Nominal Defendant v Warren

[1998] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A54 of 1997

B e t w e e n -

THE NOMINAL DEFENDANT

Applicant

and

WAYNE STEVEN WARREN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 4.12 PM

Copyright in the High Court of Australia

MR S. WALSH, QC:   If the Court pleases, I appear for the applicant with my learned friend, MR A.K. PHELPS.  (instructed by Piper Alderman)

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MR G.A. BRITTON, for the respondent.  (instructed by Aboriginal Legal Rights Movement Inc)

GUMMOW J:   Yes, Mr Walsh.

MR WALSH:   If the Court pleases.  This leave to appeal application raises an important issue in the day-to-day business of the lower courts with respect to dealing with issues of time limits.  There are three points that we raise on the application for special leave.

The first is whether prejudice is to be presumed by the fact that the period of limitation has expired whereby, irrespective of proof by the defendant of actual prejudice, an applicant for an extension of time has the onus of demonstrating that there was no prejudice to the defendant and part of that question raises the question of, “Well, if that is so, what is the proper test with respect to the onus on the applicant, as it were, for the extension of time to rebut that presumption?”.

The second point that we raise is whether the exercise of a discretion under the Limitation of Actions legislation requiring that a new material fact be ascertained, a court should have regard in the exercise of that discretion once the ascertainment of the fact has been established that it was learned in an artificial and manufactured way.

The third point that we raise is, really, the administration of justice in the decision of the court itself, the Full Court, and it is this, that in circumstances where the exercise of discretion has miscarried, in our respectful submission that was the case before the learned trial judge, because the trial judge misapprehended an important fact whereby the Court of Appeal was called upon to exercise the discretion afresh, whether the Appeal Court erred in not allowing the appeal when refusing the grant of an extension of time because apart from the issue of prejudice to the plaintiff, in that his action would be barred, all other factors pointed against the grant of the extension.  There was not one other factor that was in favour of the applicant.

That raises the question of, once again, in a sense, the first issue, namely whether in assessing the prejudice whether presumed prejudice is to be rebutted in a particular way and, in this case, there was only said some slight prejudice according to the Full Court - we argue with that and I will deal with that later- but there was only slight prejudice, well then, what is the effect of the presumed prejudice and what is the test then?

GUMMOW J:   The court, I think, perhaps to the general surprise of the Bar outside the New South Wales Bar, has set its face somewhat even against dealing with issues arising out of the New South Wales limitation legislation.

MR WALSH:   Yes.

GUMMOW J:   What really is in this case other than what is set out at 4.9 on page 68?

MR WALKER:   In our respectful submission, in answer to that proposition we put, firstly, that there is, in terms of the actual decision of the court, the court was left with nothing in favour of the grant of an extension of time in favour of the applicant apart from the fact that the action would be statute barred.

All other factors were against the exercise of that discretion and, in particular, the length of the delay was inordinate.  It gave rise, in our respectful submission, to presumptive prejudice apart from the actual proof of some actual prejudice.  In our respectful submission, there was, in fact, prejudice to the defendant.

HAYNE J:   That is to argue the particular facts of the particular case.  What is the more general point that arises?  At the moment I have an impression of the case as one in which you seek to take particular factors said to bear upon the exercise of discretion in the case and elevate those particular factors into points of general application, a mode of reasoning which does not instantly commend itself.

MR WALSH:   In our respectful submission, I was merely answering his Honour Justice Gummow’s point with respect to the particular case that it was not attended with sufficient doubt and that is why I was addressing my comments to that.  In terms of the question that your Honour Justice Hayne raises, what we say is that there is, for whatever reason, a misapprehension or an apprehension in the lower courts that the test that is to apply to the exercise of discretion as a result of Taylor’s Case is not clear.

GUMMOW J:   Taylor’s Case is a case on the Queensland statute.  Your statute is expressed differently.

MR WALSH:   It is, your Honour, but not so differently that it should be distinguished, in our respectful submission.  Can I illustrate the point by turning to the actual section which is conveniently contained within the application book at page 3 and 4?

GUMMOW J:   What I am really putting to you is it is for each State, the ultimate appellate court in each State, as it were, under this Court to sort out the application of each State’s limitations law, the limitation laws not being uniform.

