Azzam v Commonwealth of Australia
[2019] VSC 484
•22 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2018 00967
| AHMAD AZZAM | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March and 29 April 2019 |
DATE OF JUDGMENT: | 22 July 2019 |
CASE MAY BE CITED AS: | Azzam v Commonwealth of Australia |
MEDIUM NEUTRAL CITATION: | [2019] VSC 484 |
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LIMITATION OF ACTIONS – Application for extension of time – Stateless Palestinian alleging psychiatric injury in immigration detention – Delay of 18 years – Whether under disability – Whether of unsound mind – Whether just and reasonable to grant extension – Application allowed – Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Inc v ACD (2016) 258 CLR 134; Axford v Gray [2013] VSC 664 considered – Limitation of Actions Act 1958 ss 27J and 27K.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Burnside QC with Mr A Yuile | De Marchi & Associates |
| For the Defendant | Mr R Knowles | Maddocks |
HER HONOUR:
Introduction
On 13 March 2018 the plaintiff, Ahmad Azzam, issued a writ claiming negligence against the defendant, the Commonwealth of Australia, for psychiatric injuries allegedly suffered in mandatory immigration detention in late 1999 or early 2000. The period between the alleged injury and the commencement of proceedings is therefore in the vicinity of 18 years.
The plaintiff makes an application pursuant the Limitations of Actions Act 1958 (‘the Act’) under s 27J and, in the alternative, under s 27K. In relation to s 27J the plaintiff must establish that the primary limitation period has been suspended by reason of legal incapacity. If s 27J does not apply, the plaintiff asserts that he is otherwise entitled to an extension of the limitation period under s 27K, which gives the Court a discretion to extend time when it is just and reasonable to do so.
Background circumstances[1]
[1]The factual description that follows is drawn from the three affidavits tendered in this application: those of Ahmad Azzam, sworn 11 October 2018 and 21 November 2018, and that of Siobhan Anne Sheppard sworn 12 November 2018.
The plaintiff was born in Gaza, Palestine, on 4 February 1967. That year, because of the war between Israel and Egypt, his family were displaced to Jordan. In 1968 they relocated to Saudi Arabia. In 1994 the plaintiff gained employment as a computer specialist for a Japanese company in Saudi Arabia.
On 16 October 1996 the plaintiff entered Australia on a three-month tourist visa which was applied to his temporary Jordanian passport. He had received a letter inviting him to attend a computer exhibition at the Melbourne Exhibition Centre.
On 9 January 1997 the plaintiff applied for a protection visa on the basis that he was a stateless person and feared returning to Saudi Arabia. He held a re-entry visa to Saudi Arabia, which was due to expire in mid-September 1997, after which he would have no way of returning to Saudi Arabia. The plaintiff deposes that he explained this to immigration officials and asked that his case be decided quickly.
In April 1998 the plaintiff was interviewed in relation to his application for a protection visa. On 12 June 1998 he was informed that his application had been refused. On 14 July 1998 the plaintiff applied to the then Refugee Review Tribunal (‘the tribunal’) for a review of this decision. On 2 October 1998 the tribunal affirmed the decision to refuse him a protection visa.
On 19 October 1998 the plaintiff requested under s 417 of the Migration Act 1958 (Cth) (‘the Migration Act’) that the Minister for Immigration and Multicultural Affairs (‘the Minister’) substitute for the decision of the tribunal a decision more favourable to the plaintiff. On 1 March 1999 that request was refused.
On 1 March 1999 the plaintiff’s bridging visa expired and he was taken into immigration detention pursuant to s 189(1) of the Migration Act. He was transferred to the Maribyrnong Immigration Detention Centre (‘Maribyrnong centre’). The plaintiff was informed that immigration officials were going to approach Palestine, Israel, Jordan, Egypt and Saudi Arabia to see if any of those countries would accept his deportation. None of those approaches were successful.
On 31 March 1999 the plaintiff made a second s 417 request to the Minister. However, on 21 May 1999, he withdrew this request and asked to be removed to Palestine.
On 13 July 1999 the plaintiff was allegedly assaulted by a detention officer named Mick Austin. He claims Mr Austin threatened to kill him and later assaulted him in plain view of other detainees. That same day the plaintiff wrote a letter of complaint to the manager of the security company that employed Mr Austin.[2] The plaintiff later received a letter from Mr Austin dated 21 August 1999 apologising for his behaviour and acknowledging that he had acted in an inappropriate manner.[3]
[2]Affidavit of Ahmad Azzam sworn 11 October 2018 (‘Azzam affidavit’), exhibit AA-2.
[3]Ibid, exhibit AA-3.
On 22 July 1999 the plaintiff was transferred from the Maribyrnong centre to the Williamstown police station. He was accused of partaking in a violent incident at the Maribyrnong centre. The plaintiff deposes that he was attempting to diffuse the situation by interpreting between the guards and detainees. The plaintiff alleges that during this incident he was again assaulted by detention officers such that his neck and shoulder were injured.
On 23 July 1999 the plaintiff was transferred to Port Phillip Prison.[4] A week later he was transferred to the psychiatric unit and prescribed anti-depressants. He deposes that this was because he was suffering from suicidal ideation. He was transferred between mainstream prison and the psychiatric unit several times in the months that followed.
[4]Each of the facilities in which the plaintiff subsequently found himself was a lawful place of immigration detention as defined by s 5 of the Migration Act 1958 (Cth).
On 11 November 1999 the plaintiff was transferred to the acute assessment unit at the Melbourne Assessment Prison. He was assessed by a psychiatrist, Dr Mark Taylor, who recommended that he be transferred to the Rosanna Forensic Psychiatric Centre (‘Rosanna centre’). He was certified under s 16(3)(b) of the Mental Health Act 1986 and on 17 November 1999 admitted to the Rosanna centre under a restricted hospital order as a security patient.
On 19 November 1999 the plaintiff was assessed by Dr Douglas Bell, consultant psychiatrist, at the Rosanna centre. On 6 December 1999 Dr Bell wrote to the compliance manager at the Department of Immigration and Multicultural Affairs (‘the Department’) stating:
[The plaintiff] was referred from the Melbourne Assessment Prison because of concern by psychiatric staff that he was showing evidence of depression, with the possibility of him having a psychotic illness …
I assessed him as being moderately severely depressed for psychologically comprehensible reasons, associated with a degree of affective constriction, difficulty in concentration, and persecutory ideation consistent with his background history. He was not showing evidence of psychosis, although I formed the view that he was at increased risk of such an illness developing if his circumstances deteriorate.
Over this last three weeks, [the plaintiff] has been provided with psychological support with an overall significant brightening of his mood in this hospital environment, which he finds much less onerous than prison, although he continues to be very distressed by his continuing circumstances of detention and uncertainty regarding his future … In my opinion, there is a significant risk that this state would escalate further, including the possibility of suicide, if his circumstances of detention were to become more onerous and overwhelming for him, as would be the case if he were returned to prison.
For this reason, I would respectfully suggest that if some alternative arrangement to detention in prison could be arranged this would, from the perspective of [the plaintiff’s] mental health, be clinically appropriate and desirable. You asked of me whether [the plaintiff] constitutes a threat to the safety of others if he were to be placed in the general community. [The plaintiff] does not suffer from a severe mental illness, for example psychosis, that would place him at increased risk of interpersonal violence. I am unaware of any other history of violence, other than the account of the disturbance at the detention centre and any decision regarding his appropriate placement should not be made on the basis that he constitutes, by virtue of mental illness, a risk to the safety of others.[5]
As the above paragraphs indicate, Dr Bell formed the view that the plaintiff was not suffering from a severe mental illness such as psychosis, which would have made him a risk to the safety of others. He also made a general observation that the plaintiff’s mental health would be optimised by placement in the least restrictive environment and ‘expeditious resolution to his current predicament’.[6]
[5]Azzam affidavit [19], exhibit AA-6 (emphasis added).
[6]Ibid.
On 14 December 1999, while still detained at the Rosanna centre, the plaintiff made a third s 417 request to the Minister. That request was refused on 8 September 2000.
On 31 December 1999 the plaintiff was transferred back to the Melbourne Assessment Prison. The plaintiff claims that on 6 January 2000 and again on 6 May 2000 he was assaulted by prison guards.
On 4 June 2000 prison guards discovered the plaintiff preparing a suicide attempt. He was transferred back to the acute assessment unit and assessed by Professor Paul Mullen, consultant psychiatrist, who prepared a report dated 11 July 2000. That report states:
[The plaintiff], since entering the prison system, has been in a state of considerable distress and agitation … He was transferred from prison to hospital because of the fear of imminent suicidal behaviour. In hospital he improved with support and antidepressant medication. His state, however, rapidly deteriorated once he was returned to the prison situation …
[The plaintiff] remains in a distressed and despairing state. He presents a high risk of suicidal behaviour. This combination results in [the plaintiff] spending his time not in the general prison system but in the restrictive environment of the acute assessment unit of the prison’s mental health service. This is an unacceptable situation which one cannot but fear if it goes on much longer will result in [the plaintiff] either damaging himself seriously or succeeding in killing himself.[7]
[7]Ibid [23], exhibit AA-7 [24], exhibit AA8.
On 1 August 2000 Mr Kon Karapanagiotidis, director of the Human Rights Centre for Mental Health, wrote to the Department stating:
I have also been attending [the plaintiff] on a weekly basis in prison for the past month in my capacity as a social worker and counsellor. I share the exact same concerns as Dr Mullen and firmly believe [the plaintiff] remains a high suicide risk …
I urge the Department to take positive and immediate action and to have [the plaintiff] transferred to a more appropriate environment, namely a psychiatric hospital or in the community, where he can receive far more appropriate care and treatment. I submit that it is grossly negligent for the [Department] to fail to take action in this matter.[8]
[8]Ibid [25], exhibit AA-9 (emphasis added).
