Before: Palmer, J
Hearing: 3rd October, 1996 -
Judgment: 22tober, 1996
Co0">Counsel: A.Radclyffe for the
Plaintiff - J.Sullivan for the Defendant
JUDGMENT
PALMER J:
The date of the 27th of
September, 1991 must go down in the history of aviation
in Solomon Islands as a sad and
tragic day, when a
Solomon Airlines twin otter aircraft, on a domestic
flight from Kira Kira to Honiara, crashed
on mountainous
terrain on Guadalcanal. All the passengers, including the
pilot and flight attendant, were killed
instantly.
Norleen Fiebig ("the Deceased"), daughter of
the Plaintiff was one of the passengers for reward
in
that plane.
The Plaintiff brings this action
as Administrator of the Estate of the Deceased (of which
Letters of Administration
had been granted on 19 July,
1995) and seeks inter alia, damages pursuant to the
Carriage by Air Acts (Applications
of Provisions)
(Overseas Territories) Order 1967 ("the
Order").
It is not in dispute that at the
date of her death, the Deceased :
a) was 28 years of age;
b) was a volunteer teacher
in Solomon Islands with a net salary of SBD437 08 per
fortnight;
c) would have earned that
salary for the balance of 1991 and for all of 1992;
d) was due to return to
teaching in Australia in January 1993 where she would
have earned AUD27,583 30 in
1993, AUD28,835 70 in
1994 and AUD29,062 85 thereafter;
e) would have retired at age
60.
It is also not in dispute that
by virtue of the aircraft's crash the Deceased's estate
had suffered loss and damage
including special damage of
AUD300 00
Learned Counsels also do not
dispute that the Order, which had been made pursuant to
the Carriage by Air Act 1961
(UK) ("the Act"),
is applicable in Solomon Islands [see section 5 of The
Solomon Islands Independence
Order 1978 ("The
Independence Order")]. Section 2(1) of the
Independence Order provides the following
definition of
what an "existing law" is-
"In this Order -
"existing laws"
means any Acts of the Parliament of the United
Kingdom, Orders of Her Majesty
in Council, ... having
effect as part of the law of Solomon
Islands...immediately before the appointed
day
...."
(The appointed day was 7th
July, 1978).
The Act and the Order thus were existing laws as
defined in s2(1) above and therefore continued to operate
in Solomon
Islands after independence. Learned Counsels
agree that the relevant Article in the Order is Article
29. This reads
as follows:
"(1) The right to
damages shall be extinguished if an action is not
brought within two years, reckoned
from the date of
arrival at the destination, or from the date on which
the aircraft ought to have arrived,
or from the date
on which the carriage stopped.
(2) The method of
calculating the period of limitation shall be
determined by the law of the court seised
of the
case."
Counsels agree that the date of
27th September, 1991 is the crucial date in the
calculation of the period of two
years referred to in
Article 29(1). Where Counsels diverge in their opinions
pertains to the construction of section
3(2), and section
39 of the Limitation Act, 1984, and their application to
Article 29(1) of the Order.
Section 3(2) of the Limitation
Act, 1984 reads:
"Save as otherwise
expressly provided in this Act, where any other law
prescribes a period of limitation
for any action .
that other law shall have effect as if for that
period of limitation, the prescribed period
were
substituted:
Provided that the provisions
of this Act shall not affect the period of limitation
prescribed by or under
the following enactments for
an action or arbitration
(a)…
(b)…
(c) the Carriage by
Air Act 1961 ;...."
Counsel for the Plaintiff
concedes that the proviso to section 3(2) above preserves
the two year limitation period
prescribed in Article
29(1) of the Order. In spite of this, he insists, that
the other provisions of the Limitation Act would still
apply. This, he submits would include section 39 of the
same Act. When section 39(1) is read together
with
section 3(2) of the same Act and Article 29(1) of the
Order, he submits that that section (s39(1)) gives the
Court power to direct that the proviso to section 3(2))
shall not apply where it would be equitable to do so and
where such provisions would cause prejudice to the
Plaintiff. If the Court accepts that it has the power to
do so (and he submits that the Court does have), then the
effect of such action would be to substitute the
limitation period of two years to one of six years. This
would then mean that the action of the Plaintiff filed on
12th December, 1995, four years after the date the cause
of action accrued, was still within the time limit of 6
years as prescribed by the Limitation Act.
Counsel for the Defendant, on
the other hand, submits that section 3(2) should be read
as having the effect of excluding
section 39 absolutely,
which would mean that the only period of limitation
applicable, is one of two years, as
prescribed in Article
29(1) of the Order. He also submits that sub-Article
29(2) of the Order should be read as
applying only to the
method of calculating that period of limitation, which in
this case, is the period of two
years, rather than giving
the impression that the court may have the power to
substitute another period of limitation,
as suggested by
the plaintiff.
