Court of Appeal (WA)|2001-12-13|Before: Mr J, Murray J, Scott J, Steytler J, Parker J, Einfeld AJ

Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402 (13 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MATHESON -v- COMMISSIONER OF MAIN ROADS & ANOR [2001] WASCA 402

Limitation of actions - Appeal against refusal of extension of time to issue writ claiming damages for personal injuries against public authorities - Validity of writ issued without leave - Whether order granting leave can be made retrospectively or nunc pro tunc - Whether declaration validating writ already issued can be made - Criteria for grant of leave discussed - Principles governing exercise of discretion

First Respondent (First Defendant) : Mr T Lampropoulos

Second Respondent (Second Defendant) : Mr J C W Skinner

First Respondent (First Defendant) : Blake Dawson Waldron

Bestobell Overseas Ltd v Carden [1988] VicRp 80; [1988] VR 891

Black v City of South Melbourne [1963] VicRp 7; [1963] VR 34

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

City of Gosnells v Roberts (1991) 74 LGRA 1

Clarke v Bailey (1993) 30 NSWLR 536

Commissioner for Railways (Victoria) v Casaccio [1961] VicRp 24; [1961] VR 157

Commissioner of Main Roads v Highway Construction Pty Ltd [2001] WASCA 158

Culum v The Board of Management of Sir Charles Gairdner Hospital (1993) 9 SR(WA) 76

Cumalkous v Western Australian Government Railways Commission, unreported; FCt ScCt of WA; Library No 950525; 15 September 1995

Electric Light & Power Supply Corp Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554

Hambley v Shire of Plantagenet (1994) 12 SR(WA) 262

Hodge v Shire of Swan, unreported; District Ct of WA (Blaxell DCJ); Library No 5180; 6 December 1996

Irwin v Board of Management of Royal Perth Hospital (1994) 1 SR(WA) 140

Jumeau v Water Authority of Western Australia (1994) 11 SR(WA) 293

Kelly v Minister for Education (1987) 4 SR(WA) 6

Mantova v Western Australian Government Railways Commission (2000) 23 SR(WA) 236

Marshall v Western Australia Government Railways Commission (1994) 1 SR(WA) 148

Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983

National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400

National Telephone Line v Postmaster General [1913] AC 546

Neale v Minister for Education (1994) 11 SR(WA) 307

Palamore Pty Ltd v Shire of Broome [1998] WASCA 32

Perkins v Abel [1962] WAR 83

Posner v Roberts [1986] WAR 1

Pyrennes Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Re Keystone Knitting Mills' Trademark [1929] 1 Ch 92

State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 91 LGERA 138

Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179

Wardley Australia Ltd v WA (1992) 174 CLR 514

2 The appellant was born on 6 March 1976. On 17 October 1994, when he was a young man of 18 years of age, he was studying at a TAFE campus towards an Associate Diploma of Business Management. The TAFE college is situated in Lefroy Road, Beaconsfield, adjacent to the South Fremantle Senior High School. At about 3.45 pm on 17 October 1994 the appellant commenced to walk across Lefroy Road. At that point the speed limit was 60 kph. As he crossed the road he was struck by a motor vehicle driven by a Ms La Macchia. The appellant says he has expert evidence available, presumably by way of reconstruction from marks at the scene of the collision, which would show that the speed of Ms La Macchia's vehicle at the time of the collision was about 50 kph.

3 The appellant was seriously injured in the accident. He was for some time in the intensive care unit at Sir Charles Gairdner Hospital. He suffered broken bones in his right leg, the repair of which involved quite extensive surgical procedures and other medical management and there were back injuries. Most seriously, however, he suffered head injuries which involved cerebral swelling and loss of consciousness for about two weeks immediately following the accident. He was quite obviously gravely ill. He has been left with permanent disabilities. It is said that he has been unable to return to his studies and he works now as a porter. He suffers what appear to be permanent social and other disabilities.

4 In about October 1995 he consulted solicitors for advice as to whether he might have had any claim for damages for the personal injuries he sustained. The advice he was given, which he initially accepted, was that he had no arguable claim for damages. It is not clear to me whether that advice was in terms that he had no arguable claim against any person or entity, or whether consideration was specifically being given to proceedings against the driver of the motor vehicle. But in any event, nothing more seems to have happened until by early 1997 it appeared to the appellant that the expected improvement in the condition of his lower back and leg was not occurring. Indeed he says his disabilities were getting worse. Therefore, on about 24 April 1997, he instructed his present solicitors.

