Steele v Master Builders Association of NSW & Anor [1999] NSWSC 33

New South Wales Supreme Court CITATION : Steele v Master Builders Association of NSW & Anor [1999] NSWSC 33 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 15022/90 HEARING DATE(S) : 25 November 1998 JUDGMENT DATE : 11 February 1999

Gary Michael Steele (P/Resp) PARTIES : Master Builders Association of NSW (D1/Appl) Timalco Glass Structures Pty Ltd (D2/Appl) JUDGMENT OF : Kirby J

LOWER COURT JURISDICTION : Supreme Court (Master) LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Master Malpass

M B Duncan (P/Resp) COUNSEL : W P Kearns (D1/Appl) G A Seib (D2/Appl) G H Healey & Co (P/Resp) SOLICITORS : A O Ellison & Co (D1/Appl) P V McCulloch & Buggy (D2/Appl) CATCHWORDS : Limitations; Leave to appeal Limitation Act 1969 Plumb v Electricity Commission of NSW Dedousis v Water Board James Hardie & Co Pty Limited v Wootton ACTS CITED : Forbes v Lindop SRA v Gaudron Piening v Wanless R v Unger Eggins v Brooms Head Bowling and Recreational Club Ltd Harris v Commercial Minerals Limited & Ors DECISION : See paragraph 54

