Commonwealth v Blunden

[2001] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Registry
  No C26 of 2000

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Applicant

and

BARRY THOMAS BLUNDEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 OCTOBER 2001, AT 10.13 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:   If the Court pleases, I appear for the applicant with my learned friends, MR P.J. HANKS, QC and MR T.M. HOWE.  (instructed by Australian Government Solicitor)

MR G.F. LITTLE, SC:   May it please the Court, I appear with my learned friend, MS E.J. TECHERA, for the respondent.  (instructed by Gary Robb & Associates)

GLEESON CJ:   Mr Solicitor, what is it against which you seek leave to appeal?

MR BENNETT:   Against the decision allowing an appeal and remitting a matter to a single judge.

HAYNE J:   Where do we find the remitter, Mr Solicitor?  We do not, I think, find it in the order as taken out.  I think I am right in saying we do not find remitter explicitly mentioned in the majority view.

MR BENNETT:   It seems to be assumed, your Honour.

GLEESON CJ:   I must say when I read the papers I thought there might be some pages missing from them.  Mr Blunden applied for an extension of time to commence proceedings, is that right?

MR BENNETT:   Yes.

GLEESON CJ:   Does he have it or has he not?

MR BENNETT:   At the moment, as I understand it, that matter is to be determined by the trial judge on the basis of the decision of the Full Court.

HAYNE J:   Why?  The Full Court has not even set aside his orders.  Page 40.  All you have is “appeal be allowed” in effect with costs.  No setting aside, no remitter.

GLEESON CJ:   Certainly no exercise by the Full Court of its own discretion.

MR BENNETT:   Your Honour, we had read that as meaning that the appeal being allowed meant that the decision below was set aside and therefore the motion was still alive before the trial judge.

GLEESON CJ:   So is it the common understanding of the parties that what the Full Court of the Federal Court intended to do was to remit the

matter to Justice Crispin so that he could have another go at the exercise of his discretion?

MR BENNETT:   That is certainly ours, your Honour.

MR LITTLE:   That is not our understanding.  We understood the appeal had been allowed and particularly from the judgment of Justice Miles, who dissented.

GLEESON CJ:   Mr Little, can I ask you this fairly blunt question.  Do you think your client now has an extension of time?

MR LITTLE:   No, your Honour.  It is problematic whether he needs one or whether the Commonwealth needs to rely on a defence.

GLEESON CJ:   Mr Little, could I put to one side the question of the applicability of the Limitation Act.  You applied for an extension of time.

MR LITTLE:   Yes, your Honour.

GLEESON CJ:   Do you think you got one?  Let us leave aside whether you need one.  My question is:  do you think you have one?

MR LITTLE:   On the strict wording of the order and the judgment of the Full Court of the Federal Court, no, they did not exercise the judge’s discretion fully.

GLEESON CJ:   My question is:  do you think that your client, as a result of what happened in the Full Court of the Federal Court, has an extension of time?

MR LITTLE:   No, your Honour.

GLEESON CJ:   Then what is the problem?  Presumably Mr Bennett is content with that.

MR BENNETT:   Your Honour, I am not content if it means that the matter goes back to the trial judge to consider the grant of an extension of time.  We succeeded before the trial judge in having that application refused.

HAYNE J:   But was there any debate in the Full Court about whether the Full Court should exercise the discretion, whether it should go back?  It all seems to have been conducted at this ethereal level as far as one can tell from the reasons.

MR BENNETT:   Your Honour, the only inference one can draw is that if one goes to page 37 of the application book, having decided that the trial judge was in error in refusing leave, they say:

Having regard to this and the nature of the application . . . it seems to us that . . . we should grant leave to appeal and allow the appeal.

GLEESON CJ:   I am not sure that they did decide the trial judge was in error in refusing leave.  They decided that the trial judge made an error in the way in which he set about exercising his discretion, but they did not express a conclusion that a proper exercise of discretion would have required a grant of leave.

MR BENNETT:   No, I agree, your Honour.

GLEESON CJ:   There is nothing in the reasoning of the Full Court that indicates that the majority in the Full Court set about to re‑exercise the discretion that had been originally reposed in the trial judge.

