Davison v Queensland

Case [2006] HCA 21

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

Matter No B62/2005

SARAH DAVISON   APPELLANT

AND

STATE OF QUEENSLAND  RESPONDENT

Matter No B63/2005

VANESSA FAYNE JEAN GIBSON   APPELLANT

AND

STATE OF QUEENSLAND  RESPONDENT

Matter No B64/2005

STEPHEN ANDREW GIRARD   APPELLANT

AND

STATE OF QUEENSLAND  RESPONDENT

Matter No B65/2005

JASON THOMAS ORR   APPELLANT

AND

STATE OF QUEENSLAND  RESPONDENT

Matter No B66/2005

NATASHA YARRIE    APPELLANT

AND

STATE OF QUEENSLAND  RESPONDENT

Matter No B67/2005

ALEXANDRA ORR   APPELLANT

AND

STATE OF QUEENSLAND  RESPONDENT

Davison v State of Queensland, Gibson v State of Queensland,
Girard v State of Queensland, Orr v State of Queensland,
Yarrie v State of Queensland, Orr v State of Queensland
[2006] HCA 21
17 May 2006
B62/2005, B63/2005, B64/2005, B65/2005, B66/2005, & B67/2005

ORDER

In each matter:

1.        Appeal allowed with costs.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 3 December 2004 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of Queensland

Representation:

R J Douglas SC with G R Mullins and M Horvath for the appellants (instructed by Nicol Robinson Halletts)

M Grant-Taylor SC with K Philipson for the respondents instructed by Crown Solicitor for State of Queensland)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Davison v State of Queensland

Limitation of actions – Personal injury – Personal Injuries Proceedings Act 2002 (Q) – Limitation of Actions Act 1974 (Q) – Appellants alleged serious physical and mental abuse suffered while in foster care under the supervision and care of the respondent – Application for extension of limitation period – Whether an applicant for leave to commence proceedings under s 43 of the Personal Injuries Proceedings Act 2002 (Q) must demonstrate a "reasonably arguable case for the granting of an extension" of time under s 31(2) of the Limitation of Actions Act 1974 (Q) – Whether evidence relied on by appellants established a prima facie case for extension of time under s 31(2).

Statutory interpretation – Remedial legislation – Purposive approach – Provision for urgent interim relief – Personal Injuries Proceedings Act 2002 (Q), s 43.

Limitation of Actions Act 1974 (Q), ss 30(1), 31(2).
Personal Injuries Proceedings Act 2002 (Q), s 43.

  1. GUMMOW, HAYNE, HEYDON AND CRENNAN JJ.   Each appellant[1] wished to commence an action in tort in relation to abuse allegedly suffered as a child while in foster care and while under the supervision and care of the respondent, the State of Queensland. In relation to each, the limitation period expired. Each wished to obtain an order extending the limitation period pursuant to s 31(2) of the Limitation of Actions Act 1974 (Q), which provides:

    [1]Sarah Davison, Vanessa Fayne Jean Gibson, Stephen Girard, Jason Thomas Orr, Natasha Yarrie and Alexandra Jane Orr.

    "(2)Where on application to a court by a person claiming to have a right of action…

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AGLC
Davison v Queensland [2006] HCA 21
Case
[2006] HCA 21
Decision Date

CaseChat Overview and Summary

The appellants, who alleged serious physical and mental abuse while in foster care under the supervision of the respondent, sought an extension of the limitation period to commence proceedings. The case involved appeals to the High Court of Australia following decisions by the Court of Appeal of the Supreme Court of Queensland, which had overturned orders made by a primary judge. The central dispute concerned the interpretation and application of section 43 of the *Personal Injuries Proceedings Act 2002* (Qld) and section 31(2) of the *Limitation of Actions Act 1974* (Qld).

The High Court was required to determine whether an applicant seeking leave to commence proceedings under section 43 of the *Personal Injuries Proceedings Act 2002* must demonstrate a "reasonably arguable case for the granting of an extension" of time under section 31(2) of the *Limitation of Actions Act 1974*. A further issue was whether the evidence presented by the appellants established a prima facie case for such an extension, and whether the concept of "urgency" was a necessary precondition for the grant of leave under section 43.

The High Court allowed the appeals, finding that the Court of Appeal had applied an incorrect test by imposing a precondition that the appellants prove a "reasonably arguable case" for an extension of time. The Court held that this requirement was not a valid precondition for the exercise of the power under section 43, nor was it a factor that could be determinative of the discretion. The Court also found that the Court of Appeal had erred in its assessment of urgency, which was intrinsically linked to the imminent expiry of the one-year period for seeking an extension under section 31(2). The Court emphasised that section 43 is remedial legislation designed to avert harsh results arising from the preconditions for commencing proceedings, and that its purposive construction required a less stringent approach than that adopted by the majority of the Court of Appeal.

