Clemens v Department of Defence of the Commonwealth of Australia

[2008] HCATrans 330

[2008] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M152 of 2007

B e t w e e n -

DAVID CLEMENS

Plaintiff

and

DEPARTMENT OF DEFENCE OF THE COMMONWEALTH OF AUSTRALIA

Defendant

Writ of Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 18 SEPTEMBER 2008, AT 10.02 AM

Copyright in the High Court of Australia

MR D. CLEMENS appeared in person.

MR R.C. KNOWLES:   If your Honour pleases, I appear for the defendant, the Commonwealth of Australia.  (instructed by DLA Phillips Fox)

HER HONOUR:   Yes.  I think, Mr Knowles, we should hear from you first because it is your summons.

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Mr Clemens, may I just explain that there is a summons returnable today where the Department of Defence is applying for orders that the proceeding be stayed, dismissed or struck out.  So we will hear from Mr Knowles first and then I will give you an opportunity to respond.

MR CLEMENS:   Yes, your Honour.

HER HONOUR:   Yes, Mr Knowles.

MR KNOWLES:   Yes.  Your Honour will recall that this matter previously came before the Court on 6 May this year and at that time the defendant stated its intention to seek orders for summary judgment and your Honour made procedural orders for the parties to file and serve material prior to the hearing of the application for summary judgment.

HER HONOUR:   Yes.  I have read that material.  Mr Clemens, in fact, has also filed material and I have read that.

MR KNOWLES:   Yes, if your Honour pleases. 

HER HONOUR:   May I just ask you this, Mr Knowles.  It is something which just arose as a question in my mind.  I understand the orders made by Justice Harper in the Supreme Court of Victoria – was any appeal from that decision possible, perhaps with leave?

MR KNOWLES:   I believe that there was and an example of such an appeal is a case which I believe was instituted by Mr Clemens in respect of another decision where the relevant other party was Phillip Morris.  There is a decision of the Court of Appeal – I can perhaps just obtain a copy of that, your Honour, and provide it to the Court if it might be of assistance.

HER HONOUR:   That may well be helpful.  Yes, thank you.

MR KNOWLES:   I have two copies.  I do not seem to have a third, but perhaps if I can give one copy to Mr Clemens and another to the Court.

HER HONOUR:   Yes, thank you.

MR KNOWLES:   That was certainly a case in which there had been an initial decision not to grant leave and then there was an appeal from that decision to the Court of Appeal and the Court of Appeal, unless I am mistaken, actually overturned the decision in respect of leave.

HER HONOUR:   Yes, a refusal to grant?

MR KNOWLES:   That is so, yes, your Honour.

HER HONOUR:   Yes, thank you for that.

MR KNOWLES:   I do not think it is in dispute in this particular case that Justice Harper’s orders have not been the subject of any appeal.

HER HONOUR:   Yes, I will inquire of Mr Clemens, but that is my understanding.

MR KNOWLES:   Yes.  Certainly that is something that was said by Mr Norman Abrams in his affidavit, paragraph 21.  Your Honour will have also noted that in the submissions that have been prepared by Mr Clemens Mr Clemens says at page 11 of those submissions that aside from the first two paragraphs of Mr Abrams’ affidavit, which essentially relate to his knowledge of the file and his authority to make the affidavit on behalf of the defendant, apart from those two paragraphs otherwise it would appear from what is said at page 11 that Mr Abrams accepts all that is contained, in terms of the facts at least, in the affidavit and that includes paragraph 21 at line 40 on page 11 of Mr Clemens’ submissions.  So unless something different is said today in terms of what might have happened in recent time, it would appear that there has been no appeal instituted from the decision of Justice Harper on 28 November last year.

HER HONOUR:   In that context, may I just point out, I think there is a typographical mistake in the chronology which is to be found on pages 2, 3 and onwards of your submissions.  It is a point in relation to the factual background which, from what you have just said, I can otherwise rely on there being no dispute, but I will point this out and I would expect it is completely non‑contentious.  On page 3 there is an item entered for “28.7.03” and there is a reference to “Proceeding No M73”.  I believe that should read “Proceeding No M38 of 2003”?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   So subject to that correction, it would appear there would be no dispute about the factual chronology?

MR KNOWLES:   No, so far as I am aware and subject to what Mr Clemens might say today, your Honour, but perhaps the explanation for that typographical error might relate to the item on the preceding page next to the date “22.10.99”.

HER HONOUR:   Yes.  You do not have to be troubled about it.  It is just that otherwise I want to be confident I can rely on the chronological account of the facts and they are not in dispute.

MR KNOWLES:   No, it is a condensation of the matters that are set out in Mr Abrams’ affidavit and which are borne out by the exhibits to that affidavit.  As I say, they do not seem to be in dispute.  What is said by Mr Clemens instead is that the affidavit does not agitate arguments in support of the application and that is certainly accepted.  The arguments in support of the application are set out in the outline of submissions to which your Honour has just drawn my attention. 

In terms of the summary of the chronology, your Honour will see that there have been numerous claims made for compensation or damages in respect of an ankle injury which was suffered by Mr Clemens in March 1977.  Mr Clemens has, for instance, lodged compensation claims pursuant to the Safety, Rehabilitation and Compensation Act 1988 and its predecessors. There was limited provision of compensation at the time of the injury in 1977. There was provision made for, I think, four days of leave, two of which were a weekend, and medical expenses totalling $151 and that is set out at exhibit NA-2 to the affidavit. Otherwise, all claims made by Mr Clemens have been rejected.

There were determinations made by Comcare on 25 May 1999 and 3 January 2001 that Mr Clemens had no statutory entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act.  Internal review was sought of those determinations.  That was unsuccessful.  Then there were two review applications which came before the Administrative Appeals Tribunal and both of them were dismissed by consent on 11 February 2002.

Apart from the compensation claims lodged pursuant to the statutory scheme, there have been two personal injuries proceedings commenced previously in the High Court in 1999 and 2003.  As your Honour will no doubt be aware, both of them involved claims for damages in respect of the injury in March 1977.  Both of them were remitted to the County Court and both of them were then subsequently dismissed or discontinued due to a failure on the part of Mr Clemens to obtain leave from the Supreme Court to continue those proceedings.

Aside from those proceedings in this Court, your Honour will be aware that there was also a proceeding brought in the High Court in relation to an alleged statutory entitlement to compensation and misleading and deceptive conduct.  Those proceedings were summarily dismissed by Justice Hayne and there had been a previous proceeding prior to that brought in the Federal Magistrates Court which dealt with similar issues, and that was also dismissed. 

It is submitted that in light of the undisputed facts in the affidavit and having regard to even the material that has been put on by Mr Clemens that the present proceeding does not disclose a cause of action or is scandalous, frivolous or vexatious or is an abuse of process and to that end the defendant invokes rules 27.09.4 and 27.09.5.  Alternatively, it is submitted that the defendant has a good defence on the merits such that rule 27.09.6 ought to be applied. 

It is noted that Mr Clemens, in response to the submissions that were put forward by the defendant on 2 June this year, has, in his submissions, sought to amend the statement of claim in an attempt to remedy some of the defects that were referred to there.  The defendant objects to the proposed amendment, your Honour, because ultimately it is submitted in light of various issues, including not least of which is the statute of limitations issues, it is submitted that it would ultimately be pointless to permit the proposed amendment. 

In relation to those changes though that are in the proposed amended statement of claim, I will just note, your Honour, that Mr Clemens has abandoned the arguments that were previously advanced in relation to a statutory entitlement to compensation which might have been found back in 1977 somehow giving rise to liability otherwise on the part of the Commonwealth.  Those arguments in any event have been previously addressed in the defendant’s outline of submissions of 2 June this year at paragraphs 10 and 16 through to 21 and, unless your Honour requires me to do so, I do not propose to address those.

Otherwise, Mr Clemens has provided some further details of the common law claim.  There is still no express allegation that conduct on the part of the defendant constituted a breach of a duty of care owed to Mr Clemens.  Apart from that, there is said to have been an alleged hazard of worn carpet in the stairwell.  There are no further details or particulars provided and this perhaps highlights the difficulties that would arise if the matter somehow were permitted to proceed, because it is submitted that it would be difficult for Mr Clemens to provide further particulars of the alleged hazard or the alleged failure to warn of the hazard due to the effluxion of over 30 years since the relevant incident and that it would be even more difficult for the defendant to respond.  There would be serious evidentiary problems in relation to Mr Clemens being able to make out his case after such a prolonged period of time.

