Dj v Rhs and Jf [2004] ACTSC 12

Supreme Court of the ACT|2004-04-02|Before: Connolly J

1. There is no jurisdiction to extend time to allow this action to be commenced.

1. By notice of motion dated 28 November 2003 the applicant seeks an order pursuant to s 36 of the Limitation Act 1985 (the Limitation Act) extending the period within which she may bring a personal injuries claim to within seven days of the date of the order. The personal injuries claim relates to a medical procedure which the applicant underwent on 22 September 1995 to terminate a pregnancy. She seeks to bring an action for emotional and psychiatric damages arising, it will be claimed, from a negligent failure to provide appropriate counselling before undertaking the termination. Due to the nature of the claim an order was made on 6 February 2004 to prohibit publication of the names of the parties to this action.

2. The matter came before me on 5 March 2004 for a ruling on whether there was jurisdiction for the Court to entertain an application for an extension of time in the circumstances of this case. The Legislative Assembly by the Civil Law (Wrongs) Amendment Act (No 2) 2003 (the Civil Law (Wrongs) Amendment Act (No 2)) made substantial changes to the law relating to personal injuries claims, and it is the contention of the respondents that the effect of the changes contained in that legislation, which amended certain parts of the Limitation Act, was to remove the discretion formerly granted to the Court to extend time.

3. The parties were in agreement that this point should be determined before embarking on any hearing on the merits of an extension of time application. The determination of a point of law before a trial is provided for by O 29 of the Supreme Court Rules.

4. The applicant alleges a cause of action which arose on 22 September 1995. Under the law as it previously stood, a personal injuries claim had to be commenced within six years. That period would have expired on 22 September 2001. Section 36 of the Limitation Act, however, provided a general discretion for the Court to extend a limitation period "if it decides that it is just and reasonable to do so". The Civil Law (Wrongs) Amendment Act (No 2) came into force on 9 September 2003 and the present application was brought on 28 November 2003.

5. The amendments add a new s 16B - Other claims for damages for personal injury - to the Limitation Act, and amends s 36 by providing that that section, containing the general discretion to extend a limitation period, does not apply "(5) ... in relation to a cause of action to which either of the following applies: (a) s 16B (Other than claims for damages for personal injury)". Counsel were all in agreement that there is an obvious typographical error in this provision, as s 16B is entitled "Other claims for damages for personal injury", not "Other than claims for personal injury", and I proceeded to read this section as providing that the general discretion contained in s 36 does not apply to a cause of action to which section 16B applies. It is appropriate to set out this section in full:

16B Other claims for damages for personal injury

(1) This section applies to a cause of action for damages for personal injury other than a cause of action to which section 16 (Compensation to relatives) or section 16A applies.

(2) The cause of action is not maintainable if brought -

(a) if the injury is or includes a disease or disorder - 3 years or more after the day the person injured first knows -

(i) that the person has suffered an injury that is or includes a disease or disorder; and

(ii) that the injury is related to someone else's act or omission; or

(b) in any other case - 3 years or more after the day the injury happened.

(3) Subsection (2) applies to a cause of action that arises on or after 1 July 2003.

(4) If the cause of action arose before 1 July 2003, the cause of action is not maintainable if brought after whichever of the following periods ends first:

(a) the 3-year period mentioned in subsection (2) that would apply to the action if the cause of action arose on 1 July 2003;

(b) the period that would have applied to the cause of action apart from this section.

(5) Subsections (3) to (6) expire 5 years after the day this section commences.

(6) Subsections (3) and (4) are declared to be laws to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

6. The proposed claim is clearly a cause of action for damages for personal injuries, and is neither a cause of action to which s 16 (Compensation to relatives) or s 16A (Claims for common law compensation for workers compensation) applies. It follows that s 16B is intended by the legislature to apply to the claim. The cause of action, it is common ground, arose on 22 September 1995, and so the relevant provision is s 16B(4). This provides that such a cause of action -

is not maintainable if brought after the end of whichever of the following periods ends first -

(a) the 3 year period mentioned in subsection (2) that would apply to the action if the cause of action arose on 1 July 2003;

(b) the period that would have applied to the cause of action apart from this section.

