Cubillo, P.J. v Commonwealth of Australia

[1992] FCA 286

Re: PEDRO JUAN CUBILLO
And: COMMONWEALTH OF AUSTRALIA
No. N G571 of 1991
FED No. 286
Limitation of Actions

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Limitation of Actions - Postponement of Bar - Limitation (Amendment) Act 1990 (NSW) - Construction and application of sch 5 of "Further Transitional Provisions" - Construction and application of s 60G Limitation Act 1969 (NSW) - Meaning of "just and reasonable" - Circumstances to consider.

Limitation Act 1969 (NSW) - s, 60G, s 60I

Limitation (Amendment) Act 1990 (NSW) - sch 5, cl 4

James Hardie and Co Pty Ltd v Wootton (1991) 20 NSWLR 713

Hudson v Haines, unreported, Supreme Court of New South Wales, Newman J, 21 June 1991

HEARING

SYDNEY

#DATE 9:4:1992

Counsel for the applicant: Ms C.C. Simpson QC

with Mr R. Goot Instructed by: Maurice May and Co

Counsel for the respondent: Mr J. McCarthy QC

with Mr P. Jones Instructed by: Australian Government Solicitor

ORDER

The Court orders:

1. that the limitation period be extended for a period of three months from today until 9 July 1992.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

This action was commenced in the High Court of Australia by writ and statement of claim filed on 24 November 1988. The applicant Pedro Juan Cubillo claimed damages against the respondent, the Commonwealth of Australia, for injuries allegedly suffered by him as a result of exposure to ionising radiation at Maralinga, South Australia in 1958. He alleged negligence and trespass and breach of duty of various kinds relating to his presence and employment in the area during the atomic tests which were undertaken in that year.

1. Amongst other defences pleaded the respondent relied upon the action being out of time under the Limitation Act 1969 (NSW) (the "Act"). The action has been remitted by the High Court for hearing in this Court. The existence of this defence has led to the present application which is for an appropriate extension of the limitation period in favour of the applicant. It is agreed that the question falls for determination under the relevant provisions of the Act. This Act in fact underwent extensive amendment in 1990. The amending provisions have been the subject of interpretation in the Supreme Court of New South Wales in cases to which I have been referred.

2. There is, in fact, ultimately no contest between the parties as to the provisions which apply to this application or as to their effect. The relevant provision is cl 4(b) of sch 5 of the "Further Transitional Provisions" to the Limitation (Amendment) Act 1990 (NSW). This provides that, so far as relevant:
   

"The court may make an order under section 60G or 60H in relation to a cause of action referred to in the clause, within:

...

(b) the period of 3 years commencing on 1 September 1990."

The cause of action referred to is by cl 4(1):

"... a cause of action founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990..."

1. Section 60G relevantly provides that:
   

"(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

1. In James Hardie and Co Pty Ltd v Wootton (1991) 20 NSWLR 713 , the Court of Appeal of the Supreme Court of New South Wales held that these sections applied without any qualification that might be imported by s 60I in respect of causes of action accruing after 1 September 1990. Gleeson C.J. said at 717:
   

"No doubt the reference in the opening words of cl 4(1) to s 60G is a reference to s 60G(2). It is common ground that the respondent would have been unable, in the facts and circumstances of the present case, to bring himself within the provisions of cl 4(4)(a). The reason for this is that the provisions of s 60I as to a plaintiff's state of knowledge or awareness at the relevant time were not provisions that the respondent was able to satisfy. However, the respondent argued before Judge O'Meally that his case fell within cl 4(4)(b). The argument was simply that so long as Judge O'Meally made an order within the period of three years commencing on 1 September 1990, then the requirements of cl 4(4)(4b) were fulfilled and it was then only necessary for the respondent to persuade his Honour that in the circumstances, it was just and reasonable to make an order under section 60G. Having regard to the language of this legislation, this submission seems to me to be unanswerable."

His Honour further said:

"The language of the provisions of the Schedule with which this court is presently concerned appears to me to be unambiguous. In cases where the court makes an order under s 60G in relation to a cause of action within the period of three years commencing on 1 September 1990, then the question for the court to consider is that raised by s 60G(2) that is to say, whether it is just and reasonable to make the order. I see no justification for importing into the operation of clause 4(4)(b) the provisions of s 60I."

1. I respectfully agree with these statements and adopt them for the purposes of this decision. Reference may also be made to Hudson v Haines, unreported, Supreme Court of New South Wales, Newman J., 21 June 1991.

2. I have been told that there may be a residual question as to whether the section applies only in respect of "latent injuries" which appear to be defined in s 60F as those where the plaintiff was "unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time". If this qualification were to apply, which I doubt, I am in any event satisfied that the relevant injuries in this case qualify for this description. I turn therefore to the question of whether it is just and reasonable to extend the limitation period in the present case. The facts appearing from the affidavits filed on behalf of the applicant are not contested by the respondent.

3. They may be summarised as follows. The applicant was born on 23 October 1929. He was a member of the Australian armed forces from 28 February 1956 until 27 February 1962. During that period he was posted to Maralinga, South Australia, in the years 1957 and 1958 as a member of the Royal Australian Engineers. At the time of his posting his health was good. His duties as a member of the Royal Australian Engineers at Maralinga consisted, inter alia, of the preparation of bomb sites for the atomic tests and the performance of cleaning-up duties in relation to radioactive waste coming into existence after the completion of tests.

