Batistatos v Roads & Traffic Authority NSW and Newcastle City Council

[2006] HCATrans 5

[2006] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S530 of 2005

B e t w e e n -

ANDREW BATISTATOS BY HIS TUTOR WILLIAM GEORGE ROSEBOTTOM

Appellant

and

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

Respondent

Office of the Registry
  Sydney  No S531 of 2005

B e t w e e n -

ANDREW BATISTATOS BY HIS TUTOR WILLIAM GEORGE ROSEBOTTOM

Appellant

and

NEWCASTLE CITY COUNCIL

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 FEBRUARY 2006, AT 9.35 AM

(Continued from 1/2/06)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Joseph.

MR JOSEPH:   Thank you, your Honour.  There are just two matters which, given the extra time, I would wish to make submissions in respect of.  The first relates to the application of the James II Act.

GUMMOW J:   James I.

MR JOSEPH:   James I, my apologies.  In this court in Prowse v McIntyre 111 CLR 264 the High Court there determined that the action on the case came within the exception of section 7, despite the words of that section which did not seem to, on its terms, include actions on the case.

KIRBY J:   What is this case, Mr Joseph, the case you are referring to?

MR JOSEPH:   I have copies.  Prowse v McIntyre 111 CLR 264. His Honour the Chief Justice Dixon was the only judge who in terms determined this issue and he did that at 269. That would have the effect of this claim coming within the terms of that Act as well as opposed to the New South Wales Act. The reason for that would be that the provisions of the New South Wales transitional provision, namely section 6(d), so maintained the former Imperial Act in respect of causes of action accruing before the commencement of the Act.

The second effect would be that the section 52, that is the provision in respect of the absolute bar, might not have applied to this plaintiff.  He would be in a more favourable position under the James I Act than he would be under the Limitation Act.

KIRBY J:   This is not a matter that was argued before the Court of Appeal.

MR JOSEPH:   No.  Before the Court of Appeal both parties - because of our defence which relied on the New South Wales Act, the New South Wales Act was assumed to be the relevant Act.  It only follows your Honour’s Justice Kirby’s initial concerns as to whether the James I Act applied and the short point is this, that if it did apply it would have taken away the benefit of the appellant’s argument that the 30‑year rule provided a parliamentary statement as authorising delay up to 30 years.

KIRBY J:   It cuts both ways if it is a correct legal proposition.  In the first place it takes away the 30‑year argument, but against that it leaves open‑ended the disability of the plaintiff and in that sense perhaps argues for the provision of some remedy in case of gross delay and other disadvantage.

MR JOSEPH:   We say that if you take away the 30‑year rule, there is nothing in any statement of Parliament upon which my friend can rely.

CALLINAN J:   Mr Joseph, if the trial goes on, the limitations point, whatever it is, remains to be decided, does it?

MR JOSEPH:   Yes.

CALLINAN J:   So that these are only makeweights with respect to the arguments generally.  We do not have to decide the limitations point.

MR JOSEPH:   No.

CALLINAN J:   And nobody has decided and it remains available to you if you can press it.

MR JOSEPH:   It would go into the mix of considerations the Court might have regard to on the abuse of process argument.  The only other matter ‑ ‑ ‑

CALLINAN J:   It is difficult for us when we do not have any considered decisions below as to all of these matters.

KIRBY J:   The only problem is that quite an important argument in the case has been posited on the 30‑year rule.

MR JOSEPH:   Yes.

KIRBY J:   And if that is not applicable in this instance, well, it becomes completely irrelevant, the 30‑year rule becomes irrelevant.

MR JOSEPH:   It becomes irrelevant.  We say it does not make any difference because it could only have worked in favour of the appellant in the court below in the form of the argument my friend puts and it makes the argument, relying on the Limitation Act, as a statement of Parliament or the intention of Parliament even less important.

KIRBY J:   Do you know if the other respondent embraces this argument or not or is that just ‑ ‑ ‑

MR JOSEPH:   I have not spoken to Mr Temby, of course, who was excused, but I do not know what my friend wishes to say.  The only other matter I wished to refer to is a matter concerning what was meant in Cox v Journeaux by unnecessary injustice.  It is our submission that embraced in that concept is burdens beyond the normal that parties would otherwise have to bear in litigation and “beyond the normal” means, in our submission, having regard to the sort of considerations with which the majority in Walton v Gardiner refer to, namely, a procedure which is an instrument of injustice or unfairness, and in that regard we would submit that the finding below which is unchallenged, that is, a fair trial, perhaps for either party is not available but certainly not available to the respondents, is a form of unnecessary injustice and it is something which, in our submission, this Court has clearly adopted in other areas and certainly in other civil cases.

We refer in our submission to the fact that forums non conveniens and estoppels are all forms of injustice which this Court has used under the category of abuse of process because it provides injustice and unfairness to the parties.

There is nothing, in our submission, that prevents – and this Court has adopted – the abuse of process to civil proceedings.  This Court has adopted in civil proceedings and has adopted it in civil proceedings where parties are still within the Limitation Act.  For example, in a forums non conveniens determination the cause of action could well be within the Limitation Act.  It could well lead to the action being totally brought to an end because of limitation issues in the other jurisdiction, but the fact that it is brought to an end is not the determining factor as to the availability of the power because the availability of power is based on considerations wider than the private interests of the parties before the Court.

KIRBY J:   I am sorry to persist with this, but you did mention a provision in the transitional provisions of the Limitation Act 1969.