7. I should add that it was common ground in this application that the reference to the three year period mentioned in subs (2) relates to a period of three years from the 22 September 1995, because on the plaintiff's case the injury she claims to have suffered was immediately apparent, and she attended her general practitioner the next day to complain of depression. This is not a case where there is claimed to be a latent injury. In such a case, the legislative scheme provides that the limitation period of three years begins to run from the date on which the "disease or disorder" became apparent.

8. Counsel for the defendants argue that this has the effect that, for a cause of action that arose after 1 July 2003, the action is not maintainable unless it is brought after the end of the earlier of two periods. The first period (a) is the three-year period that would have applied if the cause of action arose on 1 July 2003, which is three years, being a period ending on 1 July 2006. The second period (b) is the period that would have applied to the cause of action apart from this section. Counsel for the defendants submit that this means the six-year period which previously applied to a personal injuries claim. In the present case, this period would have expired on 22 September 2001. As this is the earlier period, the effect of s 16B(4), on the defendants' argument, is that the action, not having been brought before the period first expiring, being 22 September 2001, is not maintainable. As a cause of action is a cause of action to which s 16B applies, the general discretion to extend a limitation period in s 36 is not available.

9. The contrary argument, advanced by counsel for the plaintiff, is that the reference to "the period that would have applied to the cause of action apart from this section" is to be taken to refer to the period of six years from the date on which the cause of action arose, together with such other time as the Court may have provided pursuant to s 36. As that period of time may have been significant, the effect of the section on this argument is that the earliest expiring period would be three years from 1 July 2003, being 1 July 2006. On this argument, the cause of action is maintainable. It should be observed that, on this interpretation, s 16B(4)(b) is really meaningless, as if it is intended to refer to an open-ended period, it will never be a period shorter than three years, and so the intention of the legislature would, if this was indeed what was intended, have been better served by simply stating that, for causes of action arising before 1 July 2003, they must be brought before 1 July 2006.

10. An interpretation of a section that renders a provision meaningless is generally to be avoided, or at least not to be preferred to an interpretation that is more consistent with the whole of the legislative scheme being meaningful and effective. This is generally consistent with the principle given effect to in s 139 of the Legislation Act 2001 (the Legislation Act) that -

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

11. Which really goes no further than the well known principle that -

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention is to be found by an examination of the language used by the statute as a whole.

(Per Higgins J, The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited [1920] HCA 54; (1920) 28 CLR 129 at 161-162.)

12. It seems to me that the plain meaning of s 16B is that where a personal injury results in a frank injury (that is, not a latent condition) the cause of action, if it arose before 1 July 2003, must be brought either within three years, that is by 1 July 2006, or within the former six year limitation period, whichever is the earlier.

13. In the course of argument I was taken to the explanatory memorandum to the Bill, and the debates of the ACT Legislative Assembly. It is open to a Court to have regard to such material pursuant to s 141 of the Legislation Act. Section 142 of the Act sets out seven categories of extrinsic material. It is unclear whether this is meant to be hierarchical, although if it is, it broadly runs from royal commission or inquiry material through Legislative Assembly committee reports, explanatory statements, the presentation speech, other parliamentary debates, and any relevant treaty to which Australia is a party.

14. The explanatory statement to the Civil Law (Wrongs) Amendment Bill provides expressly that it is "the second stage in a three-stage process to address the insurance crisis", and that this is based on the Commonwealth's Review of the Law of Negligence, chaired by Justice Ipp, which reported in September 2002. That part of the explanatory statement dealing with the changes to limitations expressly refers to "Ipp recommendations 24 through 26", and states -

The Bill changes the statute of limitations for adults from six years to three years from the date of occurrence of their injury or discovery of the injury. This will ensure that matters are settled quickly and will allow parties to move on with their lives. This will also ensure that matters are heard before evidence is lost.

