Barry Thomas Blunden v Commonwealth of Australia
[2007] ACTCA 22
•2 October 2007
BARRY THOMAS BLUNDEN v COMMONWEALTH OF AUSTRALIA
[2007] ACTCA 22 (2 OCTOBER 2007)
APPEAL – Limitations Act – cause of action accrues in 1964 – whether extension of time should be granted – prejudice.
Supreme Court Act 1933 (ACT), s 37L
Limitation Act 1985 (ACT), s 36
Judiciary Act 1903 (Cth)
Trade Practices Act 1974 (Cth), s 52
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth v McLean (1997) 41 NSWLR 389
Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514
Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478
Blunden v The Commonwealth (2003) 218 CLR 330
Commonwealth v Cornwell [2007] HCA 16
McLean v Sydney Water Corporation [2001] NSWCA 122
House v The King (1936) 55 CLR 499
Morgan v Tame (2000) 49 NSWLR 21
Wilson v Horne (1999) 8 Tas R 363
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1
Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168
Hamod v State of New South Wales [2001] FCA 157
Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305
Eunson v Beaulieu United Ltd [1999] FCA 1164
Nixon v Phillip Morris (Australia) Ltd (1999) 95 FCR 453
Cadoroll Pty Ltd v Allegra Corp Ltd [1999] FCA 1063
Cubillo v Commonwealth (1999) 89 FCR 528
Chapman v Luminis Pty Ltd (1998) 86 FCR 513
Foodco Group Pty Ltd v Northgan (1998) 83 FCR 356
Brown v Forest Hill Shopping Centre Pty Ltd [1996] FCA 666
Empire Shipping Company Inc v Navix Line Inc [1996] FCA 333
State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489
Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667
Energex Limited v Alstom Australia Limited [2004] FCA 575
Cartledge v E Jopling & Sons Ltd [1963] AC 758
Philip Morris (Australia) Ltd v Nixon [2000] FCA 229
DA Christie Pty Ltd v Baker [1996] 2 VR 582
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 25-2006
No. SC 324 of 1998
Judges: Gray and Moore JJ
Court of Appeal of the Australian Capital Territory
Date: 2 October 2007
IN THE SUPREME COURT OF THE ) No. ACTCA 25 - 2006
) No. SC 324 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BARRY THOMAS BLUNDEN
Appellant
AND:COMMONWEALTH OF AUSTRALIA
Respondent
ORDER
Judges: Gray and Moore JJ
Date: 2 October 2007
Place: Canberra
THE COURT ORDERS THAT:
Leave to appeal be refused.
IN THE SUPREME COURT OF THE ) No. ACTCA 25-2006
) No. SC 324 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BARRY THOMAS BLUNDEN
Appellant
AND:COMMONWEALTH OF AUSTRALIA
Respondent
Judges: Gray and Moore JJ
Date: 2 October 2007
Place: Canberra
REASONS FOR JUDGMENT
GRAY J:
In my view, leave to appeal should be refused.
Unfortunately, before judgment in this matter could be given, Connolly J died.
Section 37L(1) of the Supreme Court Act 1933 (ACT) provides:
If, before a proceeding on an appeal is decided, 1 of the judges becomes unable to continue to sit on the appeal, the proceedings may continue before the appeal court constituted by the 2 remaining judges, if the parties agree.
On 26 September 2007, Crispin P held a directions hearing in this matter and the parties consented to the proceedings continuing before the appeal court constituted by myself and Moore J.
Prior to his death, Connolly J had circulated his judgment in this matter. In his judgment he proposed that leave to appeal should be refused. Moore J had circulated a judgment agreeing with that result but differing in the approach that applications for extensions of time should ordinarily be heard and determined before trial. I suggested to Connolly J an amendment which places an emphasis in respect of this issue closer to the view taken by Moore J. What I proposed was an amendment to paragraph 11 of Connolly J’s judgment. The paragraph that I would substitute is in these terms:
These comments were made in the context of a commercial claim, where the question of fact as to when the cause of action arose was critical, there being no discretion to extend a limitation period for such claims. Where the legislature has provided a discretion in respect of personal injury claims, as in this case, there does not appear to be any rule or practice that an application to extend time cannot be made by way of a separate application to exercise the statutory discretion in advance of any trial. Whether or not it is appropriate to do so will depend very much upon the circumstances of the case.
