R CORDINA AND SON PTY LTD v CULJAK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 28 April 1992 [1992] NSWCA 194 LIMITATION OF ACTIONS — POWER TO EXTEND LIMITATION PERIOD — EFFECT OF LIMITATION (AMENDMENT) ACT 1990 — NO POWER TO EXTEND LIMITATION PERIOD FOR EXISTING CAUSES OF ACTION UNDER TRANSITIONAL PROVISIONS IN CASES OF NON LATENT INJURY. LIMITATION OF ACTIONS — APPLICATION FOR EXTENSION OF LIMITATION PERIOD WHETHER INSURER ON RISK A NECESSARY PARTY. LEGAL PRACTITIONERS — CHALLENGE TO SOLICITORS' RETAINER — NOT ENTERTAINED EXCEPT ON SUBSTANTIVE MOTION. LIMITATION OF ACTIONS — power to extend limitation period — effect of Limitation (Amendment) Act 1990 — no power to extend limitation period for existing causes of action under transitional provisions in cases of nonlatent injury. LIMITATION OF ACTIONS — application for extension of limitation period — whether insurer on risk a necessary party. LEGAL PRACTITIONERS — challenge to solicitors' retainer — not entertained except on substantive motion. In 1986 the respondent sued the appellant for damages arising from injuries sustained at work in 1981 and 1983. Subsequently he applied for the limitation period to be extended in respect of earlier, nonlatent, injuries while working for the same employer in 1971 and 1976. The Judge followed Plumb y Electricity Commission of New South Wales and extended the limitation period. On appeal brought in the name of the employer by the insurer at risk in 1971: Held: (1) There was no power to extend the limitation period. Electricity Commission of New South Wales v Plumb (CA 28 April, 1992 followed). (2) Semble under s60G(2) the employer's liability insurer on risk on 1971 was a necessary party to the proceedings in its own right. (3) The Court refused to entertain a challenge to the retainer of the solicitors for the appellant in the absence of a substantive application brought for that purpose. ORDERS 1. Leave to appeal granted. 2. Appeal allowed. 3. Set aside so much of the judgment of Enderby J as extended the limitation period in respect of the alleged causes of action arising on 15 January 1971 and 6 December 1971 and as granted leave to amend the plaintiff's statement of claim to add such causes of action. 4. Order the plaintiff to pay the costs of the National Insurance Company of New Zealand of the proceedings before Enderby J. 5. Order the opponent to pay the claimant's costs of the summons. 6. The opponent is to have a certificate under the Suitors Fund Act in respect of the costs of the summons. Sheller JA I have had the benefit of reading the judgment of Handley JA and agree with it and the orders therein proposed. Mahoney JA This matter was considered at the same time as the Court considered the appeal in The ElectricitY Commission of New South Wales v Plumb. 2 UNREPORTED JUDGMENTS In the Plumb proceeding I detailed my views as to the construction of the relevant provisions. For those reasons and for the reasons set forth in the judgment of Handley JA, I agree with the orders which his Honour proposes. Handley JA This is a summons for leave to appeal from a decision of Enderby J given on 28 February of this year. His Honour had ordered pursuant to s60G(2) and Sch 5 of the Limitation Act 1969 as amended in 1990 that the limitation periods for causes of action arising on 15 January 1971, 6 December 1971 and 28 February 1976 be extended and that leave be granted to the plaintiff to file an amended statement of claim to include such causes of action. The statement of claim in its original form was filed in March 1986 and pleaded causes of action arising out of personal injuries sustained by the plaintiff while employed by the defendant as a mechanical engineer on 16 February 1981 and 11 May 1983. The plaintiff had also sustained earlier injuries on the dates previously referred to during the course of his employment with the defendant. Following the decision of McInerney J in Plumb v Electricity Commission the plaintiff applied by notice of motion for orders extending the limitation periods in respect of the 1971 and 1976 causes of action. The notice of motion came on for hearing before Enderby J. Counsel appeared before his Honour representing the plaintiff, the defendant and the National Insurance Company of New Zealand. The National Insurance Company was the defendant's workers compensation insurer when the first two accidents occurred. The AMP was its insurer when the third accident occurred and Manufacturers Mutual when the fourth and fifth accidents occurred. Counsel appearing for the defendant did so on the instructions of Manufacturers Mutual, it having taken over the conduct of the proceedings. The notice of motion had earlier been before Sully J who had granted leave to the National Insurance Company to appear in its own right. The AMP has taken no interest in the proceedings but it does not appear whether or not it has been served or otherwise had notice of the proceedings. It is not a party to the summons for leave to appeal either as claimant or opponent. Enderby J, as a matter of comity, followed the decision of McInerney J in Plumb v Electricity Commission and held that he had power to grant the extension sought although the injuries were hardly latent. He held that in all the circumstances it was just and reasonable to grant the extension and he did so, making consequential orders for leave to amend the statement of claim. The defendant sought leave to appeal acting on the instructions of the National Insurance Company. The plaintiff/opponent applied by notice of motion to have the summons struck out as incompetent because it had been filed in the name of the employer by solicitors acting on the instructions of the National Insurance Company. The Court dismissed the notice of motion holding that the proceedings were competent, and it declined in that proceeding to investigate the retainer of the solicitors for the claimant. It is well established that the only proper way to challenge the retainer of the solicitor on the record is by a substantive application for that purpose. See Russian Commercial Bank v Comptoir d'Escompte de Mulhouse (1925) AC 112 at 130, 148 and Carl Zeiss Stiftung v Rayner and Keiller Ltd (1967) AC 853 at 942, 945. In any event it seems that the National Insurance Company was entitled to be a party to the notice of motion in its own right. S60G(2) provides that the Court may extend the limitation period "after hearing such of the persons likely to be affected by the application as it sees fit". Notice of the proceedings would have to be given to the intended defendant in any event. It is difficult to conceive of URJ R CORDINA AND SON PTY LTD v CULJAK (Handley JA) 3 another person more likely to be affected by the application for the extension of the limitation period than an insurer who was on risk at the relevant time in respect of claims such as those the subject of the proceedings. The Court listed the summons for leave to appeal with the appeal in Electricity Commission v Plumb. Both cases were heard together and judgment was reserved. The Court has today delivered its reserved judgment in Electricity Commission v Plumb and made orders allowing the appeal. For the same reasons I would grant leave to appeal in the present case and allow the appeal. In my opinion the following orders should be made: aun 1. Leave to appeal granted. 2. 3. Set aside so much of the judgment of Enderby J as extended the Appeal allowed. limitation period in respect of the alleged causes of action arising on 15 January 1971 and 6 December 1971 and as granted leave to amend the plaintiff's statement of claim to add such causes of action. Order the plaintiff to pay the costs of the National Insurance Company of New Zealand of the proceedings before Enderby J. Order the opponent to pay the claimant's costs of the summons. The opponent is to have a certificate under the Suitors Fund Act in respect of the costs of the summons. Counsel: Appellant C GEE QC / T SMALL / D MARR Ist Respondent S JAMES 2nd Respondent T RYMAN Solicitors: Appellant WALSH JAMES 1st Respondent PARISI SCARCELLA PARTNERS 2nd Respondent DEXTER HEALEY and CO