Reid v AGCO Australia Ltd [2000] VSC 363

Supreme Court of Victoria|2000-09-12|Before: ASHLEY, J.

The plaintiff, by summons filed 26 July 2000 seeks the following relief: that the Court extend the time prescribed by s.36(1) of the Limitation of Actions Act 1936 (SA) so as to permit him to bring the within proceeding upon such terms (if any) as the justice of the case may require.

The proceeding was commenced by writ filed on 17 December 1999. The plaintiff, Eric Reid, claims damages for personal injuries sustained by him in an accident which occurred on 9 March 1994. The defendants are AGCO Australia Ltd., then his employer, Robert and Thelda Nominees Pty. Ltd. (a contractor employed by the first defendant), and Michael Dean (the driver of a vehicle provided by the contractor).

It was common ground before me that the subject matter of the proceeding is governed by the provisions of the Limitation of Actions Act 1936 (SA) (the Act). That is so by virtue of s.5 of the Choice of Law (Limitation Periods) Act 1993, as well as by the operation of the recent decision of the High Court in John Pfeiffer Pty. Ltd. v. Rogerson [2000] HCA 36; (2000) 74 ALJR 1109. The decision of the High Court in McKain v. R.W. Miller & Company (South Australia) Pty. Limited [1991] HCA 56; (1991) 174 CLR 1 could not, after the commencement of the 1993 Victorian Act, have anything to say about the situation.

The relevant limitation provision is s.36(1) of the Act. It provides that:

"All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after."

It was implicit in the submissions made by all counsel that the cause of action accrued on 9 March 1994.

The plaintiff, by the present application, seeks relief under s.48 of the Act. It was common ground before me that this Court has jurisdiction to decide whether the plaintiff is entitled to such relief in a proceeding issued out of this Court.

"(1) Subject to this section, where an Act ... limits the time for - (a) instituting an action ... a court may extend the time so ... limited to such an extent, and upon such terms (if any) as the justice of the case may require. (3) This section does not - ... (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied - (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; ... and that in all the circumstances of the case it is just to grant the extension of time. (4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section. (5) Proceedings under this section may be determined by the court at any time before or after the issue of pleadings."

The writ by which this proceeding was commenced was not endorsed in accordance with subs.(4). That circumstance founded an argument to which I must later refer.

Facts Material to the Plaintiff's Case: The Law and its Application

According to the plaintiff's contention the material facts were that:

"The plaintiff ascertained in November 1999 that he was unemployed having lost his job with CSN Australia Ltd. and having no alternative employment."

Further according to the plaintiff, it followed that, the proceeding having been commenced in December 1999, the circumstances fitted both the second limb of the disjunctive qualification set out in s.48(3)(b)(i) as well as the conjunctive requirement imposed by the last portion of that paragraph.

The meaning of the phrase "facts material to the plaintiff's case" in s.48(3) of the Act has been decided by the High Court: Sola Optical Australia Pty. Ltd. v. Mills [1987] HCA 57; (1987) 163 CLR 628 at 634-636:

"It is helpful, in undertaking the task of construction of s.48, to have in mind the model provided by the innovative legislation in this field enacted by the Parliament of the United Kingdom in the Limitation Act 1963 ('the 1963 Act'). Section 1 of that Act provided that the period of three years prescribed by the Limitation Act 1939 (U.K.) for bringing a personal injuries action based on negligence, other breach of duty or nuisance (hereinafter collectively referred to as 'negligence') shall not afford any defence to such an action provided, inter alia, that it was proved that the material facts relating to the cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which satisfied the time prescriptions in the section. Section 7 was an interpretation section which, inter alia, elaborated in some detail the meaning that was to be given to 'material facts', 'facts of a decisive character' and 'knowledge (actual or constructive) of a person'."

"It is quite clear that the South Australian legislature preferred a simpler model to that contained in the 1963 Act. No doubt the broad purpose of the Act was substantially the same, namely, to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced. Section 48(1) confers, subject to the section, a general and unfettered power upon a court to extend the time prescribed by any Act (including the Limitation of Actions Act 1936 itself) or piece of subordinate legislation for instituting an action, or for doing any act in an action or with a view to instituting an action. The wide general power so conferred is limited by sub-s. (3). That sub-section denies to a court the power to extend the time within which an action may be instituted unless it is satisfied of the existence of the circumstances set out in either para.(i) or (ii). The contrast between the matters described in para. (i) and the 1963 Act is significant. The former is not limited to material facts which relate to a cause of action and satisfy the exhaustive enumeration in s.7 of the 1963 Act. The subject-matter of para. (i) is facts which are material to the plaintiff's case, with no attempt to provide any definition of the categories to which such facts must conform. The reference to the plaintiff's case supplies a broader canvas than the reference in the 1963 Act to the cause of action. Unlike the 1963 Act, there is no requirement that the material facts be of a decisive character, no reference to constructive knowledge, no obligation to have used due diligence in seeking to discover at an earlier time the facts in question and no mention of seeking appropriate advice. The effect of the paragraph was described by Bray CJ in Napolitano ((1977) 15 SASR at p.569) in words which we are glad to adopt:

'A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases may not be of great significance, has left all the rest to the discretion of the court.'

