Williams v Milotin [1957] HCA 83

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Kitto JJ. Williams v Milotin [1957] HCA 83

ORDER Appeal dismissed with costs. Nov. 28 Dixon C.J., McTiernan, Williams, Webb and Kitto JJ.

The Court delivered the following written judgment:—

This appeal comes by leave of the Supreme Court of South Australia from an interlocutory order of that court. The order determined a point of law, raised by the pleadings in the action, which had been reserved for the consideration of the Full Court of the Supreme Court.

The action was brought by an infant by his next friend to recover damages for personal injuries sustained by the plaintiff in consequence, as he alleged, of being struck while riding his bicycle in the street by a motor truck which was driven by the defendant in a negligent manner. The date assigned by the statement of claim for the occurrence is 7th May 1952. The writ of summons in the action was issued on 19th July 1955, that is to say more than three years after the alleged cause of action arose but less than six years. By a paragraph of the defence the defendant pleaded that the action was barred by s. 36 of the Limitation of Actions Act 1936-1948 S.A.. The question referred to the Full Court was the validity of this plea. The Court decided against the validity of the plea and declared that the action was not barred by s. 36 of the Limitation of Actions Act 1936-1948. At the same time the court ordered that the defendant should have leave to appeal to this Court.

Section 36 provides that all actions for assault trespass to the person menace battery wounding or imprisonment shall be commenced within three years next after the cause of such action accrued but not after. Section 35 enumerates a number of actions which must be commenced within six years next after the cause of action accrued and not after. The list includes actions on the case. The material parts of s. 35 are as follows—"35. The following actions namely— (c) actions which formerly might have been brought in the form of actions called actions on the case: (k) actions for libel malicious prosecution arrest or seduction and any other actions which would formerly have been brought in the form of actions called trespass on the case: shall, save as otherwise provided in this Act, be commenced within six years next after the cause of such action accrued but not after." The contention for the plaintiff is that the action he has brought falls within s. 35 as one which might have been brought in the form of action called action on the case or trespass on the case. The defendant's contention is that s. 35 operates only subject to the qualification expressed by the words "save as otherwise provided in this Act" and that, even if the action could have been brought in case, it could have been brought in trespass as an action of trespass to the person so as to fall under s. 36.