Raymond Mcintosh v Southern Meats Pty Limited Trading As Harden Abattoirs [1997] ACTSC 11 (26 February 1997)

SUPREME COURT OF THE ACT

RAYMOND McINTOSH v. SOUTHERN MEATS PTY LIMITED trading as HARDEN
ABATTOIRS
No. SC834 of 1996
Number of pages - 21
Damages - Jurisdiction - Limitation of actions - Practice and
Procedure - Statutory interpretation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY HIGGINS J

CATCHWORDS

Damages - negligence - personal injury - workers compensation.

Jurisdiction - common law personal injury claim brought in the ACT in respect of injury sustained in NSW - whether the governing law should be that of the lex loci delicti or the lex fori - the two conditions for actionability in the forum - the rule of Phillips v Eyre - the determination of a forum's jurisdiction according to the lex fori.

Limitation of actions - applicable time bar - whether six years or three years - discretion to extend time - relevant factors - relevance of time since expiry of limitation period.

Practice and Procedure - statutory limitations - whether limitation laws, barring maintenance of an action, are procedural or substantive - the court's discretion to extend time for the commencement of an action beyond the limitation period.

Statutory interpretation - s56 Limitation Act - governing law - applicable law that of the forum - meaning of governing law in relation to limitation laws of the place of the wrong - purposive interpretation.

Limitation Act 1985 (ACT), ss 11(2), 36, 56 Workers Compensation Act 1987 (NSW), s151D(2) The Constitution, s118 Service and Execution of Process Act 1992 (Cth) Motor Accidents Act 1988 (NSW), s79 Limitation Act 1958 (Vic), s5(1) Choice of Law (Limitation Periods) Act 1993 (Vic), s5 Phegan "Tort Defences in Conflict of Laws" (1984) 58 ALJ 24

S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380 McKain v R W Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629 Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20 Chaplin v Boys [1971] AC 356 Phillips v Eyre (1870) LR 6 QB 1 Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95 Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 The Commonwealth v Verweyan [1990] HCA 39; (1990) 170 CLR 394 Bonython v The Commonwealth [1950] HCA 37; (1950) 81 CLR 486 Rose v Chang-Sup Kwow [1994] ACTSC 88; (1994) 121 ACTR 1 Carleton v Freedom Publishing (1982) 45 ACTR 1 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35
Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 70 ALJR 866 Ball v Commonwealth, unreported, Supreme Court, Australian Capital Territory, 3 February 1997

HEARING

CANBERRA, 18 December 1996 26:2:1997

Counsel for the Plaintiff: Mr B Meagher Instructing solicitors: Scott Sheils & Glover

Counsel for the Defendant: Mr G Stretton Instructing solicitors: Johnson & Sendall

ORDER

THE COURT ORDERS THAT:
The application be refused.

DECISION

HIGGINS J
1. This is an application, dated 4 October 1996, whereby the plaintiff seeks leave to commence proceedings against the defendant, Southern Meats Pty Ltd (Southern Meats).

Facts relied on by the plaintiff 2. For the purposes of this application, it is to be assumed that the plaintiff will be able to prove the facts alleged to constitute a cause of action.

3. On 18 December 1989, the plaintiff was engaged in "hanging skins" in the course of his employment at the Harden Abattoir, New South Wales. That involved standing on narrow beams of wood suspended across larger beams. The narrow beams, referred to as "sticks", were not fixed and had animal skins draped across them.

4. One of the sticks upon which the plaintiff was standing gave way and the plaintiff fell 15 to 20 feet to the ground, landing heavily, but on his feet.

5. If those facts are made out, it is at least seriously arguable that the plaintiff would have a good cause of action in negligence against his employer.

6. As a result of the fall, the plaintiff sustained an injury to his cervical spine. He experienced pain and pins and needles in his neck radiating into both arms. He also had numbness in his hands and legs.

7. The plaintiff consulted Dr M R Dattoo, a general practitioner, at Harden in December 1989. Symptoms had not by then improved. Dr Dattoo suspected that there had been a cervical disc rupture.

8. He referred the plaintiff to a specialist neurologist practising in Canberra, Dr Gytis Danta. Dr Danta confirmed that diagnosis. The plaintiff was then referred to a Canberra neurosurgeon, Dr Raymond Newcombe, who performed an operation in April 1990.

9. After that operation, the plaintiff continued working, though with increasing difficulty. There was an apparent recurrence of previous symptoms in October 1995.

10. The original injury was reported by the plaintiff to his employer on 18 December 1989. He gave verbal notice initially to Mr Peter Sullivan, a more senior employee at his place of work. The employer was named on the documents reporting the injury to the workers compensation insurer, FAI Insurance Ltd (FAI), as "Southern Meats" of 412 Lyons Road, Five Dock, New South Wales.

11. FAI was notified of the incident on 9 January 1990. It accepted the claim, paid compensation and continued to meet the plaintiff's expenses until October 1995 when the plaintiff was referred back to Dr Newcombe. FAI then declined to meet not only that expense but also the further expense of tests Dr Newcombe then recommended.

12. As a result, the plaintiff consulted a Canberra solicitor, Mr Butler of Scott Sheils and Glover. Until then, the plaintiff deposed that he had been unaware of any legal rights that he may have had to claim damages for negligence.

13. The plaintiff ceased employment in April 1996. Since then he has received no compensation benefits from FAI.

14. It is clearly seriously arguable that if the plaintiff had pursued his cause of action, the damages to be awarded would have been substantial.

15. The defendant's solicitor has deposed that the abattoir at Harden, at which the plaintiff was employed, was conducted by Harden Abattoir Pty Ltd (Harden Abattoir). Southern Meats allegedly conducted another abattoir though its location is not revealed. The source of this information was said to be Mr Francis Newton, General Manager of Southern Meats and also a director of Harden Abattoir. The company search annexed to the Affidavit sworn by the plaintiff's solicitor on 31 October 1996 disclosed the registered office of Harden Abattoir to be "412 Lyons Rd, Five Dock, NSW", which was also declared to be its principal place of business. That was the same address as that given for Southern Meats. The two companies are clearly related.

16. There is, also, an affidavit from a Mr Raymond Selig. Mr Selig is the Business Manager of Southern Meats. Although asserting that all workers at Harden were employed by Harden Abattoirs, he conceded that all business records and insurance policies referred to the plaintiff as an employee of Southern Meats. So also did the plaintiff's 1990 Group Certificate which was tendered before me.

17. On this material, it would seem likely that Southern Meats was the employer of the plaintiff at the time of his injury. At the very least, it is likely that Southern Meats would be estopped from denying that relationship. It is unnecessary to speculate as to the taxation, insurance and other legal consequences of the alleged failure of Harden Abattoirs to keep accurate employment records. In any event, if time was to be extended, it would be appropriate, if Southern Meats was to insist that it was not the employer, to also join Harden Abattoirs as a defendant.

18. Apart from that, Mr Selig deposes that all records relating to the plaintiff's claim have been forwarded to FAI. Mr Selig has, apparently, spoken to the witness named in the original accident report, Mr Peter Sullivan. The latter claims to have no memory of the plaintiff being injured.

19. I must assume that FAI obtained a statement from Mr Sullivan so as, at least, to confirm that a compensible injury had occurred. If it did not, it has only itself to blame for any lack of information concerning the accident. However, I cannot assume that any such statement would have addressed the issues of negligence or contributory negligence.

20. A further complication has, however, been expressly raised. Solicitors for FAI have written to Southern Meats asserting that the "statutory form of policy issued under the Workers Compensation Act 1987 (NSW) (NSW WC Act) at the time of the alleged injury" would entitle Southern Meats to indemnity only, ... in respect of a common law claim brought by a worker in respect of injury received in circumstances which would give rise to an entitlement to workers compensation benefits under the NSW Act but only where those proceedings are brought in NSW.

21. Whether or not this assertion is correct was not the subject of argument before me. It was accepted that, if correct, it might provide ground for an order transferring proceedings to the Supreme Court of New South Wales. It does not seem to me appropriate that I should assume that the defendant will not be indemnified by FAI if the action proceeds. To assume that would be to assume that employers in New South Wales though believing, no doubt, that they are indemnified under statutory policies, may be deprived of that indemnity if a worker chooses, perhaps for good reason, to sue for damages in a court outside of New South Wales. In any event, that consequence, if it would otherwise follow, can be avoided by a cross-vesting order.

22. Nevertheless, because the injury happened in the State of New South Wales, s56 of the Limitation Act 1985 (ACT) (ACT Limitation Act) becomes relevant. That section provides, If the substantive law of another place ... [including New South Wales] 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. The relevant provision under the law of New South Wales is that contained in s151D(2) of the NSW WC Act. The effect of that sub-section is to prescribe a limitation period of three years, ... after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. It is accepted by both the applicant and the respondent that, if s151D(2) provides the applicable limitation law, then the question whether leave should be granted requires the application of the same test, in substance, as would be applied if s36 of the ACT Limitation Act was applicable.

23. In each case, it is accepted that the applicant for leave must satisfy the Court that it is "just and equitable" to extend the relevant time bar. The only relevant difference is that under the New South Wales limitation law the limit is three years, whereas under the ACT limitation law, the limit is six years.

24. In S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380, a full Federal Court held that in considering the issue of delay in bringing proceedings, the reasons for and prejudice arising from it, the commencement point is not the expiry of the relevant time bar but the whole period from the accrual of the cause of action.

25. As a result, the period of time for which the prima facie time bar has been exceeded assumes less significance per se than would be the case had the contrary proposition been accepted.

26. Nevertheless, it seems to me that the shorter the period the legislature has prescribed for action to be brought, the more reluctant should a court be to allow a proportionately greater extension of the time bar. A potential defendant is, after all, entitled to assume, after the time bar is passed, that it is, at least, unlikely that proceedings will be commenced in respect of a past event. The greater the time passed since expiry of the bar the greater the confidence the alleged tortfeasor is entitled to entertain that no proceedings will be taken.

27. It is relevant, therefore, to determine when the time bar expired. That raises a question as to the interpretation of s56 of the ACT Limitation Act.

When the time bar expired - Is the applicable law governing the claim that of the Territory or New South Wales? 28. There is no doubt that s151D(2) is, relevantly, a limitation law of New South Wales within the meaning of s56.

29. Ordinarily, such a law would, unless it extinguished a cause of action as opposed to barring proceedings to enforce the same, be regarded as procedural, see McKain v R W Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1. Section 151D(2) would, therefore, not be regarded by the common law applicable in this Territory as part of the substantive law of the State of New South Wales.

