BRAEDON v HYNES
Supreme Court of the Northern Territory of Australia

Maurice J.
26, 27 June and 24 July

Limitations of actions - application to extend time meaning of "facts material to the plaintiff's case" discretionary considerations - Limitations Acts. 44.
Practice		and Procedure - application to extend		limitations period		- writ	of summons issued - not	appropriate	to	be heard	in		Chambers	- motion to Court correct	procedure Supreme Court Act ss. 15 and 16.
S.26D Evidence Act
S.44 Limitation Act
S.36 The Limitation of Suits and Actions Act 1866 (S. Aust) S.15, S.16 Supreme Court Act
Cases followed:
Napolitano v Coyle (1977) 15 SASR 559 Cases considered:
Lovett v Le Gall (1975) 10 SASR 479
Cases referred to:
Booth v Peko Mines N.L. (1979) 22 ALR 94
Do Carmo v Ford Excavations (1984) 154 CLR 234
Gust v Ingram (1977) VR 539 Re Sihuola Qd R 458
Sophron v The Nominal Defendant (1957) 96 CLR 469
Walla v State Transport Authority (1985) VR 327 Williams v Milotin (1957) 97 CLR 465

Counsel for the Plaintiff Solicitors for the Plaintiff

Counsel for the Defendant Solicitors for the Defendant

Mr C. McDonald Mildren Silvester and Partners
Mr J. Reeves Ward Keller

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.	188 of 1986

BETWEEN:

ROY BRAEDON
Plaintiff

AND:

MICHAEL DAVID HYNES
Defendant

CORAM:	MAURICE J.

REASONS FOR JUDGMENT
(delivered	24th July 1986)

This action arises out of a motor vehicle accident which occurred on 8 June 1978 on Stuart Terrace in Alice Springs. For the purposes of the application before me it is not disputed that the plaintiff was run down by a motor cycle driven by the defendant at about 4.25 p.m. that day. The Writ of Summons was not issued until 3 March 1985; ie nine

months	after the six year limitation period
of	The Limitation of Suits and Actions South		Australia (since repealed) had expired.

prescribed Act	1866
(As to

by of the

applicability (1979) 22 ALR

of	this 94 at 99;

section see Booth v Peko	Mines	NL and see Williams v Milotin (1957) 97

CLR 465 at 470). The Writ is endorsed with a statement of the plaintiff's claim and, as well, a statement that he seeks an extension of time for instituting this action pursuant to s.44 of the Limitation Act. Sub-section (4) of that section expressly contemplates an application being made in this way and sub-s.(5) empowers the Court to deal with it at any time before or after the close of pleadings. It is only the s.44 application that I am concerned with; the pleadings have not been formally closed.

The Limitation Act came into effect on 26 February 1982. It repealed and replaced the old South Australian Act to which I have referred. Section 12 substituted a general limitations period of three years for all actions in tort or founded upon simple contract in place of the six year period previously obtaining. However, the effect of s.9(2) is to preserve the old limitations period in respect of causes of action arising before the Act commenced, and in relation to which time had not then run out. Although I have described the limitation period that ran out in this case as being one prescribed by the 1866 enactment, in truth it was prescribed by the Limitation Act itself (s.9(2)).

The	power	to	extend	the	time limited

by	the	Act

for

instituting	an	action is to be

found	in

s.44(1).

Sub-

section	(2) enables the Court to

entertain applications for

extension of time made after the relevant limitation period has expired. In this case the plaintiff has chosen to commence the action and bring his s.44 application on for hearing by use of an interlocutory summons. In my view this is not a correct procedure. The jurisdiction under s.44 is not conferred on a Judge sitting in Chambers, nor is the application a mere matter of practice and procedure. It does not fall within s.16 of the Supreme Court Act and

should therefore be dealt with by a Judge sitting in Court (s.lS(b)). If it is to be heard before the trial of the action, then it should be on motion after notice to the defendant's solicitors. Whilst it is desirable that in the first instance the evidence should be given on affidavit, it appears that in the absence of agreement between the parties, an order of the Court would be a necessary pre­ condition to so proceeding (ss.73 & 74). However, no point was sought to be made by the defendant as to the method adopted in this case of bringing the matter before me, so I shall say no more about it.