In our opinion the Full Court was correct in overruling Cakebread and Raison. There is no warrant for writing into the Act a further qualification that, to attract the operation of s.48(3)(b)(I), there must be some interaction between the material fact and the plaintiff's decision to sue. It is materiality to the plaintiff's case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff's mind would complicate the court's task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case."

It is necessary to keep very firmly in mind, when considering the fate of this application, the particular language of the South Australian legislation. The qualifying provision (presently putting the residual discretion to one side) is very different to that which has existed from time to time in this State. The relative ease with which the qualifying provision can be accessed is demonstrated by Sola Optical, and as well by other authorities to which I was referred: Lovett v. Le Gall (1975) 10 SASR 479; Napolitano v. Coyle (1977) 15 SASR 559; Wright v. Donatelli [1995] SASC 5291; (1995) 65 SASR 307 particularly per Cox, J. at 310; Fersch v. Power and Water Authority & Ors. [1990] NTSC 30; (1990) 101 FLR 78 (the first of these cases concerned an earlier version of the South Australian legislation and the last of them concerned the Limitation Act of the Northern Territory. In neither case was the legislation pertinently different to that which is presently relevant).

Judgments in the authorities cited have not always welcomed the apparent ease with which the central requirements of the qualifying provision can be accessed. A theme is evident that any injustice can be set right in the exercise of the residual discretion. See, for example Napolitano at 569 per Bray CJ; Sola Optical at 637 and in the Full Court of the Supreme Court of South Australia (1987) 46 SASR 364 at 370 per King CJ, White J at 375 and 379-380; Wright at 310-311 per Perry J and at 321 per Lander J.; and Fersch at paras. 28-29 and 32-34 per Asche CJ. On the other hand, it may fairly be said that in the authorities to which I was referred, and in others to which I referred in the course of my reasons, the actual exercise of the discretion has not matched the rhetoric. Of course, each case depends upon its own facts.

The state of the material before me concerning the matter relied upon by the plaintiff was as follows:

The plaintiff by his affidavit sworn 21 August 2000 deposes that his then employer, CSN Pty. Ltd., closed down its factory and warehouse in Geelong (where he had his employment) in November 1999, that he then lost his employment, and that he had not been able to undertake employment since.

Peter Whitty, by his affidavit sworn 1 September 2000 and filed on behalf of the first defendant deposes (by reference to contact with CSN) that "the plaintiff ... would have been first advised of the proposed closure of the operations ... in Victoria in or about February 1999 ... (the plaintiff) took a redundancy package having declined an offer by the company to accept a position with it interstate."

Maryrose Raniolo, by her affidavit sworn 1 September 2000, filed on behalf of the second and third defendants, deposes (again by reference to contact with CSN) that the plaintiff was informed by letter dated 13 August 1999 that the Geelong branch of that employer's business was closing on 12 November 1999; but that the plaintiff knew of this fact "many months before" the letter of 13 August 1999.

The letter of 13 August 1999, exhibited to Ms Raniolo's affidavit, having referred to the closing date of 12 November 1999, in part said this:

"I am aware that you are unable to relocate to Dalby and unfortunately this means your last day with CSN Pty. Ltd. will be on 12 November 1999. I have given you three months notice before your tenure ends in order that you may be able to find alternative employment whilst still employed at CSN Pty. Ltd."

The plaintiff's affidavit sworn 21 August 2000, to which I referred a few moments ago, does not recite that he unsuccessfully looked for work in the period August to November 1999; simply that he has not been able to undertake employment since. I am not prepared to infer that he did look for work in the period of notice. But the two medical reports exhibited to his affidavit reveal very plainly the extent of his disability, and the improbability of his being able to hold down regular employment when he lost a job for which he was apparently suited.

