Procedural Complications of this Case
10 This matter came before both the District Court and this Court in close to total procedural disarray. The only court process that had been filed on Mr Spence's behalf in the court below was the Statement of Claim, and a Notice of Motion filed on 13 March 2008. The Notice of Motion sought an order that "time be extended in" the bringing of the proceedings. That was not the type of decision that Mr Spence's counsel sought orally when the Notice of Motion came on for hearing. The decision he sought from the judge was, rather, that the proceedings had (already) been brought within time, because Mr Spence had had a period of disability that occurred after he turned 18, and that that had the effect that the running of the limitation period was suspended past Mr Spence's 18th birthday, so that the filing of the Statement of Claim was within time. If that was right, no question of extending the limitation period arose. An extension of a limitation period under a provision such as section 60G Limitation Act is an exercise of judicial discretion. As MW Campbell AJA pointed out in State of New South Wales v Bennie [2005] NSWCA 172 at [12], when the argument is that a claim has been brought within time because the plaintiff was under a disability, "No question of discretionary extension by leave arises."
11 No order was made in the court below for separate determination of any question about whether the limitation period had been suspended for long enough for the claim to have been brought in time. No defence had been filed, so no issues had been defined through the pleadings.
12 Early in the second day of the hearing the judge drew the attention of counsel for Mr Spence to the inadequacy of his Notice of Motion, and said, "Really you want an order that the plaintiff was under a disability". Counsel orally sought leave "just simply to add the words that time be extended because of the plaintiff's disability". That was consented to, and the judge gave leave to make that amendment. The amendment was never made. In any event, for the reasons I have given, it does not raise the real issue.
13 Further, there was no judgment or order that gave effect to the substance of the conclusion that the judge reached, namely that Mr Spence had suffered disability, after attaining the age of 18, for a sufficient period for his action to have been brought within the limitation period. The only order that the judge made was an order that Mr Spence pay the defendants' costs of the motion (presumably, the motion seeking an extension of time).
14 Mr Guthrie and the Trustees each filed, in this Court, a Summons Seeking Leave to Appeal. Each sought leave to appeal from the "whole of the decision below". Mr Spence has not sought leave to appeal from the costs order.
15 Under section 127 District Court Act 1973, the only person with standing to appeal from the District Court to the Supreme Court is "A party who is dissatisfied with a Judge's or a Judicial Registrar's judgment or order in an action …". Thus, the existence of a "judgment or order in an action" is an essential prerequisite for the existence of a right of appeal to the Supreme Court. When there was no relevant judgment or order in the court below, it follows that, at the time the two applications for leave to appeal were filed, each was incompetent.
16 There are several ways in which the question of whether a limitation period had been suspended by reason of the plaintiff's disability could be litigated. If a defendant had pleaded a limitation defence, and the plaintiff in reply had pleaded suspension of the limitation period by reason of disability for a sufficient period of time, the issue so arising could be litigated, along with all other issues in the case, at the final hearing. Alternatively, if a defendant had filed a defence alleging that the proceedings were out of time, the question of whether the plaintiff had been under disability for a sufficient period of time to result in the proceedings having been brought within time could be litigated on a defendant's motion for summary judgment. A disadvantage of proceeding by motion for summary judgment is that if it failed, and the defendant continued to wish to press the limitation question, that limitation question would be re-litigated at the final hearing. Alternatively, the court could make an order under Uniform Civil Procedure Rule 28.2 for separate determination of a question about the whether the limitation period was suspended for a sufficient period of time. The relevant provisions of the rules concerning separate determination are:
" 28.1 Definition
In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
28.2 Order for decision
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
28.3 Record of decision
If any question is decided under this Part, the court must, subject to rule 28.4, either:
(a) cause the decision to be recorded, or
(b) give or make such judgment or order as the nature of the case requires."
