PARTIES:	William Osbourne Hodge and
	Leslie Ruth Hodge 
	
	v

	Robert Andrew Kimber
	
TITLE OF COURT:	In the Supreme Court of the 
	Northern Territory of Australia

JURISDICTION:	Interlocutory Application

FILE NO:	423 of 1991

DELIVERED:	6 April 1995

REASONS OF:	Master Coulehan

CATCHWORDS:

Practice & procedure - O.34.01 Supreme Court Rules - application for directions - s44 Limitation Act - separate hearing of application for extension of time

Cases followed:
	
Dunstan v Simmie & Co. (1978) VR 669
Foster v Vin Kineally & Associates 
			48 NTR 51

Case referred to:
	
Wardley Australia Ltd and Anor v State of
		Western Australia 175 CLR 514
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

423 of 1991			BETWEEN:
					WILLIAM OSBOURNE HODGE and
					LESLIE RUTH HODGE
						Plaintiffs
					and
					ROBERT ANDREW KIMBER
						Defendant
MASTER COULEHAN: DECISION
(Delivered 6 April 1995)

The plaintiffs commenced this proceeding by writ filed on 18 November 1991 claiming damages for loss caused by the defendant's negligence. 

The plaintiffs allege in their statement of claim that the defendant was instructed as solicitor to act for the plaintiffs in the conveyance of certain real property in Darwin owned by the plaintiffs. Part of the purchase price was to be secured by mortgages in favour of the plaintiffs. 

The transaction was settled on 19 December 1986 when the properties were conveyed and the mortgages registered. The plaintiffs allege that in breach of his fiduciary duty and negligently, the defendant allowed other mortgages to be registered on the properties in priority to the plaintiffs' mortgages. The plaintiffs were not informed of the prior mortgages until November 1987. 

The purchasers of the properties defaulted in payment and the properties were sold on 4 November 1988. After satisfaction of the debt to the first mortgagor there were no proceeds available for the plaintiffs, who suffered a substantial loss. 

In his defence the defendant denies breach of fiduciary duty and negligence and pleads that he acted in accordance with the plaintiffs' instructions.

It is further pleaded that the proceeding is not maintainable by reason of the Limitation Act or alternatively, by laches, acquiescence and delay. 

The plaintiffs now seek a direction that there be a hearing of the plaintiffs' application for an extension of time in which to institute the proceeding pursuant to s.44(1) of the Limitation Act. This direction is opposed. 

The plaintiffs rely on O.34.01 which provides that the Court may give directions " for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.'" 

It is necessary to give brief consideration to the provisions of s44 of the Limitation Act which provides for an extension of time limitations. 

A plaintiff seeking an extension may institute proceedings in the normal manner provided that the originating process is endorsed with a statement to the effect that an extension is sought pursuant to section 44(4). The writ has been so endorsed. S.44(5) provides:
"Proceedings under this section may be determined by the court at any time before or after the close of pleadings. " 

Affidavits read in support of this application disclose that the plaintiffs rely on the ascertainment of material facts. 

Reference was made to the decision of the High Court in Wardley Australia Ltd and Anor v State of Western Australia 175 CLR 514 and the statement of the majority at p.533 that:
"We should, however, state in the plainest terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.  Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and the circumstances in which it was sustained to justify a confident answer to the question.    Magman International illustrates the problems which can arise, particularly in a case involving foreign loans. " 

Both Wardley's case and the case referred to were not concerned with an application for an extension of time. They arose out of applications to strike out proceedings on the grounds that the claims were statute barred. They highlighted the difficulties which may arise in ascertaining when a cause of action arose without consideration of all the evidence. 

Although this application has not been brought pursuant to O.47.04, which relates to the separate trial of questions, similar issues arise. In Dunstan v Simmie and Co. (1978) VR 669 Young CJ and Jenkinson J said at page 671:
" .... although every case must depend upon its own facts, it will as a general rule only be appropriate to order that a preliminary issue be isolated for determination before trial where the determination of the issue in favour of the plaintiff or the defendant will put an end to the action or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense. " 

Counsel for the plaintiff indicated that if the application for an extension was refused it may be decisive insofar as the plaintiffs were concerned but was unable to concede that this would necessarily be the case. The parties did not refer to the alternative defence of laches acquiescence and delay. 

Consideration needs to be given to the question as to whether the determination of the application is conducive to the effective, complete, prompt and economical determination of the proceeding (O.34.01). 

There are two broad issues to be decided in an application pursuant to s.44(1) of the Limitation Act. Firstly, whether there are grounds such as the ascertainment of a material fact within the prescribed period and, secondly, whether it is just in all the circumstances to grant the extension of time. (S. 44(3), and see Foster v Vin Keneally and Associates 48 NTR 51, 55). 

The affidavits read in support of this application refer mainly to the ascertainment of material facts. There is little evidence going to the justice of the application for an extension of time. 

It is argued on behalf of the plaintiffs that the only issue in the application for an extension is that relating to the ascertainment of material facts. However, other issues may need to be considered. For example, it is pleaded in paragraph 24 of the statement of claim that the plaintiffs were informed in November 1987 that a bank had priority in respect of the mortgages. An explanation may be required as to why proceedings were not instituted until 18 November 1991. 

Counsel for the defendant has indicated that the plaintiffs would be required for cross-examination should the application for an extension proceed, and that their credibility would be in issue. 

On the pleadings there are issues as to the instructions given to the defendant and the advice received. If issues of credibility are involved it may be appropriate that the application for an extension of time be dealt with at the trial. 

If the alternative defence of laches, acquiescence and delay is pursued it will probably be necessary to canvass similar issues to those raised by the limitation defence. 

There was no evidence or submissions as to the time which the application for an extension and the trial may take and the comparative cost and inconvenience to the parties and their witnesses. 

I am unable to conclude that a hearing of the application for an extension of time prior to the trial would be conducive to an effective, complete, prompt and economical determination of the proceeding. 

The application is dismissed.