Nominal Defendant v Star Motorcycles Pty Ltd
[2014] QDC 41
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- Unreported Judgment
- Nominal Defendant v Star Motorcycles Pty Ltd[2014] QDC 41
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Nominal Defendant v Star Motorcycles Pty Ltd[2014] QDC 41
Nominal Defendant v Star Motorcycles Pty Ltd[2014] QDC 41
DISTRICT COURT OF QUEENSLAND
CITATION: | Nominal Defendant v Star Motorcycles P/L & Anor [2014] QDC 41 |
PARTIES: | NOMINAL DEFENDANT (plaintiff) v STAR MOTORCYCLES PTY LTD (first defendant) and STEPHEN LENARD WUST (second defendant) |
FILE NO/S: | D77/12 |
DIVISION: | Civil |
PROCEEDING: | Application in a proceeding |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 10 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 January 2014 |
JUDGE: | Dorney QC DCJ |
ORDERS: |
|
CATCHWORDS: | Application in pending proceeding – statutory interpretation – statutory right to recover costs when such costs “reasonably incurred” – whether declaration appropriate – whether a single cause of action only for all costs |
LEGISLATION CITED: | Uniform Civil Procedure Rules 1999, r 171, r 293 Acts Interpretation Act 1954, s 14A, s 35C(1) Income Tax Assessment Act 1936 (Cth), s 51(1) Limitation of Actions Act 1974, s 10(1)(d) Motor Accident Insurance Act 1994, s 3, s 4, s 42, s 58, s 59, s 60 Petroleum Act 1923 |
CASES CITED: | AAMI Ltd v McPaul [2006] 1 Qd R 201 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Builders’ Licensing Board v Inglis (1985) 1 NSWLR 592 Ex parte Workers’ Compensation Board of Queensland [1983] 1 Qd R 450 Edwards v Bray [2011] 2 Qd R 310 Edwards v Santos Ltd (2011) 242 CLR 421 FCT v Nilsen Porcelains (Aust) Pty Ltd (1979) 41 FLR 36 Hillingdon London Borough Council v ARC Ltd [1999] Ch 139 Legal Services Commission v Rasool [2008] 3 All ER 381 Nominal Defendant (Queensland) v Langman [1988] 2 Qd R 569 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 South Eastern Sydney Health Service v Gadiry (2002) 54 NSWLR 495 Sullivan v Oil Company of Australia Ltd [2002] 2 Qd R 94 Swansea City Council v Glass [1992] QB 844 Sweedman v Transport Accident Commission (2006) 226 CLR 362 Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 |
COUNSEL: | D Fraser for the applicant/first defendant K Holyoak for the respondent/plaintiff |
SOLICITORS: | Jensen McConaghy for the applicant/first defendant Cooper Grace Ward for the respondent/plaintiff |
Introduction
- [1]This particular application concerns whether the plaintiff’s claim, or part of it, is statute barred because of s 10(1)(d) of the Limitation of Actions Act 1974 (“Limitation Act”). That deals with the limitation period of 6 years from the date on which the cause of action arose in an “action to recover a sum recoverable by virtue of any enactment”. Here, any relevant cause of action arises under s 60 of the Motor Accident Insurance Act 1994 (“MAI Act”). The outcome potentially gives rise to a consideration of a cross-application brought by the plaintiff concerning amendments to the pleadings.
- [2]The argument centres on whether the Nominal Defendant’s cause of action accrued solely upon first reasonably incurring specific costs in relation to the relevant personal injury claim (in February 2004), in circumstances where the evidence before the Court establishes that the first payment made on the relevant claim occurred in that month, or whether there are successive causes of action for such costs as each are incurred.
Issues not in dispute
- [3]It is not disputed that the Nominal Defendant’s proceeding is an “action to recover a sum recoverable by virtue of any enactment”. Further, it is not in dispute: that the Nominal Defendant’s claim, with interest, relies upon the payment, or (perhaps earlier) incurring by it, of costs in relation to a claim made (in this case) by a motorcyclist; and that the first defendant (particularly now that leave has been granted to substitute the true owner for the named first defendant) was the alleged owner of that motorcycle – which is also alleged to be unregistered – and that the second defendant was the alleged rider (or driver) of it. The second defendant is not a party to this application.
