Citation : TANSY ANN BARR (an infant) by her next friend NIGEL MORRISON BARR -v- FARRELL [2012] WADC 116

Limitation of actions - Personal injury - Action for damages arising out of childbirth - Limitation Act 2005 (WA), s 4, s 7 - Guardian of plaintiff wrongly advised by solicitors as to limitation period - Action out of time - Application for extension of time to commence action - _Limitation Act 200_5 (WA), s 41 - Whether in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within time - Appeal against dismissal of application for extension of time

Limitation Act 2005 (WA), s 41

Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 124 CLR 97

Barr (an infant) by her next friend Nigel Morrison Barr v Farrell [2012] WADC 116

Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549

Burns v Minister for Health [2012] WASCA 267

Carey v Australian Broadcasting Corporation [2012] NSWCA 176

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Corporate Affairs Commission (New South Wales) v Yuill [1991] HCA 28; (1991) 172 CLR 319

Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309

Khoury v Government Insurance Office of (NSW) [1984] HCA 55; (1984) 165 CLR 622

Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573

Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Brown [1996] AC 543

Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628

Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208

Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1

1 PULLIN JA: This is an appeal against a judgment of the District Court judge who dismissed an application for an extension of time in which to sue the first respondent (a medical practitioner) and the second respondent (which owns the St John of God Hospital group). The appellant wishes to sue the respondent in relation to an injury she alleges she suffered while being delivered at birth by the first respondent at a St John of God Hospital. The appellant alleges that the injury was caused by the negligent use of forceps and she has evidence to support the allegation.

2 The appellant's father was her guardian and he sought legal advice about the taking of legal action. The guardian, because of incorrect legal advice given by solicitors about the expiry of the limitation period, did not sue within the statutory limitation period. The appellant then applied to the District Court for an extension of time in which to commence the action. The application was made under s 41 of the Limitation Act 2005 (WA) ('Act'). The District Court judge dismissed the application because he held that the guardian had acted reasonably in relying on the negligent advice about the expiry of the limitation period. That order is the subject of this appeal.

3 The appellant has evidence in the form of hospital records and expert medical opinion to the effect that the treatment by the first respondent, using instrument delivery, fell below an appropriate standard of care and that traction via instrument delivery caused the appellant's injury. Newnes JA in his reasons has set out the details about the date of the injury, what the appellant's guardians did to gain legal advice, the advice given and the legislative changes which took place in relation to the relevant limitation legislation. Newnes JA has also set out the relevant part of the speech of the relevant minister who moved the second reading of the bill that was later passed as the Act.

4 Section 41 of the Act reads:

1. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian

(1) A plaintiff who was under 18 years of age when a cause of action accrued to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired.

(2) Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches 21 years of age.

(3) A court is not to extend time on an application unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action.

(4) This section does not apply to an action relating to the publication of defamatory matter.

5 Having been injured at birth, the appellant was therefore able to satisfy the requirement in s 41(1), which meant that she had standing to apply to the court for leave to commence the action even though the limitation period had expired.

6 The appellant was and is under 21 years of age, so subject to s 41(3), the court was authorised to extend the time in which the action could be commenced up until the appellant reaches 21 years of age.

7 Section 41(3) is where the point of dispute arises between the parties. Newnes JA records the reasons of the District Court judge and the arguments advanced by the parties on this appeal. It is not necessary to repeat that material.

8 As explained in other cases in the past, under the now-repealed Limitation Act 1935 (WA), obstetricians were exposed to an extended period of exposure to potential litigation in relation to their actions when attending a birth: see Burns v Minister for Health [2012] WASCA 267 [30].

9 The (current) Act, by its terms, therefore had the purpose of reducing the period in which a person injured at birth was free to commence proceedings from 24 years, in relation to actions against private hospitals or individuals, to 6 years. However, the Act also provided, by its terms, that the court should have the power to grant an extension of time to commence proceedings.

10 What then is the proper construction of s 41(3) of the Act? It must first be observed that whenever an application is made under s 41 in circumstances where the cause of injury is childbirth, the limitation period under the Act will have expired when the person injured at birth was an infant. The subsection raises the following questions. What is the significance of the reference to 'a' guardian and not 'the' plaintiff's guardian; and what are the 'circumstances' to which reference is made?

11 The word 'guardian' is defined in s 3(1) of the Act, but the definition does not explain why the indefinite article rather than the definite article appears in s 41(3) before the word 'guardian'. Both respondents submitted that the answer was that the reference to 'a' guardian was consistent with the legislature having in mind that a plaintiff might have more than one guardian. That is no answer because that circumstance would have been catered for by the subsection referring to 'the' guardian with knowledge that s 10(c) of the Interpretation Act 1984 (WA) provides that words in the singular number include the plural. If the respondents mean that sequentially there might be more than one guardian, then that submission still provides no answer because the section could have been drafted to refer to 'the' guardian, which would have been a reference to whichever guardian or guardians acted unreasonably. So the question remains as to why the indefinite article was used.

12 The answer is that the use of the indefinite article indicates that the court is to decide the application for an extension of time by objectively assessing the circumstances in order to determine whether it was unreasonable not to commence proceedings.

