Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6 | Case summary

Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6 | Case summary | Zoe

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Friday 30 January 2009 WINDSURF HOLDINGS PTY LTD t/as MARK ELLIS MARINE DESIGN v LEONARD CARLSON v LEONARD WYVILL v LEONARD Judgment 1 BEAZLEY JA: I agree with Bell JA. 2 BELL JA: I have had the benefit of reading the judgment of Sackville AJA in draft form. I agree with his Honour's reasons for concluding that the applications brought by Mr Wyvill and Mr Carlson should succeed and with the orders that his Honour proposes in relation to each of the applications. I wish to add some observations concerning the application brought by Windsurf Holdings Pty Ltd (Windsurf). 3 As Sackville AJA explains, it was conceded on Ms Leonard's behalf on the hearing of the applications that the Associate Judge did not have the power to make the orders that were made extending the time in which to commence proceedings against each of the applicants up to and including 27 December 2007. It was accepted that in light of her Honour's factual findings it was necessary for Ms Leonard to establish that she had brought an action for damages for negligence against Windsurf (and Mr Wyvill) by 31 May 2006. This is because her claim is subject to the Limitation of Actions Act 1974 (Qld). References in these reasons to statutory provisions are to this Act unless otherwise stated. Section 11 provides, relevantly, that an action for damages for negligence in which damages claimed include damages in respect of personal injury shall not be brought after the expiration of three years from the date on which the cause of action arose. The court may order that the period of limitation be extended so that it expires at the end of one year after the date on which the court finds that a material fact of a decisive character relating to the right of action came within the applicant's means of knowledge: s 31(2). Ms Leonard's contention was that by the filing of notices of motion on 4 September, 4 October, 19 October and 9 November 2005 claiming orders joining Windsurf and Mr Wyvill to the proceedings brought by her against Gaincrew Pty Ltd (Gaincrew) and Mr Eckersley (the proceedings), and in the case of the motion filed on 9 November 2005 seeking leave to commence proceedings against each under the appropriate limitations statute, she had brought an action for damages for negligence for the purposes of s 11.

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10 In Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 200 Lord Keith of Kinkel observed: A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action which is referred to must be the bringing of the action against that defendant in respect of that cause of action. The causes of action here against Mid-Sussex and the architects were separate and distinct from the cause of action against Hansel. In my opinion there are no good grounds in principle or in reason for the view that an action is brought against an additional defendant at any earlier time than the date upon which that defendant is joined as a party in accordance with the rules of court. 11 Windsurf was not a party to the proceeding brought by Ms Leonard. The motion claiming an order joining Windsurf to the proceedings was a proceeding in a court of law brought with the intention of joining Windsurf and claiming damages for negligence against it, but absent the order and, it may be the filing of the amended statement of claim pursuant to the order, no action for damages for negligence had been brought against Windsurf. 12 In the submissions filed on Ms Leonard's behalf it was asserted that the Registrar had been wrong to refuse to allow the amended statement of claim to be filed leaving it to the defendants to raise a limitation defence if they wished. It was submitted that it was not open to Windsurf to contend that the filing of the motion was not an "action" for the purposes of s 11 in circumstances in which Windsurf had opposed its addition as a defendant at the hearing on 19 October 2005. (WS par 21) This was not agitated before the Associate Judge and there does not appear to be any evidence of what took place before the Registrar on 19 October 2005. In the circumstances the contention, which was not developed in oral argument, that Windsurf is estopped from submitting that no action was brought within time, does not require to be further addressed. 13 Ms Leonard did not apply for a review of the Registrar's determination made on 19 October 2005. Assuming for present purposes that it was an error to require that Ms Leonard obtain an extension under the limitation statute before Windsurf was joined to the proceedings, it remained that leave was required to amend the statement of claim to include the claim against Windsurf: r 19.1(1) of the UCPR. It is to be observed that there is no evidence that those acting for Ms Leonard took any steps to ensure the expedited determination of the motion in light of the limitations issue.

