Batistatos v Roads & Traffic Authority of NSW & Anor

[2005] HCATrans 851

[2005] HCATrans 851

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S277 of 2005

B e t w e e n -

ANDREW BATISTATOS (BY HIS TUTOR WILLIAM GEORGE ROSEBOTTOM)

Applicant

and

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

Respondent

Office of the Registry
  Sydney  No S278 of 2005

B e t w e e n -

ANDREW BATISTATOS (BY HIS TUTOR WILLIAM GEORGE ROSEBOTTOM)

Applicant

and

NEWCASTLE CITY COUNCIL

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 10.45 AM

Copyright in the High Court of Australia

__________________

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR G.R. GRAHAM, for the applicant in each matter.  (instructed by T.D. Kelly & Co)

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

MR M.J. JOSEPH, SC:   I appear with MS M.A. GERACE for the respondent in the second matter.  (instructed by Phillips Fox)

GLEESON CJ:   Is it convenient to deal with these two matters together?

MR TOOMEY:   Certainly, your Honour.

GLEESON CJ:   Just remind us about the nature of the litigation, Mr Toomey, and the role of the two respondents.

MR TOOMEY:   Yes, your Honour.  The plaintiff is a mentally disabled person who was born in 1932.  His mother died when he was two.  He was declared a lunatic when he was six.  He remained in a mental hospital until he was 22.  He worked as a cleaner in a menial government job, who in 1965 was involved in a motor accident.

GLEESON CJ:   Was he the driver?

MR TOOMEY:   He was the driver.  He had a car accident.

GLEESON CJ:   He had a driver’s licence?

MR TOOMEY:   Your Honour, I do not know the answer to that question.  He became a quadriplegic as a result of that accident.  He was retained in hospital for some 16 years before his sibling took on his care.  In 1993, 28 years after the accident, an approach was made for the first time to a lawyer after a chance remark by a magistrate who was an acquaintance of a friend of the plaintiff’s family.  An action was begun in 1994 against the Council and the Roads and Traffic Authority, claiming effectively an unsafe road in a number of ways.  In 1996 the defendants applied for summary judgment under Part 13 of the New South Wales Supreme Court Rules and, alternatively, for a permanent stay under Part 15 rule 26.  The matter came on first before ‑ ‑ ‑

GLEESON CJ:   On the assumption that there was no limitation problem because the statute was not running because of the disability?

MR TOOMEY:   That is correct, your Honour, and the case must be dealt with – and this is a crucial point – on the basis that the action was brought within time and without fault on the part of the plaintiff.

GLEESON CJ:   Mr Toomey, is there any evidence of the existence of any evidence of any connection between any deficiency in the design or state of the road and the occurrence?

MR TOOMEY:   Your Honour, there may not be direct evidence but there is inferential evidence.  There is evidence that it was a black spot where there had been a number of accidents.  There is evidence that it was a rainy night.  There is evidence of an alderman still alive who said he had been agitating for years before the accident for the road to be changed, and the road was changed after the accident, but there is no evidence of a person saying ‑ ‑ ‑

GUMMOW J:   This is Mr Lanham, is it?

MR TOOMEY:   Yes, your Honour.

GLEESON CJ:   I have in mind what appears in paragraph 79 on page 154.  If Justice Bryson is right about that being “the simple and overwhelmingly clear position”, there is a problem, is there not?

MR TOOMEY:   Well, your Honour, there would be but it has to be read in the light of this fact, that Master Harrison and five judges, including Justice Bryson, held that there was a tenable case.  They all refused summary judgment on the basis that it was not a tenable case.  They all said, “No, there is a tenable case”.  So this has to be read in the light of Justice Bryson saying, “There is a tenable case but I don’t know what the evidence is”.  Now, the plaintiff was not called in the lower courts.  If I can say so, with respect,…..one can understand why not.

GLEESON CJ:   Well, I have inferred – I hope not unfairly – the plaintiff just cannot give any explanation of how the accident happened.

MR TOOMEY:   That may not be right, your Honour.  I just do not know, but I would, with respect, say it would be a dangerous inference.

GLEESON CJ:   So we just have to deal with the evidence, the state of the evidence.

MR TOOMEY:   That is so, your Honour.

GLEESON CJ:   That is summarised by Justice Bryson in paragraph 79.  He says that the position is that “no useful evidence is available upon which to conduct a trial”.

MR TOOMEY:   Well, that is, your Honour, after he has set out an amount of evidence, some of which, in our respectful submission, would be enough.  I should tell your Honours first this is a jury trial.  A jury was duly requisitioned in 1994, so if it ever went to trial, it would go to trial before a jury.  It would then be open to a judge, before the matter went to the jury, on application of the defendants, to enter a verdict for the defendants.  The fact that a tenable case has been held to exist must, in our respectful submission, cut down what Justice Bryson says because to say that the case is tenable must mean ‑ ‑ ‑

GLEESON CJ:   Where does he say that?

