Supreme Court of SA|1995-07-05|Before: Like Lander J, Lander J, As Lander J, Bollen J, Duggan J

The applicant attempted to avoid this conclusion by submitting that 'action' in s48(1) should be narrowly construed, despite the presence of the statutory definition in s3(1). Reliance was placed on the expression 'criminal proceedings' in s48(3). However, this expression is not in any way inconsistent with the definition. Reference was also made to s48(5) which enables the court to determine proceedings under s48 'at any time before or after the close of pleadings'. It scarcely needs to be said that to proceed without more from this premiss to the conclusion that s48 applied only to actions involving a writ and pleadings would be to perpetrate a fundamental error in logic.

The language of s47(1) and s48(1) is apt to apply to any statutory limitation fixing the time within which proceedings may be brought, whether the limitation bars the

It seems to me that that case is authority for the proposition to which I have earlier referred, viz. that s48 may operate to extend a time limit even if jurisdiction to grant the extension of time has expired and even if the time limit is a element of the existence of the right. There is further confirmation of that in the following passage of Mason J at page 669: "Section 48(2)(b) confirms the impression that I gather from reading s47(1) and s48(1). They identify statutory provisions by reference to their effect in limiting the time in which proceedings may be brought; the two sub-sections do not otherwise refer to the character of the provisions or to the means by which the limitation operates to defeat the plaintiff's claim. It would be quite wrong to import into the two sub-sections a qualification, based on s48(2)(b), that the two sub-sections have no application to a limitation which operates by prohibiting the exercise of jurisdiction except on an application made within the prescribed time, whilst conceding that they may apply to a limitation which conditions the existence of jurisdiction on such an application. Section 48(2)(b) does not extend the language of s.48(1). Section 48(2)(b) is designed to ensure that an extension of time may be granted, notwithstanding that otherwise the court may lack jurisdiction to make the

It follows expressly from General Motors Holdens v Di Fazio that even where a time limit is a condition of the grant of jurisdiction, or where the time limit operates as a condition of the right, s48 can operate to allow a court to extend time within which to bring these proceedings. That is why, in my opinion, it is not necessary to consider whether s54(7)(g)(ii) imposes a time limit which is an element in the right or a condition of the remedy.

It would follow that in my opinion a notice can be given pursuant to s54(7)(e) more than three years after the date of the trauma. The notice would need to specify an entitlement to recover compensation under s54(7) and to the extent of that entitlement would operate as a first charge on the damages payable by the wrong-doer to the injured party.

As to the extent of the entitlement that will be dependent upon the claimant establishing, as all claimants under this section must, that the injured party is entitled to charges from the wrong-doer. That means that a claimant would need to establish, if the proceedings are brought within time, that the wrong-doer is liable to the injured party at common law. Alsafe Industries v Workers Rehabilitation and Compensation Corporation (supra). If the proceedings are brought outside the three year period, the claimant would have to firstly establish that an order ought to be made extending time within which to bring proceedings, and secondly, the same matters that any claimant within time has to establish.

Whilst it would no doubt be said by wrong-doers that the result leaves them exposed to a potential charge upon moneys for an unknown amount, so also would they be so exposed if proceedings were brought within time. The charge at all times only operates to the extent of the wrong-doers obligations to the injured party.

The only circumstances contemplated in s54(7)(e) are circumstances where a wrong-doer has not paid to an injured party the damages which the wrong-doer would be obliged to pay to the injured party. It must be remembered that the injured wrong-doer also could obtain an extension of time to bring proceedings. I see nothing unfair in the result arrived at.

In those circumstances I would answer 1.1: A notice given by a claimant to a wrong-doer more than three years after the date of the trauma which gave rise to the compensation right, will give that claimant a first charge on damages payable by the wrong-doer to the injured party to the extent of the claimant's entitlement, which entitlement will depend inter alia on the claimant obtaining an order for an extension of time within which to bring the proceedings against the wrong-doer.

The answer to 1.2 flows from the answer already given. Each notice creates a first charge to the extent of the claimant's entitlement as already explained. I therefore propose that 1.3 be answered: Each notice of 30 September 1992 and each subsequent notice creates a first charge to the extent of the claimant's entitlement under s54(5) and s54(7).

I would thus answer the questions: 1.1 A notice given by a claimant to a wrong-doer more than three years after the date of the trauma which gave rise to the compensation right, will give that claimant a first charge on damages payable by the wrong-doer to the injured party to the extent of the claimant's entitlement, which entitlement will depend inter alia on the claimant obtaining

an order for an extension of time within which to bring the proceedings against the wrong-doer.