On 14 September 2000 the plaintiff was granted a bridging visa and released from immigration detention.[9] On 5 January 2001 the Minister exercised the power under
s 417 of the Migration Act to substitute, for the decision of the tribunal, a decision to grant the plaintiff a temporary humanitarian visa.[9]Affidavit of Siobhan Anne Sheppard sworn 12 November 2018 (‘Sheppard affidavit’) [8(w)], exhibit SAS-1.
The plaintiff deposes to having worked at Werribee Islamic College (now Al-Taqwa College) from January 2002 until November 2003. He worked in the school library and then assisted with information technology. He developed and maintained the school’s website. He also put in a purchasing system and was awarded an increase in salary in recognition of his efforts.[10] The plaintiff deposes that: ‘working was challenging for me as I was struggling with my mental health after my experience in detention. As I was struggling to manage my work and my mental health problems I did not have the time nor the inclination to pursue legal remedies’.[11]
[10]Azzam affidavit, exhibit AA-13, 5 [17].
[11]Ibid [27.4].
On 2 January 2003 the plaintiff applied for permanent residency. On 9 September 2003 the Minister wrote to the plaintiff, via David Manne of the Refugee and Immigration Legal Centre, advising that he had decided to intervene in the plaintiff’s case on public interest grounds. The Minister stated he would be granting permanent residency to the plaintiff and his family. On 1 October 2003 the plaintiff’s wife and children arrived in Australia from Saudi Arabia.
On 31 August 2006 the plaintiff and his wife and children acquired Australian citizenship. Throughout 2006 and 2007 the plaintiff undertook a TAFE course in multimedia. He completed this and attained a number of high distinctions and distinctions.[12]
[12]Azzam affidavit, exhibit AA-13, 5 [17].
In late 2008 the plaintiff approached Maurice Blackburn about making a personal injuries claim against the defendant. Maurice Blackburn wrote to the plaintiff’s treating psychiatrist, Dr John F Gill, who had been seeing the plaintiff at Foundation House since 30 June 2008. Dr Gill prepared a report dated 28 April 2009 in which he states, inter alia, that the plaintiff had been referred to Foundation House in 2006 and assessed by Dr Rosemary Schwartz. Dr Gill notes that Dr Schwartz assessed the plaintiff as suffering from depression, severe anxiety and paranoid symptoms, and prescribed an anti-psychotic with good results. The plaintiff then returned to Foundation House in 2008 and was assessed by Dr Gill. Dr Gill noted that the plaintiff’s deteriorating mental state, with escalating depression and paranoia, had precipitated his referral. Although Dr Gill was unable to obtain a comprehensive history, because the plaintiff was in a disturbed mental state, he obtained this information in subsequent sessions.
Dr Gill opines in his report that, although the plaintiff’s mental state had stabilised in the year he had been treating him, the plaintiff continued to present with persecutory beliefs and feelings. The plaintiff’s mood remained significantly depressed. Dr Gill observed that an ongoing source of the plaintiff’s distress was ‘uncertainty about whether he would receive appropriate justice in terms of apologies and compensation for what he had suffered during the period of his immigration detention and imprisonment’.[13] Dr Gill further opined that the plaintiff will likely need to continue taking medication ‘indefinitely’ and, although ‘able to maintain the normal activities of daily living’, will be ‘limited by very low stress tolerance which will impair the quality of his family and interpersonal relationships and his capacity to progress with a career and employment’.[14]
[13]Azzam affidavit, exhibit AA-11, 4.
[14]Ibid, exhibit AA-11, 5.
On 6 March 2009 Maurice Blackburn wrote to the defendant stating that they acted for the plaintiff in respect of a personal injuries claim arising out of his immigration detention. The letter set out a detailed history of the plaintiff’s detention and medical conditions and then alleged that:
The Department’s treatment of [the plaintiff] was negligent and [the plaintiff] has suffered damage as a direct consequence of the failure of the Department to:
(1) promptly act on his request for deportation; and
(2)promptly act on the advice of the treating medical practitioners that [the plaintiff] not be detained in prison.
[The plaintiff] is currently suffering from post-traumatic stress disorder and depression. Since being released from detention he has been unfit for work. His treating psychiatrist considers that he will not recover for a significant period of time if at all.
We currently hold instructions to institute proceedings against the Department but it is our client’s preference that this matter be settled without recourse to litigation. We therefore invite you to enter into immediate negotiations in relation to our client’s claim.[15]
[15]Sheppard affidavit [9], exhibit SAS-1, 3.
From October 2009 to February 2010 the plaintiff underwent medico-legal examinations and expert reports were exchanged between the solicitors for the plaintiff and the defendant.
On 11 May 2010 Maurice Blackburn provided the defendant with a document entitled ‘summary of claim’ which again set out a history of the plaintiff’s detention and medical conditions and claimed that he was totally incapacitated for work. The document also provided an opinion on liability and a detailed assessment of what the plaintiff claimed under several heads of damage. The document was signed by Tim Tobin SC and Maria Palipasidis of counsel.[16]
[16]Sheppard affidavit [12], exhibit SAS-2.
On 30 June 2010 the plaintiff and the defendant and their respective legal representatives conducted a mediation in relation to the plaintiff’s personal injuries claim. Mr Tobin SC and Ms Palipasidis were in attendance. The matter did not resolve. The plaintiff deposes that, after the mediation, Maurice Blackburn advised him ‘they would no longer act for him unless [he] could pay for their fees’.[17] He further deposes that: ‘as I was unemployed I did not have the necessary funding to continue my legal action. I also did not feel capable of running the case on my own. Furthermore, by this time, I was divorced and estranged from my wife and children. I did not have anyone capable of providing me the financial support necessary to continue my claim’.[18] The plaintiff did not subsequently initiate proceedings against the defendant.
[17]Azzam affidavit [27.14].
[18]Ibid [27.15].
By August 2010 the plaintiff’s relationship with his wife had deteriorated and they were separated under the same roof. She later moved out and they were divorced.
On 31 January 2011 the plaintiff lodged a claim with the then Department of Immigration and Citizenship for compensation under the Compensation for Detriment caused by Defective Administration scheme (‘CDDA scheme’). The plaintiff’s claim was, from at least April 2012, managed by his current solicitors, De Marchi & Associates.
On 4 August 2011 the plaintiff applied for a disability pension. His application was refused by Centrelink. The plaintiff instructed De Marchi & Associates to appeal this decision in the Social Security Appeals Tribunal (‘SSAT’). From what I can gather, the plaintiff’s application was rejected by Centrelink on the basis that his continuing inability to work, in the form of his psychiatric condition, arose prior to him becoming an Australian resident, which disqualified him under s 94(e) of the Social Security Act 1991 (Cth).[19]
[19]Azzam affidavit [27.16], exhibit AA-13, 3 [10]. There is a carve out for persons who have been an Australian resident for 10 years or more, or who have a qualifying residence exemption, but the plaintiff had neither of these things.
In 2011 the plaintiff was referred to a psychiatrist, Dr Samir Ibrahim, whose report dated 22 November 2017 described the plaintiff’s psychiatric presentation at that time. Dr Ibrahim initially treated the plaintiff from 2011 until 2014 and then again from June 2017. The plaintiff reported symptoms of ‘post traumatic stress disorder, paranoid psychosis, and major depression’.[20] The plaintiff was said to be ‘so focused on his legal rights, namely: to be offered an apology and compensation, get the disability pension, and get his family from overseas’. Dr Ibrahim considered that it was hard to ascertain the exact nature of the plaintiff’s thinking process, ‘for he appear[ed] vague at times, with long and unclear answers and over inclusive details’. In response to the question of whether the plaintiff’s condition had impacted his ability to seek help, Dr Ibrahim concluded:
[the plaintiff] is vague at times, and he is very fixated on the symptoms of paranoid interpretation and misperception of surrounding stimuli. This can affect his ability to be focussed and hence to comprehend his rights.[21]
[20]Azzam Affidavit, exhibit AA-12.
[21]Ibid.
On 22 June 2012 the SSAT overturned the decision of Centrelink and granted the plaintiff’s disability pension. The reasons for the decision traverse the plaintiff’s history in some detail and note that the plaintiff gave oral evidence in support of his appeal. The reasons relevantly state that:
The employment information from Werribee College clearly shows that [the plaintiff] was able to work after the date he was granted permanent residency. He was also able to function effectively as a student in 2006 and 2007. The evidence suggests a deterioration in 2008 when [the plaintiff] could no longer be managed with antidepressants prescribed by a general practitioner, but required specialist psychiatric care and treatment with Seroquel. The evidence indicates that he has remained very unwell, from a psychiatric point of view, since this time and has developed an additional physical impairment.
The Tribunal is satisfied, on the basis of the evidence provided that [the plaintiff’s] continuing inability to work from his psychiatric impairment first arose after the date he obtained permanent residency, and is most likely to have arisen in 2008.[22]
The ‘additional physical impairment’ mentioned above is back problems, which the plaintiff told the SSAT he developed in 2008 and was causing right-sided sciatica and leg numbness.[23]
[22]Azzam affidavit [27.16], exhibit AA-13, 5–6 [18]–[19].
[23]Ibid, exhibit AA-13, 5 [16].
On 29 August 2012, approximately 19 months after it was lodged, the defendant wrote to the plaintiff’s solicitors and provided a preliminary assessment of the merits of his CDDA claim.[24] The letter stated that the CDDA scheme is an ‘administrative scheme to enable Commonwealth agencies to compensate persons who have suffered detriment as a result of an agency’s defective actions or inaction and who have no other avenues of redress’.[25] The letter noted that, as a preliminary matter, the plaintiff’s CDDA claim was only able to be assessed because the plaintiff had no other means of legal recourse:
We note that a mediation took place on 30 June 2010 regarding a legal claim [the plaintiff] was planning to make against the Commonwealth. At mediation the Department put to [the plaintiff] that no offer would be made because there were strong concerns about the limitation period, as well as the belief that liability could not be established. It is on these grounds that we were able to accept this CDDA claim, as a court is unlikely to find any liability. A CDDA claim cannot be assessed if there is legal liability under the finance circular 2009/09 (the guidelines).[26]
The letter then set out the history of this matter in some detail and tentatively concluded that, while the plaintiff’s claim for economic loss was assessable, his claim for pain and suffering was not. The plaintiff and his solicitors were invited to comment within 28 days and put on notice that, if no comment was forthcoming, the defendant would make a binding decision on the information provided.