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14 Ms Leonard contends that if the filing of the motion and the affidavit of Mr Schipp annexing the draft amended statement of claim was not the bringing of an action within s 11, the Associate Judge ought to have treated the failure as an irregularity under s 63 of the Civil Procedure Act 2005 (NSW) (the CPA) or the corresponding provision of the Queensland legislation, in particular r 371 of the UCPR (Qld). The application of a limitation period to a claim is as Sackville AJA explains treated as a matter of substance and not procedure and the law of the place of the alleged tort applies. The Choice of Law (Limitation Periods) Act 1993 (NSW) requires a court of this State exercising a discretion under a limitation law of another State to exercise the discretion as far as practicable in the manner in which it is exercised in comparable cases by courts of that other State: s 6. However, the procedural rules which are to be applied are those of the forum: McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1. The provisions of r 371 of the UCPR (Qld) are directed to the failure to comply with the procedural rules that are applied by courts in Queensland. Rule 371 of the UCPR (Qld) does not avail to rectify a procedural irregularity in the conduct of proceedings in this State, including proceedings in relation to an alleged tort committed in Queensland. Nothing turns on this circumstance since it is not suggested that r 371 confers any broader power on a court applying the procedural rules of Queensland than is conferred on a court in this State under s 63 of the CPA, which is set out in Sackville AJA's judgment: par [55]. 15 In the written submissions filed on Ms Leonard's behalf it was contended that: [22] Even if the Registrar, on 19 October 2005, was correct, the alleged failure to comply with any requirement of the Court is, pursuant to section 63(2)(a) to be treated as an irregularity and, pursuant 2(b) does not invalidate the step taken. The same applies to the amended motion of October 2005. [23] Pursuant to section 63(3)(b) the Court should exercise its power to make an order that the application to join the two defendants be treated as the commencement of proceedings as against Wyvill and Windsurf or alternatively an application to extend the limitation period. See Harkness v Bell's Asbestos and Engineering Limited [1967] 2 QB 729, and Australian Coastal Shipping Commission v Curtis Cruising Pty Limited [1989] 17 NSWLR 734, Hill v Luton Corp [1951] 2 KB 387, Mitchell v Harris Engineering Co Limited [1967] 2 QB 703. 16 It is not clear how Hill or Mitchell assist Ms Leonard. In Hill the writ was issued within time albeit the indorsement was defective. It was served after the expiry of the limitation period together with a statement of claim that cured the defect in the indorsement. Devlin J rejected the submission that the defective writ was a nullity, observing (at 391), "I do not think that the [Limitation] Act is at all concerned with good or bad indorsements: the only question to be determined under it is whether the action has been commenced within the twelve months". 17 Mitchell v Harris Engineering was a case involving the incorrect identification of the defendant in the writ. Leave was granted under the provision of the English rules that equates to s 65(2)(b) of the CPA, which permits amendment after the expiration of the relevant limitation period to correct a mistake in the name of the party, being a mistake that is not misleading and was not such as to cause reasonable doubt as to the identity of the party which it was intended to be made a party. 18 The predecessor to s 63 of the CPA was s 81 of the Supreme Court Act 1970 (NSW) (the SCA). Section 81 was drawn directly from O 2 r 1 of the English Supreme Court Rules 1965, which was introduced to overcome the decision in Re Pritchard [1963] 1 Ch 502. In that case proceedings, which were required to be commenced by filing the originating summons in one registry were purportedly commenced by filing the summons in another registry. It was held that the summons had not been issued and the proceedings were a nullity. The defect was incurable under the English rules as they then stood. Order 2 r 1 provided that where, in beginning or purporting to begin any proceedings (or at any stage in the course of or in connection with any proceedings) there was a failure to comply with the requirements of the rules the failure was an irregularity. 19 In Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729, O 2 r 1 was invoked to rectify irregularities arising out of an order made by a registrar purportedly extending time under the Limitation Act 1963 (UK). The registrar did not have jurisdiction to make the order and the form of the order was bad. The proceedings had been set aside at first instance as a nullity. Lord Denning MR rejected the submission that O 2 r 1 did not apply because at the time the registrar made the order there were no "proceedings", no writ having been issued. His Lordship said this (at 735 - 736): I think this is far too narrow an interpretation. This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the court, however informal, is a "proceeding". There were "proceedings" in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the registrar. … This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that "it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation". 20 The plaintiff in Fernance sought to rely on s 81, submitting that the order made by the Master should be treated as an implied grant of leave to amend and there had been a failure to file the amended statement of claim within 14 days, that failure being the relevant irregularity. The majority rejected this analysis holding that there had been no failure to comply with the Act or the Rules but merely a failure to take advantage of an opportunity created by the consent order: The Master's leave had not been taken up (at 723). Gleeson CJ observed that a more fundamental difficulty in relying on s 81 was that the Limitation Act 1969 operated to extinguish the cause of action against the driver (at 723).

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By filing and serving the notice of motion and supporting affidavit and obtaining the Master's order the second plaintiff was considered to have either been beginning or purporting to begin proceedings against the Commission or the proceedings had already actually commenced against it. On either view Pt 7 r 6 of the SCR required the second plaintiff to file a new statement of claim (at 753-754). Priestley JA held that the failure to file the new statement of claim was an irregularity and that the proceedings were to be taken to have been commenced against the Commission on the date the Master made the order. His Honour distinguished Fernance, noting that in that case at the time the order was made no draft statement of claim was before the Court, nor, as a consequence, had the defendant been served with a copy of it. Whereas in Australian Coastal Shipping Commission all that needed to be done was the stamping of a document that was already in the court file, to the knowledge of the Commission. The decisive difference identified by Priestley JA was that in Fernance the Court was being asked to exercise its powers under s 81 in respect of an application made after the Limitation Act had operated to extinguish the cause of action. In Australian Coastal Shipping the Commission was seeking to deny the application of s 81 to events that occurred before the expiry of the limitation period (at 755). 23 Ms Leonard's motion and the supporting affidavit annexing the draft amended statement of claim was filed within one year from the date on which she is taken to have acquired knowledge of a material fact of a decisive character relating to her right of action against Windsurf. There was no obstacle to Ms Leonard filing a statement of claim naming Windsurf as the defendant and pleading a cause of action in negligence against it. The decision to proceed by obtaining leave to file an amended statement of claim joining Windsurf to the proceedings was, as Sackville AJA observes, apt. It does not appear to have been in issue that Windsurf was aware that Ms Leonard was proposing to bring a claim in the terms of the draft amended statement of claim. However, in contrast to Australian Coastal Shipping Commission no order was obtained granting leave to amend the statement of claim by the addition of Windsurf as a party and by pleading the material facts against it. 24 Section 63 of the CPA confers broad power on the Court to rectify irregularities arising as the result of the failure to comply with the requirements of the Act or rules. The predecessor provision, s 81 of the SCA, permitted the failure to file the amended pleading in accordance with the leave which had been granted to be treated as an irregularity in the Australian Coastal Shipping Commission case. In the submissions made on Ms Leonard's behalf no failure to comply with the CPA or the UCPR is identified. There was no procedural flaw in the events that happened. Ms Leonard did not bring an action for damages for negligence against Windsurf within one year of May 2005. Her motion to join Windsurf to the proceedings was one means of bringing an action for damages for negligence against Windsurf but it did not operate with that effect until at the earliest an order was made granting leave.

