Mann v Commonwealth of Australia and State of New South Wales

[2000] NSWSC 353

CITATION:	Mann v Commonwealth of Australia & State of New South Wales [2000] NSWSC 353 revised - 14/09/2000
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	SC 20712/94
HEARING DATE(S):	1/2/00 to 9/2/00
JUDGMENT DATE:	3 May 2000
PARTIES :	Christopher Mann (Plt in person) Commonwealth of Australia (1D) State of New South Wales (2D)
JUDGMENT OF:	Newman J

COUNSEL :	Christopher Mann (Plt in person) M R Aldridge SC (1D) V Hartstein (2D)
SOLICITORS:	Plt in person Australian Government Solicitor Crown Solicitor
CATCHWORDS:	Limitation of Actions - postponement of bar - where action "fraudulently concealed" - consciousness of wrongdoing necessary
LEGISLATION CITED:	Limitation Act 1969 s 55(1)(b)
CASES CITED:	Seymour v Seymour (1996) 40 NSWLR 358 Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] (1984) 156 CLR 414 at 438 Williams v Minister (1994) NSWLR 497 at 509C-E, 515G.
DECISION:	Judgment for defendants plus costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN J

WEDNESDAY, 3 MAY 2000

20712/94 - MANN v COMMONWEALTH OF AUSTRALIA AND STATE OF NEW SOUTH WALES

JUDGMENT

1    HIS HONOUR: In this matter the plaintiff claims damages under a number of causes of action against the Commonwealth of Australia (hereinafter referred to as the Commonwealth) and the State of New South Wales (hereinafter referred to as the State). Not only do the defendants deny substantive liability in respect of the matters pleaded against them but also both defendants have raised a plea in bar pursuant to s 14 of the Limitation Act 1969 as amended.

2    This matter represents the latest of a series of actions taken against a number of defendants by the plaintiff since 1981.

3    Furthermore, the plaintiff has appeared as a defendant in a number of matters involving banks which matters are related to the present case before the court.

4    In order to understand the nature of these proceedings it is necessary to refer to events which form the background to this case.

5    In March 1976 the plaintiff, Christopher Mann, acquired control of a company named Western Medical Services Pty Ltd (hereinafter referred to as WMS). That company operated medical locum services in the western suburbs of Sydney and also provided similar services to certain rural areas.

6    In order to operate the service medical practitioners who had obtained qualifications in the United Kingdom were recruited by the company. These practitioners obtained appropriate entry permits for short term residence in this country on the sponsorship of WMS.

7    From March 1976 until the company was wound up on 11 May 1984 the present plaintiff, Christopher Mann, occupied the position of Managing Director of the company.

8    One such medical practitioner recruited by WMS was Dr John Neville Eccott. Dr Eccott arrived in this country in February 1980. He had appropriate English qualifications. As I understand the evidence, he was registered to practice in New South Wales in March 1980 and then commenced performing locum work for WMS.

9    It was the plaintiff’s contention that for a number of reasons which it is not necessary for me to canvass, Dr Eccott performed his duties in an unsatisfactory manner leading to the plaintiff dismissing him on or about May 1980.

10    In July 1980 Dr Eccott was convicted on two charges involving breaches of the Health Insurance Act 1973.

11    On 25 February 1981 an article was published in the Sydney Morning Herald reporting an interview with Dr Eccott in which he made a number of complaints about the manner in which he had been treated by WMS while he was engaged by that company.

12    The article adverted to the fact that the present plaintiff was “the owner of WMS.” Dr Eccott then returned to the United Kingdom.

13    On 16 May 1981 an English publication known as the New Medical Journals published an article which repeated the assertions which had been reported in the Sydney Morning Herald on 25 February 1981. The New Medical Journals’ circulation was mainly in the United Kingdom although from the documents I have gleaned there was some very small publication of this journal in Australia.

14    On 14 December 1981 the present plaintiff and WMS issued process initiating defamation proceedings in the High Court of Justice for defamation against the publishers of the New Medical Journal, New Medical Journals Limited, the journalist who wrote the subject article, one Diana Fernyhough, and Dr Eccott.

