Farrell v Myer Stores Limited
[1997] QDC 261
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- Farrell v Myer Stores Limited[1997] QDC 261
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Farrell v Myer Stores Limited[1997] QDC 261
Farrell v Myer Stores Limited[1997] QDC 261
IN THE DISTRICT COURT HELD AT SOUTHPORT QUEENSLAND | Plaint No. 230 of 1997 |
BETWEEN:
NOLA GEORGINA FARRELL | Plaintiff |
AND:
MYER STORES LIMITED | Defendant |
REASONS FOR JUDGMENT - McGill D.C.J.
Delivered the 17th day of October 1997
This is an application under section 31 of the Limitations of Actions Act 1974 for an extension of the limitation period fixed by section 11 of the Act. By plaint filed on 21 April 1997 the plaintiff claimed damages for personal injury alleged to have been suffered by her on or about 10 April 1994. In the entry of appearance and defence filed on 5 August the defendant alleged in substance that the action was barred by section 11 of the Act. This application was filed on 11 September 1997, promptly after that defence was pleaded.
The application is a little unusual, because the action was in fact commenced only a short time after the limitation period expired, and all of the material facts were admittedly in the knowledge of the plaintiff some time before the limitation period expired. According to the plaintiff's affidavit filed on 11 September (para.5-8) the accident actually happened to the plaintiff on 9 April 1994 when the plaintiff suffered an injury to her right knee. It is admitted on behalf of the defendant that there is evidence to establish a right of action apart from a defence founded on the exploration of the limitation period. The issues on the hearing of the application were:
- (a)whether the material fact relied on was of a decisive character;
- (b)whether the prospect that the plaintiff could successfully sue her solicitors for failing to issue the proceedings within time was a relevant consideration;
- (c)whether in all the circumstances it was appropriate to exercise the discretion in favour of the plaintiff.
Was the material fact decisive?
The plaintiff's case was that after the accident she continued to work with pain in her knee for a few days before consulting a doctor who put her on workers' compensation as from 18 April 1994, when she lodged a claim, and referred her to an orthopaedic specialist Dr Rackemann who saw her first on 21 April 1994: paras.13-15. She continued to have problems and Dr Rackemann undertook an arthroscopy of the right knee on 5 July 1994 after which he advised that she had degenerative changes or wear and tear of the right knee: para.17. She returned to work on a rehabilitation program on 19 September 1994 (para.18) and resumed full-time duties on 17 October 1994 but doing clerical work which placed less stress on her knee: para.21. She saw Dr Rackemann again that day and was advised again that she had degenerative changes in the knee, had recovered well from surgery, and would not have any long term or permanent effects from the injury.
That was the situation which obtained as at the commencement of the last year proceeding the exploration of the period of limitation for the action, that is 9 April 1996. At that stage the plaintiff's understanding of the situation, based on the medical advice she had received, was that she had suffered an aggravation of a degenerative condition of the knee as a result of the injury at work, and that that injury, as distinct from the underlying degenerative condition, would not produce any permanent effects. On that advice the effects of the incident at work were wholly behind her. She had been off work for some time, but had not lost income because she was receiving workers' compensation during that period.
She said that in late May 1996 she began to experience problems again, and made arrangements to consult a solicitor concerning a re-opening of her workers' compensation claim: para.26. The solicitor recommended a second opinion from a different orthopaedic surgeon, as a result of which she saw Dr Gillett on 12 September 1996, although his report did not in fact come into the hands of her solicitors until January 1997. A copy was forwarded to her on 21 January 1997: paras.27-30.
According to that report (Exhibit NGF6) the plaintiff's knee has improved since the incident at work but has not recovered to its pre-injury level, and she has been left with 12% loss of efficient function of the right leg of which 7% is due to the effects of the injury. Dr Gillett also was of the view that that 7% attributable to the injury represented a permanent aggravation of the condition of the knee; that is to say the knee will be 7% worse at any particular time in the future due to the affects of the injury. The plaintiff's condition has deteriorated further since that time.: para.35.
