Batistatos v Roads & Traffic Authority NSW and Newcastle City Council

[2006] HCATrans 4

[2006] HCATrans 004

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 WEDNESDAY, 1 FEBRUARY 2006, AT 11.59 AM

Copyright in the High Court of Australia

__________________

MR B.M. TOOMEY, QC:   May it please the Court, in both those matters I appear with my learned friend, MR S.J. MAYBURY, for the appellant.  (instructed by T.D Kelly & Co)

MR I.D. TEMBY, QC:   If it please the Court, I appear with my learned friend, MR C.F. HODGSON, for the respondent in the first appeal.  (instructed by Crown Solicitor for New South Wales)

MR M.J. JOSEPH, SC:   If the Court pleases I appear with MR S.P.W. GLASCOTT in the second appeal.  (instructed by Phillips Fox)

GLEESON CJ:   Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honours.  Your Honours, the short facts in this case are these.  The appellant is a person who it is conceded has been disabled at all relevant times since the accrual of his cause of action in August 1965.

KIRBY J:   The disability preceded that.

MR TOOMEY:   It preceded it, your Honour.  Since he was a child he had been disabled.  In 1938 he had actually been scheduled under the old Mental Health Act in New South Wales and ‑ ‑ ‑

KIRBY J:   Lunacy Act.

MR TOOMEY:   Lunacy Act, your Honour is quite right, but your Honour is so much older than I.

KIRBY J:   Indeed.  I learned lunacy at Law School but it was gone by the time you arrived, Mr Toomey.

MR TOOMEY:   Yes, and he was scheduled and spent 17 years in a mental home and appears to have been lost by the system.  He then worked in menial jobs until 1965 when he was driving a motor car, had an accident which resulted in him being a quadriplegic, which of course he still is.  The 14 years after that accident he spent in hospital, it appears, because no one knew what to do with him.  He then was rediscovered by his sister who took him over and has looked after him ever since. 

In 1983 the family became aware by chance of a possibility of a cause of action arising out of the accident and thereafter action was commenced timelessly.  The statement of claim was filed 29 years after the accrual of the cause of action.  The Limitation Act (NSW) has a long stop provision of 30 years.

KIRBY J:   That seems to be a dispute between you.  As I understand some of the submissions of the respondent, Mr Temby’s client at least, he suggests that the disability does not run out at 30 years, that it continues to apply.  Now, we will have to get the statute right.

MR TOOMEY:   Yes.  I did not understand that to be right your Honour.

KIRBY J:   I may have misread it.

MR TOOMEY:   I thought it was conceded that in all cases the long stop applies.

KIRBY J:   I may have misread it, but ‑ ‑ ‑

MR TOOMEY:   I thought it was conceded that in all cases the long stop applies.

KIRBY J:   Could you help me with this?  What was the original Imperial Act?  Was that 40 years, was it, James I?

MR TOOMEY:   Your Honour, 1623, was the original Act which still applied in New South Wales in 1969 when the 1969 Act was passed.

KIRBY J:   I realise that but was there a long stop provision under that old Act?

MR TOOMEY:   There was an unlimited disability provision and no long stop provision except, I think, in matters of title to land, and I think that was 40 years which was reduced by the – it may even have been 60 years.  It was reduced in England to 40 years in 1939 and in 1969 in New South Wales it was reduced to 30 years for all actions.

KIRBY J:   It would be helpful to have a copy of that old Act, seeing that that was the Act that was in force.

MR TOOMEY:   The 1623 Act, your Honour?

KIRBY J:   Yes.

MR TOOMEY:   We have, I think, annexed ‑ ‑ ‑

HEYDON J:   The second‑last page of your written submissions.

MR TOOMEY:   Thank you, your Honour, yes.

KIRBY J:   I missed that.

MR TOOMEY:   Your Honours, the course of the litigation thereafter was that the defendants moved to strike out the action as not disclosing the proper cause of action or as, on argument, it being prudent there was not a tenable cause of action.  That was first heard by Master Harrison who held that the plaintiff had a not untenable cause of action.  It then came before Justice Bergin and Justice Bergin dealt with both that aspect and found that the plaintiff had a not untenable cause of action, but also dealt partly with an additional claim that the action should be struck out as an abuse of process by reason of the prejudice arising from the very long delay.

She did not complete her decision on that part of the case because it was adjourned for further hearing.  It came on then for hearing before Justice Hoeben in, I think, 2004 and his Honour dealt both with the strike‑out application and the permanent stay application and dismissed them both.

The appeal then went to the Court of Appeal by both defendants there seeking orders that it should have been struck out, alternatively a stay on the grounds that it was an abuse of process.  The court held that the plaintiff had a not untenable cause of action.  In other words, a master, two first instance judges and three judges of appeal have held that the plaintiff has a not untenable cause of action.

However, they permanently stayed the action on the basis that it was an abuse of process, and that is the point before your Honours.  There is no cross‑appeal nor notice of contention in respect of the finding that the cause of action was not untenable.  So there is the one point before your Honours.

Your Honours, if I can briefly summarise the position in the law before I take your Honours to the statute.  In 1969 the normal – introduced by the Limitation Act in 1969, the, one could say, normal limitation period was six years for both an action in tort, an action in contract whether or not personal injuries was involved.

The statute has since been amended so that the period for bringing a personal injuries action is only three years.  The long stop provision was introduced by section 51 of the 1969 Act and that was the first time there had been a long stop provision in New South Wales in respect of anything other than matters concerning the title to land.  The long stop provision applied to all actions.  By section 52 of the Act the Parliament set up a regimen under which a person under disability had a complex structure which we say set up a sort of a tripartite limitation period because ‑ ‑ ‑

KIRBY J:   Can I just ask you to pause.  The problem of the long stop, as you called it, is that subsection (2) says:

The section does not apply to a cause of action in relation to which an order has been made –

no, that is not it. 

Notwithstanding the provisions [in section 51(1)] an action on a cause of action for which a limitation period is fixed by or under Part II of this Act is not maintainable if brought after . . . thirty years –

but then when you look in Part 2 to section 50F, it says:

If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability.

That seems to be indefinite.  Now, the long stop is subject to Part 2.  In Part 2 is 50F.

MR TOOMEY:   Your Honour, section 50F I think does not apply.

KIRBY J:   Now, I do not know what the answer to this is, but we would have to get the statutory context clear one way or the other.  So will you give that some thought over lunch?

MR TOOMEY:   I certainly will, your Honour.

HAYNE J:   Most immediately 50F is not engaged because of the provision 50A(2).

MR TOOMEY:   Yes, indeed, your Honour.  It was introduced, I think, in 2002.

HAYNE J:   And the reference in section 51(1) is to:

an action on a cause of action for which a limitation period is fixed by or under Part 2 –

At lease one view of that section would be that it refers to a kind of cause of action being a cause of action for which a limitation period is fixed rather than inviting attention to particular circumstances of whether the period is or is not suspended or otherwise interfered with by the disability provisions.

MR TOOMEY:   Well, your Honour, I think there is another way of reading it, which is an action on a cause of action of a kind for which a limitation period is fixed under Part 2.

HAYNE J:   Yes, that is what I thought I was putting to you.  Perhaps I expressed myself badly, but that is what I thought I was putting.

MR TOOMEY:   I am sorry, I misunderstood, your Honour.  No, with respect, I agree with your Honour.

HAYNE J:   Yes.

KIRBY J:   One way or the other, in a sense, the starting point is the statute and we will have to get that very clear because a powerful argument that you advance is that Parliament has turned its attention to a time stop and has fixed 30 years and you are on the cusp of the 30, but you got into that and it is no business of courts, or at least they would not ordinarily exercise their discretion to undermine what Parliament has provided.  Now, that being the case, getting clear what Parliament has provided is quite ‑ ‑ ‑

MR TOOMEY:   Your Honour, I think, with respect, that there is no doubt what the provisions are in respect to this case.

KIRBY J:   A few minutes ago you were apparently willing to concede some doubt.

MR TOOMEY:   With respect, I was not, your Honour.  The situation is that the parties have conducted this case on the basis that the Limitation Act 1969 applies to the proceedings.

KIRBY J:   Did the transitional provisions for the bringing in of the Limitation Act 1969 – well, they would not really apply, would they, because though the disability was back to his birth in 1932, its relevant operation is as to the accident which occurred in the 1960s?

MR TOOMEY:   Yes, but your Honours, it is dealt with by Mr Justice Bryson at appeal book 427, paragraph 9, your Honour:

Limitation provisions which are relevant are the six-year bar for tort claims including personal injury claims in s 14 of the Limitation Act 1969 as first enacted, the ultimate bar or “long stop” of thirty years in s 51 of that Act –

and then his Honour deals with the special limitation of the Local Government Act which does not affect this case in this Court.  Over the page at line 9:

I also notice that the Limitation Act 1623 (Imperial) would (if unrepealed) have imposed a limitation period of six years expiring on 20 August 1971 upon any claim for damages.  However by 1971 the Limitation Act 1623 had been repealed by the Limitation Act 1969: see s 4 and Sched 1; with effect on 1 January 1971. It may be that a longer time than six years was available under the Limitation Act 1623 having regard to s 6(d) of the Limitation Act 1969 which appears to give a person in the plaintiff’s position the benefit of whichever provision is more advantageous. No argument was presented to the effect that the plaintiff’s position could be improved by reliance on the Limitation Act 1623, and the considerable complexities of that Act relating to disability need not be examined.

KIRBY J:   I would like, if I could, to have a photocopy of the entirety of the Imperial Act.  I remember that it was not a particularly long Act, so it is not a great burden on you.

MR TOOMEY:   Your Honour, we will do that.  Your Honours, can I just say this.  The effect of section 52 was that where the limitation period fixed by the Act for a cause of action for a person who was under a disability, as the plaintiff was in this case, section 52 suspended the running of the limitation period for the duration of the disability and the limitation period was extended so as to run from the end of the period of disability, or from death, and we say the third leg of what I described as the “tripartite limitation” is section 51. 

So the disabled plaintiff could sue within three years of the end of his disablement – I am sorry, for this plaintiff within six years of the end of his disablement, within six years of his death an action could be brought on his behalf, or 30 years, whichever was the earliest.  It is said by the respondent Newcastle City Council that there is no limitation period in this case.  We say, with respect, that is wrong.  The limitation period is set in a complex manner by section 52. 

Your Honours, we say the intent of section 52 is to provide that a person who is disabled and cannot thus look after his own legal affairs has this extended period in which to bring his action.  There is in the Act no matter at all which puts any proviso on that right.  He is given the right, we say, by section 52 to bring his action within that period.

KIRBY J:   Is it the giving of the right?  Does not the common law give the right?  Is this not simply something that puts a ‑ ‑ ‑

MR TOOMEY:   It does, your Honour.  It recognises the right to exercise the common law right within the periods which this Act sets out.

HAYNE J:   The other way of seeing it is that a defendant does not have an available defence, and that is all.

MR TOOMEY:   Yes, your Honour.

HAYNE J:   And it is a matter for defence, is it not, a matter to be pleaded?

MR TOOMEY:   It has to be pleaded under section ‑ ‑ ‑

HAYNE J:   And a defendant may choose not to plead it?

MR TOOMEY:   That is so.

HAYNE J:   So all you are saying is that a defendant does not have a statutory defence available to plead?

MR TOOMEY:   No, we say it goes further than that, your Honour, because it was expressed by Lord Diplock in this manner.  I will be taking your Honours to this, but if I can just give you the phrase his Lordship used.  He said ‑ ‑ ‑

GUMMOW J:   Citation?

MR TOOMEY:   I am sorry, it is [1978] AC 297 and I am just looking at page 320C, your Honours, for this purpose of saying what the Act does:

It is an attractive argument that if a court has power to dismiss an action already started because it considers that the time which the plaintiff has allowed to elapse since his cause of action first accrued has resulted in a substantial risk that justice may not be done to the defendant at the trial, the court by parity of reasoning should also have power to prevent a fresh action being started.  But this begs the very question that your Lordships must decide.  It assumes that the court has power to treat as amounting to inordinate and inexcusable delay in proceeding with an action a period shorter than that within which Parliament by a Limitation Act has manifested its intention that a plaintiff should have a legal right to commence proceeding with his action.

