PARTIES: SCOTT, Sattwa, an infant by her litigation Guardian

SCOTT, Yantra, an infant by her litigation Guardian

Evidence - Affidavits and statutory declarations - Use of affidavits - When may be used in general - What constitutes an interlocutory application.

Limitation Act 1974 (Tas), s5.

Comalco Aluminium (Bell Bay) Limited v Claudio [1970] Tas SR 231; Jacobs v Australian Abrasives Pty Limited A8/1971; Hall v The Nominal Defendant (1966) 117 CLR 432; Leitch v McCarthy B49/1995, discussed.

Judgment Number: [2001] TASSC 45

SATTWA SCOTT, an infant by her litigation Guardian JOANNE TURNER v ANDREW HAZELWOOD and REGINALD MURRAY SCOTT

YANTRA SCOTT, an infant by her litigation Guardian JOANNE TURNER v ANDREW HAZELWOOD and REGINALD MURRAY SCOTT

1 Each plaintiff issued a writ on 21 November 2000 claiming damages from the defendants for injuries suffered in a motor vehicle accident on 4 September 1995. The accident occurred when a vehicle driven by the first defendant collided with the rear of a vehicle driven by the plaintiffs' father, the second defendant.

2 Each plaintiff also issued an interlocutory application in the action instituted by that plaintiff's writ seeking an order pursuant to the Limitation Act 1974, s5, extending the time within which that plaintiff could bring the action.

3 On behalf of the defendants it is submitted that it is not competent for the plaintiffs to obtain the relief they seek by way of an interlocutory application. It is contended that an order extending time may only be obtained on an originating application.

4 Affidavits containing hearsay statements as to the information and belief of the deponent have been filed in support of each application. The defendants seek to oblige the plaintiffs to pursue the relief they seek by means of an originating application so that the plaintiffs will not be able to rely on any hearsay material on the hearing of their applications. Defence counsel are concerned that if the plaintiffs are allowed to proceed by way of interlocutory applications, they will be entitled to rely on hearsay material. The basis for their concern is Supreme Court Rules 2000 ("the Rules"), r502, which provides:

"502 - (1) An affidavit is to be confined to facts to which the deponent is able to depose to his or her own knowledge.

(2) An affidavit used on an interlocutory application may contain a statement as to the information and belief of the deponent, if the source of information and the grounds of belief are given."

This rule is a reconfiguration of O41, r3(1) of the former Rules of the Supreme Court, which was in the following terms:

"3 - (l) Affidavits shall be confined to facts to which the deponent is able to dispose of his own knowledge, except in the cases specially provided for by these rules, and except in the case of affidavits used on interlocutory motions or applications, in which case statements as to the belief of the deponent, giving the sources of his information and the grounds of his belief, may be admitted."

The concern which motivated defence counsel to object to the plaintiffs proceeding by way of interlocutory applications does not accord with my present understanding of the authorities which is that the determination of whether an application is interlocutory or final for the purposes of r502 does not depend upon the form of the process which brought the application before the Court. I will, however, refrain from reaching a concluded view on the matter as I have not had the benefit of counsels' submissions on it. The authorities I have in mind relate to O41, r3(1). The differences between the wording of that rule and its successor, r502, do not appear to warrant giving r502 a different construction to O41, r3(1). In Comalco Aluminium (Bell Bay) Limited v Claudio [1970] Tas SR 231, Neasey J held that an application for an extension of time to take proceedings pursuant to the Workers' Compensation Act 1927, s9(8), was not an interlocutory application within the meaning of O41, r3, as it was an application for a final order not an interlocutory order. Accordingly, his Honour held that the affidavit in support of the application must be confined to facts to which the deponent was able to depose of his own knowledge. In Jacobs v Australian Abrasives Pty Limited A8/1971, Neasey J revisited this question and in the course of reviewing various authorities his Honour addressed the decision in Hall v The Nominal Defendant (1966) 117 CLR 432. There the High Court held that an order refusing an extension of time under the Traffic Act 1925, s65A, was to be characterised as interlocutory for the purposes of assessing whether the Judiciary Act (1903 - 1959) (Cth), s35(1)(a) required that leave be obtained before the order could be appealed. Neasey J concluded that Hall v The Nominal Defendant was not germane to the construction of O41, r3(1) because of the significant difference between the question whether an application was final or interlocutory for the purposes of that rule and the question whether an order was final or interlocutory for the purposes of the Judiciary Act, s35(1)(a). In Leitch v McCarthy B49/1995, Slicer J expressed agreement with Neasey J's decision in Jacobs v Australian Abrasives Pty Ltd. These are the authorities which cause me to doubt the soundness of defence counsels' concern that as the plaintiffs seek relief by means of .interlocutory applications, their applications will necessarily be categorised as interlocutory for the purposes of r502.