MR BENNETT:   We agree, your Honour.

GLEESON CJ:   Am I right in thinking – and I have not checked the Act or Rules of the Federal Court – that in the Federal Court, if there is an appeal from a discretionary judgment, as in the present case, and the court sitting on appeal thinks that the judge has made an error of principle in the manner in which the discretion was exercised, the court then has a choice.  It may either remit the matter to the primary judge to have another go at it or the court may exercise its own discretion.

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   I do not find the majority doing either of those things in this case.

MR BENNETT:   We submit that by implication it has remitted, your Honour.

GLEESON CJ:   There is no order to that effect.

MR BENNETT:   No, your Honour.  We say there is an implication that it has set aside the order of the trial judge by allowing the appeal.  The words “the appeal be allowed” mean that the order below is set aside.  Once that is done, there is a motion which has not been determined.

HAYNE J:   Why should not these matters be put beyond implication by the parties being left in the position where they go back to the Full Court of the Federal Court for, on one view, that court to complete its task?  Once that is done, the application for leave standing over, the parties can then come to this Court knowing what the Full Court of the Federal Court intends rather than leaving it to a matter for implication from an apparently incomplete order.

MR BENNETT:   For two reasons, your Honour.  The first is there are 121 other matters referred to in the affidavit.  The decision of the Full Court was in November 2000 and the events of course occurred 37 years ago.

GLEESON CJ:   But you and Mr Little cannot even agree between yourselves on what the effect of the Federal Court’s order was.

MR BENNETT:   Whether we can agree or not, your Honour, in my submission, it is clear.  In my submission, there is an omission in the order but the implication and the language of the judgment makes it quite clear.

GLEESON CJ:   There is an omission in the judgment as well, is there not?  May I ask you this.  Once the Full Court of the Federal Court came to the conclusion that Justice Crispin had erred in the way in which he set about exercising his discretion, why would not they have gone on and exercised their own discretion?  Were there some outstanding facts to be resolved?

MR BENNETT:   There were certainly witnesses, there were certainly matters which – on the way they found the case, there had been matters which the trial judge had not found or looked at.  We disagree with that.  But on the way they looked at it, they took the view that the trial judge had failed to consider certain questions and had regarded the question of prejudice and inability to have a fair trial as conclusive.  They regarded that as wrong.  Ergo, the logical conclusion is that it has to go back for those facts to be determined.  That, we would submit, is what it has done with an omission in the drafting of the order which can readily be filled.

GLEESON CJ:   All right.  We will see what Mr Little has to say about that in due course, but you go ahead with your argument.

MR BENNETT:   If your Honour pleases.  The primary special leave argument turns on the construction of the section.  The section appears at pages 26 to 27 of the application book and your Honours see that in subsection (2) the words appear in the fourth line that “if it decides that it is just and reasonable so to do”, the court may make certain orders.  Then in subsection (3) there is a list of factors to be taken into account.

In relation to words of that type, this Court dealt with the matter in a case called Brisbane South v Taylor 186 CLR 541. In that case Justice McHugh clearly, and we submit the other three Justices in the majority, decided that the effect of those words was that if one determined that there was significant prejudice, certainly on the view of two of the Justices, if one determined that there could not be a fair trial, one did not need to look at the other factors. That was sufficient because the words of subsection (2) were not satisfied.

That version of the decision was applied by four of the five justices of the Court of Appeal in Holt v Wynter contrary to an earlier New South Wales Court of Appeal decision in Zegarac v Sydney City Council.  In Cubillo in obiter, the court took the same view that we are submitting.  The Full Court in this case took the opposite view and held that a determination that there could not be a fair trial or that there was significant prejudice was not conclusive and one still had to look at all the other factors and weigh them all together.  That is an important question.  It is one on which we submit this Court has spoken, although it is clear from the language of the cases that there is some doubt as to whether the view I have put was the view of Justice McHugh alone or the view of the other three members of the majority.

HAYNE J:   Assume for the purposes of argument that there is a debate about principle.  Assume further that the principle was resolved in the sense in which you say it was in Brisbane South.  Does the application of the principle depend upon the particularity of the facts of each case?  That is, let it be assumed that we take this case.  Let it be assumed we say, as you urge us to, that Brisbane South establishes this principle.  What is the consequence for the 121 other cases?