13 The conclusion that the circumstances must be considered objectively by the court in reaching a conclusion about whether it was unreasonable for a guardian not to sue within the limitation period finds some support in Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, albeit that the statutory provision considered in that case was different. The provision that the court was considering in Noonan empowered the court to extend the limitation period to sue on a cause of action in defamation. It provided that the court must (as opposed to the court must not) extend time if the court was satisfied that it 'was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication'. As Chesterman JA said at [48], the applicant under that provision had to demonstrate affirmatively that it would have acted unreasonably in suing within time. The provision under consideration in this appeal requires the applicant to satisfy the court that it was unreasonable for a guardian not to commence the action within the limitation period.

14 In Noonan, Keane JA (as his Honour then was) rejected a submission on behalf of the plaintiff that the 'circumstances' included the 'subjective understandings of the plaintiff'. His Honour said that the test posed by the section was an objective one, and that the reference to the 'circumstances' meant the circumstances as they appeared 'objectively to the court' and not 'the circumstances which the plaintiff believed, however unreasonably, to exist'. See Noonan [19] - [20]. Chesterman JA also said that the test which appeared in s 32A(2) was an objective one, and that the test was not satisfied by showing that the applicant believed he had good reason not to sue: see Noonan [65].

15 The conclusions of Keane JA and Chesterman JA were reached even though the section referred to 'the plaintiff'. In this case, because the reference is to 'a' guardian and not 'the' guardian of the appellant, then a fortiori s 41(3) requires an objective assessment of the circumstances by the court in order to determine whether a guardian who did not commence proceedings within the limitation period acted unreasonably.

16 Martin CJ referred to Noonan with approval in Rayney v The State of Western Australia [No 3] [2010] WASC 83 [41], but not in relation to the point addressed above. In Carey v Australian Broadcasting Corporation [2012] NSWCA 176, Beazley JA, McColl JA and Sackville AJA appeared to adopt the view of Keane JA and Chesterman JA in Noonan concerning the identical New South Wales provision: see Carey [56], [57] (Beazley JA, McColl JA & Sackville JA agreeing on this point).

17 The question then is, what are the relevant 'circumstances' which have to be considered in determining whether it was unreasonable for 'a' guardian not to commence the action within the limitation period? The answer is that the relevant circumstances are all the circumstances relating to whether there was a cause of action worth pursuing. The circumstances in this case include the evidence about how the injury happened and the medical opinion available.

18 Advice from solicitors about the limitation period was not a relevant circumstance. Section 41(3) asks the court to consider whether it was unreasonable for a guardian not to commence the action 'within the limitation period'. The limitation period is a matter of law. The lawyers' wrong view of the law, which produced a belief in the appellant's guardian that the limitation period would not expire when, in fact, it was to expire, was not relevant. If anything the Minister said in the second reading speech was contrary to this construction of the Act, it is the Act which must apply and not the Minister's view of it: Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518.

19 In this case, there was medical opinion that suggested negligence and that this caused severe injury requiring subsequent specialist care and attention and surgery. Those relevant circumstances all indicated that there was a cause of action and that it was worthy of pursuit. No conclusion could be drawn other than that it was unreasonable for 'a' guardian not to commence the action within the limitation period.

20 Having formed the view that no conclusion could be drawn in the circumstances of this case other than it was unreasonable for 'a' guardian not to commence the action within the limitation period, is not to suggest that an extension of time will always be granted under s 41 if there is evidence that a cause of action exists. In a different case, the circumstances might show that injury was slight and proof of negligence doubtful and it would not be unreasonable for a guardian not to commence an action. Then legal proceedings might not be warranted. Each case will turn on its own facts.

21 The primary judge erred in taking into account evidence about the guardian's wrong view about the expiry of the limitation period based on advice. That belief was not a 'circumstance' which should have been considered in deciding whether it was unreasonable for 'a' guardian not to commence the action within the limitation period. The appeal should be allowed. The order of the District Court judge should be set aside.

22 The question then is whether this court should extend the time, having regard to the further matters for the court's consideration mentioned in s 44 of the Act. Section 44 reads:

1. Further matters for court's consideration on extension applications

When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to -

(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

23 In this case, the respondents did not challenge the conclusions of the District Court judge that the delay would not unacceptably diminish

the prospects of a fair trial of the action and would not significantly prejudice the defendant. On that basis, rather than sending the matter back to the District Court for reconsideration, there should be an order in lieu of the order made by the District Court judge, an order extending the time for the commencement of the proposed action. The precise formulation of the order should await further submissions from the parties.

24 NEWNES JA: This is an appeal against a decision of Bowden DCJ in the District Court who refused an application by the appellant for an extension of time under s 41 of the Limitation Act 2005 (WA) to commence an action against the respondents. The appellant says that his Honour's refusal to extend time was based upon a misinterpretation of the Act.

25 The refusal of an application for an extension of time to commence proceedings is an interlocutory decision: Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374. The appellant therefore requires leave to appeal: Supreme Court Act, 1935 (WA), s 60(1)(f). An extension of time to appeal is also required, the appeal notice having been filed 12 days out of time.

