Cubillo v Commonwealth

The case before the court involved the Commonwealth opposing the appellants' application for an extension of time to bring their claims. The Commonwealth argued that it would be unjust to grant the application due to the unreasonable delay in seeking relief, which caused significant prejudice, including difficulties in identifying and locating witnesses, unavailability of witnesses, and the inability of witnesses to recall relevant circumstances. The matter was heard at a directions hearing, where it was decided to hear evidence from six aged and frail witnesses before the trial proper. The primary Judge issued a detailed interlocutory judgment, declining the Commonwealth’s motion to dismiss the proceedings or to determine the applications for extensions of time separately. The Judge allowed the actions to proceed to trial and permitted the appellants to file further amended statements of claim.

The legal issues that arose in this case primarily concerned the appropriateness of allowing an extension of time for the appellants to bring their claims and whether the causes of action should be struck out. The court had to consider the prejudice to the Commonwealth in defending the proceedings, the difficulty in testing the appellants' submissions regarding the accrual of their causes of action, and the desirability of hearing evidence on the factual questions raised by the application for extensions of time. The primary Judge determined that it was inappropriate to hear the applications for extensions of time prior to the trial of the substantive issues.

In its reasoning, the court emphasised the importance of testing the appellants' submissions regarding when they became aware of their injuries and their connection to their removal and detention. The court concluded that it was difficult to test these submissions without evidence regarding the timing of the injuries and the appellants' awareness of their connection to the removal and detention. Additionally, the court found that it was desirable to hear evidence on the factual questions raised by the application for extensions of time. Consequently, the appeal was dismissed, and the parties were directed to file and serve written submissions regarding costs within 28 days.