MR JOSEPH:   Yes, section 6(d), I think it is, your Honour.  It is in the Act itself, in the body of the Act.

KIRBY J:   Yes.

MR JOSEPH:   Paragraph 6(d).

KIRBY J:   That, at least, possibly does not prevent the commencement of the action in a time allowed by the Imperial Act.  It requires then some reconciliation of that Act, the Imperial Act, with the new Act applying, according to its terms, to an action which is in being at the time.  It is not entirely clear as to how the two Acts are intended to interrelate.  There must have been many cases on this at the time when the 1969 Act came into force in New South Wales.

MR JOSEPH:   If it was statute barred before the commencement of the Act the new Act had no effect.  I think that is the effect of section 6(b).  This action is not barred by an Imperial enactment because of what was said by the High Court in Prowse v McIntyre.

CALLINAN J:   Mr Joseph, I must say I have an initial difficulty with the proposition that it is an abuse of process to start a process and to pursue it, that you are entitled to undertake.  I mean, how is it an abuse of process if you do what the law says you can do.  It is not as if you are misusing court procedures or as if you are in some way doing something that you are not entitled to do.  You are just doing – I know this is really repeating, in a sense, what Lord Diplock said in Birkett v James, but how is it an abuse of process?  The expression does not seem at all apt to me to something that the law says you can do.

MR JOSEPH:   Your Honour, with respect, that is the Justice Brennan view in Walton v Gardiner and it is what is called in Walton v Gardiner the narrow view, with respect.  Your Honour, on the other hand, it is clear that there is nothing in law that prevents you from starting an action in the Supreme Court of New South Wales that you should have started in Victoria.  There is nothing in law that is wrong about that and you say the consequence of that why should not the New South Wales Supreme Court hear it if in law you - because the long‑arm provision or whatever, you are entitled to start it.  What the Court does in that situation, although under the – I understand the concept of abuse ‑ ‑ ‑

CALLINAN J:   That is a different sort of a situation, is it not?  I know what you are putting, that it is not a convenient forum and ‑ ‑ ‑

MR JOSEPH:   But legally you have this entitlement to start it there.  You have the entitlement, you are not statute barred, the Court has jurisdiction.  It is all above board in that sense.

CALLINAN J:   In that situation you equally have a right to start it elsewhere.

MR JOSEPH:   Yes.  Well, you might not in fact.

CALLINAN J:   What I am concerned about is undue judicial intervention.  Now, courts are here to hear cases that parties are entitled to bring and to hear them to the end, in general, and it seems to me that one needs something very, very exceptional indeed for that process ‑ ‑ ‑

MR JOSEPH:   Well, I do not know that we would dispute that.  We would not dispute – and I do not think we would dispute the exceptional aspect of a finding of abuse in a civil action.  The question is – so the power has to be available to a court to ensure, as the High Court says in Walton v Gardiner, that the ‑ ‑ ‑

CALLINAN J:   But none of the Court’s processes are in any way being abused in a case of this kind.  The defendant is at a serious disadvantage, but courts are used to weighing the capacity of parties to give evidence in determining the outcome.  It happens all the time.  There are very few perfect cases on either side.  There are always evidentiary gaps and problems.  They may be much more acute in the case of an event that happened nearly 40 years ago.

MR JOSEPH:   But courts are all the time controlling their processes.

CALLINAN J:   Controlling their processes is one thing.  Interfering with processes and stopping processes which a party is entitled to undertake may be a different thing.

MR JOSEPH:   Well, they do that but, of course, striking matters are for all sorts of reasons ‑ ‑ ‑

CALLINAN J:   Because you cannot possibly win.  That is the General Steel Case.

MR JOSEPH:   Or you have not complied with court orders.

CALLINAN J:   Yes.

MR JOSEPH:   I mean, you might have a totally meritorious case.  You are there legitimately, you have a meritorious case, but ‑ ‑ ‑

CALLINAN J:   But you are in default in some way if you have not complied with an order of the court or ruling.

MR JOSEPH:   But it is the interference of the Court that is occurring.

CALLINAN J:   But that is part of the law.  The rules of court are part of the law.  They contemplate that this can happen, whereas this is an entirely judge‑made rule about stopping cases for abuse of process which have been brought within the limitations period.  It is entirely judge‑made.

MR JOSEPH:   Well, it is judge‑made law and a judge‑made law because the courts – it has the responsibility of ensuring its processes are not – that a fair trial can be obtained and if – I mean, I am just repeating what they said in Walton v Gardiner, that there is a public interest there and that is where the courts start interfering, where there is this public interest and not a sham.  What the court below says, look, this would be a sham to require parties to go through a process that forensically will be a sham because no one could be expected to determine that issue.

I mean, can I just turn it on its head slightly?  If an application for an extension of time was to have been made after six years in this case, the Court, by way of judge‑made law, would have – by way of South Brisbane v Taylor would have said there is presumptive prejudice and we will determine in the exercise of our discretion, judge‑made law, whether a fair trail can be obtained – is possible.  Now, all that is judge‑made law.

CALLINAN J:   But the enlarging provisions contemplate that judges will make law in respect of that issue, because there is a specific provision in many cases as to what must be taken into account in exercising the discretion to extend time.

MR JOSEPH:   Other than it is just and reasonable is the term of it.  All we say simply that if after six years the courts are concerned about a fair trial, and legitimately so, why should it be any different when it comes to a case where those sorts of provisions are not applied?  Where there is in fact nothing in the legislature that says that is not to be a consideration of the courts, why should they not be similarly concerned in a case such as this after 29 years?