MR TOOMEY:   I will give your Honour the references to where it has been said by not only Justice Bryson but the other judges.  Justice Giles at 115 of the book at line 16:

While the defendants did not establish that the plaintiff’s case was untenable –

and of course the onus was on them to do so.  Then at pages 136 and 137 of the book at paragraph 48, Justice Bryson:

In my opinion the evidence which the defendants have brought forward, even assisted by reasoning about the opportunities available to the plaintiff to resist the application by bringing forward any evidence he does have available, and by the insufficiency of the affidavits of Messrs Lanham, Wynne and Alston which he did bring forward, does not meet the standard of certitude required for the exercise of this power.  Although I have not endorsed Hoeben J’s reasoning in all respects, I am of the opinion that his Honour’s conclusion on summary disposal under Pt 13 r5 was correct.

In other words, there was a case fit to go to the court.  Your Honours, it is necessary to understand the basis on which the application was allowed.  The basis on which it was allowed was that it would be impossible for the defendant to have a fair trial. 

Now, the extraordinary position is, your Honours, that there is no case in Australia which we are able to find apart from a case of Norman v Howarth, which really has nothing to do with it, a first instance case of the Family Court, where the question of a permanent stay of civil proceedings brought within time has been decided, but there are cases in England – Birkett v James and Tolley v Morris – in which Lord Diplock led the majority of the House of Lords in saying, in effect, in the absence of oppression, there is no jurisdiction to stop a person proceeding with an action brought within time – that is if they pass the first summary judgment hurdle.

The reason given by Justice Bryson is the great delay, although his Honour accepted and the court accepted that no fault lay at the plaintiff’s feet in respect of that delay.  Those findings are to be found at 116 and at 139 where his Honour Justice Bryson found that the delay before the issue of the statement of claim was not to be laid at the plaintiff’s door and that the only delay relied on before the issue of the statement of claim in December 1994.  So he brings an action which he is entitled to bring before a court with no fault on his part for the delay.

If I could then take your Honours to Birkett v James [1978] AC 297 in an attempt to demonstrate to your Honours how Lord Diplock dealt with the question in a different context. It was the context of an application which had succeeded to dismiss an action for want of prosecution and an attempt by the plaintiff within time to proceed on a new writ. At page 320 at about point 3 on the page his Lordship said this:

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.

The next sentence is important:

No one has been bold enough to argue that if the plaintiff has not issued a previous writ he could be deprived of that right at the discretion of a judge because the judge thought that in the circumstances of the particular case the statutory limitation period was too long.

His Lordship went on at page 323 to say this at point 5 on the page:

My Lords, once it is accepted that Limitation Acts confer upon a person who claims to have a cause of action a legal right to start his action at any time up to the expiration of the statutory limitation period it must follow that he has a corresponding right to continue to prosecute it to trial and judgment so long as he does so with reasonable diligence.  As rules of court recognise . . . The contrary view would lead to the conclusion that even though the plaintiff had acted well within the time table laid down in the rules . . . his action could be dismissed for want of prosecution simply because of prejudice to the defendant which had been wholly caused by the delay before the action started.

This was a case where there was no disability.

In a case of Tolley v Morris, which was decided in the next year by the House of Lords, if I can just tell your Honours briefly what the facts were in that case, a little girl was brain-damaged in a car accident when she was two and a half.  An action was brought on her behalf three years later just within time for the issue of a writ.  Nothing was done for 10 years and after 10 years the action was dismissed for want of prosecution.  She was still within time.  She was still within the infancy disability.  It is not clear whether she also had the disability of lack of capacity extraneous to the infancy disability.

The Court of Appeal made an order precluding a new writ being issued by the infant, although it would be within the limitation period, and the infant appealed to the House of Lords.  On page 568 of the report, again in the speech of Lord Diplock, at the top of the page his Lordship said this:

My Lords, it is not and cannot be disputed that by 1977 –

that is, after the 10-year delay on the first writ –

there had been inordinate and inexcusable delay in the prosecution of the action and that the delay has given rise to a substantial risk that it will not be possible to have a fair trial of the issue of liability in respect of a road accident which happened nearly 15 years ago.  It is also likely to have caused major prejudice to the appellant, whose insurer’s files on the matter have by now been destroyed; so have the police records and statements relating to the accident.  This would be a clear case for dismissal under the practice laid down in Allen v Sir Alfred McAlpine & Sons Ltd, unless the decision of this House in Birkett v James protects it from that fate because, the respondent being still an infant, the limitation period applicable to her cause of action had not expired and, if the current action were dismissed, she would be entitled to bring another action, by her next friend if the action were begun before 12^th November 1979 –

In other words, his Lordship said, and the House held, that, despite “inordinate and inexcusable delay” and major prejudice to the defendant, she would be allowed to continue with her case.  In this case there is no delay and, on the basis of prejudice alone, the Court of Appeal has said this plaintiff is to be deprived of his right.

