Neva Noja v Peter Drakakis and Angela Drakakis; Nasuyu Pty Limited; Lend Lease Development Pty Limited; Permanent Trustees Nominees (Canberra) Limited; Civil & Civic Pty Limited; Gilbert Frank Williams and Commonwealth of Australia [1989] ACTSC 29 (27 June 1989)

SUPREME COURT OF THE ACT

NEVA NOJA v. PETER DRAKAKIS and ANGELA DRAKAKIS; NASUYU PTY LIMITED; LEND
LEASE DEVELOPMENT PTY LIMITED; PERMANENT TRUSTEES NOMINEES (CANBERRA) LIMITED;
CIVIL & CIVIC PTY LIMITED; GILBERT FRANK WILLIAMS and COMMONWEALTH OF
AUSTRALIA
S.C. No. 1351 of 1987
Limitation of Actions

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Limitation of Actions - application for extension of time to bring an action for compensation under Compensation (Fatal Injuries) Act 1968 - relevant considerations

Limitation Act 1985, ss.3(b), 16, 39(1), (2) and (3),

Compensation (Fatal Injuries) Act 1968, ss.9,

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 60 ALJR 560

Victa Limited v. Johnson (1975) 10 SASR 496

Irving v. Carbines (1982) VR 861

Waller v. State Transport Authority (1985) VR 327

Bell v. S.P.C. Limited (1989) VR 170

Daroczy v. B & J Engineering Pty Limited and Another (1986) 67 ACTR 1

Birkett v. James [1950] UKHL 2; (1978) AC 297

Firman v. Ellis (1978) QB 886

Bell v. S.P.C. Limited (1988) VR 123

Bell v. S.P.C. Limited (1989) VR 170

HEARING

CANBERRA
27:6:1989

ORDER

The application be dismissed.

DECISION

This is an application instituted by Notice of Motion dated 1 June 1989 for an order that the period within which an action on the cause of action particularised in the statement of claim as against Peter Drakakis and Angela Drakakis, Nasuyu Pty Limited, Lend Lease Development Pty Limited, Permanent Trustees Nominees (Canberra) Limited, Civil & Civic Pty Limited, Gilbert Frank Williams and Commonwealth of Australia be extended for such period as the court thinks fit pursuant to s.39 of the Limitation Act 1985.

2. On the hearing of the motion the application was opposed by the fifth, sixth and seventh defendants only.

3. By writ of summons issued on 10 November 1987 the plaintiff instituted proceedings against the seven defendants for damages in respect of the death of her husband. The husband died on 12 March 1984 by reason of a heart attack suffered as a result of a fire at the Manuka Village, Manuka in the Australian Capital Territory. By her statement of claim, the plaintiff has claimed negligence against the various defendants and claims under the Compensation (Fatal Injuries) Act 1968. Particulars of the negligence alleged against each defendant are set out in the statement of claim. It is unnecessary to refer to her claim against any defendants other than the fifth, sixth and seventh defendants.

4. By its amended defence filed 25 May 1989 the fifth defendant has pleaded that "the alleged cause of action was not commenced within the period of six years immediately following the alleged wrongful act, neglect or default of OPthe fifth defendant, nor within the period of three years immediately following the day of death of the person alleged to have been injured by that act, neglect or default and is accordingly barred by s.16 of the Limitation Ordinance 1985". For the purpose of deciding this application I shall assume that the pleader intended to plead that "the action on the alleged cause of action was not commenced ..."

5. By their respective defences, the sixth and seventh defendants have similarly pleaded that the plaintiff's action against those defendants is statute barred.

6. Section 9 of the Compensation (Fatal Injuries) Act 1968 provides that an action under that Act shall be commenced within a period of three years after the date of the death of the deceased person. The Limitation Act 1985, which came into force on 19 December 1985 (Commonwealth of Australia Gazette and Seat of Government (Administration) Act 1910, s.12(2)), provides in s.3(b) that nothing in the Act enables an action to be commenced or maintained which is barred at the commencement of the Act by a law in force in the Territory that is repealed or amended by the Act. Section 16 provides:
"16. An action on a cause of action arising under

the Compensation (Fatal Injuries) Act 1968 in respect
of an act, neglect or default resulting in death is not
maintainable after the expiry of -
(a) the period of 6 years immediately following the
relevant wrongful act, neglect or default; or
(b) the period of 3 years immediately following the
day of death of the person injured by that act,
neglect or default,
whichever later expires."