JUDGMENT

1 HIS HONOUR: This is an appeal from a decision of Master Malpass given on 5 November 1991. Master Malpass made an order under s 60G(2) of the Limitation Act 1969 enlarging the time within which the Plaintiff might sue his employer, the First Defendant, the Master Builders' Association of New South Wales ("the Master Builders' Association"), and the Second Defendant, Timalco Glass Structures Pty Limited ("Timalco Glass"). The action arose out of injuries sustained by the Plaintiff on 25 October 1983. 2 The Notice of Appeal was lodged by the First Defendant on 5 January 1993, and by the Second Defendant on 3 February 1993. In each case, therefore, the notice was filed considerably outside the 28 day period fixed by Pt 60 r 11(2) of the Supreme Court Rules. An extension of time is required by each appellant before the merits of the appeal can be considered. 3 I have formed the view that, in each case, leave should be given to appeal. It is convenient to postpone, for the moment, a statement of my reasons. They will emerge in the description which I now give of the way in which the action arose, and the manner in which it progressed. The Broad Chronology of Events 4 The Plaintiff was born in 1956. In 1982 he began an apprenticeship as a carpenter with the Master Builders' Association. He completed that apprenticeship in 1985. He was, apparently, by arrangement, loaned by his employer to Timalco Glass. Whilst working with that company, at a site at Northbridge, he sustained an injury to his right wrist on 25 October 1983. He was operating a large drill. The drill was fitted with a masonry bit. The drill struck a piece of reinforcing steel, causing the drill bit to "grab". The handle kept revolving, striking the Plaintiff's right wrist. The matter was reported. A workers' compensation form was completed, although the Plaintiff remained at work. He sought treatment from the St George Hospital, and was referred to a specialist, Dr Benesik. He saw Dr Benesik over the next several months, undertaking physiotherapy. He was able to continue working. 5 In 1987 he became self employed. It will be necessary, later in this judgment, to examine closely the evolution of his symptoms in the years following the injury. 6 The limitation period expired on 24 October 1989. 7 On 27 August 1990, 10 months out of time, the Plaintiff filed a Statement of Claim, against the First and Second Defendants. The Statement of Claim was served upon each defendant. However, only the First Defendant, the Master Builders' Association, filed an appearance and a defence. The defence (filed on 12 November 1990) asserted that the claim was out of time. 8 The Plaintiff's solicitors were slow to react. On 25 June 1991, a Notice of Motion was filed by those solicitors. It identified the First and Second Defendants, following the format of the Statement of Claim. The order it sought, however, was that the time under the Limitation Act 1969 in which the Plaintiff might commence proceedings against the Defendant (singular) be extended. The return day for the Motion was 26 July 1991. In an affidavit subsequently filed on behalf of the Plaintiff, the following appeared: "On the 2nd July, 1991 a copy of the Notice of Motion was served on the second Defendant. Annexed hereto and marked with the letter "B" is a copy of the service of the Notice of Motion and Affidavit in support thereof." 9 However, the annexure was a letter addressed to the solicitor for the First Defendant, the Master Builders' Association. Whilst the Plaintiff's solicitors may have believed that the Second Defendant had been served with the Notice of Motion, it was common ground before me that the Second Defendant (Timalco Glass) had not been served. 10 The matter ultimately proceeded before Master Malpass on 24 October 1991. The transcript is headed "Gary Michael Steele v Master Builders Association of New South Wales & Anor". There was an appearance for the Plaintiff. Mr Meadley is recorded as having "appeared for the defendant" (singular). However, there is no reference to the Second Defendant having been called. 11 The Master reserved his decision, which he then gave on 5 November 1991. The decision, when given, did not differentiate between the defendants. Indeed, it appears that the Master assumed, perhaps not unreasonably, that a position was being put jointly on behalf of both defendants. He, for instance, said this: (p 5/6) "On behalf of the defendant, it is also said that if an order is made, there will be substantial prejudice to the defendants. I am unable to accept this submission. The defendants have not led any evidence of prejudice that would be suffered by reason of delay." (emphasis added) 12 He added: (p 6) "I bear in mind that if the relief sought is granted, the defendants will lose the benefit of the statutory defence. Correspondingly, there will be hardship to the plaintiff, if the order is not made." (emphasis added) 13 The order which was made, extending time, purported to apply to both defendants. 14 On 29 November 1991, the First Defendant (the Master Builders' Association) filed its own Motion. It sought leave to extend the time for filing a cross claim against the Second Defendant (Timalco Glass). The Motion was supported by an affidavit. The affidavit drew attention to the fact that Timalco Glass Structures was a company (Timalco Glass Structures Pty Limited), and included the following paragraph: "On 5th November, 1991 Master Malpass ordered that the limitation period for the cause of action pleaded in the Statement of Claim be extended for a period up to and including 27th August, 1990 the date upon which the Statement of Claim herein was filed." 15 The Motion was returnable on 10 December 1991, although stood over from that date. It was served upon Timalco Glass. Service of the First Defendant's motion provoked a response at last from the Second Defendant. An appearance was filed on 12 December 1991, as well as the Statement of Defence on behalf of the Second Defendant. The Statement of Defence raised the defence that the claim was Statute barred under the Limitation Act 1969. 16 On 17 March 1992, the Plaintiff filed a notice to amend the name of the Second Defendant to Timalco Glass Structures Pty Limited. Prothonotary Whalan gave leave to make that amendment. He also gave leave to the Master Builders' Association to file a cross claim against Timalco Glass. 17 On 5 January 1993, as mentioned, the Master Builders' Association lodged a Notice of Appeal against the Master's decision of 5 November 1991. The Notice was supported by an affidavit by the solicitor for the First Defendant identifying the basis upon which the Court, in its discretion, should give leave to extend the time for filing an appeal pursuant to Pt 60 r 11(2) and (4). The affidavit essentially did two things. First, it sought to explain the delay between November 1991 (when the Master gave his decision), and April 1992. Secondly, it sought to explain several months additional delay (May 1992 to December 1992), occasioned by counsel being slow to provide advice which had been sought. 18 The reason for the initial delay (November 1991 to April 1992) related to a change in the law. When the matter proceeded before Master Malpass, it was common ground that the Master was bound by a decision by McInerney J in Plumb v Electricity Commission of New South Wales (unreported, 6 August 1991). McInerney J, in that case, reached a particular view on the construction of the Limitation Act. The Electricity Commission of New South Wales, however, appealed to the Court of Appeal against McInerney J's decision. The Court of Appeal gave its judgment on 28 April 1992, allowing the appeal. 19 Returning to the chronology, the appeal by the Second Defendant was lodged on 3 February 1993. It likewise sought to take advantage of the overturning of the authority which the Master had relied upon. The two appeals came before Campbell J on 19 March 1993. They were stood over generally with liberty to restore on seven days notice. It was noted on the court file that an appeal in respect of a similar issue was pending. This was a reference to the matter of Dedousis v Water Board. The Court of Appeal gave judgment in that matter on 20 August 1993. Special leave was thereafter given by the High Court. The High Court ultimately gave its decision on 16 November 1994 (Dedousis v Water Board 125 ALR 193). 