Davison v Queensland

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.