7. Consequently the plaintiff's action against the fifth, sixth and seventh defendants instituted by writ of summons issued on 10 November 1987 arising out of the death of her husband on 12 March 1984 is out of time and is only maintainable if this court grants an extension of time within which to commence her action.

8. The Limitation Act provides for extensions of time in those circumstances in s.39(1), (2) and (3) in the following terms:

"39.(1) Subject to sub-section (3), where, but for
the expiry, as against a deceased person, of a
limitation period in relation to a cause of action, the
personal representative of the deceased person would be
entitled to institute proceedings in relation to a
cause of action referred to in section 16, the court
may, if it decides it is just and reasonable so to do,
on application made by the personal representative,
order that, for the purposes of such proceedings, the
limitation period is extended for such further period
as the court determines.
"(2) The court shall, in a declaration made
pursuant to sub-section (1), specify a period, being a
period not exceeding 6 years commencing on the day of
death of the person injured, within which proceedings
in relation to the cause of action may be instituted.
(3) In exercising the powers conferred on it by
sub-section (1), the court shall have regard to all the
circumstances of the case including (without derogating
from the generality of the foregoing) the following:
(a) the reasons for the failure of the person to
commence an action before the expiry of the
relevant limitation period;
(b) whether a significant period of time elapsed after
the cause of action accrued during which the
person did not know, and could not reasonably have
known, that he or she had suffered an injury
giving rise to a cause of action;
(c) whether the person knew, or ought reasonably to
have known, before his or her death that he or she
had suffered such an injury;
(d) if the person knew before his or her death that he
or she had suffered such an injury, the extent to
which he or she acted promptly and reasonably;
(e) the extent to which a declaration specifying a
limitation period would, or would be likely to,
result in prejudice to the defendant;
(f) the conduct of the defendant after the relevant
cause of action accrued, including the extent to
which the defendant took steps to make available
to the person means of ascertaining facts in
relation to the cause of action;
(g) the steps, if any, taken by the person to avail
himself, for the purposes of the cause of action,
of medical, legal or other expert advice, and the
nature of any such advice.

Facts

9. The circumstances in which the action was commenced out of time are deposed to in the affidavit of William Grant Coombes, sworn 1 June 1989. Those facts were undisputed and are as follows:

"1. I am a principal in the firm of Higgins,
solicitors for the plaintiff herein.
2. I am instructed by the plaintiff and verily
believe that the accident and the death arising
therefrom which is the subject of this claim
occurred on 12 March, 1984.
3. The plaintiff first instructed a member of this
firm to act in respect of obtaining Letters of
Administration and an insurance claim in respect
of damaged shop items on or about 26 June, 1984.
Preliminary discussions also proceeded regarding a
possible action pursuant to the Compensation
(Fatal Injury) Ordinance but this was to await the
outcome of an inquest into the death of Mr Noja.
4. As pleaded in the Statement of Claim letters of
administration were granted to the plaintiff on 30
October, 1984.
5. The plaintiff left Australia in late 1984 and
returned to Lebanon, which was the country from
which she emigrated to Australia and returned in
mid-1985 but left her children in Lebanon in the
care of her family.
6. The plaintiff again returned to Lebanon in late 1985.
7. The plaintiff did not return from Lebanon with her
children until mid 1988. Correspondence with her
to obtain instructions had been assumed to be most
difficult due to the poor conditions in that
country and had been limited to instructions
regarding the property damage claim and Social
Security matters.
8. An inquest into the fire that destroyed the
shopping complex in which our client's business
was situated proceeded on 23 to 25 October, 1984
and Mr T J Higgins was brief for the plaintiff at
the inquest. Mr Higgins was asked to consider the
prospects for success in respect of a claim by the
wife and children in respect of the death of the
Mr Noja at that time. The findings of the coronor
Mr W K Nichol SM were given on 5 November, 1984.
9. The solicitor then having the conduct of the
matter in this office left the firm in June,
1985. There were claims for property damage and
loss being pursued at that time but no attention
was given to the personal injury aspect. That
matter had not been raised by the plaintiff with
this firm whilst she was overseas and the
statutory period apparently was overlooked.
10. This deponent perused the file in late April, 1987
and on 3 May, 1987 brief Mr T J Higgins QC to
advise on commencement of these proceedings and on
the appropriate parties to the action.
11. On 18 May, 1987 Mr T J Higgins provided an Advice
in respect of the action and in respect of any
extension of time to be sought under the
Limitation Ordinance 1985.
12. On 3 June, 1987 this deponent briefed Mr Bryan
Meagher of Counsel to draw a Statement of Claim
and an Application for extension of time under the
Limitation Ordinance as aforesaid.
13. Between that date and the date of the filing of
the Statement of Claim on 10 november, 1987,
discussions ensued in conference with Mr Higgins,
QC and Mr Meagher regarding the appropriate time
for bringing the application for extension. It
was advised that it should first be ascertained
whether the defendants or any of them claimed
reliance on s.16 of the Limitation Ordinance 1985
before commencing such proceedings.
14. It was resolved that the application would be
brought if any of the relevant defendants raised a
defence under the Limitation Ordinance.
15. An amended Defence by the fifth defendant dated 25
May, 1989 raised the Limitation Ordinance defence
as did amended defences filed with this Honourable
Court's Registry on 6 March, 1989 by the
sixthnamed and seventhnamed defendants.
16. There are claims brought by the third, fifth,
sixth and seventh defendants herein for
contribution. The time for such claims has not
expired.
17. The defendants to these proceedings were all
represented at the relevant inquest and would have
noted the presence of Mr T J Higgins QC as
counsel for the widow and children.
19. I am advised by counsel and verily believe that
each of the children of the deceased is and was at
all material times entitled to the benefit of s.30
of the Limitation Ordinance 1985.
20. ..."