- [4]Additionally, it is not in dispute: that the proceedings were not instituted until 6 November 2012; and that a period of 6 years from the plaintiff’s first reasonably incurring costs in relation to the claim on 4 February 2004 would expire on 4 February 2010 (on the assumption that the incurring and payment were contemporaneous). As well, over the period from 4 February 2004 to 6 November 2006 (being the date 6 years before the Nominal Defendant instituted proceedings), the Nominal Defendant has incurred a variety of specific costs (including pre-approved physiotherapy, legal costs, provision of aids and appliances, medico-legal investigation costs by way of medical reports and other rehabilitation expenses).
Basis of application
- [5]The first defendant, by its application filed 13 January 2014, has sought orders seeking to strike out the Nominal Defendant’s claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and that judgment be entered pursuant to r 293 of the UCPR.
- [6]At the hearing of the application on 31 January 2014, I ordered that Star Motorcycles Pty Ltd be substituted for the then existing first defendant, “Toowoomba Yamaha”. Furthermore, the Nominal Defendant has applied for leave, amongst other relief, to amend its Claim and Statement of Claim to delete the recovery of those amounts which it incurred more than 6 years before this proceeding was commenced.
- [7]The principles relevant to applications under r 171 and r 293 of the UCPR are not in dispute here. There is no relevant dispute of fact. There is no need for a trial of any question before a decision on this can be made.
- [8]And it is not disputed that the correct approach to the resolution of the limitation point is one of statutory construction. As stated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, that task must begin with a consideration of the text itself: at 46 [47]. As they further held, “the language which has actually been employed ... is the surest guide to legislative intention”: at 47 [47]. Furthermore, the relevant authorities direct attention to the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute and the canons of construction; and these may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: see, for instance, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78]. As to context, as Alcan further observed, it includes the general purpose and policy of a provision, “in particular the mischief it is seeking to remedy”: at 47 [47]. Because this is a Queensland statute, s 14A of the Acts Interpretation Act 1954 is also brought into play, requiring that the interpretation that would best achieve the purpose of the MAI Act is preferred to any other interpretation.
Elements and scope of cause of action
- [9]Deconstructing s 60(1) of the MAI Act, the relevant elements (according to Nominal Defendant (Queensland) v Langman [1988] 2 Qd R 569) are:
- (a)personal injury arising out of a motor vehicle accident involving an uninsured vehicle; and
- (b)costs reasonably incurred by the Nominal Defendant on a claim for personal injury.
- [10]In this proceeding, proof of those elements would permit the Nominal Defendant to recover such “costs” “as a debt” from the owner or driver of the vehicle (or both). Given s 35C(1) of the Acts Interpretation Act 1954, the heading to s 60, which includes the phase “rights of recourse”, is part of the provision.
- [11]According to the definition in section 4 of the MAI Act “costs”:
- (a)when used in reference to legal costs, includes disbursements; and
- (b)when used in reference to the costs of an insurer on a claim, includes—
- (i)the amount paid out by the insurer on the claim to the claimant or for the claimant's benefit, including—
- (a)the cost to the insurer of providing rehabilitation services in connection with the claim; and
- (b)the cost to the insurer of paying private hospital, medical and pharmaceutical expenses in connection with the claim; and
- (ii)the cost to the insurer of investigating the claim and of litigation related to the claim (but not the insurer's general administration costs).
The “duty” to make payments under (b)(i)(B) only arises once liability has been admitted and upon “regulated” presentation of an account: see s 42. But other costs, such as under (b)(ii), might be incurred before admission, or determination, of liability.
- [12]In determining the statutory context of s 60(1) of the MAI Act, it is noted that s 60(3) provides that the Nominal Defendant may bring a proceeding for recovery of costs under s 60 “before the costs have been actually paid in full” and, “in that case”, “a judgment for recovery of costs may provide that, as far as the costs have not been actually paid, the right to recover the costs is contingent on payment”. See, also, ss 58 and 59, along with s 3 (“objects”).