I have already referred to what the plaintiff's counsel contended were the material facts. For the first defendant it was conceded that redundancy of the plaintiff's position with CSN was a material fact. But, counsel submitted, that fact was "ascertained" by the plaintiff in February 1999 - that is, when the plaintiff "would have been" first informed of the proposed closure of the Victorian operation. For the second and third defendants, counsel submitted that the plaintiff knew by at least 13 August of his employer's intention to close the Geelong branch of its business. So it could not be said that the occurrence in November of the forewarned event was of sufficient importance to be likely to have a bearing on the case.

The plaintiff by his statement of claim makes a claim for lost earnings, and for loss of earning capacity. He alleges an incapacity for work, and likely inability to return to work in the foreseeable future. It is clear that, in assessing his claim to earnings loss to date of trial, regard would have to be had to employments held and earnings received. Of course the plaintiff would have to show that periods in which he received no earnings were causally linked with injuries attributable to the negligence of one or more of the defendants. But that does not gainsay the relevance and materiality of identification of periods of employment and receipt of earnings; and, conversely, identification of the time or times when employment ceased and earnings ended.

It seems to me clear, in the event, that the fact of job loss in 1999, and the date on which it occurred, are facts material to the plaintiff's case within the statute. The short judgment of Angel J in Fersch, with which Rice J agreed, in my respectful opinion describes the situation accurately. It is true that in that case the information that employment was to end and the fact of its ending were apparently closely related in time. But that is not a point of distinction. Assuming that the plaintiff was informed in early 1999 that his employer was going to close down its Geelong operation, it does not follow that he then "ascertained" the material fact of his cessation of employment and earnings in November 1999. Nor was that material fact "ascertained" by his being given notice three months in advance - a matter that can be simply tested by considering the way in which the plaintiff must have presented his case had it come to trial in, say, September 1999.

What I have said does not deny that the intimation that the plaintiff's employment was to end might not, independently of that event happening, have been a material fact within the statute. It simply means that more than one material fact can be discerned in the chain of events which culminated in job loss and actual loss of earnings.

Subject to one matter - and putting the exercise of discretion to one side - it follows from what I have said that the plaintiff has satisfied the qualifying provision. The matter is this: section 48(3)(b)(i) requires the court to be satisfied that the action was instituted within 12 months after the ascertainment of "the material facts". There is a 12 months window within which a plaintiff must act. It starts when the material facts are ascertained. It ends when the action is instituted.

That takes me to subs.(4). Pertinently it provides that "the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section".

In this case the proceeding was commenced by writ. It was not suggested that the process was inappropriate. But the writ was not endorsed with the required statement; and it has not yet been so endorsed. Nor was anything alleged in the statement of claim concerning s.48 - as to which see Wright, supra, at 311-312 per Lander J, and Robinson v. Craven (1994) ATR 81-315 at 61, 865 per King CJ.

Counsel for the plaintiff submitted the requirement that process be endorsed as required by s.s.(4) was not in itself a limitation law. It was not within the 1993 Victorian Act or the statement of principle in Pfeiffer. The requirement should be regarded as procedural and capable of amendment. No violence would be done to the operation of subs.(4) if the court permitted endorsement of the writ prior to its making an order under subs.(1). Subsection (4) simply requires that the process be endorsed. Process must be endorsed at the date when application for extension of time is made; but the sub-section does not oblige endorsement at the time when the action is instituted.

Counsel for the second and third defendants led the contrary argument. He submitted that "endorsement is mandatory and the writ must be treated as a nullity or as ineffective until it is so endorsed." Further to that submission he argued that, for several reasons, the requirement imposed by subs.(4) is a matter of substantive law, not procedure. He submitted that at the least any amendment which I permitted would have to be prospective; it could not be expressed to operate nor could it operate as from the date when process were filed in December 1999.

Counsel for the first defendant did not address s.48(4) in his written outline of submissions. In oral submissions he scarcely addressed the point at the outset - indicating only that if I accepted the submissions of counsel for the second and third defendants, but otherwise accepted the plaintiff's case, his client would abide (that is, in new proceedings) my conclusion favourable to the plaintiff. But later on he submitted that the reference in s.48(3)(b)(i) to "the action ... instituted within 12 months" should be read as a reference to an action instituted in accordance with the requirements of the section; and that in those circumstances the writ should be treated as a nullity.

Despite protestations to the contrary, I do not doubt that the main point of the submissions made for the defendants was this: that if the court accepted their submissions that any material facts were ascertained by the plaintiff in early 1999, or at least by August 1999, then if the writ was a nullity, or "ineffective" until endorsed, and if it was not open to me to grant leave to endorse it, any window that may have been open to the plaintiff was now closed.