The plaintiff relied upon the fact that she had suffered a permanent impairment in the function of the right knee in the accident on 9 April 1994 as the material fact of a decisive character relating to the right of action which was not within her means of knowledge until January 1997. The nature and extent of the personal injury caused to the plaintiff is capable of being a material fact: s.30(a)(iv) of the Act. As I understand the law for the purposes of deciding this application I assume that Dr Gillett's view of the situation is correct. It may be that strictly speaking the material fact is rather that there is medical evidence available that the plaintiff has suffered a permanent loss of function in the right knee as a result of this incident. This point was not in issue.
It was not argued that the material available from Dr Gillett was within the means of knowledge of the plaintiff at an earlier time, in that if she had taken advice from Dr Gillett an earlier time she would have ascertained whatever she in fact ascertained from his report. In view of the advice she had already received from the treating doctor and specialist, which initially seemed to be confirmed by the fact that the symptoms settled, it was not reasonable to expect the plaintiff to have undertaken further medical investigation at least prior to the time when the symptoms recurred. Accordingly the material facts revealed by Dr Gillett's report were not within the means of knowledge of the plaintiff at the relevant time: see Healy v. Femdale Pty Ltd (Appeal 37/92, 9.6.93, Court of Appeal, at page 5).
Authorities as to the test
On behalf of the defendant it was argued that Dr Gillett's opinion was not decisive, because it went merely to enlargement of damages. The argument was that the plaintiff, even without the benefit of Dr Gillett's report, if properly advised should have appreciated that she had a worthwhile action to pursue and should in her own interests have pursued it. A statement to this effect by Connolly J. was approved on appeal by the Full Court in Taggart v. Workers' Compensation Board of Queensland [1983] 2 Qd R 19 at 23; there were similar statements or approvals by the Full Court in Moriarty v. Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 329, 333, 338; in Sugden v. Crawford [1989] 1 Qd R 683 at 685, 691, and in Berg v. Kruger Enterprises Ltd [1990] 2 Qd R 301; and by the Court of Appeal in Peabody Resources Ltd v. Norton (Appeal No.200 of 1994, 16.6.95, unreported) and more recently in Ipswich City Council v. Smith (Appeal No.5443 of 1997, 29.8.97, unreported). In Smith Pincus JA. paraphrased the test by saying that the material provisions required “that the newly discovered fact is such as to make the difference between not having a worthwhile cause of action and having one.”
In Smith the plaintiff had suffered an injury to his back in November 1992, a prolapsed disc for which in December 1992 he underwent a laminectomy at L5 and a partial laminectomy at L4. He gradually recuperated and was given a clearance to return to work in March 1993, but he continued to have niggling problems with his back until February 1994. There were no further symptoms prior to the end of two years after the accident and prior to twelve months before the action was commenced. Davies JA. said at page 6: “Well before any date upon which the respondent could now rely it was within his means of knowledge that his injuries in November 1992, now relied on, included a serious back injury requiring surgery which thereafter produced continuing although intermittent symptoms. The events of December 1995 and January 1996 revealed to him no more than that his condition was worse than he had originally thought. There is nothing to indicate that they revealed a fact of a decisive character relating to the right of action.” The Court of Appeal held that the application should be refused. In that case the Court of Appeal confirmed the authority of Taggart and Moriarty, and confirmed that the decision of the High Court in Harris v. Commercial Minerals Ltd (1996) 186 CLR 1 is of no relevance in Queensland because it concerned legislation materially different from the Queensland Act.