17 Those rules permit the making of an order for separate determination of a question even before a defence has been filed, if the parties so agree, or if the judge directs that the question be tried. (These possibilities might not exhaust the scope of "or otherwise" in UCPR 28.1.) Courts commonly choose the procedural frame of a separate determination of a question as the means for litigating, in advance of a trial, a question about whether the plaintiff has been under a disability (eg Kotulski v Attard [1981] 1 NSWLR 115 at 116; State of New South Wales v Harlum [2007] NSWCA 120 at [5]).
18 When any court is engaged in activity that amounts in substance to considering a separate question, it is most important that the question be precisely formulated, and actually answered. For the reasons given in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 358-60 [52]-[59] it is important that there be precision, at the time of framing the question, in identifying the relevant facts or the means by which facts relevant to answering the question are to be ascertained.
19 A decision of a District Court judge following the determination of a separate question can constitute a "judgment or order" for the purpose of section 127 District Court Act: Damjanovic v Sharpe Hume & Co (Services) Pty Ltd [2001] NSWCA 130 at [7]. There is no occasion to decide whether, if a District Court judge were to give an explicit answer to a separate question, but not embody it in an order, any right of appeal would exist. However, it can be said that if the answer is given in the form of an order, the potential for appealing or seeking leave to appeal concerning that answer will be clearly established on the Court's record. For that reason it is at the least prudent for the answer to a separate question to be embodied in an order.
20 The transcript of the hearing in the court below and the judge's reasons for judgment demonstrate that, in substance, the parties have litigated, and the judge has decided, a question about whether the limitation period was suspended for a sufficient time to enable the action to have been brought in time.
21 At least in the present case, where the answer to the separate question that has been given does not determine the entire action, the answer to the question is an interlocutory decision, and so an appeal against it can be brought only by leave of this Court: section 127(2)(a) District Court Act; Bass v Permanent Trustee Co Ltd at 359-60 [57]; Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [50], cf Damjanovic at [7].
22 When the procedural inadequacies of the proceedings were brought to the parties' attention on the hearing of the appeal, all parties wished this Court to take such steps as were open to it to enable the substance of the applications for leave to appeal to be decided. They have agreed, after conclusion of the hearing, on a form of words that captures the substance of the question that the judge was deciding. It is clear beyond argument that the basis on which the judge decided the question was through the hearing and tender of evidence, not on the basis of either agreed or assumed facts.
23 That left outstanding whether there was any way in which the incompetence of the applications for leave to appeal could be overcome. Clearly, if a way could be found of regularising the proceedings, common sense and section 56(1) Civil Procedure Act 2005 each demanded its adoption.
24 Pursuant to section 75A(1) and (6) Supreme Court Act 1970, in any appeal to this Court from the District Court, this Court has (subject to some presently irrelevant exceptions) all the powers and duties of the District Court. Pursuant to section 75A(10), this Court is empowered to make any order or give any direction which ought to have been given or made, or which the nature of the case requires. Extensive though the powers under section 75A are, they only apply in "an appeal to the Court", and thus cannot be used to overcome a purported application for leave to appeal being incompetent because there is no judgment or order to appeal from.
25 Section 140(1) Civil Procedure Act enables this Court, of its own motion or on application by any party to proceedings before the District Court, to order that the District Court proceedings be transferred to the Supreme Court.
26 Section 63 Civil Procedure Act provides, so far as relevant:
" Directions with respect to procedural irregularities
(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.
(2) Such a failure:
(a) is to be treated as an irregularity, and
(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.
(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):
…
(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally."
27 The powers under section 140 and section 63 Civil Procedure Act must each be exercised in accordance with section 56 Civil Procedure Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
28 Because these are proceedings for personal injury, this Court must be satisfied that the amount which the plaintiff is likely to receive, if successful, exceeds the jurisdictional limit of the District Court or that there is "other sufficient reason" for hearing the proceedings in the Supreme Court: section 140(3)(b). Although some might think the provision envisages that the whole proceeding will be disposed of in this Court, in the event of transfer, it is not in terms so limited and no such limitation should be implied: Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 421. The matters set out above constitute sufficient reason for such an order, although it is appropriate that, when the issues sought to be raised by way of appeal have been disposed of, the matter should be remitted to the District Court.
29 In all these circumstances, the appropriate steps for this Court to take are: