PERSCH v POWER & WATER AUTHORITY & ORS
Supreme court of the Northern Territory of Australia Martin J.
27 July, 14 August 1989

LIMITATION OF ACTIONS - Extension of time - Application by interlocutory summons - Whether appropriate form of application - Supreme Court Rules O.461 Limitation Acts. 44
LIMITATION OF ACTIONS - E tension of time - Application under s. 44 Limitation Act - Limitation period prescribed by "other enactment" - Whether provision to extend time applies
- Limitation Act ss. 3, 5, 441 Workers' Compensation Act
s. 23

WORKERS' COMPENSATION - Limitation period - Action against employer under s. 23 Workers' Compensation Act - Application to extend time under s. 44 Limitation Act - Period of limitation prescribed by Workers' Compensation Act - Whether provision to extend time applies - Limitation Act ss. 3, 5,
441	Workers' Compensation Acts. 23
Cases applied:
Wakefield Light Railway v Wakefield [1906] 2 KB 143
Barker v Edger [1898] AC 748
Fitzgerald v Champneys [1861] 2 John & H 31
Ravot v Commissioner for Railways [1965] NSWR 1296 Sola Optical Australia v Mills (1987) 163 CLR 628
Gilbert v Endean (1878) 9 Ch D 259 Cases distinguished:
Builders Licensing Board v BJ	Lindner [1982] 1 NSWLR 561 Braedon v Hynes, Maurice J., unreported 24 July 1986

Counsel for the Plaintiff Solicitor for the Plaintiff

Counsel for the First Defendant Solicitor for the First Defendant

Counsel for the Second Defendant Solicitor for the Second
Defendant

Counsel for the Third Defendant Solicitor for the Third Defendant

A Wyvil Poveys
R Silva
Northern Territory Solicitor

P Bracher Cridland & Bauer

D Alderman Ward Keller

mar890085

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mar890085
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 273 of 1987

BETWEEN:
WILHELM FERSCH
Plaintiff

AND:

POWER AND WATER AUTHORITY
First Defendant
AND:
FLOREAT PLUMBING PTY LTD
(under official management)
Second Defendant

AND:
FLOREAT PLUMBING (K/T) PTY LTD
Third Defendant

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 14 August 1989)

The major question in this matter is whether the provision of s. 44 of the Limitation Act, enabling an extension of the time limits prescribed for the bringing of actions, applies to the time limit prescribed for the bringing of an action for damages under s. 23(3A) of the Workers' Compensation Act.

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It is a short point, but attended by difficulties arising from the construction of, and relationship between, the two statutes.

The plaintiff suffered personal injury by accident arising out of or in the course of his employment by his employer on 28 November 1983.	There is some doubt as to just which of the second and third defendants was the employer.	He received one payment by way of workers' compensation for the period from 28 November 1983 to
19 December 1983.	That payment was made on 13 March 1984.

A writ was filed on 5 May 1987.	As against the first defendant, the Statement of Claim seeks damages for negligent advice and failure to warn the plaintiff as to the location of certain underground electricity cables.	The claim against the second or third defendants, in the alternative depending upon which of them is shown to have been the employer, is for damages for failure to provide a safe system of work, related breaches of a duty of care and breaches of statutory duty.

The facts alleged are that in the course of his employment the plaintiff was using a jack hammer which came into contact with electricity cables, as a result of which he suffered burns and other injuries.

Section 23 of the Workers' Compensation Act relevantly provides:

Subject toss. 3A, where personal injury is caused to a worker in circumstances which appear to create a legal liability in his employer to pay damages in respect thereof and the worker has received compensation under the Act, the worker shall be entitled to take proceedings against his employer to recover damages (ss. 3).

A worker shall not be entitled to take proceedings under ss. 3 unless he commences those proceedings within 3 years after the date upon which he received payment, or the first payment of compensation under the Act (ss. 3A}.

Those provisions last received the attention of the legislature in 1966 (see Table of Amendments to the reprint of the Act as at 10 April 1981).