I was also referred to the decision of the Court of Appeal in Haslam v. Queensland Alumina Ltd (Appeal No.162 of 1993, 15.12.93, unreported). In that case the applicant injured his back at work on about 5 January 1990, after which he received and acted on medical advice, underwent a surgical operation in October 1991 and again in August 1992, and was informed on 17 November 1992 that he would have a permanent disability. He did not however consult a solicitor until some ten days after the limitation period expired. An application for an extension was dismissed by a District Court Judge, but on appeal by majority an extension was granted. In that case what had occurred during the two year period after the accident was that the plaintiff had suffered some headaches, shoulder and neck pain which were relieved by the surgical procedures carried out in October 1991, and further problems arose only after that period, leading to further surgery after which he was informed on 17 November 1992 that his spine was subject to a permanent disability which was likely to effect his future employment. That was the date which the majority of the Court of Appeal determined as the date at which the relevant material fact first came within the knowledge or means of knowledge of the applicant.
This decision is significant because it emphasizes the need to focus attention initially on the state of the plaintiff's knowledge or means of knowledge during the first two years after the injury alleged to have been caused by the defendant's negligence. It also corrected an error of law by the Judge at first instance who had treated as a general principle operating to defeat applications under this section a statement, taken from the judgment of Thomas J. in Re McKenna (OS 92/86, unreported) to the effect that, exceptional cases aside, an applicant who suffers an overt condition and who knows the facts which produced the condition will not normally succeed in an application of this kind unless his or her symptoms during the defined period were relatively trivial. The court held that it was an error of law to treat that proposition as laying down any principle having the effect of preventing the extension of the limitation period in such a case unless it was exceptional.
It is also interesting that the facts in Smith (supra) appear to have been reasonably similar to the facts in Haslam. except that Smith had not yet had a second operation, a matter which the court in Haslam said was irrelevant anyway, yet each court appears to have regarded the proper outcome of the application as being obvious. This serves to underline the point that what matters about these decisions is their exposition of law and principle.
Analysis of the facts
In the present case it is not disputed that the result of the acquisition of the further information from Dr Gillett is that an action is now worthwhile. It was asserted however that it was reasonable for the plaintiff to have sued anyway even if the earlier view of the situation had been correct. Although it was acknowledged that the plaintiff would not have received any damages for economic loss, since the only loss was that already met by the workers' compensation payments, it was submitted that the injury was sufficiently severe to justify an award of damages for pain and suffering of the order of $10,000, and that an action was therefore worthwhile. It was pointed out that the plaintiff had undergone a surgical procedure, but the procedure was only arthroscopy of the knee, which is fairly minor procedure. Dr Rackemann's report of 5 August 1996 (a copy which is Exhibit NGF5 to the plaintiff's affidavit) indicates that the operation was undertaken under a general anesthetic, but does not say how long the plaintiff was in hospital. I think I could easily conclude that it is a good deal less substantial than surgery on the spine.
The plaintiff was off work for some five months, although she did not return to full employment until about a month later. In the meantime she had undergone a course of acupuncture which she said was successful in alleviating pain: para.20. By the time she returned to full-time work she still had some pain but it had greatly improved: para.22. It is not clear whether the plaintiff's pain went away completely, but in circumstances where she knew she was suffering from arthritic degeneration of the knee in any case it was reasonable for her to conclude that the effects of the aggravation had ceased, even if there were still some continuing symptoms which could have been attributable to the underlying degeneration. It appears that her period of relevant pain was therefore limited to a few months. In those circumstances I do not think that it would be reasonable for a plaintiff to have been counting on an award of damages for pain and suffering and loss of amenities as high as $10,000. No examples of decisions supporting an award of that magnitude were cited to me.