MR BENNETT:   The consequence is, your Honour, that if the defendant establishes that there cannot be a fair trial or, on a slightly lower test, that there is significant prejudice to the defendant as a result of the delay, that is the end of the matter and one does not then look at all the circumstances affecting the plaintiff as to why the delay occurred and how the plaintiff discovered and so on.

HAYNE J:   So that “just and reasonable so to do” is to be understood as circumscribed by requiring attention first to the issue:  can there be a fair trial?

MR BENNETT:   Yes, your Honour.  Yes, because for the reasons given by Justice McHugh in Brisbane South, which are that, prima facie, in relation to limitation legislation, the major matter with which one is concerned is whether it is still possible to have a fair trial and one does not weigh that against whether one is concerned for the plaintiff who has allowed the limitation period to pass. Justice McHugh says that at page 555 of Brisbane South 186 CLR at about point 8 of the page and the passage is:

When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.  The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.  In such a situation, actual injustice to one party must occur.

So he goes on.  The passages which we say support that but which are disputed in some of the cases are Justice Dawson at page 544, who said at point 3:

To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.

That puts the onus the other way around but it achieves the same result.  Justices Toohey and Gummow at page 547 point 5, four lines before the quotation, say:

Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J –

and the quotation that they adopt is:

“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”

Now, one can argue that that passage does not necessarily give unqualified support to what is said by Justices Dawson and McHugh and that is what has led some courts not to take the view which we submit is the correct view.  It is an important issue.  There are 121 of these cases and, in my respectful submission, leave should be granted to enable it to be done.

I should say in Cubillo the Full Federal Court supported the view which we put but it did that in obiter because it then went on to say, even if one took the other view, on the facts of this case time would not be extended.  There are also references in some other cases.  I will not take your Honours to the other cases which have enlivened this controversy.  It is an important one.

The secondary issue in the case arises if and only if your Honours permit my learned friend to argue that there is no limitation period at all.  I do not know if your Honours wish me to deal with that in‑chief or in reply.

HAYNE J:   Can I just ask you how does this arise?  Have there been any pleadings beyond statement of claim in this action?

MR BENNETT:   I am not sure of the answer to that, your Honour.

HAYNE J:   How are we into this extension question?  I know the Commonwealth has sworn affidavits that, “It’s our policy to plead limitations”.

MR BENNETT:   There is a defence, your Honour.

HAYNE J:   There is a defence on, a defence relying on the ACT and no other.

MR BENNETT:   Relying on the ACT statute and no other.  There is a foreshadowed application of course to amend that by relying on the argument that there is no limitation period.

HAYNE J:   Why should we take on this proceeding when there is this incomplete, inconclusive set of pleadings, preliminary questions, interlocutory disputes?  Why should we look at it, Mr Solicitor?  Let the parties go and have their fight at trial.

MR BENNETT:   Your Honour, at the risk of sounding like a broken record, it will determine an issue which arises in 121 cases.  That is the core of it, your Honour.  The issue arises this way.  We opposed leave being granted for the defendant to change its position when it was raised at the last minute on the appeal.  The reason of course was, apart from the difficulty of dealing with it at the last minute, that there was a question of facts to be determined if it were done in that way.  We have now agreed with the defendant on a whole host of facts relating to the way ‑ ‑ ‑

GLEESON CJ:   There is no reasoning of the Federal Court on this point, is there?

MR BENNETT:   This is a new point the defendant seeks to raise, your Honour.  If the Court does not permit it, it does not permit it.  The major point still arises ‑ ‑ ‑

GLEESON CJ:   Let us see what Mr Little has to say about it.  We will begin by asking Mr Little what stage he thinks he has now reached in this

litigation, and in particular whether he thinks his client has, or does not have, an extension of time.

MR LITTLE:   We do not believe we have an extension of time, your Honour, although we would like to say that the amended notice of appeal set out the orders sought but the reserved decision of the Federal Court does not, in express terms, make the orders sought.