5 It is unnecessary for present purposes to go to the legislative framework by which what follows was put in place, but there are certain facts about Lefroy Road itself at the point where the accident occurred, which should be mentioned. In 1989 and 1990 at least, the administration of the High School had been expressing concern about the need to introduce traffic control measures in Lefroy Road to reduce the speed of traffic in the vicinity of the school. They raised their concerns with officers of the second respondent because the road is a local road under its care and management. The first respondent, however, would become involved if any of the measures to be introduced involved road signs, particularly signs designed to modify the application of the blanket urban speed zone of 60 kph which applied to this particular road.

6 In 1989 and 1990 it appears that some steps were taken by the second respondent. Median islands linked by white hatching were installed to assist pedestrians crossing the road. Other measures may have been introduced to alter the nature of the road itself. So far as speed control signs were concerned, if particular conditions were thought to require some special sign, for a local road of this character the procedure is and has been that the responsible local government may request the first respondent to introduce such signs and if it thinks it to be desirable to do so the first respondent will exercise its statutory powers to erect such signs as may be thought to be required.

7 At the beginning of 1997, the law was changed to enable school zones to be established. Where introduced, such zones have a speed limit of 40 kph on school days between 7.30 am and 9 am and 2.30 pm and 4 pm. The obvious purpose is to reduce traffic speed in the vicinity of schools, both primary and secondary schools, to improve the safety of students on or near the roads adjacent to schools. As I understand it, that programme involves no particular consideration of whether the reduction in speed would be otherwise required having regard to the nature of particular roads. The determinative factor is that the road is in the vicinity of a school. In any event, the appropriate signs were erected and the zone was introduced on 8 May 1998 to cover the particular area of Lefroy Road where the appellant was injured. Certainly by then there had not been any investigation by the second respondent and/or by the first respondent at the request of the second respondent, of traffic volume and speed on the relevant portion of Lefroy Road. Nor by that time had any such investigation been carried out to analyse pedestrian movements and density in the particular area.

8 As to that, the evidence adduced by affidavit before us for the first respondent is that the initiative for such investigations on a local road of this kind would necessarily be the responsibility of the second respondent. The second respondent says that it would be prejudiced if sued by the appellant because, not having conducted any such investigations at about the time of the accident, it could not now do so and it would be deprived of the capacity to lead evidence of the result of such investigations for the purpose of establishing that it was not reasonably required to act further than it did in 1989 and 1990 to protect pedestrians crossing Lefroy Road.

9 I have mentioned that the appellant instructed his present solicitors in April 1997 and that the school zone, with its 40 kph speed limit, was introduced about a year later in May 1998. No legal proceedings were instituted until the appellant commenced an action by a writ issued out of the District Court against Ms La Macchia on 30 April 1999. We are not told when the appellant's solicitors became aware that the expert they had consulted would say that the defendant's motor vehicle was travelling at about 50 kph. But the statement of claim upon which the action against the driver is based alleges negligence particularised as failing to keep a proper lookout, "travelling at an excessive speed in the circumstances", failing to warn of the approach of the motor vehicle and failing to break, swerve or otherwise manage the vehicle so as to avoid the collision. Counsel for the appellant told us that it was feared that the defendant in that action might have a defence in that she was driving within the speed limit applicable at the time, but for myself, I would not think that a case where a motor vehicle has come into collision with a pedestrian would be fatally flawed by this circumstance if the facts may otherwise establish negligence on the part of the driver of the motor vehicle.

10 We are not told what evidence is available to the appellant in prosecuting that action, which would appear to be virtually ready for trial. But I note that the defendant driver administered to the appellant a great number of interrogatories concerning the circumstances in which the accident occurred, to all of which the appellant answered that he could not recall the fact sought to be elicited. It would appear that his only recollection of what occurred is that he was crossing Lefroy Road to get to a bus stop on the other side.

11 The appellant's solicitors engaged an investigator in the course of their preparations and by a letter dated 17 April 2000, he informed the solicitors, for the first time they say, that 40 kph signs had been erected in Lefroy Road on 8 May 1998. I accept that that was the first that the solicitors knew of this lower speed limit. It is not made clear whether they had by then been advised of the availability of expert evidence to establish, as the appellant asserts it may, that the speed of the vehicle was about 50 kph at the point of collision.

12 However, the fact of the existence of the school zone and the evidence about the speed of the vehicle were both certainly known when the brief in the District Court action was delivered to counsel on 26 September 2000. Although we are not told in what terms the brief was provided, it appears that counsel immediately advised that action be taken against the present respondents. But of course each is a "person" within the meaning of the Limitation Act 1935 (WA), s 47A(4)(a) and each would be sued in respect of neglect or default in the execution of a public duty or authority, within s 47A(1), so as to make the case one which would fall under that section. They were to be provided with written notification of the proposed action and that was in fact done on 27 September 2000. It was and is proposed that the respondents would be sued in negligence and for breach of statutory duty in respect of the failure not only to introduce a 40 kph speed limit, but also for their failure to take other measures for traffic control and to facilitate the movement of pedestrians from one side of Lefroy Road to the other.

