BETWEEN : JOSEPH HARRALL (by his next friend SIMONE HARRALL)

First Defendant : State Solicitor for Western Australia

Second Defendant : State Solicitor for Western Australia

Asher-Relf (by his next friend Douglas Bean) v Minister of Health [2009] WADC 202

Tahlia Burns (by her next friend David Burns) v The Minister of Health [2011] WADC 205

1 COMMISSIONER GETHING: [This judgment was delivered extemporaneously on 2 December 2011 and edited from transcript].

2 By writ of summons dated 8 August 2011, the plaintiff, by his next friend, his mother, sued the defendants, claiming damages for personal injury for loss and damage that he suffered as a result of breaches by the defendants in relation to the obstetric and midwifery assessments, advice and treatment of the plaintiff on or about 16 December 1999. The claim against the first defendant arose because, at all material times, it operated and managed Woodside Hospital, being the hospital at which the events were alleged to have occurred. The second defendant was an obstetrician general practitioner employed by the first defendant at Woodside Hospital.

3 In its defence, filed 16 September 2011, the first defendant asserted the plaintiff's cause of action was statute-barred by reason of the Limitation Act 1935 (WA) s 47A (the 1935 Act).

4 The plaintiff, by application filed on 4 October 2011, sought orders that there be a trial of a preliminary issue in relation to the 1935 Act defence. On 24 October 2011, a registrar of the court made orders in the following terms:

There be a hearing before a judge on the preliminary issue in this matter, being:

1.1. commence proceedings before the expiration of one year from the date on which the cause of action accrued, pursuant to section 47A(1)(b) of the Limitation Act 1935;

1.2. seek leave from the court to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued pursuant to section 47A(3)(a) of the Limitation Act 1935?

1. alternatively, is the effect of section 7 of the Limitation Act 2005 such that:

2.1. the limitation period for such claim was, at the commencement date, extended to 15 November 2011;

2.2. the limitation period for such a claim expired on 16 December 2005 but is extendable subject to the provisions of Part 3 of the Limitation Act 2005, in accordance with section 7(3) of the Limitation Act 2005.

5 At the commencement of the hearing before me, the plaintiff abandoned question 2.1.

6 The parties filed a statement of agreed facts in the following terms:

1. The actions of the first and second defendants, as alleged in the Statement of Claim, were in pursuance or execution of an Act, or of a public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority.
2. The plaintiff was born on 16 December 1999.
3. The plaintiff did not commence this action before the expiration of one year from the date on which the cause of action accrued.
4. The plaintiff did not commence this action before the expiration of six years from the date on which the cause of action accrued.
5. The plaintiff does not allege that the defendants or either of them continued a continuing act, neglect or default.
6. The plaintiff did not obtain leave to bring the action at any time before the expiration of six years from the date on which the cause of action accrued.

7 The effect of the agreed statement of facts is that the cause of action fell within the 1935 Act s 47A. Section 47A(1)(b) of the 1935 Act provides that no action could be brought against a defendant falling within the terms of that section unless -

[T]he action is commenced before the expiration of one year from the date on which the cause of action accrued.

8 Section 47A(3) provides that an application could be -

[M]ade to the court which would, but for the provisions of the section, have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued.

9 On the facts of the present case, in order for the plaintiff to have fallen within s 47A(1)(b), his action would have needed to have been commenced by 16 December 2000. In order for the action to have fallen within s 47A(3)(a), leave would have had to have been obtained, and the action commenced, on or before 16 December 2005. The facts in this case are thus relevantly identical to the facts considered by me recently in the decision of Tahlia Burns (by her next friend David Burns) v The Minister of Health [2011] WADC 205.

10 In both that case and the present case, the one year time limit in s 47A(1)(b) had expired prior to the commencement of the Limitation Act 2005 (WA) (2005 Act) on 15 November 2005, but the six year period in s 47A(3) expired after the commencement of the 2005 Act. In Burns, I determined that the 1935 Act s 47A(1)(b) provided a one year limitation period unless and until the court extended it for up to six years: [33] - [37].

11 The plaintiff invited me to reconsider the interpretation I placed on the 1935 Act s 47A and the 2005 Act s 7, in particular looking at the application of the provisions in s 39 and s 41 of the 2005 Act, which give power to a court to extend the time within which the action may be brought.

12 The 2005 Act s 7 provides specific provisions in relation to 'cause of action (childbirth)'. The present action falls within the definition of a cause of action (childbirth).

An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day and ... the limitation period that would have applied but for this section has expired.

14 The questions presented to me also inquire whether, if the limitation period has expired, it is able to be extended pursuant to the provisions of Part 3 of the 2005 Act. This issue was considered by his Honour Judge Stevenson in Asher-Relf (by his next friend Douglas Bean) v Minister of Health [2009] WADC 202. In that case, both the one year and six year periods under the 1935 Act s 47 had expired prior to the commencement of the 2005 Act.

