. For SIFC, Mr Gorton submitted that the words “which extinguished the right on which the claim… was based” attached only to the word “prescription”. For CSR, Mr Kaye argued that the descriptive words attached to “a period of limitation or prescription”.
Mr Gorton’s submission, if correct, would mean that if a person’s liability in respect of damage ceased by reason of a period of limitation, then the right to contribution would cease. It would do so regardless whether the limitation period extinguished the right or barred the remedy. If that was so, the argument which mainly occupied the submissions of counsel – that is, as to the nature of the limitation period set up by s. 20 of the Act – would be rendered otiose.
In my opinion Mr Gorton’s submission could not be accepted. The descriptive words naturally attach both to “period of limitation” and “prescription”. Moreover, the descriptive words are apt to refer to a period of limitation. There have been many decisions over the years concerning the effect of limitation provisions – whether in the particular case the provision extinguishes the right or (merely) bars the remedy. Section 23B was inserted at a time[10] when the distinction had been well-developed.
[10]In 1985, by Act 10227
It becomes necessary, then, to consider the operation of s. 20(1). It reads:
“Not more than one action shall lie for and in respect of the same subject – matter of complaint, and (subject to sub-section (1A)) every such action shall be commenced within six years after the death of such deceased 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.”
According to Mr Gorton’s submission, the plaintiff’s failure to commence a claim against his client within the time specified by s. 20(1) meant in context that the right of action created by Part III of the Wrongs Act, so far as it concerned his client, was extinguished. He described the limitation period set up by the sub-section as an essential element of the right of action. Thus understood it would have the same effect as a limitation period prescribing extinguishment of a cause of action in the event of a failure to initiate a claim within time[11]. On that analysis it followed that SIFC had ceased to be liable to the plaintiff by the expiry of a period of limitation which extinguished the right of action on which the claim against it was based.
[11]An example of which is s. 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), considered recently by the Court of Appeal: Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6.
Mr Gorton submitted that the scheme of the Part III of the Wrongs Act was very similar to that considered by the High Court in Maxwell v Murphy[12]. There, in the context of an enquiry whether a change to the limitation period should be given retrospective operation, it had been determined that the limitation provision was part of the cause of action; so that failure to commence a proceeding within the period specified extinguished the cause of action.
[12](1956) 96 CLR 261.
The legislation now under consideration differs from that which was considered in Maxwell v Murphy. Mr Gorton submitted that the differences should not lead to a conclusion that commencement of a proceeding within the period specified by s. 20(1) is no longer an element of the cause of action. He argued that insofar as s. 20 now permits the revival of a right of action outside the six year period it does not follow that the right of action was not extinguished at the end of that period. He submitted that an extinguished right may be revived, pointing to s. 93 of the Transport Accident Act 1986 and the effect of an injured person accessing one of the so-called gateways. He cited Swannell v Farmer[13] in that connection. He referred also to McKain v RW Miller and Company (South Australia) Pty Ltd[14]. In respect of the latter authority he accepted that the dicta upon which he relied were not decisive.
[13][1999] 1 VR 299 particularly at 305 and 309.
[14](1991) 174 CLR 1 per Mason CJ at 27, 28.
Mr Gorton submitted, and upon the matters identified in [4] it is the fact, that in the particular case the plaintiff could not access either of s. 20(1A) or (2) so far as his client was concerned. If he sought to argue, as a corollary, that in some way the proper construction of s. 20 was illuminated by that circumstance, I would reject the argument. The true nature and effect of the section, said by both senior counsel to be a matter of statutory construction, could not vary according to the factual circumstances of a particular case.
Mr Gorton finally referred to and relied upon s. 23B(6). He focussed upon the words “liability which has been or could be established”. I understood him to submit that those words in some way limited the operation of s. 23B(3), being consistent with the concept of existing liability dealt with by sub-s.1. I could not accept that submission. Sub-s.3 is freestanding, not only by its own language, but probably also when regard is had to the opening portion of sub-s.1. Sub-section 6 is evidently concerned with a private international law issue.
Mr Kaye submitted that s. 20(1) bars the remedy but does not extinguish the right of action created by Part III of the Act. The question was one of the statutory construction. The answer to that question was not determined by the fact that the limitation period was imposed by the Act which created the right of action. The structure of Part III of the Act was considerably different to the provisions considered in Maxwell v Murphy. Not only was the limitation provision separate from the provision which created the right of action – as was the case in Maxwell – but its language was not the language of extinguishment. Further, the existence of sub-s. (1A), (2) and (3A) favoured a conclusion that sub-s. 1 was intended only to bar the remedy.