The crucial issues before this
court therefore relate to the construction and effect of
sections 3(2) and 39(1)
of the Limitation Act. In section
3(2), the crucial part is the proviso, which purports to
exclude the provisions of the Limitation Act from
affecting the period of limitation prescribed under the
Carriage by Air Act 1961; ( Article 29(1) of the Order).
What is significant to note in that proviso, is the clear
and plain words used in expressly excluding, the
provisions of the Limitation Act, from affecting
the period of limitation prescribed under the
Carriage by Air Act 1961; which period is one of two
years. The clear effect and intent of the proviso to
section 3(2) therefore, was to preserve that period of
two years,
as the applicable period of limitation, and
not six years, as may have been the case had the
prescribed period
under the Limitation Act applied.
The issue before this court is
whether, in spite of those clear words in section 3(2),
the court still had the discretion
under section 39(1) to
direct that the proviso to section 3(2) may not apply so
as to allow the action of the plaintiff
which clearly,
had been time barred, to proceed. The plaintiff argues
that section 39 should be construed as giving
the court
power to do so, whilst the defendant argues to the
contrary.
After careful consideration of
the submissions eloquently presented before this court, I
make the following observations
and conclusions. First,
the provisions of the Limitation Act must not only be
read and applied in their proper context but also in
their order of priority. It seems to me that
the issues
for determination before this court, need not have arisen
had that order of priority been appreciated.
The manner
in which the plaintiff seeks to have section 39(1)
applied, with respect, is wrong. The starting point
is
not section 39(1), but section 3 of the Limitation Act.
Whilst I bear in mind that marginal notes do not form
part of the Act, they do assist in the interpretation and
construction of the relevant sections, and it is on that
basis, that they have been invoked here. It is important
to appreciate that section 3 is described in the marginal
note as: "Application of the Act." It sets
out
in other words, the manner in which the provisions of the
Act are to be applied. For instance, in section 3(1)(a),
it provides that the Act applies to all actions etc. When
comparison is made with section 39(1), it will be noted
that the marginal note reads: "Condonation by court
of the delay in actions." It is my respectful view
that there is a significant difference, in the
application of those two sections. The former has the
effect
of being applied as an over-riding section. It not
only deals with the extent and bounds of application of
the
Limitation Act, but at any one time, its effect
remains the same. Section 39 on the other hand does not
apply across the board
and at any one time. It only
applies, when a specific situation arises. This would
include where an action is commenced
after the limitation
period had lapsed. It is wrong therefore to construe
section 39 in such a way as to have the
effect of
altering the period of limitation prescribed by law. To
do so would be akin to giving the court legislative
powers. That cannot be permitted. The true effect of
section 39 in my humble opinion is that, it does not give
the court power to substitute one limitation period with
another, but rather, it allows an action to proceed on
equitable grounds, despite the fact that the period of
limitation may have lapse4. And the way, this is done, is
for the court to direct that those provisions which
prejudice the action of the plaintiff shall not apply.
Secondly, the court must give
effect to the plain and clear meaning of the words in the
proviso to section 3(2),
as intended by Parliament. Those
words do not need any elaborate interpretation. They
expressly state that the
provisions of the Limitation Act
shall not affect the limitation period prescribed in the
Carriage by Air Act 1961. Nothing could be any clearer.
Any suggestions therefore which may have the effect of
affecting that period would not be in accord with the
clear terms of the provisions of the Limitation Act and
what Parliament intended. If the submission of the
plaintiff is to be accepted, then the effect in the
present circumstances would be to have the period of two
years replaced by the period of six years. Such a result
would clearly amount to affecting the period of
limitation prescribed under the Carriage by Air Act 1961
That is clearly contrary to the express
terms of section
3(2) and therefore section 39 should not be construed in
that manner.
Further, the absurdity of the
result which may arise from the construction adopted by
the plaintiff is high-lighted,
if the action was
commenced not only after the two year period had lapsed,
but also after the period of six years.
In such
situations, any directions in respect of the proviso
would not make any difference, because the action
would
still be caught by the six year time limit. If however,
it was suggested that section 39 in such situation
would
enable the court to make directions in respect of section
3(2) as well, then we are faced with the ultimate
question as to what then is the period of limitation that
would have applied under the Carriage by Air Act 1961.
I
do not think it was ever intended that section 39 would
give the court power in those situations to be able to
change the period of limitation to suit each particular
case.
Thirdly, section 39 gives the
court power to make directions only in respect of "
the provisions of this Act
...". It did not include
words which may suggest that the provisions of other Acts
may be covered in the exercise
of that discretion. The
reference to the "provisions of this Act"
therefore must mean the Limitation Act. The power of the
court therefore to make directions, is to be confined by
law only to the provisions
of the Limitation Act and no other Act. The issue which
arises for determination from this is whether the proviso
to section 3(2) is
a provision which prejudices the
action of the plaintiff Unfortunately, I do not think so.