GUMMOW J:   Is that reasoning not open in the light of Cox v Journeaux?

MR TOOMEY:   What, to the Court of Appeal, your Honour?

GUMMOW J:   Well, to everyone.  Sir Owen Dixon said, “or would clearly inflict unnecessary injustice upon the opposite party”.  Was that not sufficient footing?

MR TOOMEY:   We would respectfully say no because “unnecessary injustice”, in our respectful submission, must imply some failing on the part of the person who brings the action.  That, in our respectful submission, is the whole point.  In Herron v McGregor the only Australian case in which the point has been directly referred to, although it was referred to obiter in a judgment of Justice McHugh in the Court of Appeal, his Honour said this at page 253D:

Since the passing of the Statute of Limitations 1623, the institution of must civil proceedings has been subject to time limitations.  Even before that time many actions were subject to time limitations . . . 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.

He cites Birkett v James.  His Honour adds a caveat in the last sentence of that paragraph.  He says:

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 or prosecutor is oppressive to the defendant or accused person.

The most authoritative definition of “oppressive” that we can find is Viscount Simonds in an English case where he says it is burdensome, harsh and wrongful.  It might well be burdensome and harsh in this case but it could not be said that for a plaintiff to bring ‑ ‑ ‑

GLEESON CJ:   But that was a corporate case.

GUMMOW J:   That is an oppression case in corporate ‑ ‑ ‑

GLEESON CJ:   That is a winding up for ‑ ‑ ‑

MR TOOMEY:   Yes, but his Lordship said, “I apply the dictionary definition, which is ‘burdensome, harsh and wrongful’.”  Your Honours, it is our respectful submission that this man had a right given to him by Parliament because Parliament had put its mind to the matter and said there is an ultimate bar.  “No matter that you are under a disability, there is an ultimate bar which prevents you bringing an action after 30 years”.  This man brought his action within 30 years.  He had been disabled up until the time he had brought his action; therefore, he was lawfully bringing an action.

GLEESON CJ:   Your argument may be right or it may be wrong, but does it amount to the proposition that, absent fault on the part of the plaintiff, delay is to be dealt with only under the rubric of limitations?

MR TOOMEY:   That is our respectful submission, your Honour, and we say it arises directly from Birkett v James.

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

MR TEMBY:   Your Honours, in this case the proceedings were commenced more than 29 years after the accident sued upon.  In the meantime all records concerning the accident, its investigation and the construction and condition of the road where it happened have become unavailable.  This is not a case of simply long delay; it rather has to do with the consequences of delay.  The Court of Appeal in a long and detailed review of the case has concluded that the practical entire absence of records gives rise to the outcome that there cannot be an acceptably fair trial of the issues that arise in the case.

While the plaintiff was entitled to sue at the time he did, the application that was at the end of the day granted was an application for a stay of proceedings.  Any application for a stay of proceedings assumes that the court has jurisdiction in the matter but that that jurisdiction should not be exercised for some reason and the available reasons are not limited to those which involve any misconduct on the part of the other side.  They include – and this is clear in relation to criminal proceedings, disciplinary proceedings and, we submit, civil proceedings similarly – the circumstance that there cannot be an acceptably fair trial.

That is the conclusion that was reached by the Court of Appeal.  It is a conclusion which was, we submit, clearly open which cannot be said to be apparently wrong.  We also submit that the case is one which, so understood, does not involve a question of law, certainly not a question of law which calls for the grant of special leave and the intervention of this Court.

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

MR JOSEPH:   If the Court pleases.  The Limitation Act only provides, in our submission, an arbitrary declaration by Parliament as to when an action should commence.  It does not, in our submission, impact on the power of the Court to control its processes, whether actions are brought in time or out of time.  It is wrong to use the Limitation Act in the manner that my friend suggests, namely as being a Code that excuses all other effects that delay has on litigation.  The Limitation Act, in our submission, is but one aspect of the Court’s overriding obligation to ensure its processes are not abused and that persons have confidence in them.  Persons cannot have confidence that a fair trial could be obtained in respect of an action of an accident happening over 28 to 30 years ago.

GLEESON CJ:   I must admit, Mr Joseph, that I have never come across this problem before, that is to say, a major delay resulting in obvious and extreme prejudice to the defendant but in circumstances where the limitation period has been postponed because of disability on the part of the plaintiff.