There is also the consideration that the plaintiff could well have only recovered party and party costs. It would have been better if there had been evidence from the plaintiff's solicitors as to the extent to which an award in the plaintiff's favour in the Magistrates Court might have been diminished by the difference between party and party and solicitor and own client costs, but even in the absence of that evidence I think it is permissible for me to take judicial notice of the fact that there would be some difference. There is also the consideration that the amount refundable to the Workers' Compensation Board was almost $9,800, as appears from Exhibit 2 to the affidavit to Mr Parcell sworn 2 October 1997. In circumstances were the amount of the workers' compensation refund is a relatively large proportion of the total amount damages which might be assessed, any risk of a finding of contributory negligence becomes more significant. The plaintiff claims to have suffered the injury when she slipped on a plastic bag while climbing over bags of cushions in an aisle way in the defendant's cushion reserve: para.8. In such circumstances I think it would be reasonable for a person contemplating litigation to take into account the possibility of a finding of contributory negligence, as well as making some allowance for what are sometimes described as the hazards of litigation. These are relevant factors: Moriarty (supra) at p.339.
Was there an actual intention to sue?
I should also deal with one other argument in relation to the question of whether the material fact was decisive. It was argued that a statement taken from the plaintiff in late May 1996 demonstrated by its terms that the plaintiff in fact regarded an action as worth bringing at that stage, because the statement concluded with the words “I instruct my solicitors to commence a claim on my behalf for the injuries sustained in the accident.” (Exhibit CJC1 to the affidavit of CJ Cato sworn 23 September 1997.) If this is treated as an instruction by the plaintiff to commence an action in respect of the injuries it demonstrates that the plaintiff in fact thought it reasonable to sue at that time, and that would certainly make it much more difficult to conclude that no reasonable person in the position of the plaintiff would have thought an action worth bringing at that stage.
I think it is understandable that lawyers who are principally engaged in litigation about injuries at work would treat a reference to a claim in such a passage as synonymous with “an action”. However the plaintiff's affidavit in paragraph 26 states that she consulted the solicitors about reopening of her workers' compensation claim, which indicates that this is a reference to such a claim rather than an action. Clearly the possibility of litigation was also raised on this occasion, but as a matter warranting former investigation; hence the letters sent on 3 June 1996 to Dr Henderson and the Workers' Compensation Board: Exhibit CJC4. But the fact that solicitors are investigating a possible claim for damages does not demonstrate that it was reasonable to bring one; there must be some investigation before solicitors can give the proper advice contemplated by section 30(b). I do not think this statement or the correspondence demonstrates that as of May 1996 the plaintiff in fact intended to commence an action.
Formulation of the test
I have to decide whether the plaintiff, in her own interest, taking her circumstances into account, acted reasonably in not bringing an action on the basis of the facts within her means of knowledge at the relevant time. The test seems to be usually expressed as, what would a reasonable person in the plaintiff's position have done. The formulation of the test and the way in which it has been discussed and applied in the cases I have referred to suggests that the question of whether a reasonable person in the position of the plaintiff would have sued on the basis of the information then available was seen as one susceptible of a definite answer. The cases do not appear to contemplate that a situation may exist where a person could reasonably come to either decision about suing, that is to say, a person could reasonably decide that it was not worth suing or could reasonably decide that it was. But the concept that, in certain circumstances, more than one decision may be reasonably open is well recognised in other areas, such as administrative law. I see no reason why there should not be a range of possible outcomes within which a reasonable person could reasonably decide to sue or reasonably decide not to sue; where either choice would be reasonable. There may be a significant difference between the point below which no reasonable person would sue and the point above which any reasonable person would sue.
Saying that the applicant must show that, without the facts said to be decisive, a reasonable person would have thought, even with the benefit of appropriate advice, that the prospects of an award of damages did not justify bringing any action, seems to mean that an applicant would fail if a reasonable person could have concluded that in those circumstances that the prospects of an award of damages did justify bringing the action. That is to say, the applicant must show that without the decisive fact no reasonable person would have sued. Saying that the test was whether, in the applicant's own interest and taking his circumstances into account, he acted reasonably in not bringing any action means that the applicant will fail only if any reasonably person would have brought an action in those circumstances, that is to say, if the applicant must show that it is not the case that, without the decisive fact, any reasonable person would have sued. Unless only one decision is open to a reasonable person in any given circumstances, these are different tests; in the former the cut off point is that below which no reasonable person would sue, and in the latter, the cut off point is that above which no reasonable person would not sue. Yet in Peabody Resources Ltd v. Norton (supra) and Smith (supra) they seem to have been thought by the Court of Appeal to have been the same test. Does the plaintiff have to show, in order to succeed, that no reasonable person would have brought an action on the basis of the material available without knowing the decisive material fact, so that it would have been unreasonable for the plaintiff to have taken proceedings without knowledge of that fact? Is it sufficient for the plaintiff to show that a reasonable person would not necessarily have brought an action without knowledge of that material fact, so that the plaintiff's failure to take proceedings earlier was not unreasonable?