[24]Ibid, [27.18], exhibit AA-15.
[25]Ibid, exhibit AA-15, 1.
[26]Ibid.
On 26 September 2012 De Marchi & Associates replied to the defendant’s letter of 29 August 2012. They had received detailed instructions from the plaintiff and enclosed a document entitled ‘[The plaintiff’s] Account of Circumstances Supporting his Claim for Compensation.’ That document, which ran to some nine pages and was signed by the plaintiff, remains the most detailed account of the plaintiff’s history and the incidents in immigration detention which he alleges amounted to negligence. The document concludes as follows:
It is clear from the above that the delay in processing my application and the decision to incarcerate me was wrong and inhumane and that I suffered extensively by the actions of [the Department], [the company operating the Maribyrnong centre], the correction guards employed and their illegal and inhuman conduct against me tolerated by the authorities.
My inability to be employed and to earn remuneration is directly related to the treatment that I received and the administrative errors of [the Department], [the company operating the Maribyrnong centre] and its agents.[27]
[27]Sheppard affidavit, exhibit SAS-4, 14.
On 21 February 2013 the defendant wrote to the plaintiff’s solicitors advising that the plaintiff’s CDDA claim had been refused.[28] It determined that there had been no defective administration and hence no compensation was payable. The plaintiff was at this time in Egypt visiting his sick mother. In September 2013 he returned to Australia and instructed his solicitors to make a complaint to the Commonwealth Ombudsman on grounds of procedural fairness. He alleged he had not been given an opportunity to respond to the defendant’s submissions in relation to his CDDA claim.
[28]Azzam affidavit [27.20], exhibit AA-16.
On 6 December 2013 the Commonwealth Ombudsman wrote to De Marchi & Associates advising that it was investigating his complaint. Then, on 3 February 2014, the defendant wrote to the plaintiff advising that it had become aware of his complaint to the Commonwealth Ombudsman and inviting him to make any further submissions within 28 days.[29] The plaintiff’s solicitors provided further submissions by way of letter dated 12 March 2014. The process was then repeated—the defendant provided a preliminary assessment on 31 October 2014 and the plaintiff’s solicitors provided further submissions on 3 February 2015—after which there was a period of delay. In April, July, September and October 2015 the plaintiff’s solicitors requested an update from the defendant. On each occasion the defendant responded that it did not know when the Minister would be available to review the plaintiff’s CDDA claim.
[29]Azzam affidavit [27.21]–[27.22], exhibit AA-17.
On 23 October 2015, frustrated by the delay, the plaintiff dismissed De Marchi & Associates and instructed a new firm, Pasha Legal, to act for him. On 9 December 2015 the defendant wrote to the plaintiff advising that his CDDA claim had been refused. It once again determined that there had been no defective administration and hence no compensation was payable.
In May 2016 the plaintiff returned to De Marchi & Associates and instructed them to write to the Commonwealth Ombudsman to seek review of the CDDA decision. The Ombudsman declined to investigate the complaint further. In March 2017 the plaintiff instructed De Marchi & Associates to write to the defendant requesting a review of the CDDA decision. His solicitors sent letters dated 12 April 2017 and 12 May 2017 but did not receive a reply.
On or around August 2017 the plaintiff contacted Julian Burnside QC directly. He explained his situation and asked for assistance. Mr Burnside asked that the plaintiff’s solicitors make a formal request for his services in writing. This was done on 5 September 2017. Mr Burnside reviewed several documents and provided a written advice on or around 14 November 2017. He requested that junior counsel be engaged to assist.
Following the appointment of Andrew Yuile as junior counsel, the plaintiff’s solicitors prepared a writ and statement of claim, which were filed on 13 March 2018. As the plaintiff lacks the means to pay the filing fee, his solicitors elected to pay it on his behalf. Mr Yuile’s retainer is on a conditional basis; Mr Burnside is acting on a pro bono basis.
Applicable principles
The statutory regime governing the instant application is set out in Part IIA of the Act. Relevantly, s 27D states:
(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
(2) This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.
Section 27E sets out the limitation period applicable to a cause of action brought by a person who was ‘under a disability’ at the time of act or omission alleged to have caused the personal injury. Relevantly, subsection (2) states:
(2) An action in respect of a cause of action to which this section applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a) the period of 6 years from the date on which the cause of action is discoverable by the plaintiff;
(b) the period of 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned.
Section 3(2) of the Act provides that a person shall be deemed to be under a disability while they are of ‘unsound mind’. Subsection (3) adds that:
Without limiting the meaning of unsound mind a person is conclusively presumed to be of unsound mind if the person is a protected person within the meaning of section 85 of the Guardianship and Administration Act 1986 or a represented person within the meaning of the Guardianship and Administration Act 1986.
The Act does not otherwise define the phrase ‘unsound mind’. However, for present purposes, it may be accepted that a person is of unsound mind if they are by reason of mental illness incapable of managing their affairs as a reasonable person would do.[30] The ‘affairs’ that are relevant here are the bringing of proceedings.[31]
[30]See Lovejoy v Carp [1999] VSCA 167 [26] (‘Lovejoy’); See also Kirby v Leather (1965) 2 QB 367, 383–4.
[31]Lovejoy [1999] VSCA 167 [26].
Section 27F provides that a cause of action will be deemed ‘discoverable’ as follows:
(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a) the fact that the death or personal injury concerned has occurred;
(b) the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
The parties made submissions on both s 27J and s 27K of the Act.[32] The two sections, although both coming within Part IIA of the Act, are in separate divisions.
Suspension of the limitation period – s 27J
[32]At the hearing of this application, on 26 March 2019, I asked the parties to address me on s 27J of the Act and what work, if any, it has to do in the plaintiff’s case. The parties prepared brief written submissions and returned for a further half-day of oral argument on 29 April 2019.
Section 27J provides:
Effect of legal incapacity on limitation period
(1) A person is under a legal incapacity for the purposes of this section while the person—
(a) is a minor, but not while the minor is in the custody of a capable parent or guardian; or
(b) is an incapacitated person for a continuous period of 28 days or more, but not while—
(i) the person is a represented person; and
(ii) the guardian of the person is authorised by law to bring actions in the person's name.
(2) If a person has a cause of action for which a period of limitation has commenced to run and the person is under a legal incapacity, the running of the period of limitation is suspended for the duration of the legal incapacity.
(3) In determining when a cause of action is discoverable by a person who is a minor or an incapacitated person and who is not under a legal incapacity, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the represented person are deemed to be facts that are known or ought to be known by the minor or incapacitated person.
(4) In this section—
…
guardian, in relation to a represented person, means—
(a) the guardian or administrator of that person under the Guardianship and Administration Act 1986; or
(b) in the case of a protected person, State Trustees Limited;
incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of which the question arises, by reason of any disease or any impairment of his or her physical or mental condition;
represented person means—
(a) represented person within the meaning of the Guardianship and Administration Act 1986; or
(b) protected person within the meaning of section 85 of that Act.
The provision falls within Div 2 of Part IIA, titled ‘Limitation period for personal injury actions’. It deems the suspension of the running of a limitation period where a person is under a legal incapacity and is not a represented person in the sense that their affairs are managed by a litigation guardian, appointed administrator or, if they are a minor, their parent or guardian. The key formulation for present purposes is that of an ‘incapacitated person’. The statutory meaning given to that phrase is a person who is ‘incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of which the question arises.’ Such language suggests a high degree of limitation. The Macquarie dictionary relevantly defines ‘incapable of’ as not having the capacity, and ‘substantially’ as ‘of ample or considerable amount’.
Section 27J was considered by Hoeben J in Plowman v Sisters of St John of God Inc.[33] That case also involved an application for extension of time under s 27K. The plaintiff unsuccessfully argued that the limitation period should be deemed to have been suspended for the period in which she was an incapacitated minor, despite her having a capable parent or guardian at all times. Hoeben J viewed s 27J as being directed toward a particularly vulnerable group of people, consisting of: ‘persons who have a disability, but in the case of minors, do not have a parent or guardian and, in the case of persons of unsound mind, have no legal representative responsible for them’. After finding that s 27J did not apply, his Honour turned to s 27K and decided that, in all the circumstances, it would be just and reasonable to exercise the discretion to grant an extension of the applicable limitation period.
[33][2012] NSWSC 376 (‘Plowman’).
Given the limited consideration of s 27J of the Act, it is of some assistance to consider analogous provisions in other jurisdictions. The meaning given to ‘incapacitated person’ in s 27J mirrors the language used in s 50F of the Limitations Act 1969 (NSW). That section, which similarly relates to personal injury actions, suspends the limitation period while a person is ‘under a disability’. A person is considered to be ‘under a disability’ if they are a minor, without a capable parent or guardian, or an ‘incapacitated person’ who is not a protected person. The phrase ‘incapacitated person’ is stated to mean:
a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(a) any disease or any impairment of his or her physical or mental condition, or
(b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or
(c) war or warlike operations or circumstances arising out of war or warlike operations.[34]
[34]See generally Brilley v Presidential SecurityServices of Australia Pty Ltd [2007] NSWDC 284.
