Seltsam Pty Ltd v Workers' Compensation Board of Queensland
[1998] QCA 410
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- Unreported Judgment
- Seltsam Pty Ltd v Workers' Compensation Board of Queensland[1998] QCA 410
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Seltsam Pty Ltd v Workers' Compensation Board of Queensland[1998] QCA 410
Seltsam Pty Ltd v Workers' Compensation Board of Queensland[1998] QCA 410
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 403 of 1998
Brisbane
| Before | McMurdo P. Byrne J. Cullinane J. |
[Seltsam P/L v. WCBQ & Ors.]
BETWEEN:
SELTSAM PTY LTD
ACN 001 754 574
(Second Defendant) Appellant
AND:
WORKERS’ COMPENSATION BOARD OF QUEENSLAND
(First Plaintiff) First Respondent
AND:
VERONICA IRENE BEVIS and PETER FRANCIS BEVIS
(Second Plaintiffs) Second Respondents
AND:
JOHN SILK PTY LTD
ACN 009 752 658
(Third Plaintiff) Third Respondent
AND:
T.F. WOOLLAM & SON PTY LTD
ACN 009 676 064
(Fourth Plaintiff) Fourth Respondent
JAMES HARDIE & COY PTY LTD
ACN 000 035 512
(First Defendant)
Judgment delivered 4 December 1998
Joint reasons for judgment of McMurdo P. and Cullinane J.; separate reasons of Byrne J. concurring as to the order made.
APPEAL DISMISSED WITH COSTS.
| CATCHWORDS: | LIMITATION OF ACTIONS - whether expiration of limitation period against joint tortfeasors takes effect without reference to any extension granted to injured party pursuant to s 31(2) of Limitation of Actions Act 1974 - meaning of “period of limitation prescribed by this Act” and “the action for the liability in respect of which contribution is sought” in Limitation of Actions Act 1974 s 40(3) Law Reform (Limitation of Actions) Act 1956, s 5 Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952, s 5(c) Limitation Act 1968 (NSW), s 26, s 58 Limitations of Actions Act 1974, s 31, s 40(1)(b), s 40(3) Report of the Law Reform Commission on a Bill to Amend and Consolidate the Law Relating to Limitation of Actions (Qld) QLRC 14 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Price v J F Thompson (Qld) Pty Ltd [1990] 1 QdR 278 Robins v Downes (1996) 24 MVR 180 |
| Counsel: | Mr D. Fraser Q.C. for the appellant Mr R. Douglas for the respondents |
| Solicitors: | Ebsworth & Ebsworth for the appellant Quinlan Miller & Treston for the respondents |
| Hearing Date: | 10 September 1998 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 403 of 1998
Brisbane
| Before | McMurdo P. Byrne J. Cullinane J. |
[Seltsam P/L v. WCBQ & Ors.]
BETWEEN:
SELTSAM PTY LTD
ACN 001 754 574
(Second Defendant) Appellant
AND:
WORKERS’ COMPENSATION BOARD OF QUEENSLAND
(First Plaintiff) First Respondent
AND:
VERONICA IRENE BEVIS and PETER FRANCIS BEVIS
(Second Plaintiffs) Second Respondents
AND:
JOHN SILK PTY LTD
ACN 009 752 658
(Third Plaintiff) Third Respondent
AND:
T.F. WOOLLAM & SON PTY LTD
ACN 009 676 064
(Fourth Plaintiff) Fourth Respondent
JAMES HARDIE & COY PTY LTD
ACN 000 035 512
(First Defendant)
JOINT REASONS FOR JUDGMENT - McMURDO P. AND CULLINANE J.
Judgment delivered 4 December 1998
- This is an appeal from the judgment of the learned Chamber Judge wherein the following declaration was made:
“IT IS DECLARED THAT the second defendant is precluded from relying upon Section 40 of the Limitations of Action Act 1974 (Qld) by way of defence to the plaintiff’s (sic) claims in this action by reason of the circumstance that in Action No. 67 of 1995 an order was made on 13th March 1995 extending the expiry of causes of action by John Bevis against the plaintiffs to that date which was one year after 27th October 1994.”
- On 13 March 1995, Lee J. had ordered, in respect of an action brought by John Bevis against the plaintiffs (the respondents in this appeal) for personal injuries in respect of mesothelioma suffered by Mr Bevis through exposure to asbestos in the course of his employment:
“That pursuant to s. 31 of the Limitation of Actions Act 1974 the limitation for the right of action of the plaintiff against the defendants be extended so that the period of limitation expires ONE (1) YEAR after the 27th October 1994.”