I was unable to obtain Connolly J’s views on this proposal. Accordingly, I agree with what Connolly J has written as his judgment and the reasons that he gives. I add his proposed judgment as Addendum A. It is to be my judgment in this matter with replacement of paragraph 11 in the terms that I have indicated.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.
Associate:
Date: 2 October 2007
ADDENDUM A
REASONS FOR JUDGMENT
CONNOLLY J:
This is an application for leave to appeal from a decision of Crispin J given on 9 June 2006 in which his Honour dismissed a motion for an order pursuant to s 36 of the Limitation Act 1985 (ACT) (the Limitation Act) extending the period in which an action may be brought by the plaintiff/appellant in respect of injuries and disabilities said to have been caused by the negligence of the defendant/respondent. Such a decision is properly an interlocutory decision and, accordingly, leave must be obtained to appeal. Although originally commenced by way of a notice of appeal, the plaintiff was given leave, by consent, to file an application for leave to appeal.
The substantive action
The plaintiff, by an action commenced by originating application filed on 14 May 1998, claimed to have suffered injuries and disabilities by way of “chronic post- traumatic stress disorder, major depressive disorder, alcohol abuse and shock and sequelae” (AB 34) as a consequence of the negligence of the defendant, through the agency of its servants in the Royal Australian Navy when, as a serving sailor aboard the HMAS Melbourne, he witnessed the collision between that vessel and HMAS Voyager in the naval disaster of February 1964.
The pleadings in the substantive action, which are contained in the appeal book, show that these were the bare pleadings by the plaintiff, which gave rise to a defence filed by the Commonwealth in which, not admitting that the plaintiff suffered any injuries or disabilities as a result of the admitted collision, pleaded that any action was barred by reason of limitations legislation. The Commonwealth’s position was that the cause of action accrued at the date of the collision, and that the action was brought some 34 years later.
It is not clear from the Appeal Book when the Commonwealth’s original defence was filed, but it is apparent that the plaintiff, once appraised that the defendant was to raise a limitations defence, acted promptly to put on a notice of motion for an extension of time. This was filed on 18 June 1999.
The Limitations issue
The Limitation Act follows the form of similar legislation in other Australian jurisdictions and essentially embodies the philosophy explained by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550 ff, which is that the legislature seeks to strike a balance between parties to litigation to ensure both fairness and finality. Accordingly, the legislature provides that an action must be commenced within a defined period, but provides, in personal injuries claims, a discretion for a court to extend this limit subject to certain criteria set out in the Act.
The plaintiff’s motion for an extension of time was originally heard on 5 November 1999 and dismissed by Crispin J on 26 November 1999. This matter went on appeal to the Full Court of the Federal Court, which on 7 November 2000, by majority, allowed the appeal and remitted the matter to Crispin J. The Commonwealth sought special leave to appeal to the High Court and on the special leave hearing, procedural defects were raised which resulted in the matter going back to the Full Court, which on 12 December 2001, perfected its order. The Commonwealth then took that matter to the High Court on a question of the applicable law, which was determined in December 2003. In April 2004, the Commonwealth’s application for special leave on the limitation question was refused. Accordingly, the limitations point fell for redetermination by Crispin J. The plaintiff put on a motion to have this question determined at the same time as the substantive trial in the action. This motion was heard and determined by the Master on 3 December 2004, and was dismissed. Accordingly, the plaintiff’s motion to extend the limitation period fell for rehearing by Crispin J in accordance with the decision of the Full Bench of the Federal Court.