If (as I have concluded) material facts were not ascertained by the plaintiff until November 1999, the outcome of the s.48(4) debate could not be of decisive importance. At worst for the plaintiff it would be necessary for him to discontinue the present action and forthwith commence a new proceeding, the process being suitably endorsed. With that in mind, I intimated my likely conclusion upon the material facts issue so that all counsel might consider their client's respective positions in connection with the s.48(4) argument. In the event, counsel for the plaintiff reiterated his previously stated position, as did counsel for the second and third defendants. No doubt each had his reasons - more likely than not an eye to what might happen upon appeal from my decision. Counsel for the first defendant, on the other hand, appeared to be concerned to find a practical means of resolving the matter; but to no avail.

It is regrettable that, in light of the apparent importance of the issue, the competing arguments were not much developed. In part, no doubt, that is because - as my own researches have confirmed - there is no South Australian authority which has considered the matter squarely. But it is not a sufficient explanation.

That said, I have reached the conclusion - presently putting to one side one of the submissions made by plaintiff's counsel - that it is open to the plaintiff to seek leave to amend the writ to add the statement to which s.48(4) refers; and for the court to grant such leave. The South Australian Rules of Court contain a general power to permit amendment, quite apart from the inherent jurisdiction of a judge of a superior court either to permit amendment or to order that a party have leave to take a particular step nunc pro tunc. This is not, I should add, a case of non-compliance with a rule of court. For that reason, cases dealing with the operation of Rule 2.01(1) of Chapter 1 of the Rules (or its South Australian equivalent) are not in terms relevant.

It follows from what I have just said that I do not accept the defendants' contention that the writ as issued was a nullity and incapable of meeting the description of an action instituted by the plaintiff within s.48(3).

In the ordinary course, amendment operates from the date of the document amended. There is no reason why that should not be so in the present case.

As to the form of the amendment, cases to which I have referred seem to show that, according to South Australian practice, a s.48(4) endorsement takes the form of expansion of the statement of claim to raise what, in Victoria, would be raised by way of a separate application under s.23A of the Limitation of Actions Act 1958. In the present case, however, a separate application has been brought by summons. It was not said for any of the defendants that application could not be pursued in such a way. Indeed, counsel for the second and third defendants submitted that this could be done, as an alternative to the course outlined in s.48(4).

I have very great doubt whether s.48(4) does contemplate the bringing of a separate application such as that which has been brought in this case. It seems to me clear that s.48(3), (4) and (5) contemplate that the process by which the action is commenced will provide the vehicle upon which application is made for extension of time. I do not see how s.48(3)(b)(i) could operate if such a proceeding had not been instituted before the application was pursued. The section does not contemplate, at least in respect of an application for extension of time to commence an action, that an application be made antecedent to commencement of the action. The situation is very different to that considered by the Full Court in Bestobell Overseas Ltd. v. Carden [1988] VicRp 80; [1988] VR 891, a case which concerned legislation predating the enactment of the present s.23A(4)(b) of the Limitation of Actions Act 1958.

Notwithstanding what I have just said, the fact is that in this case application was separately pursued, and that without objection. In the circumstances, it seems to me that the necessary endorsement need to be no more than a statement, on the first page of the writ, immediately below the names of the parties, that the plaintiff seeks an extension of time within which to institute the action pursuant to s.48 of the Limitation of Actions Act 1936 (SA). I will grant leave to the plaintiff to make that amendment.

I should explain my principal conclusions. Upon a view of s.48(4) that permits me to put to one side a particular argument advanced for the plaintiff, I have rejected the plaintiff's contention that it is not obligatory to endorse initiating process. The Acts Interpretation Act 1915 (SA) does not assign a meaning to the verb "must". Contrast the s.34 definitions of the verbs "may" and "shall". Nonetheless, the verb is imperative. Moreover, since the legislation seems not to contemplate a separate application in a case in which extension of time to institute an action is sought, it would defeat the object of the section if the initiating process was not so endorsed.

There is, next, an issue whether it is necessary to endorse a writ at the time of issue. In Robinson, King CJ remarked upon the anomaly created by the subs.(4) requirements. This is what his Honour said (at 61,865-61, 866):

"The requirement in subsection (4) that the request for an extension must be endorsed on the originating process does not sit comfortably with the rule, it must be said, where the time limitation is one imposed by the Statute of Limitations or a similar statutory provision. It does not sit comfortably because when the process is issued it is not known whether the statute will be pleaded. It is appropriate, however, where the cause of action has been extinguished and has to be revived. I do not think to much should be made of that anomaly. The purpose of section 48 is to relieve plaintiffs whose actions are out of time, of the hardship resulting from time limitations. Its purpose is ameliorative. It would not accord with that purpose to construe the section as extinguishing causes of action which would not otherwise be extinguished."