- Section 31of the Limitation of Actions Act 1974 (“the Act”) allows for extension of the period of limitation for certain actions in particular circumstances. Section 31(2) relevantly provides:
“... the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” (emphasis added)
- Mr Bevis last had contact with asbestos in April 1972 so the extension period was substantial. Mr Bevis’ action was originally subject to a three year limitation period under s. 5 of the Law Reform (Limitation of Actions) Act 1956, which was superseded by s. 11 of the Act. Mr Bevis’ action against the plaintiffs was compromised on 22 May 1995.
- The plaintiffs then claimed contribution from the defendants under s. 5(c) of the Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld.) in respect of damages payable under the compromise of Mr Bevis’ action. That section provides:
“Where damage is suffered by any person as a result of a tort ...
- Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.”
- The Court has no power in respect of a claim for contribution to grant an extension of the limitation period established by s. 11 of the Act.
- Prior to the enactment of s. 40 of the Act, under s. 5(c) of the Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 now re-enacted as s. 6(c) of the Law Reform Act 1995, if, at the time a tortfeasor claims contribution from a second joint tortfeasor in respect of an action brought by the injured party against the first tortfeasor, the injured party’s rights are statute-barred, then the second joint tortfeasor cannot rely on the expiration of the limitation period in the injured party’s action against the first tortfeasor in order to avoid its liability to the first tortfeasor.[1]
- The second defendant (the appellant in this appeal) claims s. 40 has no application where the injured party has been granted an extension of time under s. 31 of the Act and that any claim the plaintiffs have against the second defendant is limited to four years from the expiration of the limitation period in Mr Bevis’ action under s. 5 of the Law Reform (Limitation of Actions) Act, and is now statute-barred.
- The Act provides in s. 40:
Contribution Between Tortfeasors
“40.(1)An action for contribution under section 5(c) of the Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952 shall not be brought after the expiration of the first of the following periods to expire -
- a period of limitation of 2 years running from the date on which the right of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims;
- a period of limitation of 4 years running from the date of the expiration of the period of limitation for the principal action.
...
(3)In subsection (1)(b) -
“the period of limitation for the principal action” means the period of limitation prescribed by this Act or by an other enactment (including an enactment repealed by this Act) for the action for the liability in respect of which contribution is sought.
(4)Nothing in this section affects the construction of section 5 of the Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1975.” (Emphasis added)
- It is common ground that s. 40(1)(a) does not apply as s. 40(1) requires that the action for contribution shall not be brought after the expiration of the first of the periods set out in s. 40(1)(a) or (b). As the plaintiffs’ action arose out of the compromise on 22 May 1995, the plaintiffs were not statute-barred under s. 40(1)(a). They are only statute-barred if the second defendant’s contention as to the meaning of s. 40(1)(b) is correct.
- The question for determination by the Court is whether s. 40(1)(b) means:
- as contended by the second defendant that the expiration of the limitation period takes effect without reference to any extension granted under s. 31 of the Act to Mr Bevis’ action against the plaintiffs, in which case the action would be statute barred; or
- as the plaintiffs contend, that the “principal action” referred to in s. 40(1)(b) is Mr Bevis’ action and “the date of expiration of the period of limitation” is not the date of the expiration of the limitation period of three years pursuant to s. 11 of the Act, but rather the extended expiry date as ordered by Lee J., namely 27 October 1995, in which case the second defendant’s action would not be statute barred.
- The issue is the meaning of “the period of limitation prescribed by this Act” in s. 40(3) and in particular the meaning of the word ‘prescribed’.”
- Either contention can result in perceived injustice. If the plaintiffs’ contention is correct, it is possible for a party to be joined as a contributing tortfeasor long after an action would be otherwise statute barred, without having had an opportunity to be heard on the injured party’s application for extension of the limitation period as to any possible resulting injustice to that contributing tortfeasor. There is also the prospect that if, on application for extension of the limitation period brought by the injured party, the limitation period is extended in respect of one joint tortfeasor but not in respect of the second tortfeasor, the first tortfeasor could then seek contribution against the second tortfeasor, even though the injured party was unable to obtain an extension of time against the second tortfeasor.