CALLINAN J:   A person who has to make an application to extend time is already in default in some way.

MR JOSEPH:   Yes, he needs an indulgence.

CALLINAN J:   He or she needs the indulgence.  You are the ones, really, who need the indulgence here.

MR JOSEPH:   We simply say that it is so critical to the court and its processes that they maintain the concept of a fair trial – and they do that in many ways, of course, requiring exchange of evidence and requiring the parties be available for cross‑examination, et cetera, and the courts are all the time – through their Rules, true, but sometimes through a judge‑made law – update all the time that particular concern of it, that it would be over quickly, that we do not have delay, et cetera.  Now, this is all the court is doing constantly to ensure that the parties who do have legitimate access to it conduct themselves with the fair trial in mind and being controlled by the court.

CALLINAN J:   These are all truly matters of process rather than the right to pursue your actions.

MR JOSEPH:   No, we say it is a matter of fundamental concern of the court to get public confidence that those things occur.  They do it by way of process.  Process is simply the means to that end, but if that process is not available then the court still retains its overwhelming right, in our submission, based on the abuse of process concept, to bring litigation to an end if the concepts of fair trial cannot be adopted.  If your Honours please.

KIRBY J:   Do you actually reach for an abuse of process principle in this case?

MR JOSEPH:   Yes.

KIRBY J:   But in this case how can abuse of process be the category, given that the appellant himself is under such disabilities and had nobody at a very large interval of time to represent him and to speak for him and to pursue and protect his rights?  I mean, in the old days perhaps the Master in Lunacy would have done that, but that went out with the Lunacy Act.  So what is the abuse by this particular appellant?

MR JOSEPH:   Your Honour, we say you do have to go beyond the particular appellant because what you are looking at is the trial.  We have not suggested there is fault here on behalf of the appellant and so the abuse is not in the appellant.  The abuse is the use of the court’s process in a case where fair trials cannot be made available.  It can occur for reasons of intention, it can occur for unintentional reasons.  This is all relevant, no doubt, in the mix, but ultimately it is a discretion that the court does not use often and should not use often but it cannot stop by the accidents that have occurred to this plaintiff through his disability.  That is what we simply say.

KIRBY J:   Fair trial includes fair trial to the plaintiff and justice to the plaintiff, and he is a person under disability, as Justice Hayne pointed out yesterday, who has not had anybody to speak for him.  So that is a question to be taken into consideration, surely.

MR JOSEPH:   That is a relevant consideration, your Honour, but it cannot be the beginning and the end of it, that is all.

KIRBY J:   It cannot be overlooked or cannot be denigrated or put down.

MR JOSEPH:   No, it is not.

KIRBY J:   If you can find – you see, we do not seem to have any help here on the United States authorities and their judicature is in some ways closer to ours than the English and Irish.

MR JOSEPH:   I refer to it in my submissions, your Honour, the American situation.

KIRBY J:    Are you aware of that decision where Justice Frankfurter explores the fundamental foundation of this jurisdiction?

MR JOSEPH:   In my submission I do refer to a part of Justice Frankfurter in a case of Baker v Carr but the American situation, as I have said in our submissions, is the use of equity in this situation and the use of tolling in the case of plaintiffs who need extensions and the use of concepts of estoppel in the case of defendants who should not have to face unfair trials.  Of course, there is the constitutional provisions as well that would no doubt affect the American situation.  I refer to a judgment of Judge Posner ‑ ‑ ‑

GUMMOW J:   What paragraph?

MR JOSEPH:   I am sorry, your Honour.

HEYDON J:   Paragraph 18.

MR JOSEPH:   Yes, thank you, your Honour.  Baker v Carr is at 11.  So in that case of Judge Posner there was no limitation period and the court inferred one, but there is this use of equitable doctrines in America that we say are essentially similar to the concept of abuse of process.  I mean, basically, the courts are weighing up the fairness to parties by reason of delay and having regard to the prejudice caused by that delay.

GLEESON CJ:   I think that underlying the concerns of Justice Brennan in Walton v Gardiner and in some other cases is a problem concerning the role of courts and the question arises as to what a court is doing when it says to a litigant, “Go away.  Take your business elsewhere.  We have shut up shop for the day.”

MR JOSEPH:   I thought, with respect, he was concerned about the courts getting involved in making judgments on people’s rights without those rights having been determined and how it is a ‑ ‑ ‑

KIRBY J:   It is not a bad concern.

MR JOSEPH:   No, but what does it look to the public to have courts expressing concerns of public interest and how those categories can be so illusory in many senses.

GLEESON CJ:   But what the court has said here, rightly or wrongly, is we know this is not your fault, you are under a disability, but because of all the time that has elapsed we cannot decide this case.  Question:  is that a stand available to courts having regard to their role in the system of government?

MR JOSEPH:   Well, this Court clearly has said it is.  It certainly said so in criminal cases.  It certainly says so in disciplinary cases.

GLEESON CJ:   I do not want to be unnecessarily pejorative, but there was something close to fault in Walton v Gardiner.  There the moving party was trying to resurrect a claim that had been rejected years before.  They were having another go at something in circumstances where that was found to be oppressive to the doctors.  May be a slightly different situation.

MR JOSEPH:   I can only rely on what Chief Justice Mason said Jago:

The continuation of processes which will culminate in an unfair trial can be seen as a “misuse of the Court process” which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. 