Section 50F operates to the exclusion of s 52, the suspension provision relating to disabilities in cases other than personal injury actions in the Limitations Act 1969 (NSW). Of note, s 52 adopts the phrase ‘person is under a disability’, and in s 11(3), a ‘person under a disability’ is defined as a person under the age of eighteen years, or:
…
(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(i)any disease or any impairment of his or her physical or mental condition,
(ii)restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958 …
The New South Wales Court of Appeal has considered s 52 on several occasions,[35] approving the following approach of Slattery J in Kotulski v Attard:
[35]See, eg, State of New South Wales v Bennie [2005] NSWCA 172; Guthrie v Spence (2009) 78 NSWLR 225.
Section 11(3)(b) is concerned with two classes of person:
‘One who is incapable’ (which conveys the concept of total inability) and the other 'substantially impeded in the management of his affairs in relation to the cause of action ... by reason of disease or impairment or physical or mental condition.’
According to the Shorter Oxford Dictionary to ‘impede’ means to obstruct in progress or action; to hinder or to stand in the way of. ‘Substantially’, in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. ‘Mental condition’ which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.
It seems to me that the expression ‘mental condition’ is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words “unsound mind”, which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said:
So here it seems to me in this statute a person is ‘of unsound mind’ when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.
I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action...[36]
[36][1981] 1 NSWLR 115, 117–118 (‘Kotulski’).
At issue in Kotulski was whether the plaintiff was ‘under a disability’ for the purposes of 11(3)(b). She had filed a writ seeking damages six years one month and eleven days after her husband’s death in a traffic accident. Slattery J found that, although the plaintiff had been able to give instructions regarding a Coroner’s inquest, a worker’s compensation claim, in preparing the deceased’s estate and in seeking counsel’s advice, she suffered depression for at least 10 months and, as such, was substantially impaired in the management of her legal affairs.[37] Evidence before the court regarding the management of the earlier legal matters indicated that the plaintiff had difficulty concentrating and giving instructions, would cry uncontrollably, and did not recall certain events.
[37]Ibid 122.
In Guthrie v Spence[38] Campbell JA (Basten and Handley JJA agreeing) built upon the approach of Slattery J. There, the New South Wales Court of Appeal upheld the decision of the primary judge, who found that the plaintiff’s claims of negligence and assault were not statute-barred due to the application of s 11(3)(b). Regarding the word ‘substantially’, Campbell JA stated:
While I would not disagree with Slattery J’s view in Kotulski at 117 that in section 11(3)(b) ‘substantially’ ‘does not mean trivial or minimal, neither does it mean total’, that still leaves open a wide range within which ‘substantially impeded’ might fall. I do not read Slattery J as saying that falling anywhere within that range would suffice.
…
These cases illustrate how there is always a judgment involved in deciding whether some quality ‘substantially’ exists, and that the process of forming that judgment is dependent on the purpose for which the judgment is to be made…
In the present context, whether the plaintiff has been ‘substantially’ impeded is decided bearing in mind the context and purpose for which the court is called on to make the decision. It is for the purpose of deciding whether an as-of-right suspension of a limitation period will arise. It needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period.
…
It is also readily understandable policy that not every matter that substantially impeded the plaintiff in dealing with the practical matters that needed to be attended to enable the action to be brought in time should justify an extension of time. Bad legal advice, an inattentive lawyer, or having other pressing family or business commitments could each provide a reason why the plaintiff was substantially impeded in bringing an action in time, but it would be understandable legislative policy not to allow those to provide a reason for automatic suspension of a limitation period. The same might also be the case for significant poverty. There may be a measure of arbitrariness in the circumstances listed in subparas (i)–(iv) as adequate ones to provide the reason why a substantial impediment in management of the relevant affairs is treated as suspending a limitation period, but that is the choice that the legislature has made.[39]
[38](2009) 78 NSWLR 225 (‘Guthrie’).
[39]Guthrie (2009) 78 NSWLR 225, 250–251, 253, [144], [151], [161] (emphasis added).
On the role of ‘reasonableness’, Campbell JA explained that although it might be of assistance to consider how a reasonable person would have acted, it is not a relevant matter ‘to be considered in the sense that proper consideration of the question would require the ‘reasonableness’ test to be considered’.[40] Campbell JA also construed ‘affairs’, in relation to the cause of action, as having a shade of meaning that places particular weight on the activities in relation to a cause of action leading up to and ending with the institution of proceedings.[41]
[40]Ibid 254.
[41]Ibid 250 [143].
In State of New South Wales v Bennie,[42] a former police officer filed a claim in 2001, after he was ostracised, vilified and humiliated by other police officers, and in a related act, suffered a shoulder injury, in 1991 and 1992. After psychological and psychiatric treatment, he was discharged from the police service in 1992. Although the plaintiff was referred to solicitors in 1992, he was suspicious of them, and instead directed his attention toward sending complaints to parliamentarians, to the Ombudsman, and applying for victims’ compensation and claiming that his shoulder injury should be certified as being ‘hurt on duty’. In 1996 he instructed a solicitor for a range of matters against the New South Wales Police, the New South Wales Police Association, the Victim’s Compensation Tribunal the Ombudsman and the Police Royal Commission. The solicitor gave evidence that it was difficult getting instructions from the plaintiff and that he could be changeable in his emotions and unpredictable. Medical evidence suggested that the plaintiff suffered from depression and anxiety, which deteriorated after 1991, and his judgment was affected by a lack of trust and paranoia. At first instance Phelan J found that the relevant disability was established. The decision was upheld on appeal.
[42][2005] NSWCA 172 (‘Bennie’).
State ofNew South Wales v Harlum[43] was another case in which a plaintiff successfully argued that time should be suspended on account of a disability that substantially impeded. The plaintiff suffered from major depression and the Court of Appeal rejected the assertion that determining whether s 11(3)(b) was satisfied required the Court to answer a series of isolated questions such whether the applicant could ‘instruct a lawyer’. The Court instead focused on whether the plaintiff was able to ‘reason normally’ about the various aspects involved in bring his claim and was able to exercise the will power to initiate proceedings.[44]
[43][2007] NSWCA 120.
[44]Ibid [90]–[96].
The role of willpower, and the nature of the particular cause of action, was also noted in Saunders v Jackson,[45] where the plaintiff sought damages for personal injury of a psychiatric nature arising from sexual and physical assaults, the last of which occurred approximately seventeen years before the statement of claim was filed. The approach to 11(3)(b) in the particular circumstances there was summarised as follows:
The fact that the opponent’s mental condition fluctuated between a ‘major depressive illness’ and a ‘low grade level of depression with little interest in enjoyment of life’ over the years is not decisive. The fact that she was able to maintain employment and raise two children (although it is clear that she received considerable help from her mother in that regard) is also not decisive. From the psychiatric evidence it was well open to her Honour to find, as she did, that the opponent was substantially impeded by her mental condition in the management of her affairs in relation to the cause of action. Such a conclusion was not only open to her Honour but was clearly correct. This is particularly so when to commence and maintain the cause of action required in the circumstances of this case, such a difficult and emotional decision by the opponent with potentially devastating repercussions for her family.[46]
[45][2009] NSWCA 192 (‘Saunders’).
[46]Ibid [48].
Section 30 of the Limitation Act 1985 (ACT) also suspends the operation of the limitation period where a person is ‘under a disability’, employing a definition with similar language to that of s 27J(4) of the Act. In Brown v Haureliuk,[47] Harper M determined that the applicable limitation period was suspended on account of the plaintiff’s disability. There, the plaintiff suffered a neck injury, adjustment disorder, a major depressive disorder and loss of his job after a motor vehicle accident. Harper M was satisfied that he was substantially impeded in the management of his affairs in relation to the cause of action as:
He lacked the capacity and the willpower to make rational decisions about seeing a solicitor and starting proceedings. He was during that period unable to reason normally about the matters relevant to his potential cause of action, to understand and consider advice, and to give instructions about such action.[48]
Extension of time – s 27K
[47](2011) ACTLR 195.
[48]Brown v Haureliuk (2011) ACTLR 195, 205 [45].
Section 27K(1) states that a person may apply to a court for an extension of the applicable limitation period. Section 27K(2) then provides:
(2) Subject to section 27L, the court—
(a) may hear any of the persons likely to be affected by the application as it sees fit; and
(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
Section 27L sets out a non-exhaustive list of factors the Court must consider in determining whether to grant an extension of time. It relevantly provides:
(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2) To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff’s loss; and
(c) the nature of the defendant’s conduct.
Section 27K reposes in the Court a discretion which is to be exercised judicially,[49] informed by the purposes for which the discretion was conferred and having regard to all of the circumstances of the case.[50] Exercise of the discretion is the product of the synthesis of a number of competing considerations,[51] and the overriding question is whether it is just and reasonable in all of the circumstances to extend the limitation period.[52]
[49]Hunt v Holcombe [2018] VSCA 248 [49] (‘Hunt v Holcombe’).
[50]Prince Alfred College Inc v ACD (2016) 258 CLR 134, 164-5 [99]–[100] (‘Prince Alfred College’); Clark v McGuiness [2005] VSCA 108 [52].
[51]Holcombe v Hunt [2018] VSC 55 [51]; Tsiadis v Patterson (2001) 4 VR 114, 116.
[52]Clark v McGuiness [2005] VSCA 108 [39] citing Bell v SPC Ltd [1988] VR 123, 125-6; Axford v Gray [2013] VSC 664 [28].
As J Forrest J summarised in Davies v Nilsen:
The principles applicable to an application for extension of time are well known and it is not necessary to recite them in any detail. It suffices to say the following:
…
(b) A limitation period is imposed by the Legislature for good reasons of public policy and should not be regarded as a mere signpost.
(c)Having said that, since 1973, in this State the Legislature has seen fit to enable a claimant, in a case where it is just and equitable to do so, to apply for an extension of time to bring their claim. The provision, s 23A, is beneficial and provides the court with a wide discretion as to whether an extension of time ought to be granted.