During the course of this appeal Mr Little SC, for the plaintiff argued that the Master’s decision not to combine the redetermination of the limitations points with the trial was a decision that could be reviewed by this Court, although he did not formally seek to amend the notice of appeal to include an application to extend time to appeal from the decision of the Master. I think that such an application would in any event have been doomed. The decision of the Master was, in effect, for the issue of an application to extend time to be dealt with in the normal way, that is, by way of a hearing to enliven the discretion set out in s 36 of the Limitation Act.
This section provides:
Personal injuries
(1)This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.
(2)If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it considers appropriate, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.
(3)In exercising the powers given to it by subsection (2), a court shall have regard to all the circumstances of the case, including, for example, 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 conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he or she 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;
(f)the steps, (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.
It seems to me that s 36 contemplates that an application for an extension of time to bring a claim would normally be a separate step in proceedings, in which a plaintiff will bring an application to enliven the discretion set out in s 36(3). I am mindful that there is appellate authority for the proposition that “An application for an extension is not a trial, or a dress rehearsal for the trial” (Commonwealth v McLean (1997) 41 NSWLR 389 at 395). In that case, as in this case, the application for an extension of time was dealt with as a separate application. That is certainly the general practice in this Court in relation to applications to extend the limitation period in personal injury claims. Moreover, this was a rehearing pursuant to a decision of the Full Court of the Federal Court, which had set aside the original decision and ordered that the matter be redetermined according to law. To combine such a redetermination with the substantive trial of the action would be an unusual course.
I am mindful that, in Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514, Mason CJ, Dawson Gaudron and McHugh JJ were critical of separating the question of when a cause of action accrued for limitation purposes from the trial of the action in the case of a complex commercial claim pursuant to trade practices litigation (at 533). Their Honours there said that they:
... state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
I would observe that these comments were made in the context of a commercial claim, where the question of fact as to when the cause of action arose was critical, there being no discretion to extend a limitation period for such claims. Where the legislature has provided a discretion in respect of personal injury claims, as in this case, we are aware of no rule or practice that the application to extend time should not be dealt with otherwise than as a separate application to exercise the statutory discretion in advance of any trial.
It seems to me that it would be entirely inappropriate to seek, after some three and a half years, and after the plaintiff proceeded to bring an application to extend time, to reopen the decision of the Master refusing an application to deal with the limitations point at the substantive trial, even on the basis that a Court of Appeal may have a general jurisdiction to re-open interlocutory rulings earlier in proceedings: see Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at [4]-[8].
It seems that this complex litigation has long proceeded on the assumption that the cause of action accrued on the date of the collision. In answers to interrogatories the plaintiff has sworn that his injuries and disabilities first occurred at the time of the accident and have continued since. In the High Court proceedings to determine the appropriate limitations legislation (Blunden v The Commonwealth (2003) 218 CLR 330) the arguments proceeded on the basis that the cause of action arose in 1964 – the question being, as the collision occurred in international waters, what, if any, limitations legislation applied. The plaintiff argued, unsuccessfully, that as the collision occurred on an Australian ship in international waters, the common law applied, unfettered by any limitations statute. The majority held (at 347) that s 80 of the Judiciary Act 1903 (Cth) (the Judiciary Act) had the effect that, because this action commenced in the Australian Capital Territory Supreme Court, the Limitation Act of this jurisdiction had effect.
The decision appealed from
Following the decision by the Master that any application for an extension of time should be dealt with as a separate and discrete question, the plaintiff proceeded with its motion that it had, in fact, filed on 11 June 1999 (AB 39), to extend time. It had, as Crispin J observed, a somewhat convoluted history. This is set out in detail in [3] of his Honour’s reasons and has been summarised above. When the matter came to hearing before his Honour on 29 March 2006, he had written submissions from the plaintiff which made the concession that (AB 764):
The Limitation period for commencing Action expired on 11th February 1970 although it was generally perceived that no claim could be brought by a serviceman: see Parker v The Commonwealth (1964) 112 CLR 295. However, it is clear that since Groves v The Commonwealth (1981-1982) 150 CLR 113 such an action was maintainable.