Now, I understand it was a criminal case.  That is at the bottom of page 30 and top of page 31.  It is the public interest which is against the holding of an unfair trial and we cannot see, with respect, that that principle, given it is the same court obviously, cannot have the same relevance in a civil proceeding as it has in a criminal proceeding.

HAYNE J:   If there is a distinction it lies in the content of the word “unfairness”.  Unfairness in the criminal context may be radically different from unfairness in the civil context, because in the criminal context you have the State arrayed against the individual in an accusatory system.  Adjustment of rights between citizens may be a different field of discourse.

MR JOSEPH:   Well, we accept that it may be more exceptional in a civil proceeding for those reasons, but we simply say, and given that the liberty is at stake, et cetera, et cetera, they are all obviously powerful reasons why in a given case it is more likely that you will get the remedy than you would in a civil case.  But it cannot be, we submit – at the end of the day it is a trial all the same.  There are parties who are entitled to the fairness of a trial and if it is totally unavailable we simply say, even in circumstances such as these, that ultimately the same principle must apply.  But the discretion might be – as Mr Temby said yesterday, obviously for reasons of differences, the remedy may be less available in the characterisation of the process at stake.

GLEESON CJ:   Thank you, Mr Joseph.  Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honour.  Your Honours, I want to deal primarily with two aspects, the intent of the statute, and I want to attempt to distinguish Walton v Gardiner.  Can I say about events this morning and yesterday afternoon where it is said in fact the plaintiff’s situation is covered by the 1623 statute rather than the 1969 one, that we are placed at a considerable disadvantage because this case has been run, as is apparent from the judgment of the Court of Appeal, at all times on the basis that the rights of the plaintiff would be determined within the walls of the 1969 statute.

KIRBY J:   I understand that, but we are not sitting here as arbitrators. We are sitting here as the highest Court of the land and committed by the Constitution to giving effect to the law, and that is why I raised this matter. If you are at a forensic disadvantage, well obviously you should have opportunities to respond, but it seems to me we have to get clear which was the statute applicable because how foolish we would look if we dilate on the ultimate time bar of 30 years and it does not really apply. I do not necessarily want to get into this now if it is something that is better done by note later to ‑ ‑ ‑

MR TOOMEY:   I would like to touch on it because I want to develop the argument which arises out of the terms of the 1969 statute, so I want to touch on the question of the effect of the 1969 statute on the plaintiff’s rights under the 1623 Act.

HAYNE J:   Does not the applicability of the statute depend upon the unresolved factual question about the state of capacity of the plaintiff at various times?

MR TOOMEY:   It does, your Honour.

HAYNE J:   There is no finding of fact about that, is there?

MR TOOMEY:   No.

HAYNE J:   How are we to determine which statutes applies when there is an unresolved question of fact about the capacity of the plaintiff at various times?

MR TOOMEY:   Your Honour, there was material before the Court from the plaintiff of two doctors, a psychiatrist and an orthopaedic surgeon, which said that the plaintiff at all material times was disabled.

HAYNE J:   Maybe material, but there has been no determination of that issue, has there?

MR TOOMEY:   Only on the interlocutory basis.  It could be challenged on the trial, but there has been an interlocutory finding that he was disabled.

KIRBY J:   You want the 1969 Act, do you not, because it gives you the 30 years?

MR TOOMEY:   We do.

KIRBY J:   You say that whatever else judges can do within that 30 years they cannot or should not interfere?

MR TOOMEY:   It strengthens our argument.  We have the argument anyway because although the English cases have not been looked on with favour so far they were dealing with the unlimited postponement.  There was no long stop provision in the English provisions so those English cases apply.

GLEESON CJ:   If you are statute barred that is the end of the matter?

MR TOOMEY:   Yes, your Honour.

GLEESON CJ:   The debate was conducted in the Court of Appeal upon the hypothesis that you were not statute barred because it is only upon that hypothesis that the question of the exercise of this discretion arises?

MR TOOMEY:   Right, your Honour.

GLEESON CJ:   If you are not statute barred what difference does it make whether the statute that fails to bar you is the Imperial statute or the New South Wales statute?

MR TOOMEY:   Your Honour, the difference is that there are advantages for us under the 1969 Act – and I am meeting Justice Hayne’s query to me yesterday, does not the Act simply provide a defence for a defendant to plead a ‑ ‑ ‑

GLEESON CJ:   But, whichever of the two Acts is applicable, if you are not statute barred, you have the consequence that the statute does not prevent you from bringing the action.  I know that you say the statute positively permits you to bring the action.

MR TOOMEY:   Yes.

GLEESON CJ:   That last step is controversial, but what difference to your argument does it make whether the statute to which you are referring as the source of your permission to bring the action is the Imperial statute or the State statute?

MR TOOMEY:   It makes this difference, your Honour, that the State statute in section 63 extinguishes the action at the expiry of the primary limitation period.  It is not just that it ceases to be maintainable; it is extinguished.  This question was dealt with by this Court in The Commonwealth v Mewett where it was said that that is the effect and what section 52 does is say, if you are disabled, the operation of the limitation period is suspended.  So it actively prevents the extinction of your right and so, in our respectful submission, it goes much further than what Justice Hayne put to me yesterday, allowing a defendant to plead a defence.  It says, “We remove from you the extinction of your right which would occur after three years or six years”.

KIRBY J:   But I also under that you want to use section 51.  I appreciate the controversy about it.

MR TOOMEY:   We do.

