Yrttiaho v Copely

Yrttiaho v Copely - [1971] HCA 29 - HCA 1971 case summary — Zoe

[5]

However, the rights of the parties quite clearly, in my opinion, do not depend either upon the common law rules or solely upon the provisions of s. 20 (1) (c). They depend in my view upon the provisions of s. 20 (1) (e) and its proper construction and application. The point of the case, in my opinion, is simply one of construction of that provision. The paragraph must of course be read as a whole. The matter cannot be resolved by merely reading so much of it as precedes the words "and any such investigation" etc. These words are part of par. (e), following the words "punishment as aforesaid". Read as a whole, I am quite unable to accept the view that when it refers to an investigation or legal proceeding or remedy that it is referring to the existence of a right to bring proceedings or to seek remedies or to conduct investigations. The prior paragraph does that if the right satisfies its terms. Paragraph (e) includes in its premise the supposition that at the time of the amendment there is on foot an actual investigation, legal proceeding, etc. It says and I quote it "any such investigation, legal proceeding, or remedy may be continued as if the repealing or amending Act had not been passed,". After due consideration, and with due respect for the views of those who may not share my opinion I am quite unable to apply this provision to the facts of this case otherwise than to treat the appellant as being in the position of being able to continue his action as if no amendment had been made to O. 90, r. 9. Prior to the amendment he was undoubtedly in the position that he could continue that action without the assistance of an order of a judge up to the expiry of six years from the date of the last step having been taken. The section, in my opinion, says in the plainest, and to my view the most unambiguous of language that he is to remain in that situation notwithstanding the amendment. It is not a matter of conceding him some vested right in court procedure. It is simply a matter of applying the clearly expressed provision of the statute.

[46]

Most of the rules amended by the Order in Council gazetted on 14th February 1969 dealt with matters of procedure, but this does not necessarily mean that O. 90, r. 9 must also be classed as merely procedural. The period of three years now mentioned in O. 90, r. 9 is the same as that provided in the Law Reform (Limitation of Actions) Act of 1956 Q. as the period of limitation of actions of negligence where the damages claimed consist of or include damages for personal injury, so that when three years have elapsed since the last step has been taken in an action for damages for personal injury caused by negligence a new writ cannot be issued on the cause. The result is that not only is the action itself for ever stayed, unless the Court or judge makes an order to the contrary, but the plaintiff's cause of action is for ever barred by the Statute of Limitations in every court to which the three-year period applies. Considerations of this kind led Dixon C.J. in William Crosby & Co. Pty. Ltd. v. The Commonwealth [2] to suggest that O. 60, r. 12 (2) of the High Court Rules, which derived from O. 90, r. 9, may go further than procedure. However, although the amendment to O. 90, r. 9 might have affected vested rights if it had applied to cases where the three-year period had elapsed before the amendment took effect, in the present case, in my opinion, the operation of the amendment to O. 90, r. 9 was purely procedural. The amendment did not impair the appellant's right or bar his cause of action. After the amendment took effect the appellant remained entitled to continue with his action and enforce his right. It is true that it then became necessary for him to take a fresh proceeding in the action before 24th June 1966, unless he could obtain the leave of the Court or a judge, whereas previously the rule had allowed him until 24th June 1969 for this purpose. This only means that the rule governing the manner in which the action has to be conducted had been amended. The change was one in procedure; the amendment to the rule affected the manner in which the appellant might proceed in his action for the purpose of enforcing his right but the right remained enforceable. It is also true that the appellant cannot now proceed in the action, and is barred by statute from bringing another action to enforce the right, but that is due, not simply to the fact that the rule was amended, but to the inaction of the appellant or his legal advisers after the amendment was gazetted.

[48]

An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. The reasoning of Dixon C.J. in Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [2] , suggests that he recognized a similar distinction. It is in my opinion a valid distinction, and the decisions are consistent with it, even when they do not expressly recognize it. The authorities support the view that an amendment to a Statute of Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought. In these circumstances the substantive rights of the parties are not affected by the alteration of the limitation period. In The Ydun [1] it was held in the Court of Appeal that the Public Authorities Protection Act, 1893 U.K., which was passed on 5th December 1893 and came into force on 1st January 1894, and which introduced a new limitation period of six months in the case of certain actions, dealt with procedure, and operated so as to bar an action, commenced by writ not issued until 14th November 1898, for damages sustained by the grounding of the plaintiffs' vessel on 13th September 1893 through the alleged negligence of the defendants. The six months' limitation period did not expire in that case until some months after the Act came into operation, and the plaintiffs therefore had an opportunity to commence an action within time. The fact that the Act was expressed to come into operation at a future date might have been regarded as significant, for reasons which I shall give later, but the members of the Court in their judgments do not deal with this aspect of the matter. The decision has frequently been cited and although the judgments have been criticized (see Maxwell v. Murphy [2] ) the decision itself has never been disapproved or overruled and was in my opinion correct. The Ydun [1] was a case, like the present, in which the statutory period of time was reduced. In Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [1] and Australian Iron & Steel Ltd. v. Hoogland [2] , an amendment extending the time within which proceedings for workers' compensation might be commenced was held applicable to the cases before the Court, where the right to compensation had arisen before the date of the amendment, but the proceedings had not become finally barred before that date. Those cases are to be distinguished from Maxwell v. Murphy [3] where the plaintiff's right, which had been barred by lapse of time before the amending statute took effect, was not revived by the amendment. 1. (1957) 96 C.L.R., at pp. 277-278. 2. (1959) 101 C.L.R. 629, at pp. 636, 638. 3. [1899] P. 236. 4. (1957) 96 C.L.R., at pp. 270-271. 5. [1899] P. 236. 6. (1959) 101 C.L.R. 629. 7. (1962) 108 C.L.R. 471. 8. (1957) 96 C.L.R. 261.