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PROCEDURAL BACKGROUND 32 The application by Ms Leonard for an extension of the limitation period arose out of her claim for damages in respect of injuries she sustained in the early hours of 31 December 1998. On that date, Ms Leonard was on board the Vessel, which was owned by her brother, Mr Eckersley. The injuries occurred when Ms Leonard, who was staying on the Vessel with her family, fell down an internal staircase. At the time, the Vessel, which had only been recently constructed, was moored near Lizard Island in Queensland. 33 Shortly after the accident, Ms Leonard formed the view that her injuries had been caused by the absence of a handrail on the stairs and inadequate lighting in the vicinity of her fall. She commenced proceedings in the Supreme Court of New South Wales on 17 December 2001, just within the three year limitation period prescribed by s 11 of the Limitation Act (Qld). The defendants were Mr Eckersley and Gaincrew Pty Ltd ("Gaincrew"), a company of which Mr Eckersley was the director. Ms Leonard's statement of claim alleged that her injuries had been caused by, among other things, the defendants' failure to install appropriate lighting in the Vessel and to provide handrails for the staircase. 34 On 17 May 2005, Mr Eckersley and Gaincrew filed a cross-claim in the Proceedings, naming Windsurf as the first cross-defendant and Mr Wyvill as the second cross-defendant. The cross-claim pleaded among other things, that Windsurf had negligently failed to incorporate staircase handrails in the Vessel's design and had failed to ensure that the lighting complied with the USL Code. The cross-claim also pleaded that Mr Wyvill had negligently and incorrectly certified that the Vessel had met appropriate standards. 35 On 4 September 2005, Ms Leonard filed a motion seeking to join Windsurf and Mr Wyvill as defendants to the Proceedings. The motion was accompanied by an affidavit annexing a proposed amended statement of claim. The affidavit was not in evidence before the Associate Judge but it was tendered and admitted into evidence without objection on the application for leave to appeal and for the purposes of the appeal, should leave be granted. The proposed pleading repeated the material allegations made against Windsurf and Mr Wyvill in the cross-claim and claimed damages against them. 36 For unexplained reasons, on 4 October 2005 Ms Leonard filed a further motion seeking relief similar to that claimed in the September motion. It appears that the later motion was listed before a Registrar of the Court on 19 October 2005. The motion was opposed by Windsurf on the basis that it was out of time. The Registrar declined to make the orders sought and noted that the motion had not sought orders extending the limitation period. The Registrar directed Ms Leonard to file an amended motion seeking an extension of the limitation period and stood the matter over. 37 Ms Leonard filed an amended motion on 9 November 2005 seeking orders joining Windsurf and Mr Wyvill as defendants in the Proceedings and granting leave to commence proceedings against them: "in accordance with s 60C and/or s 60G of the Limitation Act 1969, or other relevant statutes." 38 On 20 December 2005, Mr Wyvill filed a defence to the cross-claim. The defence admitted that he was an accredited marine surveyor and had provided a report in relation to the Vessel. However, he asserted that the report was for insurance valuation purposes only and was for "private use and without responsibility". The defence also pleaded that the cross-claim was statute barred because it has been brought more than six years after Mr Wyvill did anything he was retained to do in relation to the Vessel. 39 Windsurf filed an amended defence to the cross-claim on 28 April 2006 (the date of its original defence does not appear in the appeal papers). Windsurf admitted entering into a design contract with Mr Eckersley or Gaincrew, but denied that it had agreed to incorporate details of handrails on the Vessel's internal staircase. Windsurf also denied that it had agreed to incorporate designs for electrical circuitry or lighting. It denied any negligence. 40 On 22 June 2006, Ms Leonard filed yet another amended motion in the Proceedings. This motion sought orders: (i) joining Windsurf, Mr Wyvill, Pettit & Carlson Pty Ltd, and other company as defendants to the Proceedings; and (ii) giving leave to Ms Leonard to proceed against the proposed defendants: "in accordance with Section 60C and/or Section 60G of the Limitation Act , 1969 or other relevant Queensland Statute." 41 In June 2006, Mr Carlson received a copy of Ms Leonard's proposed amended statement of claim in the Proceedings. This alerted him to Ms Leonard's intention of joining Pettit & Carlson Pty Ltd as a defendant. Subsequently, he was informed that Ms Leonard intended to join him personally as a defendant in the Proceedings. Presumably Ms Leonard's advisers took this step because they appreciated that there was no point in proceeding against a deregistered company. 42 On 22 February 2007, Ms Leonard filed a Second Amended Statement of Claim ("2ASC") in the Proceedings pleading a claim for damages against Windsurf, Mr Wyvill and Mr Carlson. It appears that the 2ASC was filed with the consent of the added defendants or at least without any opposition on their part. However, it was common ground that the filing of the 2ASC did not have the effect of waiving or barring any limitations defence otherwise available. 43 Ms Leonard filed a further amended motion on 27 October 2006. This motion sought to join Windsurf, Mr Wyvill and Mr Carlson as defendants in the Proceedings and sought leave to proceed against them in accordance with ss 60C or 60G of the Limitation Act (NSW) "or other relevant Queensland Statute". It was this motion that was dealt with by the Associate Judge in her judgment of 7 December 2007. The orders made by her Honour are set out at [27] above.