1.2 Each notice of 30 September 1992 and each subsequent notice creates a first charge to the extent of the claimant's entitlement under s54(5) and s54(7).

Workers Rehabilitation and Compensation Act 1986

Limitation of Actions Act 1936

Workcover Corporation Act 1994

Motor Vehicles Act 1959

Workers Compensation Act 1971

Limitations of Actions Act 1936

Crown Proceedings Act 1972

Statutes Amendment (Miscellaneous Provisions) Act 1972

Industrial Conciliation Arbitration Act 1972

Workers Rehabilitation and Compensation Act 1986

Limitation of Actions Act 1936

Motor Vehicles Act 1959

Industrial Conciliation Arbitration Act 1972

Workcover Corporation Act 1994

Workers Compensation Act 1971

Limitations of Actions Act 1936

Crown Proceedings Act 1972

Statutes Amendment (Miscellaneous Provisions) Act 1972

BAULDERSTONE PTY LTD, CANNY RIGGING PTY LTD AND BAKER WELDING CONTRACTORS PTY LTD v WORKCOVER CORPORATION OF SOUTH AUSTRALIA AND MAURICE WILLIAM MALE No. SCGRG 94/2l44 Judgment No. 5147 Number of pages - 19 Workers' compensation - limitations of actions (1995) 64 SASR 519 [1995] SASC 5147 (5 July 1995)

Workers Rehabilitation and Compensation Act 1986s 54 and. Limitations of Actions Act ss 47, 48. Alsafe Safety Industries and Anor v Workers Rehabilitation and Compensation Corporation and Anor (1990) 54 SASR 320; Tickle Industries Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321; Cowell v General Motors Holden (1977) 17 SASR 148; Seatainer Terminals Ltd v Dunn (1981) 27 SASR 21; Lovett v LeGall (1975) 10 SASR 479; R v Di Fazio (1979) 20 SASR 559 and Sub-nominee General Motors Holden Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659, applied.

However there is nothing to prevent parliament from legislating so as to permit an extension of time even in those cases where the limitation would otherwise bar the right and in General Motors-Holdens Ltd v De Fazio [1979] HCA 43; (1979) 141 CLR 659 the High Court recognised that s48 was such a provision. It was there held that s48 could be applied whether the limitation bars the right, the remedy or whether it would otherwise deprive the court of jurisdiction. (141 CLR at 669). Once this view of s48 is accepted, it becomes unnecessary to consider whether a particular limitation period comes under one or other of the above categories. Munno Para District Council v Battersby 66 LGRA 17 at 29; South Australian Meat Corporation v Kipirtoglou 48 SAIR 237.

In relation to the legislation generally, and more particularly to the second argument that was advanced, Mason J said at page 668: "There is some slight different in language between the opening words of s47(1) and those of s48(1)(a). Nevertheless it is apparent that both sections are directed to statutory limitations of action, that is, statutory provisions which fix the time within which legal proceedings may be brought or instituted, though s48(1) applies to other time limitations as well (see s48(1)(b) and (c)). The most common illustration of the statutory limitation of action is that which operates to bar the remedy or to bar the right and the remedy unless an action is commenced within a prescribed time. There is, however, no reason to think that the two sections are confined in their application to limitations of this kind. The expression 'cause of action' frequently signifies an antecedent right asserted by a plaintiff. However, in the context of a general provision, dealing with limitations of actions and applicable to 'all actions', except those mentioned in s47(2), it should be given the wider meaning cause of complaint. Moreover, the width and generality of the statutory definition of the word 'action' indicate that the provisions are not restricted to actions in which the plaintiff seeks to enforce an antecedent legal right. Quite obviously they extend to proceedings in which the making of the order sought is the source of the right sought to be established. R v Commonwealth Court of Conciliation and Arbitration Ex-Parte Barrett [1945] HCA 50; (1945) 70 CLR 141.

BAULDERSTONE PTY LTD, CANNY RIGGING PTY LTD AND BAKER WELDING CONTRACTORS PTY LTD v WORKCOVER CORPORATION OF SOUTH AUSTRALIA AND MAURICE WILLIAM MALE No. SCGRG 94/2l44 Judgment No. 5147 Number of pages - 19 Workers' compensation - limitations of actions

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