15 His Honour determined that the provisions of pt 3 of the 2005 Act did not apply where the limitation period had expired prior to the commencement of the 2005 Act. In particular, his Honour stated at [61] - [63]:

In my view, the intention of the legislature in enacting s 7, and in particular s 7(2), was to provide a prospective limit for the commencement of actions for childbirth causes of action in circumstance where, and only where, the claim had not expired. This takes into account the fact that the special protections provided by s 47A of the 1935 Act no longer apply to public authorities. At the same time it does not retrospectively take away the substantive legal rights of those defendants where the limitation period had already expired.

In my opinion, s 4, s 5 and s 6 make it plain that the 2005 Act does not change the limitation period that applied under the 1935 Act for any cause of action that accrued before commencement day under the 2005 Act, namely 15 November 2005. In this context the 'special provisions' contained in s 7 relating to childbirth causes of action are intended to refer to the shortened limitation period under the new Act where parties' substantive legal rights had not accrued.

Section 7(2) purports to deal with childbirth causes of action which accrued before 15 November 2005. Section 7(2)(a) specifies the limitation period for such claims as expiring on 15 November 2011. Section 7(2) must be read having regard to s 4(1). In my opinion, this informs the intention and meaning of s 7(2)(b) such that, if the limitation period set by s 7(2)(a) expired, then the limitation period is to be ascertained in accordance with s 4(1).

16 I agree with the reasoning adopted by his Honour Judge Stevenson. Specifically, I am of the view that there is no power to grant leave pursuant to the 2005 Act pt 3 where the cause of action could not be commenced prior to the commencement of the 2005 Act.

17 The plaintiff submitted that the key question, for present purposes, is that posed by s 7(2)(b) of the 2005 Act. This question is whether the limitation period that would have applied, but for the section, has expired. The plaintiff submitted that the relevant question is not whether or not the action could be commenced pursuant to s 47A. The plaintiff then submitted that I should interpret the 1935 Act s 47A as providing the ability to commence an action up to six years from the date of accrual of the cause of action. On this basis, it is sufficient that the plaintiff had the ability to commence an action at the commencement of the operation of the 2005 Act to bring the action within s 7. Once the action is within s 7, then s 7(3) makes specific provision for applications to be made pursuant to pt 3.

18 It seems to me that it is s 5, rather than s 7, which determines whether it is possible for an action to fall within the 2005 Act s 7. Section 5(1) provides:

An action cannot be commenced on or after the commencement day if the action could not have been commenced immediately before the commencement day because of an enactment that is repealed or amended by the Limitation Legislation Amendment and Repeal Act 2005.

19 The 1935 Act is so repealed. Section 5(1), which I have quoted, is subject to s 6. The 2005 Act s 6 only deals with the issue of when the cause of action accrues; a point not in issue in the present case. It is significant to note that Parliament has used different wording in the 2005 Act s 5 from that in s 7(2)(b). The wording in s 5 refers to whether or not an action could have been commenced immediately before the commencement day; s 7(2)(b) looks at limitation periods.

20 It seems to me that, because of the way the 1935 Act s 47A is drafted, that the present action could not have been commenced immediately before the commencement day of the 2005 Act. It could not have been commenced because an application had not been made to the court, and the court had not granted leave for the action to have been commenced. The way in which s 5(1) is drafted means that there is no scope for an interpretation that considers the 1935 Act s 47A as providing the ability to commence an action up to six years from the date of accrual of the cause of action.

21 In any event, I remain of the view that I expressed in Burns, that, properly construed, the 1935 Act s 47A provides for a one year limitation period unless and until the court determines that it ought to be extended. I accept that this interpretation produces somewhat anomalous results. If there is an infant born in a public hospital and the cause of action accrued on 14 November 2004, then by the combined operation of s 47A of the 1935 Act and the 2005 Act s 5, no action could have been commenced as at 15 November 2005, being the commencement date of the 2005 Act. The ability of that plaintiff to commence an action would have come to an end.

22 Contrast the situation where the cause of action for the infant accrued on 16 November 2004. The relevant limitation period in s 47A would have expired on 16 November 2005, meaning that, as at the commencement day, an action could have been commenced. Under that scenario, the limitation period would have expired, for the purposes of the 2005 Act s 7(2)(b), on 16 November 2005. However, because the cause of action fell within s 7(2), s 7(3) would become operative, and an extension application could have been made.

23 Contrast the situation where the plaintiff was injured as an infant in a private hospital. Under the 1935 Act, the maximum limitation period is up to 24 years. It is theoretically possible for that 24 year period to have expired on, say, 15 November 2007; that is, two years after the commencement of the 2005 Act. As the action could have been commenced, as at 15 November 2005 for the purposes of the 2005 Act s 5, the cause of action falls within s 7. This means that the ability to grant an extension, following the expiration of the limitation period under the 1935 Act, applies, leading to the capacity for a very long limitation period.

24 I have considered whether it is possible for a different interpretation to be given to the 2005 Act s 5 which avoids this somewhat anomalous result. However, given the very clear wording that Parliament has used in s 5, I am not able to do so. For these reasons, I am of the view that the plaintiff's claim is statute-barred and cannot be revived using the powers under the 2005 Act. Specifically, I answer the questions posed to me as follows.