Commonwealth of Australia v Smith

[2006] HCATrans 242

[2006] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S44 of 2006

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Applicant

and

NEIL PATRICK SMITH

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 10.11 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR D.J. BROGAN, for the applicant.  (instructed by Australian Government Solicitor)

MR G.F. LITTLE, SC:   May it please your Honours, I appear with my learned friend, MR J.L. SHARPE, for the respondent.  (instructed by Hollows Lawyers)

CALLINAN J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the application relates to two issues under the provisions of section 60I of the Limitation Act 1969 (NSW) and one arising under section 60G, and there is also, if I could put it towards the end, an issue of costs.

Could I go for just a moment to the legislation which your Honours will see in the book which your Honours should have, and can I go to section 60G(1).  It is at page 6 at the bottom of the page.  It refers relevantly in section 60G(1) to a cause of action founded on negligence for damages for personal injury.  “Personal injury” is defined by section 11(1), which is on an earlier page, two pages earlier, to include “any impairment of the physical or mental condition of a person”.

Your Honours will see that by section 60G(2) the Court is given the power to extend the limitation period for a cause of action “if it decides that it is just and reasonable to do so”, but because of the terms of section 60I, which is on page 7, it may not do so unless it is satisfied of the matters referred to in section 60I(1)(a) and (b). Your Honours, the first issue arises under section 60I(1)(b), and that is a question on which there was a difference of views in the Court of Appeal and it concerns the test to be satisfied in determining whether an applicant has satisfied the requirement of “ought to have become aware” in section 60I(1)(b).

Now, your Honours, in this regard the majority addressed the issue by looking at the personal characteristics of the respondent.  Could I go first to their conclusion and then to the matters leading to it.  That appears at page 68, paragraph 113, and your Honours will see under the heading “Conclusion”:

the evidence . . . strongly support the primary judge’s finding that it was reasonable for Mr Smith not to have sought counselling or other psychiatric help earlier than he did in those circumstances.

The relevance of seeking that help being that that would have identified the fact that the condition of which he complained was one in which it was psychiatric in nature.

Your Honours, the matters which led to the adoption of that view can be seen in the preceding paragraphs commencing at paragraph 109 at page 67.  I will not read it out, but your Honours will see the matters that are set out there.  Your Honours, the minority view was that expressed by Justice Basten at page 97.  It is a passage which commences at the top of the page and goes through to the end of paragraph 187 on that page.  The particular part of the quotation from the speech of Baroness Hale in Adams Case is about the last half of that part extracted.

Your Honours, may I go on to say that the difference in approach and in result can be seen in the passage in Justice Basten’s reasons which commences at page 101, paragraph 195 and goes through to paragraph 200.  Your Honours, could I pause to say that it is an important question to determine what is the appropriate approach.  Is it entirely one of looking at the person and saying a person with those characteristics ought to do this or that, or is one entitled to look at the position not just of that person but of a reasonable person in the same situation.  The “ought” does involve, in our submission, to use the words of Justice Basten, some “normative element”, and this, in our submission, is an important question.

Your Honours, the second issue concerns section 60G, and if I can go back to that at page 6, and that is the question whether it was “just and reasonable” to extend the limitation period.  Your Honours, 37 years had elapsed since the collision of the Melbourne and the Voyager.

CALLINAN J:   When was Groves Case decided?

MR JACKSON:   1980, I think, your Honour, but that was the decision in which it was held that service people could sue the Commonwealth.

CALLINAN J:   Well, you had Justice Windeyer in Parker, was it not ‑ ‑ ‑

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

CALLINAN J:   ‑ ‑ ‑ who had cast grave doubts on it.  It used to be the practice of the Commonwealth generally not to take the point before Groves.

MR JACKSON:   Yes.  Your Honour, of course, there had been cases – Verwayen, I think is one of them – in which sailors who had been or the families of sailors who had been injured in the Voyager ‑ I do not want to distinguish between the two vessels necessarily – were persons who had tried to sue before then, but it was not until – I think the material discloses in 1995 that there were the first proceedings instituted by persons who had been sailors on the Melbourne.  So that is germane to the question, of course, of the relevance of maintaining materials.

CALLINAN J:   Well, Groves was an unusual case on the facts because I think the plaintiff was on a civilian flight or the flight was being used entirely for civilian purposes.  I think it was a government jet, was it not, staffed by airmen?

MR JACKSON:   Yes.

CALLINAN J:   And he fell off a ladder.  It did not have much to do with warfare or training for warfare.