26 The appellant was born on 30 April 1994 at a hospital operated by the second respondent. The appellant says that she was delivered by the first respondent by a forceps delivery which caused her to suffer a severe right shoulder injury.

27 On 4 July 2003, the appellant's father consulted solicitors (not, I should say, the appellant's current solicitors) about a possible claim in negligence against the respondents in respect of the appellant's injuries. He was advised that the limitation period for any legal proceedings for damages against the respondents was six years from the date upon which the appellant turned 18 years of age (that is, 30 April 2018). At the time, that advice was undoubtedly correct. Under the Limitation Act 1935 (WA), the limitation period for an action in tort was six years from the date upon which the cause of action accrued (s 38(1)), save that if the plaintiff was (relevantly) under 18 years of age at the time the cause of action accrued, the period of six years ran from the time the plaintiff turned 18 (s 40).

28 On 19 March 2004, the appellant's father received the same advice as to the limitation period from the solicitors, who by then had obtained an

expert medical opinion on the claim favourable to the appellant. The appellant's father was advised that the appellant's claim could not be quantified at that stage and that the appellant would have to wait until she was 15 or 16 to determine whether there would be any loss of earning capacity. He instructed the solicitors to write to each of the respondents notifying them of the appellant's intention to claim damages for negligence. The solicitors did so and the respondents subsequently replied by their respective solicitors, denying liability.

29 On 15 November 2005, the Limitation Act 2005 (WA) and the Limitation Legislation Amendment and Repeal Act 2005 (WA) came into force, replacing the Limitation Act 1935. The relevant effect of the new legislation was to change the limitation period for actions for damages arising out of childbirth in all cases to a period of six years from the date upon which the cause of action accrued. However, in cases where the cause of action had accrued before 15 November 2005 and had not expired by that date, the applicable limitation period was six years from 15 November 2005: Limitation Act 2005, s 4, s 7; Limitation Legislation Amendment and Repeal Act, s 4. That was subject to s 41 of the Limitation Act 2005, which permits the court to extend the period in certain circumstances. For the purposes of the Limitation Act 2005, a cause of action will accrue when the person becomes aware that he or she has sustained a not insignificant personal injury or upon the first manifestation of such an injury, whichever occurs first: s 55. (I note in passing that these provisions appear to be unique to Western Australia.)

30 It was not in issue before the primary judge or on the appeal that the appellant's cause of action arose out of childbirth within the meaning of the Limitation Act 2005 and that the cause of action had accrued, within the meaning of s 55 of the Act, before 15 November 2005.

31 On 30 November 2009, the appellant's father again consulted the solicitors. He was advised that the appellant's claim could not be quantified until a decision was made on her career path and that the appellant should wait until the end of her year 12 schooling (the end of 2011) before commencing legal proceedings. At that stage the appellant was 15 years of age.

32 The appellant's father consulted the solicitors on 12 January 2012, following the appellant's acceptance into a university bio-medical course. He was advised that certain further expert medical opinion should be obtained.

33 On 12 April 2012, the appellant's father was informed that the limitation period may have expired on 15 November 2011. On 16 April 2012, he commenced an application in the District Court for an extension of time pursuant to s 41 of the Limitation Act 2005. The application was dismissed by the primary judge: Barr (an infant) by her next friend Nigel Morrison Barr v Farrell [2012] WADC 116.

34 The appellant appeals against that decision. As the appellant has since turned 18 years of age, the appeal is brought in her own name.

35 It is convenient, before turning to the reasons of the primary judge, to set out the relevant provisions of the Limitation Act 2005 in respect of claims relating to childbirth where (as in this case) the cause of action had accrued before that Act came into force. They are as follows:

1. Special provisions for certain personal injury actions relating to childbirth

...

(2) An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day [15 November 2005] and -

(a) 6 years have elapsed since commencement day; or

(b) the limitation period that would have applied but for this section has expired.

(3) This section has effect subject to Part 3 but -

...

(b) [section] ... 41 [does] not apply if the person has reached 15 years of age at commencement day.

(4) For the purposes of the provisions of Part 3 that apply under subsection (3), a cause of action (childbirth) is to be taken as having accrued on commencement day.

...

1. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian

(1) A plaintiff who was under 18 years of age when a cause of action accrued to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired.

(2) Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches 21 years of age.

(3) A court is not to extend time on an application unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action.

(4) This section does not apply to an action relating to the publication of defamatory matter.

1. Further matters for court's consideration on extension applications

When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to -

(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

36 A number of issues were raised before the primary judge concerning the application of the legislation which are no longer in contention. The appeal turns on the effect of s 41(3) and it is sufficient to refer only to his Honour's reasons in that regard.

37 The primary judge noted that the appellant's father, as her guardian, had from 2003 sought and relied on legal advice. There was nothing which might establish that he had acted unreasonably in not commencing proceedings within the limitation period [56]. On the contrary, in obtaining and acting on legal advice the appellant's father had at all times acted reasonably [58].

38 In relation to the factors referred to in s 44, his Honour found that the delay in commencing legal proceedings would not unacceptably diminish the prospects of a fair trial of the action and that an extension of time would not significantly prejudice the respondents [64].