Consequently, the High Court allowed the appeals with costs, set aside the orders of the Court of Appeal, and ordered that the appeals to that Court be dismissed with costs. This effectively reinstated the primary judge's approach, allowing for a proper consideration of the extension of the limitation period at the appropriate time.

Orders

Orders of the court

In each matter:

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 3 December 2004 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

Background

Background to the litigation

The appellants have brought appeals to this Court against the allowing of the respondent's appeals to the Court of Appeal. The appellants' appeals should be allowed.Statutory background Before the Act came into force on 18 June 2002, with its requirement for various steps to be taken before proceedings could be commenced, a solicitor consulted by a client whose cause of action was subject to a limitation period which was about to expire, or which had expired and in respect of which the maximum period for extension under s 31(2) of the Limitation of Actions Act was about to expire, could commence proceedings by filing a claim and statement of claim. This would stop the limitation period running, and, if it had expired, would stop the one year period referred to in s 31(2) from running. If the defendant then chose to raise a limitation defence and apply for summary judgment, the plaintiff could make a cross-application for extension of the limitation period. The issues raised by s 31(2) could then be examined with appropriate care. The introduction of Ch 2, Pt 1 of the Act was an important and drastic inroad into the common law rights of citizens. The effect of the preconditions for commencing proceedings created by Ch 2, Pt 1, in cases where either the limitation period or the one year period in s 31(2) was about to expire, was to create the potential for harsh results where plaintiffs or their legal advisers had failed to realise the significance of the need for compliance with Ch 2, Pt 1. The function of s 43 is to avert these potentially harsh results, and this has relevance to the construction of s 43. Court of Appeal's reasoning One ground of appeal to the Court of Appeal against Holmes J's orders was that the application to her was an abuse of process, in view of the failure of the earlier application to Douglas J. However, this ground was abandoned in the Court of Appeal[7] and not renewed in this Court. [7]SG v State of Queensland [2004] QCA 461 at [15]. The respondent took no point in this Court about the failure of the appellants to challenge the dismissal by the Court of Appeal of appeals against Douglas J's refusal of their s 43 applications. In allowing the appeal, the Court of Appeal majority appeared to differ from the primary judge in two respects. First, the Court of Appeal majority said that leave could not be extended under s 43 in aid of an application to extend time under s 31(2) unless the claimant for leave could demonstrate that there was "a reasonably arguable case for the granting of an extension" under s 31(2)[8]. The Court of Appeal majority did not explicitly say whether the need to show a reasonably arguable case was a precondition to the existence of a power to grant leave under s 43 or a factor going to the discretionary exercise of that power. Their language suggests it is not the latter and hence it must be the former, because a factor which supposedly goes to discretion but which requires the discretion always to be exercised one way is not in truth a discretionary factor. Although the Court of Appeal majority did not explicitly say that the primary judge was wrong in law for not applying the test stated by the Court of Appeal, it is clear that Her Honour did not do so. Secondly, the Court of Appeal majority said that the appellants' application should have been refused on the ground that "urgency" was not established. In form, this appears to be a conclusion that the primary judge erred on a point of fact. It will be seen below, however, that in truth this contention that "urgency" was not established is a reformulation and repetition of the first ground.[8]SG v State of Queensland [2004] QCA 461 at [22].Issues on the appeal

