Hooker v Gilling

11 Mr Azzi defended the separate pleading of each car assault. He submitted that the Statement of Claim had to be read in totality, rather than singularly (Transcript, 25/5/06, p 42). He also contended he was required by pleading rules to plead each assault singularly as a material fact but that the pleadings should be understood by reference to the intention to rely upon the series of assaults as having given rise to the claimant's injuries (Transcript, 25/5/06, pp 42-43). 12 Mr Azzi did not seek leave before the primary judge to amend the ASC to make clear the claimant's intention to rely upon an injury that was caused by the progressive effect of the car assaults and the other assaults alleged on the claimant.

The primary judgment 13 In delivering judgment, the primary judge referred to Leo N Dunn & Sons Pty Limited v McPhillamy [2000] NSWCA 343 where Mason P (Meagher and Heydon JJA agreeing) observed (at [17], [19]) that Part 5 of the Motor Accidents Act 1988 (which defined "injury" in substantially the same terms as the MAC Act prior to the 2006 amendments) was only directed at the type of accident that occurred at a fixed point of time. She also referred to Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; (2003) 57 NSWLR 636 (at [6]) where Hodgson JA (Meagher JA agreeing), in an obiter remark, accepted that an injury arising from progressive incidents did not fall within the definition of "motor accident" in the MAC Act.

14 The primary judge concluded (at [44]) that the car assault paragraphs sought to recover damages in respect of injuries alleged to have been caused by the opponent's "fault in using and/or fault in operating a motor vehicle as defined in" the MAC Act. It appears tolerably clear that in so doing, her Honour was adhering to the view she had expressed in the course of argument, which found reflection in the passage to which she referred from Dunn v McPhillamy, that the ASC pleaded assaults using a motor vehicle occurring at a fixed point of time. 15 Her Honour added (at [45]) that if she was wrong in concluding that paragraphs 6, 7 and 8(a) alleged injuries caused by a motor accident then: "… a period has elapsed during which Mr Hooker could have made a claim for another tort arising out of the events he alleges in paragraphs 6, 7 and 8 of his amended Claim."

This statement is obscure. I infer it was intended to indicate her Honour had accepted that part of the Notice of Motion which claimed that paragraphs 6, 7 and/or 8 were statute-barred by the provisions of the Limitation Act to which I have referred. 16 Paragraph 8(b) alleged that on 6 May 2002 the opponent abused and threatened the claimant. The primary judge also appears to have concluded (at [46]) in relation to this paragraph that, as more than three years had elapsed from the date of that incident by the time the proceedings were commenced, it was statute-barred, saying: "More than three years has elapsed since 6 May 2002. Mr Hooker does not suggest to this Court that he has made an application to extend the time for lodging his claim against Miss Gilling for her 'assault'." 17 The primary judge struck out the car assault paragraphs (and paragraph 8(b)) and ordered the claimant to pay three quarters of the opponent's costs of the Motion, such costs to be paid at the conclusion of the hearing on the remainder of the ASC.

Submissions on appeal 18 Mr Azzi submitted that the primary judge erred in not considering his argument that in order that there be an "injury" within the meaning of s 3 of the MAC Act, it is necessary that it be caused "during …the driving of the vehicle …".

19 He contended that in order to fall within the definition of "injury", one of the critical elements of the definition of "motor accident" in the MAC Act as it applied at the time the ASC was filed, it was necessary that there be a causal and temporal relationship between the driving of the motor vehicle and the injury from which the victim of the assault was said to be suffering. 20 He submitted that, properly understood, the ASC did not plead the necessary temporal connection but should be understood to plead that the claimant's injuries were the consequence of a progressive series of assaults. He contended the effect of paragraph 16 of the ASC was to attribute the claimant's injuries to the series of incidents pleaded in, among others, the car assault paragraphs. This was said to flow from the fact that paragraph 16 referred to the injuries being a "consequence of" the assaults, not caused "during" them. He also argued that the use of the plural "assaults" in paragraph 16 gave rise to the strong inference that the claimant's case was not based on a several distinct assaults, but upon the combination of assaults. 21 Mr Azzi also sought to rely on Hodgson JA's observation in Westfield Management Ltd & Ors v Directory Factory Outlets Homebush Pty Ltd & Ors [2005] NSWCA 403 (at [30]) to support the proposition that what he contended was his oral explanation before the primary judge of the proper characterisation of the car assault paragraphs was sufficient to make the claimant's case clear and, presumably, ought to have been sufficient to cause her Honour to reject the opponent's Notice of Motion. 22 Finally, Mr Azzi conceded that the pleadings were infelicitous and could have been more "elegantly" framed. He accepted, for example, that the car assault paragraphs could have been pleaded in combination as particulars of an assault in which the motor vehicle was the "weapon". He sought leave to replead the ASC in the event that his primary submission was unsuccessful.