In proceedings before his Honour, counsel for the plaintiff raised the question as to whether, in fact, the cause of action did accrue at the date of the collision, or at the date on or about which a formal diagnosis of post traumatic stress disorder was made, which was some time in 1996. In the transcript of that hearing, his Honour made the observation (transcript of 29 March 2006, page 4):
That’s an interesting proposition. I would have thought that the cause of action arose when damage was suffered, rather than when a professionally qualified person recognised that damage was suffered.
Mr Little proceeded to further develop the argument before his Honour that the law could advance to recognise such a proposition, but then said:
So that we make that as a formal submission, your Honour, in case it comes to be the accepted state of affairs in due course, but we don’t propose to say any more about it than that.
The proceedings before his Honour proceeded on the clear basis that the cause of action was statute barred and that the discretion should be exercised in the plaintiff’s favour to extend time. This was also the basis on which the High Court had determined the question of which limitation law applied, and indeed the majority noted that the Limitation Act “was enacted long after the events giving rise to Mr Blunden’s cause of action” (at 347, per Gleeson CJ, Gummow, Hayne and Heydon JJ).
It seems to me that, where a defendant raises a limitations defence in a personal injury claim, a plaintiff may either seek to extend time or argue that the cause of action did not, in fact, arise out of time. In the present case, the plaintiff chose the former course, putting on the application to extend time in June 1999. This position has long been maintained. In the hearing, the plaintiff put forward the proposition that the cause of action may have only accrued at diagnosis, which was said to have been in 1996, and thus within time. His Honour made the brief observation that a cause of action accrues at the point damage is sustained, and this is certainly the general law. The High Court in Commonwealth v Cornwell [2007] HCA 16 (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), recently restated the proposition that ([5]):
… to show the existence of a completely constituted cause of action in negligence, a plaintiff must be able to show duty, breach and damage caused by the breach; accordingly, in the ordinary case, it is at the time when that damage is sustained that the cause of action “first accrues” for the purposes of a provision such as s 11 of the Limitation Act.
Should the plaintiff now be of the view that his cause of action in fact accrues at diagnosis, this is a matter that should be separately agitated, and it would not be appropriate for me to express a firm view on what would, on the plaintiff’s counsel’s acknowledgement, be a development of the law.
The reasoning in the decision below
The criteria that a court must address in deciding whether to exercise the discretion to extend time in a personal injuries case are set out in the Limitation Act, and have been repeated at [8] above. It seems to me that his Honour clearly considered these criteria.
His Honour found that there had been satisfactory reasons for the delay certainly until at least 1982 when the High Court determined that service personnel could in fact bring such claims. While he had certain reservations as to the plaintiff’s credibility, it seems to me that in respect of this aspect of the criteria set out in s 36 of the Limitation Act, the plaintiff was successful.
His Honour declined to extend time on the basis of prejudice to the defendant. He had made reference to, and was clearly mindful of the observations of McHugh J in Brisbane South Regional Health Authority v Taylor (supra) (at 551) that:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality deteriorates” .... Sometimes the deterioration in quality of justice is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. 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. As the United States Supreme Court pointed out in Barker v Wingo ... “what has been forgotten can rarely be shown”. 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. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensured. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
McHugh J went on to make the observation (at 555) that, while effluxion of time will always have a prejudicial effect, which he referred to as “presumptive prejudice”, a defendant may also be able to point to factual material establishing actual prejudice and in such cases:
... the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
Crispin J, at [48] of his reasons, noted that in exercising this discretion, fairness is a matter of degree, and that the concept of a fair trial for the defendant does not mean a trial that is perfect or ideal, citing McLean v Sydney Water Corporation [2001] NSWCA 122 at [27].
