Commonwealth of Australia v Wright

[2006] HCATrans 62

[2006] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2006

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

CARL HENNING WRIGHT (AS EXECUTOR OF THE WILL OF LINDSAY JOHN STAFFORD DECEASED)

Respondent

Summons for expedition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 FEBRUARY 2006, AT 9.32 AM

Copyright in the High Court of Australia

MR T.J. CASEY, QC:   If the Court pleases, I appear with MR A.J.M. MOULDS for the applicant.  (instructed by Australian Government Solicitor)

MR J.H. KENNAN, SC:   If your Honour pleases, I appear with MR K.D. MUELLER for the respondent.  (instructed by Hollows Lawyers)

HIS HONOUR: Mr Casey, I have looked at the papers. Can I just understand one aspect of the application for special leave just a little better than I do? I understand that the Commonwealth wants to agitate questions about the construction of section 5(1A), but do I read the application for special leave correctly as also seeking to agitate some factual questions?

MR CASEY:   No, your Honour.

HIS HONOUR:   I thought in your summary of argument – what is bound up in questions 3 and 4?

MR CASEY:   Your Honour, questions 3 and 4 are related to the issue of the Court of Appeal in Wright misinterpreting the ratio in Stingel.  The findings of fact of his Honour Justice Ashley are not in dispute and, essentially, those findings of fact are that symptoms of the post traumatic stress disorder were apparent at or about the time of the collision, but that they went unrecognised by the late Mr Stafford.

HIS HONOUR:   Then do I properly understand questions 3 and 4 as being concerned, perhaps concerned only, with the application of what you would say to be the proper construction of 5(1A) to the particular facts?

MR CASEY:   Yes, to the known facts which are not in dispute.

HIS HONOUR:   Yes, I understand that.  Now, I must say to you I am not at the moment minded to simply put the application for leave in to be heard either at the same time as or immediately after Stingel v Clark.  At the moment, subject to what either of you may say, what I am rather minded to do is to give both of you an opportunity to put in written submissions as on an appeal and then, subject to one question about costs which I want to come back to, if the parties wanted to be heard by intervening in Stingel v Clark to make oral submissions in aid of their written submissions, that would be a matter for the Full Court hearing Stingel v Clark about whether there is any advantage to be had. 

But at the moment, as I say, step one would be to give both sides the opportunity to put on the written submissions they would put on if leave had been granted limited to the question of construction.  So that you can put up whatever you want to say about the questions of construction and the Full Court would have that available to them when Stingel v Clark is heard.

MR CASEY:   Yes.  Your Honour, we would submit that that is not quite appropriate for this reason.  There is a very real difference between the Stingel v Clark disease and the Wright disease.  The disease identified and acted upon in Stingel v Clark was, of course, post traumatic stress disorder of delayed onset, and that is most important to the principle that was set in Stingel v Clark on the interpretation of the section because part of the definition of “insidious disease” was that there has to be a close temporal connection between the tortious conduct and the contraction of the disease.

HIS HONOUR:   I understand that difference and the more you emphasise it the less appropriate it is to put this on at the same time as Stingel v Clark.  The cases are radically different you say?

MR CASEY:   Well, the disease is radically different.

HIS HONOUR:   I understand that.

MR CASEY: But from our point of view, we submit to your Honour that it would be appropriate to have them both heard at the same time because this Court may feel inhibited in fully expressing the interpretation of section 5(1A) by the peculiar facts of Stingel and that having the cases heard together provides the opportunity to the Court to give an interpretation to the section of universal application.

HIS HONOUR:   Yes.

MR CASEY:   It is somewhat akin to what happened in Tame and Annetts and in that case, the way the Court dealt with it there was that Tame had got leave in the normal way, the leave application in Annetts came on and Justice Gaudron at that stage transferred the leave application over to the Full Bench.

HIS HONOUR:   But there was not, I think, that separate question which you would seek to agitate about the application of proper principle to the particular facts of the case.  I think Tame and Annetts were really quite confined in their factual subject matters, though radically different.