“… may recover as a debt …”
- [13]In Edwards v Bray [2011] 2 Qd R 310 the Court of Appeal had occasion to consider the phrase “enforced as a debt”. With apparent approval, Margaret Wilson AJA, with whom White JA and Peter Lyons J concurred, cited a passage from Kirby P in Builders Licensing Board v Inglis (1985) 1 NSWLR 592 which considered a somewhat similar phrase “recovered as a debt”. It, relevantly, held that an action “framed in debt” cannot be used for breach of contract though it serves for the recovery of such things as statutory penalties and monies adjudged by a court to be due, noting that the “procedural advantages” of recovery of a debt “have been known to our law for a very long time”: (at 597-598) at 317-318 [41]. The appropriate procedural mechanism there for the enforcement of the right was not the source of the right of recovery itself: at 318 [44].
- [14]In Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520, the plurality stated that the phrase “any proceeding for the recovery of debt or damages” embraced any proceeding “in which a claim for money is made, in contrast to declaratory relief and claims for specific forms of relief such as mandatory injunctions, charging orders and orders for specific performance” (emphasis added): at 538 [41].
- [15]Thus, it can, first, be held that the reference to recovery as a debt is simply a procedural mechanism for, as s 60(3) of the MAI Act states, “a proceeding for recovery of (relevant) costs”. But, secondly, such a procedure – unless the context of s 60(1) requires otherwise – does not readily embrace a proceeding in which any particular part of the claim or the claims is for declaratory relief.
“... sum recoverable by virtue of any enactment”
- [16]The authoritative decision in this state is Sullivan v Oil Company of Australia Ltd [2002] 2 Qd R 94. Muir J (as he then was), with whom McPherson JA and Atkinson J agreed, in a case involving consideration of a claim for compensation pursuant to the Petroleum Act 1923, held that a cause of action may accrue for a sum recoverable by virtue of any enactment “although provision was made in the subject enactment for determination of the sum in default of quantification by agreement”: at 104-105 [47]. In dealing with a contention of the (unsuccessful) respondents that some of their claims were in respect of continuing damage or related to acts which had caused damage at a time subsequent to the acts of the appellants referred to in the relevant statement of claim, it was held that, even in the case of those claims, it will not be the case that limitation periods are “incapable of application”, it being noted that, in some circumstances, where there has been a continuation of damage and the cause of action arises in the event of damage, a fresh cause of action arises from time to time, as often as the damage is caused and that fresh events of damage may give rise to fresh causes of action: at 106 [55]. It needs to be observed that, in such causes of action, damage is often the gist of the cause, so that, where damage could occur long after a cause of it, Muir J noted that the point was not without relevance to the desirability of granting declaratory relief: at 106 [57]. There was no further development of that line of reasoning; but it would not necessarily rule out declaratory relief where the gist of the cause of action has not occurred. Of course, there would, then, not be an accrual of any cause of action because a necessary element of it would be absent.
Indemnity cases
- [17]It is common ground that, at least with respect to statutory indemnities, particularly those for the recovery of workers’ compensation payments, a cause of action arises each time costs are incurred. A particular Queensland example is Ex parte Workers’ Compensation Board of Queensland [1983] 1 Qd R 450. There, G N Williams J noted that there was a basic principle to all relevant legislation in the United Kingdom and Australia (which gave, for instance, the employer’s insurer which had made a payment of workers’ compensation a right of indemnity against another who would at law have been liable to pay damages in respect of the injury sustained by the work) that, for the purposes of s 10(1)(d) of the Limitation Act, the cause of action arose each time a payment of compensation was made, because there arose on each such an occasion a liability to indemnify: at 457-460.
- [18]It is obvious that s 60(1) of the MAI Act does not create a statutory right to “indemnity” expressly. Consequently, indemnity cases might have been only of marginal assistance for the purpose of analogous reasoning except for the incorporation of the phrase “rights of recourse” into the provision which is s 60. Normally, “recourse agreements” take the form of indemnities: see O'Donovan and Phillips, Thomson Reuters, The Modern Contract of Guarantee, vol 1 (at Service 29) [1.500] at footnote 15. Even if it were to be interpreted as a right having no connection with an indemnity, that does not demand that the corollary is the correct interpretation. Furthermore, restitution is a possible analogous right. In Sweedman v Transport Accident Commission (2006) 226 CLR 362, the majority (apart from Heydon J) characterised the Victorian statutory obligation there, creating a right of indemnity while leaving it to the general law “to spell out the character and incidents of that entitlement”, when sued for with respect to an accident occurring in New South Wales, as a “restitutionary obligation”: at 400-402 [25]-[32]. See, also, O'Donovan and Phillips, Thomson Reuters, The Modern Contract of Guarantee, vol 1 (at Service 38) [12.520] at footnotes 1-2, relying on the celebrated English text regarding restitution referred to in Sweedman.