The three matters to be noted are:

The limitation upon bringing proceedings only applies to proceedings against the employer.

There is no provision in that Act enabling the time limit to be extended.

The proceedings were commenced by the writ 53 days after the limitation period expired.

Those provisions of the Act do not apply to the claim against the first defendant.	I do not recall any of the counsel for the defendants, all of whom were separately represented, nor counsel for the plaintiff, adverting to this aspect of the matter, but it is plain to me on reading those provisions.

By Act No. 80 of 1982, the Act was amended, inter alia, by omitting subsection (1) of section 22, and substituting the following:

"If an injury in respect of which compensation is payable under this Act is caused under circumstances that appear to create a legal liability in some person other than the employer to pay damages in respect of the injury, the worker may take proceedings against that person to recover damages and may also make a claim against his employer for compensation."

That applies to the first defendant, and there is no limit prescribed in that Act as to the time within which proceedings against such a person may be taken.

I now turn to the Limitation Act. The plaintiff brings this application relying ons. 44. It provides in sub-section (1) that, subject to the section -

"	where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for:
instituting an action;

doing an act, or taking a step in an action; or
doing an act or taking a step with a view to constituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit."

As to the power to extend a limitation period prescribed by that Act, the Court is not empowered to do so unless it is satisfied that facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff (s. 44(3)(b)).

The action against the first defendant is founded on tort and s. 12(b) of the Limitation Act applies so that the action is not maintainable after the expiration of a limitation period of 3 years from the date on which the

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cause of action first accrues.	The alleged cause of action against the first defendant arose on 28 November 1983, the writ was thus filed nearly 6 months after the limitation period had expired.

At first glance the plaintiff is entitled to have his application as against the second and third defendant considered under the unfettered discretionary powers contained ins. 44(1), the Workers' Compensation Act being "any other Act".	His application as against the first defendant falls to be considered within the constraints imposed bys. 44(3)(b), it concerning a limitation period prescribed by the Limitation Act.

The difficulty in applying s. 44(1) to the actions against the employer arises from s. 5 of the Limitation Act. It provides that the Limitation Act "does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to Jn section 3".	The contrast between that section and the reference to "any other Act" ins. 44 is obvious.	If the Limitation Act (including s. 44) is not to apply to such other enactments, why do the words "any other Act" occur in
s. 44?	"Enactment" is not the same as the word "Act", encompassing both the whole Act or a part of it (per Ridley J. Wakefield Light Railway v Wakefield [1906] 2 KB 143, affirmed (1907] 2 KB 256).	It does not encompass an

"instrument of a legislative or administrative character", as to which see the definition ins. 18 of the Interpretation Act.

The enactments referred to ins. 3 are the Imperial Acts, Acts of the State of South Australia and Acts of the Northern Territory listed in the various parts of the Schedule to the Act, which either ceased to apply to the Northern Territory or were amended to the extent indicated. Provision is made ins. 3(b) for amendment to the Schedule by Regulations.	This, I suppose, so that in the event that it was discovered that there were other Imperial, South Australian or Territory enactment prescribing limitation periods, they could also be repealed or amended.

The Limitation Act does not normally apply to any action for which a period of limitation is prescribed by any other enactment.	It does apply to actions for which a period of limitation is prescribed by an enactment referred to in section 3.	Not without some hesitation I have decided that s. 5 must be given its plain meaning.	That can be achieved by construing the words "any other Act" ins. 44(1) as being a reference to those Acts referred to ins. 3, so that where any of those Acts prescribe a limitation period, a Court may exercise the general unfettered discretion.
s. 9(b) permits actions commenced before the commencement of
the Limitation Act to continue as if that Act had not been

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passed, and s. 9(2) provides that the time for bringing proceedings in respect of a cause of action that arose before that commencement shall, if it has not then expired, expire at the time it would have expired had the Act not come into operation.	Those proceedings and causes of action continued to be governed by the law in operation prior to the commencement of the Act, notwithstanding the repeal or amendments affected to the Acts referred to ins. 3. It is those Acts which are referred to ins. 44(1).

