Davison & Ors v State of Queensland

[2005] HCATrans 456

[2005] HCATrans 456

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B81 of 2004

B e t w e e n -

SARAH DAVISON

Applicant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B82 of 2004

B e t w e e n -

VANESSA FAYNE GIBSON

Applicant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B83 of 2004

B e t w e e n -

STEVEN ANDREW GIRARD

Applicant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B84 of 2004

B e t w e e n -

ALEXANDRA ORR

Applicant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B85 of 2004

B e t w e e n -

JASON THOMAS ORR

Applicant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B86 of 2004

B e t w e e n -

NATASHA YARRIE

Applicant

and

STATE OF QUEENSLAND

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 11.13 AM

Copyright in the High Court of Australia

__________________

MR R.J. DOUGLAS, SC:   May it please the Court, I appear with MR G.R. MULLINS for each of the applicants.  (instructed by Quinn & Scattini)

MR M. GRANT-TAYLOR, SC:   May it please the Court, I appear with my learned friend, MS K. PHILIPSON, for the State as respondent to the applications.  (instructed by Crown Solicitor for the State of Queensland)

GUMMOW J:   Yes, Mr Douglas.

MR DOUGLAS:   Your Honours, the issue posited again by each of the applicants is whether a prospective personal injury claimant who requires a limitation extension in order to prosecute his or her claim and is confronted by the imminent lapse of the 12‑month extension when prescribed under the extension legislation is obliged to demonstrate a reasonably arguable case for extension in order to gain ‑ ‑ ‑

GUMMOW J:   What was being construed was section 43, was it not?

MR DOUGLAS:   It was.

GUMMOW J:   And the phrase “if the court is satisfied there is an urgent need”.

MR DOUGLAS:   Correct.

GUMMOW J:   And your complaint is that the ‑ ‑ ‑

HEYDON J:   It does not say “if the applicant can demonstrate a reasonably arguable case”.

MR DOUGLAS:   Our complaint is that the decision of the Court of Appeal embroiders section 43 with a requirement transcending the urgent circumstances.

GUMMOW J:   Yes.

MR DOUGLAS:   It is a very simple case from our perspective.  It is simple either way, your Honours.  Either the majority was correct in prescribing that a reasonably arguable case was required or that a lesser requirement such as that stipulated by Justice Holmes or Justice McMurdo in the Court of Appeal was apt.

GUMMOW J:   Well, there are two steps I suppose.  The first step under 43(1) is the satisfaction of the court of an “urgent need”.

MR DOUGLAS:   Correct.

GUMMOW J:   One way of looking at it is you say those words were embroidered and impermissibly embroidered by the Court of Appeal.

MR DOUGLAS:   Yes, that is our submission.

GUMMOW J:   Another way of looking at is that what the Court of Appeal did was, in effect, circumscribe the scope of the discretion which then arises with the words “may give leave” by displacing the exercise of discretion by the primary judge without really demonstrating any House v The King problem on her part.

MR DOUGLAS:   Your Honour is quite correct.  There really is two parts to the argument.  Certainly Justice Holmes, in what I would submit is a fairly careful judgment, considered those matters – considered the issue of what was posited on behalf of each applicant as a basis for the extension application which was contemplated ventilated through the affidavit of Mr Harrison but, in effect, set that aside.  So whether it be the issue that was posited by us at the outset or whether it be a House v The King attack for impugning of the discretion, on either basis it is submitted the Court of Appeal’s ultimate decision was in error. 

Your Honours, can I just mention a brief point which perhaps does not appear as clearly as it might in the argument.  We posit for the Court on the first point perhaps the hypothetical circumstance of an applicant in the position of one of these applicants, perhaps a different sort of injury, coming into a solicitor’s office, two or three days prior to the 12‑month extension period – the court can only grant an extension of 12 months from the material fact of decisive character has emanated from an earlier application – and that applicant wishes to protect his or position.  Prior to this pre‑proceeding legislation which now obtains in this State and also at least two Territories – I understand there might be a Bill in Victoria as well but I have not followed that through – one would just issue a writ for a

proceeding and time stops, so then you have your opportunity or platform to seek an extension successfully or otherwise.