15    It is convenient at this point to advert to the fact that the plaintiff had entered into a guarantee with the ANZ Bank in relation to loan funds advanced to WMS to assist that company’s operations.

16    Following the issue of defamation proceedings in the United Kingdom both the plaintiff and his wife on 16 July 1982 entered into an agreement with the ANZ Bank to repay their indebtedness to that Bank within three months of the final determination of those defamation proceedings.

17    The ramifications of the agreement of 16 July 1982 (and indeed other banking transactions) formed part of the plaintiff’s claim for damages in these proceedings.

18    Following an exchange of correspondence between the British Medical Association and the Australian Medical Association over concerns apparently expressed by the BMA over the engagement of medical practitioners by WMS, the Deputy Editor of the British Medical Journal wrote to a Dr Bull who was the Director of Health for New South Wales for the Commonwealth Department of Health repeating, inter alia, those concerns.

19    The documents revealed that nothing of consequence happened as a direct consequence of that correspondence.

20    However, in 1982 the relevant Commonwealth and State Health Departments and the Department of Immigration undertook a review of the arrangements relating to the temporary entry of the medical practitioners to perform locum medical services in New South Wales. This ultimately led to a meeting being held under the chairmanship of a Mr W Refshauge on 30 March 1983 from the Department of Immigration, the plaintiff, his wife and others from WMS and representatives of the Commonwealth and State Health Departments and the Commonwealth Immigration Department.

21    The minutes of that meeting reveal that WMS was requested to provide details relating to salary and arrangements for payments thereof by WMS to medical practitioners engaged by that company. That information apparently was provided by WMS.

22    This in turn led to Mr Refshauge on 18 April 1983writing on behalf of the Secretary of the Department of Immigration and Ethnic Affairs to the present plaintiff in his capacity as Managing Director of WMS thanking him for the information he had provided and confirming that that information was protected under the Freedom of Information Act 1982.

23    Thereafter there was an exchange of correspondence by way of telexes and letters between WMS and the Health Departments of both Commonwealth and State and the Department of Immigration.

24    In a letter despatched on 20 May 1983 Mr Refshauge wrote on behalf of the Department of Immigration advising Mr Mann in his capacity of Managing Director of WMS of a change in Commonwealth policy. That change was expressed as follows:

“Any future sponsorship for doctors will be approved only with the concurrence of the appropriate health authority except in the most unusual circumstances. You will appreciate that any future approval may be difficult to obtain.”

25    I refer to this change of policy because, as I understand Mr Mann’s evidence, this restriction upon the number of doctors whose immigration WMS was able to sponsor was a principal cause of WMS being unable to service the demands of its clientele for locums. An event which led to the winding up of WMS in May 1984.

26    The relevance of the correspondence and contact between WMS and the various departments of the Commonwealth and the State during the period between 22 March 1983 and December 1983 is that the subsequent disclosure of certain of those documents by those departments to the solicitor for the defendants, Fernyhough and New Medical Journals Limited in March 1987 represents the basis upon which Mr Mann as plaintiff in this case founds the causes of action upon which he relies.

27    I return then to the progress from 1983 onwards of the defamation proceedings in the United Kingdom.

28    On 16 November 1984 an order for discovery was made in these proceedings.

29    On 28 November 1984 the plaintiff provided a list of documents in response to that order which did not include reference to any of the documents which had been raised between 22 March 1983 and 12 December 1983 relating to the immigration of medical practitioners to work for WMS to which I have referred above.

30    On 21 January 1985 WMS was struck out as a plaintiff in the defamation proceedings. On 11 July 1986 Master Prebble in the High Court of Justice refused an application by the plaintiff to amend his Statement of Claim to add a claim as an individual for special damages.

31    In October of that year a counter claim which had been filed by Dr Eccott was struck out and Mr Mann as plaintiff received an order for costs of that counter claim.

32    In the meantime the solicitor for the second and third defendants sought and obtained orders for further and better discovery from the plaintiff.

33    The difficulties which were emerging in the discovery process were underscored by the fact that on 26 November 1986 Mr Mann as plaintiff was ordered to pay the defendants’ taxed costs of one application for further and better discovery. Those costs being taxed in the sum of 2,470.31.