The evidence in support of the application was contained in affidavits filed on the plaintiff's behalf. This course was agreed to by the defendant. No affidavits were filed on his behalf, nor did he attempt to challenge the evidence relied upon by the plaintiff by seeking to cross-examine any of the deponents. The accuracy of that evidence and the inferences to be reasonably drawn therefrom must accordingly be

assumed,	a	point criticisms made of

not without some importance in		view	of the quality and cogency of the	affidavit

materials	by the defendant's counsel.

In the words of s.44(3)(b) of the Limitation Act, this Court may not extend a limitation period -
"...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 the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or
the plaintiff's failure to institute the action within the limitation period resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of

3

the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances,
and that in all the circumstances of the case,	it is just to grant the extension of time."

The plaintiff provision, he ascertainment

does not rely upon sub-para. (ii) of bases his application solely on the by him of a fact material to his case

this non­ until

after	the	expiration	of	the	limitation	period.	The
particular fact which was not known to him until after that time was the identity of the defendant.

The plaintiff is a full-blood Aboriginal who has spent most of his life living and, sometimes, working on stations in Central Australia. His first languages are Luritja (an

Arrente		word meaning stranger now adopted by Desert	people)	and	Arrente.	He has	had

many	Western little		formal

schooling, cannot read or write English and can "understand English a bit but not hard words". His numeracy skills and the correlated ability to reckon in periods of times when recalling past events are largely undeveloped. Not surprisingly, his understanding of Australian civil law and his rights, duties and obligations under it appears close to non-existant.

As a result of the accident the plaintiff suffered an injury to one of his legs. He was admitted to Alice Springs Hospital for treatment. Nothing about the severity of this injury or whether it has had any lasting effect on the plaintiff appears on the affidavit material before me. The plaintiff deposes: "I did not realise I could get money for that". He did not consult a solicitor about the accident until 19 March 1984 when he first saw a lawyer employed by the Central Australian Aboriginal Legal Aid Service (CAALAS), Mr Paul Burke. In his affidavit the plaintiff says some long time after the accident (he does not remember

when) he was at the Central Australian Aboriginal Congress and someone there told him to go and see "Legal Aid" as he might get some money for that. He adds: "Later Legal Aid lawyers confirmed that. I cannot remember when that was". It is reasonable, I think, to infer that it was probably on
19 March 1984, when he consulted Mr Burke. (Unfortunately a fire at the CAALAS offices destroyed the Service's original file in relation to this matter.)

Mr Burke recalls that the plaintiff told him about an injury to his leg and that he had been involved in two motor vehicle accidents. He was very vague about dates, so much so that: "When I did press him for a date in terms of years he did oblige but I later found out ... that he was about four years out". Just what the solicitor's plan of action was after accepting these instructions is not stated in his affidavit, perhaps without the aid of the file he cannot now recall. He had little to go on. Any experienced litigation solicitor would know the first thing to do was to find out whether the accident had been reported to the police and, if so, obtain a report from them. But he could not do that without some idea about when the accident occurred. His best lead was to check with the Hospital to see what admission records they held relating to the plaintiff. This was in fact done, but not until 13 December 1984 when Mr Burke telephoned the Medical Records Section at the Hospital in the plaintiff's presence and was given the information that the plaintiff had been admitted for treatment of an ankle injury following a motor vehicle accident on or about
8 June 1978. As a result he was able to instruct other solictors in Darwin to apply for a police report which he received in late January 1985. It was not until he had a further interview with the plaintiff on 15 February 1985 and

apprised	him	of	the plaintiff became aware

contents of	that	report	that of the identity of the defendant.

the

Why there was a delay of nine months between CAALAS accepting instructions and obtaining this information is not adequately explained. Mr Burke was not employed by the Service between 31 August 1984 and some date shortly before
13 December 1984, but that is hardly a justification for not acting upon instructions accepted. It is also said that there were difficulties locating the plaintiff between the end of August and when he attended Mr Burke's office on 13 December, but it is not apparent to me why the appropriate instructions and authority had not been obtained well before that.

The real defendant in the action is the defendant's third­ party insurer, FAI Insurances Limited (FAI). One of the grounds advanced by the defendant in opposition to the present application is the fact that the Writ was not served until some time this year. Precisely when does not appear from the Court's records, although in a Chamber summons dated 18 February 1986 the plaintiff sought an order for substituted service on FAI. An appearance was entered by the defendant on 17 May 1986. The police report which came into CAALAS' hands in January 1985 revealed that FAI was the third-party insurer of the defendant's motor bike, yet an affidavit by a solicitor employed by the solicitors on the record, Mildren Silvester and Partners, suggests that no attempt was made to notify that company of the plaintiff's action prior to 14 January 1986. The affidavit which that same deponent swore in support of the application for substituted service shows that efforts made through inquiry agents to locate the defendant during 1985 had been unsuccessful.

