4 The respondent's Statement of Claim was issued on 9 September 2002, and it did not bear the endorsement mentioned in s 48(4).
5 At trial, before Judge Walker QC, there was a debate as to when the respondent's cause of action arose. His Honour held that it did not arise until December 1999, so that s 36 did not apply, with the consequence that there was no need to consider whether an order should be made under s 48(3), or the effect of s 48(4).
6 The appellant submits that his Honour's finding (at [88]) that the cause of action did not arise until December 1999 is inconsistent with other findings made by his Honour, and that the inconsistencies are not explained, so that an appeal on a point of law lies under the Dust Diseases Tribunal Act 1989, s 32. (See Beale v Government Insurance Office of NSW (1997) 48 NSWLR 206, Sinha v Health Care Complaints Commission [2001] NSWCA 206 at [52], and Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 821.)
7 When considering the question of the measure of the damages to be awarded, his Honour noted the agreement of the parties that X-rays taken in 1992 revealed that the respondent suffered from asbestos related pleural thickening, and at [83] his Honour found that the respondent had found it increasingly difficult and tiring to work from the mid 1990s. At [85] he found that the pleural effusion for which the respondent was hospitalised in August 1999 was "asbestos related". At [81] the judge found that prior to August 1999 the respondent had "well established asbestos related damage to his lungs manifesting in calcified pleural plaques which limited the ability of his lungs to expand". At [175] he found that the respondent had retired from full time work in March 1999, and that "the sole cause of the [respondent] ceasing work [then] was his restrictive lung deficit"; and he proceeded to assess the damages payable for impairment of earning capacity on that basis.
8 In short, the appellant's point is that the finding made on the question whether the claim was time barred, that the cause of action did not arise until December 1999, is inconsistent with the findings made concerning damages, including particularly the finding that as early as March 1999, the respondent suffered economic loss as a result of the tort sued upon.
9 All that appears from the reasons for judgement that might explain the inconsistencies appears at [86] - [87], where his Honour found that, although the claim for economic loss commenced in March 1999, the respondent did not then have available evidence that would have substantiated the case that his disability was related to his exposure to asbestos; and if he had consulted a lawyer at that time, that lawyer would have advised him that he did not have the evidence necessary to prove a case: he did not come "into possession of the material facts" until December 1999. This appears to be a reference to s 48(3), but his Honour was not dealing with an application under that subsection. The cause of action was complete when the respondent first suffered measurable loss or damage, meaning beyond what is negligible, even if he was not aware of it: Cartledge v E Jopling & Sons Limited [1963] AC 758 at 772; see most recently Illawarra Area Health Service v Dell [2005] NSWCA 381 at [78]. That was no later than March 1999.
10 The consequence is that the appeal must be allowed and the matter remitted to the Dust Diseases Tribunal for re-hearing, unless a further submission of the appellant is accepted, to the effect that the South Australian Limitations legislation was substantive (see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503), and that the respondent's omission to comply with the provisions of s 48(4) means that since the respondent's case would have to be dismissed, there is no utility in making such an order (although see Amaca Pty Ltd v New South Wales [2003] HCA 44, 199 ALR 596 at [22]).
11 I will assume that the South Australian Limitations legislation was substantive. In Robinson v Craven (1994) Aust Torts Reps 81-315 the Full Court of the Supreme Court of South Australia held that a failure by a plaintiff to comply with the terms of s 48(4) of the Act is not necessarily fatal. Generally speaking, the Act barred actions from being commenced, otherwise than in accordance with its terms, but it did not extinguish causes of action, and it was necessary for a defendant to plead the time bar if the action was to be defeated by reason of that bar. At 61,865 - 61,866 King CJ said:
"The requirement in subsection (4) that the request for an extension must be endorsed on the originating process does not sit comfortably with the rule, it must be said, where the time limitation is one imposed by the Statute of Limitations or a similar statutory provision. It does not sit comfortably because when the process is issued it is not known whether the statute will be pleaded. It is appropriate, however, where the cause of action has been extinguished and has to be revived.
I do not think too much should be made of that anomaly. The purpose of section 48 is to relieve plaintiffs whose actions are out of time, of the hardship resulting from time limitations. Its purpose is ameliorative. It would not accord with that purpose to construe the section as extinguishing causes of action which would not otherwise be extinguished."
12 By parity of reasoning with what was said in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15, 67 ALJR 517 at [9], this Court should follow the decision of the Full Court of the Supreme Court of South Australia, when considering the proper meaning of a single statute, unless convinced that that decision is plainly wrong, and I am not so convinced. In addition, considerations of comity mean that this Court ought generally to defer to the decisions of the Full Court of the Supreme Court of South Australia concerning the proper construction of a South Australian statute.
13 Further, in Chapman v Luminis Pty Ltd [1998] FCA 1084 at 12, in Reid v Agco Australia Ltd [2000] VSC 363 at [37] - [53] and in Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 at [62] - [63], the matter was taken further, in that it was held that the respective plaintiffs might obtain leave to amend the initiating process, which had not borne the endorsement required by s 48(4) of the Act, so as to add that endorsement. I see no reason to dissent from the reasoning in these cases. See also Van Den Heuval v Tucker [2002] SASC 361 at [2] and Suter v Development Assessment Commission [2003] SAERDC 47 at [14].
14 In the result, the appeal should be upheld, the judgment and orders of the Dust Diseases Tribunal set aside, and the matter remitted to the Tribunal for re-hearing. The respondent should pay the appellant's costs of the appeal, but should have a certificate under the Suitors' Fund Act 1951.
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