Breavington v Godleman 30. Thus, in an action brought in this Court, but for s56 (supra), the NSW limitation law would play no part in determining whether such an action was maintainable in this Court. Whether the action would, however, be maintainable is to be determined substantively by reference to the common law principles of private international law declared applicable by the High Court in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 subject to any valid statutory modification. In that case, Northern Territory legislation had abolished the entitlement of victims of motor accidents to recover damages for loss of earnings or earning capacity. In Victoria, in such a case, common law damages were available without those limitations. The appellant sued in Victoria. It was the appellant's contention that the limitation on damages referred to under Northern Territory law was not applicable. The respondent claimed that the Northern Territory legislative restrictions applied to limit the appellant's claim in Victoria so as to prevent recovery of the damages referred to. The respondent's contention succeeded. That result could have been justified either on the basis that the relevant provisions limited the action maintainable under the law of Victoria or on the basis that the substantive law of the Territory was, in any event, the applicable or governing law.

31. The case appeared to decide that Northern Territory law, insofar as it was not merely procedural but was substantive, applied to govern the question as to the substantive rights of the parties if suit was brought in a State or Territory other than the Northern Territory. It also appeared to decide that provisions limiting recovery of damages were matters of substantive law.

32. In Breavington v Godleman (supra), the real issue was whether an action could be maintained in Victoria for the heads of damage referred to.

33. Mason CJ, at 73, noted, ... Chaplin v Boys [[1971] AC 356] has cast a long shadow over the previously accepted English view that the lex fori governs substantive questions arising in respect of torts committed outside the jurisdiction, once the two preliminary conditions are satisfied. Although Koop v Bebb [(1951) [1951] HCA 77; 84 CLR 629] lessened the opportunities for forum shopping by requiring that the act complained of must give rise to civil liability according to the law of the place of the tort, a plaintiff, like the appellant in this case, may find that the law of another State or Territory offers a more generous assessment of damages. Accordingly, continuing acceptance of the lex fori as the governing law still offers opportunities to forum shoppers. Clearly, his Honour had in mind the distinction between actionability, requiring under Koop v Bebb (supra), satisfaction of the "two preliminary conditions" of actionability not only under the lex loci delicti but also under the lex fori, and the subsequent identification of "the governing law" previously assumed to be the lex fori. That assumption was recognised as allowing some scope for forum shopping though the limits of that scope were not explored. Consequently his Honour supported the view that the forum should apply as "the governing law" the law of the place of the tort.

34. Wilson and Gaudron JJ noted that the decision in Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20 had been taken to decide that once a court of the forum had determined that the action on the tort committed out of its law district was justiciable within it, the law of the forum applied as the substantive law to determine the action, that is, the lex fori was the governing law. Their Honours then adverted to the consideration that an action on the tort in question might involve the exercise by a State or Territory court of Federal as well as State or Territorial judicial power.

35. That consideration, as their Honours stated at 88, made it, ... not only undesirable, but manifestly absurd that the one set of facts occurring in the one country might give rise to different legal consequences depending upon the location or venue of the court in which action is brought. That "absurdity" would seem capable of resolution only by denying to the lex fori its role as the substantive law governing the resolution of the issues between the parties in dispute as to their tortious liability. Their Honours rejected the "flexible exception" approach of applying the lex loci delicti unless some more appropriate law ought to be applied, favoured by Lord Wilberforce in Chaplin v Boys [1971] AC 356. That rejection was supported by reference to s118 of the Constitution (full faith and credit). It was to be inferred, in their Honour's view, at 98, that, ... the questions of liability in tort should be determined by the substantive law that would be applied if the matter were adjudicated in a court exercising the judicial power of the State or Territory in which the events occurred. However, their Honours were at pains to point out that the application of that principle did not imply that the law of the delict is extended in its territorial operation so as to apply to the law district of the forum. At 99, they stated, In so far as the law of a State or Territory is thus applied in another State or Territory this occurs not by reason of extended or extraterritorial operation of that State or Territory law, but by operation of the choice of law rule applicable in the State or Territory where the matter falls for adjudication. Thus, on that formulation, the lex fori is the "governing law" but its substantive content is that of the lex loci delicti. In that sense the lex loci delicti may be regarded as being the "governing law". Wilson and Gaudron JJ in substance thus supported the view that the "governing law" should be the lex loci delicti rather than the lex fori.

36. Brennan J, at 110, held the common law to be that, The two conditions [for actionability in the forum] are not merely the criteria of the forum's jurisdiction; they state the substantive law which governs a plaintiff's right to recover a judgment in respect of an extraterritorial wrong. The two conditions govern both the existence of the forum's jurisdiction and its exercise. They are part of the lex fori. ... The forum must determine its jurisdiction and the law to be applied in exercising its jurisdiction according to the lex fori. His Honour then proceeded to restate "the two conditions" in the following terms, at 110-1, A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if - 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce. That formulation was intended, in his Honour's words at 111, to, ... reserve to the law of the State or Territory in which the action is brought the function of determining whether the kind of civil liability imposed on the tortfeasor by the lex loci is enforceable in the local courts. It is, therefore, a matter for the common or statute law of the forum to regulate the enforcement in the courts of the forum of liability for extraterritorial wrongs. Section 118 of the Constitution did not, in his Honour's opinion, alter that situation. As Northern Territory law denied liability of the kind contended for, the lex fori would not entertain the claim. Although the first of the two conditions for enforcability was satisfied, the second was not.

37. His Honour did not need to address the issue as to whether, if the action was justiciable, the substantive law to be applied was the lex fori or the lex loci delicti.