(d) Whilst the primary consideration in a s 23A application is whether it is ‘just and reasonable’ to extend the period in which to bring the claim, the Legislature has identified six non-exhaustive criteria to be considered by a court in such an application …
(e) The plaintiff carries the onus of establishing that it is just and reasonable to grant an extension of time.
…
The task of the trial judge in determining such an application is not unlike that of the imposition of a sentence in a criminal trial: the synthesis of competing considerations underpinned by the proposition that the plaintiff bears the onus of persuasion. [53]
[53][2015] VSC 584 (‘Davies’) [43]–[44] (citations omitted). See also G E Dal Pont, Law of Limitation (LexisNexis Butterworths Australia, 2016) 431–4.
The relevant delay is that between the accrual of the cause of action and the making of an application for an extension of time.[54] In Hunt v Holcombe, the Court of Appeal rejected the submission that when considering whether there is a reasonable explanation for the delay, a wholly objective test is applied; rather, the approach was held to be as follows:
An examination of the reasonableness of an explanation for a delay, in issuing proceedings, must involve an appreciation and analysis of the personal factors that affect the particular applicant’s decision not to issue proceedings earlier. The question of reasonableness of an explanation for the delay, in any case, must depend on a number of factors that include the personal characteristics, knowledge and background of the particular applicant in question.[55]
[54]Axford v Gray [2013] VSC 664 [10].
[55][2018] VSCA 248 [58] (emphasis added).
In that case, the plaintiff had filed a writ in 2016, seeking damages in relation to surgery that was performed on his leg in 2001. The Court of Appeal determined that two factors were central to the resolution of whether the delay was reasonable, namely, the nature of the advice the plaintiff obtained from his parents and the radical change in his circumstances in 2016. Of particular relevance was the onset of a medical condition in his leg that placed his life and future earing capacity in jeopardy.[56]
[56]Ibid [62]–[64].
In emphasising the relevance of the plaintiff’s personal circumstances, the Court of Appeal approved the approach of J Forrest J in Davies, where his Honour said:
it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism. Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state. On her account, she had not been told anything about the limitation provisions or common law claims. Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period as fatal. I take a similar view of the delay in consulting Clark and Toop after receiving the advice of Dr Pastore.[57]
An extension of time may therefore be granted notwithstanding the conduct of a particular plaintiff is ‘unsatisfactory’.[58]
[57]Ibid [106] as quoted in Holcombe v Hunt [2018] VSC 55 [59].
[58]Holcombe v Hunt [2018] VSC 55 [59].
Regarding prejudice to the defendant, a distinction is drawn between ‘presumptive prejudice’ and ‘actual prejudice’. Regarding the former, in Brisbane South Regional Health Authority v Taylor McHugh J stated:
The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ Sometimes the deterioration in quality is palpable … But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. … So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.[59]
[59](1996) 186 CLR 541, 551 as quoted in Holcombe v Hunt [2018] VSC 55 [54] (emphasis added).
Actual prejudice, on the other hand, can include the death of a witness or destruction of records. Questions of prejudice need to be viewed in light of the substantive issues at trial[60] and, in particular, whether there can be a fair trial.[61] In Holcombe v Hunt John Dixon J stated that the ‘conclusion that a defendant will receive a fair trial is powerful consideration in the exercise of the synthesis of considerations.’[62] According to J Forrest J, in Davies, a fair trial ‘does not mean an ideal trial, but one that is “acceptably fair”’.[63]
[60]Davies [2015] VSC 584 [107].
[61]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 550.
[62][2018] VSC 55 [45].
[63]See Davies [2015] VSC 584 [108].
Where a defendant establishes by evidence that it may suffer prejudice, if an extension of time is granted, then it is for the plaintiff to show that that evidence does not demonstrate prejudice.[64] The Court is to have regard to not only established prejudice but also potential prejudice. In Tsiadis v Patterson,[65] for example, an issue of actual prejudice was raised on account of the death of a defendant and the fact that a witness resided overseas. The primary judge determined that actual prejudice had not been established because it had not been shown that the defendant could have given evidence helpful to his defence and that, as such, his death could be disregarded. The Court of Appeal held this approach to be erroneous. The proper approach is to have regard:
not only to established prejudice, but also to consider the extent to which there is likely to be prejudice. It is not consistent with that requirement to rule out potential prejudice altogether because the fact that it has occurred or will necessarily occur has not been proven.
…
Thus, while it may be concluded that [the defendant] could not have given direct evidence as to the circumstances of the alleged accident, the possibility that he may have been able to give evidence at to the layout … should have been considered. Similarly, the potential difficulties in obtaining evidence from Mr Christopoulos should have been considered. Of course the influence of potential prejudice will decreased as its likelihood is reduced.[66]
[64]Axford v Gray [2013] VSC 664 [10] citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
[65](2001) 4 VR 114.
[66]Ibid 120.
I also the observations of the plurality of the High Court in Prince Alfred College on the correct approach to an application for an extension of time under the South Australian limitations regime:
First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:
The enactment of time limitations has been driven by the general perception that [w]here there is delay the whole quality of justice deteriorates.
Secondly, the purpose of the legislative conferral of discretion is to ensure a fair trial on the merits of the case.[67]
These comments are broadly applicable to the instant application. While the Victorian regime is somewhat different—the chief difference being that in Victoria the loss of evidence tending against the prospect of a fair trial will not be fatal to the exercise of the discretion—the similarities are more striking. The short point is that, while the passage of time and loss of evidence are not fatal, they nevertheless carry a great deal of weight in the exercise of the discretion.[68] Ultimately, as the Court of Appeal put it in Hunt v Holcombe, the weight they carry—assuming there is no specific prejudice—will turn on ‘a proper consideration of the respondent’s reasons for the delay’.[69]
[67]Prince Alfred College (2016) 258 CLR 134, 164–5 [99]–[100] (citations omitted).
[68]See, eg, Goodenough v State of Victoria [2017] VSC 12 [29].
[69][2018] VSCA 248 [69].
I also note what the plurality said in Prince Alfred College about the discretion not being exercised in circumstances in which a party has made a ‘deliberate decision’ not to commence proceedings and a defendant reasonably considers that the dispute has been laid to rest:
Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed. That oppression is aggravated where a party conveys the impression that he or she will not bring proceedings on certain terms and then, when the terms are met, changes his or her mind.
The courts are unlikely to countenance changes of mind where the other party has acted to its detriment.[70]
[70]Prince Alfred College (2016) 258 CLR 134, [106]–[107] citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552.
Submissions
The parties filed written submissions in late 2018 on the application for an extension of time under s 27K of the Act. They delivered oral submissions on 26 March 2019. They then filed supplementary submissions on the application of s 27J of the Act and delivered further oral submissions on 29 April 2019.
The parties’ submissions may be summarised as follows.
Plaintiff’s submissions
The plaintiff firstly submitted that he is an incapacitated person within the meaning of s 27J(4) because his mental illness has resulted in him being incapable of, or substantially impeded in, the managing of his affairs in respect of this cause of action. The plaintiff submitted that he has been under a legal incapacity for the purposes of
s 27J(1)(b) for the entirety of the time since he sustained the alleged injuries that are at the heart of his claim and that he remains under such an incapacity. It follows that time never started to run for the purposes of the Act and hence no extension of time is required.
The plaintiff secondly submitted that, if s 27J does not apply, then the plaintiff has been under a disability for the purposes of s 27E because he has been of unsound mind since the time of the alleged injuries, if not before, as a result of his mental illness. In advancing this submission the plaintiff pointed to the various psychiatric reports exhibited to the affidavit material in this application, namely those of Dr Bell, Dr Gill and Dr Ibrahim, which disclose a pattern deteriorating mental health and, in particular, increasing paranoia. The plaintiff also pointed to passages in his affidavit in which he deposes that his mental state since his detention had made it difficult for him to make decisions about commencing legal action. The plaintiff cited Lovejoy[71] as authority for the proposition that a person will be ‘unsound mind’ if they are incapable of managing their affairs in relation to the cause of action as a reasonable person would do. The plaintiff submitted that, on all the evidence, the Court can be satisfied that he has difficulty appreciating the nature and extent of any claim he might have had and instructing solicitors.
[71]Lovejoy [1999] VSCA 167.
The plaintiff thirdly submitted that, because he has been under a disability for the purposes of s 27E, the applicable limitation period is six years from the date on which the cause of action was discoverable by him, or 12 years from the date of the alleged negligence, whichever period expires first. The plaintiff initially submitted, in his written submissions, that there were two separate causes of action: one in 1999, when he was in immigration detention, and another in 2008 when he became incapacitated for work.[72] In oral submissions, it was conceded that the second cause of action was not a separate cause of action but rather a particular of damage, which represented the completion of the tort for present purposes.[73] On the basis that 2008 was the completion of the tort, the plaintiff submitted that the cause of action was discoverable by him in 2008 and not before, and that the applicable six year limitation period accordingly ran out in 2014.
[72]Plaintiff’s Submissions on the Application for an Extension of Time dated 22 November 2018 [10].
[73]T24.23. Senior counsel for the plaintiff alternatively put it that 2008 was ‘when all the damage [was] suffered’: T25.6.
The plaintiff fourthly submitted that the four years from 2014 to date is not an inordinate delay and, what is more, is reasonable in light of the plaintiff’s personal circumstances and his reasons for the delay. In advancing this submission the plaintiff pointed to Hunt v Holcombe as authority for the proposition that the Court must appreciate and analyse all the ‘personal factors that affect the particular [plaintiff’s] decision not to issue proceedings earlier.’[74] Here the plaintiff is a vulnerable person, struggling to find justice in an unfamiliar system, with little ability to understand and express himself in that system. The plaintiff also cited the cautionary words of J Forrest J in Davies to the effect of not ‘evaluating a lay person’s actions through an adversarial legal prism.’[75] Further, although the plaintiff has at times been legally represented, he has not always had access to that assistance because of his limited finances. And, even with legal assistance, he has still been a vulnerable person, with English as a second language, and a significant psychological injury. Finally, in addition to these other matters, the plaintiff submitted that he was fearful of taking legal action because he did not want to jeopardise his and his family’s permanent residency status.