- On the other hand, if the second defendant’s contention is correct, an injured party seeking an extension of the limitation period under s. 31 may be barred from commencing actions against joint tortfeasors at the expiration of the original limitation period plus four years or a joint tortfeasor, without fault on its part, would be deprived of the right to recover contribution against another joint tortfeasor. Whilst tortfeasors joined as defendants do not require a notice of contribution because the court has power under s. 5(c) of the Law Reform (Tortfeasors Contributory Negligence and Division of Chattels) Act 1952 to apportion the responsibility of the damage between co-defendants and to award one defendant contribution against the other accordingly (see O'Neill v. Cowan’s Scaffolding Hire Service),[2] injustice could flow, depending on the injured party’s decision as to which tortfeasor(s) it sues and against which it seeks to enforce judgment.
- The learned Chamber Judge preferred the plaintiffs’ contention. His Honour’s decision was consistent with the reasons for judgment of Hayne J.A. (as he then was) with whom Callaway J.A. and Smith A.J.A. agreed, in Robins v. Downes.[3] The court, construing the Queensland Act, held that the “period of limitation prescribed by this Act” in s. 40(3) referred to the period fixed as the result of an extension application under s. 31 of the Act. Hayne J.A. (as he then was) said:
“In my view the latter construction is plainly to be preferred. Section 31 contemplates the making of an order extending the period of limitation. True it is, that period is extended for the purposes of a particular action but it is, nevertheless, an extension of the period of limitation and is an extension that is provided for by the Act. That is, it is a limitation period that is prescribed by the Act for the purposes of the particular action concerned.
To construe the legislation in the way for which the defendant contends would mean either that plaintiffs seeking extension of limitation periods under s. 31 would find themselves barred from commencing action against joint tortfeasors at the expiration of the principal limitation period plus four years or that the joint tortfeasors would be unable to pursue rights of contribution against each other. If plaintiffs are barred, that would not be because it would be unjust as between the plaintiff and each of those joint tortfeasors to extend the limitation period but because the defendants could not make contribution claims between themselves. If plaintiffs are not to be barred in the case which I have given, the defendants would be denied their rights of contribution. Neither result is acceptable and the difficulty apparently thus created is one tending strongly against the construction for which the defendant contended. However, even without regard to these consequences I would read the words of the section as bearing the meaning for which the plaintiff contended.”[4]
- The second defendant argues that Robins v. Downes is wrongly decided, as relevant matters were not considered by the court. Firstly, Mr D Fraser Q.C., on behalf of the second defendant submits, the court was not referred to Price v. J.F. Thompson (Qld.) Pty Ltd.[5] In deciding whether time ran on a weekend for the purposes of s. 11 of the Act, the majority, Moynihan J. and de Jersey J. (as he then was), discussed the meaning of “prescribed” within s. 38(3) of the Acts Interpretation Act 1954 to assist in the interpretation of s. 11 of the Act. Moynihan J. said:
“That consequence is avoided by bringing an action before the expiration of the prescribed time. Someone who wishes to avoid that consequence is directed or enjoined to a course to be followed; i.e. the institution of proceedings, which will avoid the bar for which the statute provides. Put another way, a course to be followed which will avoid the undesired consequences is ordained or enjoined. In my view then s. 11 prescribes a time for the institution of proceedings (for the doing of something) in the sense in which ‘prescribed’ is used in s. 38(3) of the Interpretation Act.
If the prescription of time for doing something necessarily involves a period with a beginning and an end, and I do not accept that it necessarily does, s. 11 achieves that. The beginning is marked by the accrual of the cause of action and the end by the expiration of the period after which an action for damages is not to be brought.”[6]
de Jersey J. said:[7]
“I consider that s. 11 of the Limitation of Actions Act does ‘prescribe’ the period of time within which an action of this character may be commenced.”
and:[8]
“The Act, in s. 11, does nevertheless appoint and limit the requisite period and confine it within bounds, within the ordinary meaning of those concepts. The section does that by specifying the time from which the limitation period begins to run (the time of the accrual of the cause of action) and the number of years thereafter within which the action must be commenced. ...
I am of course concerned with the meaning of ‘prescribe’ as used in the Acts Interpretation Act, and the word is not necessarily used in the same sense in both Acts. This use in the Limitation of Actions Act does however provide some confirmation that the ordinary meaning of the word ‘prescribe’ is apt to include this situation, there being no indication that, as used in the Limitation of Actions Act the word ‘prescribe’ bears any special connotation.”