5 Be that as it may, I return to the defendants' contention that it was not open to either plaintiff to pursue an application for an extension of time by way of an interlocutory application in the action instituted by that plaintiff. The defendants' counsel acknowledge that in times past it has been appropriate to seek an extension of time by means of an interlocutory application, but contend that this ceased to be the case when the Civil Process Rules 1985 commenced on 1 January 1986. It is certainly the case that it has long been accepted that an interlocutory application taken out in the course of a pending proceeding was an appropriate means by which to seek an extension of time in relation to any matter arising in the proceeding. So far as I am aware, this is the first occasion on which it has been asserted that the situation was changed by the Civil Process Rules, O1, r3(u) which provided:

"The following proceedings are to be commenced by application to a judge in chambers:

(u) for an extension of time in any matter or in respect of any contemplated proceeding;".

That rule has been replaced by Supreme Court Rules, r90(ze) which provides:

"90 The following classes of proceedings are to be commenced by application to a judge in chambers:

(ze) extension of time in any matter or in respect of any contemplated proceeding;".

6 The proposition advanced on behalf of the defendants is that these rules by their terms require that whenever an application for an extension of time is sought, the proceeding seeking the same must be commenced by an application to a judge in chambers, that is, an originating application.

7 Rules 88 - 95 are contained in Div3 of Pt7 of the Rules. That Division is headed "Commencement of proceedings". Rule 88 details the "classes of proceedings [that] are to be commenced by a writ", r89 details the "classes of proceedings [that] are to be commenced by application to the court" and r90 details the "classes of proceedings [that] are to be commenced by application to a judge in chambers". Whilst the opening words of each of these rules might suggest that they impose rigid requirements in relation to the means by which the classes of proceedings they refer to are to be commenced, it is apparent from an examination of the Division that this is not so. The effect of r92 is that all kinds of relief may be sought in a single proceeding, so long as one of the forms of relief sought is appropriate to the form in which the proceeding was instituted. Rule 92(4) authorises the making of claims for ancillary relief, together with the principal relief claimed in any proceeding. Rule 95 gives the court power, at any time, to change the course of a proceeding, for example, to order that an action (a proceeding commenced by writ) proceed as an application or vice versa. It is also of some relevance that r15 provides that a proceeding or the originating process by which it was commenced is not void solely on the ground that the proceeding was commenced by the wrong process.

8 As to the contention advanced by the defendants, it is significant that the intention of Div3 of Pt7 is to identify the means by which the classes of proceedings detailed in rr88, 89 and 90 are to be commenced. These rules do not purport to govern the sort of incidental issues which may be pursued by way of an interlocutory application. They relate to "proceedings". A proceeding is defined by r5 as any matter commenced by an originating process. An interlocutory application is not an originating process, it is an application to the court in a pending proceeding. This is clear from r524, which provides:

"524 Subject to rule 415 and any other special provision made by these rules, any application to the Court in a pending proceeding is to be made -

For present purposes, r415 is not relevant. It relates to the means by which interlocutory applications are to be made once a directions hearing has been held. For the reasons I have already given, I do not consider there is any special provision in Div3 of Pt7 barring the making of an application for an extension of time in a pending proceeding by means of an interlocutory application. Nor have I located any special provision to that effect elsewhere in the Rules. Therefore, as the plaintiffs' applications are made in pending proceedings, they should be made by way of an interlocutory application as required by r524.

9 I am reinforced in the conclusion that I have reached by the impracticality of the consequences which would flow from accepting the defendants' contention. Rule 90(ze) relates to an "extension of time in any matter or in respect of any contemplated proceeding". The term "matter" is used in an all encompassing way in relation to process in the Rules and is apt to cover any process before the court, however commenced. If r90(ze) applies in the way contended for, then it extends to every application for an extension of time in pending proceedings. In the course of a proceeding it may become necessary for a party to apply for an extension of time pursuant to any one of a number of legislative provisions. Common instances are the Limitation Act 1974, s5, the Workers Rehabilitation and Compensation Act 1988, s135 and the Motor Accidents (Liabilities and Compensation) Act 1973, s16. It may also become necessary for a party to pending proceedings to apply for an extension of time in many other circumstances. The Rules impose time requirements in relation to numerous aspects of the conduct of proceedings and in the course of a matter, time requirements are not infrequently imposed by the court. Pursuant to r52, the court may extend these time requirements. It would be absurd if it was necessary for a party to commence proceedings by way of an originating application on every occasion that a time extension was sought.

10 The defendants' contention is rejected. The plaintiffs' interlocutory applications seeking extensions of time are competent and should be heard.