34    In response to a further request for further and better discovery the plaintiff on 28 November 1986 provided a further list. Again no reference was contained in that list to the documents raised in 1983 relating to WMS’ sponsorship of immigrant doctors.

35    In March 1987 Mr J Rubinstein, solicitor for the second and third defendants in the defamation proceedings came to Australia. On 13 March 1987 Mr Rubinstein saw Mr Joseph, the Assistant Secretary of the Department of Immigration who was in company with another officer of that Department, a Mr Gavin Feirglough.

36    Prior to that meeting having occurred correspondence had been received by the Department requesting that Mr Rubinstein be allowed access to departmental files relating to WMS.

37    At that meeting Mr Rubinstein was shown the documents raised in 1983 to which reference has already been made with the exception of the documentation relating to the remuneration of medical practitioners raised by WMS following the meeting of 30 March 1983, that is the information referred to in Mr Refshauge’s letter of 18 April 1983.

38    It is apparent from a list of correspondence annexed to an affidavit of Mr Rubinstein (described as his sixth affidavit) which he swore on 19 October 1987 that prior to meeting with Messrs Joseph and Feirglough, he had attended the Department of Health in New South Wales and had seen correspondence relating to the engagement of external medical practitioners which correspondence, as I have already stated, commenced on 22 March 1983 and was completed by 12 December 1983.

39    In his sixth affidavit at para 6 Mr Rubinstein revealed what he had seen as follows:

“There is now produced and shown to me marked ‘JSYR10’ a list compiled by me of letters and documents which I have seen by examining the files of various Australian State and Federal Agencies but in respect of which the Second and Third Defendants have been unable to obtain copies as the said agencies are not within the jurisdiction of this Honourable Court. Each of the said documents listed is material to the proceedings herein and each of them emanated from or was received by the Plaintiff herein. To date there has been no mention of any of these documents anywhere in the documentation disclosed by the Plaintiff herein for the very good reason that they disclose that he and Western and Medical Services Pty Limited were the object of substantial investigations and strictures by the New South Wales Medical Board The Commonwealth Department of Health and the Department of Immigration and Ethnic Affairs which began in or before March 1981.”

40    I have annexed exhibit JSYR10 to these reasons which I have marked A.

41    Mr Rubinstein’s affidavit was read before Master Prebble in the High Court of Justice on 29 October 1987. Master Prebble made an order requiring the plaintiff to provide a further and better affidavit of discovery within thirty-five days. I should add that in that sixth affidavit, Mr Rubinstein sought an order dismissing the plaintiff’s action on the basis of his failure to comply with his obligation to properly discover documents. This the learned Master declined to do and made the order I have referred to.

42    On 3 November 1987 the defendants appealed against the Master’s order. However, on 4 November 1987 the plaintiff filed a further affidavit of discovery. That affidavit of discovery was the last of its type sworn in the interlocutory proceedings. To all intents and purposes subject to the appeal lodged by the defendants, discovery in the defamation action was complete.

43    The appeal was initially set to be heard on 4 May 1988 but was adjourned by consent. The reason why it was adjourned was that the parties were discussing settlement. The settlement negotiations failed and the appeal was eventually abandoned by the defendants on 31 October 1988.

44    Accordingly discovery was completed within five days of the order being made by the learned Master on 29 October 1987.

45    It is the plaintiff’s evidence that some time after 31 October 1988 the plaintiff’s then English solicitor, a Mr Bradshaw, incurred problems in the conduct of his practice. The matter was removed from his care and indeed the English Law Society, no doubt through its insurer, paid the plaintiff the substantial sum of 40,000 as a consequence of Bradshaw’s handling of the matter.

46    The plaintiff then engaged another firm of solicitors, Messrs Leighton Davies. As I understand the plaintiff’s evidence they assisted the plaintiff by preparing necessary documentation for the trial. However, because the plaintiff was unable to fund those solicitors they did not appear for the plaintiff at the hearing of the trial which commenced on 5 June 1990.