13 Those causes of action for damages for the personal injuries suffered by the appellant accrued upon the occurrence of the accident on 17 October 1994. It is sufficient to rely upon a passage from the judgment of Wilson J in Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at 245 where his Honour said:

"The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage."

The same may of course be said in respect of an action for breach of statutory duty.

14 That being the case, s 47A(1) provides that "no action shall be brought" in respect of any such matter unless the action is commenced within a year from the date on which the cause of action accrued, ie by no later than 16 October 1995. This is not a case where the neglect or default which would be said to constitute negligence or breach of statutory duty is in any sense relevant for the purposes of s 47A, a continuing one so as to prevent a cause of action accruing on 17 October 1994 and to prevent time commencing to run in respect of the limitation period imposed by that section. I note therefore that the capacity to stop the limitation period running is dependent upon when the action "is commenced".

15 The respondents, having been given notice some 20 days before the expiration of the period of six years from the date upon which the cause of action accrued, might have given their respective written consents to the bringing of an action against them by the appellant under s 47A(2), but they did not do so and therefore if the action was to be instituted, it had to be by leave sought pursuant to s 47A(3). By subs(3)(c), 14 days notice of that application and of the grounds on which it is to be made are to be given to the prospective defendant. In this case that requirement was not complied with, the originating summons by which the application was made apparently not being filed and served until 12 October 2000, a mere four days before the six-year period was due to expire.

16 No point was taken about this and the cooperation of the District Court was also obtained to have the application dealt with expeditiously. The summons was returned before Wisbey DCJ and heard by him on 16 October 2000, the very last day available to bring the action by leave. In the event, for reasons which his Honour then gave ex tempore, the application for leave to commence an action in which the two respondents would be sued for negligence and breach of statutory duty was dismissed. Nonetheless, despite the fact that leave had not been obtained, a writ was lodged and issued out of the District Court on 16 October 2000, to which was annexed a statement of claim in terms precisely similar to those foreshadowed in the application for leave.

17 Section 47A(3) provides:

"(a) Notwithstanding the foregoing provisions of this section, application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) of this section has been given to the prospective defendant.

(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may, if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.

(c) ..."

18 The case for the appellant before Wisbey J and before this Court was naturally required to address the three issues raised by s 47A(3)(b) -

1. Was the delay in bringing the action occasioned by mistake or any other reasonable cause?

2. Alternatively, was it established that either prospective defendant was not materially prejudiced in his defence or otherwise by the delay?

3. If either of the above preconditions for the exercise of the Court's discretion was established, would it be just to grant leave to bring the action, with or without conditions?

This Court was constituted as a bench of five when leave was granted to bring the appeal on 20 March 2001 because the Court might be required to review and possibly decline to follow previous decisions of this Court. In the end, as will appear, in my opinion, to take such a course will be neither necessary nor desirable.

19 Wisbey J found that there was no mistake or other reasonable cause for the delay that had occurred. His Honour considered that nothing more was established than that the appellant took advice generally, which he accepted, and no consideration was given to the proposed actions until ultimately counsel's advice was received. His Honour could see no evidence which would support a conclusion that there was any reasonable cause for the very considerable delay which had occurred at a number of points. Upon the evidence before him, which has indeed been reinforced by affidavit evidence adduced before us by leave of the Court when leave to appeal was granted, his Honour thought that:

"... there must necessarily be prejudice to both of the prospective defendants in any event. I say that having regard to the fact that there must necessarily be changed vehicular and pedestrian traffic conditions since 1994, that the capacity to investigate and determine those matters with any degree of precision is now necessarily lost to each of the defendants, that the recollection of Ms La Macchia as to matters which would necessarily be critical to addressing the evidence proposed to be led by the expert must have waned with the passage of time and the delay being as extreme as it is, is such that it necessarily speaks of prejudice to each of the proposed defendants."

20 In any event, his Honour said that had he found either precondition for the grant of leave to be established, he would not have exercised his discretion to do so. His Honour noted that the action against Ms La Macchia would involve dealing with many of the factual issues which would be raised by the proposed litigation against the respondents and he had regard to the merits of the proposed causes of action against each of the prospective defendants which, in his Honour's view, were "speculative in the extreme". His Honour could see nothing to indicate that, looking at the issue from the point of view of the proposed plaintiff, the justice of the case supported the making of an order granting leave. Indeed his Honour thought the justice of the case precluded taking that course.