A third possibility might be to seek some point of division within the range where reasonable people could reasonably differ as to whether or not it was appropriate to bring an action, by saying that there should be an amount recoverable such that below that amount a reasonable person either would not, or would probably not, think it worthwhile to take proceedings, and above that amount a reasonable person either would not, or probably would take proceedings. In mathematical terms, on the basis that over this range the probability of a reasonable person's commencing proceedings to achieve a potential net recovery of $X will increase as X increases, from 0 (no reasonable person would commence proceedings) to 1 (any reasonable person would commence proceedings), the dividing line is the point where the probability becomes 5. Obviously the test can not be applied with mathematical precision, since apart from anything else there is no identified value for X, but it is important to know just what test one should be attempting to apply.
The way the test has been expressed in the past has generally been to say the plaintiff will fail if a reasonable person in the position of the plaintiff would have thought an action worth bringing anyway without knowledge of the decisive material fact: see Sudgen at p.685, Taggart at p.23, Moriarty at p.331, 333. What is not clear is whether “would” means “would necessarily” or “would necessarily or probably”. I think that really all of the authorities have proceeded on the assumption that the question of whether a reasonable person would regard an action as worth bringing under particular circumstances would always be susceptible of one specific answer.
Formulation and application of the test
My own view is that the wording of section 30(b) of the Act suggests, and the logic of the operation of these provisions indicates, that the correct test is that the plaintiff will fail if without knowledge of the alleged decisive material fact any reasonable person would have brought the action anyway, so that the plaintiff's failure to bring the action at that time was unreasonable. According to the section, a plaintiff would fail to establish that the material fact is decisive if without that fact a reasonable person knowing the facts then known “and having taken the appropriate advice on those facts, would regard those facts as showing -
- (i)that an action of the right of action would ..... 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 [plaintiff] ought ..... to bring an action on the right of action.”
This construction is I think also favoured by the fact that this part of the Act is remedial legislation. It would be unfair to exclude a plaintiff on the basis that a reasonable person would have brought proceedings anyway unless any reasonable person would have done so, since otherwise the plaintiff could miss out because no action was commenced anyway, even though that was a course of action which it was posible for a reasonable person to have followed.
I think it is the approach indicated by the second formulation I have identified in the passage quoted in Smith by Davies JA. from the judgment of the court of appeal in Peabody Resources Ltd v. Norton. It appears to have been the test applied in Moriarty at p.340 by Derrington J. I think that this test is also the easiest to apply, because in substance the question becomes, as in the passage from Norton, was it unreasonable for the plaintiff not to have brought an action anyway without knowledge of the fact relied on as decisive. Applying that test to the present case, in my opinion it was not unreasonable for the plaintiff to regard an action as not worth bringing on the basis of facts within her knowledge or means of knowledge as at the relevant dates, since she would only have received damages for pain and suffering, and reimbursement of the specials not paid by the Board, which would have not have been a large amount even before deducting what she had to pay of the costs of bringing the action, and the amount refundable to the Board was likely to be substantially more than this amount, which made the litigation more than usually hazardous because of the prospect that almost any finding of contributory negligence could make the net return after paying costs negligible, and there was a real risk that there might be no net return. It could in my opinion reasonably have been thought that the advantages of winning did not justify the risks as well as the stress and trouble involved. In the circumstances I could not characterize such a view as unreasonable.
