Citation : HUGHES -v- ST BARBARA MINES LTD [No 3] [2008] WASC 220

Appeals - Appeal concerning limitation question - Whether appeal should be heard before or after trial

Application for leave to appeal and the substantive appeal be deferred for further consideration, if necessary, after trial

Application for leave to cross­appeal and the substantive cross­appeal be deferred for further consideration, if necessary, after trial

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478

Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

1 JUDGMENT OF THE COURT: The applications for leave to appeal and cross-appeal have been listed in order to decide whether, if leave is granted, the applications in the appeals should be heard before or after the trial of the action between the parties.

2 The appellant's proposed appeal in this case is against the grant of leave by Newnes J, as his Honour then was, to the appellant permitting the amendment of its pleadings. The respondent's proposed cross-appeal is against Newnes J's decision to reserve to the trial judge the date from which the amendments take effect.

3 In short, the appellant contends that the amendments introduced a cause of action which is statute barred. The appellants want the applications for leave and the appeal listed in May, or the application for leave at least listed and determined before the trial of the action which is due to commence on 9 June 2009.

4 The Court is of the opinion that the applications for leave and the appeal and cross-appeal should not be heard until after the trial for these reasons:

(a) If the respondent's claim based on the amendments introduced as a result of the leave granted by Newnes J to dismiss at trial then the appeal and cross-appeal will become moot.

(b) The appellants contend that the cause of action introduced by the amendments is statute barred as Newnes J reserved to the trial Judge the date on which amendments are to take effect. The appellants can still plead and advance a limitation defence as they have foreshadowed. It is undesirable that a limitation question should be decided in advance of the hearing of the action except in the clearest of cases, see Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514.

(c) If the respondent gains judgment after trial based on the amendments to the pleadings allowed, as a result of the grant of leave by Newnes J, then his Honour's interlocutory orders will be orders which have effected the final result. The Court, then, can at that stage entertain the applications for the grant of leave and the appeal against Newnes J's interlocutory orders, see Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [6]. If the trial Judge determines that the amendments should date from a time which gives the appellants a successful limitation defence then the respondent will be able to pursue its application for leave to appeal against Newnes J's order and the trial judge's decision on that point.

(d) The appellants concede that the length of the trial will not be materially increased by reason of the cause of action introduced by the amendment.

(e) The fact that a decision will assist the development of law in Western Australia is not sufficient reason to grant leave at this stage.

5 It follows that the appellant's application for leave to appeal and the substantive appeal and the respondent's application for leave to cross-appeal and the substantive cross-appeal will be deferred for further consideration if necessary after the trial.