FITZGERALD v BANKSTOWN CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and POWELL JJA and BADGERY-PARKER AJA 29 October 1995, 6 November 1995 [1995] NSWCA 149 LIMITATION OF ACTIONS — Limitation Act 1969, s60G, s60I — Dedousis v The Water Board (1994) 181 CLR 171, Colarado v Haden Engineering Pty ltd (NSW Court of Appeal, unreported 6 November 1995) followed. LIMITATION OF ACTIONS — Limitation Act 1969, s60G, s60I District Court judge applied Dedousis vy The Water Board (New South Wales Court of Appeal, unreported 20 August 1993) — reversed, Dedousis v The Water Board (1994) 181 CLR 171. Colarado vy Haden Engineering Pty Ltd (New South Wales Court of Appeal, unreported 6 November 1995) followed — application remitted to District Court for rehearing. Clarke JA For the reasons given by Badgery-Parker AJA in this case and for reasons analogous with those I gave in Colorado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, 6 November, 1995, unreported) I agree with the orders proposed by Badgery-Parker AJA. Powell JA I agree with Badgery-Parker AJA. Badgery-Parker, AJA This is an application for leave to appeal against the decision of his Honour Judge Herron, QC, in the District Court, refusing the claimant's motion for an extension of time within which to sue the opponent for damages in respect of noise induced hearing loss allegedly due to negligence. The reasons advanced for the grant of leave are inextricably bound up with the merits of the appeal, and accordingly the court heard argument upon the merits without first resolving the question of leave. For reasons which will appear, I have reached the conclusion that leave to appeal should be granted, that the appeal should be allowed, and that the matter should be returned to the District court for re-hearing. The claimant commenced employment with the opponent upon a date which is not entirely certain but may have been either 19 October 1974 or 13 October 1975, and was still so employed as at 30 June 1987, on which date the Workers Compensation Act 1987 commenced. In respect of any damage sustained after that date, the plaintiff could not succeed at common law without satisfying the provisions of s1516 and s151H of that Act and it would appear that the matter proceeded in the District Court on the basis that no claim was made in this action in respect of damage sustained after that date. Throughout the period of his employment up to 30 June 1987, the plaintiff claims that he was exposed to such levels of noise as were capable of causing and probably did cause significant loss of hearing in both ears. His statement of claim, in which he claimed damages in respect of that loss, was not filed until 24 August 1993. That claim was provisionally statute barred in respect of any hearing loss sustained prior to 24 August 1987 and hence in relation to any hearing loss which, having regard to the provisions of the Workers 2 UNREPORTED JUDGMENTS Compensation Act 1987, the plaintiff was in a position to assert. Accordingly, with his statement of claim, the plaintiff filed a notice of motion seeking an extension of the relevant limitation period, relying alternatively on the provisions of s58(2) of the Limitation Act 1969 and on the provisions of subdivision (3) of Division 3 of Pt3 of that Act. The hearing of that motion before his Honour Judge Herron, QC proceeded only on the second basis, the first being expressly abandoned at the hearing. The matter was heard in the District Court on 15 and 18 February 1984, and his Honour Judge Herron, QC. delivered judgment on 25 February 1994. His Honour directed himself in accordance with the decision of this court in Dedousis v The Water Board (unreported, 20 August 1993), that the claimant was obliged to show, in terms of s60F of the Limitation Act, that he was "unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time". Under the law as it stood at the time when the District Court judge dealt with this matter, an claimant could not succeed in an application under subdivision (3), upon the ground that he was at the relevant time unaware of the "cause" of his injury, if in fact he knew the physical cause, in this case exposure to loud noise. The contrary view which, accepting (because of the decisions of this court in James Hardie and Co Pty Ltd v Wootton (1990) 20 NSWLR 713 and Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364) that an applicant for an extension of time under subdivision (3) was obliged to satisfy the criteria expressed in s60F, construed that section as meaning that such an applicant was relevantly unaware of the "cause" if he was unaware of the connection between the injury and the defendant's acts or omissions (PD v The Australian Red Cross Society, Badgery-Parker, J, unreported 26 November 1992) had been rejected by this court in Dedousis (supra). The evidence before the District Court judge showed that the claimant was aware of the physical cause of his hearing loss (exposure to loud noise in the course of his employment) as early as November 1980 when he had lodged a report of injury in respect of "industrial deafness" sustained "in the course of employment". Such being the case, upon the interpretation of the statute endorsed by this court in Dedousis (supra3, the application necessarily failed. Furthermore, because the application was presented upon the basis that the law was as established by the