[60]

For convenience, I shall, in dealing with this argument, use the word "right", intending that word to include a reference to "power", "privilege" and "capacity", and, if it matters, to "interest", "title" and "status" as well. If on 12th February 1966 the appellant had a "right" within the meaning of s. 20 (1) (c) to proceed with the action in accordance with O. 90, r. 9, the amendment of the rule on that date would not affect that right, unless the contrary intention appeared from the Order in Council effecting the amendment. It may be noticed that O. 90, r. 9 did not itself give any right to proceed. If O. 90, r. 9 had not appeared in the rules, a party to an action was free to proceed with it in accordance with the other provisions of the Rules of the Supreme Court. Order 90, r. 9 placed restrictions on an existing right to proceed. If the appellant has a right which is affected by the amendment the source of that right must lie elsewhere in the rules and not in O. 90, r. 9. However, in my opinion, the appellant had no right within s. 20 (1) (c) because that paragraph on its proper construction does not refer to rights of a procedural kind, such as a right to take a fresh step in a pending proceeding. I do not, of course, deny that the expression "right", standing alone, would include a right belonging to the area of procedure. However, legal proceedings and remedies are dealt with in s. 20 (1) by par. (e) and by the words which follow it, which provide that prima facie an amendment shall not affect any investigation, legal proceeding or remedy in respect of an accrued right and which go on to provide for the institution, continuance or enforcement of any such investigation, legal proceeding or remedy as if the amending Act had not been passed. The express mention in these provisions of legal proceedings and remedies, and the contrast with the earlier paragraph which relates to rights, make it clear to my mind that par. (c) is not concerned with matters of procedure, but only with rights of a substantive kind (using the term "rights", as I have already indicated, to refer as well to the other concepts mentioned in the paragraph).

[64]

"One exception to the general rule" (that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, other than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment) "has sometimes been suggested, namely, that where, as here, the commencement of the operation of an Act is suspended for a time, this is an indication that no further restriction upon retrospective operation is intended. But this exception seems never to have been suggested except in relation to statutes affecting procedure, such as Statutes of Limitation, and even in relation to them it is questioned in Moon v. Durden [6] ." In my opinion, although Wright J. was doubting the generality of any rule of construction that a postponing clause shows that the statute in which it appears is intended to operate retrospectively, he was not denying its application in some cases, such as the present, where the amendment is concerned with a matter of procedure, and particularly with the time within which something is to be done. For the reasons given, I hold that the amendment to O. 90, r. 9 had a purely procedural operation in the present case and, in my opinion, the fact that the Order in Council provided that the rules should take effect as from a date about two months thence was an indication that it was intended that when they did take effect they would govern pending proceedings as well as proceedings thereafter instituted. This would be a sufficient indication of intention that the provisions of s. 20 (1) (c) and (e) should not apply, assuming them to be otherwise applicable. 1. (1829) 6 Bing. 258, at p. 264 [130 E.R. 1280, at p. 1282]. 2. (1860) 6 H. & N. 227, at p. 231 [158 E.R. 94, at p. 95]. 3. (1848) 2 Ex. 22, at pp. 34-36 [154 E.R. 389, at pp. 394-395]. 4. (1852) 18 Q.B. 343 [118 E.R. 129]. 5. (1875) 2 Ch. D. 9, at pp. 13-14. 6. (1868) L.R. 4 C.P. 17, at p. 19. 7. [1898] 2 Q.B. 547, at p. 553. 8. (1848) 2 Ex. 22 [154 E.R. 389].

[66]

The alternative ground stated in the notice of appeal, that the Full Court ought to have held that the learned primary judge exercised his discretion wrongly in failing to give leave to the plaintiff to take a fresh proceeding in the action, although not formally abandoned, was not pressed in argument before us. In exercising his discretion against the appellant the learned primary judge appears to have regarded as decisive the fact, as he found it, that the Public Curator, as personal representative of Smith, would probably be prejudiced in consequence of the delay if the action were allowed to proceed. The considerations relevant to the exercise of a discretion under O. 90, r. 9 have been discussed in a number of cases in the Supreme Court (see Campbell v. United Pacific Transport Pty. Ltd. [1] ; Kaats v. Caelers [2] ; Lucas v. Grimley [1] ; Tate v. McLeod [2] ; Gleeson v. Brock [3] ) and it has never been doubted that the prejudice that would be occasioned to a defendant by the delay if an order were made under O. 90, r. 9 is a material factor. It was right for the learned primary judge to consider in the present case the fact that prejudice would be occasioned by the delay and the weight which he gave to that matter lay within his discretion. Although it is impossible to say that the learned primary judge took any extraneous matter into account, it appears to have been suggested in the Full Court that he failed to have regard to a material consideration and that for that reason the exercise of his discretion is open to attack. In the reasons of W. B. Campbell J. it is said that the learned primary judge "did not have regard to the amendment to the rule, his attention not being drawn to it by counsel" [1] . Matthews J. said that "the attention of the judge in chambers was not directed to the change in the law which even then might have been considered to have had relevance to the exercise of his Honour's discretion" [2] . The record before us does not contain any material that would support these statements and we were not informed what additional communication, if any, was made to the Full Court on the point. Both the summons and the affidavits before the learned primary judge showed that the application was made under the rule in its amended form. I would not be disposed to assume that the learned primary judge was unaware of the important amendments effected by the Order in Council of 14th December 1965 or that the rule had been put into its present form by those amendments; certainly the fact that counsel did not expressly draw his attention to the matter is no ground for concluding that he was not aware of it. However, Matthews J. (with whose judgment on this aspect of the matter Wanstall J. agreed) went on to say [1] :

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