HER HONOUR:   Just getting it straight in my own mind, the current statement of claim has two elements to it?

MR KNOWLES:   That is so, yes, your Honour.

HER HONOUR:   The proposed amended statement of claim seems to be confined to the common law claim with a greater level – maybe not a level of particularity with which you are satisfied, but a greater level of particularity than was in the previous claim?

MR KNOWLES:   Yes, your Honour.  That is certainly the understanding that I have and it may be that Mr Clemens might say otherwise and, if so, I will respond to that in due course, your Honour.

HER HONOUR:   Yes.  That is on the statutory entitlement point.  You certainly might need to respond if in any way Mr Clemens is hoping to resuscitate it.

MR KNOWLES: Yes, your Honour. The other observations I would make about the proposed amended statement of claim is that, for example, there are other pleading problems. There is an alleged failure to warn, but it is limited to a single day, 30 March 1977. It is not alleged that a warning was not given at other times. Also, in the prayer for relief there seems to be a claim for non‑economic loss and it is submitted by the defendant that even if somehow this matter were permitted to proceed, it would not be open to Mr Clemens to make such a claim simply because it would not be open to Mr Clemens to make an election under section 45 of the Safety, Rehabilitation and Compensation Act to institute an action against the Commonwealth for non‑economic loss. 

The reason for that, your Honour, is that there is a pre‑condition that needs to be satisfied before one can make such an election and that is that there has been found to be, or may be, an entitlement to compensation for permanent impairment pursuant to sections 24, 25 and/or 27 of the Safety, Rehabilitation and Compensation Act.  In this case, what has occurred is, as your Honour will be aware, Comcare has actually determined that compensation is not payable pursuant to those provisions and those determinations of Comcare have been upheld by the AAT.

So, at the present time, unless Mr Clemens were somehow to make a new claim with new evidence that was successful, or was to actually appeal successfully from the AAT decisions, it is not open to Mr Clemens to make a valid election pursuant to section 45 and therefore make a claim in respect of non‑economic loss.

HER HONOUR: Because it would only be possible had the determination in fact gone the other way, the compensation was payable under sections 24, 25 or 27 of the Act.

MR KNOWLES:   Yes, your Honour.  Now, even if your Honour were minded to grant leave to amend the statement of claim, as is proposed by Mr Clemens, it is submitted there would still be no proper cause of action disclosed and certainly it is submitted that any cause of action that might be disclosed would be met with an immovable obstacle in the form of the limitations period legislation.  It is submitted, as your Honour will be aware from the outline of submissions filed by the defendant, that the statute of limitations period applies such that any action by Mr Clemens might be brought, but the remedy that he seeks would be barred by application of those provisions.

I am not sure if a copy of this has been provided to your Honour, but I do have a folder of the relevant legislative provisions which may be of assistance to your Honour.

HER HONOUR:   That may well assist, though I have certainly gone back and had a look at the history of the Act and understand the transitional provisions in 1983 to which you made a very brief reference.  Does Mr Clemens have a copy of this folder?

MR KNOWLES:   Yes.  That has just been provided to Mr Clemens.

HER HONOUR:   Thank you for that.

MR KNOWLES:   I should just make it clear that, subject to what Mr Clemens might have to say about the SRC Act, I do not propose to be referring in any detail to the provisions of the SRC Act, but they are provided just in case that might arise.  Otherwise, I would seek to take your Honour firstly to the first tab in the folder which contains the provisions as they relevantly applied at 30 March 1977, which is the date on which Mr Clemens injured himself.

HER HONOUR:   Yes.  So the relevant ones, for the assistance of Mr Clemens, I take it, would be 5(1)(a) and 5(6)?

MR KNOWLES:   That is so, your Honour, yes.  Your Honour will see that 5(1)(a) provides for a period of six years and 5(6) provides for a period of three years. 

HER HONOUR:   Then inasmuch as your submissions advance the proposition that the action was extinguished either in 1980 or in 1983, that submission is referable to the two possibilities under those two sections, I take it?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Thank you.

MR KNOWLES:   In relation to section 5(1)(a), that is just a straight, at this time, six‑year period.  In relation to section 5(6), your Honour will see at tab 1.2 there is the amending legislation which introduced section 23A.

HER HONOUR:   That is the first time that appears in the Act?

MR KNOWLES:   Yes, your Honour.  Your Honour will see on the first page of tab 1.2 that that Act came “into operation on the 1st day of January, 1973” and your Honour will see there that pursuant to section 23A and, in particular, subsection (2) there was an ability after this Act for a person to seek an extension of the limitation period, but it needed to be brought within one year after the person became aware of the material facts relating to the cause of action or within one year after the time at which the person ought to have become aware of that if they had taken all reasonable steps in the circumstances of the case to ascertain all the material facts.  In this case it is submitted that Mr Clemens had injured himself on 30 March 1977.  It was a sprained ankle.  It was an injury which he was aware of at that time and in the circumstances there was no ability for him to have recourse to the extension power that is provided for in section 23A.

HER HONOUR:   In fact, when the accident occurred, am I right that Mr Clemens received sick leave pay for a certain number of days and reimbursement of medical costs of the Prince Henry Hospital, to my recollection, something of the order of $151.30?

MR KNOWLES:   Yes, that is right, your Honour, and that is at exhibit NA‑2 to Mr Abrams’ affidavit, which is the determination to grant compensation for those days and for that medical treatment amounting to $151.30.  That determination, I should just point out, was made on 23 August 1977, so it certainly postdates to some degree the injury.  It is not clear why that is, whether it is simply time that was taken up with the administration of the claim, but, in my submission, it certainly does not affect the overall position in relation to the expiration of the relevant limitation period.

In this case, the three‑year period, on the basis of section 5(6) and section 23A expired, in my submission, on 30 March 1980 and the reason why I should say that, your Honour, is one aspect of section 23A that I did not draw your Honour’s attention to is that it only applies if the person was not aware of the material facts relating to the cause of action or could not have been aware of those material facts until a date later than two years after the cause of action accrued.  Your Honour may see that passage which falls under the two subparagraphs (i) and (ii).  Clearly in this case, as I have just indicated to your Honour, there was a claim made for compensation and it was determined in August 1977 and that falls well within that two‑year period that is referred to in the body of section 23A(a)(ii). 

It is true that section 23A was subsequently amended by the Limitations of Actions (Personal Injury Claims) Act 1983 and that Act should be contained at tab 2 of the folder that has been provided to your Honour.  Your Honour will see in terms of the commencement of that Act, I am instructed that it came into effect on 11 May 1983.  Perhaps I should just indicate to your Honour, in that regard that seems to have been something that has already been alluded to in previous cases relating to provisions which were amended by this Act.

If I can take your Honour to tab 5 of the folder of cases and legislation, your Honour should have there the decision in Commonwealth of Australia v Mewett and if I can just take your Honour to page 511, which falls in the judgment of Justice Dawson, and in the paragraph in the middle of the page, the large paragraph there, your Honour will see about halfway down that paragraph a sentence commencing, “As a result of transitional provisions of the legislation which introduced subsection 5(1)(A) in 1983 and amended it in 1989”.  That provision applies to causes of action arising after 11 May 1977.  Your Honour will see that the footnote relates to the Limitations of Actions (Personal Injury Claims) Act 1983 and, in particular, section 11 which is the transitional provision which I am about to take your Honour to in a moment.

So 11 May 1983 was the date on which this Act came into force, and your Honour will see that section 5 of this Act provided for section 23A to have a much more general application, as is indicated in the amended version of section 23A(4), which makes it explicit that the powers conferred on a court by the section may be exercised at any time.  Then if I can take your Honour though to section 11, the transitional provision in this amending Act, that makes it clear, in my submission, that ‑ ‑ ‑

HER HONOUR:   It is (2) in particular, is it not?

MR KNOWLES:   It is (2) in particular.  To my mind, your Honour, paragraph (1)(a) is relevant but subsection (2) is designed to put the matter beyond doubt and to make it explicit.  That provision makes it explicit that the Act shall not apply to causes of action that arose six years prior to the date of commencement of the Act.