47    In late March or early April 1990 Davies J who was in charge of the defamation list in the High Court had set the matter down for hearing. On 8 April 1990 the defendants’ solicitors paid into court 50,000.

48    In the event the plaintiff who appeared in person at the trial, received a jury verdict of 15,000. The upshot of that verdict was that Davies J directed judgment to be entered for the plaintiff in the sum of 15,000 with costs up to the date of the payment into court and a judgment for the defendants for their costs from 8 April 1990 to the date of judgment 19 June 1990.

49    Thereafter taxation of costs occurred in the High Court. On 20 February 1992 the court ruled that the plaintiff was only entitled to receive seventy percent of his costs in the matter involving Dr Eccott (the English MDU being the relevant insurer).

50    On 3 June 1992 the costs of the defendants, New Medical Journals Limited and Ms Fernyclough were taxed in the sum of 143,344.26.

51    On 23 October 1992 Davies J dismissed an application made by the plaintiff for wasted costs. His costs were ultimately taxed in the sum of 35,000 by the High Court.

52    On 24 June 1994 the Court of Appeal dismissed an appeal made from the decision of Davies J in relation to the so-called wasted costs. An appeal brought by the plaintiff against taxation of costs in his claim was dismissed by Ognall J in the High Court on 4 May 1995. That appeal was subsequently dismissed by the Court of Appeal.

53    The Statement of Claim in the present proceedings was filed by the plaintiff on 30 September 1994. Prior to the issue of that Statement of Claim the plaintiff had suffered judgments against him in this Court in relation to matters involving banks to which I have made reference earlier in these reasons.

54    On 15 March 1988 Westpac obtained a judgment against the plaintiff and his wife in the sum of $152,489.98.

55    On 15 November 1991 Giles J directed judgment to be entered for the ANZ in the sum of $996,249.27 and ordered a writ of possession to issue in relation to the plaintiff’s home.

56    In the meantime the plaintiff had agitated a complaint against both the Commonwealth and State in relation to the disclosure of documents to Mr Rubinstein by departments of those governments in 1987. This resulted in considerable correspondence and action taken on behalf of both Commonwealth and State.

57    It is unnecessary for the purposes of these reasons to deal with all correspondence which emanated or indeed all the departmental documentation produced.

58    The extent of the plaintiff’s actions in this regard may be illustrated by the fact that the Commonwealth Ombudsman took the matter up and indeed was the subject of a hearing on 24 March 1994 by the Standing Committee on Legal and Constitutional Affairs of the House of Representatives.

59    On 3 March 1992 Mr Christopher Conybeare, the then Secretary of the Department of Immigration, Local Government & Ethnic Affairs wrote to the plaintiff. In that letter Mr Conybeare advised the plaintiff that he was of the view that the decision by the Department to allow access to Mr Rubinstein to the documents in question was justified. However, he apologised for any inconvenience which may have flowed to the plaintiff as a consequence of that revelation.

60    As far as the State was concerned an application made under the New South Wales Freedom of Information Act resulted in certain material being revealed to Mr Mann and other material not being revealed on the basis that the Act did not cover the same.

61    In any event it is apparent that the plaintiff was aware from at least 29 October 1987 that the relevant departments of the Commonwealth and State had allowed Mr Rubinstein access to certain documents. Indeed JSYR10 revealed to the plaintiff the exact documents which had been shown to Mr Rubinstein. He was able to within five days of that disclosure to swear an affidavit of discovery which meant that discovery was complete.

62    However, delays in bringing his action for trial in England were principally occasioned by settlement negotiations and the professional problems which happened to his solicitor, Mr Bradshaw.

63    I have detailed this background before turning to the causes of action. In order to understand the nature of them it is of importance to understand what had happened prior to the issue of the Statement of Claim.

64    The causes of action which the plaintiff seeks to bring are:

1. Against both defendants, an action for breach of confidence.

2. Against both defendants, an allegation of breach of contract.

3. Against both defendants, an action based in negligence.

4. Against both defendants, an action based upon misrepresentation.

5. Pleaded against the Commonwealth only, an action based upon an allegation of misfeasance in public office.

65    One matter which seems to me to be fatal to the first four causes of action is that any dealings on which the plaintiff relies as founding those causes of action were dealings between the Commonwealth and the State and WMS. They were not dealings between those departments of Commonwealth and State and the plaintiff personally. However, because I am of the view that the defence raised by both defendants under the Limitation Act should succeed I shall not deal, in detail, with the various causes of action raised by the plaintiff.

