Hunter v Hanson

[2015] HCATrans 16

[2015] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S243 of 2014

B e t w e e n -

SCOTT HUNTER

Applicant

and

BENJAMIN ALAN HANSON

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 11.46 AM

Copyright in the High Court of Australia

MR C.J. BEVAN:   If it please the Court, I appear with my learned friend, MS I. SETHI, for the applicant.  (instructed by Peter Condon & Associates)

MR R.P.L. LANCASTER, SC:   May it please the Court, I appear with MS C. TRAILL and MS R.M. WHITE, for the respondent.  (instructed by Banki Haddock Fiora Lawyers)

FRENCH CJ:   Yes, Mr Bevan.

MR BEVAN:   Your Honours, this application turns on short and important points.  The first is if the endorsement by a majority of the Court of Appeal of the primary judge’s application of the procedural rule for extending time to serve or stay a writ in a case such as this where the statutory limitation period has long since expired is correct, that procedural rule is capable of it being used and, we would say, may be expected to be used as a standard procedure in the future to enable a writ to be filed but intentionally not served, as occurred in this case, and not otherwise brought to the notice of a defendant, as occurred in this case, until long after the limitation period to commence a new proceeding has expired.

GAGELER J:   Mr Bevan, is there any real issue of principle?

MR BEVAN:   Well, there is.  The issue of principle is can the Limitation Act be swept aside by filing in time but keeping the writ back for forensic purposes.

FRENCH CJ:   Well, that might be a normative proposition which informs discretion.  There is a constructional question about commencement, is there not?

MR BEVAN:   There is.

FRENCH CJ:   Is that the only constructional question?

MR BEVAN:   It is, because the construction question is relevant because the majority in their reasoning rejected the line of English authority that held that a stale writ is a nullity.  Now, the English authorities treated that on a common law principle approach.  We say the proper approach in the modern era is to actually look at the statute which defines the criteria for enunciating what needs to happen to commence.  Now, if the requirement to commence is both file and serve, you do not actually get into rule 1.12.  In this case, that is the extension rule.  You go straight to section 56A.

Now, of course, section 56A creates an enormous hurdle – we would say insurmountable – for the respondent, for the reasons given by Justice Emmett because they filed in time but, for forensic reasons, primarily waiting for the Court of Appeal to decide the case on virtually identical facts in Lucire v Parmegiani, the actual service took place a year and a half outside the limitation period and we say that is particularly acute in a defamation case where there is a national code with, effectively, a one‑year limitation period.

FRENCH CJ:   Well, one might cavil at the exercise of the discretion.  One might say it is – you might even say it is an outlier case, but the question is, is it a case warranting the grant of special leave.

MR BEVAN:   We say it is, and it comes down to actually a few paragraphs of the judgment.  If you go to page 60, Justice McColl’s judgment, speaking for the majority, paragraph 72, her Honour recognised an “arguably alternative course”.  We say it was not arguably alternative.  It was the course that had to be adopted that was to commence within time otherwise you faced the very difficult – according to the Queensland Court of Appeal test in Noonan – test for extending time in the case of defamation.

FRENCH CJ:   Under the Act, as distinct from the rules?

MR BEVAN:   Yes, because you must show that it was unreasonable to commence in time.  Now, her Honour’s analysis on behalf of herself and Justice Macfarlan is the respondent was between Scylla and Charybdis.  We say that is not right.  They had to commence within time.  They could not wait for another case to be decided to see whether they had a case, just as they could not wait until the limitation period expired to see whether they could get litigation funding.

We say the correct approach is that adopted by Justice Emmett in dissent.  If your Honours go to page 72, his Honour recognises at 113 the importance of the limitation period.  He reinforces that at 114, noting that in one of the two single justice decisions of this Court looking at this in very similar facts, a one‑year limitation period and effective intentional delay, Justice Stephen in Van Leer revoked his ex parte order extending time and dismissed the proceedings, and Justice Emmett further looked at the public policy underlying the Limitation Act in 56A at paragraph 116.

His Honour recognised at page 75, paragraph 120 that it is not for the plaintiff to effectively give himself an election as to when he will effectively commence proceedings because of extraneous factors which affect his forensic decisions.  At page 77 Justice Emmett in dissent at 127 said “There was no reason” he could not have filed in time, and if he had good reason for deferring the incurring of costs he should have asked the court for an adjournment and either it would or would not have been granted.  If it were granted, then effectively he had the same result, but at least the policy underlying section 14B, which is the one‑year limitation period, and 56A of the Limitation Act which imposes the stringent test for extension of time, is satisfied.

Of course, it must be remembered that it is an unchallenged finding of the trial judge that the delay here in service was intentional.  The primary judge made that finding at paragraph 65 on page 18:

the decision not to serve the statement of claim was a deliberate decision taken by the plaintiff.

Now, that is an unchallenged finding of fact and that explains, indeed, fundamentally informs, the dissenting reasoning of Justice Emmett where his Honour was critical of the respondent for effectively giving himself – that is to say, the respondent – an election as to whether to commence in time or not because of his two other reasons.  One was not to inflame my client; of course, Justice Emmett said that is not credible because he was busy suing him in another court.

Of course, the other reason, which was the real reason, we say, which was awaiting the decision of a five‑member Bench of the Court of Appeal in Lucire v Parmegiani which effectively said he did have a cause of action after all a year and a half after the limitation period expired because he well knew when he commenced that the first instance decision in Lucire v Parmegiani was a complete answer to his claim for defamation because it found that writing to the medical board was the subject of absolute privilege.