To revive his cause of action the plaintiff must satisfy the Court as to two things: (1) facts material to his case were not ascertained by him until (in this case) after the expiration of the six year limitation period; and (2) in all

the circumstances of the case, it is just to grant the extension of time. The first of these is clearly an absolute pre-condition that must be met before there is any question of the Court having a discretion in the matter.

The	defendant	opposes	the	making of	the	order

sought,

arguing	that the identity of the defendant was not	a material to the plaintiff's case and that, in any event, circumstances	are	not	such	as	to	justify	granting extension for so long a period.

fact the an

Sub-sections 44(1), (2) and (3) of the Limitation Act are to all intents and purposes identical to sub-ss.48(1), (2) and
(3) of the Limitation of Actions Act of South Australia after it was amended in 1975. In Napolitano v Coyle (1977)
15 SASR 559, at 561, Bray CJ observed in a case that fell to be considered under s.48(3)(b)(i), equivalent to our s.44(3)(b)(i), that there was no material difference in effect between the Act as it stood before and after the 1975 amendment. The leading South Australian authority on the operation of s.48 prior to that amendment, and hence on the operation of s.48(3)(b)(i) as it now is, is Lovett v Le Gall (1975) 10 SASR 479, a decision of the Full Court. The Court settled two points of interpretation. Firstly, the words "facts material to the plaintiff's case" were much wider than their English and Victorian equivalents ("material facts relating to [the] cause of action" or "facts of a decisive character"), by the concept of "the plaintiff's case" they comprehended not merely the facts essential to formulating the cause of action in the form of a statement of claim but the whole complex of evidence, law and argument to be relied on in court by the party concerned (ibid. 482, 486). A fact is material, in the words of Bray CJ, "if it is of such significance as to be able to influence the determination of the case" (483). The second point decided by the Full Court was that "ascertained by him" means

ascertained by the plaintiff himself and does not include ascertainment by agents or representatives, such as his solicitors.

In relation to the first point, at the time Lovett v Le Gall was decided the choice of "facts material to the plaintiff's

c a s e 11	appears
[The equivalent High Court in 234; the since the Full Court

to have been peculiar to South Australia. New South Wales section was discussed by the Do Carmo v Ford Excavations (1984) 154 CLR repealed Victorian section was discussed by of the Supreme Court in Gust v Ingram (1977)

VR 539 (the new provision gives the court a very wide discretion: see Walla v State Transport Authority (1985) VR 327); and the Queensland section in Re Sihvola (1979) Qd. R. 458.] I think it can be safely assumed that when in 1981 the Northern Territory chose to adopt the South Australian model, it was aware of the way in which that provision had already been interpreted by the Supreme Court of that State: see Prof. D.C. Pearce, Statutory Interpretation in Australia 2 ed. par. 102.

It is not really necessary for me to go as far as I have in citing the authorities to dispose of the first of the defendant's contentions. The identity of the defendant is not merely a fact material to the plaintiff's case, it is critical to his cause of action. Rights of action for tortiously inflicted injury are rights against specific people, they may only be enforced against named individuals whose identity as the author of the actionable harm must be proved as part of the plaintiff's case. In Napolitano v Coyle (above), Bray CJ was only stating the obvious when he said: "The name of the defendant is of course essential to the action". I therefore find it surprising the defendant should have given instructions to contend to the contrary.