GUMMOW J:   That is the point.  I know Lord Diplock said that.

MR TOOMEY:   Yes.

GUMMOW J:   But Justice Hayne has put something else to you and you do not answer that by saying someone who is dead in another country said the opposite.

MR TOOMEY:   No, your Honour, I was reciting that only for the manner in which his Lordship characterised the Parliament having given ‑ ‑ ‑

GUMMOW J:   I know, and there has been a lot of anguish caused by Birkett v James in England.

MR TOOMEY:   I am sorry?

GUMMOW J:   Birkett v James has caused a lot of anguish in England over a long period.

MR TOOMEY:   It has but, your Honour, not on this point, on the point of whether or not a second writ issued after dismissal for want of prosecution can issue as of right within the limitation period.  This point has never been looked at in England, apart from the cases which we cited, particularly Headford, Bull v Devon and Hogg v Hamilton.  It has never been decided by the House of Lords or in fact considered by the House of Lords on this point.

KIRBY J:   Do they have a time stop provision in England now or not?

MR TOOMEY:   Your Honour, I am sorry, I do not know.  I think they do.  They did not at the time Birkett v James was decided.

GUMMOW J:   They have now got Lord Woolf’s reforms, have they not?

MR TOOMEY:   Yes.

GUMMOW J:   They have a completely new civil procedure set of rules.

MR TOOMEY:   Yes, your Honour, and I am pretty sure – I feel ashamed at not knowing, but I am pretty sure that there is a long stop now in England in respect of actions ‑ ‑ ‑

KIRBY J:   We had better have that checked, because in a sense one of the points that gives some support to you, at least in my mind at the moment, is that the paucity of litigation, the fact that you are reaching for these foreign cases and reading us what Law Lords said many, many years ago is maybe an illustration of the fact that everyone has assumed that if Parliament says you can bring an action within a certain period up to the time stop, well, you can and you do.

MR TOOMEY:   Your Honour, I can tell your Honour this, that apart from this case there is no case that we have been able to turn up or the researchers of the defendants have turned up in which the point has been decided against the appellant.

KIRBY J:   That may just be a lack of legal imagination but it may be that that is because of what one of the cases you have cited says, that where Parliament has provided this courts will be very chary about saying, “Well, we don’t care what – we pay respect to what Parliament has said but we still say we have the power to stay the action”.

MR TOOMEY:   Yes.  The quintessential question in this case is whether where a defendant without fault and with continuing disability brings an action within the period allowed by the Parliament the court has power to stay the action as an abuse of process because of irremediable prejudice to the defendant.  That is the very point.

HAYNE J:   The novelty of the point may also stem from the fact that for many years at least those under disability were under the care of someone who had the management of their affairs and it was those persons who fulfilled the obligation of pursuit of rights.  It is in this curious circumstance we have here where the plaintiff is under disability but without an immediate person having care of his interests.

MR TOOMEY:   Yes, your Honour, and certainly with no one having legal care in the sense of having the right to perform acts for him.

HAYNE J:   Having responsibility to look after his interests.

MR TOOMEY:   Yes, that is so but, with respect, that would not alter the effect of the Act if it had the effect for which we argue because positions such as this could arise and must have been contemplated by the Act.

KIRBY J:   But you want to elevate the Act into a right to bring the action.  I think, with respect, that that is misstating things.  I think it is, as Justice Hayne said to you, you have your right from another source and this is a right or a defence in a defendant to plead.  Many a solicitor has been waiting, when an action has been brought, with fear and trepidation to see if a statute of limitations will be pleaded.  Sometimes it is not for a reason or just for oversight.  So it is not really the right that is given by the Limitation Act.  That gives rights to defendants to plead the defence of the limitation bar.

GUMMOW J:   If we are looking at Birkett v James, the argument of Mr Bingham at the top of 310B – I know he lost the appeal, but nevertheless – makes the point that Justice Kirby and Justice Hayne have been putting to you.

MR TOOMEY:   Yes, your Honour.

HAYNE J:   Hundred-year time limits would bring tears to the eyes, would they not?

MR TOOMEY:   They used to in New South Wales, your Honour, and there were lots of special limitations against the Railways Commissioners and people like that and if you did not sue within one year, you lost your right.

KIRBY J:   And there was one in this case, was there not, under the Local Government Act?

MR TOOMEY:   There was, under the Local Government Act.

KIRBY J:   We are not concerned about that?

MR TOOMEY:   No, your Honours are not concerned about that.

KIRBY J:   Master Harrison determined that in your favour?

MR TOOMEY:   Master Harrison held it was an argument that did not apply and that has never been further determined.  Your Honours, can I say this.  What we say is – why I referred to what Lord Diplock said is because his Lordship says the Parliament by the Limitation Act recognises the right to bring the action within the period of time.  It is perfectly right to say that the right is not given by the Limitation Act but the right to bring the action which exists is recognised to be exercisable within the period allowed by the Limitation Act absent more.

In this case we say those are the important words, “absent more”, because we say in this case there is no more.  The Limitation Act says you may bring your action if you fall within the extended periods.  It puts no trammel on it, it does not require that you prove lack of prejudice if you are outside the normal time, it does not give any right to a defendant to curtail the period by reason of lack of prejudice.

GLEESON CJ:   If the Limitation Act created a right of the kind for which you contend, why would it matter if the plaintiff was at fault, assuming he were still within time?

MR TOOMEY:   Because, your Honour, then it might be said that there was something for the Court to fix on because the plaintiff’s fault could be of a kind which was an abuse of process.  An example from the English cases, although it is not directly applicable because it was not in respect of an extended limitation period, was a case struck out for want of prosecution and an assurance by the plaintiff to the defendant that the case had been abandoned, the defendant allowing a crucial witness to get out of touch so that it could not defend the case properly and the plaintiff then bringing a second action, and that action was struck out.

That was an abuse and that is referred to throughout the cases I will refer your Honours to as a type of abuse which can create a right to stop a case within the limitation period.

KIRBY J:   But I took his Honour’s question to be directed to the terms of the statute, you see?  It says “is not maintainable”.  Now, you are trying to turn that into is maintainable if brought before the expiration, which is not what the statute says, and then if it is a statutory right that is maintainable how does any fault on the part of the plaintiff which is not referred to in the statute get lost because there is fault?

MR TOOMEY:   Your Honours, with respect, we do not say the right is created by the Limitation Act.  What we say is that the Limitation Act recognises a right to bring an action which otherwise exists within a period which the Parliament sets out.  It clearly does not create a right to bring an action.

KIRBY J:   Well, where does it recognise that?  Is it in section 51(1)?  Is it anywhere else?

MR TOOMEY:   Well, your Honour, it recognises it because otherwise there is nothing for the Act to act upon.  It is setting out periods during which an action may be maintained.  It does not say that it creates actions.  It says if you have an action this is the period of time within which you may bring it.

GLEESON CJ:   The word “fault” implies a failure to comply with some standard.

MR TOOMEY:   Yes, your Honour.

GLEESON CJ:   What standard is there relevant to the conduct of a plaintiff except that created by the Limitation Act on your argument?

MR TOOMEY:   Justice McHugh, when a judge of appeal in New South Wales in Herron v McGregor, said that in cases where an action was brought within a relevant limitation period that there could be a stay where there was oppressive conduct on the part of the plaintiff or the prosecutor because he was dealing with both civil and criminal cases.

KIRBY J:   That is referred to also, that line of territory, in a number of the submissions in the first respondent’s submissions.  Paragraph 31 refers ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour, but the actual words of Justice McHugh were these, at 253D of Herron v McGregor:

Since the passing of the Statute of Limitations 1623, the institution of most civil proceedings has been subject to time limitations.  Even before that time many actions were subject to time limitations:  see 4 Bacon’s Abridgement, 5^th ed at 461 et seq.  And criminal proceedings heard summarily are also invariably subject to time limitations.  In civil and summary criminal cases, therefore, it hardly seems possible for a court to say that an action brought within the limitation period is oppressive because mere delay in commencing the proceeding has prejudiced the defendant or accused person . . . The limitation period represents the legislature’s judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create.  In respect of criminal charges –

That does not matter.  The last sentence of the paragraph:

Nevertheless, in my opinion the courts have power to stay an action, though brought within the relevant limitation period or even though not governed by such a period, if the conduct of the plaintiff prosecutor is oppressive to the defendant or accused person.

Of course, that is central to our argument that the Act represents the legislature’s judgment.  It is important that I make the point that in this case all that is relied upon is delay, delay occasioning prejudice.

KIRBY J:   The legislature makes no specific reference to abuse of process or contumelious behaviour or wrongdoing by the plaintiff.

MR TOOMEY:   No.

KIRBY J:   If it is sourced in the Act how do you – or the Act is relevant or it represents a legislative judgment, where do you get that from?

MR TOOMEY:   Your Honour, it could not be said that the legislature had said to itself we will consider delay in this but we will also consider other matters such as oppressive conduct, concealment of material, deliberate interference with the course of the trial or some such thing.  But in passing an Act which necessarily envisages that a disabled person may bring an action within 30 years and in passing that Act in the knowledge that prejudice must result from such a delay, it is our respectful submission that the proper reading of the intention of the Parliament, and I will take you to some other material, some extraneous material, but we say that the proper reading is that the Parliament intended that delay alone within the long stop period was not enough.  As the English cases said, they have legislated for delay and prejudice because the very result of what they had legislated is delay and prejudice. 

So, in our respectful submission, for the courts to have any jurisdiction to act on an abuse of process, it must be something outside that which Parliament has legislated for.  That is what the courts have held in respect of the want of prosecution cases.  They have held that in a second writ brought within the limitation period can be brought despite inordinate and inexcusable delay in the conduct of the proceedings first brought but because it is within the limitation period and Parliament have legislated for it to be brought within the limitation period with or without delay then it can only be stopped if the special circumstances arise.

KIRBY J:   Why should the special circumstances, being non-statutory, be limited to contumelious behaviour or abuse of process and not to circumstances where the delay is such in the particular case that it causes sufficient injustice to another party as to render a trial a charade?

MR TOOMEY:   Your Honour, the most immediate matter that springs to mind is that the law is, as it does, moving by accretion.  It deals with a case and says in a case such as this we will stop for abuse of process and in the case of contumelious conduct that is added to the categories of cases in which a matter may be struck out for abuse of process within the limitation period but not delay without fault because that is what the Parliament has legislated for.  The answer may be that the Parliament’s intention could not be read to be that it was saying to a plaintiff, “You may bring an action up to the long stop period during disability no matter what the conduct of your case is”.  That could not be imagined.

GLEESON CJ:   A possible point of view is that what Parliament has legislated for is mere passage of time.

MR TOOMEY:   For anything arising from mere passage of time, your Honour. 

GLEESON CJ:   No, for mere passage of time regardless of the consequences.  A defendant, to plead the statute of limitations, simply has to point to a calendar.  A defendant does not have to say, “I’ve suffered prejudice, it’s oppressive to me for this case to go ahead”.  The defendant just has to say, “X years have elapsed”, that is it and that is all that Parliament has legislated for.  Sometimes passage of time will produce consequences, sometimes it will not.

MR TOOMEY:   Well, your Honour, that would, with great respect, be stronger.  That point would be stronger if it were not that in this Act passed in 1969 there was power given to extend the time for causes of action in which this Court has held that it is necessary for the applicant to prove that there was no significant prejudice to the defendant.  In other words, that power was in the Act.  That consideration of prejudice being needed for an extension of time was already in the Act and since then there have been further parts of the Act enacted, particularly the now provision in New South Wales that you have three years or the maximum of five years extension to avail yourself of which you must satisfy the Court that the defendant has not suffered significant prejudice.