23 Mr J Dupree, who appeared for the opponent, submitted that a plain reading of the ASC indicated that the claimant was pleading injuries arising out of the driving of a motor vehicle at fixed points of time so that each car assault paragraph fell within the definition of "injury" in the MAC Act. He opposed the claimant being given leave to replead without submitting a draft pleading to the Court.

Legislative Framework 24 The MAC Act commenced on 5 October 1999. It applies to accidents which occurred after that date: s 2AA Motor Accidents Act 1988. Chapter 4, in which ss 70, 72, 73, 78 and 108 appear, deals with "Motor Accident Claims". It applies only to and in respect of a claim relating to a "motor accident" occurring after the MAC Act commenced: s 67.

25 The Motor Accidents Compensation Amendment Act 2006 (the "2006 Amending Act") substantially amended Ch 1 of the MAC Act which includes s 3, the definition section, in terms which may cast light on the claimant's principal submission.

26 Prior to the 2006 amendments "claim", "claimant", "injury" and "motor accident" were defined in s 3(1) of the MAC Act as follows: " claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

claimant means a person who makes or is entitled to make a claim … injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, … and injured person means a person who suffers such an injury.

motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death or injury to a person." 27 The definition of "death" was in the same terms as the definition of "injury" from the words "caused by…". 28 The 2006 Amending Act omitted the definition of "death". The definitions of "injury" and "motor accident" were amended to read: " injury means personal or bodily injury and includes: (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

… motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control." 29 The amendments streamlined the definitions by removing duplicity. The concepts of causation and temporal connection were removed from the definition of "injury". The temporal factor was inserted into the definition of "motor accident" which already contained a causation requirement. The concept of "fault" was removed from the definition of "motor accident", but remained in the definition of "claim" which was not amended. The first three, but not the fourth sub-paragraphs of the old definition of "injury" were transposed to the definition of "motor accident. The concept of a defect in a vehicle was inserted into the opening words of the definition of "motor accident". 30 The 2006 Amending Act also inserted a new s 3A into Ch 1 which provides: " 3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control.

… (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents." (emphasis added) 31 The amendments made by the 2006 Amending Act to Ch 1 of the MAC Act do not apply in respect of a motor accident that occurred before they commenced: cl 19, Sch 5, Pt 5 MAC Act. The amendments commenced on 1 October 2006 (Government Gazette No 103 of 18 August 2006, p 6236) and, assuming the ASC pleaded a "motor accident", did not directly apply to it. 32 The Second Reading Speech to the 2006 Amending Act (Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 9 March 2006 at 21400) stated that the new s 3A: "… is intended to clarify that the Act applies to death or injury caused in an accident occurring during the driving of the vehicle, a collision or the vehicle running out of control and not to an injury that arises gradually from a series of incidents." 33 The Explanatory Note to the 2006 Amending Act explained: "The object of this Bill is to amend the Motor Accidents Compensation Act 1999 (the Act) as follows:

(c) to clarify the application of the Act by providing that the Act will only apply to a motor accident injury if the injury is caused during the driving of the vehicle, a collision involving the vehicle or the vehicle's running out of control, and the injury is not one that arises gradually from a series of incidents …