66 I turn then to the limitation point. Section 14 of the Limitation Act 1969 creates a limit of six years running from the date on which the cause of action first accrues. For the purposes of this case I shall assume that date to be 29 October 1987, the date on which the contents of Mr Rubinstein’s sixth affidavit became known to the plaintiff.

67    At that date the plaintiff was made aware of the documents which Mr Rubinstein had inspected in March 1987 in Australia. There is no suggestion in the evidence, that any other documents were involved. The limitation period thus expired on 28 October 1993.

68    As I have said the Statement of Claim in this case was filed by the plaintiff on 30 September 1994. Clearly the plaintiff is out of time unless he can obtain relief from the statutory bar under the Act. In this regard he relies upon s 55 of the Act.

69    Section 55 is in the following terms:

“55.(1) Subject to subsection (3) where:
(a) there is a cause of action based on fraud or deceit; or
(b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or by a person claiming through him against a person answerable for the fraud deceit or concealment.
(2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.
(3) For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if:
(a) he is a party to the fraud deceit or concealment; or
(b) he is, in relation to the cause of action, a successor of a party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs.
(4) Where property is, after the first occurrence of fraud deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud deceit or concealment has occurred, subsection (1) does not, in relation to that fraud deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through him.”

70 It may be seen from the wording of s 55 that it operates to override the operation of the statutory bar created by s 14.

71 The plaintiff’s argument that there had been a fraudulent concealment by both the Commonwealth and State of his causes of action and thus s 55(1)(b) applies and accordingly the defendants cannot rely upon their pleas in bar.

72    It was submitted that what constitutes fraudulent concealment of a cause of action was determined by the Court of Appeal in Seymour v Seymour (1996) 40 NSWLR 358. In particular the plaintiff relies upon the following passage in the judgment of Mahoney ACJ at 372:

“In my opinion, there must be in what is involved a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing. At least, this is so in the generality of cases. (There is in this as in many things, the problem of dealing with the person who “closes his eyes to wrong” or is so lacking in conscience that he is not conscious of his own lack of proper standards .)”

73    It was put that in relation to both defendants their conduct falls within the emphasised exception to the general rule that consciousness of wrongdoing is necessary. The submission was that not only did the defendants disclose documents which they should not have but after that they failed to disclose what they had done to the plaintiff.

74    The submission went on that the fact that this arose from a misconception of the existence or scope of their obligation of confidentiality to the plaintiff makes no difference.

75    As both defendants, so the submission continued, were certainly well aware that the information was to be used contrary to the plaintiff’s interests. Had they understood their obligations they would have known that they had breached them and at least disclosed that breach to the plaintiff.

76    In Seymour v Seymour the learned trial judge had held that s 55 did not apply in that case. Mahoney ACJ’s conclusion as to what is involved in the concept of fraudulent concealment in the subject section involved his Honour carrying out the following analysis at 371 where he said:

“The learned judge held that s 55 had no application in the present case. I infer that he so concluded on the ground that, for the section to apply, it was necessary that the solicitor be shown to have been involved in ‘moral turpitude’ or the like and that that had not been shown.
Two things require consideration: what the section requires; and does it apply in the present case.
What is here in question is an allegation that Mr Lewis ‘fraudulently concealed’ the cause of action which existed against him.
Mr Brereton relied upon, as he described them, the English line of cases. He cited: Beaman v ARTS Ltd [1949] 1 KB 550 at 559, 561-562; Kitchen v Royal Air Force Association [1958] 1 WLR 563 at 568, 572, 573-574, 578, 579; [1958] 2 All ER 241 at 245I, 249C-E, 250B, 253F-G, 254C; Applegate v Moss [1971] 1 QB 406 King v Victor Parsons & Co [1973] 1 WLR 29 at 33-34; [1973] 1 All ER 206 at 209-210; Tito v Waddell (No 2) [1977] Ch 106 at 244H-245C; Nupponen v Hymix Quarries Pty Ltd (Supreme Court, Foster J, 24 October 1986, unreported) at 3.8-4.5; Hamilton v Kaljo (1989) 17 NSWLR 381 at 386; Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 at 704-711; Rippon v Bradley (Smart J, 13 August 1992, unreported): see also Hawkins v Clayton (at 590.5), per Deane J.
Mr McClintock submitted that the decision of McLelland CJ in Equity in Hamilton v Kaljo should be followed in preference to the English authorities. McLelland CJ in Equity said (at 386):
‘For my own part, I would regard it as a misuse of language, and unsound, to apply the statutory expression ‘fraudulently’ in s 55 to any conduct which did not involve some form of dishonesty or moral turpitude.’
Mr McClintock referred the Court to Nupponen v Hymix Quarries Pty Ltd, State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 and CE Heath Underwriting and Insurance (Aust) Pty Ltd v Daraway Constructions Pty Ltd (Supreme Court of Victoria, Batt J, 3 August 1995, unreported).
In my opinion, the section is not confined to simple common law fraud. It extends to conduct beyond that. On the other hand, it is not, I think, sufficient merely that for the defendant to take advantage of the statute of limitations would be unconscionable or inequitable in the wide sense of these terms. Terms such as unconscionable or inequitable now are used to describe conduct which, in previous times, would not have fallen within them: see Baumgartner v Baumgartner (1987) 164 CLR 137 at 147 and Hibberson v George (1989) 12 Fam LR 725 at 731.
Nor, in my opinion, is ‘fraudulently’ wide enough to include everything which would fall within the description of ‘equitable fraud’. Equitable fraud is a doctrine which depends, for this purpose, too much upon nice distinctions which have been drawn in other times: see Snells Equity, 29th ed (1990) at 550 et seq; Meagher, Gummow & Lehane, Equity: Doctrines and Remedies, 3rd ed (1992) at par 1208; and see the discussion in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 553. The history of the English legislation was recently reviewed in Sheldon v RHM Outhwaite (Underwriting Agencies) [1996] 1 AC 102: see, eg, at 144, 153.”

77    Earlier in his reasons Mahoney ACJ (with whom Meagher JA and Abadee AJA agreed) found that contrary to the finding of the trial judge that a solicitor had in fact been negligent in relation to a conveyancing transaction.

78    However, in holding that the trial judge was correct in applying s 55, Mahoney ACJ at 372 observed:

“I do not think that such a finding should be made. Mr Brereton, in his detailed and comprehensive cross-examination of Mr Lewis, did not, in terms, suggest to him the kind of dishonesty to which I have referred. Nor, I think, did Mr Lewis concede such. The learned judge did not so find and I, on a review of the matter as on a re-hearing, would not make such a finding against him.

79    In relation to the claim against the Commonwealth, the plaintiff relied upon the conduct of an officer of the Commonwealth, a Mr Joseph, the Assistant Secretary of the Department of Immigration in disclosing the documentation to Mr Rubenstein.

80    In support of this contention the plaintiff submitted an affidavit sworn by Mr Joseph, in which Mr Joseph set out his dealings with Mr Rubenstein. In my view there is nothing in that affidavit which points to the kind of dishonesty identified by Mahoney ACJ in Seymour v Seymour.

81    In relation to the claim against the State, there is nothing in the evidence which suggests dishonesty of the type described by Mahoney ACJ in Seymour’s case by any officer of the State of New South Wales. Accordingly, I am of the view that in relation to the conduct of the individual members of the public service, both State and Commonwealth, in disclosing the subject documents to Mr Rubenstein that in so doing they were not involved in fraudulently concealing any causes of action the plaintiff might have.

82    The argument went on to submit that Rubenstein’s affidavit of 19 October 1987 did not disclose the identity of the person or body making the disclosures. In actual fact the documents in question were disclosed and the sixth paragraph of Mr Rubenstein’s affidavit identifies his relevant agencies as being the New South Wales Medical Board and the Commonwealth Departments of Health and Immigration and Ethnic Affairs.