So if that were the case, if the Parliament thought it necessary that in those cases there should be proof of lack of prejudice, in our respectful submission, the passing of this Act – this section as part of the Act in its pure form indicates that because they were dealing with a particular class of plaintiffs that prejudice was not prejudice arising from the delay that Parliament was allowing was not to be taken into account.

May I point this out also, your Honours.  As one of the Lord Justices of Appeal in England has pointed out, if prejudice from delay alone can be used as a basis for a stay, then you have affected a whole class of plaintiffs who in Australia in most jurisdictions have 21 years and at the time that we are talking about had 24 years and that is infants, because if an action is not brought on behalf of an infant within the 18 years of infancy and the three years in respect of personal injury that they later had, if it is brought 20 years later there may be huge prejudice.

Is the Court going to say that that class of litigant who has been given the special right which that class needs because of what they are, is the Court going to say that in every case there can be a consideration of prejudice to the defendant?

HAYNE J:   The underpinning submission seems to be a submission that would confine the ambit of abuse of process.  Do you go so far as to confine it to cases of the kind mentioned by Chief Justice Mason in Jago 168 CLR 26-27 by reference to Varawa v Howard Smith 13 CLR 35 at 55? I do not think Varawa is on the list and you may want to defer answering the question until after the adjournment.

MR TOOMEY:   Yes, thank you.

HAYNE J: Chief Justice Griffith 13 CLR 55 deals with abuse of process in the sense of process used for purposes foreign to the purpose. It seems to me that your submission either seeks to confine it as narrowly as that or perhaps takes a little broader view, but not much broader view, that depends upon ascribing the word “fault” to the conduct of the plaintiff and “fault” in this context seems to be one word that is used to refer to failure to prosecute timeously, a concept that is very difficult of application to any person having a disability. So at some point, what is it that you are saying marks the limit of the jurisdiction to deal with an abuse of process?

MR TOOMEY:   Your Honour, I can answer this part of it in the few minutes before lunch.  If what Justice McHugh said in Herron v McGregor is correct and if the courts have power to stay an action though brought within the relevant limitation period or even though not governed by such a period, if the conduct of the plaintiff or prosecutor is oppressive to the defendant or accused person that, in our respectful submission, is a paradigm, that there must be something which can be characterised as oppression.

KIRBY J:   So we have moved from abuse of process backwards a bit to contumelious conduct, backwards a bit to ‑ ‑ ‑

MR TOOMEY:   No, with great respect, I have not moved, your Honour.

KIRBY J:   You have to find some source for these.  You cannot just pluck them out of the air.  If we are really in the business of trying to find out what the common law is compatibly with the statute we have to get the statute clear and that, I must say, with respect to Justice Bryson, at the time of the plaintiff’s injury the Imperial Act applied and it almost had provided a time bar by the time the Imperial Act went out of operation.  I think it was five years.

MR TOOMEY:   No, in respect of disability, your Honour, the Imperial Act had no time bar – the disability.

KIRBY J:   Well, it may be, but what we then have – the next ‑ ‑ ‑

MR TOOMEY:   I am sorry, I am referring to the 1623 Act, of course, your Honour, not the – yes.  No, the 1939.

KIRBY J:   The next one we have to look at, the next question is, what were the transitional provisions of the 1969 New South Wales Act which applied, as it were, to accidents that had happened before that Act?  Was there anything in it, in the 1969 Act, that made it clear that it operated notwithstanding the running under the previous Imperial Act of a time period, because we have to get the statutory foundation right and then we have to consider what the common law is compatibly with the statutory foundation which is applicable.

MR TOOMEY:   Your Honour, can I say this.  Your Honour is asking us to do something which we had not anticipated because the action has been conducted at all times as is made ‑ ‑ ‑

KIRBY J:   Well, that might be so, Mr Toomey, but we have our duty to the law and if the law that was applicable of limitation law at the time of the accident was the Imperial Act, I do not want to write something which then turns out to be just foolish because we have not given any consideration to the Imperial Act.  So as far as I am concerned, I need a bit of help on the Imperial Act and how it operated and how the supervening Limitation Act which came into force five years after the accident, operated.

MR TOOMEY:   No, with respect, six, your Honour.  It was 1 January 1971.  It was said that it would come in on 1 January 1970, but it was delayed a year.

KIRBY J:   But the accident was in 1965?

MR TOOMEY:   Yes, it was, but the plaintiff was still within the six‑year period at the time the new Act came in.

KIRBY J:   Exactly.  We have to marry these two statutes, at least to find what the route of title for the limitation law applicable to the case is.

MR TOOMEY:   May it please your Honour.

KIRBY J:   The fact that nobody has looked at it, as far as I am concerned I just do not care.  I am going to look at it and I need some help doing it, and when you are looking at cases you might also look at some Irish cases.  I mean, even the first respondent found a decision in ‑ ‑ ‑

MR TOOMEY:   Not northern Irish cases surely, your Honour?

KIRBY J:   Not all these Law Lords, Mr Toomey.

GLEESON CJ:   Is that a convenient time, Mr Toomey?

MR TOOMEY:   Yes, your Honour, thank you.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ:   Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honour.  If I could just hand up to your Honours – we have copies of the whole of the 1623 Act, your Honour, which is only two pages. 

KIRBY J:   There is no rush, just when you get time you can hand it up.

MR TOOMEY:   Thank you, Your Honour.  We have them here.  This usually happens, I was blaming the solicitor and I had them all the time.  I can hand up seven copies, your Honours. 

GLEESON CJ:   Thank you.

MR TOOMEY:   So sections 3, 4 and 7 were repealed by the 1969 Limitation Act.

KIRBY J:   Repealed or simply supervened by ‑ ‑ ‑

MR TOOMEY:   No, repealed, your Honour.

KIRBY J:   What is the power of a State Parliament to repeal an Imperial Act, insofar as it operates in New South Wales, I suppose?

MR TOOMEY:   I expect that is right, your Honour.  Schedule 1, repeal of enactments, 21 James I, Chapter 16, the Limitation Act 1623, sections 3, 4 and 7 repealed.

KIRBY J:   That was in Schedule 1, was it?

MR TOOMEY:   Schedule 1, your Honour, yes.

KIRBY J:   So the schedule has been repealed.

MR TOOMEY:   Schedule 1, repeal of enactments, your Honour, and then Part A, Imperial Acts.

KIRBY J:   I do not think this is a matter to hold us up now.  If it would be not too much trouble if some little work could be done on that later that would be helpful.  It is probable that what Justice Bryson says is correct.

MR TOOMEY:   Well, your Honour, it arises out of the interpretation of section 6 of the Act and section 7.

KIRBY J:   But how does it operate on a matter which is, as it were, part heard having been part of the time expired under the old Act?

MR TOOMEY:   Well, paragraph 6(1)(d), the extent of reading:

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 –

Now, Justice Bryson read that and the case has been conducted on the basis that that was a saving provision which only came into effect when it was necessary.

The parties have conducted the action on the basis that it was unnecessary because the appellant was within time under the Act and so the Act has been regarded by the parties as applying and his Honour so found in the Court of Appeal.

Can I just turn to the question your Honour Justice Hayne asked me before lunch about the effect of what was said by Chief Justice Mason in Jago.

HAYNE J:   My question was more about what you say.

MR TOOMEY:   About what I say about what he says?

HAYNE J:   Yes, about what your propounded limitation on the notion of abuse of process is.  What do you say the relevant content is?

MR TOOMEY:   Well, your Honour, it is protean.  Of that there can be no doubt, but in our respectful submission a person’s action cannot be an abuse of process if it is brought in accordance with an Act in an attempt to enforce a civil right and there is no Act or there is no conduct or lack of conduct on the part of the person propounding the cause of action which can be categorised as improper.

GUMMOW J:   That seems to be inconsistent with what Lord Diplock – let us stay with him for a minute – said in Hunter v Chief Constable [1982] AC 529 at 536 which has been applied often in this Court, in particular, for example, in Rogers 181 CLR 251. He says what we are talking about is:

the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.  The circumstances in which abuse of process can arise are very varied . . . It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

MR TOOMEY:   Yes, your Honour.  We would say that the key word in that passage is “misuse” and it cannot be said that a person who is disabled ‑ ‑ ‑

GUMMOW J:   No, he said:

misuse of its procedure in a way which . . . would nevertheless be manifestly unfair to a party ‑ ‑ ‑

MR TOOMEY:   Yes, but our argument is that it cannot be misuse of a procedure when a person brings an action which he could not have brought earlier which on the face of it is a regular action which has been held to be tenable and there has not been anything on his part which can be categorised as a misuse of the court.

KIRBY J:   That sounds like an estoppel principle.  In other words, you can do it unless by your action you have estopped yourself by wrong action.

MR TOOMEY:   That, I might say, your Honour, is precisely the view that Justice Lush took in the Supreme Court of Victoria in a case called De Nier v Beicht [1982] VR 331, which is on our list. It was a Full Court decision of Justices Lush, Kaye and Brooking. It was one of the cases which fell within the ratio in Birkett v James where a summons had been dismissed for want of prosecution and a new one was taken out within the limitation period.  The question was whether the new writ could be stayed having been brought within the limitation period and the Victorian Supreme Court held that it could not, but I want to take your Honours to the statement of principle obiter by Justice Lush at page 338.  His Honour said:

In my opinion, the basic principle underlying the discussions in Birkett v James is that the law affords a potential plaintiff a right to bring his action.  At common law there was no limit to the time within which action might be brought, though death ended some rights and liabilities.  The duration of the right has been the subject of a great deal of legislation spread over a long period of time; compare Tolley v Morris at p 601, per Lord Diplock.  Directly relevant, of course, are statutes of limitation, a form of legislation known in all countries with juridical systems comparable with our own.  Within the period fixed by the statute of limitations the plaintiff has a right to sue.  The court has no power to abbreviate that right so that it enures for a lesser period merely because the plaintiff has not exercised it.  It may, in particular circumstances, have the right to do so because in one way or another the plaintiff has disqualified himself from exercising it, but beyond that, in my opinion, the power of the court does not go.

KIRBY J:   The question of principle then becomes, if that is correct, why does the court have the power to stop it where the plaintiff has disqualified himself but not the power to stop it where, though the plaintiff has not disqualified himself, the plaintiff is disqualified because of the fact that people have died, the insurance is unknown and grave disadvantage is done to the other party so as to make it inform a trial but not in substance because the other party is deprived by the intervening years of the relevant evidence to defend itself?

MR TOOMEY:   But, your Honour, with respect, that would equally apply to the following facts.  Businessman A from Melbourne and businessman B from Sydney meet in Sydney for the purposes of attempting to reach agreement on a sale of property or some such thing.  They meet.  There is no one else present.  Businessman B gets in his car to drive back to Melbourne.  He is in an accident on the Hume Highway and his car blows up.  He is killed and every document in the car is destroyed.  Businessman A brings an action on the contract which he says was reached between him and businessman B in the meeting in Sydney.  Can the court seriously stay proceedings on that action as an abuse of process?

KIRBY J:   It may go to the exercise of the discretion as distinct from to the power.

MR TOOMEY:   But could there be a discretion?

KIRBY J:   I can throw the same question back to you, Mr Toomey.  Why do you stop it where the plaintiff has misconducted himself and yet not in a case where there is grave and irremediable harm to the defendant in many years later bringing the proceedings?

MR TOOMEY:   One reason is, your Honour, because there is also grave and irremediable harm to the plaintiff through no fault of his own.  He is no more at fault than the defendant is and if it is stayed the plaintiff has lost his action.  In our respectful submission, the court would not act in a way which would have that effect where a person had acted without blame within the law.

KIRBY J:   You may be right, but the question is whether or not at the heart of the concept of what I have called an estoppel principle is some higher rule that courts do not lend their process to proceedings which are offensive to them as courts and that, therefore, there is a common principle between the case where the plaintiff misconducts himself and the case where, though the plaintiff has not misconducted himself, having regard to the passage of time, the bringing of the proceedings exceptionally would be so unfair that the court will not lend its process to it. 