39 His Honour held, however, that as he was not satisfied it was unreasonable for the appellant's father not to commence the action within the limitation period, the court could not grant an extension of time: Limitation Act 2005, s 41(3). He accordingly dismissed the application.

40 The appellant relied on the following grounds of appeal:

1. The primary judge erred in law in construing s 41(3) of the Limitation Act 2005 (WA) to mean that whether 'it was unreasonable for a guardian of the plaintiff not to have commenced proceedings' should be assessed by reference to the appellant's guardian acting upon advice received, rather than by reference to a properly advised guardian, acting reasonably.
2. The primary judge erred in law in failing to hold, on the basis of the proper construction of s 41(3), that the court had jurisdiction to grant the plaintiff an extension of time to commence proceedings against the respondents and in failing to grant such leave pursuant to s 41(2) of the Limitation Act 2005 (WA).

41 The appeal raises, as the appellant's counsel observed, a short question of construction of s 41(3) of the Limitation Act 2005.

42 The objective of statutory construction is to give to the words of the statutory provision the meaning which the legislature is taken to have intended them to have, applying the established rules of construction: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [78]; Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [43]. Ordinarily, although not always, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky [78].

43 The appellant argued that the appeal turned on whether, on their proper construction, the words 'it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action' meant that:

(a) a properly advised guardian, acting reasonably, would not have commenced proceedings; or

(b) the particular guardian receiving the actual advice which he or she received, acting reasonably, would not have commenced the proceedings.

44 It was submitted that whilst the primary judge had implicitly accepted the latter, the first was to be preferred. Five propositions were advanced by senior counsel for the appellant in support of that contention. First, it was submitted that s 41(3) refers to 'a guardian' of the plaintiff, not 'the guardian', so the provision is not concerned with the particular guardian of the plaintiff but a guardian objectively viewed; secondly, the question whether a guardian's actions are unreasonable is a purely objective one and does not depend upon whether the guardian believes he or she is acting in the best interests of the plaintiff; thirdly, the jurisdiction to extend time is for the benefit of the plaintiff and it is unlikely that parliament intended to deny that benefit to a plaintiff adversely affected by wrong advice given to their guardian; fourthly, the expression 'the circumstances' in s 41(3) is not apt to include a legal opinion, which is not itself a circumstance but a person's view of the circumstances which make up a cause of action; and fifthly, the alternative construction produces unreasonable consequences, as the present case illustrates.

45 The respondents responded that the use of the expression 'a guardian' was simply intended to provide for a situation where, as would often be the case, a plaintiff had more than one guardian. They accepted that whether a guardian's conduct was unreasonable is to be assessed objectively, not by reference to subjective beliefs of the guardian. But the respondents submitted that s 41(3) requires the court to compare the conduct of the plaintiff's actual guardian (not that of a hypothetical guardian) with what a reasonable person (a hypothetical guardian) would have done in the circumstances; it could not have been intended that there should be a comparison between one hypothetical guardian and another. The respondents further submitted that the 'circumstances' referred to in s 41(3) were simply the objective factors relevant to the guardian's failure to commence proceedings within time. Any legal advice received by the guardian which caused or contributed to the proceedings not being commenced within time would be a relevant factor in assessing whether it was unreasonable for a guardian of the plaintiff not to commence proceedings within time. In this case, it was not unreasonable for the appellant's guardian not to have commenced the proceedings within time.

46 It was submitted on behalf of the respondents that the purpose of the Act, as with any limitation legislation, was to protect defendants from the injustice of having to defend stale claims, notwithstanding that the result may be to bar a good cause of action. Section 41(3) was intended to limit the circumstances in which the limitation period could be extended to circumstances where the failure to commence proceedings in time was due to the negligence of the guardian, having regard to the obvious difficulties involved in the child later suing the guardian for negligence. Otherwise the effect of s 41(3) was that no extension of time to commence proceedings against the respondents could be granted. If the guardian had received negligent advice the appellant may have a cause of action in negligence against the solicitors concerned.

47 In my view, the primary judge correctly found that by virtue of s 41(3) the court could not grant an extension of time.

48 I do not accept the appellant's contention that the reference in s 41(3) to 'a guardian' is a reference to a hypothetical guardian rather than the actual guardian. That is to place on the indefinite article more weight than it can bear. The reference to 'a guardian' in s 41(3) is a reference to an actual guardian of the plaintiff, not a hypothetical guardian. The use of the indefinite article 'a', instead of the definite article 'the', is simply to cater for the circumstance, likely to be quite common, where a child has more than one guardian. The question to be determined under s 41(3), therefore, is whether in the particular circumstances of the case it was unreasonable for the actual guardian not to commence proceedings within time. That is to be determined objectively.

49 That the availability of an extension of time is to be confined in that way accords with statements made by the Attorney General in debate on the bill in which he described s 41(3) as intended to apply if 'a parent or guardian behaves unconscionably or negligently', where it would provide 'an ability to overcome the negligence of the guardian': Western Australia, Parliamentary Debates, Legislative Assembly, 19 May 2005, 2041 (Mr JA McGinty, Attorney General). The Attorney General described s 41(3) as 'an added complication to the otherwise simplicity of the scheme for taking action within six years': Parliamentary Debates, 19 May 2005, 2071.