HER HONOUR:   Is there any provision in the current Act which has any bearing on section 11 and what it provides in relation to causes of action arising six years before 11 May 1983, more than six years?

MR KNOWLES: Not that I am aware of, your Honour, and in that regard the only provision that I can take your Honour to in terms of the current Act is section 27B, which I do not believe is in the actual materials that have been provided to your Honour. Section 27B only applies though to causes of action in respect of which proceedings were commenced after October 2003. So if, for example, there had been no proceedings commenced by Mr Clemens prior to October – and I am sorry, I do not have the precise date, your Honour, but if there had been no proceedings commenced by Mr Clemens prior to October 2003, then he may have been picked up by this relevant provision. But the difficulty is that Mr Clemens did commence proceedings prior to October 2003 in relation to this cause of action. For example, there is the proceeding which was commenced in this Court in 1999. It is 1 October 2003, your Honour.

HER HONOUR:   Thank you.  So that is 27B?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   And 5(1A) of the present Act has no application to Mr Clemens?

MR KNOWLES:   No, it does not, your Honour.  I just referred to that in the judgment of Justice Dawson because that was also a provision that was introduced by virtue of that amending Act and was subject to that transitional provision.

HER HONOUR:   Yes.

MR KNOWLES:   Therefore, the transitional provision was referred to as to when it came into operation by Justice Dawson.

HER HONOUR:   In Mewett’s Case.

MR KNOWLES:   Yes.

HER HONOUR:   Yes, I just wanted to make sure about that.

MR KNOWLES:   It would appear, just having a look at that legislation, the amending Act that I have provided to your Honour at tab 2, that 5(1A) was introduced – I am sorry, your Honour, I withdraw that.

HER HONOUR:   Are you looking at section 3?

MR KNOWLES:   Yes, I am.

HER HONOUR:   Well, section 11(2) must operate such that section 5(1A), which applies as of 11 May 1983, has no operation in relation to causes of action arising more than six years before 11 May 1983.

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Yes, thank you.

MR KNOWLES:   So on the basis of those provisions, it is submitted that the cause of action which Mr Clemens seeks to bring before this Court is statute barred.  I note that the defendant has not yet filed a defence in the proceeding, but I am instructed that in any defence filed by the defendant the statutory limitation period will be relied upon.  It will be pleaded that the period has expired and can no longer be extended.  In those circumstances, it is submitted that there is nothing to be gained by allowing the matter to proceed further.  It would simply be a case of this argument being raised again in opposition to any application to extend time after going through the pleadings process.

I note that there have been similar arguments previously raised in other courts about these limitation periods.  Those other courts – such as, for example, the Supreme Court in the case of Justice Harper’s decision in November of last year – have upheld that the proceeding would be futile in the circumstances.  Now, I do note though that Mr Clemens has said in his submissions that the Limitation of Actions Act does not apply because it would appear from Mr Clemens’ submissions he says that the matter is being brought in the High Court and against the Commonwealth and therefore this Act ought not to apply, or cannot apply.

In my submission, by virtue of sections 79 and perhaps 80, but more likely just section 79, of the Judiciary Act, it is clear that the provisions of the Victorian Act apply in the present proceeding. In that regard, section 79(1) states:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

The laws of the relevant State here are the limitation periods legislation in the form of the Limitation of Actions Act as it applied at the relevant time.  Again, I would refer to the decision of the High Court in Mewett, which is at tab 5, your Honour.  I do not know if your Honour requires me to go through ‑ ‑ ‑

HER HONOUR:   You could just identify the passage if you wish.

MR KNOWLES: The pages – in Chief Justice Brennan’s judgment, page 492 sets out his Honour’s comments about the operation of section 79. I note though that his Honour indicated at page 491 that his Honour agreed with Justices Gummow and Kirby. Then in Justice Dawson’s judgment I would refer your Honour to pages 505 and 506. I just note at page 506 Justice Dawson relevantly said that – this is in respect of the limitations period legislation. Towards the middle of the page his Honour said:

There is no inconsistency in these cases, there being no Commonwealth statute of limitations.

Then in Justice Gaudron’s judgment – and I have not referred to Justice Toohey’s judgment or Justice McHugh’s judgment, which do not seem to have anything apposite to this present issue, your Honour.  In Justice Gaudron’s judgment it was section 80 that did the relevant work, section 80 of the Judiciary Act that is, but at page 528 her Honour also said that if that approach was incorrect, then:

s 79 must be construed as operating in this case to “pick up” New South Wales limitation and choice of law rules.

Then in relation to the final judgment, the joint judgment of Justices Gummow and Kirby, I would simply refer your Honour to pages 553 through to 556.

HER HONOUR:   Yes, thank you.

MR KNOWLES:   All of those judgments contain passages that, in my submission, make it clear that the State statute of limitations legislation can apply to proceedings, and will apply to proceedings, that are brought in the federal jurisdiction.

Now, if your Honour were to accept that if pleaded the limitation period would apply and that it could not be extended, it is submitted that the proceeding is doomed to fail and, as a result, an abuse of process.  In that regard, I will just briefly refer your Honour to the decision of the High Court at tab 6 which is Walton v Gardiner.  In particular, I would refer your Honour to the joint judgment of Chief Justice Mason and Justices Deane and Dawson and, commencing at the very bottom of page 392, there is a description of when proceedings will constitute an abuse of process, and it extends over the page down to about halfway on page 393 but, in particular, their Honours stated:

proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail –

among other things.  Their Honours also refer to proceedings will be an abuse of process if they are oppressive in respect of the case that the other party may be called on to answer.  For example, their Honours stated:

Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

That is another basis upon which it is submitted on the uncontested facts set out in Mr Abrams’ affidavit, that the present proceeding would also constitute an abuse of process.

Now, even if there was some ability on the part of your Honour to extend the relevant time periods, it is submitted that it would not be appropriate to do so in the circumstances of the present case.  In this case, as I have already alluded to, your Honour, there have been 30 years that have passed since the events which are the subject of Mr Clemens’ statement of claim.  Even if leave were granted to amend the statement of claim, I have already alluded to particular defects that the defendant sees in the statement of claim.  I have already alluded also to the distinct problems of proof that would be faced by Mr Clemens in respect of the nature of the injury and his present situation in respect of causation in that regard.

The exhibits to Mr Abrams’ affidavit also demonstrate that Mr Clemens ceased work with the Commonwealth Government in 1978.  Thereafter, he worked at Carlton United Breweries, as I understand it, from 1978 to 1991.  That work involved some physical work and in the course of that he suffered some workplace injuries, including injuries to the same leg.

In the circumstances, it is submitted that even if time were extended somehow, it would be oppressive to require the defendant to defend such an action in the circumstances.  There have been several attempts to seek compensation in the past; they have all been unsuccessful.  There are other avenues that Mr Clemens could take pursuant to the statutory scheme and those avenues have been taken so far, but they could be taken further if he chose to do so – if there were new evidence upon which he might seek to lodge a new claim for instance.

So, in the circumstances, it is submitted that the claims are so untenable that they cannot succeed.  The statement of claim should be struck out and there should be judgment for the defendant with costs.

HER HONOUR:   Yes, thank you.  Thank you, Mr Knowles.  Yes, Mr Clemens.  First of all, Mr Clemens, perhaps I should ask you, you did have an element to your – well, you do have an element in your current statement of claim which claims entitlement to compensation by virtue of an instrument of law dated August 1977, which I understand to be the original determination ‑ ‑ ‑

MR CLEMENS:   Determination of liability.

HER HONOUR:   ‑ ‑ ‑ pursuant to which you received sick pay and the reimbursement of the medical costs.  Is it a correct understanding of your proposed amended statement of claim that you are abandoning that aspect of the claim?

MR CLEMENS:   May I be permitted to ask a question?  Is your Honour experienced in personal injury litigation?

HER HONOUR:   I do not have to answer your questions, Mr Clemens.

MR CLEMENS:   I understand that, your Honour.

HER HONOUR:   So it is not appropriate to direct them to me.  All I am asking – all I am seeking to ask you to confirm is what seems to be apparent from your written submissions, namely that you are not proceeding with the second element to the claim but are only proceeding with the common law claim.  The reason I raise that with you, so you understand the reason, is because Mr Knowles has made that assumption, but he has reserved his position to say something more about that second way of putting your statement of claim if in fact you have not abandoned it.  I am just trying to clarify with you whether you are wishing to proceed with two elements to the statement of claim or not.