Section 11 prescribes the limitation period for the types of actions there set out, and is in Part 2 of the Act headed - Periods of Limitation for Different Classes of Action, whilst ss. 29-40 are in Part 3 of the Act headed - Extension of Periods of Limitation. Price v. J.F. Thompson (Qld) Pty Ltd deals with the meaning of “prescribed” within s. 38(3) of the Acts Interpretation Act 1954 and with s. 11 of the Act and can only be of limited assistance in interpreting the meaning of “prescribed” in s. 40(3) of that Act, as the learned Chamber Judge correctly noted.
- Mr D Fraser Q.C. for the second defendant contends that the Act requires that a particular time limit be prescribed by the Act with a beginning and an end: a prescribed period cannot include the exercise of a discretion to create a beginning and an end such as that exercised under s. 31 of the Act. Part 3 of the Act provides for extensions of prescribed periods of limitation under the Act. Although an extended limitation period will involve an exercise of discretion under s. 31 of the Act, the dates to which the limitation period is extended will be determined with a degree of precision, as required by s. 31(2) of the Act, sufficient for the extended period to then become “the period of limitation prescribed by this Act” or by the earlier Act which it superseded. There is nothing in this argument that persuades us that either Robin v. Downes or this case below was wrongly decided.
- Secondly, the appellant claims that Robins v. Downes[9] should not be followed because the court there was not referred to the Law Reform Commission Report and the Parliamentary Debates concerning the Act. Section 14B of the Acts Interpretation Act allows the court to refer to extrinsic material including Law Reform Commission Reports in order “if the provision is ambiguous or obscure - to provide an interpretation if it;”. The Act (“the Qld Act”) is largely based on the Limitation Act 1968 (N.S.W.) (“the N.S.W. Act”). The counterpart of s. 40 of the Qld Act is s. 26 of the N.S.W. Act which relevantly provides:
“(3) In paragraph (b) of sub-section (1) of this section, the expression ‘the limitation period for the principal cause of action’ means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought.” (emphasis added),
whilst s. 40(3) of the Qld Act provides that the phrase:
“means the period of limitation prescribed by this Act ... for the action for the liability in respect of which contribution is sought.” (emphasis added)
- Section 58 of the N.S.W. Act is in similar terms to s. 31 of the Qld Act but s. 58(2) specifically provides that:
“the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of sub-section (1) of section 26 of this Act, the limitation period is extended accordingly.” (emphasis added)
The words in emphasis are not included in s. 31 of the Qld Act.
- Section 33 of the Qld Act is in similar terms to s. 61 of the N.S.W. Act and provides:
“Prior bar ineffective
33.Where after the expiration of a period of limitation to which this Part applies, the period of limitation is extended by order under this Part, the prior expiration of the period of limitation has no effect for the purposes of this Act.”
- There are significant differences in the format of the two Acts. Section 26 of the N.S.W. Act (which deals with the contribution between tortfeasors and is the equivalent of s. 40 of the Qld Act) is in Part 2 of the N.S.W. Act headed Periods of Limitation and Related Matters, whilst ss. 56 and 61 of the N.S.W. Act, the equivalent to ss. 31 to 33 of the Qld Act, are contained in Part 3 headed Postponement of the Bar. In the Qld Act, s. 40 is contained, together with ss. 31 and 33, in Part 3 headed Extensions of Periods of Limitations.
- It may be that s. 58 makes a specific reference to s. 26 because each section is in a different part of the Act, unlike the position under the Qld Act where ss. 31, 33 and 40 are in the same part: the Queensland draftspersons may have regarded the italicised words set out earlier in s. 58(2) of the N.S.W. Act as unnecessary because ss. 31 and 33 are in the same part as s. 40 (the Queensland equivalent to s. 58 of the N.S.W. Act) and then omitted those words which they regarded as surplusage. In any case, this Court must make sense of the Act in its current form.
- The Report of the Law Reform Commission on a Bill to Amend and Consolidate the Law Relating to Limitation of Actions (Qld),[10] notes:
“We agree with the New South Wales Commission (p. 116 of their Report) that an independent limitation period should be fixed and we have adopted their recommendation of a limitation period expiring four years after the expiration of the limitation period for the liability for which the cause of action for contribution arises. This period, as the New South Wales Commission suggest, should give the person claiming contribution ample time to make his enquiries and to commence proceedings even if there are appeals or new trials or both, in the action against him.
From the point of view of the person against whom contribution is claimed, the possible period of ten years which may run before any claim against him is statute barred (although a long one) is, in our opinion, not unduly so in all the circumstances.”