Schedule 1 [5] inserts proposed section[s] 3A … which: (a) make[s] it clear that the Act only applies to a motor accident death or injury caused during the driving of a motor vehicle, a collision involving a motor vehicle or a motor vehicle's running out of control, and does not apply to injury that arises gradually from a series of incidents, and … The clarification referred to in paragraph (a) deals in particular with the issue of a defect in a vehicle causing an accident not during the driving of the vehicle but (for example) as a result of the use of faulty unloading equipment during the unloading of the vehicle. The issue of an injury arising from a series of incidents is typified by an injury caused over a period of time by poor seating in a vehicle, which is an injury caused during the driving of the vehicle but is not caused by a single incident 'accident'." (emphasis added) 34 The inference is tolerably clear that in enacting the 2006 Amending Act, insofar as it amended the definitions to which I have referred, the legislature intended, inter alia, to approve of the interpretation of the pre-amendment definition of "injury" and "motor accident" in cases such as Dunn v McPhillamy and Emad Trolley. Where that inference is available, a court should adhere to that interpretation: Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1974] HCA 2; (1974) 129 CLR 576 at 584; Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 (at 594) per Mason ACJ, Wilson and Dawson JJ.

Consideration 35 A number of decisions of this Court have recognised that in order for the definition of "injury" in either the Motor Accidents Act 1988 or the MAC Act to apply, it is necessary that the plaintiff's injury occur at a fixed point of time. 36 In Dunn v McPhillamy, applying his conclusion that Part 5 of the 1988 Act was only directed at the type of motor vehicle accident that occurred at a fixed point of time, Mason P held that an injury arising out of the nature and conditions of employment of a truck driver caused by his exposure to the repetitive shuddering of the cabin in his prime-mover were not caught by the 1988 Act. In Emad Trolley Pty Ltd v Shigar Hodgson JA, having observed (at [6]) that an injury arising from progressive incidents did not fall within the definition of "motor accident" in the MAC Act, suggested (at [7]) that a similar argument was the basis of the decision in Dunn v McPhillamy although he observed that the relevant provisions of the 1988 Act, "were not quite so clearly tied to the occurrence of a motor accident" as the relevant provisions of the MAC Act. 37 Dunn v McPhillamy and Emad Trolley were applied in Owen v State of New South Wales [2004] NSWCA 165; (2004) 21 MVR 167 by Campbell AJA (Beazley and Ipp JJA agreeing) and in Khaya v Container Terminals Australia Ltd [2005] NSWCA 433 (at [15]) by Giles JA (McClellan CJ at CL and Brownie AJA agreeing). In Owen Campbell AJA said (at [58]) that for an injury to be caught by Pt 5 of the 1988 Act "it must be one which was caused by a motor accident which occurred at a fixed point of time". In Khaya (at [15]) Giles JA followed Dunn, Emad and Owen to conclude (at [15]) that Ch 5 of the MAC Act dealing with damages "is concerned with injury from 'the type of accident that occurs at a fixed point of time'."

38 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 made it clear that the words "a result of and is caused during" in the definition of "injury" in the MAC Act impose a temporal requirement: (at [17] - [18]) per McHugh J; (at [93] - [94]) per Gummow, Hayne and Heydon JJ; see also (at [131]) per Callinan J; see also Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 80 ALJR 688 (at [75] - [76]) per Kirby J; Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234. In other words for an injury to be caught by the MAC Act definition as it stood prior to the 2006 amendments, it was necessary that it be both caused by one of the actions referred to in the definition of "injury", such as the driving of a vehicle (the causation requirement) and be caused "during" the driving of that vehicle (the temporal requirement). 39 This proposition that the MAC Act does not apply to an injury arising from a series of incidents has now been put beyond doubt by the 2006 amendments, in particular s 3A. That section made it clear, in my view, that the 2006 Amending Act was intended to clarify the ambit of the MAC Act. If there was any doubt about that proposition, reference can be made to the Explanatory Note which identified the clarifying purpose of the amendments. 40 Legislation that clarifies the meaning of an earlier Act is usually treated as having retrospective operation (see DC Pearce and R Geddes, Statutory Interpretation in Australia (2006), Australia, LexisNexis at [10.13]). However in this case the legislature has provided that the amendments, including those that clarify the legislation, do not apply to pre-commencement motor accidents. That does not mean, however, that the Court cannot have regard to the 2006 amendments which, in my view, are capable of assisting in the ascertainment of the meaning of the pre-amendment MAC Act.

