Davison & Ors v State of Queensland

[2005] HCATrans 1006

[2005] HCATrans 1006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B62 of 2005

B e t w e e n -

SARAH DAVISON

Appellant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B63 of 2005

B e t w e e n -

VANESSA FAYNE GIBSON

Appellant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B64 of 2005

B e t w e e n -

STEPHEN ANDREW GIRARD

Appellant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B65 of 2005

B e t w e e n -

JASON THOMAS ORR

Appellant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B66 of 2005

B e t w e e n -

NATASHA YARRIE

Appellant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B67 of 2005

B e t w e e n -

ALEXANDRA ORR

Appellant

and

STATE OF QUEENSLAND

Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 DECEMBER 2005, AT 2.20 PM

Copyright in the High Court of Australia

MR R.J. DOUGLAS, SC:   I appear with MR G.R. MULLINS and MR M. HORVATH for the appellants.  (instructed by Nicol Robinson Halletts)

MR M. GRANT-TAYLOR, SC:   I appear with my learned friend, MS K. PHILIPSON, for the respondents in all six appeals, your Honours.  (instructed by Crown Solicitor for the State of Queensland)

GUMMOW J:   Yes, Mr Douglas.

MR DOUGLAS:   Your Honours, we ought identify at the outset that the appellants lodged with the Court on Monday an amended reply outline of submissions.  The amplification was not great.  We just referred to a number of authorities we identified over the weekend.  Does the Court have that?

KIRBY J:   You are dropping your voice.  It is sounding more like a Chancery case.

MR DOUGLAS:   I am sorry, I will speak up, Justice Kirby.  It identified a number of authorities we identified over the weekend, mainly in relation to access to courts.  Brakespeare’s Case was a decision we found.  But, your Honours, moving on to the merits of the appeal proper, the evidence purpose, we would submit, of the Personal Injuries Proceedings Act 2002 was to provide a pre‑proceeding regime for the disposition of injury claims. The evident purpose of the legislature, the parties agree, is that the disposition of those claims ought ensue, either by way of compromise hopefully or, if not, then by way of a full exchange of information and offers, in each case anterior to litigation ensuing by court proceeding.

As we identify in our outline, and we attach them to our outline, sections 9 and 36 of the Act are provisions by which that proscription on commencement of proceedings is enacted.  It is done perhaps a little inelegantly.  If your Honours look at section 9(1), you will see that the language is used “Before starting a proceeding”, and there is a provision then for the delivery of a certain notice.  Your Honours, in section 36, which makes provision for a mandatory or compulsory conference, again in subsection (1) the language is used:

Before starting a proceeding in a court based on a claim, there must be a conference of the parties ‑

So between those two provisions the Queensland legislature have enacted, as we put it, a proscription upon the commencement of proceedings in respect of a personal injury claim unless in circumstances otherwise permitted by the Act.

Your Honours, as we identify in our outline, this Act also contains in section 7 provision to the effect that the sections of the Act with which we deal here are characterised as being substantive, not procedural in nature.  One is forgiven for thinking that that was included in the Act for reasons of choice of law in the event that proceedings might be commenced, say, in another State involving an interstate person visiting Queensland or the like, but in essence, we would submit ultimately, the provisions in the conventional case are to be construed as procedural.

The reason we raise that, your Honours, is this that the Act therefore otherwise provides for the general law, including the statute law, in turn including the law pertaining to limitation of actions to obtain and operate in respect of any cause of action, the subject of the pre‑proceeding protocol.

Now, in our submission, the operation of limitations, including other contingencies, for instance, such as a need to get a proceeding started immediately because someone might be dying or the like, is accommodated by section 43 which is the focus of this appeal.  Again, that appears or is to be found among other places, attached to our appeal outline, and in essence, it provides for a discretionary leave in the Court to commence a proceeding conditioned by only one thing and that is what is described as an urgent need.

GUMMOW J:   Do we not begin with your paragraph 39 to understand what this legislation seems to be about?  That seems to be regarded as a mischief, that possibility, that somehow this Act was going to deal with.

MR DOUGLAS:   Yes, your Honour, the reason we posit that is for this reason.  We would submit that in interpreting what is meant by “urgent need” one must focus not just on the words used and perhaps of any assistance, and there is not much to be gained by the extrinsic materials, but also on the history of what obtained in respect of personal actions prior to the enactment of this legislation.  The simple proposition that we put is this.  Prior to this Act, if the primary limitation period was coming close to expiry or in the event that a limitation extension was sought under section 31, about which you have heard so much about this morning, and that one‑year period provided for under section 31 was about to expire, then a claimant, usually by a solicitor, could start a proceeding and stop time running, unconditioned by any need to obtain leave or anything of that nature.

We would submit that that circumstance, that historical circumstance, predating the enactment of this legislation is a matter which should be taken into account in determining whether, among other things, the legislature wanted to impose, for want of a better metaphor, a low or a high hurdle in an endeavour to prescribe what was the proper condition for leave described by the words “urgent need”.