38. It was expressly noted by his Honour, at 119, that the method of quantification of damages was a matter governed solely by the lex fori. A query was raised as to whether, if the judgment entered in the forum had then to be enforced in the law district where the wrong occurred, the Service and Execution of Process Act 1992 (Cth) would require uniformity of assessment, but that question was neither answered nor has it subsequently been raised.

39. Deane J considered that undue preference for the substantive law of the forum was not consistent with the national system of law established by the Constitution. It was inconsistent with that national system for the law of the forum to apply to a wrong committed elsewhere in Australia. His Honour concluded, at 135, ... there is no room for the direct application of private international law principles to resolve competition or inconsistency between a law of the Commonwealth and a law of a State or between the laws of different States. and at 136-7, that, ... a law of one State which purports to attach legal liability for conduct and consequences which are wholly within the territory of another State will, in the absence of some relevant overriding territorial nexus, infringe the injunction of s118 of the Constitution regardless of whether the law of the other State expressly deals with that conduct or its consequences in a different fashion or simply treats that conduct as not giving rise to a legal liability by saying nothing about it. ... The second consequence is that the courts of one State cannot refuse to recognise or apply the substantive laws of a second State in relation to an action arising in the territory of the second State on the ground that the law of the second State is contrary to public policy considerations which are recognised by the law of the forum State. ...The third consequence ... is that it is inevitable that there will be difficulty in identifying the applicable law in some cases arising from circumstances in (or connected with) the territory of more than one State. It is apparent that Deane J regarded it as incumbent on the Supreme Court of Victoria to apply the national law to the claim before it. That included the substantive law of the Northern Territory in the case of a wrong occurring there. There was no role to be played by the substantive law of Victoria. Indeed, it would be consistent with his Honour's reasoning to hold that a State law limiting or modifying the recognition and enforcement of an applicable law of another state would offend s118 of the Constitution.

40. Dawson J commenced with the premise that the resolution of conflicts of laws within the nation in relation to civil wrongs was to be derived from Phillips v Eyre (1870) LR 6 QB 1. In his Honour's opinion, the rule adopted in the course of that decision included a choice of the governing law, that being the lex fori. Whilst accepting that actionability under the lex delicti is a necessary pre-condition for actionability in the forum, his Honour said, at 142, Upon the view favoured by authority, the rule involves a rejection of the notion that the right which is to be enforced is the creation of the lex delicti. But for that constraining authority, his Honour would have favoured a choice of law rule which applied the lex delicti leaving the lex fori to determine the measure of compensation according to its own procedure.

41. In his Honour's view, to satisfy the second condition of actionability under the lex delicti, the acts done must have been such as to attract civil liability in the place where they occurred. The law of the Northern Territory excluded liability for certain heads of damage. That exclusion did not go merely to the measure of damages arising from the wrong complained of. It altered the character of the wrong. It denied civil liability for loss of earnings or for diminution of earning capacity.

42. His Honour rejected the view that the rule in Phillips v Eyre (supra), at least in its application to any Australian jurisdiction, should be subject to any flexible exception which would enable the denial of actionability under the lex delicti to be disregarded.

43. The formulation adopted by Dawson involved no new application or re-formulation of the rule in Phillips v Eyre as explained and modified in Koop v Bebb.

44. Toohey J was of the opinion that the rule in Phillips v Eyre had not been exhaustively defined so as to clarify whether a choice of law is to follow or not from satisfaction of the dual actionability conditions.

45. His Honour referred to Anderson v Eric Anderson Radio & TV Pty Ltd (supra), a claim in negligence for damages for personal injury, where the majority applied a test of actionability under the lex delicti (the Australian Capital Territory) to determine jurisdiction to entertain the action in the forum (New South Wales). The lex delicti did not deny liability if there was contributory negligence. It prescribed apportionment. The lex fori at that time regarded contributory negligence, if pleaded and proved, as a complete defence. The defence available under the lex fori was held to defeat the action though that defence would not have been open under the lex delicti.

46. His Honour considered that there was a need to restate the second condition of the rule in Phillips v Eyre. That restatement was consistent with the view expressed by Dawson J. However, Toohey J was also prepared to adopt the "flexible exception" approach to that second condition adopted by Lord Wilberforce in Chaplin v Boys. In his Honour's opinion, the "flexible exception" had no application to a case involving a conflict of laws within the Commonwealth of Australia, not by reason of s118 of the Constitution, but by reason of "the relation of Victoria and the Territory as members of the federation" (167).

47. The rejection of the lex fori as the governing law to determine the rights and liabilities of the parties can be inferred from the judgments of Mason CJ and Deane J. Wilson and Gaudron JJ held that whilst the lex fori applies to determine the rights and liabilities of the parties it should apply the law of the place of the delict. Thus, in that sense, the lex delicti is to be identified as the governing law. Effectively, four of the seven Justices rejected the view that the governing law, once justiciability in the forum is assumed or found, is that of the forum.

48. Brennan, Dawson and Toohey JJ clearly favoured the application of the lex fori as the governing law applying its own substantive rules rather than those that would have applied in the place of the delict once justiciability has been found.

49. It is apparent on any view of it that none of the judgments would have found that the second condition in Phillips v Eyre, as explained in Koop v Bebb, was satisfied.

