Brisbane South Regional Authority v Taylor

[1996] HCATrans 69

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B27 of 1995

B e t w e e n -

BRISBANE SOUTH REGIONAL AUTHORITY

Applicant

and

SHARON ANNETTE TAYLOR

Respondent

Application for special leave to appeal

TOOHEY J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 10.27 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear with my learned friend, MR P.A. FREEBURN, for the applicant.  (instructed by Minter Ellison)

MS M.A. WILSON, QC:   May it please the Court, I appear with my learned friend, MR D.C. RANGIAH, for the respondent.  (instructed by Paul Richards & Associates)

TOOHEY J:   Yes, Mr Keane.

MR KEANE:   In this case, the present respondent sought an extension of time within which to commence an action for damages for personal injury allegedly suffered some 16 years before as the result of negligent advice given in a conversation between herself and a doctor, an employee of the predecessor and the present applicant.

The relevant provision of the Limitation of Actions Act is set out in the application book at page 55 lines 20 to 30, and if your Honours would look at that, your Honours will see that it confers on the court a discretion to extend time where the stated conditions are satisfied.  That provision has analogies in New South Wales and Victoria, although their application has now been superseded, they may still apply in relation to cases in respect the cause of action accrued in the past.

At page 58 of the joint judgment of Justices Davies and Ambrose, one can see that their Honours treat the section, which your Honours will have seen is in familiar form, that if certain events are made out or if certain facts are established, then the court may take action.  Your Honours will see at page 58, lines 10 to 18, their Honours treat the section as conferring on the court a discretion which is presumptably to be exercised in favour of the party seeking the favourable exercise of that discretion.

TOOHEY J:   The point of difference seems to be whether the onus which the majority referred to is simply an evidentiary onus leaving the ultimate onus upon the plaintiff or whether, as I take your case to be, that the majority approached the matter on the footing that the ultimate onus really lay with the respondent, that is, the applicant in the present case.

MR KEANE:   Yes, your Honour.  When one looks at what is said at about page 58 line 14:

The scheme of the section, in our view, is that, upon compliance with paras (a) and (b), the applicant is entitled to an extension of time unless there is some matter justifying the exercise of a discretion against the granting of an extension.  Once that is acceped, the evidentiary onus on this question is plainly on the respondent and, for the reasons we have given, was not discharged here.

We would accept that there does seem to be some degree of ambiguity or perhaps, with the greatest respect, confusion, in the judgment, but it does seem, with respect, that it proceeds on the footing that it is the case that upon satisfaction of the conditions stated in paragraph (a) and (b) there is an entitlement to an extension of time, unless something to the contrary is shown.

TOOHEY J:   Something to the contrary being what, prejudice, for instance?

MR KEANE:   Yes, prejudice, for instance, or some other reason rationally connected with the subject matter of the discretion which would justify a refusal of the extension of time.  Whereas, we would submit, the proper approach is to look for a good reason to call for the exercise of the discretion, or at least to start with the position that it is onus neutral, as it were.

TOOHEY J:   Could I just ask you this:  if the evidence insufficiently raises the case of prejudice, what other factors are likely to intrude in deciding whether or not the discretion should be exercised?

MR KEANE:   The discretion, as we have said, must be exercised by reference to considerations rationally connected to the subject matter.  The purpose of this section, and of the discretion which it creates, is to allow claims to be tried on their merits by lifing the prima facie bar imposed by the statute of limitations.  Where the court, called upon to exercise that discretion, cannot conclude on the probabilities that a fair trial is likely, it should not open the door of the court to the claim.  That is, in our respectful submission, a consideration that is necessarily implicit in the nature of the discretion.  It is is it a consideration relevant to its proper exercise, having regard to the purpose for which it is conferred, that is, that stale claims may nevertheless be tried on their merits.  In our respectful submission, that must mean tried fairly by a process that can properly and sensibly be described as a trial.

At first instance, the learned primary judge in this case - and your Honours will see his relevant reasons at page 48 of the application book commencing at line 45 and continuing over to page 49 line 5, and then, at the bottom of that page at lines 20 to 25 held that a fair trial of the

issues would be improbable, having regard to the circumstances that the cause of action was said to ‑ ‑ ‑

KIRBY J:   You say the prejudice is really overwhelming and that therefore that rather suggests that the Full Court has reversed the actual legal onus, and it is not merely a statement of the evidential onus that this is getting wrong where the obligation to get the extension lies, and to lift the bar.

MR KEANE:   Quite, your Honour.  With the greatest respect, that is our submission.  Your Honours will see that the majority of the Court of Appeal did not say that his Honour’s view that a fair trial was improbable was wrong.  Your Honours will see that the majority did not ‑ ‑ ‑

TOOHEY J:   Mr Keane, could I just interrupt you?  I think we might benefit by hearing from Ms Wilson at this point.