MR CASEY:   Yes.  Well, as we say, your Honour, the only radical difference – there are many common features about these two cases, but there is this radical difference and the two cases ‑ ‑ ‑

HIS HONOUR:   There has been a trial here and there has been some findings of fact.

MR CASEY:   Yes, exactly.  Indeed, may I say this, that Wright’s Case probably is a more suitable vehicle for the interpretation of the section than was Stingel’s Case which was an appeal from an interlocutory finding.

HIS HONOUR:   To agitate the questions that arise in this case, what would you need more than the reasons in the courts below?  The facts are not in dispute, are they?

MR CASEY:   No.

HIS HONOUR:   They are found at trial?

MR CASEY:   Yes.

HIS HONOUR:   Would you need anything other than the reasons of the court below?

MR CASEY:   No.  Indeed, I have discussed this with my learned friend.  We really do wonder whether, indeed, we need the transcript from the court below as part of the appeal material, because we have the findings of fact, we have the reasons, we have Justice Ashley’s reasons which we support, we have the reasons of the Court of Appeal and then it really comes down to a question of the statutory interpretation.

HIS HONOUR:   As to costs, I see that the Commonwealth is indicating that it will pay them.

MR CASEY:   Yes.

HIS HONOUR:   If I take any course to join any part of this with Stingel v Clark, I take it that offer persists?

MR CASEY:   Of course, yes.

HIS HONOUR:   Yes.  Is there anything you want to add?

MR CASEY:   No, your Honour.

HIS HONOUR:   Now, Mr Kennan, what do you say I should do?

MR KENNAN:   Your Honour, we are really in agreement with what Mr Casey has said.  I should indicate, your Honour, that ‑ ‑ ‑

HIS HONOUR:   You want it all on, do you?

MR KENNAN:   Well, we think that would probably be the best way to resolve it.  We do agree, your Honour, that the issues in Wright are, to a significant extent, different to the issues in Clark v Stingel, and that a decision in Clark v Stingel may or may not therefore affect the outcome of this case and the interpretation of section 5(1A) may not be resolved comprehensively in the way that Mr Casey was indicating by Clark v Stingel alone.  The other thing that we would indicate, your Honour, is that we would want to put in a notice of contention that Clark v Stingel was wrongly decided. 

Our position at the appeal, your Honour, is that because the notice of appeal in this case from the decision of Justice Ashley was lodged two months after the five Bench decision in Clark v Stingel and because Clark v Stingel dealt with issues relating to the meaning of the word “contract” and “late onset PTSD”, we did not think it was forensically feasible or necessary in our case to take on Clark v Stingel head on.  But we did submit in our argument to the Court of Appeal that if the interpretation of Clark v Stingel was that sought by the Commonwealth, effectively that section 5(1A) could not apply to psychiatric injuries, then we said that, in our view, Clark v Stingel was wrongly decided.  We do not need to go beyond that, but we ‑ ‑ ‑

HIS HONOUR:   No, but the point was preserved in the Court of Appeal?

MR KENNAN:   Yes, but we certainly would want to make it clear to this Court, your Honour, that if Clark v Stingel means what the Commonwealth are urging, then we say Clark v Stingel was wrongly decided.  We do not want that to be ‑ ‑ ‑

HIS HONOUR:   Other than that question about notice of contention, do I understand there to be no challenge to the findings of fact made at first instance and that the debate between the two sides in this litigation is a debate, first, about the construction of the section and, second, the application of that construction to facts as found by Justice Ashley?

MR KENNAN:   That is so, your Honour.  The only caveat that I would put on that is that in the hearing before the Court of Appeal the court was interested in some further elucidation of the facts – exhibits, for instance, relating to medical checks on the plaintiff that had been carried out by naval doctors, for instance, in the years immediately after the accident and other matters like that – but insofar as they are relevant, they were not matters of dispute between the parties, I think, and if they were to be at all relevant in the hearing of this appeal, I do not think they would be matters of dispute between Mr Casey and myself.