KIRBY J:   When did that facility disappear in Queensland?

MR DOUGLAS:   It disappeared in Queensland on 18 June 2002.  This legislation, Justice Kirby, as we say in the outline, is retrospective in effect, so if a proceeding, but for some transitional provisions which do not obtain in this matter, was not commenced for personal injury within the meaning of this Act ‑ ‑ ‑

KIRBY J:   So it disappeared by the force of the personal injuries proceedings?

MR DOUGLAS:   That is correct, Justice Kirby.  So even in the event that an injury occurred in, say, 2000, if that proceeding was not commenced by 18 June 2002, this Act had to be complied with before a proceeding could be commenced.

GUMMOW J:   In this case there seem to have been two Court of Appeal proceedings. 

MR DOUGLAS:   There were.

GUMMOW J:   I do not quite understand how that worked out.

MR DOUGLAS:   How it worked was this.

GUMMOW J:   There was a proceeding before Justice Douglas.

MR DOUGLAS:   There was and that application was made by the same parties for the same leave.  Justice Douglas refused that leave.  He refused it on a number of bases but the essential basis was he did not consider there was any urgent leave at that time.  He also did so on the basis of the affidavit material which was before him.  That is canvassed at some length in the decision of Justice Holmes.

GUMMOW J:   This is before the Courier-Mail publication or after it?

MR DOUGLAS:   Both of the applications were after the Courier‑Mail article.  The Courier-Mail article was in June 2003.  The application before Justice Douglas was December 2003.  The second application before Justice Holmes was made in June 2004 just prior to the expiry of what we would say was the 12-month period.  At that time the Court of Appeal had not handed down the decision of the appeal which was made from Justice Douglas’ decision.  That was handed down shortly afterwards.

GUMMOW J:   He did so later and then there was ‑ ‑ ‑

KIRBY J:   Then you went to the Court of Appeal from Justice Holmes’ orders?

MR DOUGLAS:   The answer is yes, Justice Kirby.

KIRBY J:   So hence the two Court of Appeal decisions.

MR DOUGLAS:   That is correct.  There was no appeal from the first Court of Appeal decision.

GUMMOW J:   So implicit in that is the notion that 43 permits more than one application, is it?

MR DOUGLAS:   Yes.  That was not the subject of contest ultimately in the Court of Appeal on the second occasion.  What occurred was, Justice Gummow, that one of the grounds of appeal by the State against Justice Holmes’ decision was that it did not allow of a second application, but that argument was abandoned during the course of the hearing of the appeal.

GUMMOW J:   It is not renewed here, is it?

MR DOUGLAS:   No, it is not, that is correct.  Your Honours, the Court of Appeal here – when I speak of the court now I am speaking of the second decision – found, and the parties at the Bar table accept, that section 43 has work to do, not just in the context of appending expiry of a primary limitation, it being a three‑year limitation in Queensland, but also in the context of the expiry of the one‑year period for the purpose of the extension.  That is not a matter of contest before the Court.  The contest between the parties, the subject of ‑ ‑ ‑

GUMMOW J:   This three-year period seems to go back, as far as we can find, to the statute, the Law Reform (Limitation of Actions) Act 1956, section 5.

MR DOUGLAS:   That was a matter of exchange this morning, except by reference to that particular statute.  We have not researched that over the luncheon adjournment, but certainly at the time the Personal Injuries Proceedings Act was introduced it had long been a three‑year limitation period.

GUMMOW J:   Yes.  What about the time when these causes of action arose?

MR DOUGLAS:   Well, at the time these causes of action arose it was a three‑year limitation period as well.

GUMMOW J:   That would seem to follow.

MR DOUGLAS:   Yes.  The period, the subject of the alleged abuse leading to the causes of action the appellants seek to prosecute relates to periods between 1980 and 1990 broadly speaking, well within the bounds ‑ ‑ ‑

KIRBY J:   They were infants at the time, were they not?

MR DOUGLAS:   They were, they were foster children.

KIRBY J:   So is there any provision to stay the operation of the Limitation Act of Queensland on that ground?

MR DOUGLAS:   There would be, but Justice Kirby, they are well past their majority.  There is no question that the period of limitation did not accrue until they gained their majority at age 18 years, but these persons are all now well into their 20s.

KIRBY J:   Did you secure special leave to come to this court from what has been called the first Court of Appeal decision or the second, or both?

MR DOUGLAS:   The second, Justice Kirby.

KIRBY J:   But does that not then leave the first one standing as a final decision, unchallenged in the judicature?

MR DOUGLAS:   Yes, it does leave it unchallenged.  Special leave was not sought from that decision.  We would submit that does not inhibit ‑ ‑ ‑

KIRBY J:   You sought special leave and that was declined?

MR DOUGLAS:   No, we did not seek special leave in respect of the first appeal decision, only in respect of the second.

HAYNE J:   The hypothesis for the litigation, apparently, is that you can make repeated applications.