GLEESON CJ:   What do you think was the effect of the order that the Federal Court made?

MR LITTLE:   Probably nothing, your Honour.  That is one of the reasons we are not keen, with respect, to adopt your Honour’s suggestion the matter go back to the Federal Court and this leave application be adjourned in the meantime because the plaintiff wishes to get on and pursue his case.

GLEESON CJ:   Without an extension of time?

MR LITTLE:   Without an extension of time, leaving it to the defendants to raise what they say is a limitation point.

GLEESON CJ:   If you are prepared to proceed with the case without an extension of time, what are we concerned about?

MR LITTLE:   The Commonwealth brought a special leave application which tied our hands, your Honour.

GLEESON CJ:   Let me ask you this question.  Are you prepared to accept that you have no extension of time and that you now seek no extension of time?

MR LITTLE:   I think that is a matter on which I would have to take instructions, your Honour.

GLEESON CJ:   Can you get them?

MR LITTLE:   Yes.  May I have a moment to get those instructions?

GLEESON CJ:   Yes.

MR LITTLE:   My instructions are, your Honour, that the suggestion that we go back to the Federal Court to ask them to elaborate on their judgment so there is something that can be grappled with by the parties is the appropriate course.

GLEESON CJ:   You are not prepared to accept what I just put to you?

MR LITTLE:   No, your Honour.

GLEESON CJ:   Right.  You accept that the Federal Court did not, either expressly or by implication, grant you an extension of time?

MR LITTLE:   Yes, your Honour.

GLEESON CJ:   The Federal Court did not say it was remitting the matter to Justice Crispin, but do you accept that that is what it intended?

MR LITTLE:   No, our submission is they intended to allow the appeal and make the orders we sought in the notice of appeal, but they did not do that.

GLEESON CJ:   You think they intended to give you an extension of time?

MR LITTLE:   They intended to give us an extension of time.

GLEESON CJ:   If they intended that they did not give any reasons for it.

MR LITTLE:   No they did not.  The very things we complained about the trial judge they seem to have been guilty of themselves, with respect.

GLEESON CJ:   It is very difficult to resist the conclusion, is it not Mr Little, that the matter has to go back to the Full Court of the Federal Court in order to enable them to make clear what their intention was as to the further progress of the case, and in particular as to the disposition of your application for an extension of time.  I gather if the matter goes back to the Full Court of the Federal Court you will seek to encourage them to grant you the extension of time?

MR LITTLE:   Yes, your Honour.  Mr Justice Miles could see this difficulty in the majority judgment, as I read his judgment.  He dissented and he said it may be that, in any event, we did not need the extension of time but he ‑ ‑ ‑

GLEESON CJ:   That is a different issue.

MR LITTLE:   It was a different issue.

GLEESON CJ:   We are here concerned with an application for special leave solely in relation to a proceeding in the form of an application by your client for an extension of time.  Whether or not your client needs the extension does not have anything to do with what we are concerned with.

MR LITTLE:   No, I accept that, your Honour.  I accept, with respect, that the only way to clarify the issue is to go back to the Federal Court and ask them what they meant.

GLEESON CJ:   Yes, thank you, Mr Little.  Mr Solicitor, it seems impossible to resist the need to get some kind of explanation and further order from the Full Court of the Federal Court.

MR BENNETT:   In our submission, it is clear what they intended to do.

GLEESON CJ:   One thing that is absolutely clear is that they did not grant an extension of time.

MR BENNETT:   That is clear, your Honour, there is no doubt of that.  In our , it is clearly implicit in allowing the appeal and saying nothing else that they are leaving the motion to be determined by the trial judge anew.

GLEESON CJ:   Then they did not deal with Mr Little’s submission that they should grant an extension of time themselves.

MR BENNETT:   No, they did not, your Honour.

GLEESON CJ:   They did not give any reason for sending it back to Justice Crispin on the assumption that is what they intended to do, rather than going ahead and exercising the discretion.

MR BENNETT:   They did not, your Honour.  The reasons are obvious to this extent, that if one says a discretionary judgment miscarried because the trial judge erroneously took the view that his discretion was circumscribed and they say that is erroneous, the logical conclusion is that it has to go back to the trial judge to determine the facts.