HIS HONOUR:   What disadvantage, if any, would your side suffer if I directed the filing of submissions on the issue of construction, leaving the application for special leave undetermined and unreferred?

MR KENNAN:   I am not sure that we would really suffer any disadvantage, your Honour.  I suppose on one view we might lose the opportunity of succeeding at the special leave stage, but we do not suffer anything on costs.

HIS HONOUR:   No.  My concern should be put on the table.  I am concerned that leave having gone in Stingel v Clark, Stingel v Clark having got to the point where it is, there is, I think, a real difficulty in derailing that litigation by the injection of this.

MR KENNAN:   Yes, your Honour.

HIS HONOUR:   Now, there is evident advantage, it seems to me, in having before the Court the arguments that the parties in this case want to put about construction, not least is that so because the factual base for this case is said to differ from the factual base for Stingel v Clark, and the Court should be aware of the way in which 5(1A) may be said to engage with a case having the differences to which at least the Commonwealth seeks to point in this case.  But also given that we are dealing with Stingel v Clark on circuit in Hobart, there are some practical reasons which intrude also to ensure that we keep the hearing within confines and let the parties in Stingel v Clark have the principal management of it.

MR KENNAN:   Yes, your Honour.

HIS HONOUR:   So, as I say, it is important to me to know from both sides what, if any, disadvantage you say you suffer if I go down this path of directing submissions, leaving you to, if you wish, come to the hearing of Stingel v Clark and say, “Well, not only do we want to put on written submissions, but we want to be heard in support of them to agitate the question of construction in a way slightly differently from the way in which the parties in Stingel v Clark have done.”

MR KENNAN:   Yes.

HIS HONOUR:   That is where I am at and, as I say, I want both sides to have the chance to point out to me what the problem is if I do that.  Can I just finish by saying, yes, I understand that so far as this litigation is concerned, your immediate response would be, bring it all on, let us get rid of it, hear it as a whole, do not split it up.  I understand that.  But the picture

is a little more complex than just this litigation.  Now, I have spoken too much.

MR KENNAN:   Not at all, your Honour.  It is usually something said about the Bar table, your Honour.

HIS HONOUR:   No, not in this Court, Mr Kennan.

MR KENNAN:   No, I suppose that is so.  Your Honour, in terms of disadvantage, the only disadvantage that we would point to would be if the course that your Honour has suggested, the written submissions focusing on construction of 5(1A), leaves my client, and it may be mirrored by Mr Casey’s client, in the position where we do not have the same chance to fully develop our argument in the context of this case that we would if we had a full hearing by itself or a full hearing together, that is ‑ ‑ ‑

HIS HONOUR:   I understand that and the fact is you come along second, if somebody else has got special leave and the point is decided, the point is decided often enough without you having any opportunity to be heard.

MR KENNAN:   Yes, except, your Honour, that we say of course in this case that the facts are different and we could conceive a decision being given by this Court in Clark v Stingel that does not really necessarily deal with our case and we would not want our case decided unless we had the opportunity to fully put the argument to the Court and the Court the opportunity to fully consider all the matters that the facts of this case give rise to by the application of what we say is the correct interpretation of 5(1A).

HIS HONOUR:   Yes.

MR KENNAN:   That is all that comes to mind, your Honour.

HIS HONOUR:   Mr Casey, you have heard the debate and you have heard what is worrying me.

MR CASEY:   Yes, your Honour.  We essentially say that we would be disadvantaged in this sense.  Counsel who appears for Clark will be arguing Clark’s Case, of course, and will not be arguing our case.  We would be disadvantaged in the sense that we could not fully express the argument orally to the Court within the confines of the peculiar facts of our own case.  We heard your Honour say that we could attend the hearing of Clark v Stingel.  Did your Honour say that we could also make oral submissions?

HIS HONOUR:   No, I said you could apply for leave.  It would be a matter for the Full Court to decide what fate that application has.