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(ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, … breach of duty causes personal injury; … (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing-- (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action; (c) a fact is not within the means of knowledge of a person at a particular time if, but only if-- (i) the person does not know the fact at that time; and (ii) as far as the fact is able to be found out by the person--the person has taken all reasonable steps to find out the fact before that time." 50 It is of some importance for the present case to note that s 5 of the Limitation Act (Qld) defines "action" to include "any proceeding in a court of law". 51 The key provisions of the Limitation Act (Qld) were considered by the High Court in Queensland v Stephenson [2006] HCA 20; 226 CLR 197 ("Stephenson"). The major question of construction considered in that case does not arise in the present proceedings. However, the Court held in Stephenson that s 31 of the Limitation Act (Qld) authorises the court to extend the limitation period "where an action has already been instituted". Their Honours attributed this result to the operation of s 31(3) of the Limitation Act (Qld): Stephenson at 203 [12]. 52 Mr Parker, who appeared for Windsurf, submitted that s 31(3) does not justify the conclusion reached by the High Court. He contended that s 31(2) of the Limitation Act (Qld) should be read as authorising the extension of the limitation period only for an action that is to be commenced after the date of the order extending the limitation period. 53 Whether or not there is any merit in Mr Parker's submission is beside the point as far as this Court is concerned. The holding by the High Court was clearly part of the ratio in Stephenson, since the limitation period was extended in that case by orders made after the applicants had commenced the relevant actions: see Stephenson at 203 [12]. This Court is therefore bound to proceed on the basis that an extension of the limitation period under s 31(2) of the Limitation Act (Qld) may be sought and granted after an applicant has actually instituted Proceedings claiming damages for personal injuries. Of course, the period of the extension that may be ordered is governed by the terms of s 31(2). Accordingly, it is limited to a period ending one year after the date that a material fact of a decisive character becomes within the means of knowledge of the applicant. 54 Legislation in the form of s 31 of the Limitation Act (Qld) is notoriously difficult to construe. The equivalent provisions in New South Wales, which now survive only in respect of causes of action that accrued before 1 September 1990 (Limitation Act 1969 (NSW) Pt 3, Div 3), was said by Kirby P to be liable to confuse judges and lawyers and to cause them to emerge "on the other side dazed, bruised and not entirely certain of their whereabouts": Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 698, cited in Stephenson at 211 [44] per Kirby J; see also the colourful extracts from judgments in the Foreword to G McGrath, D C Price and I Davidson, Limitation of Actions Handbook: New South Wales (1998) vi. Fortunately, the present case does not require the Court to delve too deeply into the intricacies of the legislation, although questions of construction inevitably arise. Civil Procedure Act 2005 (NSW) 55 Reference was made in argument to s 63 of the Civil Procedure Act 2005 (NSW) ("Civil Procedure Act"). Section 63 provides as follows: "(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

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■ Ms Leonard knew in May 2005 of the existence of the cross-claim naming Windsurf and Mr Wyvill as cross-defendants; ■ at that time Ms Leonard was told of an affidavit sworn by Mr Eckersley's solicitor, which identified Mr Wyvill as having certified that the Vessel complied with the USL Code ; ■ Ms Leonard knew the identity of Mr Wyvill and his involvement as an accredited marine surveyor by May 2005 " at the earliest "; ■ the relevant application by Ms Leonard was filed on November 2005; ■ this application had been filed by Ms Leonard within the one year period allowed by s 31(2) for her to acquire knowledge of a material fact of a decisive character; ■ Ms Leonard therefore had " passed through the s 30(1)(a)(ii) and (iii) threshold "; and ■ Ms Leonard had reasonable prospects of succeeding in her claim against Mr Wyvill. 59 The Associate Judge then considered whether it was "just and reasonable" to extend the limitation period in respect of Mr Wyvill (although the expression "just and reasonable" does not appear in s 31(2) of the Limitation Act (Qld)). Her Honour accepted that Mr Wyvill had a "claims made" professional indemnity policy until 1 January 2003 and that no such policy was in force when Ms Leonard filed the relevant motion in November 2005. (I understand this finding to mean that no policy was in force that would provide coverage for claims arising out of events occurring in 1998.) However, her Honour rejected Mr Wyvill's contention that she should refuse to exercise her discretion to extend the limitation period: "Mr Wyvill is already a party to the proceedings and will have to prepare for trial in any event. Mr Wyvill has a good recollection of relevant events. The relevant documentation is available. It is my view that over all Mr Wyvill will be afforded a fair trial. [Ms Leonard] has discharged her onus and I am satisfied that it is just and reasonable to extend the limitation period in respect of [Ms Leonard's] claim against Mr Wyvill."

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SUBMISSIONS Windsurf 63 Windsurf submitted that, in view of the Associate Judge's finding that Ms Leonard knew of Windsurf's identity and its role in the design of the Vessel by May 2005, it was not open to her Honour to extend the limitation period beyond 31 May 2006 (that is, beyond one year from the date on which a material fact of a decisive character came within Ms Leonard's means of knowledge: s 31(2)). Accordingly, her Honour had erred in ordering that the limitation period be extended until 21 December 2007. 64 Mr Parker, on behalf of Windsurf, also submitted that, insofar as her Honour may have intended to hold that Ms Leonard's motion of 9 November 2005 was "an action for damages for negligence', within the meaning of s 11 of the Limitation Act Qld), she was in error. Merely seeking an order extending the limitation period for bringing proceedings could not constitute an action for damages for negligence. Similarly, an order seeking to join Windsurf as a defendant in the Proceedings already commenced by Ms Leonard did not constitute an action for damages for negligence. There could be no such action until Windsurf was actually joined as a defendant and that did not happen until December 2007 (that is, more than one year after the critical date in May 2005). In this connection, Mr Parker relied on r 6.28 of the Uniform Civil Procedure Rules 2005 ("UCPR"), which provides that if the court orders that a person be joined as a party, the date of commencement of the Proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court specifies. 65 Mr Parker argued that the Court should grant leave to appeal because the decision of the Associate Judge, unless reversed, would be "dispositive of the liability of [Windsurf] to [Ms Leonard]'". He accepted that Windsurf had been joined as a cross-defendant in the Proceedings. However, he submitted that Windsurf would be substantially disadvantaged if called on to answer anything other than the cross-claim, since the cross-claim became significant only if Ms Leonard succeeded in establishing that Mr Eckersley or Gaincrew was liable to her.