MR WALSH:   Yes, quite so, your Honour.  In our respectful submission, if one turns to page 3, there are two ways in which the exercise of discretion becomes relevant to an application for an extension of time under this legislation.

GUMMOW J:   And in so far as there is a common factor in the legislation, the common factor usually is some exercise of discretion.  Why do we get involved with that?

MR WALSH:   Quite so, but the fact is that the issue of the discretion and the way in which it is to be exercised is not clear, in our respectful submission, because of the authorities.  It is illustrated in this way, that in the decision that we have in our booklet of authorities of The Council of the City of Sydney v Zegarac which is a decision of the Full Court of the Supreme Court.  It appears at page 41 of the supplementary booklet, at the foot of page 41 the last paragraph, after referring to the decision of Taylor, the President, President Mason, said this:

That decision has correctly been viewed by the New South Wales profession as requiring greater stringency.....But the present case and other cases in this Court have revealed that the precise application of Brisbane South.....is a matter of controversy.

Then his Honour the President continued, if I may turn over to page 42 at the foot, by referring to his Honour Justice McHugh’s decision in the second-last paragraph and then, if I may turn over again to page 43 at about point 6, and it is the third last paragraph:

What is “significant” will depend on the particular case and the “extent” and impact of the delay.  But two things should be said about any test of “significant prejudice” before it is imported into s60E.  First, it is not at all clear Toohey and Gummow JJ suggest any such brightline test in their joint judgment.  They joined with Dawson and McHugh JJ to decide that the Queensland Court of Appeal erred.  But, on the matter presently at hand, it is possible to detect possible points of difference between the joint judgment and the judgments of Dawson and McHugh JJ.

His Honour went on to say at the top of page 44 that he did not wish to go any - or be “presumptuous” to go any further with respect to the differences.

Now, in the case at Bar his Honour Justice Debelle, having been confronted with a comment by his Honour Justice Perry that the test was more stringent because of Taylor’s Case, said this ‑ ‑ ‑

GUMMOW J:   I am amazed that the Law Quarterly Review has nothing better to do than a case note on Taylor’s Case, I must say.

MR WALSH:   If your Honour pleases, the reason why this Court ought to review it is because it is a matter that arises consistently in the lower courts and there is a misunderstanding in the lower courts as to the proper test to be applied and it is a critical issue.  It is a critical, practical issue.  The first critical issue is, is there to be presumed prejudice after the expiration of the time limit and that is important because if there is, as in a case such as this, presumed prejudice then there is something to be answered by the applicant and it places an onus on the applicant.

In addition to that, if there is to be presumed prejudice then how is it to be rebutted?  Is it to be rebutted by the test that, on the one hand, is proposed as no significant prejudice, President Mason refers to, or is it that there is unlikely to be a fair trial as being the other possible test?  In other words, although it at first blush appears that the matters might be of little significance, they, in fact, give rise to enormous significance in the practical day-to-day application in the lower courts of time limit applications.

GUMMOW J:   Well, I am just wondering where Justice Cox’s careful judgment went wrong.

MR WALSH:   Yes, his Honour did not really address the topic in the way in which it was by the others.

GUMMOW J:   Between pages 7 to 9, starting at line 50 on page 7 of the judgment, page 31 of the application book.

MR WALSH:   Page 7, that is just Judge David’s decision, I think, your Honour.  That is the trial judge.

GUMMOW J:   I am sorry.  We are at cross-purposes.

MR WALSH:   His Honour Justice Cox deals with it at page 29, your Honour.

GUMMOW J:   We are at cross-purposes.  Page 31 of the application book which is 7 of the judgment.

MR WALSH:   His Honour Justice Cox deals with it at page 29, your Honour, before that point at line 50, where his Honour says that:

While the Judges in the Brisbane South Case do not speak with a single voice, they all stress -

and his Honour does not take up the point that is taken up by Justice Debelle and Justice Perry and what Justice Perry said appears at page 38 at the foot, line 45, and you will see at the foot that his Honour said:

I would add, however, that I view the decision of the majority of the High Court in Brisbane South Regional Health Authority v Taylor as indicative of a somewhat more stringent approach -

and then his Honour Justice Debelle responded to that at the foot of page 39 and said that he was not prepared, “at this stage”, to say that that is so, so that what we have in this State at the very least ‑ ‑ ‑

GUMMOW J:   They both came to the same result.