Cause of action against fifth defendant

10. The plaintiff's cause of action against the fifth defendant as pleaded is that the fifth defendant built the building known as the Manuka Village and the plaintiff and the deceased, prior to and including 12 March 1984, had carried on the business of jewellers in a shop they occupied in the building. On 12 March 1984 a fire broke out in the building causing extensive damage to the whole building, including the shop occupied by the plaintiff and the deceased. After the fire had started and was observed, the deceased vacated his shop, stood watching the fire as it engulfed the building and the shop and, while doing so, experienced much stress and suffered a heart attack from which he died on 12 March 1984.

11. The negligence alleged against the fifth defendant is:

(a) Failing to provide any or any sufficient
sprinklers in the building;
(b) Failing to provide and install fire walls to
separate areas in the ceiling of the building;
(c) Failing to ensure that fire could not be spread
from one premises in the building throughout the
building;
(d) Failing to warn the owner or developer of the
building to be careful of fire hazards such as
offset ducting;
(e) Failing to heed the advice of the Fire Brigade
concerning the dangers of not installing
sprinklers, fire walls and other steps to avoid
the spread of fire;
(f) Failing to ensure that all installations and in
particular the ducting from the First Defendants
premises in the building complied with fire
regulations and was otherwise safe in all the
circumstances.

Cause of action against the sixth defendant

12. The plaintiff's cause of action against the sixth defendant as pleaded is that he was the building controller in the Australian Capital Territory appointed pursuant to the Building Ordinance and had the powers and duties contained in the said Ordinance and was an employee of the seventh defendant.

13. The negligence alleged against the sixth defendant is:

(a) Failing to ensure that any or any sufficient
sprinklers were installed so as to prevent the
spread of fire;
(b) Failing to ensure that the fire walls were placed
in the roof void in order to contain the spread of
fire;
(c) Approving the development without insisting on the
provision of sprinklers and/or fire walls;
(d) Failing to ensure and require the submission of
plans for approval for subsequent installation
including the installation of the exhaust ducts
over the premises of the First Defendants;
(e) Failing to inspect the premises to ascertain
whether all the building and installation thereon
complied with approval given and/or complied with
fire safety requirements;
(f) Failing to ensure that the exhaust ducts installed
complied with relevant standards.