The anomaly to which his Honour referred was this: that the need to seek extension of time depends upon a defendant pleading a limitation defence. Why, it may be said, require a s.48(4) endorsement before such a defence is relied upon?

One way of avoiding the apparent anomaly - it did not arise on the facts in Robinson - would be not to construe s.48(4) as requiring endorsement before a limitation defence was raised. However, on balance it seems to me that the sub-section does require endorsement of the initiating process at the outset, despite such a requirement giving life to the anomaly of which the learned Chief Justice spoke.

Next, as I have already said I do not accept the defendants' contention that the writ was a nullity because it was not endorsed at the outset in accordance with s.48(4).

It is one thing to conclude that, for choice of law purposes, a statute or part thereof should be regarded as substantive law, in consequence of which it must be applied in the lex fori (giving that term its meaning in the modern Australian context). It is another thing to say that non-compliance with a machinery provision which forms part of that law must be regarded as rendering an initiating process void and incapable of remedy. The subject matter of s.48(4) and (5) strongly suggests that they should be characterised as machinery provisions, and that non-compliance with s.48(4) should be regarded as an irregularity capable of remedy by amendment.

43 Robinson, supra, did not involve a choice of law issue. The question, in substance, was whether s.48(4) impacted upon the rule of construction that a provision such as s.36(1) of the Act (see also s.5(6) of the Limitation of Actions Act 1958) bars the remedy but not the right, in which circumstances it is necessary to affirmatively plead a limitation defence. The Full Court of the Supreme Court of South Australia decided that s.48(4) did not have any such impact. Had the provision been treated as going to the jurisdiction of the court, that outcome would not have been possible. I consider that Robinson assists a conclusion that a writ not endorsed in accordance with s.48(4) is not a nullity, and that the court may grant leave to a plaintiff to amend the writ to add an appropriate endorsement.

Counsel for the second and third defendants referred me to Bestobell, supra, in support of his submission that the writ, as issued, was a nullity, incompetent. That decision, in my opinion, does not advance the defendants' case. It turned upon the very specific language of the then s.23A(2) of the Limitation of Actions Act 1958, which contemplated a grant of extension of time antecedent to commencement of "an action on the cause of action".

Counsel for the second and third defendants also mentioned s.6 of the Acts Interpretation Act 1915 (SA). It provides that "every section of an Act has effect, without introductory words, as a substantive enactment". As I understood it, counsel submitted that this meant that s.48(4) must be treated as substantive law, this meaning in turn that non-compliance was fatal to the validity of process.

Section 6 mirrors, at least, s.12 of the Acts Interpretation Act 1901 (Cth.), s.109C of the Corporations Law and s.7 of the Interpretation of Legislation Act 1984. It is enough to say that the section gives the submission made for the second and third defendants no support. The meaning of this common provision was explained by Marks J in Entwistle v. Parkes [1991] VicRp 24; [1991] 1 VR 317 at 319.

Counsel for the defendants did not refer me to the cases in which it has sometimes been held that,leave to proceed not having been obtained before action was commenced, leave could not be granted to commence an action which was already on foot; see, for example Mole v. Forests Commission of Victoria [1957] VicRp 82; [1957] VR 583 and Hunter v. State of Victoria [1960] VicRp 56; [1960] VR 349 particularly at 351. Having looked at those cases I am satisfied that they do not assist the defendants. Their outcome turned on the particular language of s.34 of the Limitation of Actions Act 1958. So also, Beugelaar v. City of Springvale [1969] VicRp 1; [1969] VR 3 turned on the particular language of s.882 of the Local Government Act 1958.

There is another line of cases in which courts have given leave to a party nunc pro tunc to take a step which ought to have been, but was not, taken before a proceeding was commenced. Leave was granted in those cases on the basis that the taking the step was not a condition precedent to jurisdiction, but rather an irregularity. See, for example, Re Testro Brothers Consolidated Ltd. [1965] VicRp 4; [1965] VR 18 particularly at 32-35 and Battiston v. Maiella Construction Pty. Ltd. [1967] VicRp 40; [1967] VR 349.

In my opinion, that line of cases is not decisive against the defendants any more than the line of cases exemplified by Mole is decisive in favour of the defendants. They illustrate a particular approach to particular legislation, although the observations made by Kirby J in Emanule v. Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 at 147-148 (this was a case of the type mentioned in [48]), are potentially of more general application.