50. The case did not consider, otherwise than peripherally, the role of defences a defendant might have raised if the matter was to be determined under the substantive law of the lex delicti but which would not be available, or would be more or less significant, under the lex fori. Thus the decision does not address the role, if any, of available defences otherwise than those available under the governing law in determining whether the tests for actionability in the forum have been satisfied.

Anderson v Eric Anderson Radio & TV Pty Ltd 51. In Anderson v Eric Anderson Radio & TV Pty Ltd, Barwick CJ, at 23, made it plain that, in his view, ... a negligent act, though damages for its consequences may in the result be denied because of the plaintiff's lack of care for his own safety, remains an actionable wrong, ... However, Kitto J at 28, took the view that the wrong of which the plaintiff complained, "would not have constituted an actionable wrong" had it occurred in New South Wales, ... for the law of the State knows no action for breach of a duty of care save one for damage which results from the breach without being contributed to by a lack of reasonable care on the part of the party who had sustained the damage: ... His Honour conceded that the defendant's negligent act nevertheless, at 29, ... is a wrongful act, one that is "tortious" in the sense of being legally unjustifiable because done in breach of a legal duty. Thus, bearing in mind that lack of justifiability of the acts in question under the lex loci delicti was a condition of justiciability, both these formulations agree that the lex loci was relevant to determine whether the act complained of was wrongful under that law irrespective of the availability of a defence to such a claim if litigated there. The substantive defences would be those of the lex fori, though Barwick CJ would deny liability after justiciability was determined, whilst Kitto J would have denied justiciability because of the availability of a defence under the lex fori. Taylor J accepted that actionability in each law district had been demonstrated, satisfying the justiciability requirement, and agreed with Barwick CJ that the plaintiff failed because of the substantive defence available under the law of New South Wales.

52. Menzies J agreed in the result without resolving the differences between Barwick CJ's analysis and that of Kitto J.

53. Windeyer J accepted that actionability in the forum meant, at 41, ... that the acts that a plaintiff alleges were done must be such that had they been done in the country of the forum, here New South Wales, they would have given him a good cause of action there against the defendant according to the lex fori, here the municipal law of New South Wales. That a plaintiff has a good cause of action does not mean that no matter exists that would answer or defeat it. Although Windeyer J did not address the question, it is consistent with his approach to what is "a good cause of action" that defences available under the lex loci delicti would not have been relevant to the justiciability of the action in the forum.

54. If Anderson's case remains good law, a majority, Barwick CJ, Kitto and Taylor JJ, would not have regarded defences available under the lex loci delicti to be relevant. It is likely Windeyer J would have agreed.

McKain v R W Miller & Co (South Australia) Pty Ltd 55. McKain v R W Miller & Co (South Australia) Pty Ltd (supra) revisited Breavington v Godleman. The issue was as to how a conflict of limitation laws should be resolved. Provisions such as s56 of the ACT Limitation Act had yet to be enacted. The essence of the decision was that such a law, if merely barring maintenance of an action, is procedural not substantive. Thus, on any of the views adopted in Breavington v Godleman, the lex delicti did not have a role in determining the limitation period applicable to an action brought in another law district. The lex fori alone determined that issue.

56. Some guidance, however, may be derived from the reasons expressed by members of the court in making that decision.

57. Mason CJ, at 14, regarded "the majority" in Breavington v Godleman as having determined that the applicable law to resolve an action for damages for personal injury was, ... the lex loci delicti and the law of the place having the closest connexion with the parties and the cause of action. Deane and Gaudron JJ expressed the view that Breavington v Godleman overruled Koop v Bebb. Gaudron J found a constitutional implication requiring that result. They would have applied the limitation laws of the lex delicti in the interests of further discouraging forum shopping, a view rejected by the majority, Brennan, Dawson, Toohey and McHugh JJ.

58. The majority expressed the opinion that it was only a minority view in Breavington v Godleman that the Constitution required or implied that the law of the forum could apply only its procedural and adjectival law to proceedings for a tort committed in another State or Territory. They, therefore, regarded themselves as free to reject that view. Their Honours did not, however, acknowledge that the majority in that case had accepted, for whatever reason, that the lex loci delicti was to be the governing law to determine tortious liability in the forum.

59. They expressed the effect of Breavington v Godleman in the following terms, at 35-6, In the absence of any overriding constitutional or statutory provisions, a State or Territorial court exercising jurisdiction in a claim for damages for a tort which has occurred outside the jurisdiction, but within Australia, must apply the common law rules governing conflict of laws. ... The common law rules, being part of the municipal law binding on the court, are prima facie amenable to variation by the forum legislature. To infer a constitutional imperative that one State must always apply the substantive law of another to determine a claim for damages for a tort occurring in that other State or Territory would have a result that, at 36, ... a State law which prohibits the bringing of an action of a particular kind (eg; an action for damages for personal injury where the injury is not serious) or which creates a particular defence (say, in defamation) would be applied by the courts of the State to claims arising from intra-jurisdictional torts but would be constitutionally ineffective in respect of claims arising from torts occurring outside the State but within Australia. Their Honours, at 39, adopted the view that, The reasons for judgment of Dawson J in Breavington v Godleman and the associated case of Perrett v Robinson [(1988) [1988] HCA 41; 169 CLR 172, 186] accord with this formulation [ie that of Brennan J in Breavington v Godleman at 110-111]. It is, we think, the appropriate formulation in respect of intranational torts though the present case suggests a need for a qualification or refinement next to be mentioned. That qualification was that the civil liability under the law of the delict be a continuing one. Thus, in each place where a cause of action in respect of the extraterritorial tort may be sued upon, at 39, Once any of the causes of action merges in a judgment, the original civil liability must be taken to be merged in the judgment and to have been extinguished. It is no longer available to found any other cause of action. However, the limitation law of South Australia did not, their Honours held, have such an effect. It prevented the enforcement but did not deny the existence of the cause of action in question.