In my opinion s. 20(1) does not extinguish the right of action created by Part III of the Act. Each question of statutory construction involves construction of a particular provision or provisions. Reference to similar legislation which has a common origin may assist in the task; but it is not necessarily decisive. I consider, for reasons which I must develop, that the decision in Maxwell v Murphy is not decisive of the question of construction which presently arises.
To that decision I go immediately. The particular question which there arose was whether an amendment enlarging the period within which an action might be commenced under the Compensation to Relatives Act 1897 - 1946 (NSW) operated to revive a widow’s right to maintain such an action, the previously applicable period having expired before the amendment commenced. The judgments focussed upon the question whether the amendment concerned a matter of substance or one of practice or procedure. If s. 5 of the New South Wales Act was of the latter character then it could be accorded retrospective operation.
Given the particular context in which the New South Wales legislation came to be considered, there is nonetheless no doubt that a majority of the judges considered that the requirement that action be commenced within a specified period was an element of the right of action which the legislation created.
The learned Chief Justice laid the matter out this way:
“When the Compensation to Relatives Act gives rights to those of the deceased man’s family to whom injury results from his death it does so in terms of remedy. The wrongdoer is to ‘be liable in an action of damages’: s. 3(1). ‘Every such action shall be for the benefit of the wife, parent and child’ – s. 4. The effect of these provisions, combined with s. 5 as it stood, was, in the conditions defined, to confer a right of action which is to endure for twelve months from the death. The statement that every such action shall be commenced within twelve months meant, of course, ‘and not otherwise’. When the time expired the right of action was terminated or defeated.
That being so, it appears to me that the situation is one falling within the application of the presumptive rule of construction. The appellant had lost her right of action before Act No. 33 of 1953 was passed and was without remedy. In terms a remedy had been conferred and in terms a bar had been imposed upon the remedy as such.”[15]
and
“To say that notionally the right to damages continued to exist and only the manner of enforcing the right had been destroyed appears to me to ignore the fact that the right to damages could not be separated from the right to recover them.”[16]
[15]At 268.
[16]At 268-269.
Williams J analysed ss. 3-6 of the New South Wales Act, and concluded that each of those sections contributed a necessary part of the novel cause of action which the statute created. His Honour said this:
“Section 5 contains two important requirements relating to its enforcement by or on behalf of the person for whose benefit the new right of action is created. The first is that not more than one action shall lie for and in respect of the same subject matter of complaint and the other is that every such action shall be commenced with twelve months (now six years) after the death of such deceased person. These two provisions are in a sense procedural but they are not part of any procedure by which rights of action generally may be enforced. They impose limitations upon such general procedure. If compliance with these requisites is essential to the enforcement of the cause of action then the requirement that the action must be commenced within twelve months from the death places a time limit upon its life. After the expiry of that time the cause of action is not merely statute barred, it is extinguished. This is, it would appear, the true effect of the section. The cause of action is only enforceable to use the words of the original Act ‘provided always’ that the action is commenced within the twelve months.”[17]
[17]At 274.
He later observed that whilst pertinent authority was “strangely lacking”,
“… the requirement that the action should be commenced within twelve months, that being the time for which it was prolonged, would appear to be clearly of the essence.”[18]
[18]At 275.
Kitto and Taylor JJ said that the appeal depended upon “a very special problem of statutory interpretation”. Speaking of the 1846 Imperial Act their Honours said this:
“A proviso added two more limitations: ‘that no more than one action shall lie for and in respect of the same subject matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of such deceased person’. That the first limb of this proviso went to the substance of the new right to damages is clear, for its effect was to exclude from the right any persons for whose benefit the liability to an action was imposed who might not be parties for whom and for whose benefit the action was in fact brought. It meant that ‘the persons who stand out stand out for ever’: Avery v London and North Eastern Railway Co. The second limb carried the process of limiting the right a step further, for it meant that the liability was confined to being sued, not only in a single action, but in an action commenced within twelve months after the death. This second limb could hardly have worn less resemblance to a mere limitation of the time for enforcing a cause of action to which it was extraneous. It appeared in the Acts as one of the provisions by which the area of the new liability was being plotted – as an essential qualification indeed, of the new action that was being provided for.
The proviso has always remained as a proviso in England. In New South Wales the Act was re-enacted in 1897, and the words ‘Provided always’ and ‘calendar’ were then omitted. But the nature of the provision remains indubitably the same.”[19]
[19]At 292-293.
If s. 20 of the Act as it now stands was in the same language as the legislation considered in Maxwell v Murphy I should be bound to hold that commencement within the period stipulated was a condition of the exercise of the right; in which circumstances the provision operated to extinguish the right of action if a proceeding was not commenced within that period. But in my opinion s. 20 is profoundly different to the provision considered in Maxwell v Murphy, and a different conclusion follows.