[74][2018] VSCA 248 [58].
[75]Davies [2015] VSC 584 [106].
The plaintiff fifthly submitted that his CDDA claim, while technically only available in circumstances where no other avenue of recourse is available, was to him merely another avenue to pursue his complaint. He had already been to mediation, with the assistance of Maurice Blackburn, senior counsel and junior counsel, but had subsequently lost the benefit of pro bono assistance. He therefore, reasonably, turned to the CDDA scheme as an alternative, potentially shorter, path to acknowledgment and compensation from the defendant. In advancing this submission the plaintiff noted that he had never conceded a lack of liability and consistently maintained the alleged negligence which forms the basis of his statement of claim. On any view, the plaintiff submitted, he has been consistent in his attempts to seek redress for his treatment and consequential injuries.
The plaintiff sixthly submitted that any prejudice suffered by the defendant as a consequence of the delay is relatively minor. The defendant has been on notice of the plaintiff’s complaints since at least 6 March 2009 (being the date of Maurice Blackburn’s letter to the defendant). After the mediation, which occurred 30 June 2010, there was no agreement reached by the parties. The plaintiff’s case can therefore be distinguished from Prince Alfred College, in which, after mediation, the parties made a ‘deliberate decision’ not to commence proceedings; nor, the plaintiff submitted, was any impression given that could lead to a reasonable impression that the dispute had been laid to rest. Further, through the information provided as part of the plaintiff’s CDDA claim, the defendant had ongoing notice of the state of his mental health and the particulars of the alleged negligence.
While some witnesses may be unavailable for a trial, the defendant’s evidence falls short of demonstrating that any or all critical witnesses will not be available or could not give evidence.[76] Ms Sheppard’s affidavit does not disclose the extent of conversations had, whether prompts or documentary evidence assisted in reviving memory, and does not deal with all witnesses identified by the affidavits as important. The extent of any prejudice is also diminished by the fact that the defendant is a very large entity and is likely to have kept meticulous departmental records that can refresh the memory of any witnesses (or stand in substitute where they are unavailable).
[76]Sheppard affidavit [52]-[61].
Further, according to the plaintiff:
(a) it is extremely likely that there will be many documents that can sufficiently fill any gaps in the memories of witnesses. The facts of the claim are, and continue to be, well documented by detailed departmental reports likely to be available to the Department of Immigration. Ms Sheppard’s affidavit demonstrates as much and the evidence is that efforts to recover documents have not yet been completed;
(b) the medical facts are documented by reports of various medical practitioners and psychiatrists, some obtained by the plaintiff and also, presumably, in the defendant’s records;
(c) it appears from Ms Sheppard’s affidavit that the defendant has already gathered or retrieved a significant cache of documents, which might be more than sufficient to allow trial without prejudice to the defendant. Further, it may be the case that with a more fulsome documentary picture or background, the memories of relevant witnesses can be revived;
(d) expert medical evidence now can establish the existing injury to the plaintiff and can sustain the claims for future continuing incapacity; and
(e) any prejudice to the defendant is outweighed by the justice of the case and the opportunity of the plaintiff to follow through his claim.
Defendant’s submissions
The defendant firstly submitted that there is no evidence before the Court demonstrating that the plaintiff has been under a legal incapacity for the purposes of s 27J of the Act. In advancing this submission the defendant noted that the plaintiff’s submission that he has, at all material times, been under a legal incapacity, such that time never started to run, is completely at odds with the footing on which he brought his application for an extension of time. The defendant pointed, in particular, to the fact there is no evidence that, by reason of any mental health condition, the plaintiff lacked an ability to instruct lawyers to act on his behalf in connection with his claims for damages or compensation. On the contrary, there is abundant evidence that the plaintiff was able to instruct his representatives in clear pursuit of his legal rights, which traverses everything from visa and citizenship applications to his personal injuries and CDDA claims. Further, there is the evidence in the plaintiff’s own affidavits, which suggests his lack of finances was the most significant factor in his earlier decision not to bring proceedings.
The defendant secondly submitted that the plaintiff has not shown that, at or around the time of his immigration detention, he was unaware of his claimed injuries and the potential cause of them. In fact, the evidence suggests he was acutely aware of them, especially the letter of Mr Karapanagiotidis of the Human Rights Centre for Mental Health. Nor has the plaintiff shown that his cause of action was only discoverable by him some time later than 2000. In advancing this submission the defendant pointed out that the plaintiff’s alleged incapacity for work in and from 2008 is not a separate cause of action but rather a particular of loss and damage. As the injuries that allegedly resulted in his incapacity to work are the same as those allegedly sustained in immigration detention it follows that there was no new injury in 2008. The Court should therefore conclude that the plaintiff’s cause of action was discoverable by him no later than 2000.
The defendant thirdly submitted that the plaintiff’s claim that he has been ‘under a disability’ for the purposes of ss 27E and s27L(d) should be rejected. In advancing this submission the defendant noted that, to meet the definition of ‘unsound mind’ in s 3(2) of the Act, it is not enough for the plaintiff to show that he has a mental illness; rather, as the Court of Appeal held in Lovejoy, he must show that, by reason of mental illness, he has been incapable of managing his affairs as a reasonable person would do. Applying this test, the plaintiff should not be deemed to be of unsound mind, as he has consistently pursued claims for damages or compensation and given fulsome and detailed instructions towards those ends. For instance, despite his mental illness, he was able to make three s 417 requests to the Minister, to make visa applications, to apply for citizenship, to look for and obtain employment at Werribee Islamic College, to undertake full-time TAFE studies, to apply for and successfully appeal the decision not to grant him a disability pension, to instruct Maurice Blackburn in relation to his personal injuries claim, to instruct De Marchi & Associates in relation to his CDDA claim, and so on.
The defendant fourthly submitted that, as the plaintiff was not a person under a disability, the applicable limitation period (pursuant to s 27D) is three years. The length of the plaintiff’s delay in bringing proceedings is therefore over 14 years. Further, even if the Court finds the plaintiff was a person under a disability, the applicable limitation period (pursuant to s 27E) would be six years and hence the length of the plaintiff’s delay in bringing proceedings would be over 11 years. On any view, the plaintiff’s delay is very considerable, which immediately puts two obstacles in his path: first, the greater the passage of time, the greater the risk that ‘the trial will be a mere simulacrum of the process of doing justice’ (the onus being on the plaintiff to show that a fair trial may now be had);[77] and second, following from the first, the longer the delay will usual require a better explanation. As for the second of these matters, the defendant submitted that the plaintiff’s explanation is wholly inadequate, especially insofar as he claims that he was prevented from bringing proceedings by a lack of financial resources or fear of the defendant. The defendant further pointed to the likelihood that from 2010, if not earlier, the plaintiff was aware of the expiry of the applicable limitation period (and it cannot be inferred from the silence in his affidavit that he was not told by Maurice Blackburn as much).
[77]Prince Alfred College (2016) 258 CLR 134, 167 [105].
The defendant fifthly submitted that the plaintiff’s CDDA claim is highly suggestive of a deliberate decision not to bring proceeding for negligence but rather to pursue compensation in a no-fault context in the hope that it would be cheaper and quicker. Moreover, it can readily be inferred that the plaintiff was aware that the CDDA scheme was a scheme of last resort, only available in circumstances where litigation was not, or was no longer, an option. In this sense, the plaintiff’s CDDA claim stands as proof both of the fact that he knew of the applicable limitation period and that he deliberately decided to pursue compensation instead of litigation, which further mitigates against the exercise of the discretion to extend the limitation period.
The defendant sixthly submitted that it has suffered prejudice both general and specific due to the effluxion of time. In advancing this submission the defendant relied on the fact that the delay in this case, being 14 or 11 years, is very considerable. This gives rise to a significant presumption of prejudice and it is for the plaintiff to show that a fair trial can still be had. Further, the defendant relied on the evidence it has put before the Court as to the unavailability of witnesses, especially those relevant to his period in immigration detention. The defendant noted, in particular, that no person called Mick Austin has been located, such a person being arguably central to the plaintiff’s case, despite enquiries being made of his putative employer. Additionally:
(a) oral evidence of the Commonwealth officers and employees and others not working for the Commonwealth will be relevant to any determination of this proceeding because, amongst other things, there is a dispute about:
(i) the nature and extent of the plaintiff’s involvement in disturbances and other incidents in immigration detention; and
(ii) the appropriateness of decisions made to detain the plaintiff in the Melbourne Assessment Prison and the Port Phillip Prison;
(b) oral evidence will be relevant to any consideration of the plaintiff’s allegations of assault;
(c) of the six potential witnesses who were Commonwealth employees in 1999 and 2000, five of them cannot independently recall any specific details about the plaintiff or the circumstances of his immigration detention and, as discussed, one is not prepared to give evidence unless compelled to do so; and
(d) the Commonwealth may also make third party claims against one or more of the detention service providers in the plaintiff’s immigration detention and the lengthy passage of time adversely affects its ability to make and pursue those claims.
The defendant submitted that the plaintiff has not discharged his onus to establish that notwithstanding the significant passage of time, a fair trial may now be had.[78]
[78]Prince Alfred College (2016) 258 CLR 134, 167 [105].
Ultimately, according to the defendant it would not be just and reasonable to extend the limitation period applicable to the plaintiff’s cause of action.
Analysis
I will identify when the limitation period started to run, before addressing whether it has been suspended on account of s 27J, or, if it has ended, should otherwise be extended under s 27K. The construction of the Act and, in particular, the interaction between ss 27J and 27K is suggestive of such an approach, the former provision deeming the suspension of time and the latter allowing for a discretionary extension of time. Section 27J refers to ‘a cause of action for which a period of limitation has commenced to run’, suggesting that the first step of analysis is identifying when the limitation period started. Structurally, the provision in div 2 precedes s 27K in div 3, the application of div 3 presupposing the calculation of the applicable limitation period in accordance with div 2. Self‑evidently, if time has been suspended, then a plaintiff will have no need for an extension of it.