14. The particulars of negligence alleged against the seventh defendant were the same as those alleged against the sixth defendant with the addition of a claim for vicarious liability for the negligence of the sixth defendant.
Relevant principles

15. In considering the instances in which the failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision entitles a party with sufficient standing to seek judicial review of ultra vires administrative action as provided by s.5(2)(b) of the Administrative Decisions Judicial Review Act 1977, Mason J. as he then was, said in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 60 ALJR 560 at 565:

"If the statute expressly states the considerations to
be taken into account, it will often be necessary for
the court to decide whether those enumerated factors
are exhaustive or merely inclusive. If the relevant
factors - and in this context I use this expression to
refer to the factors which the decision-maker is bound
to consider - are not expressly stated, they must be
determined by implication from the subject matter,
scope and purpose of the Act. In the context of
judicial review on the ground of taking into account
irrelevant considerations, this Court has held that,
where a statute confers a discretion which in its terms
is unconfined, the factors that may be taken into
account in the exercise of the discretion are similarly
unconfined, except in so far as there may be found in
the subject matter, scope and purpose of the statute
some implied limitation on the factors to which the
decision-maker may legitimately have regard see Reg.
v. Australian Broadcasting Tribunal; Ex parte 2HD Pty
Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50, adopting the earlier
formulations of Dixon J. in Swan Hill Corporation v.
Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-758, and Water
Conservation and Irrigation Commission (N.S.W.) v.
Browning [1947] HCA 21; (1947) 74 CLR 492 at 505."

16. Section 39(3) of the Act states the considerations to be taken into account, but they are obviously not exhaustive as the court is required to have regard to all the circumstances of the case, including (without derogating from the generality of the foregoing) those matters stated.

17. In Victa Limited v. Johnson (1975) 10 SASR 496 at 502 Bray CJ said, in considering an application for an extension of time:

"I think too that there is discernible in this, as in
cognate branches of the procedural law, a tendency to
relax rigid time limits where that is legally possible
and where it can be done without prejudice or injustice
to other parties."

18. Those observations were referred to by the Full Court of the Supreme Court of Victoria in Irving v. Carbines (1982) VR 861, and the Full Court went on to say:

"Whether this tendency is ultimately for the
benefit of society may be debated, but we agree that it
is clearly discernible and we think that we should give
effect to it. The relaxation of which Bray, C.J. spoke
can only be where there is no undue prejudice or
injustice to other parties but there is also
discernible, or so it seems to us, a tendency to
minimize the injustice caused to defendants by
enlarging time limits, particularly when the defendant
is an insurance company or entitled to be indemnified
by an insurance company."

19. The relevant delay in instituting the proceedings is, in my opinion, the delay between the expiration of the limitation period and the institution of the proceedings, in this case the period between 12 March 1987 and 10 November 1987.

20. In relation to this matter I agree, with respect, with the view of Murray J. in Waller v. State Transport Authority (1985) VR 327 at 329 where his Honour was considering s.23A(2) of the Limitation of Actions Act 1958 (Vic) as amended by the Limitation of Actions (Personal Injuries Claims) Act 1983 a comparable provision allowing for extensions of time in which an action may be brought. It follows that I do not agree with the tentative view to the contrary expressed by the Full Court of Victoria in Bell v. S.P.C. Limited (1989) VR 170 at 176. It seems to me that any delay between the cause of action arising and the expiration of the limitation period is irrelevant to the exercise of the discretion to extend time.

21. In having regard to the reasons for and length of the delay in instituting the proceedings, and in considering whether it is just and reasonable under s.39(3) to extend the limitation period, it seems to me to be relevant that if the plaintiff cannot pursue her claims against the fifth, sixth and seventh defendants, she still has a cause of action against her solicitors for negligence. This subject was referred to by Kelly J. in Daroczy v. B & J Engineering Pty Limited and Another (1986) 67 ACTR 1 at p 16. The same submission was put to his Honour in that case as was put on behalf of the fifth, sixth and seventh defendants on the hearing of this application, namely that the solicitors for the applicant had been negligent and that the applicant should look to the solicitors for compensation in respect of the damages suffered. His Honour considered Birkett v. James [1950] UKHL 2; (1978) AC 297 where Lords Diplock, Edmund-Davies and Russell of Killowen expressed the view that in respect of an application for dismissal of a plaintiff's suit for want of prosecution, the plaintiff's ability to sue his own solicitors for negligence in respect of such want of prosecution should have no bearing on the defendant's entitlement to have the action dismissed.