50 There will obviously be cases where a guardian of a child acts reasonably in not commencing proceedings within the limitation period. Factors such as the extent or consequences of the injury as understood at that time, the costs involved in litigation, and the prospects of success as they are then assessed, may and no doubt often will reasonably lead to a decision not to commence proceedings. It is clear that it was never intended by the legislature that in such a case an extension of time might be obtained because after the limitation period has expired the guardian has had a change of heart, or a subsequent guardian of the child (or the child once he or she reaches the age of 18 years) is of a different opinion and wishes to commence proceedings. If it was not unreasonable for the guardian not to have commenced proceedings within the limitation period, that is the end of the matter.

51 It is also obvious that there may be cases where later events cause the child or their guardian to rue a decision, reasonably made at the time, not to commence proceedings within the limitation period. It is readily conceivable, for instance, that there will be cases where, after the limitation period has expired, information comes to light which, had it been known earlier, would have made it unreasonable for the guardian not to commence proceedings. But it is clear, in my view, that it was never intended that an extension of time would be available simply because new information had come to light. In deciding where, as between the plaintiff and the alleged tortfeasor, the balance is to be struck in such a case, it is plain that the legislature has determined that the plaintiff must bear the consequences of the decision not to commence proceedings.

52 It is, in my view, equally clear that it was not intended that an extension of time might be available where the guardian reasonably acted upon information or advice which later turned out to be wrong. Where, for instance, a guardian reasonably did not commence proceedings within the limitation period on the basis of wrong medical advice as to the extent or effect of the injury, it was plainly not intended that the plaintiff might obtain an extension of time to keep alive a claim against the original alleged tortfeasor. The effect of s 41(3) is again that the consequence of the decision not to commence proceedings is to be borne by the plaintiff, who is left to any remedies he or she may have against the person who provided the wrong advice.

53 Where the failure to commence legal proceedings in time was due to reasonable reliance on incorrect legal advice the position can be no different. That accords with the ordinary meaning of the statutory language and cannot be said to be a result which could not have been intended by the legislature. It is not obviously unjust or unreasonable that the period for which the original tortfeasor is to remain liable is not to be extended beyond its ordinary duration because the guardian's decision not

to commence proceedings within time was based upon advice which later turned out to be inadequate or wrong.

54 I do not accept the appellant's argument that legal advice obtained by a guardian is not a relevant 'circumstance' for the purposes of s 41(3). What constitute 'the circumstances' under s 41(3) are simply 'the external conditions affecting or that might affect action' (Shorter Oxford Dictionary, 6th ed, 2007). Whether relevant legal advice was obtained by the guardian within the limitation period, and if it was, the nature of the advice, are circumstances that may be taken into account for the purposes of s 41(3). Indeed, they will ordinarily be highly relevant circumstances in determining whether the guardian acted unreasonably in not commencing proceedings within time.

55 In the present case, it cannot be said that it was unreasonable for the guardian not to commence proceedings within time. The guardian did not do so because his former solicitors failed to inform him that their earlier advice as to the limitation period was no longer correct and to advise him as to the effect of the Limitation Act 2005. The guardian only became aware of that after the limitation period had expired. But it is not to the point that the guardian is blameless. That is not the criterion under s 41(3). Once it was found that in the circumstances it was not unreasonable for the appellant's guardian not to have commenced proceedings within the limitation period, the court could not extend time.

56 That is undoubtedly an unfortunate outcome for the appellant. But the limitation period of six years, and the very limited circumstances in which it can be extended by the court under s 41(3), reflects the balance which has been struck by the legislature between the interests of plaintiffs and defendants respectively in childbirth cases. There will always be hard cases, on one side or the other, however the balance is struck. This might be regarded as one such case. That, however, is not a warrant to give to the Act a meaning which its words cannot properly bear.

57 I would grant leave to appeal but dismiss the appeal.

58 MURPHY JA: Newnes JA has set out the relevant background and the principal statutory provisions. The single issue in the appeal is the meaning to be given to s 41(3) of the Limitation Act 2005 (WA) (the Act). Section 41 of the Act bears repeating:

1. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian

(1) A plaintiff who was under 18 years of age when a cause of action accrued to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired.

(2) Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches 21 years of age.

(3) A court is not to extend time on an application unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action.

(4) This section does not apply to an action relating to the publication of defamatory matter.

59 The relevant principles of statutory interpretation were not in dispute and it is unnecessary to outline them in any detail here. For present purposes, the following principles are, however, to be particularly borne in mind in construing s 41(3). Parliament's intention is to be ascertained by determining the intention manifested by the legislation: Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1, 168 - 169 (Gummow J). Statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31]. Ordinarily, but not always, the grammatical and ordinary sense of the words is to be adhered to: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]; Corporate Affairs Commission (New South Wales) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 340 (Gaudron J). A provision must be read in context and not in isolation from the enactment of which it forms a part: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 318 (Mason J). Within a provision, the meaning and operation of particular expressions must be read with and accommodated to the rest of the section: Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208, 213 (Barwick CJ); Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 124 CLR 97, 105 (Gibbs J). The unit of communication by means of language is the sentence, and not the parts of which it is composed, and the significance of individual words in a sentence is affected by other words and the syntax of the whole: R v Brown [1996] AC 543, 561, quoted with approval by the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 397. A provision which is remedial in character should be construed so as to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open: Khoury v Government Insurance Office of (NSW) [1984] HCA 55; (1984) 165 CLR 622, 638.