It is instructive that Hoeben J in Plowman proceeded in this fashion. His Honour began by asking whether the plaintiff could rely on s 27J of the Act. Having concluded that the answer was ‘no’, his Honour turned to consider the exercise of the discretion under s 27K of the Act, ultimately concluding that it was just and reasonable to grant an extension of time.[79]
When did the period of limitation commence?
[79]Plowman [2012] NSWSC 376 [122].
It is necessary to first determine when time started to run, save for any immediate suspension under s 27J.
The unchallenged evidence is that the plaintiff became aware that he had a cause of action against the defendant in late 1999 or early 2000. That is when he alleges that he was assaulted and negligently treated in immigration detention. It is then that his mental health deteriorated and he was transferred from the Maribyrnong centre to the Port Phillip Prison, the Rosanna centre and the MAP. During this time, the plaintiff was certified for a period and Dr Bell concluded that he was moderately to severely depressed. Mr Karapanagiotidis was visiting him weekly in prison and writing on his behalf to the Department alleging gross negligence, and Prof Mullens considered that the situation was unacceptable, and that the plaintiff would likely succeed in killing himself if detained in the restrictive environment of the acute assessment unit.
The combination of marital problems culminating in a marital break–up, serious mental illness and lack of financial resources provides a reasonable explanation as to why the plaintiff did not issue proceedings after he ceased being represented by Maurice Blackburn and, in particular, why he opted for the non-litigious path of an ex gratia payment under the CDDA scheme.
The defendant submits that the plaintiff’s ability to apply for a disability pension in August 2011, and the subsequent review before the SSAT, is evidence that the plaintiff was at that time capable of managing his legal affairs.
I agree that to the extent that he could give instructions and pursue his administrative rights the plaintiff was able to manage his affairs. Yet the submission ignores the plaintiff’s mental illness and parlous financial state. His decision to apply for a disability pension, and then to have the decision reviewed, highlights the fact that, until June 2012, he had no income and yet no capacity to work. It is difficult to see how, in the circumstances, the plaintiff could have managed the disability pension process and pursed a common law claim at the same time.
It bears repeating what J Forrest J said in Davies: ’it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay person’s actions through an adversarial legal prism’.[99] The plaintiff’s life in Australia, almost immediately after his arrival here, had him in conflict with the authorities and, in particular, with the defendant. He is a person with no legal training and has been vulnerable from the outset. The plaintiff is clearly obsessed with obtaining some form of apology and compensation from the defendant, who, rightly or wrongly, he perceives to be the organisation that has persecuted him and treated him unfairly since 1999. While a more prudent person may have sought another firm of lawyers to act for him, after Maurice Blackburn withdrew, he did not. He was able to continue his ‘fight for justice’ through the CDDA scheme. The plaintiff never resiled from his allegations against the defendant and doggedly continued to seek redress.
[99]Davies [2015] VSC 584 [106].
Significantly, in my view, the plaintiff did not make a ‘deliberate decision’ akin to the one made by the plaintiff in Prince Alfred College.[100] In that case the plurality said:
Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest.[101]
Here the parties never reached a financial agreement and the plaintiff never advised the defendant that he did not intend to sue. There were no payments made by the defendant to the plaintiff at any stage. I consider that the plaintiff did not change his mind about bringing proceedings; rather, his personal circumstances and mental illness made a personal injuries claim untenable. True it is that the defendant told the plaintiff that the CDDA scheme was a scheme of last resort. However, as I have said, he never indicated that he would not sue the defendant and continued to pursue compensation, for the same conduct and damage, albeit under another process.
[100](2016) 258 CLR 134.
[101]Ibid 167 [106].
I accept that the plaintiff opted for an ex gratia payment under the CDDA scheme because he believed he would receive compensation without further costs.[102] The plaintiff’s decision must be considered alongside his mental illness and the many years spent making applications to the government (including for visas, permanent residency, citizenship and a disability support pension). Given his fixation on justice and an apology, as Dr Gill opined, it is not unreasonable that the plaintiff opted for the CDDA scheme to seek redress. Importantly, it explains the delay and provides context to the reasons why the plaintiff did not issue the writ before March 2018, despite having had representation, knowledge of the limitation period and some limited capacity to manage his legal affairs.
[102]Azzam affidavit [27.17], [27.23].
The application and review process under the CDDA scheme ran over at least 8 years, including the involvement of the Ombudsman in 2016. This was through no real fault of the plaintiff.
In August 2017, the plaintiff contacted Julian Burnside QC directly, explained his situation and sought Mr Burnside’s assistance. As I have said, following Mr Burnside’s involvement in this matter and that of junior counsel Andrew Yuile, the plaintiff’s solicitors prepared and filed a writ and statement of claim dated 13 March 2018. The plaintiff deposes that he is still unable to pay the filing fee and that his solicitors have elected to pay it themselves.
In summary, while the delay is significant, I consider the plaintiff’s explanation for not issuing proceedings is reasonable. Of particular significance are the disadvantages that he has faced as a stateless person, including his limited financial means, the deterioration in his mental illness and separation from his wife.
Duration of any disability or legal incapacity
The plaintiff’s mental illness is relevant in the synthesis of all factors. Although I have found that it did not ‘substantially impede’ him for the purposes of s 27J, I nevertheless consider that it made it difficult for him to comprehend his legal rights, to focus on events and to issue proceedings in a timely fashion. The evidence of Dr Gill and Dr Ibrahim sheds light on the plaintiff’s persistent persecutory beliefs and feelings, depression and distress, and obsession with justice and an apology for the wrongs he believes he suffered during his period of his immigration detention.
Nature and extent of the plaintiff’s loss
The plaintiff alleges that his time in immigration detention led to the onset of a significant psychiatric injury which has destroyed his personal and working life. The plaintiff came to Australia having been employed as a computer specialist. He was initially detained in the MIDC and then transferred to several correctional facilities as described earlier in these reasons. He alleges that, during his detention, he was assaulted on at least on occasion. His mental health has progressively deteriorated in the years that he has been living in the community. He has also had to live with uncertainties that many of us take for granted such as whether he would attain permanent residency status, citizenship, ever be reunited with his family, find gainful employment and be able to access services and programs.
His mental illness has impacted all aspects of his life, including his family life, marriage, ability to work, and engagement with his peers and the broader community. I accept that the nature and extent of the plaintiff’s alleged loss is very significant. A refusal to extend the period of limitation would deny the plaintiff the opportunity to obtain compensation for a substantial injury.
Nature of the defendant’s conduct
No criticism can be made of the defendant’s approach to these proceedings. Of some significance, however, is the nature of the defendant’s conduct. That conduct—alleged negligent mistreatment of an individual who was detained and suffering from a mental illness—‘should be a matter brought into the evaluation’.[103]
Prejudice to the defendant
[103]To adopt the language of Dixon J in Holcombe v Hunt [2018] VSC 55 [48] regarding an allegation of professional negligence in the delivery of health services.
A critical issue in this case is the operation of prejudice and how that factor, as reflected in s 27L(1)(b), is to be balanced against the other considerations enumerated in s 27L(1) of the Act. In order to determine the extent of prejudice to the defendant, and answer whether a fair trial is possible, it is necessary briefly to reiterate the plaintiff’s allegations in his statement of claim.
The plaintiff alleges that the defendant breached the duty of care that it owed him in the following ways:
(a) he claims the Department made inappropriate decisions whilst he was detained at the Maribyrnong centre and, in particular, in transferring him to the several correctional and secure psychiatric facilities detailed earlier in these reasons;
(b) he claims he was negligently managed, treated and cared for whilst held in immigration detention and, in particular, subjected to several assaults by immigration officers and prison guards;
(c) he claims that the processing of his application for a protection visa was too slow and that it led to him missing his window for re-entry into Saudi Arabia, as per his visa which expired in mid-September 1997, and hence becoming a stateless person;
(d) he claims that inadequate steps were taken (and allegedly admitted) by the Department to remove him from Australia after he requested deportation; and
(e) he claims that inadequate medical treatment was provided to him whilst he was in immigration detention.
The evidence before the Court is that:
(a) the defendant has retained records in respect of the plaintiff’s immigration file that cover a period including 1999 onwards. These records show that decisions with respect to the management of the plaintiff’s case, including his detention, transfer between places in immigration detention and status as well as processing the plaintiff’s application for a protection visa and attempts to relocate the plaintiff in other countries, were handled by numerous employees and officers of the Department;[104]
[104]Sheppard affidavit [44].
(b) such employees and officers included compliance officers, case managers, state managers and removal officers employed by the Department at that time, located both in Australia and in the Middle East;
(c) the day to day management and care of the plaintiff at the Maribyrnong centre was performed by a contractor of the defendant, Australasian Correctional Management Pty Ltd (ACM), through its employees, agents and subcontractors;[105]
[105]Ibid [48].
(d) the day to day management and care of the plaintiff at the Melbourne Assessment Prison and Port Phillip Prison was performed by employees, agents and subcontractors of the operators of those prisons;[106]
[106]Ibid [49].
(e) oral evidence will be required from Department employees in respect of the basis for operational decisions, including their reasoning and considerations in making recommendations with respect to the most appropriate place for detention, for any defence that the defendant did not breach any duty of care. Such evidence would include their observations, assessment and interactions with the plaintiff, discussions with staff at the Maribyrnong centre and Melbourne Assessment Prison and Port Phillip Prison about the plaintiff and investigations into incidents involving the plaintiff;[107]
[107]Ibid [50].