41 Where a later Act purports to declare the meaning of an earlier Act, the later Act operates directly by its own force: Kirkness (Insp of Taxes) v John Hudson & Co Ltd [1955] AC 696 (at 735) per Lord Reid. Whether or not an Act can be characterised as declaratory is determined in accordance with principles of statutory interpretation: Harding v Commissioner of Stamps (Qld) [1898] AC 769 (at 775). It is also appropriate to take the explanatory notes into account to conclude that a Bill was meant to clarify rather than change the meaning of a word (Dixon v Anti-Discrimination Commissioner of Queensland [2004] QSC 058; [2005] 1 Qd R 33 (at [16] - [17]) per Douglas J) although in the final analysis, the words of the statute have paramount significance: Nominal Defendant v GLG Australia Pty Ltd (at [22]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; (at [82], [84]) per Kirby J.

42 The 2006 Amending Act was, in my view, expressed to be declaratory of the meaning of the MAC Act. As I have earlier noted the amendments to s 3 streamlined, but did not relevantly add any new concept to, the definitions under consideration. The Explanatory Notes made the legislature's intention to clarify the position plain. The MAC Act should be understood, therefore, not to apply, or to have applied, to an injury that arose gradually from a series of incidents. This was the state of the law as exposed by judicial decisions prior to the 2006 Amending Act, and the position has now been given legislative clarification. 43 I would also note that an amending Act can be taken into account in the interpretation of the prior legislation, to avoid a result that would render the amending legislation unnecessary or futile: Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 at 86 per Dixon J; Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 (at 13 - 14) per Gummow J. The rationale of this proposition is that "it is permissible to ascertain the intention of the legislature with regard to prior legislation by reference to amending legislation": Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 (at 254 - 5) per Dawson J; see also Deputy Federal Commissioner of Taxes v Elder's Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610 (at 624 - 626) per Dixon, Evatt and McTiernan JJ. 44 This proposition is not unlimited. It is said to apply when the words of the earlier statute are ambiguous: Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 (at 212) per Lockhart, Burchett & Gummow JJ. And, it should be noted that there may be the difficulties involved in using an amending Act to construe earlier legislation: Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651 (at [52]) per Gleeson CJ, Gummow, Kirby, Hayne JJ. 45 It is not necessary to decide whether the pre-amendment definitions of the MAC Act were ambiguous. It is sufficient, although not essential to the decision in this case, to have regard to the clarification effected by the amendments. The clarifying intention expressed in the Explanatory Note can be discerned in s 3A and in the re-arrangement of the relevant definitions. 46 I would accept, accordingly, Mr Azzi's submission that the MAC Act did not (and does not) apply to a progressive injury claim. I would also accept, albeit with reservation, his submission that that is what the ASC was intended to plead. However, accepting that, the ASC fell lamentably short of the clarity required in a pleading. The ASC pleads each car assault as a separate incident, occurring on or about a fixed point of time. It does not assert that the claimant's injuries were the result of a progressive series of assaults, or one gradually occurring, or that the claimant was suing for one injury caused by the cumulative assaults. It is true that paragraph 16 uses the adjectival phrase "as a consequence", rather than "during", but that is a conventional manner of pleading the injuries relied upon by a plaintiff as having been caused by the wrong pleaded in the substantive part of the originating process. It would accord too great an indulgence to what, on any view of the matter, is a crudely pleaded document, to read paragraph 16 in the manner for which Mr Azzi contended. Only on the most tolerant reading could the ASC be given the meaning for which Mr Azzi contended.