60 Section 41 is within div 3 of pt 3 of the Act. Division 3 is headed 'Extension by courts'. The provisions in div 3 are beneficial provisions, evidently designed to ameliorate, in the circumstances to which they refer, the potential injustice arising from a rigid application of the limitation periods provided for in the Act: cf Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628, 635; see also Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549, 554, 564. Division 3 includes the following provisions.

61 Section 38 deals with a situation where the failure to commence within time is attributable to fraudulent and/or other improper conduct of the defendant (or a person for whom the defendant is vicariously liable). Section 39 deals with applications for an extension in personal injury actions and actions under the Fatal Accidents Act 1959 (WA) where the 'person to whom the cause of action accrues' was unaware of specified matters relevant to the prosecution of such an action. Section 40 deals with defamation actions where the court is satisfied that it was 'not reasonable in the circumstances for the plaintiff to have commenced' the action within one year from publication. Section 41, referred to earlier, deals with claims by persons who were infants when the cause of action accrued. Section 42 deals with claims by persons with a mental disability. Like s 41(3), s 42(3) provides, with respect to a person with a mental disability, that a court is not to extend time unless it is satisfied that, in the circumstances, it was unreasonable for a guardian of the plaintiff not to have commenced the action within time.

62 An infant may only sue by a guardian or next friend, and s 41 operates in the context where a cause of action accruing to an infant has been allowed to become statute-barred.

63 The following features of s 41(3) may be noted. First, the 'circumstances' referred to must be those existing prior to the expiration of the limitation period. Secondly, the words 'unreasonable ... not to commence the action' indicate that an objective assessment of the circumstances within that period is intended. Thirdly, a 'guardian' is a defined term (s 3(1) definition of 'guardian'). In light of that definition, s 41(3) provides, in effect, that the court is not to extend time unless it is satisfied that in the circumstances it was unreasonable for a person responsible at law for the long-term care, welfare and development of the minor and for whom it was practicable, having regard to that person's relationship with the minor, to commence an action on behalf of the minor, not to commence such an action within time. Fourthly, the use of the indefinite article before the word 'guardian' appears to be of some substantive significance to the structure of the sentence in s 41(3). The term 'a guardian' does not, in its grammatical and ordinary sense, convey the meaning of 'the' actual guardian of the plaintiff at the time. The reference to 'a' guardian in the context of an inquiry into unreasonableness appears to be designed to emphasise the objective nature of the inquiry. It appears unlikely to me that the reference to 'a' guardian within the context of the sentence as a whole is really a drafting technique addressing the situation where there are two actual guardians of the plaintiff, and is intended to mean, in effect, 'the' actual guardian of the plaintiff, or if more than one, either of them.

64 Accordingly, s 41(3) does not appear to me to be addressing the state of mind of the particular person who was, in fact, the guardian of the minor at the time that the limitation period expired. The first respondent's contention to the contrary is based on the proposition that s 41(3) provides, in effect, that unless the court is satisfied that a reasonable guardian in the circumstances of the actual guardian would have commenced proceedings within time, the court is not to extend time (first respondent's submissions pars 22 - 26). However, that contention seems to me to involve putting a gloss on the Act so as to recast its emphasis and thereby its import.

65 As s 41(3) is not concerned with the state of mind of the actual guardian, the 'circumstances' in s 41(3) would not be the circumstances actually influencing the actual guardian's state of mind. In other words, it is irrelevant whether the actual guardian who has consciously allowed the minor's claim to become statute-barred did so in the mistaken, but reasonable, belief that the limitation period had not expired. Even if the guardian's actual belief was based on erroneous legal advice, a decision not to commence proceedings within time based on what is objectively an unreasonable view of the limitation period is itself unreasonable from the perspective of the plaintiff, for the protection of whom s 41(3) is designed.

66 The 'circumstances' to which s 41(3) refers are, in my view, those which would objectively be relevant to a guardian, knowing the limitation period, in deciding whether to commence proceedings. These would ordinarily include the nature and strength of the claim, the damages which would be expected to be recoverable and any costs considerations which might reasonably bear upon a decision to sue in the particular circumstances of the case. Medical reports which had been obtained by the plaintiff's actual guardian would be admissible as relevant to, but not necessarily determinative of, the question of whether, objectively, it was unreasonable for a guardian of the plaintiff not to commence proceedings within time.