The principal differences between s. 5 of the New South Wales Act, considered in Maxwell v Murphy, and s. 20 of the Act as it now stands lie in the insertion of sub‑s.(1A) and (2)-(4). In my opinion both the content of the sub-sections and the circumstances of their enactment are pertinent.
Sub-section (1A), inserted in 1983, says this:
“(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.
Sub-section (2), (3) and (3A), put into their present form or inserted in 1983, say this:
“(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.
(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 the reasons for the delay on the part of the deceased or the claimant or each of them (as the case may be);
(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 deceased or the claimant or each of them (as the case may be) means of ascertaining facts which were or might be relevant to the cause of action of the deceased or the claimant or each of them (as the case may be) against the defendant;
(d)the duration of any disability of the deceased arising on or after the date of the accrual of the cause of action;
(e)the extent to which the deceased or the claimant or each of them (as the case may be) acted promptly and reasonably once he knew in relation to the injury that caused the death that the act or omission to which that injury was attributable might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the deceased or the claimant or each of them (as the case may be) to obtain medical legal or other expert advice and the nature of any such advice he may have received.
(3A)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 by the claimant."
The consequence of those provisions is that in two kinds of case the right of action created by Part III of the Act may be availed even though more than six years have passed since the death of the deceased.
Sub-sections (1A), (2), (3) and (3A) are in substance very similar to ss.5(1A) and 23A of the Limitation of Actions Act 1958 (the Limitation Act). The latter provisions unarguably apply to causes of action where limitation periods exist which bar the remedy. Their application in such circumstances is readily understandable. The causes of action upon which they operate have not been extinguished.
I consider, however, that there is at least great difficulty in reconciling the application of provisions such as s. 20(1A) and (2) with the conception of a right of action which is extinguished by the operation of a limitation provision. Particularly that is so in the case of an application to extend time under s. 20(2). It can be expected that such an application will be instituted outside the six year period commencing with the death of the deceased. Indeed, by sub-s.(3A)(a) the court is specifically given power to act under sub-s.(2) notwithstanding that more than six years has expired since the cause of action accrued.
This at least can be said about s. 20(1): that in several circumstances the sub-section no longer sets an immutable period for commencement of a proceeding which ends six years after the death of the deceased. Dixon CJ was able to say in Maxwell v Murphy that:
“The statement that every such action shall be commenced within twelve months meant, of course ‘and not otherwise’;”[20]
and the other judges in the majority also referred to the definite period established by s. 5 of the New South Wales Act. That certainty is now absent. The actual length of time between death and the expiry of the period within which a proceeding may be commenced cannot be specified in any particular case at the time of death. It will depend upon the possible application of sub-ss. (1A) and upon the potential at some later time for a successful application under sub-s. (2).
[20]At 268.
It might be said that s. 20(1) operates to extinguish the right of action created by Part III of the Act; but that it does so after different elapses of time depending upon particular circumstances. That would not seem to me to be a satisfactory analysis. There is, I think, difficulty in fitting together the ideas of extinguishment and variable time elapse.
It is proper to be cautious about making use of what has been said concerning the effect of other legislation in seeking to resolve a particular problem of statutory interpretation. That said, the judgment of the majority in McKain gives some support for the conclusion that the presence of an extension provision is pertinent to deciding that a limitation provision is procedural only and does not extinguish a civil liability[21]. Further, the decision of French J in Carey-Hazell v Getz Brothers and Co (Aust) Pty Ltd and ors[22] suggests that a limitation provision akin to s. 20(1A) is unlikely in some circumstances at least to constitute an element of a cause of action[23].
[21]See at 44, citing the judgment of Windeyer J in Hoogland at 489. For a case in which a limitation provision which on its face was apt to bar the remedy was later declared by the same statute to have the effect, on its expiry, of extinguishing the right of action, the statute also providing for the prospect of extension of time, see The Commonwealth v Mewett (1997) 191 CLR 471 particularly per Dawson J at 508-509, Toohey J at 516-517, and McHugh J at 530 and 532-533. Little is to be gleaned from that case. Its resolution depended upon the interaction of unique provisions.
[22](2001) 112 FCR 336.
[23]See at [35]. The decision needs to be treated with particular caution. For there the limitation period expressly assumed the existence of a cause of action; and it could definitely be said that the matters addressed by the limitation provision were not logically congruent with the matters constituting the elements of the cause of action. Further, s.74J(2)(a)(i) of the Trade Practices Act set no prima facie limitation period.