“... reasonably incurred”
- [19]Brennan J, in the majority with Deane J, in FCT v Nilsen Porcelains (Aust) Pty Ltd (1979) 41 FLR 36 discussed the phrase “outgoings incurred” for the purposes of s 51(1) of the Income Tax Assessment Act 1936 (Cth). He held that that phrase comprehended more than expenditure made and included a liability presently incurred and due, though not yet discharged (referring to relevant authority), adding (again, with reference to relevant authority) that “incurred” did not mean only defrayed, discharged or borne, but rather it included encountered, run into or fallen upon, holding that it was unsafe to attempt exhaustive definitions “of a conception intended to have such a various or multifarious application”, although he stated that it did not include a loss or expenditure “which is no more than impending, threatened or expected”: at 38.
- [20]The definition of “costs” in s 4 of the MAI Act, when used in reference to the costs of an insurer on a claim, is an inclusive definition. The inclusive definition embraces an amount “paid out” by the insurer as well as the “cost to” the insurer of investigating the claim and of litigation related to it – though not including the insurer’s general administration costs. It is difficult to extract from that inclusive definition alone a significant extent of help about what the ambit of the “recovery” of “costs” embraces in terms of a cause, or causes, of action.
- [21]What, if any, help can be extracted from s 60(3) of the MAI Act? On the conclusion that the word “actually” adds nothing of a factual nature to the word “paid” – except that it may simply emphasise the word “paid” - the provision, at least on its face, appears to provide a mechanism which permits the proceeding to be commenced but makes the “right to recover” contingent on payment finally being made. Interestingly, it refers to a contingent “right to recover” in the context of a “proceeding for recovery” appending such a “right” to a “judgment for recovery” with a condition precedent (namely, “in that case”) that the proceeding being commenced must include a claim for costs “before the costs have been actually paid in full”. It does not state, for instance, that the costs are such as have not yet been “incurred”. It could hardly have provided for a circumstance of application before such costs had been “reasonably incurred”. As well, the reference is to a time before payment “in full”. Given, in accordance with Project Blue Sky, that a court must strive so that every word is to be given meaning (at 382 [71]), the provision does appear to speak only to circumstances in which costs have been reasonably incurred but “not been actually paid”. It is, therefore, a procedural grant of a right which facilitates seeking recovery before a final payment is made, enabling an enforceable judgment only on fulfilment of the contingency. If so, then, at the very least, the costs would have had to have been more than impending, threatened or expected. It does not purport to deal with an incurring of costs before any payment at all is made for such costs.
- [22]The conclusion that I reach is that s 60(3) of the MAI Act simply provides a mechanism where costs have been reasonably incurred but not paid “in full” and where judgment can only be obtained when the contingency is met, that stated contingency being “payment”. It does not speak, necessarily, one way or the other about whether a cause of action arises for each separate circumstance generating a right to recover “costs”. In my view, that can be ascertained only by an interpretation, in context, of the words used in s 60(1) referring to “any costs reasonably incurred”. I hold that s 60(1) is not to be read as subordinate to s 60(3) (see Project Blue Sky at 381 – 382 [70]) and that s 60(3) is not other than facilitative.
Authorities supporting a single cause of action
- [23]The case which encapsulates most of the relevant arguments for this outcome is the English Court of Appeal decision of Legal Services Commission v Rasool [2008] 3 All ER 381. The issue was whether the Legal Services Commission had a claim which was statute barred under like legislation to that of Queensland. The outcome depended upon whether time began to run from the date of the revocation of the relevant legal aid certificate on 12 May 1999, or from the date of the assessment of costs which determined the amount so recoverable (on 19 December 2001). The former meant that the claim was barred and the latter meant that time had not expired. The outcome depended on quite different underlying legislation; but it was held to be important that the words used in the regulation which founded the recovery were “the costs paid or payable” (emphasis added). Among the cases considered by Ward LJ, with whom Smith and Wilson LJJ expressly agreed, an extract was taken from Swansea City Council v Glass [1992] QB 844 in which it was held that, where the cause of action arises from statute, the question as to what is merely procedural and what is an “inherent element” in the cause of action is one of construction: at 389 [19]. Later, in a reference to Hillingdon London Borough Council v ARC Ltd [1999] Ch 139, an extract from Nourse LJ was relied on – stated to “succinctly summarise” the position – which noted that it was established by authority that a cause of action for a sum recoverable by virtue of an enactment “accrues” notwithstanding that it remains to be quantified and, further, that further quantification may have to be made by a tribunal other than a court of law: at 389 [20]. Intriguingly for present purposes, in the analysis engaged in by Ward LJ, he stated that it seemed to him to follow as part of a coherent scheme that the “fund” was liable to the solicitor for any costs that were payable and, since it remained liable to pay the solicitor, it also had the right to recover from the person on whose behalf it had assumed liability “by way, as it were, of indemnity” (emphasis added), adding that such a right to recover was what was conferred by the relevant regulation: at 390 [23].
