New South Wales Court of Appeal CITATION : State of NSW v Smith Council of Shire of Kyogle v Smith [2003] NSWCA 115 HEARING DATE(S) : 12 May 2003 JUDGMENT DATE : 12 May 2003 JUDGMENT OF : Handley JA at 1; Santow JA; Tobias JA DECISION : Both summonses dismissed with costs CATCHWORDS : LIMITATION OF ACTIONS - extension of the limitation period - whether cause of action - no question of principle LEGISLATION CITED : Limitation Act District Court Act CASES CITED : House v The King (1936) 55 CLR 499 PARTIES : State of New South Wales v Geoffrey Robert Smith & Ors Council of Shire of Kyogle v Geoffrey Robert Smith & Anor FILE NUMBER(S) : CA 40121/02; 40122/02 For Council: R G Gambi COUNSEL : For State: C E Adamson For Smith & Ors: J E Rowe/J A Darvall SOLICITORS : For Council and State: I V Knight, Crown Solicitor For Smith & Ors: Paul Denmeade & Co, Lismore LOWER COURT District Court JURISDICTION : LOWER COURT DC 3891/00 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40122/02 40121/02 DC 3891/00 HANDLEY JA SANTOW JA TOBIAS JA 12 May 2003 COUNCIL OF THE SHIRE OF KYOGLE v GEOFFREY ROBERT SMITH & ANOR STATE OF NEW SOUTH WALES v GEOFFREY ROBERT SMITH & ORS Judgment 1 HANDLEY JA: The State of New South Wales and the Council of the Shire of Kyogle have applied for leave to appeal from a decision of Sidis DCJ who pronounced reasons for judgment on 15 January 2002 and made formal orders on 25 January. These included an order which extended the limitation period for causes of action for personal injury until 30 March 2001. 2 The original statement of claim was filed on 28 October 1999 and the amended statement of claim was filed on 27 March 2000, so the Judge granted an extension of time for a further 12 months after the filing of the amended statement of claim. 3 The opponents contracted to purchase a rural property on the outskirts of Nimbin in February 1994. They completed the purchase in March and went into possession and are still living on the property. Unknown to the opponents at the time of the purchase was the fact that part of the property had been used by the State Department of Agriculture between 1953 and 1983 for dipping cattle to eradicate ticks. As a result land in the vicinity had become seriously contaminated with toxic chemicals. The opponents only learned of these facts in October 1994. 4 The statement of claim claims damages for economic loss arising from the purchase of land at an excessive price and for consequential economic loss. That is a joint cause of action. It also claims damages for personal injury suffered by each of the purchasers, who have separate causes of action. All have been joined in the one statement of claim, which appears to be irregular, but not necessarily incurable, having regard to the provisions of the District Court Act and rules dealing with the curing of irregularities. 5 The opponents were within time to commence their action for economic loss, the relevant limitation period being 6 years. The limitation period for their claims for personal injury is 3 years under s 60A of the Limitation Act. 6 Sidis DCJ, in a careful and lengthy judgment, granted an extension of time under s 60C of the Act, having considered the matters required to be considered under s 60E. 7 Ms Adamson, who appeared for the State of New South Wales, the claimant in the first summons, made three principal submissions. The first was that the extension should have been refused because the plaintiffs had failed to demonstrate that they had a viable cause of action for personal injury; and the others related to the manner in which the primary Judge exercised her discretion. These matters were said to warrant appellate interference in accordance with the well known principles of House v The King (1936) 55 CLR 499. She submitted that the Judge erred in taking into account matters which had occurred after the statement of claim had been filed and that the Judge had failed to properly assess the length of the delay before the proceedings were commenced and the explanation given by the plaintiffs for that delay. 8 The Court is not persuaded that either of these matters warrant the grant of leave. In our view the Judge dealt with the matter appropriately. There is also the fundamental difficulty facing the appellant of identifying when the plaintiffs' causes of action for personal injuries first arose. Only then would the limitation period commence to run and the question of delay arise for consideration. On the material in evidence it is quite impossible for the Court to fix the date on which the plaintiffs' causes of action for personal injury accrued, and the claimants have the legal onus on that issue. 9 The remaining matter, that first mentioned by Ms Adamson, was the lack of proof that the plaintiff had a viable cause of action against the State for personal injuries. The State, on the material before this Court, was well aware that the land had become contaminated with toxic chemicals and so were the neighbours. At that stage there may not have been a duty to warn. Ms Adamson submitted that the lapse of time could not attract a duty of care to warn subsequent purchasers and others. The owner when the State vacated in 1983 remained owner until he sold the property to the purchasers in February 1994. 10 In my judgment it is not appropriate for this Court to express any view upon whether the plaintiffs have viable causes of action for personal injuries and whether the State had a duty of care to persons in the position of the plaintiffs who would later come onto the property and be exposed to the toxic chemicals. The facts have not been fully found and more facts may emerge which might strengthen the case against either of the defendants. 11 It is not appropriate for this Court to express any view on the existence of a duty of care or a cause of action on incomplete facts. 12 The Council is in the same position as the State of New South Wales, and Mr Gambi, who appeared for the Council, did not add any independent submissions of his own. 13 In those circumstances the Court will order that both summonses be dismissed with costs. ****** Last Modified: 05/26/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.