60. To arrive at that decision, the majority did not need to reject any of the opinions expressed in Breavington v Godleman. However, although not necessary to their decision, the majority gave clear notice that the views of Brennan and Dawson JJ in Breavington v Godleman as to the form and content of the rule in Phillips v Eyre should be regarded as the law, subject to statutory intervention, rather than those of the majority in Breavington v Godleman.

61. The application of the rule in Phillips v Eyre was further considered in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433.

Stevens v Head 62. In New South Wales, the Motor Accidents Act 1988 (MAA) limited, not the heads of damage to be recovered, but the quantum to be allowed in respect of those various heads. It also denied a right of recovery in the absence of "significant impairment". The plaintiff sued for damages in Queensland in respect of injuries arising out of a motor accident occurring in New South Wales. The question was whether the law of New South Wales applied to the quantification of damages or that of Queensland which imposed no legislative restriction.

63. Brennan, Dawson, Toohey and McHugh JJ, classified the relevant provisions of the MAA as procedural and denied their application to the Queensland proceedings.

64. Mason CJ characterised s79 of the MAA as "substantive". Deane and Gaudron JJ applied their previously stated "national law" principle to apply s79 of the New South Wales Act as if the matter had been litigated in New South Wales irrespective of the "procedural" or "substantive" character of the law.

65. It is significant that Mason CJ accepted that the views expressed by the majority in McKain had resolved the differences expressed in Breavington v Godleman as to the common law rule to be applied. However, at 441, his Honour did make the valid point that a more logical application of the rule would commence with a consideration as to whether the substantive law of the place of the delict would allow the claim and then to determine to what extent, if at all, the lex fori would permit that claim to be pursued within its territory rather than the other way around.

66. Thus, from a minority of two supporting the jurisdictional rule as formulated in Koop v Bebb, there appears to have been, in this case, a majority of five accepting the traditional rule as these re- formulated. The notion of a "flexible exception" favoured by Toohey J has been abandoned, at least in relation to intranational conflicts of laws.

67. It is now clear that, once the lex loci delicti finds the conduct complained of to be civilly actionable, the lex fori will apply its procedural law as well as any substantive rules which may exclude or limit liability and any defences which may be available under it.

68. What is unclear is the role of defences which could be pleaded under the substantive law of the delict but are not available under the lex fori. That in turn depends on the present effect of Anderson v Eric Anderson Radio & TV Pty Ltd.

Gardner v Wallace 69. That the current prevailing view of the High Court is that Breavington v Godleman should no longer be seen as formulating some new rule to resolve conflicts of laws concerning torts committed in Australia seems confirmed by the decision of Dawson J in Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95.

70. There his Honour had before him an application to serve a writ, issued out of the High Court, out of Australia. The plaintiff claimed to have been negligently injured in Queensland in 1990. He sued originally in Victoria. However, that action was met by a defence pleading that s5(1) of the Limitation Act 1958 (Vic) applied the Queensland limitation law which would bar the plaintiff's action in Victoria, though the limitation laws of Victoria would not.

71. His Honour commented on that defence in the following terms, at 97, The defence that the action in the County Court is statute-barred is apparently based upon the application of s5 of the Choice of Law (Limitation Periods) Act and assumes that the substantive law of Queensland will govern the claim. (98) The effect of s5 ... is not entirely clear. Its wording may be based upon the misconception that in McKain v R W Miller & Co (SA) Pty Ltd this Court decided that in an action in one State in respect of a tort committed in another State, the substantive law to be applied is that of the State where the tort was committed, that is to say, the lex loci delicti. [McKain] did not decide that. It decided that provided two conditions were met, an action could be maintained in a State other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum. [Emphasis added] Of course, the law of the forum would include, in that case, the limitation laws of Victoria including s5 of the Choice of Law (Limitation Periods) Act 1993 (Vic) but, at 98, his Honour noted that, ... under that section the question would arise whether the substantive law of another State, namely, Queensland would govern the claim before the court so as to import the [Queensland limitation law]. The substantive law of Queensland governed only the question of the actionability of the claim (or lack of justifiability if that be different) under the lex delicti. Even to regard the limitation laws of Queensland as part of its substantive law would not require Victorian law if Anderson v Eric Anderson Radio & TV Pty Ltd is to be followed, to recognise a defence only available under Queensland law. Nevertheless, the intent of the Victorian Act, despite its apparently inappropriate drafting, was to prevent forum shopping to take advantage of the most favourable State or Territory Limitation laws.

72. Thus, his Honour concluded, the action brought in Victoria would inevitably fail because of the provisions of the Victorian statute applied the Limitation laws of Queensland so as to define a special limitation period under Victorian law. Leave to serve the writ was, accordingly, refused.

73. That decision has clear application to s56 of the ACT Limitation Act. The limitation law of New South Wales in question would not, under the law of New South Wales be regarded as a substantive provision. It would not necessarily prevent a plaintiff from asserting a cause of action under that State's law. A defendant would first need to plead such a defence. In any event, a defendant may waive the right to do so, see Commonwealth v Verweyan [1990] HCA 39; (1990) 170 CLR 394.