21 In this appeal his Honour's decision is challenged at every point. It is contended that he erred in not concluding that the delay was occasioned by mistake or other reasonable cause, that he erred in not concluding that the respondents were not materially prejudiced and that, in any event, his Honour erred in the exercise of his discretion because the lateness of the application of itself was irrelevant to that question and because it is said he took into account an irrelevant consideration in considering the appellant's prospects of success in the District Court action which was on foot against the driver of the car. Before turning to those matters, however, it is necessary to give consideration to some questions which arise in respect of the competence of the appeal.

Does s 47A limit the time for making the application for leave or does it limit the time within which the action may be brought?

22 The appellant, admittedly by way of a fall-back argument, submits that the former is the correct interpretation of the section. Put shortly, the argument is that s 47A(3)(a), which applies "notwithstanding the foregoing provisions of this section", allows an application "for leave to bring an action at any time before the expiration of six years ...". The appellant submits that it is the capacity to bring the application which is qualified by the six-year period. If the application is made within that period, time simply ceases to run so that the application may be heard at the convenience of the parties and the Court, determined and the action brought by leave granted outside the period of six years.

23 That construction of the provision must be correct, the appellant submits, because otherwise his cause of action might be extinguished not only by his own delay but also by an incapacity of the appropriate court to deal with the matter with sufficient expedition, including an inability to deal with it on appeal by the exercise of a right of appeal conferred by statute, in this case the District Court of Western Australia Act 1969 (WA), s 79, within the time allowed. The appellant asserts that a construction which would have the effect of preserving a right of appeal is to be preferred to one which would have the effect of rendering it nugatory.

24 Such arguments have been put to this Court before and they have not been accepted. Section 47A imposes a special limitation of action. In common with all other provisions of the Limitation Act, including particularly the general provisions of s 38, the crucial act which must be performed within the limitation period is the commencement of proceedings in pursuit of an accrued cause of action. So it is that s 47A(1) provides simply that "no action shall be brought ..." unless within the terms of the section. In common with the other provisions of the Limitation Act, a failure to bring the action within the period allowed effectively extinguishes the cause of action, not substantively, but by an absolute procedural bar. The potential harshness of that consequence upon a dilatory plaintiff is alleviated to an extent by the capacity to grant leave, subject to the action being brought within the further period which may be allowed.

25 In my opinion, the wording of subs (3)(a) clearly means that if leave is granted, it may in terms of the section allow the plaintiff "to bring an action at any time before the expiration of six years from the date on which the cause of action accrued". That remains, in terms of limitation, the operative event. The provision, in my view, reflects a clear statutory policy that after that period, the justice of every case will be best served by not permitting a dilatory plaintiff to ventilate a cause of action against a prospective defendant, no matter what merits his case may be seen objectively to possess. It is at that point that potential injustice to a plaintiff is by the statute outweighed by the interests of the prospective defendant not to be further exposed to the expense and inconvenience of defending an action and not to be exposed to the liability which might arise.

26 So far as this Court is concerned, the earliest case to which we were taken in which this issue arose was Stevens v MVIT [1978] WAR 232, 234 per Burt CJ, with whom Jones and Smith JJ agreed. The case concerned the proper interpretation of s 7(2)(c) of the Fatal Accidents Act 1959, the terms of which are materially identical with s 47A(3)(a). The case is, in my view, not distinguishable from this simply because it deals with the Fatal Accidents Act, s 7, the proper interpretation of which was held to be that the cause of action provided by the Act was substantively extinguished by the expiration of the limitation period, because the incapacity to bring an action under the statute for a cause of action created by the statute must have that effect. As I have said, the provisions of the two statutes in respect of the grant of leave are the same.

27 Stevens was applied by Master Bredmeyer in Stanko v Canning City Council (1992) 7 WAR 542 at 546 in respect of the relevant provision of s 47A. The Full Court declined to follow Stanko in Baker v Shire of Albany (1994) 14 WAR 46, but not on this point.

28 The view of s 47A which, in my opinion, is supported by those cases, is also necessarily inherent in the reasons of Anderson J, with whom Wallwork and Owen JJ agreed, in Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348, 355, although that case was in part at least concerned with the Local Government Act 1960 (WA), s 660(2) which was somewhat differently worded. It provided that on failure to commence an action against a local government (as such an instrumentality would now be called) within the period of one year after the cause of action arose, "application may be made at any time before the expiration of six years from the date on which the cause of action arose to a Judge for leave to commence the action" and if the Judge considered, having regard to matters of the same kind as those set out in s 47A(3)(b), that leave should be granted, the Judge may "grant leave to bring the action ...". Such a wording might have provided more scope for an argument of the kind presented here, but in my opinion, as I have indicated, the somewhat different wording of s 47A(3)(a) is sufficient to preclude the argument in this case.