- [24]It appears to me that the point of distinction between Rasool and the present case is that Ward LJ could see no justification at all for time running differently if the costs had been paid or were simply payable – but they must have been, at the very least, payable: at 391-392 [27]-[28]. It was from that analysis that he moved to the conclusion that all the ingredients required by the relevant regulation were present in a claim for a declaration in terms (namely, that the certificate had been revoked and that there was a right in terms of the regulation to recover costs payable under an associated regulation). It was after that analysis that he held that it was “absurd to suggest that a declaration would be denied”: at 392 [28]. And it was then from that that he stated that, in his judgment, the fact that declaratory relief was available demonstrated to him the process of ascertainment of the amount of costs was a mere procedural requirement and not an inherent element of the cause of action itself: at 392 [29]. Here, there is no process of ascertainment, quantification or calculation by (for instance) a further body. Future costs, even if impending, threatened or expected – much less if something more remote - cannot be a mere procedural requirement open to such ascertainment, quantification or calculation before the need by the claimant for their existence occurs. Heydon J in Edwards v Santos Ltd (2011) 242 CLR 421 reviewed the factors going to the jurisdiction, and circumstances, of granting declaratory relief. Though noting that the jurisdiction includes the power to declare that “conduct which has not yet taken place will be a nullity in law”, after noting that a claiming party must have a sufficient interest for the purpose of standing, he proceeded to consider the further question of it not being a hypothetical exercise: at 435-436 [37]. As to the last issue, after referring to cited authority, he exemplified it in terms of, among other factors, “obviously a real controversy” with “plainly a contradictor”: at 436 [38]. How, before any “further” cost is other than a potentiality, can a court declare that such a possible future cost is “reasonably incurred”, without transgressing either hypothetical or contradictor principles?
Conclusions
- [25]If correctly assuming that the word “incurred” is broader than “payable”, it is difficult to see how Rasool and any of the cases considered by, or analogous to, it have application here. For example, in Rasool there was no doubt that, when the certificate was revoked, the solicitor who had acted under that certificate had “incurred” legal and other (including disbursement) costs. The fact that the ascertainment of the extent of those costs had not been determined at the time of revocation did not prevent the cause of action accruing on revocation. That is in distinct contrast to what can occur here. Although, undoubtedly, a liability to pay future “costs” of the relevant kind would exist if any were to be reasonably “incurred”, such costs could not be said to be other than, at best, “impending, threatened or expected”.
- [26]Undoubtedly, for the Nominal Defendant to succeed in recovering, as a debt, costs incurred on a claim for personal injury, it must prove that they were “reasonably” incurred. But, to my mind, that does not assist in the determination of the construction of the word itself (i.e. “incurred”). The reasonableness is something to be determined, if contested, at a hearing, after any incurring has happened, though it is to be determined as a contemporaneous element.
- [27]While it is open in some cases, such as Rasool, to conclude that declaratory relief is available, it is my conclusion here that it would be embarking upon a theoretical exercise to give such a declaration in circumstances where the claimant, for instance, had not yet had the need for, for instance, rehabilitation services in connection with the claim or had not yet been diagnosed as needing specific medical or pharmaceutical expenses in connection with the claim. It does not seem on the proper construction of s 60(1) of the MAI Act, in its context, to say such “costs” had been “incurred”. I do, thus, conclude that, as a matter of ordinary grammatical use – which is not displaced by other canons of construction - of the words in s 60(1), they bespeak a right of separate recovery for every set of “costs” incurred.