MR CASEY:   Yes, but the fate of the application at perhaps 5 to 4 would already be known, your Honour.  Essentially, that is the disadvantage that we face.  What we essentially want is the opportunity to make oral argument to the Court in addition to the written submissions and counsel for Clark will not be directing the Court to the particular arguments that we wish to make.

HIS HONOUR:   Yes.  On 16 January 2006 the Commonwealth made application for special leave to appeal against the orders of the Court of Appeal of Victoria made on 20 December 2005 in a proceeding arising out of the collision between HMAS Melbourne and HMAS Voyager in February 1964. 

The Court of Appeal allowed an appeal against a judgment entered at trial in favour of the Commonwealth as defendant to the proceeding instituted by or on behalf of Mr Stafford or his estate.  The Court of Appeal set aside that judgment in favour of the Commonwealth as defendant and in its place entered judgment for the plaintiff, who had been the appellant in the Court of Appeal and is the respondent to the application for special leave, in the sum of $255,000 together with interest and costs.

Although the application for special leave to appeal says that the Commonwealth applies for leave to appeal from part of the judgment of the Court of Appeal, a part described as that part in which the court allowed the appeal on the ground that the claim came within section 5(1A) of the Limitation of Actions Act 1958 (Vic), and accordingly was not statute barred, the Commonwealth, in fact, seeks special leave to appeal against the whole of the orders and judgment of the Court of Appeal.

The Commonwealth has filed its summary of argument in support of its application for special leave. The respondent has not yet done so. The Commonwealth identifies four special leave questions, two, perhaps three, of which directly concern issues of the construction of section 5(1A) of the Limitation of Actions Act 1958 which are, or are related to, the subject of the appeal to this Court in Stingel v Clark, a matter presently fixed for hearing in the Hobart sittings of the Court on Wednesday, 22 March 2006. 

One, perhaps two, of the special leave questions which the Commonwealth seeks to agitate in its application concern the application of the section as properly construed to the particular facts of the case as determined at trial.  As I understand it, neither the Commonwealth nor the respondent to the application for special leave would seek to challenge the findings of fact that were made at trial. 

In its application for special leave the Commonwealth indicates that if leave to appeal is granted it would pay the respondent’s costs of the application for leave and any consequent appeal, and the Commonwealth has again indicated today that it is willing to bear the costs of the respondent incurred in connection with the application for special leave and any consequent appeal.

The Commonwealth now applies for an order that the application for special leave to appeal be heard at the same time as the appeal in Stingel v Clark.  To adopt that course would, I think, run too great a risk of unacceptably disrupting the argument in Stingel v Clark to warrant its adoption. Rather than adopting that course, I am minded to pursue the course which I mentioned to counsel in the course of oral argument concerning the present application. That is, I am minded to give the parties the opportunity to make such written submissions as they would make on the hearing of an appeal in the present matter directed to the questions of construction of section 5(1A) that are said to arise in this matter. It would, of course, be necessary, if that leave is pursued, for the parties to provide those written submissions to the parties in Stingel v Clark. 

The questions of construction of section 5(1A) that arise in this matter can be debated by reference only to the Act and the reasons for judgment in the courts below. There being no dispute between the parties to the present application concerning the findings of fact made at trial, it would not be necessary to go to the expense and trouble of preparing an appeal book setting out the evidence at trial which, given the length of the trial, may well have been voluminous.

If the parties were to choose to make written submissions of the kind I have described, it would be open to them to apply to the Court hearing the matter of Stingel v Clark for leave to intervene in that matter or leave to make oral submissions in support of the written submissions they have filed.  The consequence of adopting the course I have described would be that the application for special leave to appeal made by the Commonwealth would remain undetermined.  The further consequence of adopting the course I describe is the inevitable fragmentation of the application for special leave, a course not lightly to be adopted. 