It is of some importance to note that the Limitation Act was enacted in 1981, long after the limitation imposed by the Workers' Compensation Act.	The legislature must be taken to have been aware of it when considering the amendments to other Territory Acts set out in Part IV of the Schedule.

The Limitation Act is of general application applicable to all sorts of persons, the Workers' Compensation Act deals with special people and circumstances.	The presumption is that the subsequent general enactment is not intended to interfere with the special provisions unless it manifests that intention very clearly (Barker v Edger [1898] AC 748 and Fitzgerald v Champneys [1861] 2 John & H 31 referred to in Ravot v Commissioner for Railways [1965] NSWR 1296).

This is not a type of case such as Builders Licensing Board v B.J. Lindner (1982] 1 NSWLR 561, where it was said that in the case of poo ly drafted but socially desirable legislation, the Court should adopt a broad
approach and constrain the legislation benignly to prevent its obvious purpose being defeated.

On its proper constructions. 44(1) of the Limitation Act does not empower the Court to extend the time
limitation period prescribed in the Workers' Compensation Act.

To succeed in obtaining an order extending the time for commencing the action against the first defendant, the plaintiff must satisfy the Court that facts material to his case were ascertained some time within 12 months prior to the filing of the writ.	"A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case", (Sola Optical Australia v Mills (1987) 163 CLR 628 at p. 636).

The only evidence on this issue is that comprised in the plaintiff's affidavit sworn on 5 July 1988.	After referring to his poor education and lack of knowledge of the

system of law in Australia, he goes on to verify the facts contained in the Statement of Claim.	He says that he is suffering from epilepsy, a complaint referred to in the particulars of injury given in the Statement of Claim, but does not say when he became aware of that condition.

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He also says that he suffers from loss of memory, another injury particularised, but again does not say when he became aware of that.	Copies of letters written by former solicitors on his behalf, regarding an unrelated matter, exhibited to his affidavit, indicate that they were instructed to advise him in relation to a claim for damages as early as February 1984, although the plaintiff swears he does not recall giving those instructions.	He returned to his employment with the employer at the time of the accident and in November 1985 went on holidays to Germany, his place of birth, for six months and resumed that employment in May 1986.	On about 26 June 1986 he was sacked, "because my work rate was too slow".	The slowness of his rate of work is not attributed by him to any injury sustained in the accident.
On the material before me the fact of his sacking is irrelevant to the issues to be proved if he is to obtain an award and is not of sufficient importance to be likely to have a bearing on the case.

At the time he was sacked his boss said, "if you think you have a claim against Floreat Plumbing you should

see your solicitor". Similar advice was given to him by an officer in the Industrial Safety Division of the Department of Mines and Energy in March 1987.

Prior to that, the plaintiff says, he had been advised by a former employer in Victoria, that the time for commencing proceedings for an industrial accident was seven years.	He swears that it was only when he first consulted his present solicitor on 9 April 1987, that he was advised that he had three years from the accident within which to commence proceedings.	Ascertaining the law as to limitation periods does not amount to ascertainment of facts material to the plaintiff's case in the sense explained by the High Court.	It is not relevant to an issue to be proved if the plaintiff is to succeed in obtaining an award.	Indeed, ascertaining the law does not amount to ascertaining a fact at all.

The plaintiff goes on to assert that he believes that the change in his capacity to work has been caused or contributed to by the injuries, the subject of his claim, but as elsewhere, he does not depose to when he ascertained the facts which led him to that belief.

There is no material before me as to any material facts ascertained by the plaintiff within the period of 12 months prior to the filing of the writ. The constraints

imposed on the Court's discretion bys. 44(3)(b) of the Limitation Act have not been removed.

That is sufficient to dispose of the plaintiff's application.			However, counsel for the defendants also argued that the procedure adopted to have the matter determined was irregular and should have been dismissed on that basis.		Section 44 of the Limitation Act gives a Court power to extend limitation periods in the circumstances described.	It does not prescribe any procedure, apart from requiring that where an extension of time is sought, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time (s. 44(4)).	That was not originally done, but the plaintiff obtained an order from the Master enabling the endorsement to be placed on the writ after it was filed and had been served on the first defendant.	Such an amendment to cure a defect, would seem to fall within
r.	36 .01.