- [28]In South Eastern Sydney Health Service v Gadiry (2002) 54 NSWLR 495 Stein JA, on behalf of the court, addressed the issue of fairness and public policy and, in particular, the argument in that case that since the employer was not required to give any notice to the tortfeasor, delay might be oppressive to a defendant because of lost evidence and memory: at 501 [38]. Although Stein JA was considering a provision referring to compensation that was “paid” – and not to compensation “paid or payable” – he held that commonsense dictated that compensation payments may begin, cease, change in amount (and such like), depending on the “course” of the worker’s injuries and treatment, and on decisions made by the insurer or employer, and that such payments may continue for many years. Unsurprisingly, he held that the nature of an indemnity – as it was in that case – was that the right to indemnification did not arise until a payment was actually made: at 501 [40]. Here, fairness and public policy appear to dictate the same outcome, because if each of the costs incurred has its own limitation date, the knowledge of the sum of the “costs” claimed – and, therefore, knowledge of later potential claims - must then be available to any prospective defendant, at the latest, soon after 6 years of such being incurred. Hence, “notice” must be within a 6 year, plus time for service, framework; and fairness and public policy do not demand any different standard from that held in Gadiry because apart from the “fact” of indemnity, the same commonsense outcomes are unsurprisingly equivalent (given the “rights of recourse” analysis). As for the objects set forth in s 3 of the MAI Act, speedy resolution of claims does not require a declaration as to all future (yet to be reasonably incurred) costs, however unlikely such costs might well be because there could be no “resolution” of the monetary liability until ascertainment; and keeping costs at an affordable level for the average motorist is, at best, ambiguous where the most probable proceeding in this kind of case would be a simple action seeking recovery of all costs “actually” identified as incurred. After all, it must be important that the Nominal Defendant has the capacity to be reimbursed for all costs falling within its statutory reach for recovery. Additionally, the effect of a construction of s 60 of the MAI Act must affect ss 58 and 59 as well. There is nothing in those two provisions which gainsays this as the proper response to the “mischief” of achieving proper recovery from defaulting owners and drivers. They all appear in the same Division, requiring a harmonious interpretation between each. And, for reasons including claims by minors or persons under a legal disability, in circumstances where an insurer may not have the ability to force the progress of a claim (see, for instance, AAMI Ltd v McPaul [2006] 1 Qd R 201), a declaration (however widely drawn) would not appear to provide a satisfactory response to costs which may be only remotely possible, perhaps even far-fetched on occasions, or where a first investigation has itself only just begun, since the first defendant’s arguments must encompass the proposition that “incurring” covers anticipated costs (on the basis that quantification is merely procedural), in circumstances where liability to the “claimant” is unresolved. Although it is important to be careful not to conflate the essence of the cause of action and a potential remedy available such as a declaration since, as Rasool demonstrates, a careful analysis of the remedy informs what kind of cause of action is involved and when the cause accrues for limitation purposes.
- [29]Further, though the conclusions in Gadiry were reached in the context of that right to indemnification, if the effect of the proper construction is that costs have not yet been incurred because, for instance, they depend on the course of the injuries and a diagnosis of viable treatment and, additionally, on whether the decision made by the Nominal Defendant was “reasonable”, no different fairness and public policy outcome should be dictated here from the outcome there.
Relief
- [30]Given the conclusions that I have reached, it is, therefore, open to the Nominal Defendant, as plaintiff, to plead all causes of action which have accrued by reason of costs being “incurred” and for which 6 years have not expired from the date when such costs were “incurred” up to the filing of the claim on 6 November 2012. There is little point in giving judgment for the first defendant or striking out part of the plaintiff’s pleadings for any statute barred claim where the plaintiff seeks to abandon such a claim – though there may be costs consequences – through a cross-application filed 24 January 2014.
- [31]I give the intimation that I am contemplating exercising the discretion given to the court under the amendment rules of the UCPR. Nevertheless, since I have heard no oral submissions on that on behalf of the first defendant, I will allow further submissions on that issue, and costs, to be filed within a period of 7 days of handing this decision down. I do indicate that I am of the view that it is, in the circumstances, appropriate to exercise such a discretion, particularly where the first defendant has been on notice, has not alleged prejudice and appears, at least on the material before me, to have been fully cognisant of the Nominal Defendant’s case for these amounts.