Mary Ann Rose v Chang-Sup Kwow [1994] ACTSC 88; (1994) 121 ACTR 1 (2 September 1994)

SUPREME COURT OF THE ACT

MARY ANN ROSE v CHANG-SUP KWOW
No. SC785 of 1993
Number of pages - 8
Limitation of Actions
[1994] ACTSC 88; (1994) Aust Torts Reports 81-287
(1994) 121 ACTR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation of Actions - motor accidents - occurring outside jurisdiction in which action brought - claim governed by substantive law of Queensland - limitation law part of substantive law - whether Queensland or Australian Capital Territory limitation law applies - construction of ACT statute - presumption against retrospective operation of Queensland limitation law displaced - application for extension - discretion to extend time - whether to exercise Queensland or ACT discretion - whether Queensland discretion operates.

Limitation Act 1985 (ACT), ss.36, 55, 56, 57

Limitation Amendment Act 1993 (ACT), ss.4, 7
Limitation of Actions Act 1974 (Qld), ss.10A, 11, 31
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth),

s.44
The Constitution, s117

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41
McKain v R W Millar and Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1
Stephens v Head [1993] HCA 19; (1993) 176 CLR 433
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188
Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 13 ALR 17
Re Sihvola (1979) Qd R 458
ex parte Bolewski (1981) Qd R 54
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd (1990) 2 Qd R

301

Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325
Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994)

119 ALR 629
Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 120 ALR 605

HEARING

CANBERRA, 15 July 1994
2:9:1994

Counsel for plaintiff: Mr G Stretton

Instructing solicitors: Snedden Hall and Gallop

Counsel for defendant: Mr R Crowe

Instructing solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:

The plaintiff's application to extend time is dismissed.

DECISION

HIGGINS J This is an application on behalf of the plaintiff to extend the time within which proceedings for damages may be brought.

2. The plaintiff claims to have suffered personal injury in a motor vehicle accident which occurred in the State of Queensland on 28 December 1989. A writ of summons suing the defendant for damages for negligence arising out of that occurrence issued out of this Court on 2 December 1993.

3. The application arises in consequence of a defence dated 15 April 1994 delivered on behalf of the defendant. Paragraph 2 thereof states,

Furthermore the defendant says:
(a) The motor vehicle accident referred to by the plaintiff in the
Statement of Claim occurred in the State of Queensland and the defendant
says the substantive law which should be applied in this matter is the
law of that State.
(b) Accordingly, pursuant to Section 56 of the Limitation Act 1985 (as
amended) the plaintiff is statute barred from bringing the proceedings
herein.

4. On 30 November 1993, the Limitation Act 1985 (ACT) (the Territory Act) was amended, inter alia, by the addition thereto of sections 55 to 57. It was intended by the addition of those sections, according to the explanatory memorandum accompanying the amending enactment, to reform the choice of law rules regarding limitation periods. It was explained in the following terms in that document,

In McKain v R W Millar and Co (South Australia) Pty Ltd [1991] HCA 56; 66 ALJR 186
the High Court confirmed that statutes that set down limitation periods
form part of the procedural law. Accordingly, the limitation law that
is to be applied is that of the jurisdiction in which an action is
commenced. For example, if a motor vehicle collision happens in South
Australia, which has say a 3 year limitation period for personal
injuries matters, but a person who was injured in the collision resides
in and commences proceedings in New South Wales, which has say a 6 year
limitation period, the New South Wales period will be applied. This is
so even though in other respects the law to be applied will be that of
South Australia on the basis that its law has the closest connection to
the matters that lead to the proceedings being taken.

The Standing Committee of Attorneys-General has resolved that each
State and Territory should enact legislation that will provide that the
limitation law to be applied is that of the place that supplies the
substantive law that will govern a matter. In the example given above
the substantive law would be South Australia's and its limitation law
would apply.

5. Section 56 provides,

If the substantive law of another place being a State, another
Territory or New Zealand, is to govern a claim before a court of the
Territory, a limitation law of that place is to be regarded as part
of that substantive law and applied accordingly by the court.