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Ms Leonard's submissions Response to Windsurf 69 Ms Leonard submitted that, although her Honour had not attributed any significance to the motion filed on 4 September 2005 ([10] above), the actions against Windsurf and Mr Wyvill had been commenced on the date that motion was filed. Mr Butcher, who appeared for Ms Leonard, relied on the definition of "action" in s 5 of the Limitation Act (Qld) as including "any proceeding in a court of law". In any event, so he submitted, the Associate Judge correctly found that the motion filed on 9 November 2005 was "an action" that had been filed within one year of Ms Leonard having acquired knowledge or the means of knowledge of a material fact of a decisive character relating to the rights of action against Windsurf and Mr Wyvill. 70 Mr Butcher, on behalf of Ms Leonard, accepted that she could have commenced fresh proceedings by filing a statement of claim pleading a case against each of the Applicants, rather than applying for leave to join them as defendants in the Proceedings. However, he submitted that it was appropriate for Ms Leonard to avoid the cost and inconvenience of instituting fresh proceedings and to follow the established course of seeking leave to join the Applicants in the existing proceedings. 71 Mr Butcher submitted that it was unnecessary for her Honour to have extended the limitation period until 21 December 2007. It would have been sufficient for her to have extended the period until 4 September 2005 or 9 November 2005. Mr Butcher also submitted that her Honour may have intended merely to direct the filing of an amended statement of claim by 21 December 2007, rather than to have extended the period until that date. 72 In the course of oral argument before this Court, it was pointed out that, if Mr Butcher intended to rely on the filing of the motions of 4 September 2005 or 9 November 2005 as justifying the course taken by the Associate Judge, a notice of contention appeared to be necessary. A notice of contention was duly filed with the leave of the Court after the conclusion of oral argument. 73 The notice of contention filed on behalf of Ms Leonard covered a second argument relied on by Mr Butcher. He submitted that if Ms Leonard had failed to file a statement of claim in accordance with the requirements of the UCPR, the failure was to be treated as an "irregularity" under s 63(2)(a) of the Civil Procedure Act. The effect of s 63(2)(b), so Mr Butcher argued, was that any such irregularity did not invalidate the step taken. He contended that the Court should order that Ms Leonard's application to join Windsurf and Mr Wyvill be treated as the commencement of proceedings against them.

[52]

Response to Mr Carlson 75 In addition to the arguments already referred to, Mr Butcher contended that her Honour had correctly found that Mr Carlson had not suffered any significant prejudice by reason of the extension of the limitation period ordered by her Honour. Mr Butcher also pointed to what he said were evidentiary difficulties with Mr Carlson's claim to have suffered prejudice by reason of the loss of his professional indemnity insurance. 76 The notice of contention filed on behalf of Ms Leonard in relation to Mr Carlson's application for leave to appeal specifically identified the motion filed on 27 October 2006 (although mistakenly referring to 25 October 2006 as the date of filing) as the bringing of an "action" for the purposes of s 11 of the Limitation Act (Qld). The notice of contention also claimed that if the motion did not constitute an "action", her Honour should have made an order pursuant to s 63 of the Civil Procedure Act that the filing of the motion did constitute the bringing of an "action". 77 It perhaps should be noted that Mr Butcher did not submit that Ms Leonard had commenced an action against Mr Carlson within the relevant one year period by filing the 2ASC on 22 February 2007. The 2ASC pleaded an action for damages for negligence against Mr Carlson and was filed within one year of the date in June 2006 when Ms Leonard was found by the primary Judge to have become aware of her claim against Mr Carlson. A submission to this effect would have required a notice of contention to be filed. However, the notice of contention filed by Ms Leonard in relation to Mr Carlson's application for leave to appeal made no mention of any such submission. REASONING 78 Mr Butcher did not attempt to support the order made by the primary Judge extending the limitation period under s 11 of the Limitation Act (Qld) up to and including 21 December 2007. He did not dispute that the latest dates to which the limitation period could be extended under s 31(2) of the Limitation Act (Qld) were: ■ in the case of Windsurf, one year from May 2005; ■ similarly, in the case of Mr Wyvill, one year from May 2005; and ■ in the case of Mr Carlson, one year from June 2006. 79 Mr Butcher's principal argument was that identified in the notice of contention, namely that Ms Leonard had in fact brought an "action" against each of the Applicants within the relevant one year period specified in s 31(2) of the Limitation Act (Qld). Before turning to that argument, it is convenient to address the submissions made by Mr Carlson and Mr Wyvill on the question of prejudice.

[57]

■ Relevant prejudice is not confined to an inability to defend oneself, but includes other forms of " prejudice in fact ": at 555 per McHugh J (with whom Dawson J agreed). 81 In Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128, a five member Court of Appeal considered the effect of Brisbane South on an application for extension by the limitation period imposed by the Motor Accidents Act 1988 (NSW). Sheller JA, with whom Meagher and Handley JJA and Brownie AJ agreed, interpreted (at [119], 147) Brisbane South as standing for the proposition that: "an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant". The prejudice found by the trial judge in Holt v Wynter was that the potential defendant (a motor accident insurer) had been denied the opportunity to arrange for a timely medical examination (see at [31], 133 per Priestley JA). See also Salvation Army at [96] per McColl JA. 82 In Creevey v Barrois [2005] NSWCA 264, Basten JA, with whom Handley and McColl JJA agreed, specifically rejected an argument that the circumstances relevant to the grant of leave are limited to those concerning the fairness of any trial between the applicant and the prospective defendant. The Court held (at [46]) that "extraneous matters", such as the ability of the prospective defendant to seek contribution from a third party, could constitute relevant prejudice on an application for an extension of the limitation period. However, the Court also held (at [56]), following Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254, that the loss of a potential cross-claim will give rise to relevant prejudice only if the claim is shown to be "viable and realistic, rather than a fanciful or theoretical possibility". 83 There is language in some of the cases that suggests that "significant prejudice means such prejudice as would make the chances of a fair trial unlikely": Commonwealth of Australia v Smith [2005] NSWCA 478 at [128] per Santow JA (with whom Handley JA agreed); Salvation Army at [96] per McColl JA. In these cases the issue of prejudice arose because the party resisting the extension of the limitation period claimed that a fair trial could not be held. The language should not be understood as suggesting that the only form of prejudice that is relevant is the unlikelihood of being able to obtain a fair trial.

