Cubillo, Gunner v Commonwealth of Australia

[2002] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No D10 of 2001

B e t w e e n -

LORNA CUBILLO

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry
  Melbourne  No D11 of 2001

B e t w e e n -

PETER GUNNER

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Applications for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 9.32 AM

Copyright in the High Court of Australia

_________________

MR J.T. RUSH, QC:   May it please the Court, I appear with MR M.A. DREYFUS, QC and MS M.J. RICHARDS on behalf of the applicants.  (instructed by North Australian Aboriginal Legal Aid Service)

MR D.R. MEAGHER, QC:   May it please the Court, I appear with MS M.A. PERRY for the respondent in both matters.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   These matters are being heard together, I take it, Mr Rush.

MR RUSH:   They are to be heard together.

GLEESON CJ:   Yes, Mr Rush.

MR RUSH:   As your Honours, I hope, have been informed, we informed the Court last week that we did not intend to supplement our written submissions with oral submissions.

GLEESON CJ:   Thank you.  Does the same will apply to you, Mr Meagher?

MR MEAGHER:   We do not take quite as benign a view about it, I think, your Honours.  We wish to amplify a little, simply by emphasis more than anything else.  These matters are matters in which prejudice to the Commonwealth by the loss of witnesses was established.

GLEESON CJ:   Can I get one thing clear, Mr Meagher?  I think it is common ground, but I just want to confirm it.  Am I right in thinking that if we were to grant

special leave to appeal, on an appeal, unless we were prepared to disagree with the decision of the Full Court of the Federal Court on the questions of the limitation period and laches, we would not get to any of the other questions?

MR MEAGHER:   That is precisely right, your Honour.  That is what I was about to say, and I notice that on the grounds of the appeal the relief that is sought, there is no relief sought or proposed to be sought for an extension of time.  This is a matter where, by the time the matter got to final submissions at nisi prius and on appeal there was no debate that the limitation period had expired, so far as the common law actions were concerned.

So, the discretion to extend time had been refused and so no other issue could be debated, in our submission, until that matter was redressed.  The only redress that is sought on that was by way of argument that the trial judge miscarried in the exercise of his discretion by not addressing each cause of action in turn.

Now, when one looks at the relief that is sought here, what they seek is for this Court to enter judgment for them without addressing the question of extension of time at all.  That is not what this Court could do.  It would not be open for it to do it because the Limitation Act would preclude it.  At best, for my learned friends, the matter would have to found an application to reconsider the refusal of leave to extend time and for that to be done, it would require this Court to be satisfied that some issue of law arose on the exercise of that discretion.

In our submission, no issue of law does arise on that.  They say the judge properly understood the correct principles to apply.  We quarrel with that, but since we were successful there, it is not a quarrel we need to agitate in this Court and the result is that all that is being asked of this Court is that it should reconsider the exercise of discretion and that, in our submission, is not a matter which warrants special leave to appeal being given.

Frankly, your Honours, the matter is as simple as that.  That ought to have been the way the matter was resolved long before we went through a nine‑month trial and had an appeal at great expense to the taxpayer because the prejudice to the Commonwealth was overwhelming, as the trial judge found and should have found at the interlocutory stage.

So, if the matter did go back at this stage, if they changed their relief and sent the matter back, the result would inevitably be the same.  The prejudice would still be there.  It would still have to be found by the trial judge because it is not contested and the same outcome would be achieved. 

So, in our submission, there is simply no basis on which special leave should be granted and we simply wish to emphasise that, that it is not necessary to look at all these other, perhaps, interesting matters that they wish to raise.  If the Court pleases.

GLEESON CJ:   Thank you.  Mr Rush.

MR RUSH:   Your Honours, we do not take a benign approach to the application, if I can make that clear.  However, your Honour is right that if the application were to be successful it would require reconsideration in relation to prejudice and in relation to laches.  But, your Honour, we would say in relation to the notice of appeal that what is bound up in seeking the judgment to be set aside is made clear by point 52 in our application is that the Court should reconsider the “extension of time” argument in the context that we say that the trial judge and the Court of Appeal failed to consider the individual causes of action in deciding prejudice.

Now, that is the point that we make and we say that that is a failure in saying there is irremediable prejudice across the board in relation to the evidence without looking at the specific causes of action which we have referred to.

GLEESON CJ:   What is the position in relation to costs?

MR MEAGHER:   If the Court pleases, as with the trial and appeal, the Commonwealth will not seek an order for costs should it be successful.

GLEESON CJ:  In the event that this Court were to grant special leave to appeal, on the appeal, unless this Court found error in the reasoning of the Full Court of the Federal Court on the questions of the limitation period and laches, this Court would not need to address any of the other issues that were debated in the Federal Court.

We are not persuaded that there is an arguable case that there was error in the reasoning and decision of the Full Court of the Federal Court on the questions of the limitation period, and laches, and the applications for special leave to appeal are dismissed.

AT 9.40 AM THE MATTERS WERE CONCLUDED