29 Finally, reference must be made to the recent decision of Bingham v England (1996) 17 WAR 226, another case on the Fatal Accidents Act 1959 (WA), s 7(2)(c) and therefore in my opinion, a decision directly in point in this case. The facts of the case as to the procedural steps taken were not dissimilar to this in that there had been an unsuccessful application for leave which had been dismissed, the writ had been issued without leave in any event and the matter came before this Court on appeal against the refusal of the grant of leave. I shall return to this decision shortly, but for the moment it is sufficient to say that at 234, Kennedy J noted the argument presently under consideration and noted that it had been rejected in Stevens, which, for his Honour, disposed of the point. With that judgment Ipp J agreed.

30 In my respectful view, the conclusion expressed in the decisions that I have discussed correctly interprets s 47A(3)(a) in this regard and the argument of the appellant cannot be accepted.

Under the section, could the appellant now have any remedy?

31 The appellant argues that if it is the case, as I would hold, that s 47A(3) operates to allow leave to be granted for the action to be brought within the period of six years and if its appeal may succeed on the merits of the issues it raises as to the application of s 47A(3)(b), then its capacity to appeal to have the order of the District Court refusing leave set aside may be preserved in effective form if this Court may utilise the power which it would have on appeal to make an order for leave nunc pro tunc.

32 Procedurally, the means by which that would be done would be to utilise the Rules of the Supreme Court 1971 (WA), O 42 r 2 which provides:

"(1) A judgment or order of the Court takes effect from the day of its date.

(2) Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day."

Necessarily implicit in the operation of the rule is the conclusion that if the order is backdated, its operative effect would, although the order might in terms speak prospectively, be retrospective from the earlier date.

33 What is required, counsel argues, is that this Court make an order that the appellant have leave to bring the action against the respondents in terms of the minute of proposed statement of claim filed in the District Court on 12 October 2000 when the application for leave was made and that order should be backdated, either to the date of that application on 12 October 2000, or at least to 16 October 2000, the last day upon which the action might be brought within the six-year period and the day upon which the District Court heard the application and made its order refusing leave.

34 The appellant now recognises that a further step would appear to be required if an order granting leave made nunc pro tunc to take effect from say 16 October 2000, is nonetheless a grant of leave on the date when made and an action could not now be commenced because it would be statute-barred as having been commenced more than six years after the cause of action accrued. Then the appellant argues that this Court should make a declaration that the writ and statement of claim indorsed upon it, issued out of the District Court on 16 October 2000, the statement of claim being in materially the same form as the minute attached to the application for leave, is not a nullity. That would have the effect, it is argued, of preserving the appellant's substantive rights in connection with his successful appeal by allowing the writ so issued to operate as a valid exercise of the grant of leave backdated to 16 October 2000, even though when issued it was, or it might be argued to be, a nullity because it was without leave when leave was required.

35 Again, it is recognised that to take those procedural steps would be apparently contrary to a number of earlier decisions of this Court which we are urged to distinguish or, if necessary, decline to follow. In my opinion, this course is not open to us. Not only do I think it would represent a grave departure from the law as it has long been understood, but in truth it seems to me that what we are invited to do is to interpret the relevant statutory provisions in a way which is not open, whether or not there was decided authority on the point, and to add to that a declaration that a writ which is in law a nullity was validly issued.

**May the grant of leave be done in a form which is nunc pro tunc?**

36 It follows from the authorities already considered that if leave is to be granted it must be granted prospectively. It must be granted "to bring an action", whichever part of s 47A(3) is under consideration. In my opinion it would be extraordinary under those circumstances that by using an inherent power, which the Court no doubt possesses generally, to backdate its orders nunc pro tunc, or by using the power expressly provided in that regard by the Rules of Court, leave could be granted in a form which effectively subverted the legislative intent expressed in s 47A.

37 It is the Court's duty to apply the law as the statute clearly lays it down. It is not a matter of interpreting the legislation so as to avoid the implied repeal of the right of appeal (albeit with leave). The simple fact is that the period of six years having expired, the legislation operates in such a way as to preclude the grant of leave. On that view the appellant's action was statute-barred on 16 October 2000. This Court can do nothing. Although leave to appeal was granted, in my opinion the appeal may not be allowed and the orders sought may not be made, simply having regard to the statutory scheme provided by s 47A. There is no implied repeal of the appellant's rights of appeal but the exercise of those rights cannot avail him.