47 In Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517 - 518, Isaacs and Rich JJ said (omitting citations): "Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars ." (emphasis added) 48 Pleadings and particulars define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial and give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. 49 It has been said that these statements emerged from an era "when pleadings were accorded importance and strictness which are no longer appropriate": A V Jennings Ltd v Thomas [2004] NSWCA 309 per Bryson JA, Beazley JA and Palmer J agreeing. It is true that the modern attitude to the pleading of civil causes avoids overly pedantic or rigidly technical rules where they would inhibit the attainment of justice: Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at [139], (3) per Kirby J. Such modern attitudes do not, in my view, detract from the fundamental obligation to plead a case with sufficient clarity that the opposing party, and the court, understand the case being advanced. 50 A statement of claim should contain a summary of the material facts on which the party relies (UCPR 14.7) and must plead any matter which, if not pleaded specifically may take the defendant by surprise: UCPR 14.14. 51 In Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2002) 54 NSWLR 135 (at [20]), after referring to the District Court Rules equivalent to UCPR 14.7 and 14.14, Hodgson JA (Mason P and Handley JA agreeing) said : "20 It might appear that these rules do not require that causes of action be stated in pleadings: the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - (1) 'Material' means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action. 21 Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier [ Konskier v B Goodman Limited [1928] 1 KB 421] as establishing that there is never any requirement to do more than set out facts. Where there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specified causes of action ." (emphasis added). 52 Reference should also be made to Allsop J's judgment in White v Overland [2001] FCA 1333 (at [4]), where his Honour said: "…[B]y way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. … [I]f something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. …. Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false … In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone. " (emphasis added) 53 I would add to Allsop J's observations that legal practitioners also owe duties to the Court including the express obligation to assist the Court to further the over-riding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules to facilitate the "just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005, s 56(1). 54 It is apparent from the transcript that Mr Azzi appreciated the primary judge was approaching the case on the basis of a literal reading of the ASC, with the consequence that she regarded it as pleading an injury occurring at each point in time enumerated in the car assault paragraphs. As is apparent, in my opinion, her Honour's reading of the ASC was entirely understandable. She was not taking either an "overly pedantic or rigidly technical" approach. 55 In my view, once Mr Azzi appreciated her Honour did not accept his submission about reading the ASC "in totality" and, accordingly, did not accept it pleaded a progressive injury claim, it was incumbent upon him to seek leave to amend the ASC to make the progressive injury claim clear.

56 It was suggested during the course of argument that drawing the primary judge's attention to paragraph 16 and the use of the expression "as a consequence" were sufficient both to explain that the claimant's injuries were said to have arisen after, rather than "during" the assaults referred to in the car assault paragraphs and, further, that the compendious reference to "assaults" was sufficient to identify such a claim. That submission should not be accepted. The pleading did not present the claimant's case with reasonable clarity. Even in this Court, the nature of the claimant's case only emerged with any clarity through inquiries from the Court, a point to which I will return. 57 Once her Honour had struck out the relevant paragraphs of the ASC, it was also open to Mr Azzi to seek to amend the Statement of Claim by motion in the District Court. When the Court put this proposition to him, he contended that that course would have been fraught with embarrassment by reason of the decision of the primary judge. For my part, I doubt whether that would be the case. A properly re-pleaded ASC which clearly identified the progressive injury claim and relied upon the authorities which had been drawn to her Honour's attention would, I have no doubt, have received proper consideration from a District Court judge. 58 In my view the primary judge has not been shown to be in error in approaching the case in the manner in which she did. Nevertheless now that the progressive injury claim has been articulated in this Court, it is, in my view, in the interests of justice that the claimant be given leave to amend to plead that case with clarity. 59 It is also necessary to deal with the fact that the primary judge said that in the event she was wrong to conclude the MAC Act applied to the car assault paragraphs, she would also have struck them out as being statute-barred. Her Honour's two conclusions to this effect, which applied only to paragraphs 6,7 and 8, were not, with respect, clearly expressed. Mr Azzi does not appear to have appreciated their significance. He did not address them in his summary of argument in the White Book or in the draft Notice of Appeal and made no reference to them during the oral argument of the appeal. 60 Before the primary judge Mr Azzi appears to have argued that the claimant's cause of action did not accrue until the last element of the tort occurred. He appeared to argue that this was a date in October 2003, when the opponent sent an email which if correct would have brought the claim within the three year limitation period in s 50C of the Limitation Act 1969. Paragraph 11 also pleaded a car assault alleged to have occurred in March 2004, which if it was the last incident intended to be a particular of the progressive injury claim, may also have been sufficient. 61 It appears to me that the primary judge's conclusion that paragraphs 6,7, and 8 were statute barred flowed from her understanding that each pleaded a separate cause of action. If they in truth pleaded a progressive injury claim with the injury only arising at the end of the relevant period then the paragraphs would not have been susceptible to a peremptory strike-out, although they may ultimately be defeated at trial if the evidence shows the cause of action accrued outside the relevant time period. 62 Once the progressive injury claim is understood then, in my view, it is not appropriate to strike out paragraphs of the ASC on the basis they are statute-barred. That issue should be finally determined at trial when the evidence is complete. 63 It should be borne in mind that it is undesirable that limitation questions should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases as, "[g]enerally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question": Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533- 534 per Mason CJ, Dawson, Gaudron and McHugh JJ. 64 I would make the same observation about the opponent's attempt to defeat the car assault paragraphs and paragraph 8(b). The opponent's attempt to strike out these paragraphs was based on the literal reading of the ASC and the proposition that it pleaded injuries occurring at fixed points of time. Once it became apparent that the claimant sought to plead a progressive claim, it became difficult to deal with the matter on a strike-out basis. Whether or not the injury the claimant says he suffered as a result of those incidents occurred "during" or as a consequence of the series of incidents, occurring only after they had taken place, will turn on the evidence at trial.