MR CLEMENS:   Based on the reading of the defendant’s submissions in relation to the defects which were in the original statement of claim, I reconstructed and formulated an amended statement of claim.

HER HONOUR:   You have put in more particulars than you previously had.

MR CLEMENS:   I have particularised it as such based on pleadings in every personal injury litigation.  I deleted the pleading in relation to the determination for liability as I thought to myself, if I pleaded it again – which I can – the defendant would take issue with it and say that I am making a claim for compensation pursuant to provisions of the Act as it stood in 1971, the Commonwealth Government Employees Act 1971.

Your Honour is aware that this is a claim for pain and suffering of damages for the left ankle injury which arose out of during the course of employment with the Department of Defence 30 March 1977.  Your Honour is aware that this is not a claim against the defendant for compensation pursuant to provisions of the Safety, Rehabilitation and Compensation Act 1988.

HER HONOUR:   All I want to know, and if I may I would like to ask you ‑ ‑ ‑

MR CLEMENS:   Simply, your Honour, I could ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ to give me a short answer because you do not need to go into the merits of it.  I would just like to know whether the present application which the Department of Defence has made, applying for orders in essence that your proceeding be struck out, I am asking you to tell me whether that should be dealt with on the basis of your current statement of claim with further particulars that have been foreshadowed in your proposed amended statement of claim, or should it be dealt with on the basis that your proposed amended statement of claim involves abandoning the element based on the determination made in August 1977.  That is all I wish to know.

MR CLEMENS:   Well, the fact of the matter is, your Honour, I could replead – reinsert that allegation regarding the determination of liability, 1977.  Your Honour has not granted me leave as such in relation to filing the amended statement of claim, which does ‑ ‑ ‑

HER HONOUR:   That is right.  That is why I am seeking to clarify what your position is because you are appearing for yourself and I want to be sure that you understand the differences between the two statements of claim, and understand that your application to me to give you leave to amend so that you file the proposed amended statement of claim involves abandoning your claim in relation to the instrument – or the determination in August of 1977.

MR CLEMENS:   Well, basically, the reason ‑ ‑ ‑

HER HONOUR:   In other words, I do not want to find that subsequently you want to reinstitute it because you did not understand the implications of your proposal.

MR CLEMENS:   The pleading in relation to the determination of liability is to prove that (1) the claim is not fraudulent, it is not an imagination – or imagining, it is not bogus.  The injury took place on 30 March 1977.  I was investigated by the Commonwealth back then.  August 1977, they made a determination of liability, which is separate and distinct to an admission of liability.  They determined liability.  That was the end of it.

HER HONOUR:   Mr Clemens, I will just ask you one more time.

MR CLEMENS:   So the fact the ‑ ‑ ‑

HER HONOUR:   Is this application – are you making an application today to amend your statement of claim in accordance with your proposed statement of claim attached to your written submissions?

MR CLEMENS:   Yes, your Honour, but as this issue has now been raised in relation to the pleading regarding the determination of liability 1977, I will reinsert that into this proposed statement of claim.

HER HONOUR:   Yes, very well, thank you.  That is what I was seeking to establish, and Mr Knowles now understands what your proposed amendment will involve.  So you can move on now to your argument - substantive arguments.

MR CLEMENS: Firstly, your Honour, having read this defendant’s outline of submissions, I cannot pinpoint any argument being agitated in relation to section 79 of the ‑ ‑ ‑

HER HONOUR:   Judiciary Act.

MR CLEMENS:   Judiciary Act 1903.

HER HONOUR:   Now, you are now dealing with the ‑ ‑ ‑

MR CLEMENS:   This argument which was incorporated today, or being agitated today, is in reply to having now read Commonwealth v Mewett.  So I was ‑ ‑ ‑

HER HONOUR:   Just so you are clear.  That point is made in relation to the proposed defence of the Department of Defence, which will include the Department of Defence relying on the statutory limitation period, which you have had a chance to hear Mr Knowles explain, the effect of which – I just want to make sure you understand this – is that your cause of action would be extinguished.

MR CLEMENS:   Yes, your Honour.  Your Honour has read my words in my reply to the defendant’s outline of submissions.

HER HONOUR:   Yes I have, thank you.

MR CLEMENS:   I seek leave of the Court to tender this copy of the judgment, Commonwealth v Mewett, in relation to the argument which has been put forward to this jurisdictional law on a number of occasions ‑ ‑ ‑

HER HONOUR:   I have a copy of that in the folder.

MR CLEMENS:   Yes, but I do not think you have the same copy that I have.

HER HONOUR:   Very well.

MR CLEMENS:   You have a copy presented ‑ ‑ ‑

HER HONOUR:   You do not need to tender that.  I will receive that, thank you.  Do you wish to have a look at this, Mr Knowles?

MR KNOWLES:   I have not seen it, your Honour, but I assume that it is an unreported version of the decision in Mewett.  If that is the case, I have no objection to that at all, your Honour.

HER HONOUR:   Thank you.

MR CLEMENS:   This judgment is what I downloaded off the Internet through the High Court’s website, so this would be ‑ ‑ ‑

HER HONOUR:   Do you wish to make reference now to this judgment, Mr Clemens?

MR CLEMENS:   Yes, I do, your Honour.  If your Honour turns to page 37 of 53, which I have marked with the green tab ‑ ‑ ‑

HER HONOUR:   Just give me a moment, would you?

MR CLEMENS:   I have also underlined verbiage of commentary.

HER HONOUR:   Would you just give me a moment?  I am just looking at the reported version.  Yes, now what part of it do you want me to look at, and whose judgment is it in?

MR CLEMENS:   This is their Honours Justice Gummow and Justice Kirby.  It is under the heading “Commonwealth law of ‑ ‑ ‑

HER HONOUR:   “Commonwealth law of limitations”, is that the heading?

MR CLEMENS:   Yes, your Honour.

HER HONOUR:   Yes, thank you.

MR CLEMENS:   If Mr Knowles ‑ ‑ ‑

HER HONOUR:   I will let you pick the corresponding pages up, Mr Knowles.

MR KNOWLES:   Yes.

MR CLEMENS:   I am just going to say this.  Your Honour, if Mr Knowles and DLA Philips Fox challenge the Constitution of this country then they should have, in relation to the limitations statute, which has been answered numerous occasions by this jurisdictional law ‑ ‑ ‑

HER HONOUR:   But you want me to take notice of the passage that is under that heading?

MR CLEMENS:   Well, I am going to read it aloud, if I may.

HER HONOUR:   There is no need to do that ‑ ‑ ‑

MR CLEMENS:   On the record of the Court.

HER HONOUR:    ‑ ‑ ‑ I can read that for myself.  So I have read that.  Now, are there any other passages in this judgment which you would like me to read?

MR CLEMENS:   Well, meaning no disrespect to your Honour, but if this matter was to go one step further, I have a right to have on the record of the Court verbiage as precedent by Justices of this jurisdiction.  For example’s sake, I could appeal on the grounds that you erred - a question of law.

HER HONOUR:   Yes, you may do that.  But I wanted to establish whether there are other passages in this judgment which you would like me to read, which I will take the time to read now.

MR CLEMENS:   And on page 40, your Honour.

HER HONOUR:   Yes, thank you.

MR CLEMENS:   I have underlined verbiage commentary.

HER HONOUR:   Yes.

MR CLEMENS:   I am going to say this on the record of the Court:

There is no law of the Commonwealth which prescribes a limitation regime of general operation to civil actions within federal jurisdiction.

Justice Gummow and Justice Kirby then go on to say there was at that stage no applicable law of the Commonwealth in respect of the limitation of actions.  It is erroneous to assert – and this is in reference to Mr Mewett – that Mr Mewett’s action had already been barred or extinguished by State legislation:

No State law can now be identified as having barred Mr Mewett’s application in or before 1988 . . . nothing turns for the outcome . . . upon the apparent picking up of the Victorian Act . . . 