The application was by way of summons under order 46.	That order applies to an interlocutory or other application in a proceeding (r. 46.01).	Proceedings under
s. 44 may be determined by the Court at any time before or after the close of pleadings (ss. (5)). A "proceeding" is relevantly defined ins. 9 of the Supreme Court Act as

meaning a proceeding in the Court, whether between parties or not, and includes:

"(a)	a cause, action suit or matter;

(b)		an incidental proceeding in the course of, or in connection with, a cause, action, suit or matter."

The word is not defined in the Rules.	Section 20 of the Interpretation Act provides that words in regulations made under an Act shall have the same interpretation as in the Act.

My attention was directed to what Maurice J. had to say obiter, in Braedon v Hynes (unreported 24 July 1986) to the effect that it was not appropriate to bring an application under s. 44 by interlocutory summons.	His Honour was there dealing with the former Rules of Court and prior to s. 16 of the Supreme Court Act being repealed, at the same time as the current rules came into operation.

The determination of an application for an extension of time to commence an action after a limitation period has expired does not necessarily finally determine the rights of the parties.	The Act takes away the remedies available by action, the right is otherwise untouched.	A party shall, in a pleading subsequent to a Statement of Claim, plead specifically an allegation that the claim is

not maintainable (r. 13.07), an obvious reference to the provisions of the Limitation Act, and other Acts prescribing time limits for the commencement of actions.	The application may be granted, or if refused, it is still necessary for the defendant who pleads the fact, to apply for judgment against the plaintiff.	In such a case it is only when judgment is ordered that the plaintiff's rights are finally determined.	An application for an extension of time is something done in the progress of the cause or action for the purpose of enabling the Court ultimately to decide upon the rights of the parties (Gilbert v Endean (1878) 9 Ch D 259 at 268).	Reference might also be made to what Taylor J. (with whom Owen J. agreed) at p. 440 of
Hall v Nominal Defendant (1966) 117 CLR 423 and
Carr v Finance Corporation of Australia (1981) 141 CLR 246 especially at p. 255.

It is therefor appropriate for an application for an extension of time to be made by summons under 0.46.	An alternative is to institute proceedings by Originating Motion, the application being authorised by the Act
(r 4.05(b)), but that needlessly involves additional cost and expense.

An objection is raised to the application by summons on the basis that it may in some cases give rise to dispute, for example, as to the existence of the material

fact alleged and the time when it was first ascertained by the plaintiff.	Determination of such issues by the Court is essential before the Court can move on to the exercise of the discretion.		Problems are thought to arise in obtaining discovery for the purpose of such an application.	R. 29.01 says that except where it otherwise provides the order regarding discovery applies only to a proceeding commenced by writ.	This is such a case.	R. 29.02 imposes an obligation to make discovery after close of pleadings, but
r. 29.05 enables discovery to be ordered at any time, limited to particular documents or such questions in the proceedings as are specified in the order.	By definition, "question", means, inter alia, a matter for determination by the Court, raised by the pleadings or otherwise at any stage of a proceeding (r. 1.09).	See also r. 29.07.

Similarly, in relation to interrogatories,
r. 30.02(1) & (3), subpoenas may be obtained requiring a person to attend at trial, or any other stage of the proceeding (r. 42.02).	A deponent to an affidavit may be required to attend for cross-examination (r. 44.04(1).	It seems that the rules are wide enough in scope to ensure that issues of fact which might arise in relation to any application such at this can be thoroughly investigated and tried.	The defendant does not appear to be disadvantaged.

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The defendants' objections to the procedure adopted by the plaintiff are dismissed.

The plaintiff's application for extension of time within which to institute proceedings against all defendants is dismissed.

Since each side has been only partly successful there will be no order as to costs.