MR DOUGLAS:   Yes.  Again, Justice Hayne, that is not a matter, I say it, no higher than this.  That is not a matter of contest between the parties ‑ ‑ ‑

HAYNE J:   Not put in issue.  I understand that.

MR DOUGLAS:   It is not in issue between the parties in the adversarial sense.

GUMMOW J:   All right.

MR DOUGLAS:   Our submission really ultimately is a brief one, as we indicated at the special leave application.  We would submit that what the majority in the Court of Appeal have done is embroider an additional condition or requirement upon the section 43 leave.

GUMMOW J:   What is that?

MR DOUGLAS:   It is a requirement as expressed by the Chief Justice that what must be imposed is a reasonably arguable case for extension.  It is to be found in the judgment of the Chief Justice at page 160 of the record at about 17:

the expiration of the 12 months period under s 31(2) was imminent and the applicant could demonstrate a reasonably arguable case for the granting of an extension.

HAYNE J:   On what basis was it apparent that the State would take the defence of limitation?

MR DOUGLAS:   I think it is correct to say that it was apparent because the – I think there was an exchange.  I cannot point to it immediately but there has apparently never been any question that as between the parties at the Bar table the State was taking the limitation point.  It does not ever seem to be a matter of doubt.

GUMMOW J:   That would have been apparent from their conduct in the first proceedings?

MR DOUGLAS:   Indeed, that is so.  The mere opposition to the application would have been enough.  If the State had have been taking a contrary position, the easy position to adopt would have been to file an affidavit saying that the limitation point was not to be taken, as does sometimes occur at a State and Commonwealth level.  Your Honours, as appears from our outline, the test for which we contend, we would submit that it puts the test at its highest.

GUMMOW J:   I know barristers love talking about tests, but how does one fit it into the words of section 43?

MR DOUGLAS:   The majorities’ test?

GUMMOW J:   No, what you say.

MR DOUGLAS:   In our submission, it fits into the test this way.  We would submit it is an untrammelled discretion.  Urgent need, we would submit means only that, the claimant wishes to prosecute a claim which on the face of the evidence before the court could not be characterised as frivolous or futile.

GUMMOW J:   But there are two steps, are there not, like the section we looked at this morning?  Firstly, the court must be satisfied there is an urgent need.

MR DOUGLAS:   Yes.

GUMMOW J:   If it does decide that, it then has to consider whether it will exercise its power to give the leave, which may involve wider considerations.

MR DOUGLAS:   Your Honour, we would submit that the considerations are of the most general nature and at most they would be comprised or would intersect or conjunct with many of the matters that would otherwise be considered on an urgent need.  We would submit the basis of it is that if a claimant ‑ ‑ ‑

GUMMOW J:   Is that how the primary judge in your successful application approached it?

MR DOUGLAS:   Yes, and it is part of our submission, in our written submission, that the ‑ ‑ ‑

GUMMOW J:   Did she look at anything beyond the urgent need?

MR DOUGLAS:   No.  She looked at the affidavit material before her but she did not look at it beyond that.  You will find Justice Holmes’ judgment commencing at page 97, really commencing at page 98 proper.  She analysed Justice Douglas’ decision, which was the first decision which led to the first appeal, and then at page 103, commencing at about line 27, she says what your Honours see there, commencing with the words:

The situation now is considerably clearer.

Over the page, your Honours, at page 104, commencing at about line 44 or 45:

Here, but for the pre‑proceedings requirement –

Then over at page 106, commencing at about line 11:

If no order for an extension of time to 18 June were to be made ‑ ‑ ‑

KIRBY J:   There is somewhere here where she says something to the effect that of course you would not grant it in a completely futile circumstance.  Where is that passage?

MR DOUGLAS:   The President certainly addresses that ‑ ‑ ‑

KIRBY J:   I thought Justice Holmes said something just in a sentence that ‑ ‑ ‑

MR DOUGLAS:   Justice Kirby, I cannot recall that just at the moment.

KIRBY J:   I will have a look for it.

MR DOUGLAS:   My junior might tell me or prompt me in a moment.  Your Honours, taking up ‑ ‑ ‑

KIRBY J:   That would be right, would it not, in an interlocutory application you are not going to make an order which is completely manifestly futile?

MR DOUGLAS:   Correct.

KIRBY J:   Somewhere between that principle and, as it were, writing in what you say is the elaboration that the Court of Appeal majority have, you have an intermediate position?

MR DOUGLAS:   Take this example, involving an extension necessarily because that is the subject matter of these applications.  Say it was a case where a person had suffered an accident 10 years beforehand and they had been told five years before the application that they would never work again and they had never worked, and they sought leave under section 43, and those facts are sworn to, there is no palpable circumstance existing in that material by which it could be sensibly suggested that there was a material fact of decisive character relating to the extent of the disability.  That is not an extreme case.  That is just an example of a circumstance whereby the section 43 leave may be truly said to be of no utility whatsoever, because there is, in effect, no prospect of obtaining an extension of time.  We submit that is not the circumstance which obtains here.