I said a little earlier that the circumstances of the enactment of s. 20(1A) and (2)-(4) were pertinent. In my opinion, the sequence of the legislation which inserted ss.5(1A) and 23A into the Limitation Act and s. 20(1A) and (2)-(4) into the Act objectively suggests a Parliamentary intention that, at least from that time, s. 20(1) would operate to bar the remedy if action was not commenced within the period specified.
Sections 5(1A) and 20(1A) were inserted into the two statutes by the same Act, the Limitation of Actions (Personal Injury Claims) Act 1983[24]. By that Act, also, the period of three years then specified by s. 20(1) was enlarged to six years, this bringing it into line with the personal injuries limitation period set up by s. 5 of the Limitation Act.
[24]No.9884.
Section 23A of the Limitation Act in its initial form was inserted by the Limitation of Actions (Personal Injuries) Act 1972[25]. Section 20(2) of the Act was inserted by the Wrongs Act 1972[26]. Both Acts commenced operation on 1 January 1973. There was, given the necessarily different circumstances addressed, a close similarity in the provisions.
[25]No.8308.
[26]No.8330.
A new s. 23A of the Limitation Act was substituted by the Limitation of Actions (Personal Injury Claims) Act 1983[27]. By the same Act a substantial change was made to s. 20(2) of the Act, sub-s. (3) was substituted and sub-s. (3A) was inserted. Again the new provisions in the two Acts were strikingly similar.
[27]The same Act to which I referred in connection with ss. 5(1A) of the Limitation Act and 20(1A) of the Act.
In all, the changes to the Act were not only very similar to changes made to the Limitation Act, they were mainly effected by the same legislation, legislation described as pertaining to the limitation of actions and evidently operating in connection with limitation periods, applicable to causes of action for personal injuries, whose expiry barred the remedy but did not extinguish the right.
I mentioned earlier Mr Gorton’s submission, in effect, that extinguishment and revival of a cause of action are not incompatible concepts. His submission provided, in my opinion, an incomplete answer if s. 20(1)(1A) and (2) were to be understood to contemplate the revival of an extinguished right of action.
Section 93 of the Transport Accident Act 1986, the operation of which was described in Swannell v Farmer, does not involve a limitation provision at all. There it was decided, in substance, following what had been said by the majority in Wilson v Nattrass[28], that the effect of s. 93 was to extinguish a field of prospective rights and liabilities. No longer could causes of action arise in respect of transport accidents in Victoria unless the requirements that a serious injury had been suffered and that a degree of impairment had been determined were met[29]. The Court, rejecting a submission that s. 93 did not assume the existence of a cause of action but rather directed the courts not to exercise their jurisdiction to award damages, said, in effect, that its operation was akin to a time provision which extinguishes the right rather than barring the remedy[30], though pointing out an obvious difference in the operation of s. 93 and a time provision.[31]
[28](1995) 21 MVR 41.
[29]At [19].
[30]At [25].
[31]“Unlike a time bar, which upon the effluxion of the prescribed period of time terminates an existing ability to recover damages, s.93 requires events to occur before damages can be recovered for injuries sustained in a transport accident, and until these events occur, prevents causes of action coming into existence.” At [28].
Again, the passages in the judgment of Mason CJ in McKain to which counsel referred me were concerned with a different point. It was never suggested in that case that s. 36(1) of the Limitation of Actions Act 1936 (SA) operated to extinguish rights of action. The question was whether the section applied to a proceeding commenced in New South Wales in respect of an industrial accident which occurred in South Australia. Mason CJ dissented in concluding that it did so. He characterised s. 36(1) as a substantive rather than a procedural provision. His Honour referred to s. 48(1) of the South Australian Limitation Act – as I have earlier noted, an extension provision[32] – for the purpose only of considering whether its interrelationship with s. 36(1) justified classifying the former as procedural.
[32]See footnote 21
For reasons explained, the changes made to s. 20, and their legislative origin, strongly suggest to me that s. 20(1) now has effect as a limitation provision which bars the remedy. What if anything stands in the way of such a conclusion? In my opinion there are two matters: the history of the legislation as described by Williams, Kitto and Taylor JJ in Maxwell v Murphy; and the retention in s. 20(1) of the stipulation that not more than one action shall lie for and in respect of the same subject-matter of complaint. That history cannot be denied; and it is the fact that stipulation remains. But it seems to me that the second limb of s. 20(1) has been so much altered that those matters are no longer decisive. The alterations go far beyond the reconstitution of s. 5 of the New South Wales legislation otherwise than as a proviso; something which Williams, Kitto and Taylor JJ considered, though they did not address the matter at length, did not alter the effect of the provision[33]. What is now, in Victoria, s. 20(1) of the Act has not been expressed as a proviso, I add, since the enactment of the Statute of Wrongs 1865[34].