[59]

Mr Carlson 85 Her Honour made no express finding as to whether Mr Carlson would suffer prejudice if the limitation period was extended. However, she appears to have implicitly accepted that he would suffer serious prejudice. This follows from her reference to Mr Carlson finding himself in a situation of the kind described by McHugh J in Brisbane South, where his Honour explained the importance of people being able to organise their affairs on the basis that claims can no longer be made against them. Indeed, it is difficult to see how her Honour could have made any other finding. Mr Carlson maintained his professional indemnity insurance coverage on a run off basis for a year or so following his retirement in 2002. (The cover expired on 22 May 2003). He therefore had insurance coverage against any claim made by Ms Leonard during a period of about 18 months after the expiration of the limitation period provided by s 11 of the Limitation Act (Qld). Mr Carlson would have had the protection of indemnity insurance had a claim been made against him at any time during that period. 86 The Associate Judge, not having been referred to Holt v Wynter, did not advert to the proposition confirmed by that decision, namely that an application for extension of the limitation period should be refused if the effect of an extension would be to occasion significant prejudice to the potential defendant. Instead her Honour, in the passage quoted at [35] above, treated the loss of indemnity insurance coverage as merely one factor to be taken into account in determining whether Mr Carlson would receive a fair trial. Her Honour asserted that he could receive a fair trial despite the loss of insurance coverage, but did not explain why that was so. 87 In my view, her Honour's reasoning discloses an error of principle that requires the exercise of her discretionary power under s 31(2) of the Limitation Act (Qld) to be set aside. The error is that her Honour regarded the prejudice sustained by Mr Carlson if the limitation period were to be extended, as merely one factor to be taken into account in determining whether he could receive a fair trial. Brisbane South, as explained in Holt v Wynter, required her Honour, once she found that Mr Carlson would suffer significant prejudice by reason of the expiration of his professional indemnity insurance, to refuse Ms Leonard's application to extend the limitation period for the purposes of an action against him. In view of the decision in Holt v Wynter, it was not open to the Associate Judge to regard the prejudice to Mr Carlson as simply one factor to be taken into account in assessing whether he could receive a "fair trial". In any event, as I have noted, her Honour did not explain why she thought that Mr Carlson could receive a fair trial despite the absence of insurance coverage. The more important point, however, is that the extension of the limitation period would cause him significant prejudice. 88 The prejudice to Mr Carlson arising from the expiration of his professional indemnity insurance perhaps could be said to be related to his ability to obtain a fair trial. That might depend on whether Mr Carlson has the financial resources necessary to pay for adequate legal representation and to gather the material required for a robust defence, a matter as to which her Honour made no finding. The better view, however, is that, on her Honour's findings, Mr Carlson would sustain significant prejudice if the limitation period were to be extended even if that form of prejudice (the expiration of his indemnity insurance), of itself, would not impair his ability to obtain a fair trial. As I have noted, Creevey v Barrois holds that relevant prejudice is not limited to the fairness of any trial between the applicant for leave and the potential defendant. Moreover, there is no reason in principle why it should be so limited. Prejudice can take many different forms. For an individual to be forced to defend a major claim without the protection of insurance coverage that otherwise would have been available to that individual, had the claim been brought within the limitation period or shortly thereafter, is a very obvious and, ordinarily, a very serious form of prejudice. 89 If I am wrong in interpreting her Honour as having found that Mr Carlson would suffer significant prejudice if the limitation period were extended, I think she erred in failing to make such a finding. Mr Carlson's uncontradicted evidence showed that the indemnity policy held by Pettit & Carlson Pty Ltd, which covered his personal liability as a marine surveyor, lapsed in May 2001. Mr Carlson then obtained professional indemnity insurance in his own name, on a claims made basis. Mr Carlson renewed the insurance after his retirement on a run off basis until 22 May 2003. Efforts made by Mr Carlson, through his insurance broker, to renew the policy or obtain similar coverage elsewhere were unsuccessful by reason of the 'hard insurance market … and the lack of appetite that insurers currently have to your industry". 90 This evidence demonstrates that, despite his best efforts, Mr Carlson was unable to renew his indemnity policy after May 2003. Had Ms Leonard made her claim at any time prior to May 2003 (that is, some 17 months after the expiration of the limitation period), Mr Carlson would have been covered by his professional indemnity insurance. Since Ms Leonard ultimately brought her claim against Mr Carlson in 2006, if the limitation period were extended he would be required to defend the proceedings on his own, without the benefit of insurance cover. For Mr Carlson to be forced to defend a major damages claim without the protection of insurance coverage that would have been in force had the claim been brought before 2003 is seriously prejudicial to him. Mr Carlson would now be required to fund and conduct his own defence and would face the prospect of having to meet personally any damages award. If it be relevant, Mr Carlson made reasonable endeavours to extend his insurance coverage, but was unable to do so for reasons beyond his control.

