Edmondson Memorial Club and Gladesville RSL Club v Bartsch

PARTIES : John Edmondson VC Memorial Club Co-op Ltd v Gabriella Bartsch & Anor; Gladesville RSL Club Ltd v Gabriella Bartsch & Anor JUDGMENT OF : Meagher JA at 1; Hodgson CJinEq at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 4181/93 LOWER COURT JUDICIAL OFFICER : Goldring DCJ

COUNSEL : Claimant: T. Alexis/E. White Opponent: M.Evans SOLICITORS : Claimant: Marshall Marks Kennedy Opponent: Cashman & Partners CATCHWORDS : Limitation Act - limitation period - statutory interpretation - interlocutory Court orders. ACTS CITED : Limitation Act; District Court Rules Part 3 r.2 DECISION : Leave to appeal granted; Appeal dismissed with costs

• 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40216/99; 40226/99 MEAGHER JA HODGSON CJ IN EQ

Friday, 24 September 1999 John EDMONDSON VC MEMORIAL CLUB CO-OP LIMITED v Gabriells BARTSCH & ANOR GLADESVILLE RSL CLUB LIMITED v Gabriella BARTSCH & ANOR

LIMITATION PERIOD - STATUTORY INTERPRETATION - INTERLOCUTORY COURT ORDERS - LIMITATION ACT- PART 3 RULE 2 DISTRICT COURT RULE

Mrs Bartsch was employed as a cleaner. She pursued an action in negligence against each club for injuries incurred while working for them. The limitation period against Gladesville RSL Club expired in August 1990 and expired against the Edmondson VC Club in February 1992. By this time Mrs Bartsch had taken no action against either club. On 11 November 1996 Soloman DCJ granted a notice of motion dated 31 August 1993 to extend the time to sue. The extension was granted until 11 December 1996. No action was forthcoming by this date. Mrs Bartsch filed a second notice of motion to extend time to sue. This was granted by Soloman SCJ who extended the time until 17 December 1997. This decision was reversed on appeal. However it was noted by the appeal court that orders for extension for time to sue were interlocutory and therefore could be varied. It was also noted that Part 3 Rule 2 of the District Court Rules allowed for amendment of interlocutory orders. Mrs Bartsch thus sought to vary the order of 11 November 1996 made by Solomon DCJ. This was granted by Goldring DCJ. The applicants appealed this decision, arguing that his Honour had no inherent power to vary the order, only that granted to him under Part 3 Rule 2. It was further submitted that this Rule could not apply to the application because of the restrictions placed on granting extensions by S60I of the Limitation Act. Held: While great credence was given to the arguments submitted by the applicants it was held that interlocutory court orders need to be kept flexible in order to best meet the needs of justice. Unless plainer language was used it could not be inferred that S60I of the Limitation Act restricted Rule 2 in the manner suggested. It was noted that such a restrictive interpretation of the Limitation Act could be dangerous to litigants, for if they were not entitled to relief under the Act, then Rule 2 would also be inapplicable. As such it was held there had been no prejudice against the appellants in allowing either an extension or variation of the motion. Orders

1. Leave to appeal granted;
2. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Friday, 24 September 1999 John EDMONDSON VC MEMORIAL CLUB CO-OP LIMITED v Gabriells BARTSCH & ANOR GLADESVILLE RSL CLUB LIMITED v Gabriella BARTSCH & ANOR

1 MEAGHER JA: The claimants (one in each of these actions) seek leave to appeal from a decision of Goldring DCJ varying an order made by Solomon DCJ, and be heard, each application together, with the appeal itself. Both applications were heard together. 2 Mrs Bartsch, one of the opponents in each of the applications, was a cleaner by trade specializing in the cleaning of clubs. Each applicant is one of those clubs. She alleges she suffered injury in pursuit of her work owing to the negligence of each of them. Her limitation period against the Gladesville Club expired in August 1990, and against the Edmondson Club in February 1992. By this time, she had not sued either although minded to do so. 3 By a Notice of Motion dated 31 August 1993 she sought an extension of time to sue. That was granted by Solomon DCJ on 11 November 1996, who extended the period in which action may be brought until 11 December 1996. That date came and went without any action issuing. No adequate explanation for the failure was forthcoming. 4 She then filed a second Notice of Motion seeking a further extension of time. This was again heard by Solomon DCJ who granted the further extension until 17 December 1997. His Honour's decision was reversed by the Court of Appeal: see Gladesville RSL Club Limited v Bartsch & Anor 44 NSWLR 674. 5 The reason for the Court of Appeal's decision centres on the meaning of the expression "relevant limitation period" in s.60I.(1)(a) of the Limitation Act. That sub-section is in the following form: 60I.(1) A Court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; 6 In the first motion, the "relevant limitation period" were the periods ending in 1990 and 1992, but in the second motion these "periods" were the periods ending in December 1996. In the factual situation which was before the Court, nothing material to any of the factors listed in s.60I.(1)(a) had occurred between the expiration of the "period" (11 December 1996) and the date of the hearing of the second motion before Solomon DCJ (16 December 1997). It was therefore impossible to make an order under s.60G. 7 However, the Court of Appeal did throw out a lifeline to Mrs Bartsch. Handley JA (with whom Mason P and Stein JA agreed) said: "An order for an extension is interlocutory, and as such may be susceptible of variation where, as a result of some accident, illness, mistake or the like, proceedings are not commenced within the extended period and an application is made promptly for the necessary variation. No such question arises in this case and there is no need to express any view on it." 8 The District Court Rules do make provision for the amendment of interlocutory orders. They are contained in the District Court Rules Part 3 Rule 2, which is in the following form: "2(1) The Court may, by order extend or abridge any time fixed by the rules or by any judgment or order." 9 Thus emboldened, Mrs Bartsch brought another Notice of Motion, this time to vary the order made by Solomon DCJ on 11 November 1996. For the purpose of this Notice of Motion the "relevant limitation periods" were undoubtedly the periods ending in 1990 and 1992. Goldring DCJ acceded to this application, and it is from this decision that leave to appeal is sought. 10 The claimants argue that his Honour had no power to do so. Since he had no inherent power, the source of power could only be Part 3 Rule 2. However, that Rule could not govern the application according to the very able argument addressed to us by Mr Alexis, because it was the evident intention of Parliament that S.60.I of the Limitation Act was a code governing the granting of extensions under the Limitation Act and a rule of court could not legitimately be employed to travel outside that code. Moreover, he submitted, that what Handley JA had said was erroneous. 11 There is great force in these arguments. However, ultimately, I think they should be resisted. In the first place, in modern law it is generally accepted that interlocutory court orders are not set in stone and may be rescinded, altered or varied as required to meet the needs of justice. This would suggest that, unless plainer language were used either in the Act or the Rules, the Limitation Act ought not to be construed as a "no go" area for the purposes of rule 2. 12 Further, if Mr Alexis's argument were acceded to, it would put a litigant in Mrs Bartsch's state in an intolerable position: be her merits ever so great she could not get relief under S.60G (because nothing material happened after the expiration of the "relevant limitation period"), and she could not get relief under the rules because they were inapplicable. 13 For these reasons, I would make the following orders in each application: 1. Leave to appeal granted 2. Appeal dismissed with costs. 14 HODGSON, CJ in Eq: The facts and circumstances giving rise to these applications for leave to appeal are set out in the judgment of Meagher, JA. I agree with the orders proposed by Meagher, JA and with his reasons. However, I would add some further reasons of my own.