GLEESON CJ:   That depends on whether there was a dispute of fact or a dispute about the primary facts relevant to those other considerations?  Was there such a dispute in this case?

MR BENNETT:   Yes, your Honour.  There was psychiatric evidence and questions as to whether it was matters which could or could not be found out.  It is discussed in the judgment.  There is the matters going to prejudice.  There is one passage in the judgment of the Full Court which does refer to it – I am sorry, the judgment of the trial judge that refers to the other issues, a very short passage, where at page 8, line 20 and following, where the factors relied on by the plaintiff are referred to.  The Full Court presumably took the view, we would submit and the fact that he did not deal with it, that having decided that the trial judge had dealt with the matter on

what it regarded as an erroneous precursor to the issue it had to decide, it ought to go back to exercise its discretion on the basis of all the factual material.

In our respectful submission that is sufficiently clear to enable the real issue in this case which is an important issue, it is an issue of public importance, it is an issue this Court has spoken on although spoken, as I have indicated, in a manner which has been interpreted differently by lower courts, it is a matter that should be resolved and can be resolved in this case.  It is a live issue because my learned friend says he still seeks an extension of time and at the moment we say there is an order refusing that which ought not to have been set aside.

GLEESON CJ:   It actually was not set aside.

MR BENNETT:   Your Honour, we say it was.  We say the words “the appeal is allowed” necessarily have that connotation in the absence of other words.  That is the issue and we submit it is important.

If your Honours are against me, I would ask that your Honours take the course that the Chief Justice referred to of standing it over to enable the Full Court to deal with the matter.  If it were possible for the rehearing of this application to be expedited and heard in December so that we can approach the Full Court in the next week or two, we would ask your Honours to indicate that.

GLEESON CJ:   The respondent applied to the Supreme Court of the Australian Capital Territory for an order extending the time within which proceedings could be commenced.  The power to make or refuse such an order was a discretionary power.  Justice Crispin in the Supreme Court, in the exercise of his discretion, dismissed the application for such an order.  The respondent then appealed to the Full Court of the Federal Court.  The majority in the Full Court of the Federal Court, for reasons they gave, concluded that Justice Crispin made an error of principle in the manner in which he approached the exercise of his discretion.  Whether or not that conclusion was correct is in dispute between the parties to the present application, and I express no view about it.

Having concluded that Justice Crispin was in error in the manner in which he exercised his discretion there were, it is common ground, two alternative courses open to the Full Court of the Federal Court.  One was to remit the matter to the Supreme Court of the Australian Capital Territory for re‑consideration of the exercise of the discretionary power in accordance with the reasons of the Full Court.  The other was for the Full Court to reconsider the discretionary question itself and decide whether or not the respondent should have his extension of time.  There is nothing expressly said, either in the reasons for judgement of the majority of the Full Court, or in the orders of the Full Court, to indicate which of those two alternatives was intended to be taken.

An order was made allowing the appeal.  No order was expressly made setting aside the orders of Justice Crispin, although that was obviously intended.  No order was made granting the present respondent the extension of time he sought, although we were informed that the respondent endeavoured to persuade the Full Court of the Federal Court to make such an order in his favour.  No order was made remitting the matter to the Supreme Court.

In the result, the order of the Full Court of the Federal Court is not a complete disposition of the appeal before it, there being no order setting aside the orders at first instance, and there being neither an order disposing of the motion nor an order remitting the matter to the Supreme Court of the Australian Capital Territory and directing further hearing of the application for an extension of time. 

In those circumstances the Court is of the view that the proper course is for the parties to approach the Full Court of the Federal Court to seek a complete disposition of the appeal to that court.  In the meantime, the present application for special leave to appeal will be stood over and we will indicate that it is appropriate that there should be an expedited hearing of the application for special leave once the parties have been back to the Full Court of the Federal Court and further orders have been made.

MR BENNETT:   If the Court pleases.

MR LITTLE:   May it please the Court.

GLEESON CJ:   We will reserve questions of costs of today.

AT 10.46 AM THE MATTER WAS CONCLUDED