MR KEANE:   As your Honours please.

MS WILSON:   Thank you, your Honour.  Your Honours, the statement made by the majority upon which my learned friend has focused was made in the context of a discussion of where the evidentiary onus with respect to prejudice lay.  At about line 5 on page 58, their Honours had said that there was no evidence from which relevant prejudice could be inferred and they then went on to refer to the conflicting submissions of the respondent to the application with respect to where the evidentiary onus lay.  Having then made the statement to which my learned friend has referred, they immediately qualified it by referring again to the evideniary onus on this question; that was, on the question of prejudice.

They did not suggest, in my submission, that the onus of persuading the court ultimately to exercise its discretion in favour of granting the application, shifted from the applicant to the respondent.  They held that the applicant for special leave - that is the respondent before them - had failed to discharge the evidentiary onus.  They pointed to a number of matters:  there was no evidence as to what attempts had been made to contact Dr Chang.  His notes were still available.  Importantly, there was no evidence that his recollection of the conversation in question was likely to have been any better towards the end of the limitation period than it was likely to be at the time of the application, and there was no evidence as to whether the other doctor, Dr Brandon, had been shown his notes.

TOOHEY J:   What do you mean by “at the time of the application”, Ms Wilson, by reference to the memory of the doctor?

MS WILSON:   Yes, your Honour.  What the majority said was this, with respect, that it was necessary to compare the situation at the time of the application with that at about the end of the limitation period.  Mr Justice Fitzgerald concurred in that.  The section gives the court power to extend the limitaion period so that it is, in my submission, logical to make a comparison, not between the situation at the time of the events in question and that at the time of the application, but rather, between a situation at the time the limitation period expired and that at the time of the application.  The Court of Appeal was of the view that there was nothing to suggest that Dr Chang’s recollection about 2.5 or 3 years after the incident in question would then have been any different from what it would now be at the time of the application.

In our submission, your Honours, this case is not one appropriate for the grant of special leave.  Before the Court of Appeal, one of the issues was whether there was a discretion to grant or refuse relief, once the prerequisites had been satisfied.

McHUGH J:   There must be.  It is a complete misconception of the section to think that there is not a general discretion.  The fact that you prove one material fact does not mean you are entitled to an order under the section.  For example, a person may not know one consequence of an injury, but may be well aware of all the other consequences.  In those circumstances, a court is perfectly entitled to reject the application under section 31 and the similar sections.

MS WILSON:   With respect, your Honour, the respondent to this special leave application does not challenge the decision of the Court of Appeal as to the existence of the discretion; rather, it submits that the Court of Appeal was correct in stating principles with respect to the exercise of that discretion and, further, that it did not err in the application of those principles.

KIRBY J:   I think it is difficult, at this stage at least, to convince us that it did not err.  Your strongest point is that this is an interlocutory decision and that the Court rarely grants special leave on such decisions because problems tend to go away.  But, as against that, this is the sort of provision which experience teaches is frequently applied in attempts to get the bar lifted and if there were any risk that in Queensland the wrong principle is being applied, then that is something of multiple application to a lot of cases.  That is why, speaking for myself, it seems to me, at least, that it may be a matter that we ought to look at.

MR WILSON:   With respect, I adopt what your Honour Justice Kirby has said about it being an interlocutory matter.  I cannot take that point any further than we have in our written submissions, your Honour.

KIRBY J:   It is a pretty fundamental point, is it not, as to where you put the onus in these applications, because there are hundreds of these applications every week throughout Australia, to lift the bar, and the Queensland approach seems to put the onus in the wrong place.

MS WILSON:   That is so, with respect, your Honour but the provision is largely limited to Queensland now.  The earlier provisions in New South Wales and Victoria apply only to actions which would be quite old with matters accruing before 1990 or before 1983.

McHUGH J:   On recent experience in New South Wales there would be plenty of those still around and will be coming through for many years.

MS WILSON:   I take your Honour’s point.  I would, with respect, repeat what I said earlier, and that is that the statement in question, when read in the context of the majority’s judgment, should be interpreted as relating only to the evidenary onus.

TOOHEY J:   That is really the crux of it to a large extent, but if that is in doubt then it does give rise to a quite important question.

KIRBY J:   Of multiple application.

MS WILSON:   Unless there are any specific points on which I can assist the Court those are our submissions.

TOOHEY J:   Yes, thank you, Ms Wilson.  Mr Keane, we do not need to hear from you further, thank you. 

There will be a grant of special leave in this matter.

AT 10.43 AM THE MATTER WAS CONCLUDED