(f) oral evidence will also be necessary from Department employees with respect to the steps taken in processing and considering the plaintiff’s various visa requests and attempts to arrange removal to a third country, for the defendant’s defence of the allegations made by the plaintiff in the statement of claim;
(g) the defendant has identified a number of employees and officers of the Department during the relevant period as potential witnesses from whom oral evidence might be required. There are six witnesses who have been identified. Of the six witnesses, only one remains a current employee of the defendant. Five of the potential witnesses cannot independently recall any specific details about the plaintiff or the circumstances of his immigration detention and one of them stated that she would not give evidence unless compelled to do so;[108]
(h) the defendant does not presently know the identity or whereabouts of witnesses who were not its employees in 1999 and 2000;[109]
(i) at the time of Ms Sheppard’s affidavit the defendant was unable to locate the plaintiff’s relevant documents from the successor company of ACM. It has been able to obtain documents related to the plaintiff’s detention in the Melbourne Assessment Prison and the assaults alleged by the plaintiff to have occurred during his detention there, and also documents relating to the plaintiff’s mental health issues at the time he was detained in the Maribyrnong centre from Peninsula Health, the Victorian Institute of Forensic Mental Health and Justice Health.[110]
[108]Ibid [52]–[60].
[109]Ibid [61]–[68].
[110]Ibid [62]–[69].
In this case, the general prejudice is substantial, since around 18 years have elapsed from the time of the defendant’s alleged negligence.
As for specific prejudice, the issues are limited, but of some significance. I consider that the defendant’s ability to have a fair trial will turn on the evidence of its employees as well as those of the Maribyrnong centre and the several correctional and psychiatric facilities in the plaintiff was detained.
Dealing firstly with potential witnesses from the Department, the defendant has been able to locate and speak to these six potential witnesses. Understandably, five of them do not recall the plaintiff, nor the events alleged by the plaintiff in 1999 and 2000. Counsel for the defendant conceded that these witnesses were not provided with any documents or aids to assist their recollection and that provision of such documents may assist them with their memory.[111] One witness would not provide any information unless compelled by subpoena. It is not known if this witness has any recollection of the plaintiff or his case.
[111]T35.23–36.1.
In relation to other witnesses, that is the former employees of the Maribyrnong centre, Melbourne Assessment Prison, Port Phillip Prison and the Rosanna centre, all that can be said is that the defendant does not have knowledge of the whereabouts or contact details of such persons at this time.
While I am not critical, I can infer that the defendant has not made any efforts to locate the whereabouts of the latter group of witnesses. It is not clear how many witnesses the defendant is referring to. The plaintiff’s allegations centre on his period in detention at Maribyrnong centre from 19 March 1999 to 23 July 1999 and then from 23 July 1999 to 10 October 2000 when he was detained at Melbourne Assessment Prison, Port Phillip Prison and the Rosanna centre. The relevant period traverses approximately one and a half years. I am not satisfied at this stage that I can conclude that any potentially relevant witnesses employed at the relevant time by MIDC, Melbourne Assessment Prison or officers involved in investigating the plaintiff’s complaints are no longer available. In the circumstances, I consider that the passage of time has produced some general prejudice, but has not prejudiced a fair trial of the claim.
The defendant does not know of the whereabouts of the witnesses. It is able to identify potential witnesses but has not commenced looking for them. It has not identified whether there are two, three or twenty potential witnesses that it might need to contact.
Turning to Mr Austin, the prison officer who allegedly assaulted the plaintiff at the Maribyrnong centre, I note that Geo Group, the successor company of ACM, has no record of any employee named ‘Mick Austin’ or ‘Michael Austin’.[112] Under cross‑examination, Ms Sheppard agreed that there is no reason to think that Mr Austin does not exist, in light of the signed letter that was discovered on the plaintiff’s detention file.[113] That letter contains an apology for Mr Austin’s inappropriate behaviour towards the plaintiff and is ostensibly in response to another letter—addressed to the Manager of ACM and signed by the plaintiff and other detainees—complaining about Mr Austin and alleging assault and other threats of violence.[114]
[112]Sheppard affidavit [64(c)].
[113]Azzam affidavit, exhibit AA-3.
[114]Ibid, exhibit AA-2.
There will, of course, be specific prejudice to the defendant if Mr Austin is unavailable to give evidence. However, in my view, it will be limited. This is due to the availability of documentary evidence, including the letters noted in the above paragraph, the extent of which is as yet unknown. Discovery may bring additional relevant material to light.[115]
[115]Sheppard affidavit [61]-[63].
The defendant’s evidence at its highest is that, at this stage, Geo Group has not produced any documents in response to a subpoena it issued in October 2018.[116] Geo Group states that it does not have any documents, or copies of documents, relating to the plaintiff because all such materials, including detainee files and medical files, were given to ACM and in turn back to the defendant.[117] Further, the following files have been produced in response to subpoenas issued by the defendant:
[116]Ibid.
[117]Ibid [64]-[65].
(a) documents relating to the plaintiff’s detention in Melbourne Assessment Prison, specifically the plaintiff’s ‘Victorian Prison Service, individual management file’, which contains documents including prisoner incident reports, visitor’s forms, handwritten memoranda about the plaintiff, the daily reporting notes about the plaintiff;[118]
(b) Peninsula Health records relating to the medical care provided by Frankston Hospital to the plaintiff prior to the beginning of the plaintiff’s immigration detention; and
(c) Victorian Institute of Forensic Medicine and Health records and Justice Health records, relating to the plaintiff’s detention in Melbourne Assessment Prison and Port Phillip Prison.
[118]Sheppard affidavit [67].
I consider that, at this preliminary stage, the defendant has access to relevant documents. The defendant was also on notice by June 2010 of a potential claim. It took the position at that stage that it could defend the claim. I can infer that, as such, the defendant had access back then, and hence now, to sufficient evidence and information to make an informed decision about the merits of the plaintiff’s claim.
In short, while I consider the defendant will suffer from general prejudice arising from the long delay, I am not satisfied that there is specific prejudice which will prejudice a fair trial.
Synthesis - is it just and equitable to extend the limitation period?
The plaintiff bears the onus of establishing that it is just and equitable to extend time.
As I have said, in my view, it is reasonable to infer that the plaintiff received advice from Maurice Blackburn and/or senior and junior counsel in mid-2010 about the merits of his claim and limitation issues. I accept the plaintiff’s evidence that he did not have the funds to pay Maurice Blackburn and was unable to continue with his claim without pro bono representation. Although he did not seek pro bono assistance elsewhere, such a decision by a lay person should not be viewed ‘through an adversarial legal prism’. Further, the decision not to pursue his common law claim was informed by financial constraints, mental illness and a reluctance to be involved in litigation.
The evidence in the plaintiff’s affidavits is that by April 2012 he sought to resolve his personal injuries claim other than by litigation and that he instructed his current solicitors to apply for an ex gratia payment from the defendant under the CDDA Scheme.[119] I am satisfied that he considered his options, namely pursuing a personal injuries claim or compensation under the CDDA scheme, and did so having been advised about the merits of each. The course he took was affected by his personal circumstances, including mental illness, limited finances and the ability to take the most straightforward non-litigious path to an apology and compensation. I can infer it was the only option he considered available to him at the relevant time. From April 2012 the plaintiff had legal representation in relation to the CDDA Scheme.
[119]Azzam affidavit [27.17].
At no stage has it been suggested by his past or present legal representatives that he does not have the capacity to understand his affairs or the different claims he has pursued. I accept that his mental health has at different times affected his trust in lawyers and the legal system. However, the plaintiff has demonstrated a sound capacity to retain solicitors, make claims and applications and, when necessary, seek review of adverse decisions. This includes challenging the SSAT, requesting the assistance of the Ombudsman, petitioning several parliamentarians and contacting senior counsel, Mr Burnside QC, to act for him in this proceeding.
The plaintiff’s ongoing financial difficulties are highlighted by the fact that De Marchi & Associates have paid the filing fee for this proceeding and that counsel are providing their services pro-bono or on a conditional basis.
Regarding the nature of the plaintiff’s loss, he has suffered from serious mental health issues that have persisted from 2000 to the present, which he says arise out of the negligence of the defendant. The medical evidence is that his injuries have incapacitated him for work since at least 2008 and most likely from approximately 2006 when he attended Foundation House and was treated by Dr Schwartz for depression, severe anxiety and paranoid symptoms. I consider that from at least 2006 he has been a person with very limited financial means and has been living on a disability pension from 2010. The plaintiff contends that his mental health issues contributed to his estrangement from his wife and children and subsequent divorce.
The facts of the plaintiff’s significant loss, together with my finding that he has provided a reasonable explanation for the delay, weigh heavily in favour of the grant of the application by the plaintiff for an extension of time. As I have said, while there is presumptive prejudice due to the long delay, the specific prejudice to the defendant is limited and, in my view, a fair trial is possible.
It seems all issues, including liability, causation and quantum, are in issue. Liability will turn to some extent on the oral evidence of witnesses. However, due to the effluxion of time, much more important will be the documentary record. There is evidence that relevant documents are available to the defendant and that potential witnesses have been identified. There is no evidence that potential witnesses, other than Mr Austin, cannot be located.
I accept the plaintiff has sought assistance and legal advice in relation to his personal injuries claim, having been represented by Maurice Blackburn in 2008, and that new reports are being prepared, in particular, to support a certificate of assessment under s 28LN of the Wrongs Act 1958.
For the above reasons, and after weighing up all the circumstances—including the significant delay, the general and specific prejudice to the defendant, the possibility of a fair trial, the plaintiff’s long history of serious mental health issues, the plaintiff’s failure to pursue his claim in circumstances where he had knowledge of the limitation period and its consequences, the nature and extent of the plaintiff’s loss, and the nature of the defendant’s conduct of which no criticism can be made—I am persuaded that it is just and reasonable to permit the plaintiff to bring his case out of time notwithstanding the delay.
Conclusion
I will therefore allow the application for an extension of time. I will hear the parties on costs and the appropriate form of order.
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