It is difficult to understand why the Qld Act was changed in these ways from the N.S.W. Act on which it was based and which was undoubtedly clearer as to the issues before this Court. The comments just set out suggest the Law Reform Commission did not intend an outcome different from that provided by the N.S.W. Act.
- No guidance can be obtained from the relevant Second Reading speeches. That in itself seems to favour the interpretation contended for by Mr R.S. Douglas for the plaintiffs: if a departure from the N.S.W. Act was intended by the Queensland legislature for the benefit of joint tortfeasors, it is likely to have been referred to in the parliament, together with reasons explaining why such change was desirable.
- Furthermore, the Qld Act makes no provision for a tortfeasor against whom the limitation period is extended under s. 31 of the Act to apply to extend the limitation period to allow joinder of another joint tortfeasor. If the interpretation contended for by the second defendant was correct, one could expect provision to be made for such an application. Its absence from the Act supports the interpretation contended for by the plaintiffs.
- Despite the variation from the N.S.W. Act “the action for the liability in respect of which contribution is sought” in s. 40(3) of the Act must relate to the original action of the injured party here, Mr Bevis’ action. The variations between the Qld and N.S.W. Acts, the discussions in the Law Reform Commission Reports and the Parliamentary Debates concerning the Act do not persuade us that either Robins v. Downes or this case below was wrongly decided. Indeed, the Report and Parliamentary Debates support the correctness of those decisions.
- Thirdly, the second defendant contends that Robins v. Downes was decided before Brisbane South Regional Health Authority v. Taylor[11] and because of that case, would now be decided differently. In Brisbane South Regional Health Authority v. Taylor, the High Court considered s. 31(2) of the Act. McHugh J. said:[12]
“In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. 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’. 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 a positive burden of demonstrating that the justice of the case requires that extension.”
- Whilst Brisbane South Regional Health Authority v. Taylor was decided subsequently to Robins v. Downes, it was considered by the learned Chamber Judge, who noted:
“This does not contribute to the discussions since it is directed at the relative priority of importance of various features of the prescription of the limitation. Merely because it refers to the extension provisions as being subsidiary to the primary limitation, it does not follow that it is not a part of the full prescription of the limitation. The primary provision is only part of that.”[13]
We respectfully agree with those comments. The decision of the High Court in Brisbane South Regional Health Authority v. Taylor does not affect the validity of the conclusion reached in Robins v. Downes or in this case below.
Summary
- The construction of the Act favoured by the Victorian Court of Appeal in Robins v. Downes and by the learned judge below is in our view the correct one. Under s. 31(2), the limitation period was extended for the purposes of Mr Bevis’ action. Under s. 33 of the Act, the prior expiration of the period of limitation has no effect for the purposes of the Act. The words “for the action for the liability in respect of which contribution is sought” in s. 40(3) of the Act relate to the original action of the injured party, here Mr Bevis’ action. The words in s. 40(3) of the Act “the period of limitation prescribed by this Act” mean the period of limitation as extended by s. 31(2) of the Act. This is not inconsistent with Price v. J.F. Thompson (Qld) Pty Ltd or Brisbane South Regional Health Authority v. Taylor and is consistent with the lack of expression of any intention to depart from the position under the N.S.W. Act (on which the Qld Act is based) in the Queensland Law Reform Commission Report and the Second Reading Speech in respect of the Act. The declaration made below was correctly made.
- The appeal should be dismissed with costs.
REASONS FOR JUDGMENT - BYRNE J.
- The President’s and Justice Cullinane’s reasons extract a passage from the report of the Law Reform Commission (QLRC 14 at p.9) identifying the result intended to be achieved through s.40(1) of the Limitation of Actions Act 1974. That stated objective assists in the resolution of the question of statutory interpretation which arises here. It, and the discussion by Hayne J.A. in Robins v. Downes (1996) 24 MVR 180, 189-190, with which I respectfully agree, require the conclusion reached by the primary judge.
- The appeal should therefore be dismissed with costs.
Footnotes
[1]Brambles Constructions Pty Ltd v. Helmers (1966) 114 C.L.R. 213 at 219.
[2] [1983] 2 Qd.R. 40 at p. 44.
[3] (1996) 24 M.V.R. 180.
[4] at pp. 189-190
[5] [1990] 1 Qd.R. 278.
[6] at p. 284.
[7] at p. 285.
[8] at p. 285-6.
[9] supra.
[10] Q.L.R.C. 14 at p. 9.
[11] (1996) 186 C.L.R. 541.
[12] at p. 553.
[13] Judgment, p. 8.