67 Thus, s 41(3) appears, in substance, to proceed on the following basis. If, in the circumstances, it was unreasonable for a guardian responsible for the plaintiff's welfare etc and practicably capable of suing not to have sued within time, the minor is taken to have lost a valuable proprietary right in a situation where he or she was incapable of preserving the right for himself or herself. In that event, the discretion to extend time may be exercised. On the other hand, if it cannot be established that it was unreasonable for a guardian responsible for the plaintiff's welfare etc and practicably capable of suing not to have preserved the claim by commencing an action within time, the plaintiff is taken not to have shown that he or she has lost a proprietary right of any real value, and it is unnecessary to go on to consider the question of discretion.

68 In my view, the extrinsic parliamentary materials are, overall, of no real assistance and I ultimately place no reliance on them. The second reading speech of 7 April 2005 referred to below does tend to confirm the meaning to which I have referred above: s 19(1)(a) of the Interpretation Act 1984 (WA). In the second reading speech for the Limitation Bill 2005 (the Bill) (Western Australia, Parliamentary Debates, Legislative Assembly, 7 April 2005), the Attorney General said:

Under the bill, the limitation period will similarly be suspended for a child who is not in the custody of a parent or guardian. For a child who is in the custody of a parent or guardian, time is to run in the ordinary way, but the courts will again have a discretion to extend time until age 21 if the parent's or guardian's failure to commence proceedings was in the circumstances unreasonable.

...

The limitation period may be extended in certain circumstances under part 3 of the bill. This is an important safety net to ensure that children with legitimate claims are not disadvantaged. However, in general terms, the effect will be that the limitation clock, so to speak, of babies who are injured during birth before the bill comes into effect will start ticking from the date the bill becomes law. (emphasis added)

69 Other extrinsic material is more opaque. In Western Australia, Parliamentary Debates, Legislative Assembly, 19 May 2005, in a consideration of the Bill in detail, the Attorney General said:

Not all parents are good parents. A child may have a negligent parent. The child should not be prejudiced by the failure or the negligence of the parent or guardian to take legal action on the child's behalf. We are not seeking to deny people the ability to take legal action, but we want to harvest them a lot earlier. I think the obstetricians want that also; they want to know whether legal action is coming. That is why we have reduced the 24 years to six years, in the general scheme of things. One of the exceptions is that when a parent or a guardian behaves unconscionably or negligently, the bill will still leave the ability of the child to take legal action until the time he or she turns 21. Therefore, there is still an ability to overcome the negligence of the guardian. That is designed as a protection. (emphasis added)

70 In the above passage, the references to the protection of the plaintiff where a guardian has behaved unconscionably or negligently might be thought to take, as their starting point, the proposition that a guardian knew, or at least must be taken to have known, the true limitation period prior to its expiration. In any event, I am not persuaded that the statement should be read as necessarily implying that a child should be 'prejudiced' where a guardian has consciously allowed the limitation period to expire based on an unreasonable view of the limitation period grounded in misleading advice obtained by a guardian.

71 Accordingly, in my respectful view, the learned primary judge proceeded on a misapprehension as to the true meaning of s 41(3) and the appeal should be allowed. The evidence before his Honour was that the appellant had an arguable claim supported by appropriate medical evidence. There is nothing to indicate that the claim ought not reasonably have been commenced within the limitation period. Indeed, it is to be inferred that the only reason the claim was not commenced within time was that the actual guardian held a subjective belief, based on legal advice about the limitation period, which was not correct. The judge found, and there is no challenge to the findings, that the delay in commencing the proposed action would not unacceptably diminish the prospect of a fair trial or significantly prejudice the respondents.

72 In my view, the court should grant the appellant's application for an extension of time to appeal, grant leave to appeal and allow the appeal, set aside the primary judge's orders and make orders for the extension of time pursuant to s 41 of the Act. The parties should be heard as to the precise terms of the orders.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARR -v- FARRELL [2013] WASCA 211 (S)

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : TANSY ANN BARR (an infant) by her next friend NIGEL MORRISON BARR -v- FARRELL [2012] WADC 116

Practice and procedure - Costs - Appeal against dismissal of application by appellant for extension of time - Appeal allowed - Whether order for costs against appellant at first instance should be disturbed - Whether appellant entitled to costs of appeal - Application by respondents under Suitors' Fund Act 1964 (WA)

Suitors' Fund Act 1964 (WA), s 10(1)

Certificate granted to each respondent under Suitors' Fund Act

Order for costs against appellant below not disturbed

Commonwealth of Australia v Smith [2005] NSWCA 478

Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S)

Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128

Richards v Faulls Pty Ltd [1971] WAR 129

1 JUDGMENT OF THE COURT: On 10 September 2013, this court, by a majority, allowed an appeal against a decision of the District Court refusing an application by the appellant for an extension of time under s 41 of the Limitation Act 2005 (WA) to commence an action against the respondents.

2 The parties were given leave to file written submissions as to costs and it was ordered that the question of costs be decided on the papers. The parties' submissions have now been filed.

3 The appellant submitted that notwithstanding the proceedings were to seek the indulgence of an extension of time, the respondents should pay her costs of the appeal. In support of that contention, it was submitted, first, that the appellant had been successful on the appeal and that was a significant consideration under O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA); secondly, the respondents actively contested the application at first instance and on the appeal, ultimately unsuccessfully; thirdly, what was at stake was substantial, namely, the appellant's right to bring a claim for compensation for her injuries; and fourthly, the appellant required an extension of time, not through any fault of her own, but due to the fault of her former solicitors.