The defendants did not admit that any disability sustained by the plaintiff was a consequence of the collision, and the evidence establishes that the plaintiff has had a long history of various psychiatric complaints, which over the years have been attributed to a range of causes. Accordingly, the extent to which the collision has impacted on the plaintiff and his condition before and after the collision, would be important issues at trial. His Honour cited remarks from a discharge summary from Kenmore Psychiatric Hospital that was in evidence before him from October 1969 which referred to a “life long history of neurotic symptoms” and which stated that “It seems as if he became more unstable after he was involved in the collision of the Voyager and Melbourne in 1964”.
His Honour’s findings in relation to prejudice are set out in [72] and [73] of his reasons, and should be set out in full. His Honour said:
Quite apart from the presumptive prejudice inevitably raised by the extensive delay, the defendant can point to the loss of substantial evidence that might have cast light on the issues of causation and damages. There are some records of his medical and psychological condition but the records of any treatment he may have received prior to 1979 which was, of course, some 15 years after the collision, are sparse. There are few records of any of his employers and no taxation returns in relation to such employment he may have undertaken prior to the late 1980’s. Furthermore, the defendant has been unable to locate many fellow sailors who may have been able to observe his behaviour before and after the collision and those few who have been located now have little or no memory of relevant matters.
In these circumstances I am unable to be satisfied that the defendant’s position has not been significantly prejudiced by the extensive delay in commencing proceedings. There are a number of issues which I think it would be difficult, if not impossible for the defendant to now address. For example the suggestion that he might have had psychiatric problems at least since joining the Navy in 1963 cannot now be explored by reference to medical records, his employment history or the evidence of people who knew him. The defendant would be similarly hampered in any attempt to explore other possible causes of his alcohol dependence such as factors related to his upbringing or emotional responses to other incidents. It would also be difficult for the defendant to attempt to disentangle any psychological injury sustained by his response to the collision from any other psychological harm sustained as a result of other factors such as his guilt over the death of his father, his service in Vietnam, or being bashed in jail.
It seems to me that his Honour’s reasoning shows that he clearly took into account the appropriate criteria, and his exercise of discretion cannot be said to fall into error. In any appeal from a discretionary determination, an appellate court must of course be mindful of the principles set down by the High Court in House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ at 504) that:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.
In this matter I do not consider that his Honour’s discretion miscarried. He was confronted with a difficult decision. The incident that is said to have given rise to the cause of action occurred many years ago, and the defendant was able to establish actual, as well as presumptive, prejudice. In considering the claim of prejudice, his Honour applied the statutory test, and was clearly mindful of the guidance afforded by the decision of the High Court in Brisbane South RegionalHealth Authority v Taylor. I refuse leave to appeal.
The consequence of this is that the plaintiff’s action, to the extent that it arose prior to six years before the commencement of the action, is not maintainable. Counsel for the plaintiff indicated that they may seek to argue that, in the case of psychiatric injury, the cause of action only accrues at the point of diagnosis, which in this matter would be within the limitation period. That matter may be litigated at the proper time, and I do not believe that I should express any view on the matter.
Leave to appeal is refused.
IN THE SUPREME COURT OF THE ) No. ACTCA 25-2006
) No. SC 324 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BARRY THOMAS BLUNDEN
Plaintiff
AND:COMMONWEALTH OF AUSTRALIA
Respondent
Judges: Gray and Moore JJ
Date: 2 October 2007
Place: Canberra
REASONS FOR JUDGMENT
MOORE J:
I have had the benefit of reading the proposed judgment of Connolly J in a draft form. I gratefully adopt his Honour’s account of much of the background, the relevant statutory framework and authorities. That proposed judgment is attached as Addendum A to Gray J’s judgment. I agree that leave should be refused. Before Crispin J, the case expressly advanced by the plaintiff was, in substance, that damage was occasioned on the day of the collision. In the result, the parties proceeded on the assumption that the cause of action as pleaded by the plaintiff accrued on the day of the collision and the limitation period concluded on 11 February 1970.