38 Bonotto is a case directly in point in my opinion, although concerned with s 660 of the Local Government Act. It was held of that equivalent provision that the power to grant leave could not be used to ratify or retrospectively approve an action already begun without leave. It applied only to the power to grant leave to commence an action which was not yet commenced and it was held by Anderson J, with the agreement of Wallwork and Owen JJ, that in those circumstances questions as to the effect of orders made nunc pro tunc do not arise. Whatever date the order was made to operate from, it could only in terms operate prospectively to give leave to bring an action anew, not to give leave to commence an action which had already been commenced before leave was given. His Honour's reasoning having been squarely based upon the wording of the section which is materially the same as that contained in s 47A(3), I can see no basis to decline to follow that decision.

39 Next, in Bingham, decided two years later, the majority, Kennedy ACJ, with the agreement of Ipp J, having extensively reviewed earlier authorities in this and other Australian jurisdictions, came to the same view. As Kennedy ACJ said at 239, this Court should follow decisions of the Court of Appeal in New South Wales and of the Full Court of Victoria. To do otherwise, his Honour said, "would be to take to the Court a power which the legislation does not contemplate, and which, it appears to me, is inconsistent with it". I can only add my respectful agreement.

40 His Honour then turned expressly to the question presented in that case and this, but not in earlier decisions; whether it made a difference that the application for leave had been dismissed and an appeal was now taken from it. His Honour said that the suggestion that that justified an order nunc pro tunc was:

"... not entirely unattractive, but I am not persuaded that it should be adopted when the power to grant leave is one which has been said to be exercised prospectively. The proceedings here were commenced without leave. The six year period would undoubtedly have expired by the time of any order allowing the appeal, notwithstanding any expedition which might reasonably have been directed, even had the appellants lodged their appeal prior to the expiration of that period, which they did not. If I be wrong as to there being no power to make an order nunc pro tunc, I would, in any event, decline to exercise the power in circumstances where the application for leave was brought on for hearing only one working day before the expiration of the limitation period, although some months after the application had been filed and there being no explanation for the delay."

The parallels between the two cases are not complete but they are undeniable and those observations have force, in my opinion, in this case.

41 A consistent view was taken in rather different circumstances in Morgan v Banning (1999) 20 WAR 474. In that case the writ had been issued in time, an indorsement of claim struck out, and leave granted to amend as from the date of the order because the Master considered it would not be just to backdate the amendment to the date of the issue of the writ, having regard to the delay for which the appellant was responsible. The effect, as the Master noted, would be to expose the appellant to a limitation defence because the amendment of the indorsement would occur out of time. In that case, but not in this, the relation back rule, the rule in Weldon v Neal (1887) 19 QBD 394, arose for consideration. Essentially, however, for present purposes, the Court took the view that if the effect of the amendment was to add an additional cause of action, the new action would be time-barred by reason of the effect of the relevant provision of s 38 of the Limitation Act - see per Wheeler J, with whom Ipp J agreed, at 483 where her Honour said:

"Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule of 'relation back' or otherwise."

In separate reasons Owen J expressed the same point of view at 476.

42 The point did not arise in the next case to which we were referred: Hughes v Minister for Health [1999] WASCA 131; 20 August 1999 because in that case, as Malcolm CJ noted at par [30], it was conceded that "no point was taken regarding the grant of leave to commence fresh causes of action by way of amendment to the statement of claim which would involve an impermissible retrospective grant of leave.", citing Bonotto, Baker and Bingham.

43 The appellant placed reliance particularly upon the observations of Wheeler J in Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; 24 April 2001. That also was a case which came before this Court constituted as a bench of five Judges. The points at issue in the case were quite different from those raised by this case. They were concerned with the effect of amendments to workers' compensation legislation upon the workers' capacity to pursue an action for damages at common law. Again the Court was invited to decline to follow a previous majority decision of the Court. The principal judgment was that delivered by Parker J with which Malcolm CJ agreed, delivering supplementary reasons of his own. Pidgeon, Owen and Wheeler JJ also agreed. Wheeler J in her turn delivered supplementary reasons on the question which arose concerning whether the Court would continue to follow or would overrule or depart from its previous decision.