It is said that this legislation departs from that to the extent, such an extent that, if one searches for analogies, it might well be akin to that which obtains under legislation such as the vexatious litigants legislation below whereby you have to go before a court and not only demonstrate perhaps, as in this case, urgency in the hypothetical circumstance we advance but also that you have to demonstrate that you have some case to prosecute. 

There is already a decision of this State which was not attacked in Gillam’s Case, which is referred to in the outlines and is in the bundle, in which the Court of Appeal enunciated or advocated that in the case of the ordinary claimant who is inside the three‑year limitation period but it is about to expire, there is no need to demonstrate any value or substance or moment in the case for which that claimant seeks to prosecute, leads the leave application.  We would submit why should it be any different, as long as some evidence is put before the court to the effect that there is a proposed application for extension.

Your Honours, it is a simple as that.  It is not a complicated application.  We would submit it is a relatively short point for disposition by this Court if leave is granted, but we would submit given the novelty of this type of legislation that it is apt and the fact that it is not just obtaining in Queensland, that it is apt for leave to be granted.  Those are our submissions.

GUMMOW J:   Thank you.  Yes, Mr Grant-Taylor.

MR GRANT-TAYLOR:    Your Honours, the argument commences with the proposition that it was with the applicants that an onus rested to satisfy the court that the requisite urgency had been exposed.  That did not occur and, accordingly, the applications were bound to fail.  Your Honours, the applications were doomed from their inception by the terms in which the ‑ ‑ ‑

GUMMOW J:   Justice Holmes did not think they were doomed.

MR GRANT-TAYLOR:   No, she did not, your Honour.  We, with respect, urge the conclusion that her Honour was incorrect in that conclusion.

GUMMOW J:   In her construction of the Act?

MR GRANT-TAYLOR:   No, in concluding that there was urgency as a matter of fact.  Your Honour, that emerges from what was sworn to on the part of the applicants’ solicitor, a common affidavit, in effect, if we can use that term, in all six applications.  We might say that it is curious that these were not matters which were sworn to by the applicants themselves.  However, that was not a point that was taken ‑ ‑ ‑

GUMMOW J:   What do you say the phrase “urgent need” means in 43(1)?

MR GRANT-TAYLOR:   Urgency has in that context the meaning that was given to it by the Court of Appeal ‑ ‑ ‑

GUMMOW J:   Which is?

MR GRANT-TAYLOR:   ‑ ‑ ‑ that is that unless something were done by the court, the applicant would lose a right.  For instance, he would lose a right by dint of the passage of the limitation period to commence a proceeding.  However, that in turn necessitates examining what exactly it is that the applicant needs to do to take that further step.  If it were to be shown that there was no basis at all upon which the applicant could then succeed in a section 31 application, there will be no purpose served in granting relief under section 43 and that we say is precisely ‑ ‑ ‑

GUMMOW J:   What is the other section?

MR GRANT-TAYLOR:   Of the Limitations of Actions Act, your Honour?

HEYDON J:   Section 31(2).

MR GRANT-TAYLOR:   Yes.

GUMMOW J:   Yes, 31(2).  Well, that is the question.

MR GRANT-TAYLOR:   Yes, it is a matter ‑ ‑ ‑

GUMMOW J:   It is the linkage between 31(2) of the Limitations of Actions Act 1974 (Qld) as supplying some content in working out the urgent need for 43(1).

MR GRANT-TAYLOR:   Quite so.  Your Honours, as we understand it, we are at one with our learned friends in making the observation that urgency could be shown if the applicants were to lose a right, that is, the right to commence proceedings, by dint of the passage of the limitation period, but we must repeat the observation that there must be some point shown in granting relief under section 43.  If a section 31(2) application was bound to fail, there would be no purpose served in doing as the applicants sought to have the court do.  Your Honours, that emerges from page 12 of the record book.

