IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No.08 OF 2000

BETWEEN:

THE VANUATU BREWING LTD
Appellant

AND:

JEFFREY ARU
Respondent

Coram: Acting Chief  Justice Vincent Lunabek
Mr. Justice Oliver Saksak
Mr. Justice Roger Coventry
Mr. Justice Daniel Fatiaki

Counsel: Mr. Mark Hurley  for the Appellant
Mr. Hillary Toa for the Respondent

Hearing: 26th October, 2000
Judgment:

JUDGMENT

The respondent applied on 26th June, 2000 seeking an Order that leave be granted to him to be heard in relation to his Writ Summons in respect of his claim for damages for breach of contract dated 24th March 1999. The respondent was employed by the appellant from 22 March 1990. On 6th December 1994 at the appellant’s premises the respondent sustained injuries to his right wrist. This occurred when the respondent tried to remove pieces of broken bottles from the conveyor belt. The injuries were stitched and the respondent was given two weeks to recover. He resumed work but found it difficult to use his right wrist due to the accident. He has experienced continued pain and discomfort and numbness to his right wrist. He was terminated from employment on 14th December 1998 after having worked for 8 years.

After his termination the respondent visited the Office of the Commissioner of Labour where he was advised to see the Public Solicitor about his Claims. On 11th January 1999 the respondent visited the Office of the Public Solicitor and met with Mr. Hillary Toa. Subsequent to this visit, a Writ of Summons was filed on behalf of the respondent. On 25th March, 1999 it seems that the respondent was not aware that his action was well outside of the period allowed under the Limitation Act (the Act). Only after the had filed their defence on 7th January 2000 and pleaded the defence of a time limitation that the respondent applied seeking leave to proceed out of time. The application was filed on 26th June, 2000 under Section 16 of the Act.

On 13th September, 2000 the Court heard the application and exercising its discretion under Section 15(3) granted leave to the respondent to proceed with his action. The appellant appeals against the Order of the primary Judge. The appellant contends that the primary Judge had misdirected himself by failing to apply Section 16(3) of the Act. This Section states:-

“16(3)	Where such an application is made after the commencement of a relevant action, the Court may grant leave in respect of any cause of action if, on the evidence adduced by or on behalf of the plaintiff, it appears to the Court that, if the like evidence are adduced, in that action, that evidence would in the absence of any evidence to the contrary, be sufficient-

(a)	to establish that cause of action, apart from any defence under subsection (1) of Section (3); and

(b)	to fulfil the requirements of subsection (3) of the Section 15 in relation to that cause of action;

and it also appears to the Court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such date as, apart from the last preceding section, to afford a defence under subsection (1) of Section (3).”

Because Section 16(3) makes cross-references to Section 15(3) it is necessary to set out that provision. It states:-

“15(3)	The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which-

(a)	either was after the end of the three year period relating to that cause of action or was not earlier than twelve months before the end of that period; and

(b)	in either case was a date not earlier than twelve months before the date on which the action was brought.”

The appellant poses two issues for the determination of this Court as follows:

(1)	Was it outside the knowledge actual or constructive that his (respondent) case of action had occurred on such a date to afford a defence under Section 3(1) of the Act?

(2)	Even if it was so outside the respondent’s knowledge should the Court disapply the limitation period? 

In relation to the first issue it was further contended by counsel for the appellant that not only did the primary Judge misdirect himself by failing to apply Section 16(3) to the facts and evidence before the Court, but that Section 16 had not previously been dealt with or considered by either the Courts below or by this Court. With respect to counsel the second limb of this argument cannot be sustained.
 
In Appeal Case No.2 of 1998 Raffey Taiwia and South Pacific Construction Ltd v. Robson Edward (unreported case) at pp. 10 and 11 the Court of Appeal considered both Sections 15 and 16 of the Act. Without repeating what the Court said it is my view that the conclusions reached by the Court in that case concerning Sections 15 and 16 are that Section 15 is the substantive provision specifying the requirements that must be satisfied. Section 16 on the other hand provides for procedures. For instance Section 16(1) states that for the purposes of Section 15 leave of the Court is necessary and shall be made ex-parte. Section 16(2) provides for the procedure of how an application can be made before the commencement of the relevant action. And section 16(3) provides for the procedure for an application where such application is made after the commencement of the relevant action.

But counsel for the appellant argued further that Section 16(3) is discretionary even if the respondent satisfies sub-paragraphs (a) and (b) of s.16(3). And he relied on the passage at p.10 where the Court of Appeal said “…the power to extend time is a discretionary power: See s.16(2) and (3). The Court may grant leave.”

And Mr. Hurley further relied on the conjunctive wording at the end of sub-paragraphs (a) and (b) of s.16(3) which reads: “…and it also appears to the Court that…”.

I have no difficulty with these submissions. It all boils down to discretion in my view. Where a Judge therefore grants leave exercising his discretion under Section 16(3), as here, regardless of the factual evidence before him being such that he should have exercised his discretion to refuse the application, but satisfying himself, that under section 15(3) a fact of a decisive character was at all times outside the knowledge (actual or constructive) of the plaintiff, and disallowing the limitation, that was a proper exercise of discretion of the judge in my view. I think this sufficiently answers the second issue.