Now, we say you cannot effectively use procedural rules for extending time to subvert a statutory policy which requires one to commence in time, and plus a further aspect of that policy which is to severely restrict the circumstances in which one can commence.  Now, it is quite plain on uncontroverted facts in this case that there could not have been an extension of time under 56A because the second – assuming either one goes straight to 56A because the construction argument succeeds or one goes via rule 1.12 because the construction argument fails, either way, one must still confront the test in 56A and the question is, as a result of the construction argument, the weight to be given to that test.

That is why we have said there is a conflicting authority, both in various jurisdictions and within this Court, about the weight one gives the limitation statute, and one of the problems we say the intermediate appellate courts have is that apart from Van Leer and the obiter dicta of two members of this Court in Licul v Corney and the slightly different approach of Justice Mason sitting alone in Foxe’s Case relative to that of Justice Stephen, there is simply no authority that informs the trial judges or any intermediate appellate courts as to the approach to be adopted, again assuming the statutory construction argument goes against us.

GAGELER J:   Now, is there an error of principle in paragraph 68 of the majority judgment, page 58?

MR BEVAN:   Well, we would describe that as, yes, an error of principle because it is internally inconsistent.  On the one hand, the majority in the Court of Appeal cite what Justice Mason said in Foxe v Brown that says once you have issued, that is to say, filed within the limitation period, the limitation period ceases to have any relevance, but in the very next sentence Justice McColl for the majority says:

it is a matter to be considered in the exercise of determining whether, in all the circumstances, the applicant for renewal had “good reason” for seeking that relief –

citing Chief Justice Bray’s decision in Victa which was approved by Justice Stephen in Van Leer.  Now, that was one of the points we have made in our summary of argument.  There is a conflict between two single Justices of this Court because Justice Mason sitting alone in Foxe v Brown gives the Limitation Act no weight, but Justice Stephen says it is an important consideration informing the exercise of the discretion to extend time.  Again, no Full Court decision of this Court says which of those two views is correct. 

There is a third view, which is the view of Justices Mason and Jacobs in obiter dicta in Licul v Corney, where they effectively accept the English line of authority and accept in order to get an extension of time to serve after the expiry of the limitation period it can only be done in exceptional circumstances.  Now, we would say that test applied here.  The respondent could not satisfy it.  The respondent, we say, could not satisfy the Van Leer test.  The only test the respondent could satisfy here is the Foxe v Brown test because the Limitation Act has no relevance at all.

Now, of course, only a Full Court of this Court can decide which of those three approaches is the correct approach, and we say for the reasons we have given your Honours that Justice Emmett’s approach which gives precedence to the Limitation Act and which effectively required the proceedings to be commenced, whether that means filed or filed and served within the limitation period, and then the court decides whether there is to be an extension or effectively a stay of proceedings, extending the time by which the parties incur these various costs while the Court of Appeal decides whether or not the defamatory letters were the subject of an absolute privilege defence.  Does that answer your Honour Justice Gageler’s question?

GAGELER J:   Yes, thank you, it does.

MR BEVAN:   Now, we say that if this decision of the Court of Appeal is allowed to stand it is effectively given the imprimatur of an intermediate appellate court to a strategy of defeating the Limitation Act by filing and intentionally keeping the notice of the proceedings secret in the sense that the poor old defendant does not know about it until whatever other steps the plaintiff wishes to take are taken.

Now, in this case we say the real reason was awaiting the Court of Appeal decision in Lucire.  But there could have been other reasons, for example, marshalling evidence, trying to find litigation funding, there are any number of forensic reasons why one would effectively impose a unilateral stay of proceedings without informing the party at risk for damages. 

Of course, we have cited in our written submissions in‑chief the decision of this Court, albeit in a slightly different context – that is the decision of Justice McHugh with Justice Dawson agreeing in Brisbane South Regional Health v Taylor where their Honours pointed out that once you effectively extend time outside the limitation period you have deprived the defendant of a valuable right, which is the prima facie right not to have to defend the proceedings unless the plaintiff can make good a case for an extension of time under the relevant Limitation Act.

Of course, the applicant here was deprived of that presumption under sections 14B and 56A of the Limitation Act by simply a process of weighing up the relative prejudice from an extension of time versus no extension of time without regard to specific and stringent criteria in 56A for an extension of time.  As I said to your Honours, that is a national code, and we have put in our footnote, it is footnote 1 at page 117, the equivalent provisions all around Australia and they are effectively identical.

That is why we cited as important the Queensland Court of Appeal decision with the statements of principle by Justice Keane, as his Honour then was, and Justice Chesterman, in Noonan where their Honours pointed out the importance of ensuring that Parliament’s policy in what are effectively standardised limitation periods for defamation around Australia are recognised, because there is a clear policy, as Justice Emmett recognised – I took your Honours to it – that defamation must be brought quickly.

We say in this case it must be brought quickly, irrespective of whether you need to file within a year or whether you need to file and serve within a year, which obviously turns on the statutory construction point and, of course, that statutory construction point in turn determines the question of nullity in the writ unless and until it is served.  If your Honours please.

FRENCH CJ:   Thank you, Mr Bevan.  We will not need to trouble the respondent.

In our opinion the approach taken by the Court of Appeal to the question of construction is not attended with sufficient doubt to warrant the grant of special leave.  The matter otherwise concerns the exercise of a discretion in an interlocutory step in a proceeding.  The exercise of that discretion might be debated, but it does not disclose any ground upon which special leave should be granted.  Special leave will be refused with costs.

AT 12.03 PM THE MATTER WAS CONCLUDED