In case others may think that this is not the correct test, I should say what my conclusions would be on the basis of each of the other tests. If the question were whether a reasonable person would, or would probably, have regarded the action as not worth bringing without the decisive fact, my decision would be the same, in the light of the considerations to which I have referred. If on the other hand the question were whether no reasonable person would have sued on the basis of the facts as they were known to the plaintiff without this additional fact, that is to say if the question were whether it would have been unreasonable for the plaintiff to have sued at that time, I do not think that I could go that far on the present evidence, particularly in the absence of evidence as to the likely difference between party and party and solicitor and own client costs for such an action, and the frequency with which people do in fact pursue claims in these circumstances in the courts. If I had thought at the hearing that that was the test I would have suggested to the parties that the evidence in relation to these matters was inadequate, to see whether either or both wish to the supplement it. Since I did not do that then, if I were satisfied that that were the correct test, I would now invite the parties to put on further evidence directed to these issues, and list the matter for further hearing. In the absence of further evidence I would dismiss the application.
I therefore find that there was a material fact of a decisive character relating to the right of action which was not within the plaintiff's knowledge or means of knowledge until a date after 9 April 1996, namely 21 January 1997 when she saw Dr Gillett's report (cf. Haslam (supra)). There is therefore a discretion to extend the limitation period so that it expires not later than 21 January 1998.
Discretion - General
The question is then whether the discretion should be exercised in favour of the plaintiff. Such an order should not be made lightly, nor should the discretion be approached on the basis that the plaintiff is entitled to an extension unless the defendant can show specific prejudice as a result of the delay: Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866, which also establishes that when considering the prejudicial effect of delay, the relevant period is the whole of the period that is elapsed since the time the cause of action arose. Nevertheless, whether there is any prejudice to the defendant is relevant, and no specific prejudice is alleged on behalf of the defendant in the present case. Indeed, a copy of Dr Gillett's report was forwarded to WorkCover Queensland on 22 January 1997 (Affidavit of Cato para.9), which should have indicated that there was a real prospect of litigation in relation to the injury. This occurred prior to the expiration of the limitation period. In addition a claim for workers' compensation had been made in respect of the injury, and it had been reported to be defendant's nurse at the store shortly after it occurred (affidavit of Farrell para.12). The plaintiff had a document showing that management was aware of the accident soon after it happened, and considered its circumstances: Exhibit CJC2. The defendant has therefore had the opportunity to investigate the incident within a reasonable time after it occurred. The delay is not very great overall, and this is relevant because, as pointed out by the McHugh J. in Taylor (supra) at pages 870-1 delay, particularly significant delay, it likely in the ordinary case to cause prejudice to a defendant.
The principle factor which was argued on behalf of the defence in relation to the question of discretion was the proposition that the plaintiff and her legal advisors in the present case were aware of the report of Dr Gillett well before the exploration of the limitation period, and proceedings were put in train, and it appears that the failure to file the plaint within time was due to an oversight, or perhaps a series of oversights, on the part of the plaintiff's solicitors. The affidavit of Ms Cato does not explain the delay between the receipt of a draft District Court plaint from counsel on 18 February 1997 and the engrossment for filing on 3 April 1997: para.10, 11. It then appears that the plaint was originally dealt with as if it were to be filed in the Brisbane court rather than the Southport court, and this error was not discovered until after the limitation period had expired.
As to the argument that an extension should not be granted because the plaintiff had had a reasonable time prior to the exploration of the limitation period to commence the action, I think that is not a relevant consideration. Section 31(2) provides that the order that the court may make in its discretion is that “the period of limitation .....be extended so that it expires at the end of one year after that date.....” It seems to me that there is no discretion to vary the term of one year; this section does not say “that it expires on a date not more than one year after that date.” The legislation assumes that if it is appropriate to extend the period, it is appropriate to extend it for one year, so that the person who qualifies for an extension should receive one year to get the action on foot. Obviously the statute is capable of operating in circumstances where the relevant date from which the one year period runs falls well within the last year of the period of limitation. I do not regard this factor therefore as a relevant consideration to the exercise of the discretion.