Can I remain with that question that you raise with me, Justice Gummow?  The way this legislation has been interpreted by the Court of Appeal to date, apart from this decision, is inconsistent with the test that was propounded by the majority ‑ ‑ ‑

GUMMOW J:   There is this case of Gillam, is there not?

MR DOUGLAS:   Yes.  Could we take your Honours to that very briefly?

HAYNE J:   Just before you do, and following up from what Justice Kirby was asking you about, some necessarily limited assistance is derived from considerations of the kind looked at by Justice Dixon in Dey v Victorian Railways Commissioners, normally referred to in connection with summary determination of proceedings ‑ ‑ ‑

MR DOUGLAS:   Yes, it is really the seminal case on ‑ ‑ ‑

HAYNE J:   78 CLR, particularly at page 92 where his Honour says:

It is in my opinion of more importance to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate –

Now, you cannot make the translation immediately because we are in a different field of discourse, but the underlying idea is one which perhaps informs the answer you make.

MR DOUGLAS:   Yes, and Justice Hayne, it really is a matter, too, of looking to see in a particular case what is the quality of evidence that is before the Court.  The submission that we make is that the quality does not have to be necessarily so high.  It really is the metaphorical hurdle that we stipulated earlier.  Your Honours, my learned junior, Mr Mullins, has given me a reference responding to Justice Kirby’s point before.  At page 103 of the record, commencing at about line 41:

There is, therefore, an element of urgency which, clearly, was lacking before Justice Douglas at the time of the application before him.  On any view, there was then at least six months to run before a likely extension period expired.

KIRBY J:   It might have been what I was thinking of.  Her Honour says that:

The bringing of this application does not, therefore, amount to an abuse of process.

MR DOUGLAS:   Yes.  That is expressed somewhat differently or slightly differently from what you said, but the notion nonetheless.

HAYNE J:   I took you away from Gillam.

MR DOUGLAS: Yes. That is all right. Your Honours, if I can take you to that. The reference to it in our list has the unreported reference, but in fact it is reported at [2004] 2 Qd R 251. The full name of the case is Gillam v The State of Queensland, irrespective of whether your Honours have the reported or unreported version.  The relevant portion we wish to take the Court to is at paragraph [22] in the judgment of Justice Jerrard under a heading “Submissions made on appeal”.  Your Honours will see about halfway down that paragraph a record by Justice Jerrard of the submission made to him, I emphasise in the context of a case where the primary limitation had not yet expired but was about to:

The appellant submitted that otherwise an order under s 43 would be futile, and the court simply should not entertain such an application.  It would be futile because the stay imposed by s 43 could never be removed, so the submission ran, in the absence of a reasonable excuse for delay in provision of that notice.

Can I pause there to say that this legislation otherwise provides for even in the conventional case, or indeed in any case, for an excuse to be given for a delay in giving the pre‑proceeding notice, and essentially that is nine months after the date of injury, albeit the Court can relieve against that in another provision, section 18.

Dealing with that submission, Justice Jerrard then says, about halfway down the next paragraph, which is at line 35 in the reported version - he rejects that submission, and he says:

Further, s 43(3) contemplates the making of orders granting leave to claimants to commence proceedings when that may ultimately prove a futile step, since the section envisages leave being given in proceedings which are then stayed and ultimately discontinued.

GUMMOW J:   Where do we see that?

MR DOUGLAS:   It is on page ‑ ‑ ‑

GUMMOW J:   No, no, the section.

MR DOUGLAS:   Paragraph [23].

GUMMOW J:   The section.  Subsequent stay.

MR DOUGLAS:   Section 43 - your Honour will see a provision for stay in section 43(3) of the Act, which is again attached to the submissions.

GUMMOW J:   Yes.

MR DOUGLAS:   Your Honours, this is precisely what her Honour did by way of ‑ ‑ ‑

GUMMOW J:   And that refers one back to section 9, does it not?

MR DOUGLAS:   Yes it does.  I was about to advise your Honours that what occurred in this case was that her Honour Justice Holmes in the second application granted leave.  It was stayed, she stayed it.  Also she imposed a condition that the application for extension be brought within a particular period of time.  Those are the sorts of conditions that are expressly provided for by section 43 and, we would submit, also colour the approach which the court ought adopt when interpreting what hurdle is to be mounted in garnering section 43(1) leave, that is, the legislature has provided for a stay.

The legislature has not, by dint of leave being granted, dispensed with the need for the applicant for leave otherwise complying with the steps under the Act, including giving an explanation for delay per se, and otherwise the court can impose conditions germane to this case requiring the applicant to do certain things, here make an application for an extension within a particular period of time.

GUMMOW J:   I took you away from line 38 of Gillam on 258.

MR DOUGLAS:   Thank you.  We will just complete the reference to the case.  In the same judgment at paragraph [25] first sentence, his Honour says:

Section 43 contains no requirement that the court look for an excuse, reasonable or not, for non-compliance –

and in the judgment of Justice ‑ ‑ ‑

GUMMOW J:   Sorry, whereabouts are you reading from?