MR JOSEPH:   There is no other case that we can assist the Court in that regard other than to say there can be no doubt that Limitation Act in cases where Limitation Acts are not applicable, for example, in criminal cases, the court has no difficulty in determining that it has power to control its processes. All that the Act does in this case is to say that these types of individuals will not be subject to the Act. It does not say, nor does it infer, in our submission, that the court will not allow its processes to be used in a fashion, albeit within time or not excluded by the time limits except in the 30‑year rule, should it not control its processes. I mean, the confidence that either the inherent powers of the court or section 23 of the Supreme Court Act clearly, in our submission, gives the power to the court to do what the Court of Appeal did.  I should say this.  It was never challenged below that it did not have that power.

GLEESON CJ:   No, there does not seem to be an issue of power.  It seems to be a question of the principles governing the exercise of the discretion.

MR JOSEPH:   There was no dispute that there was a discretion and there cannot, in our submission, be any dispute on any authority – obviously Walton v Gardiner and Jago v District Court – that the court looks at all of the circumstances to see whether justice or unfairness will occur in the process continuing.  In our submission, there is no issue of principle involved simply because the action is not statute‑barred, that not being the issue the court considered below, nor, in our submission, could it be the penultimate consideration as to whether a continuation of this litigation on the findings of fact that your Honour has referred to.

GLEESON CJ:   If there is an issue of principle involved, it would have to be, would it not, that acknowledging that the court has a discretion to stay proceedings where their continuation would make it impossible for a defendant to have a fair trial, the court may not exercise that discretion in circumstances where there has been no fault on the part of the plaintiff and the proceedings are by hypothesis not statute-barred.  If they were statute‑barred, the question would not arise.

MR JOSEPH:   Yes.  We simply say in respect of the statute bar, it cannot be the determining factor.  It is one factor that could explain some delay but it does not become the only factor and the court below did not consider it

was the only factor, although it did have regard to it.  That would be our submission.

GLEESON CJ:   Thank you.  Mr Toomey, is what it amounts to a question of principle?  Acknowledging that there is a discretion to stay proceedings if a defendant cannot have a fair trial, which is common ground, as I understand it, you would have to say that discretion cannot be exercised in the absence of fault on the part of the plaintiff.

MR TOOMEY:   That is our submission, your Honour, and it founds directly on Birkett v James and Tolley v Morris.  It founds in fact on the right of a plaintiff to have an action tried where there will be prejudice to a defendant but it is brought within time, remembering that in Tolley v Morris Lord Diplock said there is major prejudice to the defendant but it is within time, so it ‑ ‑ ‑

GLEESON CJ:   What about the case where the reason there cannot be a fair trial for the defendant is because of the conduct of some third party?

MR TOOMEY:   Your Honour, can I elliptically say that in Birkett v James, in Lord Diplock’s speech his Lordship refers to a case, the Spring Grove Case, where an action was stayed when brought within six years, a first action having been dismissed for want of prosecution, a statement having then been made by the plaintiff to the defendant that it had abandoned its case, the action being brought, the defendant having allowed a crucial witness to get out of touch.  But Lord Diplock described that case as being rightly decided as a case of estoppel.  In other words, he still denied the right in a case regularly brought to be stayed if brought within the limitation period, but he found that the estoppel allowed the case to be stopped. 

In the case of a third party, your Honour, it would fall within our argument because it is no fault on the plaintiff.  The plaintiff is merely exercising a right given to him.  My learned friends both say that criminal, disciplinary and civil proceedings are the same.  They clearly are not.  There are clearly considerations of public interest in criminal and disciplinary procedures which were dealt with by this Court in Walton v Gardiner and by the Court of Appeal in Herron v McGregor which do not apply in civil cases.

In the light of the fact that this Court has never dealt with the question of the powerful English authority, I should say that the suggestion that the matter was not raised in the court below is plainly wrong.  From paragraphs 51 to 56 of the book Justice Bryson set out the cases.  He reproduced the passage from Herron v McGregor of Justice McHugh which I have read to your Honours and he then said at paragraph 57:

However I am unable to see any reason in principle why the power should not be exercised in a proper case. 

But he did not deal with the fact that the very passage he had reproduced from Justice McHugh had said that it can only be a proper case where there is oppression in the conduct of the plaintiff or the prosecutor.  It receives no attention whatsoever, although the case was before the court and Birkett v James was of course referred to in the passage from Herron v McGregor of Justice McHugh.  May it please your Honours.

GLEESON CJ:   In both of these matters there will be a grant of special leave to appeal.  The matters will be listed together and we will allow a day for them and we will assume that counsel will agree between themselves on a division of the available time.

We will adjourn for a short time to reconstitute.

AT 11.18 AM THE MATTERS WERE CONCLUDED