GOVERNMENT INSURANCE OFFICE OF NSW v STRANGE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, POWELL JJA and YOUNG AJA 24 October 1995, 28 November 1995 [1995] NSWCA 175 Limitation of Actions [55] — Extension of time — Plaintiff aware of all facts 4-18 months prior to expiry of limitation period — Does not satisfy s601 of Limitation Act 1969. Limitation of Actions — extension of time — plaintiff aware of all facts 4-18 months prior to expiry of limitation period — does not satisfy s60I of Limitation Act 1969. Clarke JA I agree with Young AJA. Powell JA I agree with Young AJA Young AJA The claimant, the Government Insurance Office of NSW, seeks first an order that it have leave to appeal from orders made by Dent, DCJ on 24 November 1993 that the limitation period for the opponent to bring an action against the claimant be extended to 13 February 1992, and secondly, for an order that the appeal be upheld and the orders made by his Honour Judge Dent be set aside. It is common ground that the reasons of his Honour cannot now be supported in the light of the decision of the High Court of Australia in Dedousis v Water Board (1994) 181 CLR 171. Accordingly, the Court enquired of counsel for the opponent whether they thought to support his Honour's decision. On being told that they did, counsel for the opponent were invited to address the Court first. It is necessary to sketch briefly the facts and circumstances of this case. By her statement of claim issued on 12 February 1992 in the District Court, the opponent pleaded that at about 2 am on 6 July 1985, a motor vehicle in which she was a passenger was travelling in a northerly direction on the New England Highway at Tenterfield when it collided with a kangaroo as a result of the negligence of the driver for whom the claimant is responsible. On 17 June 1993, the opponent filed a motion in the District Court for a declaration that her statement of claim had been filed in time, or alternatively, for an extension of the limitation period until February 1992. In her supporting affidavit, the opponent said that she did not believe that anything could be done to claim against the driver. However, in 1989 she consulted solicitors, in 1990 those solicitors obtained the hospital notes and in March 1991 they sent the opponent to confer with a barrister. The barrister advised the opponent that she had reasonable prospects in succeeding in a claim. At the hearing before Judge Dent, the opponent's solicitor also gave evidence that two other solicitors had looked at the matter before he did. He did not consider in 1989 that there was a cause of action, but he made the "automatic reaction in a lot of personal injury cases" and obtained notes from the hospital where the opponent was treated. This appears to have occurred in April 1990. The solicitor found it difficult to explain why it took 11 months to send the client to confer with the barrister. The solicitor also found it difficult to explain why he 2 UNREPORTED JUDGMENTS waited from March 1991 until February 1992 to issue the statement of claim. It is, however, clear that there were negotiations between the opponent's solicitors and the solicitors for the claimant from June 1990. It would seem that the opponent did not appreciate the full extent of her injuries until about 6 June 1989. The learned Judge accepted her on this and said that it dovetailed with the fact that she instructed solicitors in August 1989. The application is made under s60G of the Limitation Act 1969 as supplemented by s60I and Schedule 5. S60G(2) provides that the Court may extend the limitation period in this sort of case "if it decides that it is just and reasonable to do so". However, s60I(1) is as follows: "A court may not make an order under s60G... unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was aware of the nature or extent of personal injury suffered; or (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;..." Mr Leslie, QC, who appeared with Mr R Walker for the opponent, made it clear that he relied on the fact, and solely on the fact that the opponent was unaware of the nature or extent of the personal injury suffered until shortly before the expiration of the limitation period. He said that she did not know the extent of her injury until 1989 and that it was only after counsel had advised in March 1991 that she appreciated she had a worthwhile cause of action. They submitted that where a plaintiff is deprived of a substantial part of the limitation period, s60G and s60I operate to give her a second chance. Mr Leslie QC and Mr Walker complain that the opponent lost four years of her limitation period, and then they complain that the insurer negotiated with the opponent's solicitors until the opponent's solicitor was out of time and then pleaded the Statute of Limitations. Counsel say that s60I looks to a period of ignorance during the time when the limitation period is running. If a person who has been personally injured can establish such ignorance then she has crossed the threshold and it becomes a question as to whether she has acted reasonably. The vital question is what do the words "or at a time before that expiration when proceedings might reasonably have been instituted" refer to in the closing words of s60I(1)(a)? It will be observed that the legislature first points to a person being unaware at the expiration of the relevant limitation period of, for instance, the nature or extent of her personal injury. That part of the section does not apply in the instant case because it is abundantly clear that the opponent knew probably in June 1989, but certainly on 22 March 1991, of the nature or extent of her injury and her ability to make a claim. But an alternative period is then given and the question is, to what does it refer? In my view the only sensible construction is that if awareness dawns upon the plaintiff within the limitation period but so close to its expiry that there is not the time in which the plaintiff could reasonably have instituted proceedings, then the Court may make an order under s60G. As Mr Watson, who appeared for the claimant pointed out, there may well be cases where a person might have become aware only a day or two or perhaps a week or so before the expiration of the limitation period and may have disadvantages because of language or poverty where a small window is opened for the Court to URJ GOVERNMENT INSURANCE OFFICE OF NSW v STRANGE (Young AJA) 3 make an order extending the limitation period even though awareness was obtained before the limitation period expired. This is in accordance with what the High Court said in Dedousis at 180. Mr Watson supplied us with the Second Reading Speech made by the then Attorney General in the Legislative Assembly on 14 November 1989, but I must confess that I was not actually assisted in the construction I have reached as a result of what is contained in that speech. Has then, the opponent come within that small window in this case? In my view she clearly has not. She had solicitors acting for her, all the knowledge was available at least four months before the limitation period expired, if not 18 months before expiry. Apart from the fact that negotiations were being carried on with the insurer, there was nothing to prevent her solicitor commencing proceedings so that the action could be brought within the proper time. Accordingly, in my view leave to appeal should be granted, the appeal should be allowed and the order of Dent, DCJ set aside. The opponent must pay the costs of the appeal and the notice of motion but should have a Certificate under the provisions of the Suitors' Fund Act 1959. The appeal is allowed and the order of Dent DCJ set aside. The opponent to pay the costs of the appeal and the notice of motion and should have a certificate under the Suitors' Fund Act 1959. Counsel: Claimant/Appellant: GM Watson Opponent/Respondent: AJ Leslie QC and R Walker Solicitors: Claimant/Appellant: Creagh and Creagh Opponent/Respondent: Elias Gates and Associates