I remember from when we had all those post‑Herron v McGregor cases there was a big debate in the US Supreme Court about what the fundamental principle for stays was and Justice Frankfurter, I think, explained that there were two theories.  One was that you stop a party from using process in a way that is unfair and another theory was that the courts protected themselves, as temples of justice, from being misused.  That issue was never really resolved in the American cases.  The essential question in this appeal is:  is there a common principle at a higher level that is not purely an estoppel principle but is a “temples of justice” type principle. 

MR TOOMEY:   Well, in our respectful submission, if it runs in this case, then it runs in any case.  If the plaintiff has brought this action within a time which the legislature has given him to use and the delay is entirely outside his control, then what does the Limitation Act have to do with it?  Within a primary limitation period, why cannot the court do the same thing?  Why cannot it say, “Now, you have got three years to bring this action, but you have brought it after two‑and‑a‑half years and such prejudice has been caused to the defendant by your delay of two‑and‑a‑half years that a fair trial cannot be held and so we are going to stop the action”?  If it applies in this case, the power of the court is unfettered because it has nothing to do with what one would think abuse of process was limited by, which is some failing on the part of the party against whom the stay is sought.

HAYNE J:   Now, is this not the view that Justice Brennan adopted in dissent in Walter v Gardiner 177 CLR 378 ‑ ‑ ‑

MR TOOMEY:   He did, your Honour, and I was going to take ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ a view that is rejected by the majority?

MR TOOMEY:   Well, the view was rejected in the particular case, your Honour, but, in our respectful submission, the principles which his Honour there expressed are of general application.  With respect, it certainly falls in with the view.

HAYNE J:   And the hinge about which his Honour’s reasons seem to turn seem to me to be in the passage between 413 and following when he says at 415 at about point 8 that the terms “unfair” or “unjustified”:

are terms which, in the context of the law relating to abuse of process, import no more definite criterion than idiosyncratic opinion.

Now, that seems to be the hinge about which that view of the matter turns.  Courts are given jurisdiction.  If the proceeding is instituted regularly, the courts must exercise that jurisdiction, decide the case that is put before them and there is no room, in his Honour’s opinion, for injecting some higher, wider or different principle in the name of justice.  Is that not a view that is rejected by the majority?

MR TOOMEY:   Well, your Honour, in that case it was, but we are talking here of a civil case and Walton v Gardiner was not a civil case.  Further, Justice Brennan went on, just after the passage which your Honour has read, to say this:

I would use the words of Dixon J to stress that it is important “to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose”.

Now, in our respectful submission, in a civil case, as opposed to a criminal case or a disciplinary case, that applies four square to this case.  This man has brought an action within the time allowed him to do so.  There is a real and a genuine controversy and he is entitled to submit it to the courts.  Now, the fact that the passage of time for which he is not responsible alone causes prejudice to the defendant, in our respectful submission, is irrelevant.

If the Parliament had intended when it expressly took on board the very lengthy extension of the rights of the disabled, if it had intended to make them dependent upon no prejudice to the party affected, it could have said so, but it did not.

KIRBY J:   I am just curious as to why you have made the concession that you have because that is what is causing the puzzle, that you are, as it were, reading into the statute but there is no right – you do not infer a right or you do not adapt the common law to say there is a right if the plaintiff is in some way seriously at fault.  Now, in Justice Brennan and Justice Toohey’s view the only power of courts is to protect jurisdiction and power of the tribunals below, and that would include cases where the plaintiff is at fault or not at fault.

MR TOOMEY:   We do make a concession beyond that, your Honours.  We say that we accept that if there was misconduct on the part of a plaintiff which would cause inability of a defendant to have a fair trial that the court should have the power to stay that, but that, we say, requires two prongs.  What is being put against us is you only need one prong.  You only need the effect.  You do not need any causative behaviour on the part of the person who was about to lose his action.

CRENNAN J:   Mr Toomey, can I invite your attention to page 463 of the appeal book.  I wanted to invite your attention to a passage in what was said by Justice Dixon in Cox v Journeaux [No 2], the last three lines:

It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

I think it can be agreed that the degradation or disappearance of evidence may be nobody’s fault but nevertheless that fact may have the result that to allow an action to proceed would clearly inflict unnecessary injustice on the opposite party.

MR TOOMEY:   In our respectful submission, the use of the adjective qualifying “injustice” would take it out of this case, because “unnecessary injustice” is where, we would say, it could have been brought earlier, it should have been brought earlier and so on, but here it was not unnecessary because the plaintiff could not bring it beforehand.

CALLINAN J:   Mr Toomey, Justice Bryson at page 465 in paragraph 79 is really saying any trial would be a charade.  That is the substance of it.  There is just no way of conducting a trial into the issues.

MR TOOMEY:   That is what he is saying, your Honour, but, in our respectful submission, it is difficult to see how that can stand with the finding of the court and the other three judges that the plaintiff had a not untenable case.  How can it be a charade if he can ‑ ‑ ‑

CALLINAN J:   By applying the General Steel term, which is a very, very low threshold, and views may differ about that of course.

MR TOOMEY:   Yes, but, in our respectful submission, once the court had held, as it did in terms – and, as I said, there is no cross‑appeal, no notice of contention – that the plaintiff had a not untenable case, then there was a case to go to trial.

CALLINAN J:   I have a problem about – I am not saying a final problem, Mr Toomey, but a problem about seeing how the plaintiff did not have an untenable case.

MR TOOMEY:   Yes, your Honour.

CALLINAN J:   What Justice Bryson says is rather persuasive.

MR TOOMEY:   I am sorry to interrupt your Honour, but ‑ ‑ ‑

CALLINAN J:   No, you are not interrupting.

MR TOOMEY:   ‑ ‑ ‑ what he was saying in the latter part of his judgment, when he was going to the paucity of evidence and such like, followed his finding that there was a not untenable case and, in our respectful submission, it only went to the question of prejudice and nothing else.

CALLINAN J:   Can you just remind me where he makes the finding about a not untenable case?

MR TOOMEY:   At paragraphs 47 to 48, I think, your Honour, which are at page 447. 

CALLINAN J:   I know elsewhere one of the judges says, I think, at one point that one can understand the possible forensic disadvantage in submitting oneself to cross-examination prematurely or unnecessarily but, on the other hand, there would be something of an evidentiary onus, would there not, upon a person in your client’s position to bring forward evidence on an application of this kind to show that there was a tenable case?

MR TOOMEY:   There was an evidentiary onus, your Honour, but of course the legal onus was on the defendants.  It may be that we merely succeeded on the onus, but we succeeded.  The plaintiff was not called on the application.  His Honour makes reference to the fact that he assumes the plaintiff could not say anything useful, but that is an assumption for which there is no basis on the evidence.

CALLINAN J:   But on an application of this kind the expectation really is that the parties, in particular a party in your client’s position, will put his best foot forward, that he will, in order to meet the contention that he has no arguable case or that it is all too ‑ ‑ ‑

MR TOOMEY:   As your Honour would know, he would look at the evidence for the other side and he would determine how much he needed to put forward to save himself.  I would, with respect, submit that any common lawyer in a situation like that would not put forward any evidence he did not have to put forward and so give the defendant a free kick before the hearing.

The plaintiff is a person of limited intellectual capacity and has speech difficulties and it is very understandable why he would not have been called to be cross‑examined in an application such as this.  He will, of course, if he gives evidence, be available for cross‑examination in the proceedings, as will any other witness called by the plaintiff. 

CALLINAN J:   Can you ‑ ‑ ‑

MR TOOMEY:   I am sorry, your Honour, there is just one other thing.  Could I say this?

CALLINAN J:   Yes.

MR TOOMEY:   This is a jury case because it being so old the plaintiff was entitled to requisition a jury and did so.  Accordingly, at the close of the plaintiff’s case it will be open to the defendants to apply for a verdict and if, as is said, they have no useful evidence, then they lose nothing.  It is not that they suffer the Australian Iron and Steel v Menzies dilemma where if you make the application, you cannot go into evidence yourself, because they say they have not got any useful evidence.  So they would be able, at the end of the plaintiff’s case, to apply for a verdict – to apply to have it taken away from the jury.  Of course, that judge will have all the evidence that can be presented on behalf of the plaintiff.

KIRBY J:   Is your submission that the Court of Appeal had no power to make this order or that, though it had the power, its discretion was carried in making the order, or is it both?

MR TOOMEY:   We do not concede the power of the court to make the order in the circumstances.  That is the basis on which we were given leave and it is the basis we maintain, that, as a matter of principle, in circumstances such as this, where the plaintiff has acted within the law and without fault, that there is no power in the court to make such an order.  If we are wrong, then we say the exercise of discretion miscarried, that it was not a case having regard to the result to the plaintiff in which the discretion ought to have been exercised.

CALLINAN J:   It is not a relevant discretionary consideration the fiction that Brodie was always the law.

MR TOOMEY:   Yes, your Honour.  Well, Sir Garfield Barwick said that in a case, the name of which I forget, and he said, “We have said it was the law; it always was the law because we have said it was the law”, and, of course, that is the fiction.

CALLINAN J:   You might win on a factual situation that in reality you could never have won on in 2000.

MR TOOMEY:   Well, I think that is probably right, your Honour.  Whatever it was, it was almost certainly nonfeasance.

KIRBY J:   Although there was a lot of law before Brodie which was very confusing.  It is very hard to be absolute about that.

MR TOOMEY:   Well, that, as I understand it, is why this Court, in effect, codified the law, because it was thoroughly confusing.  Can I shortly take your Honours to some of the passages in the cases in England, Australia, Canada and New Zealand – very shortly, I promise your Honours.

HAYNE J:   Are these the passages you have extracted in your written submissions?

MR TOOMEY:   And we have added some in our list of authorities, your Honour.

KIRBY J:   There is a good Irish one in the respondent’s submission.

MR TOOMEY:   Well, except that, in our respectful submission, it does not have anything to do with the case, your Honour, but then it is Irish so – and I am allowed to say that.  If we could take your Honours to Department of Transport v Chris Smaller Ltd [1989] AC 1197 at 1206 just above letter D Lord Griffiths said:

Under the present law of limitation, the plaintiffs were allowed six years in which to commence their action and, under the present rules of practice, were allowed a further 12 months in which to serve the writ.  Kerr LJ, in the Westminster City Council case, in the passage I have cited, said:

“it is highly questionable whether plaintiffs should be allowed the benefit of the full periods of limitation, with virtual impunity, where the facts are known and there is no obstacle to the speedy institution and prosecution of claims.”

I see the force of this observation, particularly in a case like the present, when there is no good reason why the action should not have been started much earlier than it was.  But limitation periods are set by the Parliament and not by the courts.  The six year period of limitation for actions in tort other than for personal injury, was considered in the Twenty-first Report of the Law Reform Committee, Final Report . . . No change was recommended . . . It may be thought that six years is too long in the vast majority of cases but it must be remembered that most people who suffer injury will wish to recover damages and will not wait . . . It would, I think, introduce intolerable uncertainty into the litigation process if litigants were at risk of being penalised even if they commenced their actions within the limitation period and thereafter pursued them expeditiously.

That, if I might interpolate is the theoretical case we made.  Then his Lordship said at the top of page 1207:

The courts must respect the limitation periods set by Parliament; if they are too long then it is for Parliament to reduce them.  I therefore commence my assessment of the present regime by concluding that the plaintiff cannot be penalised for any delay that occurs between the accrual of the cause of action and the issue of the writ provided it is issued within the limitation period.  Mr Connell, I think, accepted this conclusion, for he did not seek to persuade your Lordships that, save possibly in a case of deliberate breach of a peremptory order, it would be right to strike out an action within the limitation period when the plaintiff would be able to start a fresh action.

Now, that of course, is the special case which is dealt with in many of the cases where one action is struck out for want of prosecution, the second one is brought but the general statements of his Lordship we rely on.