83    The documentation disclosed in the annexure to Mr Rubenstein’s affidavit, JSYR 10, which I have annexed to these reasons, clearly identifies the correspondence and that correspondence (which in many cases was written by the plaintiff) identifies the Commonwealth and State agencies involved.

84    As far as the defendant Commonwealth is concerned, Mr Conybeare’s letter of 3 March 1992 to the plaintiff is a striking concession by the Commonwealth that the documents had in fact been shown to Mr Rubenstein.

85    Whatever view Mr Joseph may have had concerning the plaintiff the fact is the plaintiff was well and truly aware that the documents had been disclosed when Mr Rubenstein’s affidavit was tendered before Master Prebble on 29 October 1997.

86    His contention that he only became aware of a right to sue on reading a report from the Commonwealth Ombudsman of 10 January 1994 is flawed by this uncontested fact.

87 For these reasons I am driven to the conclusion that s 55(1)(b) has no application in this case and that the plaintiff’s causes of action at common law are statute barred.

88    The matter does not end there. As an alternative submission it was put that the plaintiff’s first cause of action, namely an action for breach of confidence is based upon the general equitable jurisdiction to grant relief in relation to disclosure of confidential information. In this regard reliance was placed upon what had fallen from the High Court in Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] (1984) 156 CLR 414 at 438.

89    Accordingly, so it was put in so far as the plaintiff relies upon breach by the defendants of their equitable obligations the Limitation Act 1969 does not apply. It was put that s 14 of the Act does not apply to equitable causes of action except by analogy: Limitation Act s 23, Williams v Minister (1994) NSWLR 497 at 509C-E, 515G.

90    It was thus put that there is no equitable reason why the plaintiff’s first nominated cause of action should not be allowed to proceed against both defendants. Reliance was placed upon the fact that the plaintiff did not acquiesce to the breach of confidence nor have the defendants indicated any reliance upon the status quo or other prejudice arising from the elapse of time which would make it inequitable to allow the plaintiff’s action to proceed.

91    It is true that Williams v Minister is authority for the proposition that s 14 of the Limitation Act does not apply to equitable causes of action except by analogy. However, in this case the first cause of action as pleaded claims damages for liability in tort against both defendants. No equitable relief in terms of a continuing breach of obligation is contended for. In other words what is being sought as I have said is damages for tortious liability.

92    It follows that as it is not equitable relief which the plaintiff seeks but relief at common law, the argument based on equitable relief cannot succeed.

93 That being so I am of the view that the defence based upon s 14 of the Limitation Act is made out in relation to all causes of action by the defendants.

94    Because I have reached this conclusion it is unnecessary for me to deal with the merits of the causes of action brought by the plaintiff. As I have already mentioned, one difficulty which stands in his way is the fact that in relation to four of the causes of action it was not the plaintiff himself who had standing to litigate those matters but WMS.

95    However, the plaintiff’s problems in terms of merit do not end there. I highlight but one of those difficulties.

96    For instance, as far as damage is concerned, the delay occasioned by Mr Rubinstein’s motion of 29 October 1987 in the discovery procedure in the High Court was but five days. How that would sound in damage is difficult to contemplate. Indeed, how either the Commonwealth or the State are liable in law for the actions of an English solicitor in private litigation in the United Kingdom with which neither governmental entity was concerned is incomprehensible. Particularly, because the plaintiff, in my view, should have discovered those documents prior to Mr Rubinstein moving as he did. Furthermore, the ease with which Mr Mann was able to deal with that problem (by his affidavit of 9 November 1987) underscores the remote nature of his claim that he was damaged.

97    However, as I have already stated, it is not necessary for me, having concluded that the causes of action are in fact statute barred for me to expatiate any further on the substantive merits of the causes of action brought by the plaintiff. Suffice it for me to say that I am of the view that even if the statutory bar did not apply the plaintiff would have failed to establish his case in relation to any of these causes of action.

98    For these reasons the plaintiff’s case fails and there will be judgment for the defendants plus costs.

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Last Modified: 09/27/2000