6. Section 55 defines "limitation law" so as to refer, inter alia, to the Limitation of Actions Act 1974 (Qld) (the Queensland Act).

7. It follows that whether or not this Court would otherwise characterise the Queensland Act as part of the substantive law of Queensland it is directed so to do by s.56 of the Territory Act.

8. Section 11 of the Queensland Act limits the time within which an action such as the present action may be commenced. It provides,

Notwithstanding any other Act or law or rule of law, an action for
damages for negligence, trespass, nuisance or breach of duty (whether
the duty exists by virtue of a contract or a provision made by or under
a statute or independently of a contract or such provision) in which
damages claimed by the plaintiff consist of or include damages in
respect of personal injury to any person or damages in respect of injury
resulting from the death of any person shall not be brought after the
expiration of 3 years from the date on which the cause of action arose.

9. But for s.56 of the Territory Act, such a provision would, for the purposes of choice of law, be regarded as part of the procedural law of Queensland. Queensland law would also so characterise that provision. Confirmation of that view is to be found by reference to s.10A of the Queensland Act. It expressly provides, in respect of actions to recover tax, that the limitation period prescribed by that section "is part of the substantive law of the State". There is no such provision displacing the ordinary characterisation in relation to s.11. I make no comment as to whether s.10A would be regarded under the law of this Territory as part of the substantive law of Queensland merely because the Queensland Act so states.

10. Immediately before 30 November 1993, the plaintiff would have expected to have been able to commence proceedings in this Territory in respect of personal injury suffered by her in Queensland at any time before 29 December 1995. That was the applicable limitation period prescribed by s.11 of the Territory Act. It is true that the defendant might have applied, pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), to transfer the action to the Supreme Court of Queensland. However, by then, the action would have been lawfully commenced. Section 11 of the Queensland Act would not have applied to it. If there was any doubt about that, the transferring court would have required an undertaking from the defendant not to raise the defence which might otherwise have been pleaded had the action been commenced in Queensland.

11. It may also be noted that the Act amending the Territory Act was presented to the Legislative Assembly on 23 November 1993. It was passed by the Assembly and notified in the Government Gazette on 30 November 1993. Sub-section 7(3) of the amending Act provided,

Division 4 of Part IV (that is ss 55-57) of the Principal Act as
amended by this Act also applies to a cause of action that arose
before the commencement of this section but does not apply to
proceedings instituted before the commencement of this section.

12. If the effect of the amending Act was, as the defendant contends, to retrospectively reduce the time within which the plaintiff could commence these proceedings in this Territory from six years to three years, it did so forthwith. This contrasts with the transitional provision in respect of the limitation period inserted by s.4 of the same amending Act. That section created a new limitation period of six months for recovery of money paid under an invalid Territory revenue law. Persons having such claims were given, by virtue of s.7(1) of the amending Act, a period of six months from 30 November 1993 (unless the six year limitation otherwise applicable would have earlier expired) within which to become aware of the change to the law and to commence proceedings accordingly.

13. It is unfortunate that litigants in the position of the present plaintiff were not extended the benefit of a similar transitional arrangement.

14. The first question raised is as to whether the amending Act has the effect of barring the commencement in this Territory of these proceedings, by virtue of s.56 of the Territory Act. That is, whether s.11 of the Queensland Act is to be applied under the law of the Territory.

Applicability of s.11 of the Queensland Act.
15. There is little doubt that the substantive law of Queensland applies to determine whether or not there is any and, if so, what cause of action vested in the plaintiff against the defendant: Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41. That includes any defence provided for by the substantive law of Queensland.

16. The procedural law of Queensland will not be so applied: McKain v R W Millar and Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1. More recently, in Stephens v Head [1993] HCA 19; (1993) 176 CLR 433, the High Court held that provisions relating to the calculation of damages, limiting the extent thereof, were merely procedural. Thus, if an action is being heard in a place other than the place where the cause of action arose, such laws will be applied only insofar as they are part of the laws of the place where the action is being heard.