It was argued that what really occurred here was that the solicitors had negligently failed to commence proceedings within the limitation period, and that this was a reason for refusing to extend the limitation period. This was because the purpose of these provisions of the Act was to relieve a plaintiff whose failure to commence proceedings within time was due to ignorance of some decisive material fact, rather than the negligence of the solicitor: see Sudgen (supra) at p.686. It was also submitted that it was relevant that the plaintiff apparently had a good cause of action for negligence against her solicitors.
Is an action against the solicitors relevant?
The relevance of a possible cause of action against the solicitors is not clear on the authorities in this area. It does appear to be accepted that the possibility that the plaintiff may have a good action against his solicitor for negligence is not a relevant consideration in relation to an application to dismiss an action for want of prosecution: Dempsey v. Dorber [1990] 1 Qd R 418 at 422, following Birkett v. James [1978] A.C. 297.
In Ex parte Bolewski [1981] Qd R 54 WB Campbell J as he then was held that the failure of solicitors possessed with full knowledge of all relevant circumstances to advise a client that he had a right of action was not a material fact of a decisive character relating to the right of action for the purposes of section 31(2) of the Act. His Honour in that case referred to a statement in the House of Lords in Smith v. Central Asbestos Co. Ltd. [1973] AC 518 at 555, that if a person is wrongly advised that the law does not afford him a remedy he does not obtain the protection of the statute, and applied the same approach to the Queensland Act. At page 60 His Honour said: “If there was a failure on the part of his solicitors, and this is not altogether clear from the material, to cause a writ to be issued, this does not seem to me to be relevant to the applicant's lack of knowledge. The fact that a person has obtained wrong advice from his solicitors as to his having a right of action, when the solicitors' advice is based on fail knowledge of all the relevant circumstances, is not a material fact of a decisive character. Had the applicant within the limitation period given instructions to his solicitors to issue proceedings and they had failed to do so, he could not obtain an extension of time.” His Honour there in my opinion is addressing the question of whether there was a material fact within the means of knowledge of the applicant at the relevant time, and not the question of whether, if there was a discretion to extend the limitation period, it should be exercised. I think that the statement that an extension of time could not be obtained if the applicant had given instructions to his solicitors to issue proceedings and they had failed to do so is really directed to the proposition that in those circumstances an applicant could not establish that the material fact was not within his means of knowledge.
Taken at face value that statement is fetal to this application, but I do not think it should be so regarded. If it means that an application which could otherwise succeed must fail in these circumstances, it appears to be inconsistent with the proposition in the first sentence I have quoted. It also is not related to the time periods specified in the Act. The general structure of the Act assumes that a plaintiff is to have twelve months from the time when all material facts are known to him, or at least all decisive material facts are within his knowledge or means of knowledge. It is plain that that twelve month period could begin to run prior to the time when the limitation period would otherwise expire. If His Honour was saying that, if a plaintiff finds out the decisive material facts and gives instructions to sue at any time before the expiry of the limitation period, even if it is on the last day, he must fail in an application for an extension, I would with great respect disagree.