74. To ascribe to such a law the effect of extinguishing a cause of action rather than barring proceedings to enforce it would significantly change the character of such a law. It is clear that it is not the character of the law which is changed nor is it given extraterritorial effect. The relevant limitation law of the place of the wrong is enacted as the relevant limitation law of the forum. That, however, leaves unresolved whether that law would alter if another relevant law jurisdiction changed its limitation laws after that enactment or whether the statute only applies the extraterritorial limitation laws as enacted at the time s56 came into force. For the Territory, that date was 30 November 1993. Section 151D(2) (NSW WC Act) came into effect on 1 February 1990. Fortunately, therefore, no issue arises as to whether s56 refers to s151D(2) as a relevant limitation law.

75. Further, it may be noted that s56 is not confined in its terms to tortious claims. It equally applies to contractual claims where the choice of law is the "proper law" of the contract, that being either the designated or agreed law or that with which the contract has the closest and most real connection, see Bonython v The Commonwealth [1950] HCA 37; (1950) 81 CLR 486.

76. As formulated, s56, therefore, should be regarded as creating a procedural defence under a law of the Territory, the content of which is to be found by reference to the relevant laws of other law districts at least as at 30 November 1993.

77. In that sense, though the drafting of s56 is curious and clearly misconceives Breavington v Godleman, it is to be regarded as referring to the law of Queensland as "governing" the proceedings so far as the justiciability of the action is concerned. It is not inconsistent with the general rule in relation to tortious claims, that is, that the law of the Territory, is the "governing" law in relation to the substantive resolution of the proceedings. The only alternative view would be to hold that the governing law in tort claims being the law of the forum, s56 is totally inapplicable to such claims. That view is ruled out by the decision of Dawson J for the reasons his Honour gives.

78. The misconception referred to by Dawson J was certainly one I shared when, in Rose v Chang-Sup Kwow [1994] ACTSC 88; (1994) 121 ACTR 1, I commented, at 4-5, 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. ... That includes any defence provided for by the substantive law of Queensland.

79. Insofar as Kelly J in Carleton v Freedom Publishing (1982) 45 ACTR 1 decided, consistently with the decision of Hunt J in Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225, that the lex loci delicti governs matters of substantive liability including defences leaving only the application of procedural law to the lex fori, there must be doubt as to the consistency of those decisions with McKain and Stevens v Head (supra).

80. Defences in defamation available only in other law districts have been allowed in respect of causes of action alleged to have arisen in those places not only in the two cases mentioned but also in Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 and Gorton v Australian Broadcasting Commission (1973) 22 FLR 181, though without argument to the contrary in the latter two cases, see also Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173.

81. Phegan "Tort Defences in Conflict of Laws" (1984) 58 ALJ 24, to which Hunt J referred to with approval in Toomey (supra) at 177, argues that the "second condition" in Phillip v Eyre, imports into the notion of civil liability under the lex delicti the absence of a valid defence under that law. The validity of that argument seems to me to be open to question although it can be supported by reference to the minority judgment of Kitto J in Anderson v Eric Anderson Radio & TV Pty Ltd. However, that question does not now arise for decision.

82. Thus I am driven to conclude that it is open to the defendant to plead that s151D(2) bars this action subject to a grant of leave to commence proceedings. That plea does not deny actionability under the lex loci delicti. The defence applies by virtue of and as part of the common and statute law of this Territory.

83. As the New South Wales limitation law imposes a shorter extendable period than the ACT limitation law otherwise would, it is strictly unnecessary to decide whether the plaintiff must meet both limitation periods. I think that the preferable view is that the bar provided for by s56 is "another limitation period ... provided by this Act" within the meaning of s11(2) ACT Limitation Act and is the only applicable limitation provision. Whilst s36 is in general terms and could, in terms, apply to a time bar imposed by s56, I think that the special provision made by s57 for extension of a time bar imposed by s56 excludes that interpretation.

84. It would be anomalous for two different limitation periods to apply. It seems to me that the legislative intent is that in the case of an extraterritorial tort allegedly committed in Australia or New Zealand, the limitation laws of the lex loci delicti, at least when the section was enacted, alone provide the limitation defence available under the laws of this Territory.

85. I have, therefore, to consider the exercise of discretion to extend the time bar otherwise applicable bearing in mind that it is a three year period not a six year period.

The discretion to extend time 86. Under s151D(2) of the NSW WC Act, the discretion to grant leave to commence proceedings notwithstanding the time bar has expired is not in terms fettered. It is accepted that it should, however, be exercised by reference to what is "just and reasonable" in the circumstances. Both parties accept that is the approach to the section which would be appropriate under the law of New South Wales. In that sense, it is legitimate to have regard to the kind of criteria referred to in s36 of the ACT Limitation Act. They are all relevant to that same issue.

87. Under each provision, the applicant bears the onus of persuading the court that the discretion to extend time should be exercised favourably to him.

88. It is not to be assumed, either, that simply because the respondent can point to no specific prejudice, some presumption arises favouring an extension of the time bar.

89. In the recent decision of the High Court in Brisbane Authority v Taylor [1996] HCA 25; (1996) 70 ALJR 866, the power to extend a time bar was considered. It was the view of Dawson J that, To discharge that onus [that is, to show time should be extended] the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. Otherwise, his Honour agreed with McHugh J.