With respect to the actions by Messrs Rock and Brandon, the sequence of events is such that on no basis might it be held that before 1 December 1988 they had been barred or extinguished by statute.  On the footing that they then had the presently subsisting causes of action against the Commonwealth in contract and tort . . . Does any different conclusion follow from the circumstance that, at some time thereafter . . . their actions would have become barred or extinguished if the situation had been governed solely by a State limitation law?  It does not.

Georgiadis is authority for the proposition that, in respect of then subsisting causes of action where a suit had not been instituted . . . The result was to attract the constitutional guarantee.

HER HONOUR:   Yes, and you are relying on those passages?

MR CLEMENS:   Yes, I am, your Honour.

HER HONOUR:   Yes.

MR CLEMENS:   The fact of the matter is your Honour is well aware that I have been before this Court twice before instigating a common law action against the Department of Defence.  I have stood before Justice Hayne on both occasions.  The first instance the matter was remitted back down to the County Court by consent between parties.

HER HONOUR:   Yes.  I have that chronology by the way, which is attached to ‑ ‑ ‑

MR CLEMENS:   Yes, your Honour.  The second instance, the Commonwealth – the Australian Government lawyers who represented the Department of Defence second time around, argued this limitation as a statute.

HER HONOUR:   That was before Mr Justice Harper, is it?

MR CLEMENS:   No, that is before Justice Hayne.

HER HONOUR:   I beg your pardon.  You were talking about the remitter, and I thought it was when you had gone down to the Supreme Court.  Yes, I have read that transcript, Mr Clemens.

MR CLEMENS:   And the argument of their Honours, Justice Gummow and Justice Kirby was put before his Honour Justice Hayne, and it was held – upheld as to be true.  Now, if there is a challenge to the present law, legal principle, as handed down by this jurisdiction, if there is a challenge to the Constitution of this country, then the defendant should file a section 78B and, as Justice Hayne said back then, past tense, in relation to the issue regarding referring it to the Full Court for their answer and determination, the question of law, I am not statute barred.

There is no limitation to statute, Commonwealth within federal jurisdiction.  I am well within my constitutional rights to be before this jurisdictional law; whether it be once, twice, three times, four times, 10 times.  As Justice Kirby in Skyring has previously stated, it is the right of every person of sound mind to invoke the jurisdictions of law, words to that effect.

Now, in relation to this appeal scenario, I have never appealed a Justice of the Supreme Court when he has either dismissed my application for leave or refused my application for leave, never, because I find it – it is an ex parte application seeking leave of the court to commence.  The Supreme Court, after hearing my application, either say “Yes, we will grant you leave”, which they have done on a number of occasions, or “The application is dismissed” or “The application is refused”.  Now, this appeal judgment which was put before you of the Court of Appeal ‑ ‑ ‑

HER HONOUR:   This is Phillip Morris now?

MR CLEMENS:   Phillip Morris.

HER HONOUR:   Yes.

MR CLEMENS:   Now, I just want to explain that, your Honour, because it was an application made by Phillip Morris Limited against Justice Gillard refusing to set aside the orders granting me leave to commence an action against Phillip Morris Limited, and this application - which I defended, and I defended his Honour Mr Justice Gillard against that corporation of evil before the Court of Appeal to a successful outcome.

Now, that is what this judgment is all about.  It is an application by Phillip Morris Limited.  They did not like the outcome his Honour Justice Gillard handed down and then they sought leave to appeal an appeal.  That is what that judgment is all about.  It is totally irrelevant.  I do not know why it is being introduced.  It has passed.  It is past life by creating precedent law before the Court of Appeal, Supreme Court, State of Victoria in relation to issues such as limitations of statute, interpretation of the law, issue estoppel, res judicata, Anshun estoppel also.  That has passed.  That bears no relevance. 

This is not a claim for compensation made against the Department of Defence pursuant the provisions of the 1988 Act.  This is a claim for pain and suffering damages with respect to the injury 30 March 1977.  On past tense in relation to the pleading of statement of claims one can be confused coming into this jurisdiction.  I mean, there are barristers gotten on television saying “Upstairs, or the High Court, refer the cases pursuant to sections of the legislation whereas common law, County Court, is, you know, just straightforward”.  So I have deleted any references to Comcare so there is no confusion that this claim is a claim made pursuant the provisions of the 1988 Act.  The claim is against the Department of Defence of the Commonwealth, pain and suffering damages, independent of the 1971 Act.

Now, it is not the first time that the arguments put forward to this Court by Mr Knowles has not been put before this Court before.  Again, I know exactly what they are thinking, what they are going to say and what arguments they are going to put before this Court.  Unfortunately they did not put the same arguments before his Honour Justice Hayne.  Your Honour has not been familiar with past arguments that have been put forward. 

In relation to what transpired before the AAT, all right - and now I am going to get off track because I believe I should be saying this to this Court, that I am not into politics.  I may have once known Lindsay Tanner, federal politician who used to be the assistant secretary of the Federated Clerks Union, which I was a part of, being the shop steward, a member at Carlton and United Breweries when I worked there.  I disassociated myself from Lindsay Tanner many years ago and also the legal firm that he worked for, Holding Redlich. 

Now, the difference between the State legislation compensation scheme and the Commonwealth Act is within the Commonwealth Act there is a proviso that one can also litigate against an individual.  I will not go that road even though I think the decision Yvonne Peers has made in 1999 was wrong, even though I could sue her, litigate against her, charge her, I did not.  She was an employee of a department, Comcare, so Comcare had to accept responsibility for her decisions.

Now, as I explained previously to Justice Hayne when the matter before the Court the first time was remitted back to the County Court, I obtained legal representation and the lawyer would not proceed with it nor go before the Supreme Court asking them for leave to continue.  So do not blame me saying that I failed.  I did not fail.  I had legal representation.  You wonder why I do not have legal representation.  Well, once bitten, twice shy.  When he took the matter out of the County Court before the AAT and he was being stood over – and it was the Commonwealth Government under Liberal administration back then – and hence, standing over me to accept whatever because he feared losing his accreditation, he walked out on me as far as legal representation was concerned. 

As far as the matters before the AAT, I could not proceed with them the way they were, so it was discussed between parties and it was mutually consented that they be dismissed.  No judicial determination has been made by the AAT in relation to the issues - two matters before the High Court which were remitted.  No judicial determination has been made in relation to my common law claim for pain and suffering damages.  So where Mr Knowles was throwing up the argument regarding abuse of process, judicial determination, maybe that might be so if there had been a judicial determination made.  But I am not litigating or relitigating something anew, a case which has been judicially determined.  So that is where that argument fails.

I can understand the argument he puts forward and maybe, yes, if this common law action had been judicially determined by a competent judge of the County Court, but it has not.  So there has been no judicial determination made.  So the abuse of process argument which was argued by the Australian Government lawyers before Justice Hayne which Mr Knowles is arguing, agitating before your Honour today failed.  I do not abuse the process of the Court.  Now, with respect to the amended statement of claim that is before your Honour ‑ ‑ ‑

HER HONOUR:   What are you dealing with now, Mr Clemens, the as it stands or as you propose to amend it?

MR CLEMENS:   Well, I was going through everything last night, your Honour, preparing it and I was looking at it and I noted that on 6 May 2008 your Honour suggested about approaching PILCH, I assume more probably than not in relation to pleadings.

HER HONOUR:   I think I indicated to you then, Mr Clemens, that litigation of this kind has some complex issues and I was concerned to ensure that if you wished to get some assistance in relation to those complexities that you knew where to go. 

MR CLEMENS:   Yes.  Well, the fact of the matter, your Honour, is I did not approach PILCH.  I have approached PILCH once before, past tense, in relation to Phillip Morris Tobacco Company.  They referred me to Carlisle Ryan Thomas.  As I have explained, I will have nothing to do with union lawyers.  I cannot have anything to do with union lawyers.  If it was a matter of rectifying the defects in that original statement of claim, I have done that, but, your Honour, as I said, I was looking at it again last night ‑ ‑ ‑

HER HONOUR:   So I should look now at your proposed statement of claim, should I?

MR CLEMENS:   Yes, your Honour.  If your Honour could turn to page 13 of the plaintiff’s oral submissions, at the bottom of the page is the plaintiff’s amended statement of claim.  Fact 4, right, there is no need for me to include that in the pleadings.  So where I say, “THAT the Law of Equity and Nonfeasance, are Laws of The Commonwealth”, I could also include malfeasance.  I pronounce it malfeasance, nonfeasance, but the prothonotary of the Supreme Court pronounces it ‑ ‑ ‑

HER HONOUR:   So you are now addressing me on what you would like me to consider in terms of your application to amend your statement of claim?