WAS GOLDRING, DCJ's ORDER PRECLUDED BY S.60I? 15 As noted by Meagher, JA, Mr. Alexis for Gladesville RSL Club Limited submitted that Goldring, DCJ's order was precluded by the terms of s.60I of the Limitation Act, the relevant part of which is set out in Meagher, JA's judgment. 16 Mr. Alexis submitted that, when the application to vary Solomon, DCJ's order of 11th November 1996 came before Goldring, DCJ, the "expiration of the relevant limitation period" within s.60I was plainly that provided by Solomon, DCJ's order, namely 11th December 1996. Accordingly, the decision in Gladesville RSL Club Limited v. Bartsch (1998) 40 NSWLR 674 was conclusive against any order being made on the application to vary Solomon, DCJ's order, no less than on the fresh application directly dealt with in that case. 17 In my opinion, as stated by Meagher, JA, since the application before Goldring, DCJ was to vary Solomon, DCJ's order, the "relevant limitation period" within s.60I was the period ending in 1990 in one case, and 1992 in the other. 18 This is because what was being sought was the order which should then properly be made on the basis of the Notice of Motion which Solomon, DCJ had dealt with in his order of 11th November 1996, namely the Notice of Motion to extend the periods expiring in 1990 and 1992. 19 Another reason for saying this is that the Notice of Motion to vary sought in effect the vacation of the order of 11th November 1996, which would revert the limitation periods back to those expiring in 1990 and 1992, and the substitution of an order extending the periods to a date later than 11th December 1996. The substituted order could then properly be regarded as based on considerations in relation to which the "relevant limitation period" was that ending in 1990 or 1992. 20 A third reason for this view is that clear words would be required to exclude the power, which courts notoriously have, to amend interlocutory decisions; and there are no such clear words in s.60I.

DISCRETION 21 Argument was also advanced by Mr. Sieb for John Edmondson VC Memorial Club Co-Op Limited, that Goldring, DCJ's exercise of discretion had miscarried. 22 Mr. Sieb submitted that Goldring, DCJ was wrong when he asserted that the variation of the order would cause "absolutely no additional prejudice" to the defendants. As a matter of discretion, the case was not within the words of Handley, JA in the earlier Gladesville RSL Club case, in that the application was not made "promptly" after 11th December 1996. The failure to file the Statement of Claim within the period limited by Goldring, DCJ was raised with the plaintiff's solicitors in February 1997, and yet no action was taken to obtain a further extension of time until December 1997. Furthermore, Goldring, DCJ gave no weight to the cause of problem, the circumstance that it was entirely self-inflicted by the plaintiff. 23 There is considerable force in these submissions. However, while the defendants undoubtedly will suffer prejudice from the orders made by Goldring, DCJ, in the sense that they will face proceedings which otherwise they would not have faced, that in my opinion is not the relevant prejudice for the purpose of the proceedings before Goldring, DCJ. The prejudice which he needed to consider was that suffered by the defendants arising from the failure to file the Statement of Claim within the time limited by Solomon, DCJ's order, that is 11th December 1996, and the filing of such Statement of Claim within the time limited by Goldring, DCJ. In circumstances where both defendants were facing other actions arising out of the same circumstances, and no particular prejudice is suggested in relation to the preparation of the case brought by the respondent, in my opinion Goldring, DCJ was substantially correct when he said that no additional prejudice was suffered by the defendants. 24 In circumstances where the defendants suffered no relevant prejudice, in my opinion the fact that there was no satisfactory explanation of various delays is not conclusive against the exercise of discretion in favour of granting the relief sought. I am not satisfied by Mr. Sieb's arguments that Goldring, DCJ's discretion miscarried, and I would not uphold any challenge to Goldring, DCJ's decision brought on that basis. 25 For those reasons, I concur in the orders proposed by Meagher, JA.

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