MR DOUGLAS:   Paragraph [25] which is on page 259 of the report, about line 9.

GUMMOW J:   Thank you.

MR DOUGLAS:   Your Honours, in the judgment of Justice Dutney for the sake of completeness, at page 261 of the report, but otherwise at paragraph [37] of the judgment:

There is nothing in s 43 of the PIPA itself which either expressly or impliedly limits the exercise of discretion by the court before which the application is brought.

We adopt that and submit that that does in fact correctly predicate the general discretion which is reposed in the court in granting applications, or dealing with applications, of this type.

KIRBY J:   Could I ask you a question.  Why do you rush off to Justice Holmes?  I mean, I realise your given reason is that the time of the year from the Courier-Mail publication was about to expire, but would not the Court of Appeal on appeal from Justice Douglas have made whatever orders it did nunc pro tunc, in other words, backdating them to the time when Justice Douglas’ orders were made?

MR DOUGLAS:   Your Honour, as far as I know those sorts of matters were not considered at the time.  What was considered – I did not appear upon the application – was the fact that that one-year period was about to expire.  The Court of Appeal had not handed down its decision and the applicants and their lawyers were anxious to get to court to ‑ ‑ ‑

GUMMOW J:   You could not be sure that they would get the nunc pro tunc, I suppose.

MR DOUGLAS:   That is right.  I think it is fair to say that the issue raised by you, Justice Kirby, was not considered at the time but certainly in these matters is a superior value.

GUMMOW J:   How did the Chief Justice deal with Gillam in the judgment under appeal?

MR DOUGLAS:   He refers to Gillam.

GUMMOW J:   It is referred to just before the passage on page 160, paragraph [21] of the judgment.

MR DOUGLAS:   The way he utilised Gillam was merely to point out, as he did, the fact that that decision existed and it bespoke the unfettered character of the section 43 discretion.  His Honour really did not descend to any detailed consideration.

GUMMOW J:   There is no such thing as an unfettered discretion.

MR DOUGLAS:   No, there is not.

GUMMOW J:   It is a discretion regulated by the subject, scope and purpose of the legislation.

MR DOUGLAS:   We adopt that.  We would submit that the only condition here, apart from the broad circumstances of the case which the judge was entitled to take into account, was that of the so-called urgent need.  We would submit that, for the reasons set forth in our outline, that urgent need existed to preserve in effect the status quo, otherwise not to gain it, putting it bluntly and by way of corollary, would have rendered futile any subsequent endeavours to obtain an extension of time.  It would be a pointless exercise.

GUMMOW J:   When you say it would preserve the status quo, that may be right.

MR DOUGLAS:   It would be disingenuous to suggest otherwise.

GUMMOW J:   Notions of balance of convenience then get into the picture.

MR DOUGLAS:   Yes, they do, but it would be disingenuous to suggest otherwise.  It is to preserve the status quo because on the facts as we presented them to the court, that one-year period was about to lapse.

GUMMOW J:   But having got the statutory injunction, if you like, it can be attended by various conditions under subsections (2) and (3).

MR DOUGLAS:   And it was in this particular instance.  That really leads conveniently to the second part of our argument.  We do not want to labour the point, your Honours, although our learned friends seek to.  What is put against us is that even in the event that it be accepted that the lower threshold which we posit be accepted by the Court, it is submitted that the appellants in this case have failed to satisfy it.  We submit two things about that.  The first is this, that it is not suggested by our learned friends and cannot be that her Honour did not consider all the evidence before her and all the relevant considerations and once that ‑ ‑ ‑

GUMMOW J:   That brings us to another aspect of your appeal, I suppose. 

MR DOUGLAS:   It does.

GUMMOW J:   On what footing was her exercise of the power upset?  On what footing did the Court of Appeal upset the primary judge’s decision in your favour?

MR DOUGLAS:   Your Honour, it would appear to us and, we would submit, the court’s ‑ ‑ ‑

GUMMOW J:   It would have to be a House v The King type exercise, would it not?

MR DOUGLAS:   It has to be, it is implicit and it is in our submissions.  It would appear to be this, as we read it.

GUMMOW J:   One way of doing it would be to say she misconstrued the section but that is not said, is it?

MR DOUGLAS:   It is not and, to be fair to the Chief Justice, the passage that we took you to earlier at page 160 of the transcript, commencing at about line 17, “I consider the requisite ‘urgency’” et cetera, what that seems to carry with it is an implicit finding – I am merely attempting to examine his Honour’s decision – that her Honour has misled herself under the House v The King principles.  That is the highest we can put it because his Honour does not identify that her Honour’s discretion has miscarried.  Having stated the matter at the highest for our opponents ‑ ‑ ‑

GUMMOW J:   They then had to re-exercise it.  Did they do that?  If she has miscarried in her exercise ‑ ‑ ‑

MR DOUGLAS:   They do have to re-exercise it.

GUMMOW J:   They have to send it back or do it again themselves.  What path was taken?