MR JACKSON:   No.  Your Honour, perhaps I could just say this, that it was 37 years relevantly since the collision.  The approach which the majority per Justice Santow took appears at page 72 at paragraphs 122 through to 129.  Now, your Honours, in essence, what that is is where that judge proceeded to deal in detail with questions of prejudice in relation to there being witnesses and so on.

Justice Handley, the other member of the majority, appears to have adopted a somewhat different approach, at least in emphasis.  That is at page 39, paragraphs 12 through to 21, but what neither refers to in any detail at all is the rather larger picture which, in our submission, was correctly perceived by Justice Basten at page 106 in the paragraphs which are 208 to 212 where he referred to the central problem, being the passage of time, and that taken in conjunction with the fact of the nature of the claim that was being made.

Your Honours, this is a very significant issue, in our submission, and likely to be so in the large number of cases to which reference is made in the submissions.  One has to take into account that the events in support of a claim of this kind happened over a span commencing decades ago.  Your Honours, that is the second issue.

The third issue is one which arises in relation to section 60I(1)(b), if I could go back to that, and that is a question whether the respondent had been aware in fact of the matters referred to in section 60I(1)(a) before 12 September 1998. Your Honours will see that issue referred to by Justice Basten at page 87, paragraphs 166 to 167.

Now, your Honours, this is an issue on which there was not a dissenting view, and if I could summarise what was said – and I will take your Honours to a paragraph in Justice Handley’s reasons which does do so – the Court of Appeal held that because a cause of action in the case of mental impairment can only arise if the negligence gives rise to a recognisable psychiatric injury the respondent could not be aware of the personal injury or perhaps the nature and extent of the injury, using the words from subsection (1)(a), until aware of its diagnosis as such.  Knowing all the circumstances was insufficient.  Your Honours will see that summarised by Justice Handley at page 38, paragraph 7.

Your Honours, I have to say immediately that in its reasoning in Harris v Commercial Minerals Ltd (1996) 135 ALR 353 – and I see that in the volume of materials that your Honours have been given the Commonwealth Law Reports version is not given – when dealing with a different question the Court appeared to adopt a view different from that for which we contend. Could I go, your Honours, in that regard to tab 4. The relevant page is at page 360, and the issue with which the Court was dealing is what appears in the last paragraph on that page, “The better view of s 60I(1)(a)(ii)”, et cetera. That is looking as at what date one determined those matters, but in the preceding paragraph there is a reference to Commonwealth v Dinnison in which it was held that:

although the applicant was aware during the limitation period that he had an anxiety state, it was only after the expiration of that period that he became aware that he had a psychiatric illness.

And your Honours will see the remainder of that paragraph.  So, your Honours, I have to say that that issue is one which tends against the contention for which we would advance, but that issue was not being dealt with specifically in that case. 

Your Honours, the fourth question is that of costs.  The approach taken by the majority was to say that the Commonwealth had acted unreasonably in defending the case, as it were, because it had failed in other cases.  You will see that at page 85, paragraph 160.  The reference in that paragraph, on the fifth line, to paragraph 133 I think should be a reference to paragraph 153, but paragraph 153 picks up what is said in paragraphs 148 to 152. 

If I could just go back for one moment, your Honours, to paragraph 160, it is clear that the majority regarded as a relevant matter the actions of the Commonwealth in other litigation with other potential plaintiffs.  In our submission, the better view was that adopted by Justice Basten at page 111, paragraphs 221 to 222, and at the top of page 112 he said that he, in any event:

would not be inclined to take account of speculation as to the merit of arguments run by the Commonwealth in other cases.

And, your Honours, the very nature of these cases is such that they are, of their nature, different.  Your Honours, in our submission, surely at best, the respondent’s costs in a case of this kind should be plaintiff’s costs in the cause.  Your Honours, I am sorry I have taken a moment to deal with four separate issues but in our submission the case is one of some importance and we would submit there should be a grant of special leave.

CALLINAN J:   We need not hear you, Mr Little.

On the substantial issues raised by the applicant, we are of the view that any appeal would enjoy insufficient prospects of success to warrant a grant of special leave.  In refusing the application we would wish to make it clear, however, that we doubt very much whether we would have exercised our discretion in the way in which the intermediate Court of Appeal did in relation to costs.  Our provisional view at least is that each case depends upon its own facts and that a party, if it has an arguable basis for defending an application or a claim, is entitled to do so without the penalty of costs. 

Accordingly, the application for special leave is refused with costs.

We will adjourn to reconstitute.

AT 10.28 AM THE MATTER WAS CONCLUDED