44 In the course of his reasons, Parker J at par [52] observed (and Wheeler J expressed her agreement with the proposition at par [86]) that if on a successful appeal to this Court, the Court made an order granting leave to commence proceedings when that had previously been refused by the District Court, that would, under the relevant statutory provisions, operate as a grant of leave by the District Court, but only operative as from the date upon which the order was made and dated as an order of the Full Court. Wheeler J, at par [93] - [95] went on to observe, however, that the effective date of operation of the grant of leave might be different in a case where the order was antedated, if such a power existed and it was proper to exercise it. Nothing said by her Honour in that case detracted in any way from her Honour's judgment in Morgan.

45 In conclusion, before turning briefly (because it is strictly unnecessary to do so at all), to the merits of the appeal, I would summarise my views upon the question of the proper interpretation of s 47A and the related question whether the appellant now has any remedy available to him which may be ventilated on the appeal, in the following way. I would see no reason to overrrule or decline to follow any of the relevant authorities and those which I have discussed above which appear to me to be in point are not, in my opinion, readily or at all distinguishable upon any ground. It is therefore my opinion that the ordinary and natural meaning of s 47A is that if leave is to be granted it must be granted prospectively. No question of backdating the grant of leave or making the order nunc pro tunc can arise because no matter what date leave was granted from, the clear purpose and intention of the legislation is that what may then be done with leave is the bringing of the action and the writ would then need to issue or the other appropriate proceedings would need to be instituted. If by that time the six-year period has expired, then no grant of leave may be effectively made because the action has become statute-barred upon the expiry of the six-year period.

46 It follows necessarily that no remedy could be provided in a case such as this by backdating the grant of leave and making an order which purported to validate the commencement of proceedings already invalidly commenced without leave by the use of process which is therefore a nullity, devoid of legal effect. The Court will not, indeed could not lawfully, make an order validating ex post facto process of that kind because such an order would necessarily proceed upon the basis that the process which is its subject was a nullity by reason of the operation of s 47A. In those circumstances the Court is frankly asked by a litigant who seeks such an order to make it for the purpose of subverting the operation of the law.

Was the delay caused or occasioned by mistake or other reasonable cause?

47 It is clear from the way s 47A(3)(b) is constructed that in a case such as this, the whole period up to the point where it was sought to bring the action and the delay in seeking to do so is to be considered. A precondition for the exercise of the Court's discretion to grant leave may be that when the causes of that delay are examined, they may be characterised as mistake or any other reasonable cause. Mistake of itself qualifies as a reasonable cause. In Hughes at par [42], Malcolm CJ gave to the word "mistake" its ordinary meaning and referred to a mistake of fact or of mixed law and fact.

48 In my opinion, there is no evidence that the delay in this case was in any part caused by any mistake. The failure to bring an action against the present respondents is not attributed to any mistake or misunderstanding of any facts or circumstances surrounding the occurrence of the accident and bearing upon the capacity to maintain a cause of action against either or both respondents and nor indeed is there any suggestion that anybody misunderstood the law or gave wrong advice of that kind. There is simply nothing to show that the prospect of suing these respondents was even considered until years later when counsel was briefed.

49 In Hughes at par [43], Malcolm CJ accepted the view which had been earlier adopted by the Court in Stevens at 235 and which was derived from the decision of Sholl J in Quinlivan v Portland Harbour Trust [1963] VicRp 5; [1963] VR 25 at 28, that a "reasonable cause" is a cause which a reasonable person would regard as sufficient, "a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man". In my opinion, the difficulty for the appellant in that regard is that there are very substantial periods in the period of overall delay in relation to which there is simply no explanation at all or no reasonable explanation for the delay in question.

50 No doubt it may be reasonably said that having suffered the injuries in question on 17 October 1994 and having delayed while the full extent of the injuries and disabilities projected into the future became more known, until advice was sought in October 1995, it was reasonable to accept the advice then given. But the appellant did not in fact finally accept the advice because as his injuries and disabilities failed to improve and indeed as they became worse, he consulted his present solicitors in April 1997, by now two and a half years after the accident occurred. No doubt the merits of his case were then placed under investigation, but no action was commenced until two years later, by which time the reduction in the speed limit had been in place for a year.

51 It would appear that the only possible explanation for the failure then to seek to sue these respondents was that nobody thought of it and, in my view, there is no persuasive explanation consistent with a reasonable standard of conduct by the appellant or his legal advisers to satisfactorily explain and constitute reasonable cause for the failure to take action at least by April 2000 when, if it was thought to be a particularly significant fact, the reduction in the speed limit was first discovered, or why no action was taken before September 2000, when counsel was finally briefed. In my opinion, mistake or reasonable cause for the delay has not been established and the view of Wisbey J about that cannot be said not to have been open to him.

Was it established that the prospective defendants were not materially prejudiced in their defence or otherwise by the delay?