[60]

Mr Wyvill 91 I also interpret the Associate Judge to have accepted that Mr Wyvill would suffer prejudice if the limitation period were to be extended. However, her Honour held that, since Mr Wyvill had to prepare for trial in any case (because he was a cross-defendant) and since he had a good recollection of relevant events, he would receive a fair trial. Because her Honour saw the issue in terms of a fair trial, she did not consider whether the prejudice that would be sustained by Mr Wyvill should have led to a refusal of Ms Leonard's application to extend the limitation period. Her Honour therefore committed the same error in relation to the application to extend the limitation period against Mr Wyvill as she did in relation to Mr Carlson. 92 As the Associate Judge pointed out, Mr Wyvill's position was different from that of Mr Carlson, in that Mr Wyvill had been joined as a cross-defendant in the proceedings when the cross-claim was filed on 17 May 2005. Her Honour accepted that Mr Wyvill had taken out insurance coverage in respect of claims made against him, but found that the coverage was no longer in force when Ms Leonard filed her motion seeking to join Mr Wyvill as a defendant. Her Honour also accepted the submission made on Mr Wyvill's behalf that the claim against him as a cross-defendant would only come "into play if there is a finding of liability against one of the defendants [Mr Eckersley or Gaincrew]". 93 If I am incorrect in interpreting her Honour's judgment as I have, I would hold that she erred in not finding that Mr Wyvill would suffer significant prejudice if the limitation period were to be extended against him. The uncontradicted evidence established that: ■ Mr Wyvill had worked for many years as an accredited marine surveyor; ■ Mr Wyvill held a professional indemnity insurance policy with QBE from 1996; ■ the policy was renewed annually until 1 January 2003; ■ at that time, QBE advised Mr Wyvill that it could not continue to provide coverage for him; ■ Mr Wyvill made a number of inquiries and eventually secured " claims made " coverage until 15 January 2004 with Aon ; ■ nonetheless, Mr Wyvill no longer practised as a marine surveyor because of the difficulties in obtaining insurance coverage; ■ when Aon advised that it would no longer provide coverage for the marine industry, Mr Wyvill obtained cover with a third insurer, ITIC; ■ ITIC provided Mr Wyvill with " retroactive " coverage, apparently limited to claims arising out of events occurring on or after 15 January 2002; and ■ the ITIC policy was still in force at the date of the hearing before the Associate Judge. 94 If Ms Leonard had made her claim against Mr Wyvill at any time prior to 15 January 2004 (that is, a date more than two years after the expiration of the limitation period), Mr Wyvill would have been covered by an indemnity policy issued either by QBE or Aon. Because Ms Leonard only made her claim against Mr Wyvill in September 2005, he lost the benefit of any insurance coverage under the "claims made" policy. For the reasons I have given, the expiration of his insurance coverage would result in serious prejudice to Mr Wyvill, should the limitation period be extended against him. 95 The fact that Mr Wyvill was joined as a cross defendant to the Proceedings in May 2005 in my opinion does not alter this conclusion. As the Associate Judge pointed out, Mr Wyvill is at risk under the cross-claim only if Ms Leonard's claim succeeds against Mr Eckersley or Gaincrew. If Mr Wyvill is joined as a defendant in the Proceedings, his role in the litigation will necessarily be greater than if he is merely a cross-defendant. Moreover, the cross-claim was filed six and a half years after the relevant events. Mr Wyvill has pleaded what seems to be a plausible limitations defence to the cross-claim. He may, therefore, have a short, but effective answer to the cross-claim filed against him. If his pleaded contention is correct, an extension of the limitation period for the purposes of Ms Leonard's action would expose him to a liability against which he would otherwise be protected.

[62]