It was also sought to attach significance to the fact that

the real reason for much of the delay in this case was not the fact that the plaintiff did not know who had run him over, rather it was his ignorance of his legal rights. There are two answers that can be made to this submission. One is that the plaintiff ceased to be ignorant of his legal rights before the limitation period expired (it still had about three months to run when he instructed CAALAS to act for him); thereafter the delay appears to have been due to not knowing essential facts (date of the accident and

defendant's identity) and possible the	Service	in finding them out. least		for the purpose of bringing the	Court's discretion under s.44,

tardiness.on the part		of The other is	that,	at himself within		reach		of it does not matter that

the real cause of the delay was something other than the non-ascertainment of material facts. Sub-paragraph (i) of s.44(3)(b) does not require the plaintiff to prove that the non-ascertainment of material facts upon which he relies in support of his application have caused or contributed to the delay in instituting proceedings. Such a construction would have its attractions if this were not remedial legislation and the Court did not have an overriding discretion under which such matters may be taken into account. In Lovett v Le Gall (above) Wells J. recognised that an applicant might qualify under the opening passage of the South Australian sub-section by relying upon facts that are technically of the required description but are of little real importance. "The short answer," he said, "is that to qualify is not to succeed; there is ample scope in the discretionary power conferred by the concluding passage of sub-s. (2) to reject applications that are without real and honest merit" (486).

In Napolitano v Coyle (above) Bray CJ held that it does not matter for the purpose of proving the qualifying condition that the plaintiff "has been dilatory or inactive in the pursuit of his rights or that their discovery may not have been pivotal or even influential in the formation of

9

'

his decision to sue" (571).  In that case, he made an order extending the time notwithstanding that he was unable to do more than speculate as to the real reason for the plaintiff's delay (568). In his view:

"A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and nothwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases, may not be of great significance, has left all the rest to the discretion of the court."

The defendant argued strongly against the exercise of the Court's discretion in the plaintiff's favour in this case. A number of matters were raised: the fact that the limitation period had since been reduced to three years; that the real reason for much of the delay was ignorance of legal rights; the unsatisfactory explanation for the nine month delay in CAALAS' office; the lack of evidence about the extent of the plaintiff's loss; the delay between the issue of the Writ and its actual service; and prejudice to
the defendant.

I do not think the fact that the limitation period has been reduced is of itself significant to the exercise of the Court's discretion, although the actual length of time which has elapsed is of potential relevance to the question of prejudice.

The fact that the reason for the plaintiff doing nothing until the limitation period had nearly run out was his

ignorance diminishes

of the law,	so to speak,	enhances	rather	than the strength of his claim to the exercise of the

Court's discretion.		I reject the submission that ignorance of	the	law	ought	not	to be	taken	into	account	in	a

plaintiff's	favour.	In
Territory's cultural and

a	community	with	the	Northern ethnic diversity, to apply any such

dictum	would inevitably
potentially large number

lead to significant injustice in	a of cases.	No authority was	cited

for _such a proposition; the decision of Murray J. in Walla v
State Transport Authority (above) directly controverts it. Looked at without any preconceptions, the plaintiff's ignorance of his legal rights provides a complete and satisfactory explanation for the delay up to when he instructed CAALAS.

The delay in the office of CAALAS in taking steps to find out the date of the accident and the identity of the defendant was in no way the fault of the plaintiff. In considering the relevance of a similiar point in the context of an application for leave to give notice out of time to the Nominal Defendant in an unidentified motor vehicle case, the High Court said in Sophron v The Nominal Defendant (1957) 96 CLR 469: "No one, of course, doubts that such a consideration as the blamelessness of the defendant and the responsibility of his solicitor is very material" (474). I see no reason for adopting a different approach when dealing with s.44 applications.

The paucity of evidence about the extent of the plaintiff's loss does not seem to me to be very material. In a sense, the degree of prejudice that may be suffered by one party or the other by extending or not extending the time, as the case may be, is proportional to that loss, a consideration that tends to cancel it out as a relevant factor.

So far as the delay between the issue of the Writ and its service is concerned, I accept that this is a matter that may be taken into account in the exercise of the discretion,

but here again there is nothing to suggest that the plaintiff was at fault. I am not surprised that with his lack of sophistication in the ways of non-Aboriginal society in Australia he may not have pressed for some action on his solicitor's part. He says in his affidavit that at no time was he aware there was a time limit on making a damages claim. Twelve months or thereabouts seems an inordinate
period	to	ascertain	whether	personal	service	could	be

effected. plaintiff's

The	Darwin	solicitors behalf	appear		to have

instructed	on accepted	almost

the full

responsibility for the conduct of the action. The affidavit filed by them in support of their application to renew the Writ and for an order for substituted service go little distance to explain this further delay. The only enquiries they reveal as having been made could have been carried·out in a matter of weeks if not less.