Nonetheless, Stingel v Clark having been fixed for hearing and the matter having reached the stage it has, I think the preferable course is to refrain from referring the application for special leave to the Full Court hearing Stingel v Clark.  Were I to adopt that course of referring the application for special leave to the Court hearing Stingel v Clark, it would be necessary to prepare a full record of the case and to have the parties in a position where they would be able to argue the application as on an appeal.  It is better, in my opinion, if I confine the interruption of Stingel v Clark in the manner I have described.

Noting then that the Commonwealth agrees to bear the respondent’s costs of the preparation of any written submissions and understanding that agreement as extending to include the costs that the respondent would incur were the respondent minded to apply for leave to be heard orally in support of those written submissions, I would propose to make directions fixing times for the filing and service of written outlines of submissions as on appeal in respect to the issues of construction of section 5(1A) of the Limitation of Actions Act 1958 (Vic) as the applicant contends would arise for consideration were special leave to appeal to be granted to it in this matter.

It will be necessary also to give directions to the parties to serve those written submissions on the parties in Stingel v Clark.  Further, there would be advantage, I think, were the Commonwealth directed to serve on the parties in Stingel v Clark a copy of the transcript of this morning’s proceedings together with a copy of the order giving the directions that I propose to give, thus informing the parties in Stingel v Clark of the course that is being pursued. 

Subject to anything that counsel may say about the form of order, the orders I propose are as follows:

1.The applicant is to have leave to file and serve on the respondent to this application on or before Friday, 3 March 2006 its written outline of submissions as on appeal in respect of such issues of construction of section 5(1A) of the Limitation of Actions Act 1958 (Vic) as the applicant contends would arise for consideration were special leave to appeal to be granted to the applicant together with a bound, indexed and paginated set of the reasons for judgment of the courts below in the present matter.

2.The respondent is to have leave to file and serve on the applicant on or before Friday, 10 March 2006 his written outline of submissions as on appeal in answer to any submissions made by the applicant pursuant to the leave granted in paragraph 1.

3.Any submissions filed by either party pursuant to the leave now granted should forthwith be served upon, not only the opposite party to the application, but also all parties in the matter of Stingel v Clark, matter No M153 of 2005.

4.As soon as practicable, the applicant is to serve on all parties in the matter of Stingel v Clark:

(a)a copy of its application for special leave and its written submissions in support of that application;

(b)     a copy of the transcript of today’s proceeding; and

(c)     a copy of this order.

5.The applicant is to pay the respondent’s cost of the application.

Mr Casey, do you want to be heard in relation to the form of those orders?

MR CASEY:   No, your Honour.  Presently we have the draft notice of appeal in.  That will stand as the notice of appeal in the proceeding.  Do we need to add that, your Honour?

HIS HONOUR:   We need to add in 4(a):

a copy of its application for special leave and its written submissions in support of that application together with its draft notice of appeal.

Now, Mr Casey, you will need to produce the requisite number of copies of all of these documents for the use of the Court, of course, and the requisite numbers of copies of the judgments bundle that I have directed for the opposite party and the Court.

MR CASEY:   Yes, your Honour.

HIS HONOUR:   I know the timetable is tight, but if you are going to get on board the Stingel v Clark bus, that is the timetable.

MR CASEY:   Get aboard.

HIS HONOUR:   Mr Kennan, do you want to be head about the form?

MR KENNAN:   Only, your Honour, I take it that the notice of contention is really ‑ ‑ ‑

HIS HONOUR:   I do not think it is necessary, Mr Kennan, because the application for special leave remains undetermined.  No doubt your submissions in answer to the submissions of the Commonwealth will make plain that you would contend that the proper construction of 5(1A) is a construction that, wonder of wonders, is that construction that means your side wins.

MR KENNAN:   Yes, your Honour.

HIS HONOUR:   I assumed that your submissions might be to that effect.

MR KENNAN:   Certainly, your Honour.  I have no other submissions, your Honour.

HIS HONOUR:   Yes.  Very well, there will be orders in those terms.  Adjourn the Court.

AT 10.10 AM THE MATTER WAS CONCLUDED