17. The defendant argues that the provisions of s.11 of the Queensland Act apply to the exclusion of s.11 of the Territory Act. Indeed s.11(2) of the Territory Act provides that the general limitation period of six years prescribed by s.11(1),

... does not apply to a cause of action in respect of which another
limitation period is provided by this Act.

18. The contention is, in effect, that s.56 provides "another limitation period". The contrary argument was that the Territory Act should not be so construed by reason of the unfairness of doing so, having regard to the lack of notice of the proposed amendment and of any adequate transition provision. It was suggested, as a result, that the presumption against retrospectivity should apply so as to limit the effect of the amending Act to actions other than those which would be forthwith barred by it. There is, of course, a presumption against retrospectivity: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 per Dixon CJ; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 per Fullagar J, 202 per Kitto and Menzies JJ; Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 13 ALR 17, 35.

19. However, even giving full weight to that presumption, the express terms of s.7(3) of the amending Act make it clear that the amendments to the Territory Act are to apply to all causes of action whether then accrued or not. Only causes of action already sued upon are excluded from the operation of the amendments. To give effect to the plaintiff's contention, s.7(3) would have to be read down so as to apply only to causes of action in respect of which the amended limitation period had not already expired.

20. Regrettably, that interpretation is inconsistent with the clear terms of s.57 of the Territory Act. That section provides,

Where a court of the Territory exercises a discretion conferred
under a limitation law of a place being a State, another Territory
or New Zealand that discretion, as far as practicable, is to be
exercised in the manner in which it is exercised in comparable cases
by the courts of that place.

21. It therefore seems to me that the Territory Act must be read as if the limitation period prescribed in relation to this matter, was that provided under the relevant provisions of the Queensland Act.

22. Whether or not the amending Act operates so as to apply only the limitation law of another place in the form in which that law appeared at the date of the amending Act or whether it applies the limitation laws of those places as amended from time to time by the legislatures of those places, is not a matter which it is necessary presently to decide.

23. The period of limitation prescribed by the Queensland Act had expired as at the date of commencement of the plaintiff's action in this Court. It follows that, as at 2 December 1993, the plaintiff's claim was statute-barred by virtue of the provisions of the Queensland Act as applied by virtue of the Territory Act as amended. That period had expired on 28 December 1992.

Discretion to extend time
24. Section 57 of the Territory Act clearly contemplates that a Territory court might need to exercise a discretion to extend time for commencing proceedings, as if it was the court of another State or Territory or New Zealand, assuming the action to be otherwise barred by reference to the limitation law of that other place.

25. The defendant submits that the term "limitation law" includes any discretion to extend time whether it is more restrictive than the discretion provided for otherwise under the Territory Act. The plaintiff argues that even if the limitation period prescribed by the Queensland Act applies, the discretion to extend time is that granted by s.36 of the Territory Act, which should remain applicable in addition to, or in substitution for, any such discretion conferred by the Queensland Act.

26. It is likely that, in some cases the extra-Territorial limitation law will provide no discretion to extend time in a case where Territory law would provide such a discretion or vice versa.

27. In my view the Territory legislature, in passing the amending Act, intended to provide for different periods of limitation including any discretion to extend time granted by a relevant extra-Territorial law in respect of causes of action otherwise governed by the substantive provisions of that extra-Territorial law. It follows that the limitation period provided by a relevant extra-Territorial law applies inclusive of the discretion, if any, under that law to extend that period.

28. It is true that there is no express exclusion of otherwise applicable parts of the Territory Act. It is, therefore, necessary to consider whether the discretion conferred generally in actions for personal injury under s.36 of the Territory Act is excluded by necessary implication.

29. It would not be necessary to decide that question if a discretion to extend the expired limitation period was available under the Queensland Act and was then exercisable in favour of the plaintiff.

30. Section 31 of the Queensland Act confers a discretion on a court to extend the limitation period applicable to this action in the following circumstances,

(2) Where on application to a court by a person claiming to have a
right of action to which this section applies, it appears to the court -
(a) that a material fact of a decisive character relating to the right
of action was not within the means of knowledge of the applicant until a
date after the commencement of the year last preceding the expiration of
the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from
a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be
extended so that it expires at the end of 1 year after that date and
thereupon, for the purposes of the action brought by the applicant in
that court, the period of limitation is extended accordingly.