MR CLEMENS:   That should be deleted.

HER HONOUR:   Should be deleted.

MR CLEMENS:   Fact 4 should be deleted, your Honour.  You can put a line through that.  I do not have to plead that.  When it comes to case law, questions of law, I can argue that before her Honour or his Honour.  So fact 4 can be deleted.

HER HONOUR:   Yes.

MR CLEMENS:   Fact 4 can be replaced by the pleading in relation to the determination of liability 1971 which was in the ‑ ‑ ‑

HER HONOUR:   You want to reinstitute that part of the pleading?

MR CLEMENS:   I reinsert it.

HER HONOUR:   I think that covers a number of paragraphs in your previous pleading.  As I recollect it, paragraphs 11 to 16 of your previous pleading deal with that aspect.  So if you have your previous pleading there, just so that we are all quite clear about the amendments you wish to make – well, there would not be an amendment.  What you are actually doing is you are changing your application to amend as it was formulated in your written submissions.  So you would be leaving those sections in your proposed pleading, as I understand what you are saying.

MR CLEMENS:   Well, fact 11 in the original statement of claim will be inserted into fact 4 of the proposed amended statement of claim.

HER HONOUR:   Yes, I see what you want to do.  Thank you.

MR CLEMENS:   So that is asserted.

HER HONOUR:   That is substituted for 4 as it presently stands?

MR CLEMENS: Yes. Also, your Honour, if your Honour turns to page 15 of the document, fact 15 where I state, “THAT in accordance with law, Section109 of ‘The Constitution of AUSTRALIA” – and I will say a few words on that in a moment – should be amended because when you do it ‑ ‑ ‑

HER HONOUR:   How would you like to amend it, Mr Clemens?

MR CLEMENS:   That in accordance with law, where it says, “Section 109 of ‘The Constitution of AUSTRALIA’”, just delete that, because I do not have to prove it in the pleading.  So it should read, “that in accordance with law, the plaintiff is not statute barred from bringing on this proceeding against the defendant”. 

HER HONOUR:   Yes.

MR CLEMENS:   Now, in relation to the little footnote at page 5 in the defendant’s submissions where it states:

Given that over 30 years have passed since the incident in which the Plaintiff sustained the injury, it would be difficult for the Plaintiff to particularise adequately the alleged “hazard” and any alleged failure by the Defendant to take reasonable care to warn the Plaintiff of the alleged “hazard”.  It would be even more difficult, bordering on impossible, for the Defendant to respond to any such allegations.

Well, if your Honour now turns to exhibit NA‑22, 30th day of May 2008, it contains ‑ ‑ ‑

HER HONOUR:   Just a moment, I have not quite turned it up.  Yes.

MR CLEMENS:   It contains a copy of the ex parte application by affidavit which I assume was before Justice Harper.  I am not quite sure.  More probable than not, I am not quite sure.  Yes, okay.  Now, if your Honour turns to page 18 of the document, what your Honour has before you is a copy of a statement made by my then supervisor back then, a copy of my statement made by me back then, various documents by the Commonwealth in relation to the claim, et cetera, et cetera, et cetera.  There are also copies of documents from Prince Henry Hospital.

HER HONOUR:   Yes, I have seen those.

MR CLEMENS:   Documents from the regional secretary in relation to the claim determining liability, et cetera, et cetera, et cetera.  Now, these documents, which were before the Supreme Court and more probably than not have been before this jurisdiction of the law, are documents which were sent to me by the Department of Defence in 1999, so they do have a well‑documented record of one, the incident 30 March 1977, the circumstances of the incident, the medical history of the incident - and Mr Knowles would have you believe that they cannot answer my pleadings in relation to the cause of action.

If your Honour also turns to page 46 of that document, this is a copy of a medical report by Dr Michael J. Shannon.  Tress Cocks & Maddox were representing Comcare back then.  If your Honour now turns to page 50 ‑ ‑ ‑

HER HONOUR:   Yes, thank you, I have that.

MR CLEMENS:   ‑ ‑ ‑ where Dr Shannon is specifically replying to questions put before him by Comcare – what date was the medical report – 2000.  Yes, Yvonne Peers has, I think, put these questions before Dr Shannon.  Dr Shannon says at fact 4:

The ankle would not be the same today if the 30 March, 1977, injury had not occurred.

So, your Honour, where Yvonne Peers said that my left ankle healed the day I ceased employment for the Department of Defence is just one of those bogus rejection allegations for the sake of rejection, because the medical evidence before her strongly suggested other.  Now, as I said, I will not take on an individual of this Commonwealth, but if you insist I could revisit and reinvestigate the whole scenario of Yvonne Peers.

HER HONOUR:   Well, it may be ‑ ‑ ‑

MR CLEMENS:   I could follow up with that, as Mr Knowles has stated to this Court, there are other avenues that I could now seek.

HER HONOUR:   If I may just complete my sentence, Mr Clemens.

MR CLEMENS:   I apologise, your Honour.

HER HONOUR:   It may be a matter for another day, a dispute about the level of particularity.

MR CLEMENS:   What I am saying is, your Honour, I have due cause to be before the courts.  I have a problem with my left ankle and, as the specialist medical evidence states, my left ankle would not be the same today if not for the injury, 30 March 1977.  They can insinuate on innuendo that I injured my left ankle working at the brewery, right.

HER HONOUR:   In 1987?

MR CLEMENS:   In 1987, 11 November 1987, right.  They can insinuate that, but they have to prove it to you beyond doubt and they cannot prove that I injured my left ankle on 11 November 1987.  The fact of the matter is what transpired only aggravated the underlying – underlying or underlining – underlying factor, the underlying original injury.  So there may have been an aggravation to the left ankle in November 1987.  If there is any contributory negligence, well, then the defendant can attach Foster’s Australia Limited as defendant and seek contributory recompense from them.

Now, by the precedent judgment of this jurisdiction, Commonwealth v Mewett, and their Honours Justice Gummow and Justice Kirby, and everyone knows that I respect Justice Kirby and I read and believe his words in his judgment, there is no Commonwealth legislation. I am not statute barred and even though what is being argued today has only been argued because I invoked the jurisdiction of law, okay. This argument regarding State legislation outranking – and I am going on to section 109 of the Constitution – State legislation outranking Commonwealth legislation, is wrong. Now, where did I make reference to section 109 of the Constitution?

HER HONOUR:   Well, you had it in your proposed amended statement of claim but you want to delete that on the basis that you want to make some ‑ ‑ ‑

MR CLEMENS:   Yes, but I have also made reference to it in my document ‑ ‑ ‑

HER HONOUR:   Submissions, yes, I have read that.

MR CLEMENS:   I was looking at it last night.  Mr Knowles just sort of caught me off guard this morning.  I was not expecting ‑ ‑ ‑

HER HONOUR:   Take your time, Mr Clemens.

MR CLEMENS:   Yes.  If your Honour turns to page 18.

HER HONOUR:   I was going to say 17 onwards.  That is really where you have raised these issues.

MR CLEMENS:   Okay, at the bottom of page 17:

‘SECTION 109 of The Constitution of AUSTRALIA’, states the following verbiage:-

“109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.

SIMPLY put, that when it comes to claims for compensation against the Commonwealth within Federal Jurisdiction, the Limitations of Statute Act, (VICTORIA) 1958, is NUGATORY, without Legal force or effect!.

IN layman terms for the Defendant under the Labor Administration to understand, at State Level pertaining to claims for compensation, there are time restraints in making such Claims, AT COMMONWEALTH LEVEL THERE ARE NOT TIME RESTRAINTS, THE LAW OF THE STATE OF VICTORIA IS NOT IN ADHERENCE TO THE SAME PRINCIPLES OF THE COMMONWEALTH, THE LAW OF THE STATE OF VICTORIA BECOMES INVALID BECAUSE OF THE INCONSISTENCY WITH THE COMMONWEALTH, AND ALTERNATIVELY THE LAW OF THE COMMONWEALTH WITHIN FEDERAL JURISDICTION, ‘NO TIME RESTRAINTS’, BECOMES THE MORE COMMONLY ACCEPTED RULE OF LAW!.