MR WALSH:   They did on the facts of the case but what has happened in this case is that if there is presumed prejudice, what has been overlooked by the Full Court is that if there is presumed prejudice then it is not a matter of just balancing those two, the prejudice to the applicant and the prejudice to the defendant and saying that is the end of the matter after that balance.

As your Honour Justice Gummow said with his Honour Justice Toohey that in the case of Taylor itself, which is also contained in the books, at the foot of page 549 of the actual decision - the decision commences in the secondary or supplementary application book and I am sorry, I have lost the actual page number but it appears in that supplementary book.

HAYNE J:   Page 16, I think.

MR WALSH:   Yes, thank you, your Honour.  I am now referring to the actual page in the decision itself, but if one goes to the foot of page 549 of the decision itself, your Honour Justice Gummow with Justice Toohey said this, in the last paragraph:

In this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent.  In one obvious sense the prejudice to the present respondent is absolute if her application is refused.  She can never litigate her claim.  But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised.

The point that we are making in this case is that there is nothing other than the prejudice to the plaintiff that is in favour of the plaintiff in this case.  What we do know is that ‑ ‑ ‑

GUMMOW J:   What we were saying:  there is a limit to the after sales service that we can provide in these matters.  What we were saying, which is pretty clear, was all about section 31(2) of the Queensland Act.

MR WALSH:   Yes.  Well, your Honours, what I am putting to the Court is this, that, in fact, if all that ‑ ‑ ‑

GUMMOW J:   If people will not read judgments as they are written, carefully, and if people persist in extracting paragraphs, well so be it, I suppose.

MR WALSH:   Well, if your Honour pleases, there is uncertainty.  Whether that is justified or not, there is uncertainty in a very important practical area and if one turns to the actual decision itself of the Full Court, if we are right and the Full Court has overlooked the fact of presumed prejudice which it must have ‑ ‑ ‑

GUMMOW J:   All three judges came to the same result, did they?

MR WALSH:   They did, your Honour, but that does not mean that they may not have erred.  They had to exercise ‑ ‑ ‑

GUMMOW J:   I know but it makes it an inconvenient vehicle.

MR WALSH:   No, with respect, your Honour, what it has done is it has left - that authority has the practical effect in this State of meaning that the onus still remains on the defendant.  That is the effect of the decision because if the issue of prejudice is going to be going determinative, presumed prejudice in this case not offsetting the prejudice to the plaintiff, all other factors being against the exercise of discretion, including, as I indicated earlier, the long delay, inordinate, the delay not being explained, the plaintiff could not be bothered bringing an action, in other words, he slept on his rights for 14 years.  He knew, as the Full Court pointed out by way of an excerpt of the evidence, that he could have brought a claim.  He knew that at the time of the accident when he was 20 and for 14 or 17 years thereafter he chose not to bring a claim.

As to the actual prejudice and the presumed prejudice, one might postulate this in this case:  the trial judge said, “This is an uncomplicated accident.”  Of course it was because there was not any evidence that might show it was not uncomplicated and the very matters that his Honour Justice McHugh referred to in Taylor’s Case become very important in a case of this kind, such as, for example, might there have been a frolic of some sort, might there have been evidence to suggest that the plaintiff did, in fact, know that the driver was under the influence of alcohol and voluntarily accepted the risk.

What the Full Court has done has said, “We don’t think there is significant prejudice or it has been rebutted in a sense.”, and then goes on to find, “But there is some evidence to show some contributory negligence when the trial judge said there wasn’t. To do that means you have to inquire as to what that evidence is”, and then made a decision based upon limited evidence as to what the circumstances of the plaintiff’s knowledge might have been about the alcohol that was consumed by the driver, all in the context of a trial being heard some 17 years after the event.  So that one can see that it has enormous practical significance.