22. He also referred to Firman v. Ellis (1978) QB 886 where Lord Denning MR said, after referring to Birkett v. James, that in cases under the Limitation Act 1975 (UK) the negligence of the plaintiff's solicitor and the remedy against him was an admissible consideration as "one of the 'circumstances of the case' and one of 'the reasons for the delay'". Ormrod and Geoffrey Lane LJJ expressed the same view, the latter pointing out the difficulties in holding a detailed inquiry into the existence of liability in the plaintiff's solicitors.

23. Kelly J. assumed, for the purposes of the application before him in Daroczy v. B & J Engineering Pty Limited, without deciding, that each applicant had a good cause of action against his solicitors for the full amount of any damages which he might have suffered in respect of the delay in the case and he took that into account as one of the circumstances to be considered. With respect, I agree with that approach.

24. The evidence on the present application does not extend to the factors referred to in sub-paras (b), (c) and (d) of s.39(3).

25. With regard to sub-para (e), I derive some assistance from the judgment of Brooking J. in Bell v. S.P.C. Limited (1988) VR 123 at 125. His Honour said:

"The defence of the statute of limitations is a benefit
given to the respondent by the law and the loss of that
benefit must also be brought to account when the
balancing operation required by s.23A is carried out.
Section 23A is not to be applied on the basis that
Parliament has determined that prima facie the cause of
action shall prevail at the expense of the defence.
What Parliament has done is to determine that the cause
of action shall prevail if, having regard to all the
circumstances, including in particular those
specifically mentioned in sub-s.(3), the court decides
that it is just and reasonable to extend the period."

26. The Full Court of Victoria considered those observations in Bell v. S.P.C. Limited (1989) VR 170 and held that Brooking J. had not misdirected himself as to the test which he was required to apply.

27. The same test is to be applied by this court under the Limitation Act 1985, s.39(3) and (4). It seems to me that there would be prejudice to the defendants if the limitation period were extended because the fifth, sixth and seventh defendants would be deprived of their defences that the limitation period has expired and that factor must be taken into account in determining what is just and reasonable in the circumstances.
Exercise of discretion

28. I turn to a consideration of the circumstances of the case as required by s.39(3) of the Limitation Act 1985. References to sub-paragraphs are to be taken as references to the sub-paragraphs of that sub-section.

29. The reason for the delay on the part of the plaintiff in instituting the proceedings, as deposed to in the affidavit of Coombes, is clear enough. Although the plaintiff was absent from Australia from late 1985 until mid-1988, her cause of action having expired on 12 March 1987, her claim for compensation under the Compensation (Fatal Injuries) Act 1968 was overlooked by the solicitors acting for her in relation to other matters arising out of her husband's death. The solicitor acting for the plaintiff had left the firm in June 1985 and in the absence of any further instructions from the plaintiff the statutory period was overlooked. It was not until late April 1987 when the cause of action had already expired that another member of the firm of solicitors sought advice from counsel on the commencement of the action and the appropriate parties thereto.

30. The factors referred to in sub-para (f) and (g) do not arise. It is unnecessary to refer further to the factors referred to therein.

31. In the exercise of the broad discretion it is relevant, in my view, to take account of the fact that the plaintiff has cast her net very wide in instituting proceedings against the seven defendants. Indeed, it may be said that every conceivable defendant has been joined in her claims for negligence variously pleaded. If it was apparent on the pleadings that she had a clear case of negligence against the fifth or sixth and seventh defendants, that would seem to me to be another circumstance to be taken into account and, likewise, the contrary position is a factor.

32. I was informed by counsel for the fifth defendant and the sixth and seventh defendants respectively that the subject building was passed fit for use and occupation in 1980. Of course it can only be a matter of general impression, but as such it seems to me that the plaintiff's case against the fifth defendant on the one hand and the sixth and seventh defendants on the other is not a strong and clear case. On the other hand, her case against some of the other defendants appears stronger because their negligence, if any, is more proximate to the death and the cause thereof.

33. In my judgment the applicant has not proved that it is just and reasonable to extend the period within which to institute proceedings aginst the fifth, sixth and seventh defendants and the application is dismissed.

34. I shall hear counsel on the question of costs.