KIRBY J:   You say Parliament has given its attention to a long stop ‑ ‑ ‑

MR TOOMEY:   We do, yes.

KIRBY J:   ‑ ‑ ‑ and in New South Wales with the Law Reform Report it specifically said there will be a long stop but it will be 30 years and if that is what Parliament has said it is true the defendant may not raise it and it may not be decided but Parliament has sufficiently addressed the issue and it is no business of judges within that time to be stopping parties from coming to court and having their day in court.  They may win or they may lose.  The problems of proof may be great and so on, but they can have their day in court, and that is what Parliament has said.  Some of the English cases appear to give some support to that type of argument.

MR TOOMEY:   They do, your Honour, but they give support for it ‑ ‑ ‑

KIRBY J:   They do not have a long stop provision but they do say that you go to what Parliament has enacted to try and build the common law around that.

MR TOOMEY:   The expression in the English courts, derived from Birkett v James, is that Parliament by the Limitation Act recognises the plaintiff’s right to bring his action within the limitation period, and particularly in the case of a disabled person, it must be so.

KIRBY J:   But, Mr Toomey, does not this demonstrate that for good or bad we have to get clear which statute applies?

MR TOOMEY:   Yes.

KIRBY J:   It has been raised and it is not resolved satisfactorily by the oral argument.  I just think it is going to have to be done – the research that ought to have been done before has to be done and we just have to get it right.

MR TOOMEY:   We are happy with that position, your Honour, and we recognise it, with respect.  Can I just take your Honours to what we say are the relevant provisions of the Limitation Act 1969 for the purposes of the argument. It is not only section 6(1)(d) which my learned friend drew your Honour’s attention to. It says, subject to an irrelevant consideration:

nothing in this Act:

. . . 

(d)      prevents the commencement and maintenance of an action or arbitration within the time allowed by an enactment or an Imperial enactment repealed or amended by this Act on a cause of action which accrued before the commencement of this Act –

But section 7 says:

Nothing in this Act:

(a)      applies to an action or arbitration for which a limitation period is fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act) ‑ ‑ ‑

GUMMOW J:   Yes, that would deal with merchant shipping cases.  That is what they would have had in mind then.

MR TOOMEY:   Well, your Honour, it would, but it would go wider than that.

GUMMOW J:   Yes, but that would be an example.

MR TOOMEY:   But that may well have been the rationale, with respect, your Honour.

GUMMOW J:   Yes, and 6(1) is saying to defendants, “You are not going to be worse off under this Act than you would have been under the Imperial Act”, is it not?  Is that not the idea?

MR TOOMEY:   I think it is saying to plaintiffs, your Honour.

GUMMOW J:   Sorry, it is saying to plaintiffs, “You won’t be worse off than you would have been under the Imperial Act”.

MR TOOMEY:   Yes, that is so, your Honour.

GUMMOW J:   “You may be better off, but you won’t be worse off”.

MR TOOMEY:   That is right.  But, your Honours, having regard to the uncertainty of the situation, if I could shortly just walk your Honours through what we say is the effect under sections which affect the situation.

GLEESON CJ:   When you are giving us your written note you will obviously include decisions of the Court of Appeal of New South Wales?

MR TOOMEY:   Yes, your Honour.

GLEESON CJ:   This is an issue.  The issue of the relationship between the 1969 Act and the Imperial Act I am certain is an issue that has been litigated and has been the subject of decisions.

MR TOOMEY:   It must have been.  Your Honours, apart from sections 6 and 7, the next applicable section is section 11(3) which defines “disability”.  Your Honours will see that 11(3)(b) says:

For the purposes of this Act a person is under a disability:

. . . 

(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 –

So if the plaintiff came under this Act, if this Act supplanted the Imperial Act on 1 January 1971 when the Imperial Act was repealed and this Act came into effect, then 28 days after that – not at the exchange point, but 28 days after that – the plaintiff became subject to section 52 of the Act as a person under a disability.

KIRBY J:   Where does the 28 days come from?

MR TOOMEY:   It comes from 11(3) because that is the period in the definition of “disability”.  He is under a disability while he is:

for a continuous period of twenty-eight days or upwards, incapable –

et cetera.  So 28 days is the threshold for him being disabled.  Section 14(1), as it read in 1969:

An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues –

and one of those is “a cause of action founded on tort” – that is 14(1)(b).  Section 63 then has the effect, as I said, of extinguishing the right on the expiration of a limitation period.  Section 63(1) reads:

Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person’s successors, extinguished.

That is where it may well be that the Act differs from most Acts.  We would say it is not maintainable and leave it at that.  Now, of course, there is a pleading section which says that if you are going to raise the limitation period you must plead it in bar.  That is section 68, but it is merely a pleading section and it merely reproduces the common law, because it was a special plea and you could not rely on the defence unless you pleaded it.  Then finally section 52(1):

where:

(a)      a person has a cause of action,

(b)the limitation period fixed by this Act for the cause of action has commenced to run, and

(c)      the person is under a disability,

in that case:

(d)the running of the limitation period is suspended for the duration of the disability, and

(e)if, but for this paragraph, the limitation period would expire before the lapse of three years after:

(i)the date on which the person last . . . ceases to be under a disability, or

(ii)     the date of the person’s death,

(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.

In other words, when he comes out of his disability, if the primary limitation period would expire, say, in a year’s time, then he has three years, but in this case he would have six years, so that subsection would not apply.  The effect is, in our respectful submission, because the running of the limitation period is suspended, it is indicated by the Parliament that it is intended not only that time will not run but that it will not have any effect.