Generally concerning the two types of case this may be said: The legislation there considered required the taking of a step - often, at least, requiring intervention by a court - before action could be commenced. Even then, proceedings commenced before the necessary step was taken were at times not held to be a nullity. The legislation presently under consideration, by contrast, does not oblige the taking of a step before action is commenced.

Focussing upon s.48, I cannot discern in subs.(4) a requirement that initiating process be suitably endorsed as a precondition to the jurisdiction of the court - in consequence of which, absent endorsement, process is a nullity. To the contrary, the sub-section is of a machinery character, designed to ensure the identification of a proceeding in which (if a limitation defence is taken) leave to extend time will be sought. The sub-section has nothing at all to say about the circumstances in which the foreshadowed application will succeed or fail.

I said earlier that in dealing with the s.48(4) submission I had put a particular argument advanced for the plaintiff to one side. His counsel submitted, in substance, that s.48(4) and (5) should be regarded as addressing matters of procedure. He contended that such a conclusion was compatible both with the definition of "limitation law" in the 1993 Victorian Act and with the distinction drawn between matters of substance and issues of procedure in Pfeiffer, supra, at paras. 99-100. Were that submission accepted, it would seem to follow that what I have said about the need for a plaintiff to endorse his or her originating process with a s.48(4) endorsement in a proceeding brought in Victoria would not apply.

In deciding the s.48(4) question I have not found it necessary to decide whether the submission should be accepted or rejected. I refrain from commenting about its merits or otherwise.

In light of my conclusions thus far it is necessary to consider whether "in all the circumstances of the case it is just to grant the extension of time."

Counsel for the defendants submitted that an onus lay upon the plaintiff of showing that the justice of the case required that the discretion be exercised favourably to him. That submission was based upon the decision of the High Court, in the context of Queensland legislation, in Brisbane South Regional Health Authority v. Taylor [1996] HCA 25; (1996) 186 CLR 541. The Queensland legislation only obliquely recognised the existence of a residual discretion: "the court may order". Contrast s.48 of the South Australian legislation. That is not a point of distinction so far as principle is concerned. I accept the applicability in the present case of the principle exposed in Brisbane South.

It is one thing to say that the plaintiff carries an onus of the type described. Is anything more to be gleaned from Brisbane South?

According to Dawson J, at 544, to discharge the onus

"... the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant."

"... once the legislature has selected a limitation period to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."

"... on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion."

"A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible."

McHugh J explained the rationale of limitation periods this way, at 551:

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation period. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that `[w]here there is delay the whole quality of justice deteriorates'. (21) Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties, Prejudice may exist without the parties or anybody else realising that it exists."

"The effect of delay on the quality of justice is no doubt of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by relevant evidence is likely to be lost (26). Second, it is oppressive, even `cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period". "Even where the cause of action relates to personal injuries (33), it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from the wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible."

His Honour explained (at 553-554) why an applicant carries a burden of showing that a discretion to extend time should be exercised in his or her favour.

"A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is `to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced'. (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

Justice, in context, according to his Honour "includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved", and "... the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period."

Acknowledging that "to subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent", his Honour was plainly of opinion that the elapse of a limitation period gives rise to presumptive prejudice: see at 555.

Kirby J. dissented in the result. But his Honour agreed that the ultimate onus of showing that a residual discretion ought be exercised in favour of an applicant lay upon the applicant: see at 567.

In all, it seems to me that the judgments do not disclose a majority opinion that, once a limitation period has expired, it is prima facie prejudicial to extend time, or, put another way, that there is presumptive prejudice. Again, neither Dawson J, nor Toohey and Gummow JJ in their joint judgment addressed the question whether the particular rationales for limitation laws identified by McHugh J must be considered in the exercise of the discretion.

There is reason, then, to be uncertain just how far Brisbane South goes. But in the present case the areas of uncertainty are not of practical significance. Neither acceptance of presumptive prejudice nor bringing the rationales for limitations laws identified by McHugh J into account (in practice, such factors are routinely considered under the umbrella of prejudice to the prospective defendant) makes any difference in the exercise of my discretion.

Although the discretion is a general discretion, to be exercised judicially, its limits being the scope and purpose of the enactment, there have been attempts in South Australia, as elsewhere, to list relevant criteria, or "useful considerations": see Mavra v. Logan (1980) 24 SASR 567; Lovett, supra, at 486 per Wells J.; Sola (in both the Full Court and the High Court, see earlier references), Forbes v Davies & Anor. [1994] Australian Torts Reports 61392 at 61402-61406 (this decision pertained to the similar Northern Territory legislation), Williams & Anor v Evans & Sons (1988) 52 SASR 237 and Hristofis v. Kanellos & SGIC (Full Court of Supreme Court of South Australia, 7 February 1992). Such authorities may be useful. In some instances they may assist in revealing a consideration which has been taken into account in a particular case, and which is definitely extraneous. But there is no doubt that care must be taken not to elevate such lists beyond what is helpful into a judicial straitjacket.

