Australian Iron & Steel Ltd v Hoogland [1962] HCA 13

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Australian Iron & Steel Ltd v Hoogland [1962] HCA 13

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1962, Mar. 5 Dixon C.J.

This appeal, which comes from a unanimous judgment of the Full Court of the Supreme Court (Herron, Sugerman and Collins JJ.), raises a question as to the application of the provisions of the Workers' Compensation Acts N.S.W. which this Court dealt with in Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [1] . The question is not covered by this Court's decision.

1. (1959) 101 C.L.R. 629.

In that case Chang Jeeng had on 1st May 1953 received a first payment of worker's compensation in respect of an injury sustained in the previous month in the employment of Nuffield (Australia) Pty. Ltd. As its text stood at that date s. 63 (3) of the Workers' Compensation Act 1926, as amended, of New South Wales, said that any proceeding against an employer independently of the Act in respect of an injury should not be maintainable unless instituted within one year of the date of such a payment. The provision called the period of one year from the first payment of compensation the "prescribed period". A proviso followed enabling a judge of the Supreme Court to extend the prescribed period upon an application made within the prescribed period or within twelve months thereafter. Before the prescribed period of twelve months expired s. 63 (3) was amended by s. 7 (1) (c) (ii) of No. 21 of 1953 N.S.W. which came into operation on 20th November 1953. The amendment simply substituted three years for one year as the prescribed period. Chang Jeeng did not sue within one year from the date of the first payment nor apply for an extension within twelve months of the expiry of that year. But he did apply on 12th December 1956 for an extension of the prescribed period. That date was of course more than three years from the first payment but it was within the twelve months that followed the expiry of the three years. A majority of the Court held that the Act as amended governed the case and that the application had been made within the time allowed by the amended Act. Consequently it was within the power of a judge to enlarge the time for instituting an action against the employer. In the case we now have before us, the first payment received by the injured man, Hoogland, was made to him on 16th October 1952 and accordingly the prescribed period of one year ended on 16th October 1953: he had not before that date sued Australian Iron & Steel Ltd., his employers. The amendment increasing the prescribed period to three years came into force, as already stated, on 20th November 1953. Three years from the receipt by Hoogland of the first payment expired on 16th October 1955 but he did not sue before that date nor apply for an extension of the prescribed period. In fact he did not apply for an extension until 7th September 1956, that is to say, long after the limitation of one year for such an application had expired, if the year were reckoned from the end of a prescribed period of one year, but more than six weeks before it expired if it were reckoned from the end of a prescribed period of three years. So the difference between the two cases consisted in the fact that when the amendment came into force no limitation on Chang Jeeng's absolute right to sue had expired, whereas the limitation on Hoogland's absolute or unconditional right to sue had expired, and he therefore stood in the position at that time of being under the necessity of obtaining an extension of the prescribed period from a judge before he could sue. But the time for his applying for such an extension had not expired. The question in the present case, strictly stated, is whether Hoogland's right to apply for an extension is competent under the amended provision if made (as it was in fact) before the expiration of a time consisting of a prescribed period of three years from the first payment and another twelve months after its expiration. But while in strictness this is the question, it is pointed out for the Australian Iron & Steel Ltd., that the form of the enactment is such that that question cannot be treated simply as if nothing were involved but the enlargement by an amendment of a limitation of time for making an application against which time had not run out at the date of enlargement. In fact it is not the period of time for making an application for an extension that is enlarged by the amendment. It is the fixed, but antecedent, period for suing that is enlarged from one year to three years. In Chang Jeeng's Case [1] when the period was enlarged it was open to him to sue; in the present case it was not open to Hoogland to sue, unless he applied for and obtained an extension of time. Chang Jeeng's right to sue was not yet affected by the time bar and when the time of the bar was lengthened, so the majority held, there was no reason why the lengthened time should not apply to his case. Indeed, as the majority considered, there was nothing to keep the shorter time in operation for the purpose of his case, so that the limitation of three years applied: otherwise there was none. The view which commended itself to Kitto J. in Chang Jeeng's Case [1] that s. 8 (a) of the Interpretation Act of 1897 N.S.W. applied was not adopted by the other judges forming the Court that decided that case. In the present case, Hoogland first received a payment of compensation one year and five weeks before the 20th November 1953, when the amendment came into operation. His case is therefore not that put by Menzies J. in Chang Jeeng's Case [2] in this passage from his Honour's judgment [3] : "If, however, it were sought to apply the sub-section, as amended, to a case where the first payment of compensation had been received more than two years before the 20th November, then it would be sought to use the amendment to revive an action completely barred. As at present advised, I think the sub-section, as amended, should not be given such an operation: Maxwell v. Murphy [4] ." His Honour there expresses a view to which I am prepared unreservedly to subscribe. The passage is immediately preceded by a general statement of the view which his Honour took of the amended provision: namely, that he would treat the legal consequences of the operation of the unamended provision as unaffected, leaving the amended provision to apply to the extent to which a worker's action had not been finally barred. Hoogland's action of course had not been finally barred when the amendment came into operation: it had been barred conditionally, that is, subject to applying for and obtaining an extension of time. The difficult question is whether, because the fixed period of one year had expired and the absolute right to sue had been barred in the sense that it became subject to a condition that leave must be obtained before the expiration of the additional year, an amendment which simply enlarged the fixed period could comprehend or apply to the case. It is said for the appellant that if par. (a) of s. 8 of the Interpretation Act of 1897 N.S.W. does not apply, at least par. (b) should apply and that one or the other preserves the "legal situation" in which Hoogland stood, namely, that his right of action was conditionally barred and that he had until 16th October 1954 to apply to extend the prescribed period of twelve months. Perhaps that would do so, if s. 63 (3) were simply repealed or if it were to be held that the substitution of three years is, by legislative intention real or imputed, incapable of operating on a case in which on 20th November 1953 the prescribed period had already passed. But the question is whether such an intention is to be found, whether as expressed or to be implied or to be imputed. In Maxwell v. Murphy [1] the statute had conferred a new right in terms of remedy and at the same time limited the remedy in terms of time. I thought the extinction of the remedy in that case spelled the extinction of the right. "To say that notionally the right to damages continued to exist and only the manner of enforcing the right had been destroyed appears to me to ignore the fact that the right to damages could not be separated from the right to recover them. There are rights in English Law which have an existence and a purpose although the remedy be suspended or wanting. But the right here in question is not one of them. If the amending statute received the operation for which the appellant contends, it would impose anew a liability that had ceased to exist. The presumptive interpretation is against such an operation." [2] . But notwithstanding the very close reasoning contained in the judgment of Kitto J. in Chang Jeeng's Case [3] I retain the opinion that s. 63 (3) is a provision controlling the exercise of a common law right of action and that the substantive right from which the controlled right of action springs continues to subsist. On the whole I think that the correct view to apply is that until the substantive right is completely lost by the final extinguishment of all remedy its subsistence should be recognized and the enlargement of the period of limitation upon the remedy treated as applicable to it. The consequence of course is that the limitation of time of twelve months for making an application for extension is carried forward so that it commences to run at the end of three years from the first payment of compensation. Accordingly the appeal should be dismissed.