Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer

Court of Appeal (NSW)|2003-10-08|Before: Hodgson JA, Ipp JA

The Application for Leave 57 In giving her decision, her Honour was exercising a discretion. Consequently, the claimant, in seeking leave, must demonstrate a reasonably arguable case of miscarriage of discretion, in accordance with the principles of House v The King (1936) 55 CLR 499. 58 In this regard, the claimant submits that her Honour did not "apply the appropriate test in relation to the need for forensic diligence to be displayed by a plaintiff in and about bringing the application." It was also submitted that there was error on the part of the primary judge "in failing to take into account all of the factors referred to in s 60E(1)(c)-(g) of the Limitation Act 1969. 59 In its written submissions, the claimant expressed its main argument in relation to these submissions, in the following way:- "1. By 30 March 1999 it is clear that the opponent - (a) knew that he was seriously injured; (b) knew the identity of the claimant and knew that it was the occupier of the site upon which he was injured; (c) received legal advice and knew that he had a right to bring a claim for damages against not only his employer, but also the claimant; (d) knew that in order to bring such a claim in negligence against the claimant, such claim must be commenced by 7 August 2001; (e) chose not to bring such a claim and instead changed solicitors and pursued a claim under the Workers Compensation Act. 2. There was no sufficient explanation by the opponent as to why he did not bring common law proceedings against the claimant until 2002, having been previously advised of his right to do so and the date by which he was obliged to do so. 3. In the circumstances, her Honour erred in failing to take into account or give sufficient weight to the lack of forensic diligence shown by the opponent in and about the bringing of his claim." 60 In effect, the claimant submits that there was a demonstrably appellable failure on the part of her Honour to apply statements of principle from the judgment of Ipp JA in Itek Graphix, with which Spigelman CJ agreed. It is convenient to set-out those passages, at para 90, p 225, as follows:- "The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed ( Ratnam v Cumarasamy [[1965] 1 WLR 8 at as; [1964] 3 All ER 933), so must the laws of Parliament."

And at para 98, p 226:- "In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation."

61 It is plain from her Honour's judgment that she did not overlook these important considerations. In the passage which I have cited she gives reasons for distinguishing the present case from Itek Graphix. For my part, I can detect no error in what her Honour had to say in that passage. In the present case, the period of delay was small in comparison with that in Itek Graphix. Also, it was quite open to her Honour to find that the choice made by Mr Stringer was not, relevantly, a deliberate and informed choice. He was the victim of conflicting advice, which presented a problem for him, with which he was neither intellectually nor emotionally equipped to deal. Her Honour, in this regard, had the advantage of seeing, hearing and assessing the opponent in the witness box. 62 Although the affidavit evidence before her Honour could have been more explicit as to the time when Mr Stringer received advice from Priority Legal Services, as to there being no prospect of a successful claim at common law, her Honour was, in my view, quite entitled to assume that the advice was effective in determining the course that Mr Stringer took during the time that the limitation period expired. It was well open to her Honour, in my view, to see Mr Stringer's allowing the limitation period to expire as a result of confusion as to his rights rather than a deliberate intention to abandon them. 63 It is plain that her Honour, in an ex tempore judgment, did not seek to traverse all the material that had been placed before her. I am not satisfied, however, as faintly submitted by the claimant, that her Honour failed to give adequate reasons for her decision. Nor am I persuaded that she, in some way, reversed the onus of proof. 64 In my opinion, the case that her Honour's exercise of discretion miscarried, is not sufficiently arguable to warrant the granting of leave. Accordingly, I propose that the application for leave be dismissed with costs. **********************

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CITATION : Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 HEARING DATE(S) : 26/09/2003 JUDGMENT DATE : 8 October 2003

CATCHWORDS : Extension of time for bringing of action. LEGISLATION CITED : s 60E(1(c)-(g) Limitation Act 1969 Workers' Compensation Act 1987 Itek Graphix Pty Limited v Elliott, (2002) 54 NSWLR 207 House v The King (1936) 55 CLR 499 CASES CITED : ASB-Tech Services Pty Ltd v Doeland [2003] NSWCA 167 Russo v Aiello [2003] HCA 53 Brisband South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554 Sutton v. Gundowda Pty. Ltd. (1950) 51 CLR 418. PARTIES : Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) Stringer FILE NUMBER(S) : CA 40275/03 COUNSEL : Mr G. McNally - Applicant Mr R. Tregenza/J. Baxter - Respondent SOLICITORS : Colin Biggers & Paisley - Applicant Bale Boshev - Respondent

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