The defendant urged me to take into account prejudice to himself - I should really say itself. However, no evidence of specific prejudice was placed before me. It hardly needs to be said that in personal injury cases the most likely cause of prejudice from delay is the effect which it may have on the evidence: witnesses' memories fade, some may

die	or destroyed.

disappear,	important	records	may The	problem	of	memory	fading

be	lost	or and	becoming

unreliable is a real enough one, though not so frequently in
the case of witnesses on the issue of damages because their memories are often aided by contemporaneous notes, business records and the like. Even in the case of witnesses on the question of liability they may be able to refresh their memory from contemporaneous notes. In the case of witnesses who are not parties, statements which they made when the events were fresh in their minds may be tendered in evidence under s.26D of the Evidence Act.  It is, of course, more

difficult to test the accuracy of a witness' account of events when he has little or no independant recall, a fact that should not be ignored.

In		the present case I do not know what witnesses there were to the accident other than the parties themselves.		For all I	know it may be a case in which there is still		plenty		of credible		evidence on which to base a finding of		negligence on the part of the defendant.		He may have a good recall of the		accident,		it may be one which puts him clearly in	the wrong		so		to speak,	or he may have made admissions to	the police.			These, I accept, are speculative possibilities but they serve to highlight that serious injustice may be done to a	plaintiff		if			an otherwise	meritorious		application		to extend		time			is		refused	because	of	the	speculative possibility		of		prejudice to a defendant	when, in truth, there never could be any doubt about his liability nor any difficulty in putting before the court sound evidence upon which to base a fair assessment of damages.

I	do not say that a plaintiff in an application under	s.44

does not defendant plaintiff

have any obligation to negate detriment caused by his delay; the onus rests throughout to establish that in

to on
all

the the the

circumstances of the case

it is just to grant the extension

of	time.

Prejudice	to

the	defendant	has	always	been

regarded as often	the within		the

a most important consideration. facts concerning prejudice	will knowledge of the defendant and

However, very be peculiarly there will be

little	the	plaintiff can do to negate it beyond giving	an
outline of the circumstances giving rise to the action. Clearly, in such cases, a burden falls on the defendant of adducing evidence about the specific detriment he claims he will suffer, it is not enough to invite the court to speculate about the possibilities. If witnesses have died

or gone missing then that fact should be brought out. If their recollection of events has become significantly impaired and there are no aides upon which they may rely then that too should be brought out.

This is just such a case: the Court is asked to speculate about possible prejudice - it does not go beyond that - and refuse the plaintiff's application precisely because of such possibilities, even though, in truth, the defendant may be no worse off now evidence-wise than it was six years ago. How the plaintiff would know what the position is with the defendant's case as a result of the delay I do not know.

The total delay in this case was considerable but from the point of view of the plaintiff it has been satisfactorily explained in a way that shows him personally to be quite blameless, although the same cannot necessarily be said for the solicitors who have accepted instructions from him. This is a powerful reason for extending the time, although in view of the length of the delay the Court would have to think very carefully about exercising its discretion in favour of the plaintiff if there was any specific evidence of detriment to the defendant. Not only is there no such

evidence, has chosen that	the

I think I may safely infer from the fact that it not to put any evidence to that effect before me, defendant will suffer no real prejudice by my

extending the time.

I respectfully passage	from (above):

agree with the reasoning Bray	CJ's judgment	in

behind the Napolitano

following
V	Coyle

"I cannot regard the mere revival of the cause of action, although it had been statute-barred for about ten months, as being sufficient prejudice to bar the relief sought because the defendant is in no worse position to meet the claim than he would have been in if the writ had been issued in 1974. Since 1972 every defendant knows or ought to know

i

that the lapse of the statutory period does not leave him absolutely and forever inmune from writ" (572).

I would only add the observation that liability insurers would be imprudent if they did not make provision in their accounts for actions being resurrected under powers such as that contained in s.44.

The decision in this case should serve as a warning to defendants who wish to rely upon prejudice in opposing s.44 applications: unless evidence of that prejudice clearly appears on the materials placed before the court by the plaintiff, they may be in serious difficulty in persuading the court that there is any relevant prejudice without they go into evidence on the matter themselves. The court should not be left to decide important questions on conjectural considerations, nor should nice points about the burden of proof obscure the realities about who is in a position to lead evidence and who is not.

In the result the order that I make is that the time for instituting the plaintiff's action be extended until the date upon which the Writ of Summons herein was issued.