Bearing the above considerations in mind, I have taken into account in exercising of my discretion in the present case, particularly, the following matters, some of which overlap:

* The hardship to the plaintiff if the action is dismissed and the cause of action left statute barred;

* The prejudice to the defendants if the action is allowed to proceed notwithstanding the expiration of the limitation period (in this context I take account of presumption of prejudice and the rationales for limitation periods identified by McHugh J in Brisbane South);

* The extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed;

* The conduct of the defendants in the litigation;

* The relative importance or unimportance of the facts material to the plaintiff's case which have satisfied the requirement of s.48(3)(b)(i) of the Act;

* Whether the facts material to the plaintiff's case were discovered by contrivance, or artificially, or should be regarded as "genuine".

There has been debate, in South Australia, whether the possible availability of action against a solicitor can be a relevant consideration. The law appears to be that, in an exceptional case where evidence before the court involved a solicitor's concession of fault and of the fact of insurance, the court was not altogether precluded from bringing the matter to account; but that this would be (even in such an exceptional case) a very slight and not very persuasive consideration: see Hristofis (supra).

In the present case there is before me an affidavit of the plaintiff's solicitor sworn 26 July 2000. It is arguable that it discloses circumstances which could establish fault against the solicitor. But the matter was not really debated before me. I think that to bring the possibility of the plaintiff having action against the solicitor into account in all the circumstances would involve speculation. Even if I did bring the matter to account, its impact would, according to South Australian authority, be at most slight; and, having considered its possible impact, it would not lead me to any different conclusion than that which I have reached.

What, then, does the material before me reveal? The plaintiff suffered grave injuries which have permanent effect. He is aged only 51. His employment future seems at best to be bleak, and probably non-existent. Were he permitted an extension of time then, depending upon the liability issue - and its strength or weakness I cannot judge - his claim would seem to be a very substantial one. Certainly there would be substantial hardship if his application for extension of time failed.

Then, as to the defendants, it is first of all obvious where and when the plaintiff sustained injury. Both the state marketing manager and the state sales manager of the first defendant were at the site of the agricultural trade fair on the day that the incident occurred. According to the plaintiff's affidavit sworn 26 July 2000 the two men were, at least shortly before the accident occurred, in the vicinity of the place where the accident happened. One of them gave the plaintiff pertinent instructions at that time . Moreover, the plaintiff was in the company of the third defendant, an employee of the second defendant, when the accident occurred. The plaintiff claimed and was paid accident compensation. It is not disclosed whether any of the three men of whom I have made mention were interviewed in connection with the incident. That would be a usual course. None of the defendants has gone on affidavit saying that it is not fully apprised of the circumstances of the incident, or (in the case of the first and second defendants) that any of the three men cannot now be found, or has no recollection of what occurred. Further again, the plaintiff's injuries have been extremely well documented. The material before me shows as early as 28 October 1994 a consultant orthopaedic surgeon who examined the plaintiff on the first defendant's behalf estimated a 75% whole of person permanent impairment, and that on 7 October 1997 the first defendant's insurer issued a serious injury certificate which authorised the plaintiff to bring common law proceedings (the effect of that certificate need not be debated).

In circumstances as I have described them, none of the defendants having drawn attention to any particular prejudice, I think that it is right to conclude that, save for the prejudice which must inevitably flow from a grant of extension of time, this is not a case in which prejudice to the defendants is more than speculation.

The "length of the delay" was at most five years and nine months. There is a question whether it should be regarded as two years and nine months. But taking the worst view from the plaintiff's standpoint, I do not consider that it tells against an exercise of discretion in his favour. The particular importance of length of delay in a given case is likely to be whether, having regard to the elapse of time, a fair trial is possible - the position of a prospective defendant being important in that evaluation. In the present case, for reasons already described, the length of the delay should not preclude a fair trial.

I consider next the conduct of the plaintiff and the reason for the delay. The plaintiff's two affidavits and the affidavit of his solicitor show that he first consulted his solicitor in about October 1994, that the matter was referred to counsel, and that after advice was given to him in December 1994, he was dubious whether he wanted to bring an action. At that stage, according to the solicitor's affidavit, no consideration was given to any limitation question. It was early days, and that position was understandable. The fact that the solicitor would have said, if then asked, that the limitation period was six years, is not to the point.