In a Queensland case called Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493 - this again was a case where an infant appellant was severely injured, commenced proceedings which lay dormant, was struck out for want of prosecution, more than 22 years after his injury the writ and the present action was issued and the master stayed the proceedings again and there was appeal to the Full Court of the Supreme Court of Queensland. The passage I want to read to your Honours is from the judgment of Justice Ambrose, which was agreed in by the other two judges, Justice Connolly and Justice Thomas, where his Honour said at page 498, line 22:

In Birkett v James Lord Diplock referred to certain possible “exceptional cases” which may constitute a plaintiff’s institution of fresh proceedings an abuse of the process of the Court.  Considering the example that his Lordship gave the learned judge –

that is in Williams v Zupps –

came to the conclusion that upon the facts of this case there were circumstances which he described as “wholly exceptional”.  These may be summarised as follows:

(1)      The commencement of three prior actions;

(2)      The dismissal of the last action for want of prosecution eighteen years after the plaintiff’s injury;

(3)      The unexplained and inexcusable delay of the appellant in commencing his present action so that twenty-three years have now elapsed since the alleged right of action accrued;

(4)      The high degree of improbability of now securing a fair trial;

(5)      The fact there is no time limitation . . . 

(6)      No suggestion of any causal relationship between the plaintiff’s unsoundness of mind which accounts for the “unlimited” time within which he may prosecute his action and the way in which his right of action has been pursued.

His Honour expressed the opinion that those circumstances combined to put the appellant’s action into an exceptional category of the sort to which reference was made by Lord Diplock in Birkett v. James and that he was thus warranted in staying it as an abuse of the Court’s process under either the inherent power of the Court –

or the relevant rule –

proceedings may be stayed on the ground that they are vexatious and oppressive or an abuse of the procedure of the Court.

At the top of the next page:

The appellant’s proposition in essence is a very simple one:  it is that the appellant’s action is a common law action and at common law there is no period of time within which that action must be prosecuted – at least within the lifetime of the appellant. 

That is, your Honours, because he was under a disability and there was no long stop provision. 

The only limitation of the right to pursue that action is one imposed by the Limitation of Actions Act.  Upon the express terms of that Act on the facts of this case the appellant’s right to bring his action will not be barred until the expiration of three years from his ceasing to be of unsound mind.  He is presently of unsound mind and there is no indication that he will ever cease to be of unsound mind.

I can discover nothing which would make it “unfair” or “oppressive” at common law for the appellant to pursue his action.  It is clear that the passing of various statutes of limitation has been motivated by the perception of the Legislature that injustice will result to defendants if pursuit of stale actions is permitted.  It is clear on the facts of this case that it will be very difficult for the respondents to call reliable evidence as to the events that occurred during a period of seconds twenty-three years ago.

These considerations however were before the Court in Birkett v James . . . and also before the Full Court of Victoria in De Nier v Beicht . . . 

In essence the respondents seek that the Court exercise “its inherent power” to stay the action because the policy of the legislature to be discerned in the Limitation of Actions Act is generally to achieve such a result.  Although at common law there is no limitation placed upon the right of the appellant to pursue his action, it is said the Court has an inherent power to stay it.

I am unpersuaded that there is any power in this Court whether under its inherent jurisdiction or otherwise to impose upon the appellant a limitation of time within which he must commence his actions.  The Legislature has clearly refrained from imposing such a limitation upon persons of unsound mind.

I am unpersuaded that any of the “exceptional circumstances” which impressed the learned judge who made the order under appeal whether considered individually or collectively amount to an abuse of the process of the Court.

That was a much stronger case for the defendant than this one.  There had been actions brought, dismissed for want of prosecution, left and yet their Honours were of the view that the policy of the Limitation Act prevented them from staying the action.

KIRBY J:   Does this have significance getting the principles applicable in this case for criminal stays as well, that the only basis on which one could stay a prosecution which was very long delayed would be misconduct on the part of the prosecution, that you could not stay it because there was the death of witnesses, loss of vital testimony, that the whole process would be in the nature of a charade?

MR TOOMEY:   Your Honour, there are different considerations.

KIRBY J:   Why?

MR TOOMEY:   There are public interest considerations in criminal cases which there are not in civil cases.  I would seek to put our submissions only on the basis of civil cases.

KIRBY J:   It would be desirable, if possible, to get common principles, one would think.

MR TOOMEY:   It is said by Justice Mason in Jago’s Case that:

In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context.  However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one.

That is Jago v District Court (NSW) 168 CLR 23 at 26.

CALLINAN J:   And very special cautions are given to juries in criminal trials about long delays.

MR TOOMEY:   Yes, your Honour, they are.  Of that there is no doubt, your Honour.  The next case, your Honours, is Bull v Devon which was an English case where an action was brought 17 years after a catastrophic event at birth which left one of uniovular twins seriously brain damaged.  It is not directly in point because it is an appeal from a decision at first instance in which the plaintiff succeeded, but the defendants appealed on bases relating to the effect of delay and whether they should have been given special directions on evidence and such like.  In the course of the hearing of that case a number of the Law Lords made statements about the matter now before the Court. 

I am sorry, your Honours, we could only find this in reports called the Medical Law Reports and they are a little hard to handle.  It is 126 of the print your Honours have in the right-hand column.  Your Honours will see in the paragraph part heard at the top of the column the appellant defendants complained that the learned judge had “given due and proper weight to the delay” in relation to the mother’s claim, which was stayed because she should have known, but gave no due weight to the effect of delay in the case of the claim of the boy:

In the case of such a stale claim, it was submitted, a judge should be less prepared to draw an inference against a defendant whom delay has deprived of a proper opportunity to rebut the claim.  Likewise, he should be less willing to apply the principle of res ipsa loquitur against a defendant in such circumstances.

HAYNE J:   This is word for word what is paragraph 39 of your written submissions.

MR TOOMEY:   I think it probably is, your Honour.

HAYNE J:   Then why are we doing it twice?

MR TOOMEY:   Well, can I just draw your Honours’ attention to it.  But the essence, of course, is that his Lordship says if the law allows the action to be brought, then that is what the law is and there is nothing we can do about it.

KIRBY J:   Except where the plaintiff is at fault.

MR TOOMEY:   If the delay and the prejudice to the defendant were occasioned by the action of the plaintiff we have conceded that there would be a basis.  Without that ‑ ‑ ‑

KIRBY J:   I know you have.  It is a concession that worries me, because once you concede it the question is why are you conceding that and not this?

MR TOOMEY:   Your Honour, it is a considered concession, because as I hope your Honour would ‑ ‑ ‑

KIRBY J:   I just question it.

MR TOOMEY:   It is apparent that in the cases where actions have been stayed within Limitation Acts it has always been the case that there has been some element of misconduct on the part of the plaintiff.

KIRBY J:   If you or anyone at the table can find the decision of Justice Frankfurter that I referred to.  It was mentioned in some of those early - Herron v McGregor Case.  Do you remember how we had a great spate of them after Herron v McGregor.

MR TOOMEY:   Yes, your Honour, I do.

KIRBY J:   Because it did question the fundamental purpose of this stay jurisdiction.

MR TOOMEY:   It was not Barker v Wingo, was it, your Honour?

KIRBY J:   I do not think so.  Anyway, just have a look for it later if you would not mind.

MR TOOMEY:   Yes, thank you, your Honour.  Now, Lovie v Medical Assurance Society New Zealand is put against us by Newcastle City Council as being authority for the proposition that the overriding consideration in the case is whether justice can be done despite the delay and accordingly no other considerations are necessary.  It is, we say, a misreading of Lovie v Medical Assurance which was a case brought ‑ ‑ ‑

GUMMOW J:   It is in 1991, and they regarded themselves as bound by Birkett v James, I think.

MR TOOMEY:   It was a decision of the learned Chief Justice, Chief Justice Eichelbaum, and the passage I wanted to take your Honours to was the passage at page 251.  Now, we have reproduced this in our submissions also, in our submissions in reply, but it is we think worth repeating.  The passage beginning at line 29 on page 251:

With respect, I find the logic of Lord Diplock’s and Lord Griffiths’ views irresistible.  Delay before the issue of the proceeding cannot in itself constitute inordinate and inexcusable delay since that would be rewriting the limitation period set by Parliament.  And the same considerations must apply to prejudice:  to rely solely on prejudice caused by pre‑issue delay would impinge upon the plaintiff’s statutory rights.

Now, the defendant Newcastle City Council’s claim that his Honour was elevating the question of whether justice could be done to a position of sole dominance does not sit with his Honour’s judgment.

The second page of the headnote summarises what he found under figure 3 at line 33:

The particular principles applicable to the matters at issue were: (i) By itself, delay prior to the issue of proceedings could not constitute inordinate and inexcusable delay, because Parliament allowed plaintiffs six years after the cause of action accrued for proceedings to be issued; (ii) if such delay occurred, further delay after the issue of proceedings would be looked at more critically . . . (iii) the defendant must show prejudice caused by the post‑issue delay but if the defendant had suffered prejudice as a result of pre‑issue delay, he would [not have to] show [much] . . . (iv) as an alternative to the usual grounds for striking out, the power might be exercised where the plaintiff’s default had been intentional and contumelious . . . and (v) the overriding consideration was whether justice could be done despite the delay.

Now, we read that as meaning that absent the four preceding requirements, you do not get to the consideration of the overriding consideration of whether justice could be done.  That is only to be brought into effect on the question of prejudice and on the question of whether the discretion should or should not be used.  But to suggest that you have that, that cart sitting out alone without any horses in front of it, in our respectful submission, cannot be right.

Headford, we have extracted this at length in our submissions.  I say that before your Honour Justice Hayne reminds me of that.  But the force of what Lord Justice Rose had to say is, in our respectful submission, very great.  His Lordship said on page 4, the right-hand column, the third paragraph:

Are there in the present case such circumstances as point exceptionally to an abuse of process?  In my judgment, there are not.  The delay does not need explanation as the writ was issued within the time allowed by Parliament.  Prejudice arising to the defendants from the unavailability of evidence, or the change in their insurance arrangements, is immaterial.  If Parliament had intended prejudice to be material, it would have said so as it did elsewhere in this Act.

There is another passage, which I cannot for the moment just put my eye on.  I am sorry, your Honours, I cannot find the passage I wanted where his Lordship said that prejudice arising from delay was irrelevant because Parliament had legislated for it.  It is at the bottom of page 3:

Mr Karsten –

who was counsel for the appellant defendant in this case –

ultimately accepted that, by virtue of section 28(1) –

which is the disability extension section in the English Act –

delay, and prejudice have been authorised by Parliament.

That is the essence of our case.  If Parliament contended that an action could be brought, and Parliament has not said, “But only if these circumstances are met”, then nothing which arises naturally out of the delay, in itself, can justify a court staying the process.  If prejudice can be expected to arise from delay and if the necessary intent of the statute is that a plaintiff may bring a delayed action then that cannot be an exceptional circumstance.

The last case I want to take your Honours to is a very short passage in the case of Ainsworth v James which is a case decided by Justice Greg James in the New South Wales Supreme Court last year.  It was a case where a defendant applied for proceedings to be stayed because his state of health was such that he could never possibly defend them.  His Honour, at page 3 of the print, paragraph 15, says:

Reference has been made to passages in the Court of Appeal judgment in Herron v McGregor  . . . referring to, in particular, the inherent power of the Court to prevent abuse of its processes – whether those processes be civil or criminal.  Since 1986 when Herron v McGregor was decided, a deal of jurisprudence has established that power.  But, even there, the question is not whether the Court has power to prevent abuse, but what amounts to an abuse.  In my view, it is not an abuse to permit a plaintiff to bring proceedings in the Court and to pursue them to judgment to determine whether there has been a tort committed and if so to obtain a remedy.

Exigencies will always occur affecting the ability of parties to proceedings to pursue their interests in those proceedings as well as they might like, but the fact of those exigencies is contemplated by such things as the law of evidence, including such cases as Jones v Dunkel . . . The fact that those exigencies occur should not be such as to deny to a party seeking redress in a Court, the opportunity to prove the basis on which that party says that redress should be given, and if successful, to obtain that redress.