But Mr. Hurley went further to submit that it ought to be the respondent’s legal advisers who must be taken to have known that the claim was out to time even if they were not aware of the provision of s.3(1) of the Act. He cited the case of Vulic v. Bilinsky [1983]2 NSWLR 472 at 483F where Miles J said:

“…and all solicitors in my view should prima facie be expected to know of the limitation periods imposed, with this rider: that if a solicitor inexperienced and lacking knowledge in the field accepts instructions to act for a person injured at work, he should inform the client of his lack of experience and give the client the alternative in instruct a solicitor who has a degree of experience and expertise in that field.”

On the fact before Miles J he found the solicitor who were non-specialist personal injury solicitors practising in New South Wales negligent for failing to observe the above-mentioned standards of care owed to his client.

In this case these were no facts and/or evidence, nor indeed an allegation before the primary Judge for consideration, therefore the case is of no relevance. Further, in omitting to raise the matter before the primary Judge, it is not now open to the appellant to do so.

Mr. Hurley also cited the case of Donovan v. Gwentoys [1990] 1 WLR 472 where the House of Lords held that in the exercise of the Court’s discretion to disapply the limitation period, the Court was entitled to have regard to whether the intended plaintiff’s claim against her solicitor was unanswerable. This in my view must be subject to the raising of an allegation and presenting the necessary facts and the necessary evidence in support of those facts in the first instance. For reasons first given, it is my view that this case also bears no relevance to the present case.

In the present and like cases, I think it is a pre-condition to the exercise of discretion under Section 16(3) of the Act that in order for an applicant to succeed, he must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. Duff v. Freijah [1982] 43 ALR 479 at 485.

The evidence in support of the application for leave to proceed with the action out of time shows two reasons:-

(a)	That the respondent did not have legal knowledge on how to conduct his claim within the time specified in the law and further that he did not know such time limits exist.

(b)	That he understood that as the appellant was aware of his injuries and being his employer he understood that his entitlement to compensation would be prepared and paid when they were ready to do so.

It was only later when he found out that the appellant would not pay him for his injuries that he started to take alternative measures. But the respondent had provided and shown acceptable explanation of the delay. And he was entitled to the grant of the extension. As regards prejudice, it is not only prejudice vis-à-vis the parties but against the wider public interest which should and must also be taken into consideration. With that in mind, in my views the primary Judge was correct in granting an extension of time to the respondent under Section 16(3) although that is not entirely clear from the Order.

On the issue of the respondent’s ignorance of the law I refer back to Appeal Case No.2 of 1998 in which this Court agreed that the authorities of In Re Harper v. National Coal Board [1973]1 QB 614 and Smith (and Dodd) v. Control Asbetos Co. Ltd [1973] AC 518 be applied in interpreting the Vanuatu legislation. In the former case Lord Denning in considering the issue of knowledge asked these simple questions:

“What is the knowledge which bars a man from getting leave? Is it his knowledge of the facts? Or his knowledge of the law?”

Lord Denning went on to say at page 620:

“According to one point of view, time begins to run against a man as soon as he acquires knowledge of all the material facts, even though he does not know the law and does not know that he has a worthwhile cause of action. According to the other point of view, time does not begin to run against him until he acquires knowledge, not only of the material facts, but also that he has a worthwhile cause of action.”

In the latter case, Lord Reid after criticising the obscurity of the Limitation Act 1963 (UK) at page 530 when referring to provisions which find expression in ss. 20(1)(b) and 21 of the Vanuatu Act said:-

“In order to avoid constructive knowledge the plaintiff must have taken all such actions as it was reasonable for him to find out. I agree with the view expressed in the Court of Appeal that the test is subjective. We are not concerned with ‘the reasonable man’. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.”

Lord Reid concluded that Parliament intended that a prospective plaintiff’s ignorance of his legal rights should be treated in the same way as his ignorance of any other material fact. His ignorance of the law was a decisive fact, and accordingly the legislation empowered an extension of time.

Here the respondent had knowledge of the facts but not the law. He had an expectation of being compensated and only when that expectation did not eventuate that the plaintiff took steps to obtain advices. But these were well out of time. Nevertheless on the authorities of Re Harper and Smith the plaintiff being uneducated as he was although ignorance of the law, I am satisfied that Parliament intended that his ignorance of his legal rights be treated in the same way as his ignorance of any other material fact.  And I conclude that his ignorance of the law was a decisive fact within the meaning of Section 15(3) and Section 16(3), 20 and 21 of the Vanuatu Act.

In our view there is no need to interfere with the Order of the primary Judge. The appellant will pay the respondent’s costs of the appeal.

DATED at PORT-VILA, this ……… DAY of OCTOBER, 2000

BY THE COURT

V. LUNABEK ACJ
O. SAKSAK   J
R. J. COVENTRY  J
D. FATIAKI   J