GUMMOW J:   But it is expected, is it not, that these applications will often, in the nature of things, and the section seems to contemplate it, come up in a rush towards the end of some period?

MR GRANT-TAYLOR:   Yes, quite so.

GUMMOW J:   You say there has to be this examination of ultimate situation.

MR GRANT-TAYLOR:   Well, save for the fact that in this particular case there was no rush at all. 

GUMMOW J:   No, we cannot construe the section.

MR GRANT-TAYLOR:   Yes, but, your Honours, we say that this case ‑ ‑ ‑

GUMMOW J:   By working out what would happen under 31(2).

MR GRANT-TAYLOR:   Quite so.  Your Honours, this case was unique because of the terms in which it was sworn on the applicants’ behalf by their solicitor as to the applicants’ state of knowledge or lack of state of knowledge and is, with respect ‑ ‑ ‑

GUMMOW J:   It was hearsay.  It was an interlocutory application.  True enough it was hearsay that it was urgent.

MR GRANT-TAYLOR:   We are not suggesting the evidence was not admissible.  We agreed that the evidence was admissible and it was not opposed at first instance and it could be utilised for what it was worth but, your Honours, at page 12 of the record, paragraphs 27, 28, 29, which are the pivotal portions of the solicitor’s affidavit dealing with the application of the applicant Davison, your Honours find these words in paragraph 29:

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

and, your Honours, there we interpolate that it was on the latter date that the Courier Mail published the article which was said to have come to the applicant’s attention at or about that time –

of the following: –

Now, it is clear that what the solicitor is attempting to do in subparagraphs a through to d of paragraph 29 of the affidavit is to identify potential material facts of a decisive character within the meaning of section 31(2).  But, your Honour, when one looks at what the solicitor has sworn to he is not saying what it would be necessary to say on the applicant’s behalf, that is that the applicant, for example, possessed a belief that as at 18 June 2003, or perhaps more importantly 11 June 2004, which was the date upon which the solicitor’s affidavit was sworn, what in fact is being sworn to was that the applicant did not know what she did not know. 

In other words, notwithstanding the publication of the Courier Mail article, the applicant still did not know whether she knew, for example, that she was the only person who had been subjected to abuse by the foster families, whereas the point that we make is this.  Against that background, when could it ever be expected that the applicant would know what she did not know?  The answer must be never.  The applicant would never be able to say when material facts or any of them were within her means of knowledge. 

All of the investigation in the world – and of course this was what was proposed on the applicant’s behalf would take place after section 43 relief was granted – all of the investigations in the world could never alter that state of affairs simply because the applicant’s state of knowledge is, tritely perhaps, something peculiarly within the knowledge of the applicant itself.  Exactly the same situation pertains in respect of all six applicants as all six of the solicitor’s supporting affidavits so far as this aspect of things is concerned are exactly the same.

Your Honours, analysed in this way, it does not matter which test one applies, that is, whether one applies the reasonably arguable case test which was propounded by the Chief Justice at paragraph [22], if we may briefly take your Honours to it.  Your Honours find it at page 346 of the application book.

GUMMOW J:   Yes.

MR GRANT-TAYLOR:   Or whether one prefers the realistic and not merely fanciful test which was preferred by the President and ‑ ‑ ‑

HEYDON J:   But the President thought that on that test there was no reason to interfere with Justice Holmes’ decision.

MR GRANT-TAYLOR:   Yes, that is so but, your Honour, we would say that it does not matter which test you apply, there was not a reasonably arguable case and nor was there a realistic chance of success because no investigation at all could overcome the deficiency which was demonstrated in the solicitor’s affidavit that the applicant did not know whether or not, for example, she had been the sole victim of abuse and notwithstanding the publication of the article, she still did not know whether she knew that she was the victim of abuse. 