I was also referred to a decision of Kelly J. in the Supreme Court of the Australian Capital Territory in Daroczy v. B & J Engineering Pty Ltd (1986) 67 ACTR 3 as authority for the proposition that the possibly of a claim against the plaintiff's solicitors is a relevant consideration to the exercise of the discretion. That decision was regarded as establishing that proposition by Higgins J. of the same court in Ellul v. Active Home Improvements Pty Ltd (1993) 112 FLR 4 at 10. At page 16 of Daroczy His Honour referred to statements in the Court of Appeal in Firman v. Ellis [1978] QB 886 supporting the view that the existence of a remedy against a negligent solicitor was one of the circumstances relevant to the exercise of a discretion of the English Limitation Act 1975, and concluded that it was a matter which he could take into account under the ACT ordinance: p.17. However at page 18 His Honour said that he followed the general view taken in Birkett v. James [1978] AC 297 in relation to this question, and that “the alleged primary wrongdoers (the suppliers) should be looked to rather than the alleged secondary wrongdoer (the solicitors). .....At the same time I accept that there may be occasions when a proper balance between the blame which ought to be attributed to a plaintiff's solicitor and prejudice to a defendant would mean that an applicant under s.36 of the Ordinance ought to be required to pursue his remedy against his solicitor rather than against the primary wrongdoer.” I must say I have some difficulty in following this reasoning, but it appears to have the approval of the Full Federal Court in Noja v. Civil & Civic Pty Ltd (1991) 93 ALR 224 at 239. Although there was no discussion of the question, that court approved the proposition that the availability of an alternative remedy against the solicitor was a relevant consideration, although ordinarily it would not prevent an extention.
There are also some other Australian authorities. In Tointon v. H.W. Greenham Pty Ltd [1986] VR 666 Murray J. of the Supreme Court of Victoria said that the question of whether a potential action against the solicitors was a relevant consideration in these circumstances was an open one, but the balance of the authorities His Honour reviewed favoured the view that the existence of such a claim was irrelevant. In Forbes v. Davies [1994] Aust. Torts Reps. 61, 392 Kearney J. of the Supreme Court of Northern Territory at page 61,404-5 held that the existence of a possible cause of action against the solicitors was irrelevant. His Honour found particularly persuasive statements in the judgment of the Full Court of South Australia in Williams v. F.S. Evans & Sons (1988) 52 SASR 237 esp. at page 254 per Bollen J. and page 244 per White J., although that was a case dealing with the exercise of a discretion to renew a stale writ.
I think that the comments of Lord Edmond Davies in Birkett v. James (supra) at page 335, where he averted to the difficulties of arriving at any definite conclusion about the existence of a claim against the solicitors, and the discussion by Bollen J. in Williams v. F.S. Evans & Sons (supra) at p.254, are compelling. In my opinion it is unwise and undesirable for a Judge considering an application under section 31 to speculate about possible liability of a solicitor, who is not a party to the proceedings, as a potential alternative defendant. It is also difficult to see any reason in principle why a defendant against whom the limitation period would otherwise be extended should escape liability because of the fortuitous availability of the plaintiff's solicitor as an alternative defendant. There is nothing in the analysis in Taylor to suggest that this could be a relevant matter. In my opinion the correct view, at least under the Queensland Act, is that the existence of a possible action for negligence against the solicitors is irrelevant.
Conclusion
The issue which is relevant to the discretion is whether commencing the action beyond the limitation period would result in significant prejudice to the prospective defendant: Taylor (supra) at p.866 per Dawson J. Or as it was put by Toohey and Gummow JJ. in the same case at page 870, “the real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the [applicant].” I think these propositions are really saying the same thing. In the present case I see no reason to conclude that the delay here has made the chance of a trial which is fair to the defendant unlikely. I am therefore prepared to exercise my discretion in favour of the plaintiff.
There will be an order that the period of limitation for this action is extended so that it expires on 21 January 1998. There was no argument in relation to the question of costs. The need for the application could have been avoided if the action had been commenced more promptly by the plaintiff's solicitors; on the other hand the need for the application could have also been avoided if the defendant had refrained from pleading a defence under the Act. The application has been successful although it was resisted with some vigor. On the whole I think the appropriate course is to order that the costs of both parties be costs in the cause.
Counsel for the plaintiff: | K.T. Magee |
Counsel for the defendant: | P.C.P. Munro |
Solicitors for the plaintiff: | Sciacca's |
Solicitors for the defendant: | Bradley & Co. |
Hearing date: | 3 October 1997 |