31. The defendant concedes that the condition referred to in s.31(2)(b) has been satisfied but contends that the condition prescribed by s.31(2) (a) has not been satisfied.

32. It is apparent that the only possible "material fact" of which the plaintiff became aware after the specified date was the amendment to the Territory Act. The defendant contends that this is not a "material fact" within the meaning of the Queensland Act. It would follow that there is no applicable discretion to extend the time bar otherwise applicable.

33. The defendant referred, in this respect, to Re Sihvola (1979) Qd R 458. In that case, the applicant had been unaware that the relevant limitation period had expired. Wanstall CJ rejected a submission that this was a "material fact" within the meaning of s.31(2)(a). However, the other members of the court did not find it necessary to express an opinion on that question.

34. The question was next raised in ex parte Bolewski (1981) Qd R 54. Campbell J held that the failure of a party's solicitors correctly to advise that party as to the relevant limitation period was not "a material fact of a decisive character" within the meaning of s.31(1)(a).

35. Of course, in this case, there was no similar failure on the part of solicitors advising the plaintiff.

36. A similar construction to that arrived at in the Queensland cases of Sihvola and Bolewski was given to a comparable New South Wales provision in Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234. However, in that case the appellant succeeded on other grounds. The majority drew a distinction between knowledge of facts relevant successfully to establish a cause of action, including the existence of an alternative and safer system of work, and the legal consequence of those facts: whether, for example, as a matter of law the known facts would constitute a cause of action.

37. More recently, in Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd (1990) 2 Qd R 301 the Full Court of the Supreme Court of Queensland adopted a similar approach to the question of what was a "material fact" as that taken in Do Carmo v Ford Excavations Pty Ltd, supra.

38. It seems to me that a Queensland court would find that the discretion under s.31 would not be available to be exercised in the present case: see also Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325, per Macrossan J. Such a court would hold that the Queensland Act does not permit, in these circumstances, a postponement or extension of the period prescribed by s.11 of the Queensland Act had the action been commenced in Queensland.

39. The terms of the relevant provisions of the Queensland Act are not so expressed that, in applying them to this plaintiff's cause of action, they became inapplicable to it. They do not, in terms, apply only to actions commenced in Queensland. It therefore becomes a matter for Territory law as to whether they apply to actions commenced in the Territory. This action would certainly be unconditionally barred if commenced in Queensland.

40. It is clearly the intended consequence of that conclusion that this action should also be regarded as statute-barred in this Territory. It would be inconsistent with that intention if s.36 of the Territory Act was available to be applied so as to enable the action to be brought notwithstanding that it would be regarded as irrevocably statute-barred under the laws of Queensland if commenced in that State.

41. It follows that I have no power to extend the time within which the plaintiff may, in this Territory, institute these proceedings.

42. There is no doubt that the plaintiff is entitled to feel aggrieved at this result. The legislature has effectively extinguished her right of action without reasonable notice.

43. It was that perception which led me to raise with counsel a question as to whether the amending Act was valid. The amending Act is similar, in its effect, to the law struck down by the High Court in Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 119 ALR 629. The fact that the amending Act applied generally to causes of action and was enacted by the Territory legislature as opposed to the Commonwealth may well distinguish it from s.44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) which was in issue in Georgiadis. I also raised a question as to whether the application to litigants of differing limitation periods by reference to the place in which the cause of action arose might offend against s.117 of the Constitution: Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 120 ALR 605. The law considered in Goryl focussed directly on residence as the criterion for discrimination. The Territory Act as amended does not do so, at least not directly. That may well be a valid distinction.

44. However, the plaintiff has chosen not to raise either of these issues in argument and expressly declines to rely on them. I therefore express no concluded view on those questions.

45. It is ordered that the plaintiff's application to extend time be dismissed. I will hear the parties as to consequential orders and costs.