Or the rule of thumb.

HER HONOUR:   Yes, I understand the point you are making.

MR CLEMENS: But what I am saying to your Honour is the Constitution of this country has been challenged by the defendant. Justice Kirby, Justice Gummow and other Justices within this jurisdictional law have been challenged by the defendant under the Labor administration and as such this question, before your Honour deals with anything else, your Honour should put this question before the Full Court and have them determined. They have challenged the Constitution. They should file a section 78B.

HER HONOUR:   Yes.  Well, I have heard you say that a few times now.  I do understand what you are saying about that.

MR CLEMENS:   So basically what I am also saying is this, your Honour.  If you side with the Department of Defence regarding the statute of limitations, State outranking the Commonwealth against me, then you will be allowing the undermining of judicial legal principle which has been handed down in relation to that issue and you will be condemning – I think there is about 48 survivors of the Melbourne Voyager disaster still to come – you will be allowing them to have open slather on those poor misfortunate souls, because you agree with them, you are going against Justice Kirby, Justice Gummow, your seniors.  Every time there is a Voyager disaster person invoking the jurisdictions of law, you will be allowing them to run rings around them.  This is what this is all about.  They know that there is 48 survivors still to come of the Voyager disaster.  They even mentioned that to Justice Harper.

This is what this is all about.  This is political now, and I did not want to get involved in politics, but what they are doing is using this case to undermine the legal precedent principle which has been handed down by Justice Gummow and Justice Kirby in relation to there is no limitation to statute Commonwealth.  State limitation, whether it be New South Wales, Victoria or wherever, does not apply.

HER HONOUR:   I understand your argument.

MR CLEMENS:   So with regards to the proposed statement of claim, does that – usually, your Honour, if I may be permitted, and I know it is getting late in the day, and my throat is starting to hurt – when I stand before the Supreme Court I argued Justice Kirby’s words in Skyring, right?  The Supreme Court now have taken the attitude of patience and diligence when a non‑represented person stands before them.  The Supreme Court since 1998 do not know me personally but have come to know that when I stand before them I speak metaphorically and when I do plead a proposed case, or statement of claim, their Honours fine tune it and if there are any pleadings that do not meet with their standards, they will, when they hand down their order, direct me or instruct me to delete this pleading, that pleading and leave the statement of claim as such.

So in relation to this proposed statement of claim, it is a statement of claim that does show merit, that does have substance, is not an abuse of the process of the Court.  It is simple, straightforward, it may be not what Mr Knowles is used to being from this jurisdiction or the federal jurisdiction or DLA Philips Fox, but it certainly meets the standards pursuant Rules of the Court, of the Supreme Court, County Court.  I have never run a civil case matter before this jurisdiction of law, so I do not know what the requirements as far as pleadings are concerned, but any man, woman or dog can understand what I am saying.

The crux of the matter is this.  I was injured doing my job, right.  The defendant did not warn me about – and unlike today, back then 70 Albert Road had carpet, carpeted stairwell, right.  The defendant did not warn me about the worn carpet, which caused the injury.  I slipped and fell.  Now, what Mr Knowles is asking you to believe, that it would be impossible for the defendant to answer that reply is absurdity because the defendant more probable than not has already admitted that circumstance in defences which it has filed before the courts.  Now, does your Honour feel that the proposed statement of claim is not pleaded correctly or is it ‑ ‑ ‑

HER HONOUR:   I can see from the proposed statement of claim that it contains a greater level of particularity than the previous statement of claim in relation to your common law action.  It seems to me that to complain about defects in particularity in your proposed statement of claim would not be sufficient without something more to succeed on the summons, which is to strike your proceeding out, because it would be open to me to give you another opportunity to further replead your statement of claim.

MR CLEMENS:   Yes, your Honour.  In furtherance to the statement that Mr Knowles has made, my understanding is with the amendments to the Rules of Court 2004?

HER HONOUR:   Yes, that is right.

MR CLEMENS:   There is no need for the defendant to file a defence?

HER HONOUR:   Well, the defendant has foreshadowed the defendant will be filing a defence.

MR CLEMENS:   Will be filing a defence?

HER HONOUR:   And has indicated that the defendant will be relying on the statute of limitations point, but that is something for the future.  The statute of limitations point has been raised now in the context of the application made by the defendant to effectively bring your proceedings to an end and you have addressed me on that and I understand the point you are making in relation to the Commonwealth and the fact that there is no Commonwealth statute of limitations.  I have read your submissions and I have heard you articulate them this morning.  I understand that point.  I accept that you are willing to make further amendments to your proposed statement of claim if ordered to do so.

MR CLEMENS:   Yes, your Honour.

HER HONOUR:   Yes, thank you.

MR CLEMENS:   If I may, in relation to the summons application, if I was not prepared or did not present myself – and one thing I have learnt throughout the years is to listen and watch and pick up on things and learn by it.  Now, if I did not stand here today before your Honour with not a proposed statement of claim, then your Honour would be justified in saying well, based on the original statement of claim, there a bit, touch wood, but ‑ ‑ ‑

HER HONOUR:   I understand your position.  I will just summarise it for you to make sure I do understand it properly.  You are assuring me that if your statement of claim requires to be improved by a further level of particularity or whatever, that you would welcome an opportunity to have another chance at repleading it.

MR CLEMENS:   Yes, your Honour.  That is exactly right.

HER HONOUR:   I understand that, and I understand that you tried today to give some indication about the ways in which you would want to change it.

MR CLEMENS:   Yes, your Honour, and also in conclusion, for completeness, I would say that not being able to do so would be an injustice.  I should be allowed.

HER HONOUR:   Yes, I understand that submission, and I will deal with the summons to strike your proceeding out on the basis that you would be willing to further amend your statement of claim.

MR CLEMENS:   Yes, your Honour.

HER HONOUR:   And I also will be dealing with it on the basis that if you were granted leave to further amend, you wish to maintain that aspect of the statement of claim based on the determination made on 23 August 1977. 

MR CLEMENS:   Yes.

HER HONOUR:   I understand that.  Thank you.  Anything further, Mr Clemens?

MR CLEMENS:   Are there any points that your Honour needs me to clarify that may have been raised by Mr Knowles and I have not covered?

HER HONOUR:   It seems to me you have given me the assistance you can in relation to everything that has been raised by Mr Knowles, and I thank you for that.

MR CLEMENS:   Yes, your Honour.

HER HONOUR:   Mr Knowles, do you have anything in reply?  I might be assisted most by addressing Mr Clemens’ submissions in relation to the limitations point.

MR KNOWLES:   Yes, your Honour.  One point perhaps, just before I turn to that, was the issue of the determination.

HER HONOUR:   Yes.

MR KNOWLES:   If that were to be included ‑ ‑ ‑

HER HONOUR:   Well, at the moment it is part of the pleading because there has been ‑ ‑ ‑

MR KNOWLES:   That is so, yes.

HER HONOUR:    ‑ ‑ ‑ the proposed amended pleading, Mr Clemens has indicated today, is – he has done the best he can but he would want to think about it further and so on.  I think we have to deal with the summons on the basis that the present pleading has that claim in it and I think it would be unfair not to deal with this summons on the basis that Mr Clemens has indicated he would want to maintain that claim if given a right to replead.

MR KNOWLES:   Yes, certainly, your Honour. 

HER HONOUR:   Now, you did reserve your position in relation to that aspect of the current statement of claim, I think it is paragraphs 11 to 16, and you would have heard Mr Clemens say he certainly wants to maintain paragraph 11.

MR KNOWLES:   Yes, your Honour.  In relation to the determination made in August 1977 there are two ways that it might be looked at.  One is whether or not it has any bearing on the common law negligence claim and, in my submission, it does not.  What it demonstrates is that there was an acceptance that there was an injury which occurred at the workplace at that time.  That does not mean that there is negligence on the part of the employer at that time.  The second issue is whether or not somehow there is liability elsewhere by virtue of the determination made in August 1977 and, specifically, pursuant to the statutory scheme. 