The White Book 65 It is necessary to make an observation about the claimant's Summary of Argument. Part 51 r 4B of the Supreme Court Rules 1970 requires a claimant seeking leave to appeal to file a summary of argument stating the nature of the claimant's case, the questions involved, briefly the claimant's argument and the reasons why leave should be granted. The claimant's Summary of Argument lamentably failed to meet these requirements. Rather, it contained a series of bald propositions. It contained no reference to the numerous authorities Mr Azzi drew to this Court's attention from which he sought to make good the progressive injury claim. It was of no utility in assisting the Court in understanding the nature of the leave application. When taxed with its deficiencies in the course of argument, Mr Azzi's response was to say that he did not believe written submissions were "required as such". 66 The Summary of Argument sought a concurrent hearing, an order which was made. It is incumbent upon a claimant who seeks a concurrent hearing to prepare a White Book which is suitable for use on the appeal and written submissions corresponding in quality to those expected of an appellant: MacDonald v Martin [2002] NSWCA 178 at [38] per Heydon JA (Hodgson JA and Campbell AJA agreeing). 67 In any event, once the order for concurrent hearing was made it was incumbent upon the claimant's legal representatives to review the White Book and the submissions in it to ensure that, if necessary, they be supplemented in a manner, and by a time, which is not prejudicial to the opponent (MacDonald v Martin at [38]) and, I would add, in a manner which was of utility to the Court. 68 I would also note that the draft Notice of Appeal in the White Book did not identify the orders sought. This should be rectified before order 2 below is complied with.

Orders 69 The question of the costs of the application has occasioned me some difficulty. The claimant has succeeded but only because of considerable indulgence on the part of the Court. However the opponent understood before the primary judge, in my view, that the MAC Act did not apply to a claim based on a progressive injury (Transcript, 25/5/06 at pp 47 - 48). While, as Allsop J said in White v Overland, the opponent's legal representatives did not owe any duty to the claimant, they, too, owed a duty to the Court to ensure it discharged its functions in accordance with the overriding purpose. As I have indicated the progressive injury claim sufficiently emerged from the oral argument below and, if it was not appreciated during the hearing of the Motion, having regard to the presumed absence of transcript, should have emerged when the opponent's legal representatives reviewed the transcript in preparation for the hearing of the appeal. Commonsense at least indicates, one might have hoped, that the parties could have avoided the costs of the appeal if sensible steps had been taken to ensure that that case was reflected in the pleadings. 70 In those circumstances, my preliminary view is that each party should bear his and her own costs of the leave application and the appeal. I would, however, grant either party leave to apply with written submissions within seven days of judgment if either seeks a variation of this order. 71 I propose the following orders:

2. Notice of Appeal to be filed within fourteen days.

4. Set aside the orders made by O'Toole DCJ on 26 May 2006 striking out paragraphs 6, 7, 8, 10 and 11 of the Amended Statement of Claim.

5. Grant the claimant leave to amend the Amended Statement of Claim to plead the progressive injury claim.

6. Each party to pay his and her own costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 72 BASTEN JA: I agree with McColl JA.

01/05/2007 - the word "open" should be "opening" - Paragraph(s) para 29

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