4. He resided in the Maralinga village which was about six miles away from what were described as the forward areas where these bomb sites were situated. He was present at the village when three explosions of an atomic device occurred. These occurred close enough for him to feel intense heat on his back and on the back of his neck and his legs. He provides a prima facie account of having been exposed to radiation from the atomic explosions. He claims, as I have said, in these proceedings, that the respondent was negligent and in breach of relevant duties to him in relation to this exposure and in failing to take proper precautions for his safety by way of provision of necessary equipment and otherwise.

5. Immediately after the tests his health was good and he noticed no ill effects. However, in 1959 whilst performing service in Malaya, he had treatment for an abscess of his liver. He was not told that this condition was malignant or related to his duties at Maralinga. He did not himself see any connection between the two and it is not clear at this stage, on the evidence, whether in fact there was any such connection. In the mid 1970s, well after the lapse of the relevant period of six years from the service at Maralinga, he noticed a lump under his ribs which slowly grew larger. It caused him no problem and no difficulty. He felt generally quite healthy and he simply ignored it. In the circumstances I do not regard this behaviour on his part as being unreasonable.

6. However, in 1982, whilst being examined by his local doctor for another matter, the doctor observed the lump and referred him to a specialist for further examination. The lump was then diagnosed as cancerous and, as a result, he underwent an operation in which his right kidney was removed. At that point of time the applicant thought that this cancer could be related to his duties at Maralinga.

7. He did not think about the matter very much or in great detail as he had formed the view that in any event, because of his condition, his life was significantly shortened. This was a fatalistic view but not, in the circumstances, unreasonable. In particular he considered that he would not be alive long enough to bring any proceedings in Court to fruition. Additionally he was concerned about a security undertaking that he had sworn in relation to information concerning the period at the time and his duties at Maralinga. In 1982 and 1983 he also had marital problems of a serious kind. These problems resulted in the separation of himself and his wife.

8. The applicant first consulted a solicitor about a claim in relation to possible injuries occasioned to him at Maralinga in July 1984. He raised the matter when he was consulting with his solicitor about another claim relating to industrial deafness. He asked that the solicitor explore his rights in relation to radiation exposure at Maralinga. By that time he had also become a registered member of the Australian Nuclear Veterans Association which was interested in these problems. He authorised his solicitors to take necessary action on his behalf in October 1984. On 30 November 1984 his solicitors wrote to him advising that the Royal Commission into Maralinga was proceeding and was producing "a significant volume of new information about the tests" which would "have to be carefully analysed and evaluated". He was also advised that "application for legal aid would be made on a case by case basis". The solicitors in question were acting also in relation to other potential claims resulting from problems at Maralinga.

9. On 26 May 1986 his solicitors wrote to him telling him that the Royal Commission had been completed and that they wished to commence proceedings. A legal aid application was forwarded to him for this purpose. A follow-up letter was sent on 16 July 1986. These letters were not received by the applicant as he was then working in Maitland and was not resident at his previous address. A further letter of 25 May 1987 was received by him and this resulted in him applying for legal aid on 29 June of 1987.

10. On 10 August the Legal Aid Commission requested further statements and medical reports to assist them in their considerations as to whether aid would be granted to enable him to bring the action. By 20 September 1988 the question of legal aid had not been determined and it was decided by his solicitors that the present writ and statement of claim should, notwithstanding this, be issued in the High Court and this was done on 24 November 1988 after which events to which I have already made reference occurred. Currently the applicant has received legal aid only for the purposes of making this application.

11. In October 1989 a cancerous abnormality of the applicant's right lung was diagnosed. This cancer was removed in an operation in January 1990. Medical and other scientific evidence put before me in these proceedings raises a prima facie probability that his problems were radiation related.

12. I turn then to the question of whether it is just and reasonable to order that the limitation period be extended to enable the applicant's action to be maintained. The action was well out of time before he became aware in 1982 of any possible ill effects from his service at Maralinga. Thereafter there was further delay before he contacted his solicitors, the delay being for approximately a year during which he was experiencing the severe marital problems to which I have already made reference. I consider this period of delay has been sufficiently explained.

13. As he had no financial resources of his own sufficient to investigate the matter it was quite reasonable to accept his solicitor's advice that he await the outcome of the Royal Commission. There were thereafter problems in relation to legal aid. As I have said, finally in 1988 the writ was issued despite the absence of such aid. I am satisfied in all these circumstances that delay up to the issuing of the writ and statement of claim has been satisfactorily explained. It has not been suggested on behalf of the respondent that any prejudice has been occasioned to it by the delay in the nature of loss of evidence or the like. Additionally, the Royal Commission itself would have appraised the respondent of the possibility of such claims even though they were out of time. Obviously, the applicant would suffer considerable hardship himself if he were not able to maintain this action. One matter of hardship raised by the respondent is that the action may not proceed for a long time or not proceed at all if legal aid is not granted. It, quite naturally and reasonably, wishes to avoid the inconvenience and expense of preparing for a case that may not proceed. However this is not, in my view, a sufficient reason for denying the applicant his action.

14. In my view, it is just and reasonable that time be extended. I make the assumption that the applicant's solicitors will keep the respondent's solicitors fully informed as to the progress of the application for legal aid and as to whether the action is to be proceeded with. If the situation were to become unsatisfactory, the respondent can always take appropriate steps in the Court to seek dismissal of the proceedings for want of prosecution or for some appropriate interlocutory orders.

15. I extend the time, the limitation period, for a period of three months from today until 9 July 1992. I reserve the question of costs.