" Action for Damages for Negligence " 98 No issue as to prejudice arises on Windsurf's application for leave to appeal from the judgment extending the limitation period against it. Moreover, there is no dispute in substance that her Honour did not have power to extend the limitation period until 21 December 2007. Nor is there any dispute that her Honour correctly found that there was evidence to establish a right of action against Windsurf apart from any limitation defence (s 31(2)(b)). 99 The critical question, subject to any argument based on s 63 of the Civil Procedure Act, is therefore whether Ms Leonard brought "an action for damages" within one year from the date a material fact of a decisive character relating to the right of action against Windsurf was within her means of knowledge. That date was the day in May 2005 on which Ms Leonard learned that Windsurf was the designer and builder of the vessel. If the answer is yes, it would be open to this Court to order an extension of the limitation period until the date the action against Windsurf was commenced. 100 On 4 September 2005, Ms Leonard filed a motion seeking to join Windsurf as a defendant to the Proceedings already instituted against Mr Eckersley and Gaincrew. The motion was accompanied by an affidavit annexing a proposed amended statement of claim. The proposed pleading, although not a model of clarity and particularity, seeks damages against Windsurf by reason of its negligence, specifically failing to include in the plans for the Vessel appropriate handrails and emergency lighting. 101 As has been seen, other motions were filed by Ms Leonard, but it is not necessary to deal with them separately. 102 It is clear that the filing of the motion of 4 September 2005, of itself, did not constitute Windsurf as a defendant to the Proceedings. If that was to happen, the leave of the Court was required since Ms Leonard was not entitled to amend her statement of claim without leave: UPCR rr 19.1(1), 19.2. Moreover, if leave to amend the pleading were granted, the date of commencement of the Proceedings against Windsurf would be the date the amended statement of claim was filed: UPCR r 19.2(4). Similarly, if the Court ordered that Windsurf be joined as a party, the date of the commencement of the Proceedings against him would be "taken to be the date on which the order is made or such later date as the court may specify in the order": UCPR r 6.28. 103 The question is, however, not whether Ms Leonard is taken to have commenced proceedings against Windsurf within a particular period for the purposes of the UCPR. The question is whether she brought "an action for damages for negligence" against Windsurf within the period specified in s 31(2) of the Limitations Act (Qld) for the purposes of s 11(1). If she did bring such an action, it was open to the Associate Judge, acting pursuant to s 31 of the Limitation Act (Qld), to extend the limitation period to the date the action was brought, provided that the pre-conditions specified in s 31(2) were satisfied. 104 The reference in s 11 to "an action for damages for negligence" is to a compound concept. There must not only be an "action", but the action must be one for "damages for negligence". Nonetheless, it is useful to commence with considering whether the motion filed on 4 September 2005 was an "action" for the purposes of the Limitation Act (Qld). 105 The definition of "action" in s 5 of the Limitation Act (Qld) is broad, in that it includes "any proceeding in a court of law". This definition was taken from s 31 of the Limitation Act 1939 (UK) ("Limitation Act (UK)"). The English Court of Appeal has attributed the inclusion of this definition to the fact that many of the proceedings dealt with by the Limitation Act (UK), such as actions for foreclosure and redemption, were commenced by originating summons and not by the filing of a writ: WT Lamb & Sons v Rider [1948] 2 KB 331 at 335, 338 per curiam; Tonkin v Johnson [1999] 1 Qd R 318 at 325 per McPherson JA (with whom Williams and Cullinane JJ agreed). 106 Whatever the historical reasons for including the definition of "action" in the Limitation Act (UK), it has received a broad construction. Thus in China v Harrow Urban District Council [1954] 1 QB 178, the Court of Appeal held that the issue of a distress warrant as a means of recovering rates was an "action" within the definition. This was so notwithstanding that it was settled law that no action lay for the recovery of rates and that the only method for recovery was that laid down in the Poor Relief Act 1601, namely by application to the justices for a distress warrant: at 183 per Lord Goddard CJ. The language used in the definition showed that it was intended to apply to proceedings "to which the term 'action' would be inapplicable": at 185 per Lord Goddard CJ. The Court was not troubled by the apparent inaptness of the expression "cause of action" in the equivalent to s 11 of the Limitation Act (Qld), when applied to proceedings for a distress warrant to enforce an obligation to pay rates. Although there was no cause of action in the usual sense, there was a "cause of proceeding in a court of law": at 187 per Sellers J. 107 The approach taken in China v Harrow UDC is consistent with Lord Denning MR's observation, in another context, that "any application to the court, however informal, is a 'proceeding'": Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735. It was held in that case that an application for leave to extend time was "a proceeding" in its own right and thus attracted a power to cure irregularities in "proceedings". 108 If the only authorities in point were those to which I have referred I would have been inclined to conclude that Ms Leonard, by filing the motion of 4 September 2005, had commenced an "action" against Windsurf on that date for the purposes of s 11 of the Limitation Act (Qld). There is no doubt that if Ms Leonard had commenced proceedings against Windsurf by filing a statement of claim incorporating the allegations identified in the draft pleading annexed to the solicitor's affidavit accompanying the motion of 4 September 2005, she would have been held to have instituted an "action" for damages for negligence against Windsurf. The procedure Ms Leonard chose (filing a motion for leave to join Windsurf in the Proceedings) was apt as a means of initiating proceedings against Windsurf. By this I mean that the procedure adopted recognised that the most convenient course was for Ms Leonard's claim against Windsurf to be litigated in the Proceedings to which it obviously related. Had Ms Leonard filed a statement of claim against Windsurf, she would have had to file a separate motion seeking an order consolidating the two proceedings if she wished to avoid duplication: cf Civil Procedure Act s 56(1). It would seem to be odd if Ms Leonard's choice of an otherwise apparently appropriate procedure cannot be regarded as an "action", yet a potentially more expensive and dilatory procedure can be so regarded. However, as Bell JA has pointed out, the matter is not free from additional authority. 109 In Fernance v Nominal Defendant (1989) 17 NSWLR 70, Gleeson CJ, with whom Clarke JA agreed, held that an order made by a Master that a named person (Mrs Vaneck) be joined as a defendant in certain proceedings did not, of itself, constitute the commencement of an action against that person for the purposes of the Limitation Act 1969 (NSW). Gleeson CJ said (at 717-718) that he could not: "accept that, simply by virtue of Master Greenwood's order, an action was commenced against Mrs Vaneck. Whether Master Greenwood was exercising a power under P 8, r 4 or r 8 or Pt 20, r 1, [of the Supreme Court Rules 1970 (NSW)] the plaintiff was clearly seeking from him, and obtained, leave to amend the statement of claim. The amendment proposed was not a simple amendment that could be effected by writing Mrs Vaneck's name on the statement of claim. It required the preparation and filing of a further statement of claim." 110 Gleeson CJ made no reference to the definition of "action" then contained in s 11(1) of the Limitation Act 1969 (NSW), which was identical to the Queensland definition. His Honour therefore did not consider whether the definition supported the argument which he rejected. Nor did he consider the authorities to which I have referred. Nonetheless, his conclusion formed part of the ratio in the case. 111 Similarly, in Cameron v National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133, McPherson SPJ (with whom Moynihan J agreed) held (at 136) that an "action" is "brought" for the purposes of s 10(1) of the Limitation Act (Qld) "when the writ is issued, or more specifically, when it is sealed". In this case also McPherson SPJ made reference neither to the definition of "action" nor to the authorities to which I have referred. Nonetheless, it is a decision in point, there being no material difference between ss 10 and 11 of the Limitation Act (Qld). 112 It follows from Fernance and Cameron that on the current state of the authorities, the filing by Ms Leonard of a motion seeking to join Windsurf in the Proceedings did not constitute the bringing of an "action" for the purposes of s 11 of the Limitation Act (Qld). 113 It is therefore not necessary to consider whether, if the filing of a motion did constitute the bringing of an "action", the action was one "for damages in negligence" for the purposes of s 11 of the Limitation Act (Qld). However, I think the better view, on the assumption I have identified, is that the motion was an "action for damages in negligence". It was a proceeding in a court of law the object of which was to initiate a claim for damages by reason of the negligence of the putative defendant. The nature of the claim against Windsurf was readily apparent from the affidavit (and its annexure) filed in the Registry of the Court and which formed part of the Court file. But it is unnecessary to resolve this issue. 114 I agree with Bell JA that s 63 of the Civil Procedure Act does not avail Ms Leonard. 115 For these reasons, the orders that I propose are: (1) Grant leave to each of the applicants to appeal from the decision of the Associate Judge given on 7 December 2007.

Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard

At a glance

Court

Decision date

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Judgment (68 paragraphs)

Legislation Cited (13)

Cases Cited (18)

Cited By (11)