Evidence

Evidence Before The Court

In so far as the Court of Appeal majority contended, independently of the question of construction just discussed, that there was not an urgent need to start the proceeding, the contention must fail if it is considered simply as a matter of dates: the expiration of the one year period stipulated in the tailpiece to s 31(2) was imminent. However, the majority saw the issue of whether there was urgency in a special sense – as being integrally linked with the issue of whether the s 31(2) application was reasonably arguable. This flows from the fact that the majority held that "urgency" was not established "essentially for the reasons expressed by" Douglas J[15]. His Honour said: "... I am not satisfied that there is an urgent need to start the proceeding under s 43. Either the proceeding is out of time, in which case there is no urgency shown, or it may become a proceeding which can be proceeded with successfully if leave is given under section 31 of the Limitation of Actions Act to extend the period of limitation, and I just cannot predict on the material available to me whether that will happen and whether the limitation period will be extended to any particular date. At most, all that the applicant ... can show is that he is investigating whether there is evidence to warrant an extension of the period of limitation."This Court does not have before it the material which Douglas J had before him. So far as his Honour viewed the question as whether he could predict that the limitation period would be extended, he appears to have adopted a construction of s 43 which is even stricter than that of the Court of Appeal majority, and which must be rejected for the same reasons.[15]SG v State of Queensland [2004] QCA 461 at [24].Satisfactoriness of appellants' affidavit evidence The primary argument advanced by the respondent was that the evidence relied on by the appellants revealed the absence of any case for an extension of time under s 31(2), and also showed that even if one of the tests referred to by McMurdo P (dissenting) were applied, namely, that leave should be refused if it would be "futile" to grant it, that test would be satisfied[16]. [16]This argument does not appear in the transcript of the respondent's submissions to Holmes J, or the respondent's written submissions to the Court of Appeal, and if it was advanced orally, it left no trace in the Court of Appeal's reasons. The evidence to which the respondent pointed was in a series of affidavits sworn by the solicitor for the appellants on 11 June 2004 and filed in each application for leave under s 43. Paragraph 25 stated:"25. I am advised by the Applicant and verily believe that although the Applicant knew he had been abused, he did not know he could do anything about it or that the Department be at fault. After reading the article in the Courier Mail on 18 June 2003 he realised he may have a claim against the Respondent and that he should investigate. Thereafter he contacted Bravehearts who put him in contact with Solicitors." The solicitor then exhibited the article. Paragraph 26 stated: "It appears the most likely date of material fact is 18 June 2003 however we cannot be certain without further enquiry and medical evidence." Paragraph 27 stated:"27. The Applicant may have therefore only have become aware on 18 June 2003 of the following:–a.that the abuse carried out by his foster family and other similar families was not only perpetrated against other children but was much more widespread than the applicant has believed at the time of the abuse or since;b.the applicant has always believed that he was the only victim of abuse perpetrated by a member(s) of Foster Families;c.notwithstanding any actual knowledge of the abuse by the respondent it is also submitted that as a result of the extensive abuse now uncovered by Queensland Police Service and CMC enquiry and which occurred over a long period of time that it is more likely to have been suspected or known about by the respondent at the time of the individual abuses and since; however, until 18 June 2003 the applicant was unaware of this;d.the applicant was not aware that a criminal investigation had taken place until on or after 18 June 2003." The respondent did not complain about the hearsay character of the evidence.

Decision

Reasons for decision

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ (dissent) KIRBY J (dissent)
In the events that occurred, Holmes J's timetable was interrupted by the appeal to the Court of Appeal[47]. The orders were vacated when the Court of Appeal, by majority, substituted its own orders dismissing each appellant's application under s 43. Had such orders not been made, the orders of Holmes J would have quickly brought the proceedings to a consideration of the extension of the limitation bar. But they would have done so in the proper place and at the proper time for decisions on such questions.[47]Joint reasons at [4]. Conclusion Once it is accepted that the majority of the Court of Appeal applied an incorrect test for the grant or refusal of leave under s 43 of the Personal Injuries Act, and imposed an inapplicable precondition that the appellants must prove a "reasonably arguable case for the granting of an extension" under s 31(2) of the Limitations Act, the judgment of the Court of Appeal cannot stand. The State filed no notice of contention, seeking to uphold the Court of Appeal's orders on a different basis. However, it did submit orally that, even if the test of McMurdo P, as to the prospective "futility" of the appellants' proceedings, were applied, the State was entitled to hold the orders of the Court of Appeal. In expressing the very clear case in which, where urgent need to start the proceeding is otherwise demonstrated, leave might be refused under s 43(1) by reference to futility, McMurdo P could not have meant a futility discovered only following a full exploration of the merits of the application for orders that the periods of limitation for the proposed actions be extended to show "a reasonably arguable case" for the extension. In some, rare, cases it will be plain, and easily demonstrable in a proceeding necessarily urgent and abbreviated, that the proceeding for which s 43(1) leave is sought is bound to fail. In such circumstances alone, the focus of attention in the court to which the application is made under s 43(1) of the Personal Injuries Act would shift from the urgent need to preserve the status quo to the pointlessness of providing any relief in the particular circumstances of the case. For the reasons expressed in her minority opinion in the Court of Appeal, McMurdo P was correct to conclude that the present was not a case where "futility" of this kind was made out[48]. In her Honour's view, there had been an arguable advance in the preparation of the appellants' cases for the orders they would seek for the extension of the respective limitation periods applicable to those cases. This was affirmed by the appellants' solicitor, notwithstanding the acknowledged difficulties of securing instructions from the appellants themselves. Moreover, in the opinion of McMurdo P, other material before Holmes J demonstrated the genuine attempts that had been made by the appellants to gather materials in order to advance their respective claims for limitation extensions. And, as McMurdo P put it[49]: "Most significantly, the material, unlike that before the judge in the first application, established urgency in that the date one year after, at least arguably, some material facts of a decisive character became known to the [appellants] through the [newspaper] article was about to expire. Without the order sought under s 43 [of the Personal Injuries Act] … even if the anticipated applications for an extension of the limitation period were successful, the [appellants] could never commence their claims against the [State]."[48][2004] QCA 461 at [37].[49][2004] QCA 461 at [37] (footnote omitted).

Ratio Decidendi

Legal Principle Established

Established by:

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