I do not see that the circumstances can be categorised as an abuse when a party says, “I have been disabled by a matter outside the control of the courts and outside of any fault of my opponent, from being able to defend proceedings brought against me in tort, so that my opponent, the sufferer of the alleged tort, should be disqualified from obtaining redress.”

Your Honours, those are the cases on which we rely.

GLEESON CJ:   You made an application, I thought, to amend your notice of appeal.

MR TOOMEY:   We did, your Honours.  That is consented ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr Temby and Mr Joseph?

MR JOSEPH:   It is not, your Honours, except it does not appear to have any ground relating to discretion.

GLEESON CJ:   I had assumed that ground 1 was intended to cover that, but at all events so far as the amended notice of appeal is concerned ‑ ‑ ‑

MR TOOMEY:   Your Honour, can we hand them up later or can we file them in the Registry?

GLEESON CJ:   You have the leave to amend the notice of appeal.

MR TOOMEY:   May it please your Honour.  Those are our submissions, may it please your Honours.

GLEESON CJ:   Yes, Mr Temby.

MR TEMBY:   There are two or three preliminary matters before I get to the substance of the argument, may it please the Court. The first which may not matter very greatly is that contrary to what my learned friend said near the outset of his argument the question whether the present respondents had established that there was no tenable case was not dealt with by Master Harrison, who dealt only with the question arising under section 580 of the Local Government Act, which is a limitations question, and nor so far as we can see was it dealt with by Justice Bergin, so it has been dealt with by Justice Hoeben and by the Court of Appeal.  The next point has to do with ‑ ‑ ‑

KIRBY J:   Where does that lead, that submission?

MR TEMBY:   It is simply by way of correction, your Honour, no more than that.  My learned friend said that there has been a longer line of decisions to that effect than in fact there have been and I just wish to correct that.  It is no more than that.

Secondly, so far as the statutory basis is concerned, your Honours have now been provided with a copy of the Imperial statute and, with respect, it gives rise to a couple of peculiarities which I wish to point out adding that we are perfectly prepared to put in a note within a week having looked into the matter more fully, but if I could just make these preliminary observations for the moment.

Under section III of the Imperial statute, and if I could draw your attention to about the third line, Parliament deals with all actions of account and upon the case and negligence is, of course, an action on the case.

With respect to such actions and others, the limitation period fixed was stripping away immediate peculiarities fixed at six years.  But then if your Honours go to section VII, which you will see in about the fifth last line creates an exception in relation to persons “Non compos mentis” until their recovery, third last line “of [sane] memory”, with respect to such people there is no limitation period fixed but that in terms ‑ ‑ ‑

GUMMOW J:   It is an action upon the case for words.

MR TEMBY:   That is right and there is nothing dealing with actions upon the case simpliciter, which is strange.  But on the face of it, it appears to be the case that this statute fixed a six‑year limitation period with respect to negligence actions and on that basis the now current Limitations Act (NSW) fixes a primary limitation – I am sorry, the Limitations Act (NSW) which was relevant as at the time fixed a primary limitation period of six years.  It provided for the suspension of the running of that period while the plaintiff was of unsound mind, putting the matter shortly, and contained the long stop provision of 30 years.

We place some stress with respect upon the fact that the primary limitation period fixed was six years but on the face of it it appears that the long stop provision of 30 years did apply because there was nothing more generous contained in the Imperial statute, but if we might we would like to have an opportunity to check that more closely and as may be appropriate provide a note to the Court.  As I say we will do that within seven days.  I think I will undertake to do that in any event even if we do not seem to have a great deal to say.

GLEESON CJ:   All right.  Thank you.

MR TEMBY:   The third point that I wish to stress, and this is at the beginning of our submissions, is that there is nothing in the written submissions of the appellant which goes to the manner in which the discretion was applied by the Court of Appeal.  The question that is posed in the written submissions for the appellant in paragraph 2 goes only to the question of power.  The issue is whether it is open to the court to permanently stay proceedings in circumstances such as the present and that, with respect, is all that is addressed in the written submissions and it is all that we have sought to respond to in our written submissions and will seek to respond to now.  It is submitted that the grant of leave was on the basis whether or not the power existed rather than the manner in which it was discharged.

KIRBY J:   But in order to consider the correctness of the manner of discharge, you have to get clear the scope, extent and incidence of the power.

MR TEMBY:   Yes.

KIRBY J:   Mr Toomey, in answer to me, did say, “Our primary submission is that there was no power in the circumstances of this case”.  But I took him to follow that up by saying, but if there is power, we say that that miscarried in the circumstances.  Now, it would be a misfortune in having granted special leave if having clarified the power and assumed there to be some light thrown on what Justice Bryson did, that one could not then take the next step and consider whether the power was correctly exercised.

MR TEMBY:   Yes.  Well, with respect, I note what your Honour says.  There is not much that we have to respond to because nothing is said as to the manner of discharge of the discretion in the written submissions and very little has been said in the course of argument today.

GLEESON CJ:   I think that the only criticism that the appellant has made of the reasoning of Justice Bryson is a criticism which, if accepted, would deny the existence of the power.

MR TEMBY:   Yes.

KIRBY J:   Except that he has said that Justice Bryson acted on an assumption that the power existed in this particular case, whereas one might conceivably accept a power he himself concedes, the appellant concedes that there is a power where the plaintiff has misconducted himself in some way.  I just feel a sense of disquiet if we ultimately come to a point that, yes, there is power, yes, it does apply save to misconduct and, yes, it does apply to some other circumstances and then cannot consider whether the Court of Appeal’s exercise of its power miscarried in the circumstances of this case.

MR TEMBY:   Yes, well, what I will seek to do is persuade your Honours that you do not get to that point.

KIRBY J:   I realise that, but assuming just for the moment that one does, you would not want to have a technical knockout in this case because of the lack of ground of appeal specifically directed to the exercise of the power, not so much discretion, but the exercise of the power in this case.

GUMMOW J:   I would not have been party to a grant of special leave on any wider basis.  It is a question of principle, as I understand it.

MR TEMBY:   Yes, well, with respect, that is the basis upon which we have certainly approached the matter.  I suppose if the appeal is upheld a question would arise as to whether the decision of the primary judge would simply be restored or the matter would be remitted for further hearing and that might depend upon the view that the Court took as to what the relevant considerations in truth were.  But we are not, with respect, close to that point now.  I suggest it need not give us pause for the moment.

The Limitations Act, in our submission, neither gives nor takes away a right to sue.  What it rather does is give a right to a defendant, that right being if the defendant so chooses to plead a defence, and that defence if pleaded is based upon mere expiration of time irrespective of circumstances.  As your Honour the Chief Justice said, it simply involves looking at a calendar.

Given that the Supreme Court has inherent jurisdiction to control its procedures, and that extends to staying proceedings in appropriate cases, the question that arises today is whether it is appropriate so to do where by reason of effluxion of time, loss of evidence and like matters, but without moral delinquency on the part of a plaintiff such as the present appellant, a fair trial now cannot be held.  That, it is submitted, is the question that arises for decision in this case.

It has been decided by this Court in Walton v Gardiner that there is just such a power in the case of proceedings of a disciplinary nature, and it has been decided by this Court in Jago that there is just such a power in criminal cases.  A subsidiary question that arises here is whether such a power should be recognised as existing in civil cases.  Our submission is that if only in the interests of consistency such a power must be recognised, although of course it must be adapted to the circumstances that arise in civil as opposed to criminal or disciplinary cases, and I will say something as to the different considerations that may be seen to arise.

The relevant passages in Walton v Gardiner upon which we rely are contained in our written submissions and need not be now repeated.

It is, as your Honour Justice Hayne has pointed out, true and of much significance to say that a contrary view consistent with what is urged upon the Court by the present appellant was expressed in that case by Justice Brennan who was speaking in dissent.  The passages contained in our written submissions make clear that at least in the context of disciplinary proceedings the power to grant a stay, notwithstanding a lack of blameworthiness on the other side, was found to exist.  Justice Brennan took a different view but his view did not prevail.

KIRBY J:   Was that in Walton?

MR TEMBY:   That is in Walton v Gardiner.

KIRBY J:   Did Justice Toohey agree with Justice Brennan?

MR TEMBY:   He did.

KIRBY J:   Their theory was that it was only available on a jurisdictional question?

MR TEMBY:   That is, I suppose, a way of putting it, but the distinction we would seek to draw is that there had to be something wrongful in the conduct rather than, as in this case, mere prejudice arising from whatever cause giving rise to a consequence.  The distinction which we suggest it is useful to draw depends upon whether one looks at conduct, or rather misconduct, on the one hand, or consequences, on the other hand. 

The English cases upon which the appellant places such reliance approach the matter on the basis that mere passage of time, which has a deteriorating effect inevitably upon the quality of evidence, will not suffice so long as the proceedings are commenced within, it may be, almost always will be, an extended limitation period.  It is irrelevant whatever deterioration there might have been, whatever the effects might be.  So, absent blameworthy conduct on the part of a plaintiff, an action brought within time cannot be the subject of a permanent stay. 

At least in the context of disciplinary and criminal proceedings in this country at the level of highest authority the contrary view has been taken which concentrates upon the effect of what has happened and whether in the result a fair trial, which it has to be said means a relatively fair trial, can be undertaken.  I hope I have made myself clear.  There the emphasis is upon conduct and absent misconduct an action commenced within time cannot be blown out.  Here the courts recognise that consideration must be paid to consequences and the important question at the end of the day is whether a fair trial can be held. 

All of that is said in the context of the judgment being of a discretionary nature, requiring that all of the relevant circumstances be taken into account and it is in that way that one provides an answer to the notional example put forward by my learned friend, Mr Toomey, in the case of the two businessmen, one of them dying so that, notionally, why should the action not be stayed on the Tuesday after the cause of action accrued. 

It is because it is a discretionary judgment that is being exercised.  A whole series of factors will have to be taken into account.  I am not to be understood as submitting that merely because real difficulties arise with respect to a future trial, if everything has been done as quickly as it could conceivably have been done, it is likely the discretion would be exercised unfavourably to a plaintiff.  But in this case, of course, we have, although it is just within the limitation period, a very long period during which nothing happened.  It is not useful, I suggest, to talk in terms of delay, but there has been an effluxion of time of a very great extent which is combined with other factors, including not just an inevitable deterioration in the quality of evidence, but what is found to be the consequence that there cannot be a trial of the sort the law requires; rather, what will result is a mere exercise in appearances.  That will, of course, impact very heavily upon the discharge of the discretion which we urge that the court enjoys.

Now, could I, without quoting from it presently, refer your Honours to what was said by Justice Murray in the Western Australian Full Court in Lewandowski v Lovell (1994) 11 WAR 124, which is item 6 on our list of authorities, and in particular at about pages 137 to 139 his Honour has discussed the approach which is taken in England and contrasted it with what might be seen as the modern approach which is taken in Australia which is a less restrictive approach as to the circumstances in which the jurisdiction to stay may be granted. I refer it to your Honours as being, we suggest, a thorough and useful discussion. It is, in view of the different approaches which have been adopted here and on the other side of the world, not notably useful to refer as extensively as has been done for the appellant to the English authorities over a couple of decades.

KIRBY J:   Except that this is the first case where the question has arisen in the civil sphere.  There are different public interest issues in civil litigation which is normally an inter partes, private parties contest and therefore we have to consider the application of a principle formulated in a different context, and that really takes us to the fundamental conceptual basis of the remedy of courts intervening.

MR TEMBY:   Yes.  A difficulty which arises so far as the English cases are concerned is that in those cases there is consistent reference to a right in a plaintiff to sue within a limitation period, including an extended limitation period.