HAYNE J:   Is not the path apparent from paragraph 24 of the Chief Justice’s reasons?  There may be some debate about what precisely that means or how it is based but that is the essential ground of the decision, is it not?

MR DOUGLAS:   Yes. 

HEYDON J:   That is a purely factual ground, that is ground 2.3 which is set out in paragraph 13 on page 158 of the appeal book:

The finding of the learned judge at first instance that there was an urgent need for the applicant to start a proceeding was against the evidence and the weight of the evidence.

So she was overturned on a finding of fact, apparently.

MR DOUGLAS:   It is, with respect to the Chief Justice, dealt with rather infelicitously.  We would submit that in any event, if his Honour’s construction of section 43 is erroneous then, if the Court of Appeal’s decision is then set aside, there is no reason why the Court would do other than reinstate the primary judge’s decision. 

The submission that we were making a moment ago is that we would submit that her Honour factually did consider all the material before her on the face of her judgment.  Whilst not an ex tempore judgment - it was given I think the day after the decision was heard and she purports, we would submit, rather exhaustively to deal with all the relevant considerations.  She exercised the discretion in favour of each of the appellants, and, we would submit that no proper ground in those circumstances, if we are correct in our primary submission as to construction, exists to disturb her reasoning process, that is the discretion she exercised.

There is a second point to that portion of our appeal and that is this, your Honours.  The attack that is made by our learned friends upon the satisfaction even of the lower test predicated by the primary judge and Justice McMurdo is said to be founded in the inadequacy of the affidavit material which was before the court, sworn to by Mr Harrison.  The relevant paragraphs of Mr Harrison’s affidavit, your Honours, can be conveniently found commencing at page 156 of the record, towards the foot of the page, paragraphs 25, 26 and 27 of that affidavit.

Our learned friend’s submissions concentrate very much on paragraph 27.  We would submit to your Honours that paragraph 25 really is the primary paragraph and that deposes to the fact that it was not until the reading of the Courier‑Mail article that, in the case of each appellant but this particular appellant as well, he did not know that he could do anything about it but moreover, that the department would be at fault.

We would submit this is the sort of case which is exemplified by the decision of Do Carmo v Ford Excavations 154 CLR 234 which was canvassed in the last appeal. Your Honours recall in that particular case a material fact of decisive character was identified as including, among other things, the fact that a breach of duty had occurred. In essence, the case which the appellants seek to prosecute by way of hearing in this case, initially by way of extension and ultimately by hearing, is that these persons, when children in foster care, were abused in circumstances whereby there was a breach of tortious duty owed to them by the Department, by the State of Queensland by a failure to properly attend to their needs.

We accepted that is a matter that had to be finally investigated.  That was always the basis upon which the applications were made.  We put affidavit material before the Court, among other places, through the affidavit of Ms Paget, whose affidavit commences at page 37 of the record, to the effect that we sought from the State by FOI application and other means certain documents and we had not received them. 

Now, in our respectful submission, in those circumstances, for our learned friends to say that is not good enough, you are never going to get an extension in any event on those facts and it was not enough merely to depose what Mr Harrison did depose, we would submit, not only was it a matter rejected by the primary judge but, moreover, there is no reason not to accept that as a proper basis for an urgent application. 

We would rely upon the analysis which is to be found in the judgment of the President, Justice McMurdo, in her dissenting judgment at page 164 of the record, commencing at about line 43 with the words “The unusual circumstances”, going over to the next page, and we would submit that that passage properly describes the nature of the evidence which was before the court.

HAYNE J:   Now, if the Chief Justice is right to say that the urgency was to be demonstrated only if the applicant could demonstrate a reasonably arguable case for extension, does it follow that an applicant under section 43 ought ordinarily demonstrate a reasonably arguable case generally?

MR DOUGLAS:   Yes, and really in a sense that almost underscores our argument because it entails a need for an applicant to go into a significant amount of detail in order to make out such a case.  The sort of detail that one would expect approaching an application for extension but not an application provided for in what we would describe as a pre‑proceeding statute where there is an urgent need to commence proceedings.

HAYNE J:   That puts a large task before someone seeking urgent relief.

MR DOUGLAS:   That is correct.  Not just a large task for the judge, we would submit, but a large task ‑ ‑ ‑

HAYNE J:   No, before the party seeking urgent relief.

MR DOUGLAS:   Yes.

KIRBY J:   That was the point made by Justice Gummow in the special leave application that inherent in the nature of this process is the urgency of the relief that is being obtained and if you put too high a barrier you defeat the purpose of the process, assuming your construction of the Act is correct.

MR DOUGLAS:   Yes.  And, Justice Gummow, you taxed me with it in the early portion of this appeal as well by making analogy to the position of an interim injunction or an interlocutory injunction.  This is an urgent injunction.  It is really in the character of an interim injunction, something you might race off to get in court on a Friday afternoon having received instructions at lunchtime.  Your Honour, if I was to go further I would really be rehearsing what is in my written outline.