In the course of submissions in this application for leave to appeal, senior counsel for the plaintiff appeared to accept that it was highly improbable that the psychiatric illness central to the plaintiff’s case, post-traumatic stress disorder, was suffered at the time of collision. Given the diagnostic criteria for that illness, this is almost certainly correct: see the discussion of Mason P in Morgan v Tame (2000) 49 NSWLR 21 at [99] and following. It is probable that the assumption, on which the application for an extension of time was based, was adopted, at least from the plaintiff’s perspective, to maximise the period by reference to which damages would be assessed if that point was reached in the litigation. It was probably convenient for the defendant to embrace that assumption.
However, this assumption about when the damage was suffered is not reflected in the pleadings. Nonetheless, it was the basis on which his Honour decided the application for an extension of time, though no express reference was made by his Honour to when the cause of action accrued. Nonetheless, for the reasons given by Connolly J, the exercise of the discretionary power to refuse to extend time is not attended by appealable error.
For my part, I would not endorse an approach that applications for extensions of time should ordinarily be heard and determined before trial. When this issue is best addressed will depend on the circumstances of the case. In a case such as the present, the date any compensable injury was suffered by the plaintiff could well be a matter requiring extensive evidence. The statutory criteria in s 36(3) of the Limitation Act 1985 (ACT) for determining whether time should be extended require the Court to focus on the reasons for delay, prejudice to the defendant, the conduct of the defendant after the cause of action accrued, the duration of any disability and the conduct of the plaintiff after he knew that the defendant’s conduct might be capable of giving rise to an action for damages. To evaluate the criteria set in s 36(3)(a)(b)(c) and (d) the Court would need to determine when the cause of action accrued, at least in the absence of agreement or a pleading by the plaintiff fixing the time.
The observations of the members of the High Court in Wardley Australia Limited v Western Australia (1992) 175 CLR 514 quoted by Connolly J are apt to apply, in my opinion, in a case such as the present when the determination of when the cause of action accrued is inextricably linked to the question of whether the plaintiff suffered an injury and if so its nature. On the state of current authority the cause of action accrues when there is a recognisable psychiatric illness: Wilson v Horne (1999) 8 Tas R 363 and Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394. To require the determination of that question before trial invites, at least potentially, a repetition of evidence, cross-examination and argument.
In Wardley, the majority cited with approval (at 533) the judgment of the Full Court of the Federal Court in Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1. In that matter the leading judgment was given by Beaumont J (Black CJ, Gummow, von Doussa, and Hill JJ agreeing). The trial judge had determined, before trial, that aspects of the claims (concerning overseas loans) were statute barred because a limitation period had expired and made a declaration to that effect. The declaration was set aside on appeal. Beaumont J indicated that if the Court could not give a definite answer to the question whether a claim was barred or not, because, for instance, the answer depended upon an analysis of the evidence offered at the trial, the Court should state that it is not possible to give a definite answer to the question at that stage. The approach in Magman and Wardley has been applied in a number of cases: See, for example, Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168, Hamod v State of New South Wales [2001] FCA 157, Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305, Eunson v Beaulieu United Ltd [1999] FCA 1164, Nixon v Phillip Morris (Australia) Ltd (1999) 95 FCR 453, Cadoroll Pty Ltd v Allegra Corp Ltd [1999] FCA 1063, Cubillo v Commonwealth (1999) 89 FCR 528, Chapman v Luminis Pty Ltd (1998) 86 FCR 513, Foodco Group Pty Ltd v Northgan (1998) 83 FCR 356, Brown v Forest Hill Shopping Centre Pty Ltd [1996] FCA 666, Empire Shipping Company Inc v Navix Line Inc [1996] FCA 333, State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 and Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667).