The effect of that proviso
is merely to qualify the
general application of the preceding provision; to wit,
that the period of limitation
prescribed under the
Carriage by Air Act 1961, was not to be affected by the
provisions of the Limitation Act. It did not say what the
period of limitation was, but to find out, we have to
look elsewhere, at the provisions
of the Carriage by Air
Act 1961. This, as agreed to by both parties, eventually
leads to the provisions of Article
29(1), which not only
contains the period of limitation, but also provided
expressly that: "The right to damages
shall be
extinguished if an action is not brought within two
years." Quite clearly therefore, the provisions
which prejudice the actions of the plaintiff cannot be
said to be contained in the proviso to section 3(2).
Rather, they can only be found in Article 29(1) of the
Order. This meant that even if the provisions of section
39 were to be applied in their proper context, the court
would still not have the power, to make any directions in
respect of Article 29(1) of the Order, in that the power
conferred on the court only extends to the provisions
of
the Limitation Act.
Fourthly, the distinction
brought out succinctly in the submissions of Mr.
Sullivan, between the extinguishment
of a right on one
hand, and that where the legal remedy only is barred, is
pertinent to the circumstances of this
case. The
Australian case, Australia and New Zealand Banking
Group Limited v. Douglas Morris Investments Pty. Ltd.
1992 1Qd.R. 478, referred to by learned Counsel in
support of his submissions, incidentally was a decision
of the Full Court of Appeal of Queensland, with members
consisting of, a former President and two current members
of the Court of Appeal of Solomon Islands. The judgment
of that court inter alia, recognised the distinction
between those two types of actions and pointed out that
the operation of each Statute of Limitation will depend
upon the particular terms of individual provisions.
When the provisions of the
Limitation Act are considered, it will be noted that they
do recognise that distinction. In Chapter V of that Act,
section 33
clearly states:
"Except as otherwise
provided in sections 34 to 36, but subject to section
39, the expiry of the prescribed
period in relation
to an action, .. bars the legal remedy by that action
... it does not bar the legal
right involved therein
....
The above provision clearly
recognised the distinction referred to by Mr. Sullivan in
his submissions as between
extinguishment and that where
the cause of action remained
but the bringing of the action was barred. The only
distinction in the above provision is that if section 39
is invoked then the court is given the discretion to
allow an action to proceed on equitable grounds. after
the limitation period had expired. However, where the
legal right had been extinguished, then section 39 cannot
give the court power to have that right resurrected; more
so when the provisions governing that right are not
contained in the Limitation Act, but in another provision
which does not come within the ambit of section 39.
Finally, the correct meaning of
Article 29(2) needs to be clarified. It is important to
bear in mind that Article
29(2) should not be read in
isolation, but in conjunction with Article 29(1);
otherwise the correct meaning is
distorted and lost (see
rule of construction, commonly known as "doctrine of
construction as a whole" in Statutory Interpretation
by Francis Bennion, 2nd Edition at Part XXV; Metropolitan
Gas Co. v. Federated Gas Employees' Industrial Union
[1925] HCA 5; (1924) 35 CLR 449 at 455; and Statutory Interpretation in
Australia, by D.C.Pearce 2nd Edition, page 31). As
correctly submitted by learned Counsel for the Defendant,
Article 29(2) operates to ensure that the minor
differences between various jurisdictions as to how the
period of limitation may be calculated is resolved in
accordance with the local law. Thus in Solomon Islands,
time begins to run not on the date of the event but the
following day (see section 25 of the Limitation Act, and
also Pacific Enterprises Limited v. Jeffrey Charles
Deacon Moore and Others, unreported, Appeal Case no. 2
of
1992), whilst in other jurisdictions it may be slightly
different. It is pertinent to note that Article 29(2)
refers only to the method of calculating the limitation
period, and does not affect the period itself. The period
of limitation as prescribed in Article 29(1) of the Order
and preserved by the proviso to section 3(2) of the
Limitation Act, is fixed; that is, at two years. Article
29(2) therefore refers to the method of calculation of
that period of
two years. It should not be construed as
giving the court power to substitute another period of
limitation, or
to vary the period of limitation
prescribed under Article 29(1). Otherwise it would have
the effect of making the
provisions of Article 29(1)
meaningless.
ORDERS OF
THE COURT
- The action of the Plaintiff
filed on 12 December 1995 is time barred pursuant
to Article 29(1) of
The Carriage By Air
(Application of Provisions) (Overseas Territories)
Order 1967, and accordingly
is dismissed.
- Costs against the
Plaintiff.
ALBERT PALMER,
Judge
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