GUMMOW J:   Yes, thank you.  Yes, Mr Grant‑Taylor.

MR GRANT‑TAYLOR:   Your Honours, lest it is not made clear from the written submissions may we say at the outset that the only basis upon which the State responds to resist these appeals is on the basis of seeking to sustain what his Honour the Chief Justice held in his judgment that the requisite urgency had not been shown.

KIRBY J:   But the State is a model litigant.  The State is a constitutional entity.

MR GRANT‑TAYLOR:   Quite so.

KIRBY J:   I have often sat here – or not often – but I have sat here and seen the Directors of Public Prosecutions of the States come along and say, “We cannot sustain the decisions of the Court of Criminal Appeal of our State”.  Now, what is the difference?

MR GRANT‑TAYLOR:   The difference is that this is a judgment which can be sustained.  That is the judgment of the Court of Appeal and that conclusion is sourced to the evidence which was adduced at first instance before Justice Holmes.

KIRBY J:   The barrier seems to have been put a bit high, though.  I could understand a view you cannot get relief of this kind where the application is an abuse of process, all right.  You cannot get relief of this kind where it appears reasonably clear that the application is bound, ultimately, to fail and it would be futile, all right.  But, requiring what the Chief Justice has said seems to be pitching it too high and liable to defeat the process.

MR GRANT‑TAYLOR:   Your Honour posited the proposition that if futility enters into the argument that is, that if granting section 43 leave will serve no purpose because section 31 could never be surmounted, then that would be an example or an instance in which section 43 leave ought to be refused, we say.

GUMMOW J:   Having spent the morning going through the thicket of section 31, I find it very hard to say what would or would nor clearly result from any application of that section to any particular.

MR GRANT‑TAYLOR:   Your Honour, we all had an education from this morning’s performance.  We were grateful to be here.  Your Honours, may we develop the argument in this fashion?

KIRBY J:   We aim to please here.

MR GRANT‑TAYLOR:   Your Honours, may we develop the argument in this fashion?

GUMMOW J:   But is the high point of your written outline – I may be wrong about this – what you say in paragraph 16?

MR GRANT‑TAYLOR:   Yes.  In short, the threshold of demonstrating urgency was never met.  The court never reached the position of determining whether jurisdiction to exercise the discretion ought to occur and we say immediately that if this Court is satisfied that the Court of Appeal was incorrect to conclude that no urgency was shown the State does not point to any feature which is at large which would count against the exercise of discretion in the appellant’s favour.

GUMMOW J:   Yes, I was wondering about that.

MR GRANT‑TAYLOR:   There was no issue on the exercise of discretion.  The argument is narrowly confined to the issue of urgency.  Your Honours, in support of that may we take you as briefly as possible to what we say are the pivotal passages of Mr Harrison’s affidavit.  They are found at page 43 of the record.  In our written submissions we have highlighted reference to paragraphs 25, 26 and 27.  Particularly in paragraph 27 Mr Harrison ‑ ‑ ‑

HAYNE J:   Before you come to that, out of 25 we get, do we not, (1) the applicant did not know that the department may be at fault, (2) he realised he may have a claim, (3) he should investigate?

MR GRANT‑TAYLOR:   Your Honour, we are cognizant of what was said in paragraph 25 and we did intend to address it.  I am happy to address it now?

HAYNE J:   No, you take – do you want to start at 27?

MR GRANT‑TAYLOR:   I did.  At paragraph 27, Mr Harrison purports to identify four facts which he says may be material, and they are (a) that the relevant abuse was more widespread than previously believed by the appellant; (b) that he, the appellant, was not the only victim of abuse perpetrated by foster families; (c) that the State knew or suspected of the abuse at the time it was occurring and (d) “that a criminal investigation had taken place”.

Now, your Honours, may we ask that you imagine the situation in which instead of swearing to paragraphs 25, 26 and 27, all that Mr Harrison did on information and belief was swear that he had been informed by the appellant of no more than that he, the appellant, had read on 18 June 2003, the article that was published on that day.  The observation that we make that ‑ ‑ ‑

KIRBY J:   Now, you are not taking any point on the hearsay character of the affidavit material?

MR GRANT‑TAYLOR:   No, your Honour.  That is something we make clear in the special leave application.  We are not seeking to say that the quality of the evidence is impoverished because it was sworn…..  Your Honours, returning to the example, if it be the case that nothing more was sworn to by Mr Harrison and that he had been informed by the appellant that he had read the article on 18 June 2003, published on 18 June 2003, the application could not succeed, that is because a reader of the affidavit would be left in no better a position than being told that the applicant had read the article and presumably had become cognizant of its contents.

A reader of the affidavit would have no way of knowing if that was all that was sworn to whether or not the appellant many years prior to 18 June 2003 may have noted those matters.  The application would necessarily fail because the requisite urgency could not be demonstrated because it could not be shown that a pending expiry of the limitation period could be thwarted by granting section 43 leave because one would not know when it was that the 12‑month period commenced.  What we say is that what was in fact sworn to in paragraphs 25, 26 and 27 simply takes the matter no further.