Now, if there is a right, it is a right of a rather strange type because of course there is no correlative duty and, as I said near the beginning of my submissions, our submission is that the Limitations Act properly understood confers a right upon a defendant when sued and it is not useful to talk as the English cases do and as the New Zealand case most recently cited by my learned friend did, the decision of Justice Eichelbaum, to talk about rights in plaintiffs arising from the statute.  That, with respect, seems to misconceive the nature of the Limitation Acts.

HAYNE J:   But, rather, the plaintiff, the appellant in this case, might put the case on the basis that he has a right to have his action tried by the ordinary procedures rather than summarily terminated, save in cases where it is demonstrated that the case is groundless.  That seems to be a proposition bound up in the emphasis given by the appellant to the finding that the case was not shown to be manifestly untenable, but that approach reflected, for example, in Justice Dixon’s judgment in Day v Victorian Railway 78 CLR, particularly at 91, 92, is an approach that confines abuse and abuse of process in this field of discourse to the prosecution of groundless claims.  To that the appellant adds as a class of abuse a prosecution in circumstances of fault.  That stands at odds with what Justice Dixon said in Cox v Journeaux [No 2], a civil case, which, true it is, is a groundless case, where his Honour refers to infliction of unnecessary injustice upon the opposite party.

MR TEMBY:   The approach of this Court hitherto has been to recognise a right to stay criminal proceedings although brought properly by reason that a satisfactory trial cannot be held or for other reasons more florid such as misconduct by a prosecutor and then to recognise such a right in the court so far as disciplinary proceedings are concerned.  It was said in Walton v Gardiner that the same approach in principle was called for adapted to the circumstances of disciplinary as opposed to criminal proceedings.  Our submission is that the same approach is required so far as civil proceedings are concerned, again, adapted to the particular circumstances that will arise in such proceedings.

HAYNE J:   The step the Court took in Walton v Gardiner over the dissent of Justices Brennan and Toohey was that you do not interpret the criminal cases as founded in notions of oppression by an arm of the State, namely, the prosecuting authority.  You interpret them more broadly.

MR TEMBY:   Yes, with respect, that is right, and it suffices that, as I have put it, for whatever reason there cannot be a fair trial, or one could put it a safe and satisfactory trial.  Now, if that is right and if it is capable of extension to the civil field, then, with respect, on the basis of the findings in the Court of Appeal it is submitted we must succeed.  A question which arises is:  what are the circumstances to which there must be adaptation arising in civil cases as opposed to the categories of case already determined?  With respect, we have identified three of them – there may be more – and it is not useful to seek to demonstrate in what direction they are going to cut because that will depend upon the circumstances of the particular case.

One particular circumstance which arises in civil proceedings is that the claim is for damages or other relief of whatever nature but relief inter partes, the purpose of the proceedings not being accordingly that of punishment or public protection.  That might change the significance which a court exercising the discretion would attach to either misconduct or consequences arising from, for example, the effluxion of a large amount of time.  So that is one circumstance that would have to be borne in mind in the civil context.

GUMMOW J:   We must not forget in the civil context the whole of the anti‑suit injunction, the sort of considerations discussed in CSR v Cigna 189 CLR 345 at 391 where Walton v Gardiner is actually referred to at footnote 108.  So it is not quite right to say these ideas are presently foreign in this Court to civil litigation.

MR TEMBY:   I understand what your Honour says but, with respect, there is nothing in what your Honour has just said ‑ ‑ ‑

GUMMOW J:   No, it supports you.

MR TEMBY:   ‑ ‑ ‑ which is inconsistent with the argument I am putting.  It tends to be of a generally supported nature.

GUMMOW J:   Indeed.

HAYNE J:   The dissent in Walton v Gardiner sought to segregate civil‑type procedures.

MR TEMBY:   Yes, and the majority, in terms, recognised that it had the application we are urging upon this Court.

HAYNE J:   Yes, the step was taken.

GLEESON CJ:   Walton v Gardiner, it may also be important to notice, was a case in which it was not found that it was impossible to afford the affected party a fair hearing.  That would be regarded as a fortiori.  Walton v Gardiner decided that cases for stay were not limited to cases where proceedings were brought for an improper purpose or where there is no possibility of the tribunal affording the affected party a fair hearing. At 177 CLR 378 at 389 the High Court referred to findings in the Court of Appeal in Walton v Gardiner that it would be possible for the tribunal to afford the respondents a fair hearing.  After all, there had been a Royal Commission.  The proceedings in Walton v Gardiner that were found to constitute an abuse of process because they were oppressive were proceedings that constituted an attempt after a Royal Commission to have another go ‑ ‑ ‑

MR TEMBY:   And, with respect, could have been carried through to a tolerably satisfactory outcome.  Yes, your Honour is right.  It may be that underlying all of what is presently under discussion there is to be found a notion such as affront to justice.  That is to say the question ultimately may be something like, “Would it be an affront to justice for this matter to proceed to hearing and determination in the normal way?”  Of course, a finding that it would be is one that will be reached only in extraordinary circumstances.  The courts consistently say that.  It is to be done very uncommonly indeed.  But in Walton v Gardiner, I do not say that this was the phraseology used, but the reason I submit why the decision was reached was that it would be an affront to justice or, if you like, would give rise to very grave, unjustified disquiet if these matters were in all the circumstances permitted to proceed.

GLEESON CJ:   The sequence of events in Walton v Gardiner traced back to the case of Herron v McGregor.  In Herron v McGregor proceedings were stayed by the Court of Appeal on the ground of inexcusable delay.  Then there was a Royal Commission some ‑ ‑ ‑

MR TEMBY:   With respect, then there was an application to the High Court for special leave which was dismissed.

GLEESON CJ:   Then there was a Royal Commission which investigated the matters again and no doubt brought to light a lot of additional evidence.  Then there were disciplinary proceedings which were really an attempt to reformulate the complaints that had been stayed in Herron v McGregor.  What constituted the abuse of process, or what was held in the Court of Appeal to constitute the abuse of process in Walton v Gardiner, was the oppression involved in this attempt to re‑litigate the matter.

MR TEMBY:   Yes.

GLEESON CJ:   One would have thought the decision in Walton v Gardiner would have been reached more quickly and more easily if there had been a finding that it was impossible for these people to defend themselves. 

MR TEMBY:   Yes, that must be right.

KIRBY J:   Justice Mahoney dissented, I think, in Walton v Gardiner in the Court of Appeal.  I do not remember on what basis.  I think the Chief Justice and I were in the majority on that.

MR TEMBY:   Justice Mahoney did dissent.  I do not remember either on what basis.

KIRBY J:   But your point about searching for an affront to justice does take me back.  These issues have been considered deeply in the Supreme Court of the United States and if you can find that analysis, it would be helpful, I think.

MR TEMBY:   Yes.  A second adaptive circumstance which it may be useful to point to is that alleged crimes are almost invariably investigated and prosecuted by public officials and, indeed, today most prosecutors are officers of the various courts.  That is, of course, not the case so far as civil proceedings are concerned.  A court considering a stay application might well give greater adverse weight to misconduct or delay on the part of such a public official as against a mere civilian seeking civil relief.

CALLINAN J:   Mr Temby, are there statutory guidelines relating to delay in bringing prosecutions applying to Directors of Public Prosecutions?  Do not worry about it now but there may be.

MR TEMBY:   There are, I think, in some jurisdictions but in most there are not, but that is all I can say to your Honour for the moment.  If we can usefully find out ‑ ‑ ‑

CALLINAN J:   It just may be a relevant consideration.

MR TEMBY:   It may be and I will see if we can conveniently find out.  I do not know how easy or difficult that might be.  But, with respect, whatever the answer to that might be, it does not take away from the point I am presently making which is that they are circumstances of relevance which would generally make it less likely, we concede, that a stay would be ordered in civil proceedings than in criminal proceedings.  But that does not, we submit, go to the question of power.  The power is there to be exercised in the appropriate case, perhaps the appropriate cases will less frequently arise in civil proceedings than elsewhere. 

A third of the circumstances which we have identified or wish to put forward for consideration is that crimes, we think always, die with the alleged malefactor and crimes are of a personal nature.  That is an almost true proposition while conceding there can be prosecutions of corporations and very occasionally are, but, very largely, crimes are committed by individuals and die with those individuals.  Disciplinary proceedings cannot be pursued beyond death and at least ordinarily cannot be pursued once the person sought to be disciplined has ceased to carry out the relevant occupational activity and there can hardly be room for disciplinary proceedings of a vicarious nature.  In contrast – and this might make it more likely that stays will be ordered in civil proceedings – they survive the death of a defendant and, indeed, may be brought only against a body vicariously liable, as happened here. 

One of the difficulties that we have and the other respondent has is that if we are responsible for the design or the construction or the maintenance of the road, then the activities in question must have been carried out by individuals.  They cannot be found.  We do not know when they are said to have done the things in question.  That is tied up with the reason why effective defence to the proceedings is now impossible.  But this is the third category of relevant difference to which, it is submitted, the

general principle must be adapted in order to make it applicable in particular cases to civil proceedings. 

The substance of our submissions is, however, that the general principle applies in civil proceedings as has been held by this Court to apply in the criminal and the disciplinary context.  Indeed, we conclude by suggesting that the interests of consistency require recognition of the approach which we are urging upon the Court.  They are the submissions for my client.

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

MR JOSEPH:   A fact that Mr Toomey opened with which is, in our submission, of significant concern as to both the leave application and the appeal generally is the fact that the assumption has been made, admittedly without comment by any party, that the plaintiff is under a disability within the meaning of section 52.  At page 427 of the blue book the proceeding proceeded at paragraph 8 that:

it has been accepted for the purposes of the applications that the plaintiff has a reasonably arguable case that he has always been a person under a disability for the purposes of the Limitation Act –

Of course, if he fails in proving that, which he is required to do, then he is out of time and this appeal becomes irrelevant.  If he does succeed in proving it, then the appeal is of course very relevant.  However, it is submitted that even if that be put to one side as a matter of concern, the fact is that the discretion was exercised on the most favourable assumption available to the plaintiff, namely, not only did he have a reasonably arguable case that he was a person with a disability but that should be accepted for the purpose of the application.

KIRBY J:   Why we would not just infer that you would not have made that concession if there had not been sufficient substance in it for us to proceed on that basis?

MR JOSEPH:   Your Honour, those were the findings made by the trial judge, Justice Bergin, at page 393 and those findings, that is, that she was satisfied on the evidence before her that the plaintiff had a reasonably arguable case, those findings were not challenged by us on appeal.

KIRBY J:   What are you making a big fuss about them now for?

MR JOSEPH:   Well, because the assumption is, obviously, that section 52 will be applicable at trial and I am simply indicating to the Court that that is not an assumption that this Court can make.

KIRBY J:   But given the concession, we have to make it for the purpose of this appeal.

MR JOSEPH:   Well, your Honour, it is a concession only that that finding is correct, that she has a reasonably arguable case that he is disabled.

KIRBY J:   Well, that is the starting point for our analysis.  We start from that matter found by the primary judge and not contested by you and accepted for these present analytical purposes.

MR JOSEPH:   That and no more, your Honour.

KIRBY J:   In the ultimate trial it may not be sustained, but we cannot look that far ahead.

MR JOSEPH:   The matters that we would firstly wish to make submissions in respect of have obviously been covered in most part through argument and with Mr Temby.  However, one matter that we do seek to rely on are decisions of this Court as to matters of statutory interpretation.  Firstly, the plaintiff seeks to rely on what it describes as Parliament’s intention in passing the Limitation Act.

No provision is identified which provides the consequences that is suggested; rather, it is suggested that it was the obvious intention of Parliament that those consequences should follow.  In that regard, we would rely on what Justice Gaudron said in Corporate Affairs Commission v Yuill 172 CLR 319 at 339 where she said, on this issue not in dissent:

Although resort is often had to the “intention of the legislature” in formulating rules of construction and in construing statutory provisions, that intention has aptly been described as “somewhat of a fiction”.  And . . . [it is] a “very slippery phrase, which . . . may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it.”