In that regard, I would refer your Honour to some of the exhibits to the affidavit of Mr Abrams and, in particular, starting at Exhibit NA‑4.  There your Honour will see on 25 May 1999 the delegate of Comcare acknowledged, at the first page, that liability had been accepted for a left ankle injury in a determination dated 23 August 1977, but then went on to make a determination that there was no relationship between that injury ‑ ‑ ‑

HER HONOUR:   Where are you reading now, may I ask?

MR KNOWLES:   I am sorry, your Honour.  The second page.  There is a paragraph beginning, “There has been a new, fresh, injury to your left ankle in November 1987” and then the next paragraph:

Despite your claim to the contrary, I am satisfied there is no evidence, my emphasis, of any relationship between the incident of 30 March 1977 whilst employed with the Department of Defence and your current left ankle impairment.

Then the conclusion on the final page in the paragraph involved is that there is no liability to pay compensation to Mr Clemens and that any condition suffered by Mr Clemens in respect of his left ankle as a result of an injury in March 1977 would certainly have ceased by 24 March 1978.  Then if your Honour goes to Exhibit NA‑7, this decision was internally reviewed and affirmed.  Then another decision was made by Comcare at NA‑8 in respect of whether or not there was any permanent impairment and that second decision was reviewed and your Honour will see at NA‑9 the decision on the internal review was to affirm the decision that had been made that there was no permanent impairment.  Then both of those decisions were the subject of proceedings before the Administrative Appeals Tribunal, which dismissed the applications by consent in February 2002. 

That is the course that the statutory scheme takes and the options that are available to Mr Clemens pursuant to the statutory scheme do not include initiating proceedings in this Court.  Rather, it would be open to Mr Clemens, subject to any limitations periods, to, for instance, either make another claim or seek to appeal the decision of the Administrative Appeals Tribunal.  I note that there was previously an application by Mr Clemens to this Court in which this particular type of claim was put and that was the third application which came before Justice Hayne in 2004.  That case had previously been ‑ ‑ ‑

HER HONOUR:   That was a case in which Comcare was the defendant, is that the one ‑ ‑ ‑

MR KNOWLES:   That is correct, yes, your Honour.  And that was the case in which previously it had been addressed by Federal Magistrate Phipps.  In both instances before Federal Magistrate Phipps and before Justice Hayne, the proceedings were dismissed.  In my submission, that would have some bearing on how the matter would be addressed in any proceedings going forward.  As I say, your Honour, the fundamental point is as set out in the written outline of submissions and that is that there is no relationship, strictly speaking, between the determination in 1977 and the common law negligence claim and otherwise there is no other cause of action that might arise in this Court simply by virtue of the determination having been made in 1977.

My learned friend, just on the point of proceedings before Justice Hayne, referred to previous proceedings in which the matter was remitted to the County Court by Justice Hayne.  I note that in those previous proceedings, as they related to the personal injuries claim, there was not actually, as far as I am instructed, an application for summary judgment in this jurisdiction.  So this is a new situation that arises before your Honour and it is was not something that Justice Hayne had to deal with, except in the last case which I have just referred to in which Comcare was the defendant and not the Department of Defence.

In relation to the issues about remittal, in my submission, it is not necessary to consider those unless the matter continues because the application in the summons is unsuccessful and at this point, unless your Honour considers it necessary for me to do so, I do not seek to make submissions about that issue.

HER HONOUR:   Yes, thank you.

MR KNOWLES:   Mr Clemens also referred to the decision in Phillip Morris and how the matter got to the Court of Appeal.  I should just say, your Honour, I stand corrected about how it got to the Court of Appeal.  Mr Clemens is absolutely right about that, that ultimately Mr Clemens had been successful before Justice Gillard and then it was actually an application brought by Phillip Morris and not by Mr Clemens to overturn the decision of Justice Gillard, and that that ‑ ‑ ‑

HER HONOUR:   Granting leave.

MR KNOWLES:   That is right, yes, your Honour, and that that application was unsuccessful.  The point that should be made is that the decision only relates to the issue of granting leave to proceed.  It does not relate to anything further and it is not relied upon by the defendant in the present proceeding.  It is arguable that there is a different test involved in some ways.  It really rested with Mr Clemens to show that the proceeding was not an abuse of process, whereas in this case it is incumbent upon the defendant to demonstrate to your Honour’s satisfaction that the proceeding is an abuse of process.  It is also merely a coincidence that Mr Clemens was involved in that case.  It is not cited before your Honour because of Mr Clemens’ involvement.  It is cited because it is a case that is relevant to the issue ‑ ‑ ‑

HER HONOUR:   Of whether there could have been an application by way of appeal from the decision of his Honour Justice Harper.

MR KNOWLES:   That is right, yes, your Honour.  Mr Clemens also said in relation – and I am certainly going to come to the point that your Honour has asked me about at the outset – but also Mr Clemens put submissions in relation to the abuse of process point.  He submitted that this was not a case in which there was re‑litigation of something which had been judicially determined in the past.  Well, that might be so, but there are reasons for that in terms of the orders made by the Supreme Court pursuant to section 21 of the Supreme Court Act 1996 and also because of limitation periods perhaps.  This is not a case where before your Honour I am putting arguments about estoppel or res judicata.  In fact, what is said by the High Court in Walton v Gardiner is the abuse of process point need not rely upon the existence of issue estoppel or res judicata or similar circumstances.

In terms of what is proposed by way of amendments, while the defendant says that the proposed amendments would not remedy all of the defects in the pleading, at the end of the day the defendant accepts the position that it would be open if the matter were to proceed for Mr Clemens to further refine his statement of claim.

HER HONOUR:   So you are accepting an indication I gave earlier, that standing alone the defects in particularity would not warrant striking out Mr Clemens’ proceedings.

MR KNOWLES:   In and of itself, that is accepted, yes, your Honour.

HER HONOUR:   Yes, thank you.

MR KNOWLES:   The problem is that it is submitted that there is no way of surmounting the hurdle presented by the statute of limitations.

HER HONOUR:   Now, Mr Clemens, you have heard him say, and he spent a good deal of time making sure both you and I understood what he wanted to say about this point, that the Commonwealth has no statute of limitations.

MR KNOWLES:   Yes.

HER HONOUR:   And he is also relying, as I understand it, on passages in the decision which he pointed out in Mewett’s Case.

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   And I know you had a different copy of that, but Mr Clemens went fairly slowly, so I am assuming that you thoroughly appreciate what he is saying.

MR KNOWLES:   Yes, I did see those. 

HER HONOUR:   What do you say about that?

MR KNOWLES:   As I understood what Mr Clemens had to say, it concerned ultimately the proposition that it could not be that State legislation would, and I think the word used was “outrank” Commonwealth legislation, and in that ‑ ‑ ‑

HER HONOUR:  Yes, section 109 was referred to in that context.

MR KNOWLES:   Yes, that was what Mr Clemens placed some reliance on, as I understand.

HER HONOUR:   Yes.

MR KNOWLES:   The point that is made in reply to that by the defendant is that there is no inconsistency because there is no statute of limitations under Commonwealth law which relates to this proceeding.  In those

circumstances, what one has is section 79 of the Judiciary Act.  That is the Commonwealth law.  That picks up, as part of the Commonwealth law in this proceeding, the relevant State law which is the Limitation of Actions Act (Vic). So as Justice Dawson said Mewett – in my copy this is at page 506, and I think I may have taken your Honour to the passage.

HER HONOUR:   Yes, I did.

MR KNOWLES:   His Honour observed:

There is no inconsistency in these cases, there being no Commonwealth statute of limitations.

That is still the position, in my respectful submission. There is no inconsistency. In fact, what the Commonwealth legislation does by way of section 79 of the Judiciary Act is to pick up that State legislation and make it applicable in the Commonwealth proceedings.  So that is really all I have to say in response to the submission put by Mr Clemens concerning the issue of State legislation and how it might operate in proceedings brought in the federal jurisdiction before this Court.  Unless there is anything I can assist your Honour with further, I did not have any further submissions in reply.

HER HONOUR:   No.  I thank both parties for their submissions.  I will reserve my decision in this matter and deliver judgment at 9.30 next Thursday, which will be in Canberra, but no party will be required to attend and the Registry will ensure that a copy of the reasons for judgment are provided promptly.

MR KNOWLES:   If your Honour pleases.

AT 11.56 AM THE MATTER WAS CONCLUDED