Donnolley v State of New South Wales

[2005] HCATrans 143

[2005] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S209 of 2004

B e t w e e n -

JASON DONNOLLEY

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 11.01 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR K.W. ANDREWS, for the applicant.  (instructed by W.H. Parsons & Associates)

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friend, MR P.D.A. MALLON, for the respondent.  (instructed by Crown Solicitor’s Office (New South Wales))

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours. Your Honours, may I take just a moment to get your Honours to the passage in the Court of Appeal’s judgment that is germane. This is a case, your Honours, where the primary judge had granted an extension of time within which to commence proceedings under section 151D(2) of the Workers Compensation Act (NSW).

The applicant’s case was that as a young probationary police constable he had been shot while on patrol, with the accompanying officer being shot dead.  He had remained in the police service until medically discharged in February 2003, and claimed a worsening psychiatric condition, exacerbated by the circumstances of his employment.

Now, your Honours, the primary judge’s statement of principle appears at page 3, paragraphs 16 to 18.  There was no error in the principle which he applied.  However, the Court of Appeal set aside the decision on the basis of error in dealing with the question of prejudice.  The primary judge dealt with that question at page 4, paragraphs 19 and 20, and your Honours will note her Honour said that there was “no evidence of any actual prejudice” which was adduced by the respondent.  No one said for example, X has died or has Alzheimer’s or no recollection or poor recollection or, as sometimes has happened in the police service, is now a guest of Her Majesty and unwilling to give evidence.  There was no evidence that any evidence was, if I could use the expression, missing.

Your Honours will also see that the judge noted that the respondent had been aware of the injury since it occurred, and that the respondent was required by law to keep all relevant records.  In the result, she took the view, page 6, paragraphs 29 and 30 ‑ ‑ ‑

GLEESON CJ:   Well, it is the concluding sentence at paragraph 20, is it not, that attracted the attention of the Court of Appeal?

MR JACKSON:   Yes, your Honour, and may I come to that in just a moment.  What your Honours will see is that, if one goes then to paragraphs 29 and 30 at page 6, what her Honour did was to say that in having considered all the evidence and all the circumstances she had established that it was fair and just that he be granted leave to proceed, to issue the proceedings.

Now, your Honours, the Court of Appeal has set aside the judgment on a very narrow basis which appears at page 34, paragraphs 51 to 54, and your Honours will see, if I could just go very briefly through those paragraphs, in paragraph 52, your Honours will see the first three lines.  It was said:

this was inadequate reasoning.  Records may or may not provide the wherewithal to defend a claim in a fair trial -

and so on.  That was a matter, your Honours, on which some evidence might have been given about the state of the records if necessary.  Your Honours will see at paragraph 53, if I could refer particularly to about line 19:

At every step the acts and omissions of other police officers are likely to be called in question –

Again, no evidence adduced to indicate who they might be.  Then paragraph 54, the opening sentence -

There was no evidence of the availability or otherwise of the persons within the police service whose acts, omissions and perceptions will be material.

Your Honours, the result was that his Honour held that there was prejudice.  Now, your Honours, all this, with respect, was speculation.  They were matters on which evidence might have been adduced, but none was adduced at all. 

Your Honours, if I could just take your Honours to what was said by two members of the Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547, in the joint reasons of Justices Toohey and Gummow, your Honours will see at the bottom of page 546:

However, the question remains:  on what principles is the discretion to be exercised?

And then your Honours will see in the next paragraph, with respect to their Honours, the passage goes through to about point 6 on the page, where their Honours specifically adopted the statement of Justice Gowans in Cowie and Justice Gibbs in Campbell, that:

Where prejudice is alleged by reason of the effluxion of time . . . 

“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do no amount to material prejudice.”

Now, your Honours, one is not dealing with the situation where there is someone who has not been seen by the other party for years.  This man was in the employment of the respondent until 2003.  It was a hierarchical service, one in which records are kept of its very nature and, your Honours, the approach taken by the Court of Appeal, in our submission, substitutes assumptions for evidence.  Your Honours, there was no suggestion that appropriate records would not show anything that was – there was no evidence to suggest that.

In our submission, the decision of the Court of Appeal in this case really reflects one of the views deriving from the Brisbane South Case namely, in a sense, that of Justice McHugh with whom Justice Dawson agreed, but it is not quite the view that was adopted by Justices Toohey and Gummow, the other members of the majority and, your Honours, that there are differences of views can be seen adverted to in a decision of the New South Wales Court of Appeal in Sydney City Council v Zegarac (1998) 43 NSWLR 195. May I just take your Honours to two passages there. The first in the judgment of Justice Mason, first of all at page 196, the paragraph commencing between F and G and then if I could go to page 199B, and then an extract from Justice McHugh, then Justice Dawson, and then a summary between F and G:

It could therefore be seen that Dawson J and McHugh J appear to indicate that it is mandatory that an applicant negate “significant prejudice” before the discretion could be exercised in his or her favour . . . 

First, it is not at all clear that Toohey J and Gummow J suggest any such brightline test in their joint judgment.

He refers at the bottom of the page to the possibility that there are -

possible points of difference between the joint judgment and the judgments of Dawson J and McHugh J.

Your Honours, that goes through, I think, to about the end of the paragraph on page 199F.

Could I just conclude, your Honours, by saying this.  If one looks at what was done by the primary judge in this case, one sees that what she did was to take into account all the evidence that was before her, and having taken into account that evidence, then to form the view that it was an appropriate case for the exercise of the discretion.  All that could be said about her reasons, and all that was said about her reasons in any adversely critical way, was that she had made the observation that there was “no presumptive prejudice” at paragraph 20.  That must have been an observation based on the matter as it appeared before her.  That did not provide a basis, in our submission, for the Court of Appeal then to develop an approach, which essentially means that the court itself, in circumstances where evidence might have been given, can just assume that there is prejudice of the relevant kind.

GLEESON CJ:   We do not need to hear you, Mr Menzies.

We are of the view that this case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

AT 11.11 AM THE MATTER WAS CONCLUDED