What the Parliament is saying is you can be cut out of the Act until your disability ceases and then the Act starts to run again or, after your death, for your estate.  In our respectful submission, that is just more than just saying the Limitation Act does not apply to you.  It is taking limitations out of consideration until the disability is finished, except that by section 51:

Notwithstanding the provisions of this Part –

into which section 52 falls –

an action on a cause of action for which a limitation period is fixed by or under Part 2 is not maintainable if brought after the expiration of a limitation period of thirty years running from . . . that cause of action –

So that is the long stop, that is the bar.  Can I very shortly, because of the controversy ‑ ‑ ‑

KIRBY J:   Was it in Justice Bergin’s reasons or Justice Hoeben’s reasons that the, you say, interlocutory finding was made of the extent and continuance of your client’s disability?

MR TOOMEY:   Justice Hoeben adopted Justice Bergin’s finding.

CALLINAN J:   Mr Toomey, I am sorry, I still have a little bit of doubt about this.  Say the Court were to hold that there was power; you say that you should still win?

MR TOOMEY:   Yes, your Honour.

CALLINAN J:   And you point to grounds 2.2(c) and (d) as raising discretion, is that right, on page 479?

MR TOOMEY:   Yes, your Honour.

KIRBY J:   Mr Temby seemed yesterday to be saying there were no discretionary – I was surprised at that submission but you assert that – you are sure of the ‑ ‑ ‑

MR TOOMEY:   We have never abandoned it and we maintained it in our notice of appeal.

CALLINAN J:   There was no fetter on the special leave that you were granted.

MR TOOMEY:   No, your Honour, there was not.

CALLINAN J:   That being so, it seems to me, Mr Toomey, that you may be assisted by a passage in the joint judgment of the Chief Justice, Justice Gummow and myself in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454, paragraph 36:

that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted.

You get cases that are very imperfect with respect to the evidence, but the court takes into account the advantages and disadvantages on each side.

MR TOOMEY:   Absolutely, your Honour, without doubt.  In weighing the evidence of one side the court will have regard to the fact that the other side is not in a position to challenge it.

CALLINAN J:   Which might go very much against you at a trial. 

MR TOOMEY:   Quite so.

CALLINAN J:   It is a reasonable rule designed to meet this sort of situation.

MR TOOMEY:   Your Honour, may I pick up something your Honour said in argument to my learned friend, Mr Joseph.  There are no perfect trials and there has been no answer given by either of the respondents to the theoretical case I posed of businessman A and businessman B who meet in Sydney.

KIRBY J:   In fairness, they do give an argument.  In their written submissions they say they accept that that is theoretically possible but that is not this case and Justice Bryson was right to say this is really at the extremity.  It is presenting the obligation on the respondents to go to a trial where you say we are going to get a fair trial but we just cannot because insurance – we do not even know who our insurer was.  It is just too long.

MR TOOMEY:   Your Honour, it is not this case but it throws light on this case because the right that the respondents are contending for is the right of the courts to stay an action regularly brought, no fault on the part of the plaintiff at any time.

GUMMOW J:   Now, what do you mean by “fault”, Mr Toomey?  If you are going to enunciate some principle ‑ ‑ ‑

MR TOOMEY:   I mean some conduct – I use it in the sense used by Justice McHugh in Herron v McGregor, your Honour, oppressive conduct.

GUMMOW J:   Oppressive conduct.

MR TOOMEY:   Yes, that is what he said.  He said he recognised the right of a court to interfere in civil and criminal proceedings which were governed by a limitation period if there was oppressive conduct on behalf of the plaintiff or the prosecutor.

GUMMOW J:   What does that mean?  What does “oppression” mean?

MR TOOMEY:   Burdensome, harsh, wrongful is the dictionary definition.

CALLINAN J:   Collateral purpose.

MR TOOMEY:   Collateral purpose.

CALLINAN J:   It is discussed in Williams v Spautz 174 CLR.

MR TOOMEY:   Yes, your Honour.

GUMMOW J:   Do you adopt that?  Is it Williams v Spautz oppression?

MR TOOMEY:   No, it is not, your Honour, because that was a collateral purpose.  Nearly got me, your Honour, but not quite.  Some of the traditional categories are set out in Walton v Gardiner, also, and if I may say so, with respect, what your Honour the Chief Justice says is clearly right, that there was an oppressive element in Walton v Gardiner because there was, in a way, an attempt to relitigate things which had been permanently stayed and stayed by the Court of Appeal because of appalling and inexcusable delay.

HAYNE J:   That was absent in Jago, was it not?  All that was present in Jago was delay and the oppression lay in maintenance and prosecution of the proceeding.

MR TOOMEY:   That is right, your Honour, and this Court refused, of course, to act in Jago.

GUMMOW J:   I have been looking at 392 and 393 and there is no finding about disability.  What was said was that there was “a reasonably arguable case” that there was a disability.  Is that right?  That is as high as it goes, is it not?

MR TOOMEY:   I am sorry, your Honour?

GUMMOW J:  

a reasonably arguable case that –

there was:

the requisite disability ‑ ‑ ‑

MR TOOMEY:   That is all we need, your Honour, but of course what the judge below found – I thought that Justice Hoeben also found it but my learned friend tells me he merely adopted Justice ‑ ‑ ‑

GUMMOW J:   It is not surprising that that was the form of the finding, given the nature of the interlocutory proceeding.