It is our submission that it is clear that if the Parliament intended to protect for all purposes a plaintiff who has had his limitation period suspended from curial review it would have said so.  Justification for that is also to be found in Wentworth v New South Wales Bar Association – the paragraph is identified in submission 9(xi) of our submissions – that a court, this Court, would not impose a restriction on the court’s inherent jurisdiction to control its processes without clear words in a statute.  It is our submission that that has not occurred here.

It has been a reoccurring statement that, in fact, the plaintiff has brought his action within the limitation period.  In fact the limitation period has been suspended and it is our submission that there is in fact no limitation period for which comfort can be sought from the legislation to the effect that Parliament therefore must have intended the delay incurred has been embargoed by the Parliament, but the ultimate period of 30 years is, in our submission, not a limitation period at all.  What it is, in our submission, is a statement by Parliament that the court must assume that a prejudice of such a nature has been incurred after 30 years that the action cannot be at all maintained.

KIRBY J:   In section 51 the exact words are:

after the expiration of a limitation period of thirty years running from the date from which the limitation period for that cause of action fixed by or under Part 2 runs.

MR JOSEPH:   That is the primary period.

KIRBY J:   It is called the ultimate bar.

MR JOSEPH:   Yes, that is the primary period.

KIRBY J:   Do you accept that the ultimate bar applies to a person such as the plaintiff?

MR JOSEPH:   Your Honour, Mr Temby took you to the James II Act where there is no ultimate bar.

KIRBY J:   Subject to any analysis that that throws up, do you accept within the four walls of the Limitation Act 1969 (NSW) that the plaintiff is governed by an ultimate limitation period or ultimate bar of 30 years notwithstanding his disability?

MR JOSEPH:   Yes.

CRENNAN J:   In fact that was commented upon, was it not, in the second reading speeches.

MR JOSEPH:   Yes, your Honour.  But we say that is not a true limitation period and it is not a statement by ‑ ‑ ‑

KIRBY J:   Parliament calls it a limitation period of 30 years. 

MR JOSEPH:   It is a period that limits the capacity of a person to bring an action to 30 years but it is not a limitation period which we say Parliament is making a statement to the effect that prejudice incurred during that period is to be ignored by the Court.  Indeed, your Honour, in Jack Brabham Holdings v Minister for Industry, Technology and Commerce 85 ALR ‑ ‑ ‑

KIRBY J:   I am the Honour you are referring to, I think.

MR JOSEPH:   Had this to say:

But does the fact that Parliament has provided that such prosecutions “may be instituted any time within five years after the cause thereof” sufficiently indicate a legislative intention that relief against an oppressive or unfair prosecution is not available, so long as the prosecution is brought within the time fixed? 

and your Honour answered that, no.

KIRBY J:   What is the citation of Jack Brabham?

MR JOSEPH:   It is 85 ALR 640 and it is cited with approval by Justice Mason at page 26 of Jago.  So, it is our submission, your Honour, and other courts have been correct and I have referred, in our submissions, to Bank of New Zealand v Savril, a recent Court of Appeal decision which both say that existence of a limitation period does not, even if it be 30 years, prevent the court from considering whether or not a remedy of abuse of process should be obtained or available.

The decision of Williams v Zupps Motors referred to by my friend, the Queensland Court of Appeal decision, in our submission, is a curious decision for a number of reasons.  Firstly, it would seem that the Queensland Court of Appeal was following the limited views of Lush J in De Nier as to what amounts to abuse of process.

It was pre‑Walton v Gardiner and it appears, with respect, that the views of Lush J in the Victorian Full Court in De Nier were adopting what is now to be considered an unacceptable narrow view of the circumstances giving rise to abuse of process.  The second thing is that in Williams Justice Thomas did not agree with Justice Ambrose. Justice Thomas at 494 said at line 40:

In any event I did not understand any of their Lordships to have denied the long standing power of the court to dismiss for abuse of process, as recognised in metropolitan Bank v Pooley.  An abundance of instances of its exercise are referred to in the Annual practice –

It is clear Justice Thomas, unlike, perhaps, Justice Ambrose, considered a power did exist in the circumstances of that infant who had delayed in bringing her action.  In any event, Justice Thomas, in looking at the facts of the case, considered that a fair trial could be attained.  He reviews the cumulative effects of delay at 495 at line 25 and came to the view that:

The factors which to my mind militate against identifying the present action as an abuse of process at this stage are the facts that the case is now ready for trial –

So Justice Thomas does not appear to accept Justice Ambrose’s views, although Justice Connolly concurred with Justice Ambrose. 

GUMMOW J:   None of this detail worries us, Mr Joseph.  You are not in the Court of Appeal.

MR JOSEPH:   Right.  Can I just complete that further.  The more recent decisions of the Queensland Court of Appeal do not accept that narrow view of an abuse of process.

KIRBY J:   Do you cite those in your written submissions?

MR JOSEPH:   Yes, in particular Cooper v Hopgood and Ganim.  We have given in paragraph 25 of our submission numerous decisions of the Court of Appeal concerning want of prosecution.  Whilst it is a different remedy, we simply say this.  It would be illogical and irrational to limit a court’s capacity to review delay and its consequences when it comes to want of prosecution but not being able to do the same for abuse of process.

GUMMOW J:   I think Mr Temby put it well.  He said “delay” is a word that carries baggage.  Lapse of time is something else and lapse of time itself may be sufficient because it brings consequences.

MR JOSEPH:   That was what – delay and its consequences.  Finally further, those decisions have a peculiar limited appeal or relevance because the court there is concerned with futility and the ability, at least in law, to commence a second action in the face of the first action being dismissed for want of prosecution.  Such a concern of futility is not relevant to a case such as this when no further process can be issued after the order is made.

GLEESON CJ:   As I understand what Justice Bryson said in this case, he did not just say there could not be a fair trial or there could not be a trial that was fair to the defendant, he said at page 465 in paragraph 79 it is now impossible to have anything that could seriously be described as a trial at all.

MR JOSEPH:   Your Honour, let me just say this.  It is clear, in our submission, that the wider view of Walton v Gardiner is the concern that the public has in the litigation and the Court’s processes being conducted openly and fairly.  It is not about the capacity of private individuals to, in certain situations, act or not act, but it is about the public having confidence in the Court’s processes and that is the distinguishing feature of abuse of process and it applies, in our submission, in all cases courts are involved in, be it criminal, disciplinary or civil.  As Mr Temby fairly points out, the circumstances might change from the different characterisations of the cases.

GLEESON CJ:   It may be important to understand what Justice Bryson said in the light of the nature of the allegation of negligence that is being made.  The allegation of negligence that is being made is an allegation related to the design and maintenance, or lack of it, of a particular piece of road, a matter about which the plaintiff himself would know nothing.  Even assuming the plaintiff can give evidence, the plaintiff can say, “Well, I was driving down the road and suddenly I found myself on a surface that had an unusual camber, or whatever it was, and the next thing I knew I was in difficulties”, but the nature of the allegation of negligence was such that, although Justice Bryson was not prepared to infer that the plaintiff could not give any evidence about how the accident happened, he concluded that there was no realistic possibility of any kind of meaningful forensic investigation of the cause of the accident.

MR JOSEPH:   Your Honour, and one might add to that that the views of Justice Giles at 425 is looking at - the particulars of negligence and the nature of negligence which are adopted by Justice Mason pick up that point for that reason.

HAYNE J:   But it might be for your purposes one bridge too far because it does not sit all that easily with the proposition that the plaintiff’s case is not shown to be untenable.

KIRBY J:   Exactly.  There is a tension in paragraph 79 between the statement that you cannot have a trial at all with the acceptance – including by the parties – that there was a reasonably arguable case?

MR JOSEPH:   There was some evidence.

KIRBY J:   No, but we are acting on an assumption that the plaintiff has a reasonably arguable case.

MR JOSEPH:   It is not untenable.

KIRBY J:   How can you then say you cannot have a trial at all of a reasonably arguable case?  I just do not understand it.

MR JOSEPH:   Because a trial is obviously – the capacity to have a trial is a lot more complex than simply being able to produce a report or a statement.  It is about being able to challenge those reports and challenge those statements, the capacity to be able to challenge them in a meaningful way, et cetera, et cetera.

GLEESON CJ:   Did not that finding turn on a question of onus?  I thought Mr Toomey mentioned this.  I thought they said the General Steel’s onus puts the defendant in the position of having to say that the plaintiff has no cause of action, and Justice Bryson said, “I cannot be satisfied that the plaintiff has no cause of action”.

MR JOSEPH:   Your Honour, it has been put at 431, I think Justice Bryson says as much.  At line 10:

The difficulty for a defendant of demonstrating the untenability of the plaintiff’s case, to do which it is necessary to prove that no sufficient evidence is available to the plaintiff, presents itself fully.

So he is raising the difference between being able to meet a case and for a plaintiff simply to be able to satisfy the test that he has a tenable case.

CALLINAN J:   I would not have thought it would have been so difficult to prove objectively standards of road construction for this grade or standard of road at the time by you.

MR JOSEPH:   I am sorry, I missed the first part of your Honour’s question.

CALLINAN J:   I would not have thought it would have been impossible or indeed very difficult for you to prove objectively by reference to standards what could and should have been done in 1965 with this road.

MR JOSEPH:   The issue is whether it was done.  We can refer to standards and then they say that just simply tells us what you ought to have done but it does not tell us whether you did it.  I mean, that is the problem.

CALLINAN J:   But are there not descriptions of the road which could be ‑ ‑ ‑

MR JOSEPH:   No, the best we have is an aerial photograph taken a month after the accident that seems to show the area where the accident happened.  It clearly does not show anything about the camber, it does not show anything about the heights of the grass and it does not show anything about lighting and the strength of lighting and those sort of matters that would clearly be relevant in this case.

KIRBY J:   But there is a witness, is there not, a local Council person who says he was constantly badgering people to alter this particular bend?

MR JOSEPH:   That might be so, your Honour, but of course how does one put it to him or show evidence to the contrary that the bend in fact was not as he suggested it, it being 25 years ago and he had no technical knowledge.  I think he was the local alderman or something of that nature who had a certain gripe about this corner, but there are lots of corners where people have accidents and it does not mean there is anything necessarily wrong with corners.

That finding of the Court of Appeal below is not challenged, that is, that we cannot get a fair trial.  There is no challenge to that finding.  There is no challenge to the finding that we are prejudiced to the extent as found by Justice Bryson.  The only challenge, as I understand it, with respect, is whether there is power in the Court to review the delay in the context of abuse of process in that a fair trial cannot be obtained.

HEYDON J:   Mr Joseph, the arguments that Mr Toomey has been putting today, or for that matter the arguments that the respondents have been putting in answer to them, were they ever canvassed before the Court of Appeal?

MR JOSEPH:   Your Honour, I have the transcript, if your Honour seeks it.  The short answer to your question is, no.  The short answer to your question is this, with respect.  The plaintiff below accepted that an abuse of process remedy was available.  The plaintiff below – I am talking about the Court of Appeal – challenged whether or not – I am sorry, sought to uphold the finding of Justice Hoeben that a fair trial could be obtained.  We were saying, obviously, that his Honour erred in fact in making that finding and that the evidence did not support his Honour’s finding.

I can tell your Honour the page references to those statements of mine.  In the transcript at 27, 35; 28, 33 and 42 of the transcript and if your Honour wishes to have copies of the transcript we can provide it.

GLEESON CJ:   How long do you think that you will require to complete your argument, Mr Joseph?  I am only asking this question for the benefit of the people in the next case.

MR JOSEPH:   I am finished, your Honour, subject to any questions.

GLEESON CJ:   How long do you think you will be in reply, Mr Toomey?

MR TOOMEY:   Probably half an hour, your Honour.

GLEESON CJ:   You do not have to formally finish, Mr Joseph, now.  We will adjourn until 9.30 am tomorrow morning.

AT 4.20 PM THE MATTERS WERE ADJOURNED

UNTIL THURSDAY, 2 FEBRUARY 2006