90. McHugh J noted that policy reasons existed to support time limits for the bringing of actions. Those policy reasons his Honour identified as follows, at 871, First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. ... (872) The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. It will be noted that the third reason is expressly dependant on the length of the limitation period itself whereas the other reasons would be relevant however long the period by which the limitation period has been exceeded. In the view of McHugh J, an applicant must demonstrate a "justifiable exception" required by the "justice of the case" to displace the presumptively final effect of the time bar prescribed by the legislature.

91. McHugh J rejected, as did the Full Federal Court in Podobnik (supra), the view that prejudice to a defendant is to be assessed only by reference to the additional harm caused by the time elapsed since expiry of the relevant time bar. Whilst prejudice suffered before the time bar expires is irrelevant if the action is commenced before that expiry, it becomes relevant once the potential liability of the defendant has been presumptively ended.

92. Toohey and Gummow JJ supported the result arrived at by McHugh J. They agreed that the refusal by the Court at first instance to extend time should be restored. Their Honours considered that the primary judge was right to conclude that the lapse of time since the cause of action arose had caused ineradicable prejudice to the defendant, even if that prejudice would also have made it more difficult for the plaintiff to prove her case.

93. I would also respectfully support the analysis of the reasoning in Taylor's case offered by Gallop J in Ball v Commonwealth, unreported, Supreme Court, Australian Capital Territory, 3 February 1997, at 6-8 thereof.

94. In the present case, nearly seven years have elapsed since the event. The explanation for the delay is that the plaintiff was able to "carry on" until April 1996 and up to that time had been unaware of his common law rights. He was aware of and had been content to rely upon such rights as he had to workers compensation under New South Wales law.

95. There does not seem to have been any conduct on the part of the proposed defendant, the plaintiff's employer, which contributed to or caused the delay. It does not seem that his employer concealed the plaintiff's rights from him or, personally or, through its insurer, misled him. I do not consider the confusion about the identity of the employer to be relevant for present purposes. The plaintiff was, in any event, unaware of that confusion until recently.

96. The disability the plaintiff suffered has endured since the incident. To the extent that it has worsened it may be said that the facts have materially altered since the accident happened.

97. However, at all times the plaintiff had significant disability arising from his injury and could have sought legal advice. He did not. It is true that his employer, its servants or agents took no active steps to advise the plaintiff of his rights or possible rights.

98. The plaintiff has had an active compensation claim to date and has actively pursued it.

99. As a result, the employer cannot claim to be ignorant of or to suffer surprise in respect of the nature, extent and progress of the plaintiff's injury.

100. If those various factors stood alone, it would be, on balance, just to extend the time bar. However, there are two other factors of great significance which I must consider which tend against that conclusion. The first is the actual and presumptive prejudice to the employer. The second is the length of time after the time bar expired before the plaintiff gave notice of his intention to sue.

101. I disregard the terms of the insurance cover for this purpose for the reasons given earlier. They are not affected by the passage of time in any event. However, the lack of recollection of the possible witness, Mr Sullivan, is quite relevant. It is not clear to me whether the system of work at the Harden Abattoir is now the same as it was when the plaintiff was injured. Even if some statement had been given by Mr Sullivan soon after the compensation claim was made, it is not clear how detailed it was. Nor, as I noted earlier, could it be assumed that it would address liability issues, absent any indication of intention to sue for damages being communicated by or on behalf of the plaintiff at that time. Other employees, if any, are unlikely now to be available or to recall relevant facts.

102. If, as seems to be alleged, it was inherently dangerous for the plaintiff to be required to stand on the "sticks", it raises a question as to whether the plaintiff merely obeyed directions of the employer or was engaged on a frolic of his own in disobedience of either express instructions or common sense. There is no prima facie evidence addressing those matters and I cannot simply assume them to be so much in the plaintiff's favour that the denial of the opportunity to address those matters whilst the event was recent could make no real difference to the defendant's case.

103. There is some actual prejudice. Mr Sullivan has now no recollection of the matter. There is presumed prejudice from the lack of other evidence and details. The fact that the same difficulty might also prejudice the plaintiff's case is not to the point. There would be a real issue, even accepting the plaintiff's case as presently revealed, as to both primary liability and contributory negligence. There must be serious difficulty in now fairly trying either of those issues.

104. Then there is the length of time for which the insurer and the employer have been entitled to assume no claim would be made. That is a period of nearly four years. It seems to me that it is a greater imposition on a defendant to extend a time bar by nearly four years than it is to extend it by only one year.

105. There is prejudice to the plaintiff in being unable to pursue a seriously arguable common law claim for substantial damages. It is, however, relevant that, if the facts are as the plaintiff asserts them to be, his rights under the laws of New South Wales to workers compensation payments will continue. Those rights are less valuable than a right to full common law damages but they are more valuable than a complete denial of any right other than social security benefits.

106. The ultimate question is, as Gallop J expressed it in Ball (supra), at 9, whether, ... it is a lesser evil to subject the [defendant] to an expired liability than it is to deprive the applicant of the right to reinstate his cause of action. On balance, having regard to the effect of the majority judgment in Brisbane Authority v Taylor (supra), I do not consider that I can conclude that it would be just and reasonable to grant leave to proceed as requested. Of critical importance to that conclusion is the length of time for which the relevant limitation period has remained expired, even after allowance for the fact that the changed status of the NSW limitation laws in this Territory did not occur until 30 November 1993.

107. The application is refused. I will hear the parties as to costs.