15. The Review of the Law of Negligence in its discussion of limitation periods begins with a description of the nature of a limitation period. It is stated -

Limitation periods provide a time limit for the bringing of legal proceedings. They should not be seen as arbitrary cut off points unrelated to the demands of justice or the general welfare of society. They represent the legislature's judgment that the welfare of society is best served by causes of action being litigated within a limited time, notwithstanding that their enforcement may result in good causes of action being defeated.

This definition is expressly adapted from the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553.

16. The presentation speech by the Attorney-General repeats what is said in the explanatory memorandum (Hansard, 24 June 2003 at 2247), and so does not greatly assist in determining the question now before me. During the course of the debate, however, there was an amendment moved by an independent member which sought to expressly preserve a discretion to extend time. In speaking to her amendment Mrs Cross said (Hansard, 21 August 2003 at 3070) -

there is a need to allow the court's discretion to extend the time available for plaintiffs when there is a situation that is out of control, or out of the control of the plaintiff. ...

The lack of action by lawyers, or the illness of lawyers, can lead to the plaintiff's [sic] being unable to lodge a suit through no fault of their own. If your lawyer is not dealing with your case as a matter of priority, you may find that your time has run out and your compensation will not get a hearing.

17. Mrs Cross was taking as an example a classic case of delay in lodging a matter by a lawyer where the discretion contained in s 36 would be likely to be exercised by a court to extend a limitation period. It is apparent from the need for the amendment that this Member saw the legislation as otherwise removing the discretion, and this is also reflected in remarks of other cross bench Members who supported her amendment. Ms Tucker said (Hansard, 21 August 2003 at 3070) that the Bill was -

unfair to retrospectively chop people's rights to apply for compensation.

18. Ms Dundas said (Hansard, 21 August 2003 at 3070) -

I do accept the principle of limitation periods for actions, but I think the way that it is put forward to us in the government's original bill is quite harsh and makes no provision for extending the deadline.

19. The legislative intent is further clarified by examining the response of the government to the proposed amendment. The Attorney-General in response said at 3070 -

The government opposes the amendment, Mr Speaker. The government has - and I must say, reluctantly - removed the court's discretion, and it did it deliberately to allow claims out of time in relation to adults. The bill was designed deliberately to force adults to commence actions at an early stage or to lose the right to commence actions.

The opposition spokesperson, Mr Stefaniak expressly supported the remarks of the Attorney-General on this point (Hansard, 21 August 2003 at 3071). The amendment was negatived by the votes of government and opposition members present (Hansard, 21 August 2003 at 3072).

20. It seems to me that the statement of the Attorney-General, supported by the opposition spokesperson, makes abundantly clear the intention of the legislature in enacting s 16B of the Limitation Act. This was to fix a clear and reduced period of limitation for personal injury claims for the future, and to also limit claims that had arisen before the introduction of the Bill. By fixing the new reduced period of three years, the legislature had its mind directed to a proposal to retain a discretion to extend the time, and rejected this. All the members who spoke on this amendment were doing so on the basis that the Bill as presented did not provide any discretion to extend time.

the government has - and I must say reluctantly - removed the court's discretion, and it did it deliberately.

For a court, in the face of such a clear expression of legislative intent, to stretch the wording of the provision to produce a contrary result would, it seems to me, be to err, and certainly to ignore the provision of s 139 of the Legislation Act 2001 that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. The legislative history shows that there was an amendment moved which was intended to preserve a discretion to extend time, and this was clearly negatived. In the course of the debate the Attorney-General expressed the clear view that the Bill was intended - deliberately he said, to remove the court's discretion. The intention of the legislature could hardly be clearer, and it seems to me that this confirms what I would in any event have taken to be the plain meaning of s 16B.

22. On the question of law before me in this case, my order is that this application is an application to which s 16B of the Limitation Act applies, with the consequence that s 36 of that Act, which provides for the discretionary extension of a time limit, does not apply. Under the provisions of s 16B(4) this cause of action is not maintainable if brought after the former six-year limitation period, which period expired on 22 September 2001.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the applicant: Elrington Boardman Allport

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