52 In Baker, this Court confirmed the view expressed in Stevens that the way in which the section was formulated meant that the ultimate burden to establish the absence of material prejudice lay upon the prospective plaintiff. However, it was accepted that the issue would not need to be specifically addressed unless the evidence raised the question that material prejudice might exist. That might be put in terms that the prospective defendant is regarded as carrying an initial evidentiary onus to raise the question, but once the evidence reached that stage, the ultimate onus to displace the inference of material prejudice would rest upon the prospective plaintiff: see per Kennedy J at 56.

53 His Honour then continued with remarks concerning this issue in the context of the facts of that case which seem to me to be apposite in the context of the facts of this case as they were initially established by the findings of Wisbey J and particularly with the elaboration of the evidence provided by the affidavit material directed towards establishing the nature of the prejudice, filed on behalf of both respondents by leave granted by this Court upon the grant of leave to appeal. Kennedy J said:

"Unquestionably, the respondent would be faced with an extraordinarily difficult task if it had to commence investigations six years after the event in a case where the allegation is that the viewing rails were slippery and that some parts were in need of repair at the time, nothing having been done earlier to draw its attention to the matter."

54 Here the allegation is that by the failure to reduce the speed limit and the failure to otherwise deal with the nature of the road and the surrounding circumstances, the appellant was unreasonably exposed to risk of injury when crossing the road. Wisbey J was persuaded that neither respondent could now marshal evidence bearing upon those questions by survey or proper investigation and in my respectful opinion, the evidence, as I have reviewed it, bears that out if for no other reason than that at the relevant time in the afternoon, the lower limit applicable to the school zone would be in force. Further, it would be very difficult to measure traffic density and the like and relate that back to 1994.

55 I would conclude that the appeal could not in any event succeed because the appellant may not persuade this Court that the view of Wisbey J that neither precondition for the exercise of the discretion to grant leave was made out, is in error. In any event, as has been seen, his Honour went on to say that in the circumstances of this case, had he been persuaded to a contrary view, he would not have thought it appropriate to exercise his discretion in favour of the plaintiff. Indeed, as I have said, his Honour took the view that the justice of the case positively favoured the refusal to grant leave rather than the making of an order in favour of the appellant. In this also it seems to me that the appellant would fail because it cannot, I think, be said that the conclusion of the

trial Judge that the circumstances were not such as to justify the exercise of discretion in favour of the prospective plaintiff, involved error.

56 In considering that question, matters bearing upon the establishment of the statutory preconditions will continue to be relevant. For example, the question of material prejudice to the prospective defendant will continue to have a bearing upon the question whether or not the discretion should be exercised in favour of the prospective plaintiff: see Bingham per Kennedy J at 232. In addition, such matters as the strength of the cause of action and the question whether the prospective plaintiff would be materially prejudiced by an incapacity to pursue it will continue to be relevant.

57 To my mind, nothing appears from the evidence to show that the action as it would be brought against these respondents would have a strength or a likelihood of success of any particular note or substantially better than the prospects of success in the action against the driver of the motor vehicle. It is not, therefore, as if the appellant is left without any capacity to pursue a claim for damages in respect of the personal injuries he sustained. On the other hand, there is, as I would think has been established, undoubted prejudice to the respondents in their exposure to the claim in the circumstances of the case after this length of time.

58 In my opinion, for the above reasons, this appeal should be dismissed.

59 SCOTT J: I have had the opportunity of reading in draft the reasons for decision to be published by Murray J. I agree with his Honour's reasons and the conclusions that he reaches. I am not persuaded that Wisbey DCJ has made any error in his reasons and I would also dismiss the appeal.

60 STEYTLER J: I have read, in draft, the reasons for decision to be published by the Hon Justice Murray. I agree with them and with his Honour's conclusions.

61 PARKER J: I have had the advantage of reading the reasons for decision now published by Murray J with which I am in substantial agreement. I agree, therefore, that the appeal should be dismissed.

62 EINFELD AJ: I agree with the reasons for judgment of Justice Murray and with the order proposed.

Government Act 1960(WA)

Court of Western Australia Act 1969

Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (124 paragraphs)

Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402 (13 December 2001)

Does s 47A limit the time for making the application for leave or does it limit the time within which the action may be brought?

Under the section, could the appellant now have any remedy?

**May the grant of leave be done in a form which is nunc pro tunc?**

Was the delay caused or occasioned by mistake or other reasonable cause?

Was it established that the prospective defendants were not materially prejudiced in their defence or otherwise by the delay?

Parties

Legislation Cited (3)

Cases Cited (15)