decision of this court in Dedousis, no evidence was adduced relevant to the issue whether the applicant was unaware of the connection between his injury and the defendant's omissions. The decision of this court in Dedousis was reversed by the High Court Dedousis v Water Board (1994) 181 CLR 171 (judgment delivered on 16 November 1994) not on the basis that s60F should be construed as it had been construed in PD (supra), but because, in the view of the High Court, s60F of the Act was: "\.. no more than an introductory provision that indicates the purpose of subdivision (3). It provides a summary of the effect of the substantive provisions of the subdivision. The terms of s60F must be interpreted on that basis." It followed that the success of an application for extension of the limitation period pursuant to subdivision (3) was now to be understood to depend upon the ability of the claimant to satisfy the requirements of (relevantly) s60G and s60I of the Act. S60G (relevantly) provides that the court may make an order URJ FITZGERALD v BANKSTOWN CITY COUNCIL (Badgery-Parker, AJA) 3 extending the time if the court decides "that it is just and reasonable to do so". S60I provides (relevantly) that no order may be made under s60G unless the court is satisfied that the plaintiff: "(iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted." In the circumstances of the present case, the only relevant time is the expiration of the relevant limitation period, which was either 19 October 1980 or 13 October 1981. Constrained as he was by the earlier decisions of this court, it was unnecessary for the District Court judge to consider, and he did not consider, what is now seen to be the relevant issue, namely, whether the plaintiff had established that at that date he was unaware of the connection between the personal injury and the defendant's act or omission: nor, as I have pointed out, was evidence adduced in respect of that issue. That, as it seems to me, is the answer to the otherwise persuasive submission advanced by Mr. Hoeben on behalf of the defendant to the effect that the evidence before the District Court judge was insufficient to enable the claimant to establish the necessary matter required under s60I(1)(a)(iii). It may be acknowledged that the evidence was insufficient. The reason that it was insufficient was that the parties and the court proceeded upon a wrong basis. The proceedings before the District Court judge entirely miscarried because of the misapprehension on the part of the court and both parties as to the proper construction of the Limitation Act. The plaintiff's claim that he was unaware of the connection between the personal injury and the defendant's act or omission has never been evaluated. In those circumstances, unless this court were of the view that it was itself in a position to determine the application (and in my view this court is not in that position) the proper course would seem to be to grant leave, allow the appeal, and remit the matter to the District Court. For the reasons explained by Clarke, JA. in Colarado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, unreported 6 November 1995), the principle of finality does not preclude such an order. The making of such an order would be inappropriate only if it appeared that the application, if considered by the District Court on a proper basis, would be bound to fail. It would be bound to fail unless the claimant could show not only that there was evidence available to him to support the extension of time application, but also, to the extent necessary in such an application, that there was evidence to establish the cause of action. Although, where an application to extend the time is based upon s58, there is an express requirement that that be shown, there is no requirement expressed in the provisions of subdivision (3) and in particular s60G. However, as I pointed out in PD (supra at 6): "\.. the need (s60G(2) for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action." In the present proceedings it is relevant to note the contents of the affidavit of the claimant sought to be adduced as additional evidence in this court only for the purpose of showing that there is evidence available to establish the cause of action. The test is not a demanding one: see Martin v Abbott Australasia Pty Ltd UNREPORTED JUDGMENTS (1981) 2 NSWLR 430 at 443 per Hunt, J (as he then was). The content of the affidavit tendered in this court together with the contents of the report of Mr David J Keck adduced in the District Court satisfies that test. In those circumstances it is not futile to return the matter to the District Court. I propose the following orders: 1. 2. 3. 4. Grant leave to the claimant to appeal from the order of Herron, DCJ of 25 February 1994; Allow the appeal; Set aside the judgment of Herron, CJ of 25 February 1994; Remit the proceedings to the District Court for determination in accordance with the law; Order that the costs of the proceedings before Herron, DCJ. be in the discretion of the judge who hears the remitted application; Order the opponents to pay the claimant's costs of the application and appeal and, if qualified, order that they are to have certificates under the Suitors Fund Act in respect of those costs. COUNSEL: Appellant: B Robinson Respondent: C Hoeben SOLICITORS: Appellant: Maurice May and Co Respondent: Pieterse and Pieterse