4 Although the submissions by the appellant (and indeed, the respondents) appeared in places to be directed to costs at first instance, we do not understand the appellant to seek to disturb the order for costs the respondents obtained in the District Court. The only order sought is an order that the respondents pay the costs of the appeal.

5 It was submitted by the respondents, in substance, that ordinarily where an application for an extension of time is successful the applicant will be ordered to pay the costs of the application, unless the respondent's conduct in opposing it was wholly unreasonable: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; Commonwealth of Australia v Smith [2005] NSWCA 478. There was nothing to take this case outside the ordinary rule. The respondents argued that their conduct in opposing the application both at first instance and on the appeal was not unreasonable, as evidenced by the fact that they were successful before the primary judge and this court was divided on the appeal. They sought an order that the appellant pay their costs of the appeal. The first respondent also sought an order that the appellant pay their costs below, although, as we have mentioned, the appellant does not appear to seek to disturb the existing order in the District Court in the respondents' favour. In the event the respondents were ordered to pay the appellant's costs, they each seek a certificate under s 10 of the Suitors' Fund Act 1964 (WA).

6 In case there should be any doubt about the position, it is appropriate to say that we would not interfere with the order made by the primary judge that the appellant pay the respondents' costs of the application to the District Court.

7 It is trite law that the court has a very wide discretion as to costs, albeit it is a discretion that must be exercised judicially. It is unnecessary to canvass the cases referred to by the parties. The assistance that can be gained from other cases is generally very limited because the way in which the discretion is exercised very much depends upon the particular facts and circumstances of the case. We accept, however, as a general proposition that where a party who is out of time successfully seeks an extension of time, ordinarily that party will not be entitled to an order for the costs of the application unless the conduct of the other party in opposing it was unreasonable. But beyond that we would not venture. Whether, for instance, the applicant should pay the costs, or whether the costs should be in the cause of the action, are matters which are so dependent upon the particular facts of the case that the expression of any general principle would have to be so qualified as to be of no practical utility. The guiding principle must always be what is appropriate to do justice in the particular circumstances of the case.

8 In the present case, it is accepted by the parties that no fault can be attributed to the appellant or her former guardian personally for the failure to commence proceedings within time. It seems the responsibility lay with their former solicitor who had wrongly advised them as to the relevant limitation period. But the fact remains that the difficulty in which the appellant found herself had nothing to do with the respondents. Nor can it be said that the respondents' opposition to the application was unreasonable. Whether the appellant was entitled to an extension of time to bring a claim against the respondents turned on a question of construction of s 41 of the Limitation Act, a question which had not previously received judicial consideration and one on which ultimately this court was divided. In the circumstances, it was not unreasonable for the respondents to require the appellant to persuade the court that an extension of time could, and should, be granted. If the appellant was out of time because of her solicitor's negligence she may have remedies against the solicitor. But there is no reason why the respondents should have to bear their costs of the application.

9 The costs of the appeal, however, do not give rise to similar considerations. On the appeal the appellant was not seeking to have the court exercise its discretion to overcome a difficulty in which she had found herself. At least in the present case, the considerations relevant to the costs of the appeal do not differ in any material respect from those in the ordinary run of appeals. There are no factors which should cause this court to depart from the usual rule that costs follow the event. We consider that the respondents, having unsuccessfully opposed the appeal, should pay the costs.

10 We might note in passing that a similar outcome was reached in Holt v Wynter, where the applicant was ordered to bear the costs of her (unsuccessful) application to the New South Wales District Court for an extension of time under the relevant limitation legislation but obtained an order for the costs of her successful appeal. The facts in Commonwealth of Australia v Smith were quite different to the present case.

11 It is necessary then to turn to the application by each respondent for a certificate under the Suitors' Fund Act.

(1) Where an appeal against the decision of a Court in any proceedings -

(a) to the Supreme Court;

...

on a question of law succeeds, the Supreme Court may ... grant to the respondent to the appeal ... an indemnity certificate in respect of that appeal.

13 The appellant was successful on a question of law. The question is whether the court should exercise its discretion to grant a certificate. The discretion is unfettered but it must be exercised judicially. Generally, it may be exercised where there is a question of law which might reasonably be resolved in different ways, 'so that in a sense the unsuccessful party may be thought to have suffered some "misfortune" owing to a doubt about the correct rule of law to be applied': Richards v Faulls Pty Ltd [1971] WAR 129, 138. A relevant consideration will be the degree to which the question of law involved was a question of general application, or whether it arose by reason of the particular facts of the case: Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S) [3].

14 In this case, the proper construction of s 41 of the Limitation Act involved a question of law of some general application rather than a question limited to the particular facts of the case. We would grant a certificate to the first respondent. We would also grant a certificate to the second respondent, on the basis, as we were informed, that it is a non-profit charitable organisation.

(1) the respondents pay the appellant's costs of the appeal to be taxed; and

(2) the first and second respondents are each granted a certificate pursuant to s 10(1) of the Suitors' Fund Act.