MEALING v CHAND

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1037/02 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40611/02 DC 1037/02 MEAGHER ACJ HANDLEY JA YOUNG CJ in EQ

21 July 2003 WILLIAM MEALING v P CHAND T/as FASTFIX

LIMITATION OF ACTIONS - procedure - extension of limitation period may be granted after proceedings commenced

A worker, who was injured at work, commenced common law proceedings after the three year limitation period had expired. The worker later applied for an extension of the limitation period under s 151D(2) of the Workers Compensation Act.

HELD: Under s 151D(2) an extension of the limitation period could be granted after proceedings had been commenced to validate those proceedings.

(1) Leave to appeal granted subject to the notice of appeal being filed within 14 days if it has not already been filed;

(4) In lieu thereof order that leave be granted to the appellant to commence proceedings against the respondent on the statement of claim filed in the District Court on 26 November 2001;

(5) The respondent to pay the appellant's costs of the appeal, and of the motion in the District Court, but have a certificate under the Suitors Fund Act if qualified for the costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40611/02 DC 1037/02 MEAGHER ACJ HANDLEY JA YOUNG CJ in EQ

21 July 2003 WILLIAM MEALING v P CHAND T/as FASTFIX

2 HANDLEY JA: This is an application for leave to appeal from a decision of Ainslie Wallace DCJ given on 3 July 2002. The case arises under s 151D of the Workers Compensation Act.

3 The claimant was injured while working for the opponent in the course of his employment on 5 March 1996. He did not commence proceedings against his employer to enforce the common law cause of action he asserts until a statement of claim was filed in the District Court on 26 November 2001. Section 151D(2) of the Workers' Compensation Act provides: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer and liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the Court in which the proceedings are to be taken".

4 The statement of claim was filed outside the three year limitation period and without the prior leave of the Court. However on 26 February 2002 the claimant filed a notice of motion seeking an extension of the limitation period.

5 The notice of motion was dismissed by her Honour on 3 July 2002. She was satisfied on the merits but held that she did not have power to grant leave nunc pro tunc, that is with retrospective effect.

6 The claimant submits through Mr Hall QC that the Court did have power to extend the limitation period on the notice of motion and to make an order having retrospective effect to validate the commencement of proceedings on 26 November 2001.

7 The case is a proper one for the grant of leave to appeal. The parties have been fully heard and there is no need for the matter to be adjourned for a further hearing.

8 At the outset of course s 151D(2) must be construed. It is a limitation provision which requires proceedings to enforce a worker's common law cause of action for damages for negligence against his employer to be brought within three years or thereafter with the leave of the Court. If this section was prescriptive in its operation so that a time-barred cause of action was extinguished, it would have a substantive, and not merely a procedural, operation. However the general principle established in England in the first half of the nineteenth century and followed ever since is that limitation legislation which merely bars the action or the remedy, but does not expressly extinguish the cause of action or the right, is procedural in its operation.

9 The earliest statutory provisions, at least to my knowledge, that barred actions unless they were brought with the leave of the Court, were in Company and Bankruptcy legislation which imposed such a bar following the making of a winding-up order or a sequestration order. For nearly a hundred and fifty years, with very few and presently disfavoured exceptions, Courts have construed the bar in such legislation as procedural and the power to grant leave to bring proceedings as also procedural. This analysis supports the established view that under such legislation leave may be granted having retrospective effect, or as it is said in Latin, nunc pro tunc. Thus in Re Sydney Formworks Pty Limited [1965] NSWLR 646 leave to bring proceedings against the company in liquidation was granted in respect of existing proceedings after the six year limitation period had expired when new proceedings would have been statute-barred, and there was no provision for the limitation period to be extended. If s 151D(2) is construed, as I consider it should be, as a limitation provision with a procedural operation, which does not extinguish the worker's cause of action or right, then the appellant had a cause of action when he commenced these proceedings and the procedural bar imposed by the limitation provision was susceptible of removal by a subsequent order granting leave with retrospective effect.

10 Mr Ellicott QC for the respondent submitted than an order granting leave nunc pro tunc to commence proceedings out of time would have the effect of creating a new right. However this would only be true if s 151D(2) not only barred the remedy but extinguished the right, but that is not how provisions such as 151D(2) have hitherto been construed.

11 The Court was invited to depart from a number of its prior decisions including Dandashli v Dandashli 6 December 1996 unreported, Jol v State of New South Wales (1998) 45 NSWLR 283, Atikulla v Sefton (2001) NSWLR 574, and Whisprun Pty Ltd v Sams (2002) NSWCA 394 unreported.