MR TOOMEY:   Yes.

GUMMOW J:   Why would you go further?

MR TOOMEY:   I am content with it because a final decision could not have been made and the only evidence before the court was that the plaintiff was under a disability and it was available to the defendants, had they wished to do so, to produce evidence to show he was not so we are in a position of some strength on that question but it is open to be a matter of controversy on the trial.

Your Honours, can I say that Walton v Gardiner is distinguishable for a number of reasons.  It concerned a disciplinary proceeding in which the Court expressly found at 393 that the Medical Practitioners Act which set up the Tribunal did not expressly or by implication prevent ‑ ‑ ‑

GUMMOW J:   You are undoubtedly right about that, Mr Toomey, but that is not the level at which the remarks in the joint judgment are pitched.  You may be right as a matter of ratio but as a matter of looking at what the view on the matter was of the Chief Justice and Justices Deane and Dawson they were putting it at a more general level, I think.  Maybe we are not bound by any of this but that is not really the question.

MR TOOMEY:   Well, your Honours would certainly have regard to it.

GUMMOW J:   Yes.

MR TOOMEY:   I do not go further than saying that it was not this case.  It did not involve consideration of a limitation statute and it did involve consideration of facts which raised consideration of oppressive conduct, none of which are present in this case.  As I say, there was the express finding at 395 – I said 393, it is 395 – that there was nothing in the Act expressing or impliedly cutting down the scope to stay for abuse of process.  The last thing I want to say is to try to encapsulate a general argument on the effect that would arise from ‑ ‑ ‑

GLEESON CJ:   Could I just ask you a question before you move on to your next argument?

MR TOOMEY:   Yes, your Honour.

GLEESON CJ:   Was anything said about this in Polyukhovich?

MR TOOMEY:   I have not looked for it, your Honour.

GLEESON CJ:   Just have a look at that if you would not mind when you are preparing your written argument.

MR TOOMEY:   May it please your Honour.

GLEESON CJ:   It just occurred to me that trying somebody as a war criminal in relation to something that happened during World War II in the Baltic countries might be an example of the sort of situation in which a court would say that trial processes cannot accommodate this.

GUMMOW J:   Well, there was a later application, I think, in Polyukhovich, in the State court.

MR TOOMEY:   Yes.

GUMMOW J:   On these grounds, but I do not think anything is said in this Court which is just dealing with validity.

MR TOOMEY:   Thank you, your Honours, I will look at that.  We want to raise what we say are general considerations of the administration of justice.  There was some discussion yesterday as to the manner in which the ground for the finding of abuse of process could arise in this case.  Your Honour the Chief Justice said that the problem with the word “delay” is that it carries baggage and you suggested that perhaps “lapse of time” might be used instead.  Well, in our respectful submission, lapse of time without fault resulting in prejudice to a defendant adds nothing on principle to prejudice to a defendant arising without a lapse of time.

KIRBY J:   Let us test that.  Assume that your client, still under a disability, survived for 70 years.  Now, subject to the 1969 Act applying, you would say, well, you got the 30 years absolute time, but assume you did not, then do you say that even though everybody has died and there is no one around and all the files have been destroyed and there is no record by which the defendants can defend themselves, there was nothing the courts could do?

MR TOOMEY:   Well, your Honours, that is the most extreme case.

KIRBY J:   You just have to sit through a charade and ‑ ‑ ‑

MR TOOMEY:   Well, the question must be whether there is a provable cause of action and that has been found in our favour, and if that were found in respect of a 70‑year case ‑ ‑ ‑

HAYNE J:   But that is the elision your argument requires, is it not, an elision of there has been a finding of a provable case with the proposition that the defendant failed to demonstrate untenable.  Now, unless you make that elision ‑ ‑ ‑

MR TOOMEY:   If it is an elision, your Honour, rather than saying not untenable means tenable, just as saying not unhot means hot, or not uncold means cold, and in our respectful submission, it is not an elision, it is a proper interpretation of the meaning of not untenable.

HAYNE J:   You have no ground of appeal, do you, challenging what is said in paragraph 79 of the reasons?

MR TOOMEY:   No, because as I said to your Honours earlier, we say that once the finding was made on the General Steel basis everything else went to the question of prejudice, and as I understand it that is accepted by my learned friends.  What they say is the prejudice is so great that you ignore the finding that there is a not untenable case.  We say once you find there is a not untenable case and there is no fault on the part of the plaintiff that is not enough.  If I can just get back to my instance, there is no difference in principle between a person who cannot run an action because of complete loss of evidence after two years and after 22 years.  Why is lapse of time a necessary matter?  If, as the respondent’s argument demands, if the inability to have a trial without prejudice, without the defendants being handicapped by prejudice is in itself enough, then the A and B businessmen example stands.

GUMMOW J:   What is your answer to Justice Kirby’s question?  Are there instances of fault in your theory of fault where there is a disabled plaintiff?

MR TOOMEY:   There could be.

GUMMOW J:   What would it be?

MR TOOMEY:   It could be where the plaintiff, though disabled, had in some way interfered with the trial process, where he had understanding in a dim way that people were going to give evidence against him if he had threatened them or done such things.

CALLINAN J:   Or arguably if somebody on his behalf had misconducted himself or herself?

MR TOOMEY:   That could be so, your Honour, and of course ‑ ‑ ‑

CALLINAN J:   Which was the earlier view of Lord Diplock in McAlpine.  He resiled from that, but he said if the solicitors were at fault then sue the solicitors.