The material next shows that the plaintiff re-addressed his mind to possible common law action against receiving lump sum accident compensation in May 1996. His solicitor sought a serious injury certificate. One was provided, but not until 1997. By this time, of course, time had already run out. Obviously the plaintiff did not know that to be the case. Neither, whether it be justifiable or not, did his solicitor. An issue arose whether the plaintiff required a serious injury certificate from the Transport Accident Commission. This was taken up by the solicitor in mid 1999. Inferentially, the solicitor became satisfied by about October 1999 that no such certificate was needed. At that stage instructions were given to counsel to draw a statement of claim. Only then did the plaintiff learn that there was a possible (as he then understood it) limitation defence. In November 1999 he lost his employment with CSN. His solicitor recently advised him that his inability to continue in employment at that time was a material fact.

It seems clear, in the circumstances described, that the plaintiff's failure to bring an action in time was not his own doing. I note that, according to para. 13 of his affidavit sworn 26 July 2000 he did not give his solicitor or counsel full instructions about matters pertaining to the liability issue until May 1999. But the solicitor does not suggest (despite para. 6 of his affidavit) that action was not commenced because the plaintiff's instructions prior to May 1999 did not sufficiently disclose a claim against any of the defendants.

I turn to matters much relied upon by the defendants: what was said to be the relative unimportance of the material facts ascertained in November 1999; and what was said to be the contrivance or artificiality involved in their discovery.

There is not the slightest doubt that the essential facts were no contrivance. The plaintiff lost his job in November 1999, and for reasons earlier set out the facts of termination of employment and the earnings loss which immediately ensued were facts material to the plaintiff's case.

It is next the fact that the termination of employment and the earnings loss which immediately ensued were not referred to at all in the plaintiff's affidavit of 26 July 2000. They were first relied upon in the plaintiff's affidavit sworn 21 August 2000 - an affidavit sworn after the plaintiff's application had been made and adjourned at his cost.

I attach much less significance to those matters than did the defendants' counsel. The South Australian extension provision is radically different to the Victorian provision. To my mind it is not all surprising that the significance of the material facts was overlooked - or, more probably, that they were thought to be irrelevant. Failure to address the matter does not tell against those facts being "genuine".

But how significant, in the overall scheme of things, were the material facts upon which the plaintiff relied in support of this application? The answer is, in my opinion, that they were of greater significance than might superficially appear to be the case; not of overwhelming importance, but neither to be dismissed.

In any personal injuries damages claim there are (unless liability is admitted) the issues of duty, breach of duty, and quantum of damages. All are important. From a practical standpoint quantum of damages is critical to any plaintiff, and only less important to a defendant because of the protection of insurance. To an insurer the quantum of an individual claim also has importance, though as part of a broader canvas.

In the present case, the material before me shows that the plaintiff suffered very serious, and permanent injuries. Upon proof of negligence of one or more defendants, the quantum of damages allowed for economic loss could well be very large. Whether that was so would depend upon proof that negligence was a cause of earnings loss sustained up to date of trial; and, as well, whether the plaintiff was in work at date of trial and, if he was, the prospects of him continuing in that or some other employment.

In the setting that I have described the plaintiff's job loss in November 1999 could not by any means be accounted unimportant. The plaintiff's affidavit sworn 21 August 2000 discloses the type of employment that he held for a number of years before the incident of March 1994. It shows that he made strong attempts to find and retain employment after the accident. It suggests that he was pretty fortunate, in light of his disabilities, to obtain a full time position in 1997. The exhibited medical reports readily explain why he did not relocate to CSN's Dalby, Queensland, operation.

The material before me certainly suggests that, even if CSN had not closed down its Geelong operation, the plaintiff's long-term continuation in that employment - or in any other employment - was very doubtful. Even so, the termination of that employment might very well be considered an important event in assessment of the plaintiff's claim for economic loss damages.

All in all, I have reached the firm conclusion that it is just to grant the plaintiff an extension of time. The various factors which I have considered - including those particularly relied upon by the defendants - run more or less strongly in the plaintiff's favour.

Subject to anything that counsel may say as to form, I shall grant the plaintiff leave to endorse the writ with a statement in accordance with s. 48(4) of the Act and I shall order that the time within which the plaintiff may institute an action for damages for personal injuries against the defendants arising out of injuries sustained by him on 9 March 1994 be extended to 17 December 2000.

Law (Limitation Periods) Act 1993

Interpretation Act 1915

Interpretation Act 1901

Legislation Act 1984

At a glance

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Judgment (111 paragraphs)

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Legislation Cited (7)

Cases Cited (12)