12 The decision in Dandashli v Dandashli on s 52(4) of the Motor Accidents Act has been followed or cited with approval in a number of cases and was followed in Atikulla v Sefton in relation to the same section, although it had been amended in the meantime. Dandashli v Dandashli was also cited with approval in Jol v State of New South Wales and was applied to s 151D(2) in Whisprun Pty Ltd v Sams.

13 Mr Ellicott QC relied on a number of decisions in this State and elsewhere in which a different construction has been put on other legislation and Courts have held that orders nunc pro tunc with retrospective effect cannot be made.

14 To the extent to which those decisions directly conflict with the decisions in this Court, in my judgment this Court should adhere to its own decisions leaving it to the High Court to intervene if so advised. However a number of the decisions to which we have referred are in my judgment distinguishable.

15 In the first category are those cases where the statute in terms required the order granting leave to commence proceedings out of time to be made before a certain date. The clearest example is Clarke v Bailey (1993) 30 NSWLR 556. The decision of the Full Court of the Supreme Court of Western Australia in Bingham v England (1996) 17 WAR 226 is in the same category. That was a decision on s 7(2)(c) of the Fatal Accidents Act 1959 (WA). Kennedy ACJ at 233-4 makes it clear that the decision was based on the interpretation of that section. He followed the decision in Stevens v Motor Vehicle Insurance Trust (1978) WAR 232, where Burt CJ said that the section limited the power of the Court to grant leave to the six year period and when that expired the cause of action was extinguished and the Court had no power to resuscitate it.

16 Ipp J's decision was to the same effect, and at p 244 his Honour said that s 7(2)(c) prohibited a Court from granting leave after the expiration of the limitation period of six years. In other words the order had to be made within the six year period.

17 The other case to which I need to refer is National Mutual Fire Insurance v Commonwealth of Australia (1981) 1 NSWLR 400, a decision on s 6 of the Law Reform Miscellaneous Provisions Act 1946. The decision has not been followed in the Australian Capital Territory and the Northern Territory, and was disapproved or limited to its own statute in Emanuele v Australian Securities Commission (1997) 188 CLR 114. See per Toohey J at 129 and Kirby J at 148.

18 Finally I should say something about Mr Ellicott's reliance on Maxwell v Murphy (1956) 96 CLR 261. In my judgment that case, in so far as it depended upon the construction of the amending legislation, is not directly relevant, but in so far as it involved the construction of the Compensation to Relatives Act, the majority of the High Court made it clear that the twelve months limitation provision was prescriptive and an integral part of the new right created by the statute. See per Dixon CJ at pp 268-9, Williams J at 274, and Kitto and Taylor JJ at 292.

19 For those reasons I would propose the following orders:

(1) Leave to appeal granted subject to the notice of appeal being filed within 14 days if it has not already been filed;

(4) In lieu thereof order that leave be granted to the appellant to commence proceedings against the respondent on the statement of claim filed in the District Court on 26 November 2001;

(5) The respondent to pay the appellant's costs of the appeal, and of the motion in the District Court, but have a certificate under the Suitors Fund Act if qualified for the costs of the appeal.

20 YOUNG CJ IN EQ: I agree but will just add some brief comments of my own. The question is to divine the legislative intentions in the light of the words used in s 151D of the Workers' Compensation Act 1987.

21 It is clear that in the line of cases decided under the Companies Acts or Bankruptcy Acts, cases such as Emanuele v Australian Securities Commission (1997) 188 CLR 114, including the cases referred to therein with approval such as Re Sydney Formworks Pty Ltd [1965] NSWR 646 that words in statutes such as: "No proceedings shall be commenced unless leave is given" have been consistently considered as still permitting the Court to grant leave nunc pro tunc.

22 Mr Ellicott QC has sought to distinguish this line of cases on the ground that they were cases where the Court was exercising some supervisory jurisdiction. This may well be so, but I do not, with respect, consider that that factor is sufficient to distinguish that line of cases or a reason not to interpret the words in the current statute in the same way as that line of precedent.

23 Mr Ellicott also submits that in the present statute, once the three year period has expired, what the Court is doing is really creating or re-creating a right rather than the situation that occurs in some of the bankruptcy and company cases. He submits that in the absence a very clear language, the Court does not so create or re-create rights by a nunc pro tunc order. In my view in the light of the precedents the words here are sufficiently clear.

24 Mr Ellicott has also cited to us a number of interstate Full Court decisions. I do not consider that these decisions lay down any different rule of principle which conflicts with the way in which this Court has dealt with matters. Indeed those cases deal with different statutory provisions.

25 Thus I agree with the orders proposed by Handley JA.

26 MEAGHER ACJ: The orders of the Court therefore are the orders proposed by Handley JA.

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