MR TOOMEY:   The English cases are equivocal on it because in one case, in Hogg v Hamilton it was suggested that the parents had known of the existence of the medical negligence and yet it was not taken into account, but what the respondents are arguing for is an unfettered right of the courts to take away the right of a plaintiff who is not in fault and who has not misconducted himself, or to use the words of Justice Lush in De Nier v Beicht, has not disqualified himself from maintaining his action, and because of the effect on the defendant to say the plaintiff shall not have his right.  Now, in our respectful submission, the courts ought have no such power.

Where a Limitation Act says that a disabled person – a particular class of person, disabled persons and infants, are to have this lengthy period of time – in the case of infants if they suffer injury at birth, 18 years – it is unimaginable really that some prejudice would not be suffered by a defendant in 18 years.

GLEESON CJ:   It is 18 years plus three, is it not?

MR TOOMEY:   Yes, but that would be during the disability, your Honour, 18 years and, as your Honour says, plus three once they are of age.

GUMMOW J:   What is the connection with this notion of fault with equitable defences of laches, for example?

MR TOOMEY:   It raises the question of whether laches on the part of those responsible for a disabled plaintiff would be enough.

GUMMOW J:   Yes, that is what I am worried about.

MR TOOMEY:   I suppose it could be said that if those responsible for a plaintiff were dilatory and he lost his action that he might have a right of action against the people who were managing his affairs, but that would be likely to be an illusory right.

GUMMOW J:   What worries me is we are looking at this case through some common law prism but, in fact, the causes of action may be quite different, there may be equitable causes of action, where there is quite a sophisticated system worked out.

MR TOOMEY:   True, your Honour, much more sophisticated than the common law, your Honour.

GUMMOW J:   It is.

CALLINAN J:   Which would look more perhaps to the defendant’s interests, would be much more of a balancing exercise than necessarily would apply in common law. 

MR TOOMEY:   Yes, but it is certainly different.

GUMMOW J:   Are we being invited to destabilise that in some way?

MR TOOMEY:   I would not think so, your Honour.  Equity matters, for a start, are more likely to concern themselves with property and trusts in which the same considerations would not arise.

GUMMOW J:   Or it could be a claim for an account where all the books had been lost.

MR TOOMEY:   Claim for an account has special provisions in the Limitation Act, your Honour.

GUMMOW J:   It does.

MR TOOMEY:   Of course, in respect of land, there always was a long stop provision for land and it was brought down from 40 to 30 years.

GUMMOW J:   Can I just ask you to consider that realm of discourse when you are preparing any further written submissions.  There is a whole panorama and we have just been looking in one side of the panorama.

MR TOOMEY:   Yes, your Honour, indeed.  Your Honours, can I just read ‑ ‑ ‑

MR JOSEPH: Section 9 of the Limitation Act requires laches to survive.

MR TOOMEY:   I should take your Honours to the second reading speech and the Law Reform Commission report very shortly.  It is annexure B to our primary submissions.  The first is the amended notice of appeal and then the second reading speech.  At the bottom of the right-hand column on page 5151 of Hansard the learned Attorney-General referred to the fact that:

Honourable members who have not read the report of the commission will be surprised to hear that, on the question of the general law of limitations in New South Wales, the basic statute that operates on this subject here was passed in 1623 in England – 21 James I, 1623 – twelve years after the King James edition of the Bible was published.  The Government took the view that it was time to review this legislation and to bring it up to date.  In England a review was made in 1874, and again in 1939 . . . 

The 1939 English enactment on this subject ‑ ‑ ‑

GUMMOW J:   We know that, Mr Toomey.

MR TOOMEY:   I am sorry, your Honour.

GUMMOW J:   Mr Conacher was in charge of this.  He was not entirely happy with the English 1939 Act and that is why we have, for example, the extinction provisions.

MR TOOMEY:   That is right, your Honour.  Can I take you finally – I am sorry, there is one relevant matter and that is that the Attorney-General made reference to the fact that the Bill was based on a report of the Law Reform Commission which had been tabled in the House on 31 October 1967.  This debate was on March 1969.  He made the point that the House had had it for 16 months.  The point should also be made that the Law Reform Commission’s Bill became the Act, although in section 51 where the words “of this Act” appeared twice, they were removed.  Apart from that, the Bill appears to be the same.  The Law Reform Commission report included – this is annexure C to our primary submissions and it is the fifth page.  It includes under a heading “Ultimate bar” – paragraph 240 deals with the property bars.  Paragraph 241 says this:

We think, however, that, quite apart from questions of title to land, a statute of limitations ought not to allow an indefinite time for the bringing of actions even if the disabilities and other matters dealt with in Part III of the Bill do exist.  These disabilities and other grounds of postponement may well be outside the knowledge of the defendant and we think it right that, after a period of thirty years has

elapsed, there should be no further postponement of the statutory bar on any ground.

And, in our submission, the legislature put their mind to it.  They were told, in effect, people may not know about it and may be prejudiced by that lack of knowledge, so we cut it off at 30 years.  If the 1969 Act applies, in our respectful submission, that is a powerful argument that it was intended that this power should not reside in the court.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Toomey.  Well, the appellant will have 14 days within which to file such further submissions he may be advised and the respondents will have a further 14 days after that to make any response they wish to make.  We will adjourn for a short time to enable people to get their papers together for the next case.

AT 10.45 AM THE MATTERS WERE ADJOURNED