Your Honour, it may be that there have been deficiencies in the way in which the affidavit was drafted but, in our respectful submission, it really cannot be interpreted in any other way and that is why we say it was perfectly apt, with respect, for the Chief Justice to describe the situation as one which was remaining within “the limbo of speculation”, and that phrase your Honours find at paragraph [23].  That is why we were moved to submit in our summary of argument that the basis upon which the matter was determined at first instance by the Court of Appeal turned upon issues, not of law, but of fact, which of course would in turn entitle the respondent to invoke the principle that this Court would not ordinarily concern itself with such a judgment of a court of intermediate appellate jurisdiction.

GUMMOW J:   This is a very important piece of legislation.

MR GRANT-TAYLOR:   Your Honours, it is a very important piece of legislation ‑ ‑ ‑

GUMMOW J:   Very drastic piece of legislation.

MR GRANT-TAYLOR:   It is likewise a drastic piece of legislation.

GUMMOW J:   A drastic inroad into people’s common law rights.

MR GRANT-TAYLOR:   We take no issue with what your Honour says at all.   It does interfere with common law rights.  However, it is inevitable, on the strength of what your Honour says, that one day this Court will find a legitimate vehicle to examine the legitimacy of what the Act sets out to achieve.  This, however, is not that vehicle.

GUMMOW J:   Well, Sir Garfield Barwick would have said the sooner the better.

MR GRANT-TAYLOR:   Nobody would argue with that, your Honour.  Otherwise, your Honour, we do not wish to say any more other than to reaffirm reliance upon what we had said in our summary of argument.

GUMMOW J:   Yes, Mr Douglas.  What do you want to say, if anything, about the interrelation between 43 of the Proceedings Act and 31 of the Limitation Act?

MR DOUGLAS:   They are quite independent of one another, your Honour.

GUMMOW J:   How would they work out inter se in the course of this litigation that you want to bring?

MR DOUGLAS:   I gave your Honour a hypothetical example.  Section 43 is freestanding.  In the circumstance where the ‑ ‑ ‑

GUMMOW J:   Having got what you got from Justice Holmes, what then would happen?

MR DOUGLAS:   What then would happen is pursuant to the conditions which her Honour imposed under subsection (2), there was a condition that there be an application made for an extension within a particular period of time and that was occluded by the fact that, of course, there was an appeal.  So quite legitimately the legislature has said if the court is to grant leave in these circumstances, it is still necessary, as Gillam’s Case demonstrates, for you the applicant to abide any conditions of a court to ensure there is no delay, which would be in this instance bringing an application, and also, as Gillam also establishes, the mere fact that section 43 leave has been granted in the circumstances of urgency does not preclude the need for the applicant to otherwise navigate the provisions of the Act which oblige him or her to provide an explanation for delay in any event, coupled with the fact that the proceeding which is commenced is stayed. 

It cannot go anywhere unless all the other provisions of the Act are complied with and, in this case, where the limitation period has expired, the application for extension is granted.  If it is not granted, the proceeding does not go anywhere.  But it protects the rights, as it did, before this sort of legislation had its inception.  Those are our submissions.

GUMMOW J:   Yes, thank you.

There will be a grant of leave in this matter.  It should be heard consecutively with the matters of Reeman and Stephenson, 2 and 3 in the list, which we granted leave earlier this morning. 

Counsel in all those matters should co-ordinate their efforts so that all three matters, although argued consecutively, can be disposed of in the one day.  So, in other words, Reeman and Stephenson would be bracketed together and consolidated, in the old‑fashioned sense of the term, and then they would be followed by this case.  But all will be heard within the one day.

The Court will now adjourn until Tuesday, 2 August at 10.15 am in Canberra.

AT 11.32 AM THE MATTERS WERE CONCLUDED