HAYNE J:   Does it not add the element, “I did not know before”?

MR GRANT‑TAYLOR:    Your Honours, with respect, it does not, and again, may we return to paragraph 25 in a moment and deal firstly with paragraph 27?  In paragraph 27 Mr Harrison says:

The Applicant may have therefore only become aware on 18 June 2003 of the following –

Your Honours, that language is critical to a later analysis of the intent of what is being sworn to in paragraph 27.  What Mr Harrison is saying there is not that the applicant may only have become aware that a, b, c and d were material facts.  What Mr Harrison is saying is that the applicant, having read the article on 18 June 2003, still did not know as at 18 June 2003 whether or not prior to 18 June 2003 he knew of these matters.  He does not know what he did not know.  The position does not alter 12 months later when the affidavit is sworn to.  Mr Harrison says, “I am informed by the appellant”, and he still does not know what he did or did not know upon reading the article.  He still does not know whether his state of knowledge was enlarged as a result of what came to his attention in consequence of reading the Courier‑Mail article.

HAYNE J:   These questions of knowledge would lie at the root of any application for extension of time, would they not?

MR GRANT-TAYLOR:   Quite so.  They would be critical, your Honour, to ‑ ‑ ‑

HAYNE J:   Why are they not better fought out in the context of the field in which they are most relevant, namely the application for extension, rather than at the logically prior point of 43 extension?

MR GRANT-TAYLOR:   Your Honour, they would be much better fought out at that juncture.  However, so to say ignores, with respect, what the applicant had to prove at the section 43 hurdle, and that was urgency.  We have already attempted to posit an example of material which would not satisfy urgency, clearly would not satisfy urgency.  What we say simply is that this material goes no further.

HAYNE J:   If the solicitor had said, “I act for . . . He/she wishes to bring a claim.  The State, as I understand it, may wish to argue that the publicity given in the Courier‑Mail at article of date X represents a watershed in knowledge.  For that reason, I want to start an action before the 12‑month period”, would that suffice?

MR GRANT-TAYLOR:   If he had said that, “Prior to 18 June 2003 I didn’t know of these matters”, yes, it would suffice, but that is not what is sworn to.  That is not what is sworn to.  It is there, with respect, that the ‑ ‑ ‑

KIRBY J:   If one looks at the rather horrendous list of things that are said to have happened to one of the applicants and if you then consider the fact of a person who was forced to hide in storm drains to protect himself from the circumstances, such a person is really very disempowered and the added ingredient of seeing something in a newspaper might be that it adds that ingredient of empowerment, that he is not alone, that there are others who will help and support and lead to some remedies if the law provides any remedies.  Now, is that not the added ingredient, empowerment?

MR GRANT-TAYLOR:   Your Honour, empowerment cannot be divorced from knowledge or, as the section describes it, means of knowledge, merely ‑ ‑ ‑

KIRBY J:   It is what gives the knowledge its active component.

MR GRANT-TAYLOR:   Your Honour, that, with respect, would be akin to saying that somebody perfectly well aware of all of the material facts necessary to prosecute a claim in respect of abuse perpetrated many years ago, if he knows all of those material facts prior to 18 June 2003 and he reads the Courier‑Mail article and he has them all thrust back to the forefront of his thinking under circumstances in which he is led on a chain of reasoning which says something like, “Well, the Courier‑Mail thought it was good enough to have a whinge about these things, maybe I should have a whinge about them too”, that would not satisfy the test.

He may well be empowered by what he read in the Courier‑Mail.  That would not alter, with respect, the fact that, on the example that we posit, he already had at his fingertips the means of knowledge to identify all of the relevant material facts.  Therein lies the difference.

Your Honours, we say in conclusion that regrettably and unfortunately this was a case in which deficient affidavit material at first instance must have led to the failure, or ought to have led to the failure, of the applications before her Honour Justice Holmes and justifiably led to her Honour’s decision being upset at an intermediate level.  Your Honours, we do not believe we can take it any further.

GUMMOW J:   Thank you.  Anything in reply, Mr Douglas?

KIRBY J:   May I just ask you before you resume your seat, Mr Grant‑Taylor, you do not raise any objection on the fact that the only process before the Court is from the Court of Appeal on appeal from Justice Holmes and not on the Court of Appeal on appeal from Justice Douglas?

MR GRANT-TAYLOR:   We take no point about that.

KIRBY J:   Thank you.

MR DOUGLAS:   Your Honours, the only point we raise by way of reply is there is obviously a fundamental difference between the parties as to what is deposed to by paragraph 25 of Mr Harrison’s affidavit.  We submit that it does positively swear to facts as to a distinct epiphany of knowledge in the case of each appellant come 18 June 2003.  Those are our submissions.

GUMMOW J:   Thank you, Mr Douglas.  The Court will consider its decision in these appeals.  We will adjourn until 10.00 am tomorrow.

AT 3.15 PM THE MATTERS WERE ADJOURNED