Two of these cases concerned allegations of negligence and personal injury. The first, in point of time, was the judgment of O’Loughlin J in Cubillo v Commonwealth of Australia (1999) 89 FCR 528. His Honour considered, amongst other things, whether an application to extend time should be heard before the trial. The plaintiffs, Mrs Cubillo and Mr Gunner, both claimed to have suffered psychiatric injury well after the defendant was alleged to have breached their duty of care. Counsel for the respondents sought determination of limitation issues before trial. The Court found that it was not possible to say (as to those alleged injuries) when the proceedings should have been instituted (at [164]). O’Loughlin J said (at [167]):
…Whether those injuries exist, whether they have existed for some lengthy period of time, whether they can be traced back in any meaningful way to the Commonwealth, are not matters that can be the subject of findings in these interlocutory proceedings.
On appeal, in Cubillo v Commonwealth of Australia (2001) 112 FCR 445, the Full Court affirmed the judgment of O’Loughlin J though did not address the issue of when an application for an extension of time should be dealt with. Of interest, the respective periods of delay were 34 and 24 years (at [84]).
Wardley and Cubillo were cited with approval in Energex Limited v Alstom Australia Limited [2004] FCA 575.
The second case considering Wardley in a personal injury context is Nixon v Phillip Morris (Australia) Ltd (1999) 95 FCR 453, a judgment of Wilcox J. The applicants had sought to bring representative proceedings based on s 52 of the Trade Practices Act 1974 (Cth) and a claim in negligence against the respondents, tobacco companies, for having promoted smoking. One basis on which the respondents sought to have the representative proceedings struck out was that the applicants did not have a valid claim against any of the respondents. The respondents referred to the manner in which the pleadings identified the representative group which, in turn, was said to be connected to the time at which the cause of action accrued.
His Honour discussed the decision in Cartledge v E Jopling & Sons Ltd [1963] AC 758 concluding (at [84]):
Finally, if one thing is clear, it is that an issue whether a claim is out of time ought not be determined on a strike-out application. In Cartledge all the other members of the House of Lords agreed with Lord Pearce’s statement that the question is one of fact in each case. It follows it ought to be decided at trial.
His Honour’s judgment was reversed on appeal (Philip Morris (Australia) Ltd v Nixon [2000] FCA 229) but the Full Court expressed no view on this aspect of his Honour’s reasoning (see [187]).
In the present matter, the way the plaintiff has conducted this litigation, when taken together with the answers he gave to the interrogatories, does not preclude him from identifying with more precision than has been the case to this point, when he alleges he first suffered a psychiatric illness as a result of the collision. I understood the Commonwealth to accept this was so during the course of argument in this application for leave to appeal. Identifying with more precision the alleged time of the onset of the illness should probably be done as an amendment to the presently vaguely formulated statement of claim or a reply to the Commonwealth’s defence. The question of whether the power conferred by s 36(2) to extend time should be exercised might again arise. Authority supports the view that Crispin J’s judgment does not preclude another application being made: DA Christie Pty Ltd v Baker [1996] 2 VR 582. If a further application is made, on the material presently before the Court, there would, in my opinion, be a compelling argument that the question of whether time should be extended should be reserved for trial.
Counsel for the plaintiff submitted that in this application for leave to appeal against the judgment of Crispin J, we could revisit the Master’s decision dismissing the application that the extension application be determined at trial. Even assuming we have jurisdiction to entertain an appeal against that order, I would not do so in the absence of the plaintiff having formally articulated with greater precision when he presently alleges he suffered an injury and thus when the cause of action accrued.
I certify that the preceding paragraphs numbered seven (7) to twenty (20) are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Date: 2 October 2007
Counsel for the Appellant: Mr G F Little, SC with Mr J Sharpe
Solicitor for the Appellant: Pamela Coward & Associates
Counsel for the Respondent: Mr R L Crowe SC
Solicitor for the Respondent: Australian Government Solicitor
Date of hearing: 9 November 2006 and 2 May 2007
Date of judgment: 2 October 2007
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