If this decision remains on foot, if leave to appeal is not granted and it remains as an authoritative decision of this Full Court, of the Full Court of the Supreme Court, in effect, Taylor’s Case has been.....in a practical sense.  It means that merely because there is prejudice on the part of a plaintiff and only slight actual prejudice as accepted by the court to the defendant, no real comment on the topic of what the presumed prejudice might be, it effectively means that the onus of proof is on the defendant.

Now, that is clearly not what Taylor’s Case is all about.  If anything can be elicited from Taylor’s Case as a ratio, it is that the onus is on the applicant for an extension of time to demonstrate that it should be granted.  There is a positive burden.  His Honour Justice Dawson ‑ ‑ ‑

HAYNE J:   If that is so, that will still bind the courts in this State, will it not?  If the proposition you contend for is right, it binds.

MR WALSH:   Indeed, and what will happen is that the court will be left in a conundrum.  For example, there was recently ‑ ‑ ‑

HAYNE J:   There is not much conundrum if there is binding authority of the High Court, is there?

MR WALSH:   When you look at the decisions of Justice Debelle versus Justice Perry on a very important issue, namely, whether the test is more stringent, what does a lower court do with that, I say rhetorically.

GUMMOW J:   That will be sorted out by the court in Adelaide in another matter, I suppose.

MR WALSH:   But with the greatest respect, your Honour, the fact is that the answer of the court in Adelaide may well be, “Well, we don’t know”, much the same as the Full Court of New South Wales Appeal Court will be left in exactly the same position possibly as his Honour President Mason observed.

HAYNE J:   Namely, that in the exercise of the discretion of this kind it would be unusual if a court could say, “In all such cases here are the rules that will lead you to your answer.”  The discretion is the discretion and what you seek to have us do is to say that the particular facts of this case excite particular rules applicable in their own curious collection.

MR WALSH:   What I seek to do is to show or demonstrate to the Court that the principles are not clear.  The fact that the principles are not clear has led to an error in the exercise of the discretion in this case and that that will continue to happen if this Court leaves the position as it is understood, rightly or wrongly, by not only this Full Court, namely, one of some controversy, but also the Full Court of the Supreme Court of New South Wales.

Now, the fact remains that when a lower court is having to deal with that issue it will naturally be left in a quandary as to what the position is and, indeed, that has happened.  I mean, as recently as this Tuesday there was a case stated from a lower court to the Full Court about this very issue and what Taylor’s Case might be about.  Now, in our respectful submission, what might be the result?  The result may be ‑ ‑ ‑

GUMMOW J:   The Bar will take to reading Taylor’s Case clearly and correctly and with a view to the particular statute and see what happens.

MR WALSH:   In our respectful submission, I remind the Court - and I did not put my point because I moved on to a new one - the same discretion ‑ ‑ ‑

GUMMOW J:   The Bar would always much rather construe a case decided on another statute than construing the statute immediately at hand.  It happens all the time.

MR WALSH:   In our respectful submission, the principles in Taylor’s Case are applicable to limitation actions in general.  It may well be that it was dealing, of course, as it must, with a particular legislation but, in our respectful submission, it was dealing with principles of general application to the exercise of discretion.  Those principles are equally applicable to the case at Bar and to the South Australian legislation and, indeed, if you look at the New South Wales legislation, that is different to the legislation in Queensland.

GUMMOW J:   It is like nothing else anywhere in the world, I think, the New South Wales Limitation legislation.

MR WALSH:   If the Court pleases, my time is up I note and I remind the Court, of course, of the issue of the new material fact which was not dealt with in Sola Optical v Mills.

GUMMOW J:   Yes, we have that in mind.

MR WALSH:   Yes, thank you, your Honour.

GUMMOW J:   We do not need to call on you, Mr Tilmouth.

MR TILMOUTH:   If the Court pleases.

GUMMOW J:   This case turned upon the exercise of discretion reposed by statute.  There are insufficient prospects of success of an appeal to this Court and, in any event, this is an unsuitable vehicle for the determination of the issues of principle which are said to arise.  Accordingly, special leave to appeal is refused.

MR TILMOUTH:   Yes, I apply for costs, if the Court pleases.

GUMMOW J:   Yes, refused with costs.

AT 4.35 PM THE MATTER WAS CONCLUDED