20 On 28 November 1994 the solicitor for the First Defendant wrote to the Supreme Court seeking to have the matter restored to the list. The matter was restored, but there was no appearance for any party. Either the Court omitted to notify the parties, or the notices were not received. The First Defendant again sought to have the matter restored (23 March 1995). The matter came before Spender AJ on 3 April 1995. The Plaintiff was required to file a Notice of Contention (which was duly filed). The parties were given leave to approach the List Judge, and to apply on two days notice. 21 Nothing happened thereafter for a number of years. Neither appellant sought to prosecute its appeal. The Plaintiff took no steps to complete the pleadings, and have the matter set down for trial. 22 On 15 April 1998 the matter, by consent, was transferred to the District Court. It was then that the parties woke up. On 10 September 1998, the solicitors for the Second Defendant (Timalco Glass) sought to have the appeal restored to the list. On 17 September 1998, the solicitor for the Master Builders' Association likewise sought to have the appeal determined. The Change in the Law 23 The application by Mr Steele, the Plaintiff, was brought, relevantly, under Subdivision 3 of the Limitation Act, 1969. Subdivision 3 is headed, "Discretionary extension for latent injury etc.". That subdivision begins with s 60F, which identifies the purpose of the subdivision in these terms: "60F. The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date." 24 Mr Steele's cause of action accrued before 1 September 1990, namely on 25 October 1983. By cl 4(1) of Schedule 5, s 60G applied to such a cause of action. Clause 4(4) defined the power of the Court to make an order under that section as follows: "Cl.4(4) The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, within: (a) the period of 3 years referred to in section 60 I; or (b) the period of 3 years commencing on 1 September 1990." 25 Section 60G(2) is in these terms: "60G(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 26 Finally, s 60 I identifies the matters to be considered by the Court when making an order under s 60G. It says this: "60 I(1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware 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; and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware of all 3 matters listed in paragraph (a) (i)-(iii)). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision." 27 These provisions were considered in a number of decisions before and after the decision by Master Malpass in this case on 5 November 1991. On 22 November 1990, the Court of Appeal (Gleeson CJ, Kirby P and Meagher JA) decided James Hardie & Co Pty Limited v Wootton ((1990) 20 NSWLR 713). The plaintiff suffered from asbestosis. He wished to commence an action for damages, he having not appreciated that he may contract mesothelioma. The Court was plainly dealing, therefore, with a latent injury. It was common ground that the Plaintiff could not satisfy the requirements of s 60 I. However, Gleeson J said this: (at 717) "Nowhere does it say that s 60 I has general application, although of course in its practical operation cl 4(4)(a) requires attention to be paid to the provisions of s 60 I." 28 The Chief Justice added: (at 717) "I see no justification for importing into the operation of cl 4(4)(b) the provisions of s 60 I." 29 The other members of the Court agreed. 30 Thereafter, McInerney J held in Plumb v Electricity Commission of New South Wales on 6 August 1991, that cl 4(4)(b) applied to all injuries, whether latent or otherwise. 31 Two principles, therefore, had been established by the time the matter came before Master Malpass in October 1991: · The first, that in respect of a cause of action accruing before 1 September 1990 (cl 4(1)), and in the period defined by cl 4(4)(b) (ie between 1 September 1990 and 1 September 1993), s 60 I need not be satisfied. · Secondly, in such an application, it did not matter that the injury was patent rather than latent, as defined by s 60F. 32 In his judgment in the present matter, Master Malpass set out the provisions of the Limitation Act 1969 which he considered relevant. They did not include s 60 I. Master Malpass appeared not to regard the injury to Mr Steele as being a latent injury, but, following McInerney J in Plumb v Electricity Commission, that was not a barrier to success. 33 In April 1992 the Court of Appeal (Mahony, Handley and Sheller JJA) gave judgment in Electricity Commission of New South Wales v Plumb ((1992) 27 NSWLR 364). The appeal against the decision of McInerney J was allowed. Clause 4(4)(b) of Schedule 5 of the Limitation Act 1969 applied only to latent injuries, as defined by s 60F. 34 In November 1994, the High Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) gave judgment in Dedousis v Water Board (125 ALR 193). Section 60F was not given the prominence it was accorded in Plumb. The Court said this: (at 197) "In our opinion, s 60F is no more than an introductory provision that indicates the purpose of Sub-Div 3. It provides a summary of the effect of the substantive provisions of the Sub-Division." 35 There was no warrant, therefore, for distinguishing between latent and patent injuries in cl 4(4). Rather, the position was as follows: (at 199) "The result is that the plaintiff must satisfy the requirements of s 60 I(1)(a) and then satisfy the court that his application for an extension was brought within the time limit specified in either cl 4(4)(a) or cl 4(4)(b). This approach is in accordance with the language of the Act." 36 The Court added: (at 199) "Thus the legislature appears to have intended that the plaintiff must have been unaware of at least one of the matters referred to in s 60 I(1)(a) before an extension could be granted, no matter when the plaintiff's cause of action accrued." 37 In that case (as in the case of Mr Steele), the plaintiff's cause of action had accrued before 1 September 1990. The application for an extension had been made within the period defined by cl 4(4)(b), as it had in the case of Mr Steele. The following comment by the Court, therefore, has application to Mr Steele. The Court said this: (at 200) "Because the plaintiff's action falls within cl 4(1), he is entitled to seek an exercise of the court's discretion under s 60G(2) to extend the relevant limitation period. Further, because the plaintiff's application falls within cl 4(4)(b), he is taken to have met the time requirement laid down in s 60 I(1)(b). However, the plaintiff is not entitled to any order under s 60G unless the court is satisfied that he was unaware of at least one of the matters referred to in s 60 I(1)(a)." 38 It is clear that the appeals by the defendants in this case were provoked by the reversal of McInerney J in Electricity Commission of New South Wales v Plumb. The Court of Appeal was itself then overruled by the High Court in Dedousis v Water Board. However, the law, as it emerged in Dedousis, was very different from the law as it was assumed to be at the time Master Malpass heard the appeal. There was a requirement that s 60 I be satisfied. In the circumstances, and notwithstanding the delay between May 1992 and January 1993, I believe it is appropriate to give leave to appeal to each defendant. 39 I should mention that the decision by the Master was interlocutory in nature (Forbes v Lindop (C of A (Kirby ACJ, Clarke, Sheller JJA), unreported, 17 July 1995): SRA v Gaudron (C of A (Priestley, Meagher JJA, Brownie AJA), unreported, 12 August 1997)). The action had not been concluded by verdict or judgment (cf Piening v Wanless ([1967-1968] 117 CLR 498): R v Unger ([1977] 2 NSWJ 990): Eggins v Brooms Head Bowling and Recreational Club Ltd ((1984) 5 NSWLR 521)). It was not inappropriate that the limitation issue should be revisited in the light of the law as it has emerged.