[33]See per Williams J at 274 and per Kitto and Taylor JJ at 292-293.
[34]Section 15.
So far I have concentrated upon the differences between the legislation considered in Maxwell v Murphy and the present s. 20; and upon the history of the amending legislation. Thus considered, I have concluded that s. 20(1) should not be construed to extinguish the right of action created by Part III of the Act on the elapse of whatever period of time applies in the particular case. I reach the same conclusion by considering s. 20 as it now stands, putting the history of the legislation long past and more recently past to one side. Viewed thus, the following matters are in my opinion pertinent:
· First, expressed in terms of a defendant’s liability, s.16, particularly, sets up the right of action. Mr Kaye submitted, I think with some force, that the succeeding sections may be loosely described as procedural. He referred in that connection to ss. 17-22. It is certainly the case that most of the sections subsequent to s. 16 build upon the “action for damages” in respect of which a liability is created by s. 16. So, ss. 17 and 21 refer to “every such action”, s. 18 to an action “as in this Part mentioned”, s. 19 to “any action under this Part,” and s. 22 to “any action as in this Part mentioned”. In the context thus created, s. 16 does not make the existence of the right of action conditional upon action being commenced within the six year period now conditionally set up by s. 20(1). Section 20(1) does not commence by saying, as it did long ago, “Provided always”.
· Second, accepting that the first limb of s. 20(1) continues to define a parameter of the right of action created by the Part, it does not follow that so much of s. 20 as deals with the period of limitation has such an effect.
· Third, for reasons explained s. 20(1A) and (2)-(4) are apt to operate in conjunction with a limitation period which bars the remedy.
· Fourth, the fact that the limitation period is created by the statute which creates the right of action does not require a conclusion that such right is extinguished once the period has expired. The point, made by Windeyer J in Australian Iron and Steel Limited v Hoogland[35], has been very recently reiterated by the Court of Appeal in PSL Industries Ltd and Anor v Simplot Australia Ltd[36] in the context of the operation of s. 82(2) of the Trade Practices Act with respect to an action authorised by sub-s. (1) of that section. I refer particularly to the judgment of Chernov JA at [18]-[19]. His Honour evidently accepted the correctness, for present purposes, of Carey-Hazell v Getz Brothers and White v Eurocycle Pty Ltd[37]. Each of those cases (I have already referred to Carey Hazell) concerned s. 74J of the Trade Practices Act, and add an example of a limitation provision not extinguishing a right of action created by the same statute.
Mr Gorton submitted that Carey-Hazell and White did not assist the plaintiff. He argued that each of the them concerned a provision having application to any number of causes of action, and thus a provision more characteristic of a limitation provision barring the remedy than one creating an element or condition of a right of action.
It is certainly the case that s. 74J applies to the different causes of action created by Division 2A of Part V of the Trade Practices Act. It remains the case, however, that s. 74J is an instance of a limitation provision contained in the statute which creates the cause of action; and it is also the fact that s. 74J has a specific application to each of the various causes of action created by the Division.
· Fifth, Part IV of the Act is general in its application. It is not confined to proceedings commenced under Part III. The reference in s. 23B(3) to “the expiry of a period of limitation… which extinguished the right on which the claim… was based “could not be taken to be an intended discrete reference to the right of action created by Part III.
[35](1962) 108 CLR 471 at 488-489.
[36][2003] VSCA 7.
[37](1995) 64 SASR 461; see particularly at 467.
For completeness sake, and not because I set much store by them, I add two further observations:
· First, s. 20(1) does not in terms say that the right of action created by Part III will be extinguished at the end of the six year period. As Chernov JA observed in PSL Industries, “If Parliament had intended to achieve the result it could have used direct language to that effect.”[38]
· Second, there is a similarity of language between the pertinent limb of s.20(1), viz: “Every such action shall be commenced within six years….”, and the language of s.5(1) of the Limitation Act, viz: “The following actions shall not be brought after the expiration of six years.” Section 5(1) limitation periods bar the remedy rather than extinguishing the right.
[38]At [18].
Subject to anything that counsel may wish to submit, I will order that:
1.The following question in the proceeding be tried before the trial of the proceeding: “Upon the facts assumed by SIFC and CSR to be established for the purposes of this application, must the claim for contribution by CSR against SIFC fail upon the proper construction of Parts III and IV of the Wrongs Act 1958?”
2.The question having been tried, and the answer thereto being “no”, the first defendant’s summons filed 5 February 2003 be dismissed.
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