Rawlins v Commonwealth of Australia

[2002] FCA 439

FEDERAL COURT OF AUSTRALIA

Rawlins v Commonwealth of Australia [2002] FCA 439

GAIL RAWLINS v COMMONWEALTH OF AUSTRALIA

NG 736 OF 1993

EMMETT J
4 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 736 OF 1993

BETWEEN:	GAIL RAWLINS APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	4 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 736 OF 1993

BETWEEN:	GAIL RAWLINS APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	EMMETT J
DATE:	4 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application by motion filed on 27 March 1996 for summary dismissal of this proceeding.  The proceeding was commenced by a writ filed in the High Court of Australia on 31 August 1993.  By consent orders made on 10 September 1993 that the proceeding be remitted to the New South Wales Registry of the Federal Court of Australia.  Since that order there have been many directions hearings but apart from the filing of the defence and an amended defence, nothing further has happened.  The respondent, the Commonwealth of Australia, now seeks summary dismissal either on the basis of want of prosecution pursuant to Order 30 rule 5 of the Federal Court Rules or on the basis of frivolity pursuant to Order 20 rule 2 of those Rules. 

2. The claim is brought under the Compensation to Relatives Act 1897 (NSW) by the widow of Thomas John Rawlins who was a member of the Royal Australian Navy. The allegation is that Mr Rawlins’ death was occasioned by negligence of the Commonwealth by causing him to be onboard HMAS Shoalhaven during October 1952 when atomic bomb tests were conducted at Monte Bello Islands off the coast of Western Australia.

3. Following Mr Rawlins’ death, the applicant lodged claims with the Department of Veterans’ Affairs.  There were then appeals against decisions and applications for review of various decisions.  That culminated with an order of the Repatriation Review Tribunal on 19 November 1994 granting the applicant a war pension on the basis that a condition of the deceased may have been caused by smoking.  That was, presumably, induced by his operational service. 

4. In the writ filed in the High Court an application for extension of time under the Limitation Act 1969 (NSW) was foreshadowed.  However, there is a strong view that the Limitation Act 1935 (WA) is the applicable legislation and that it would be necessary for relief to be granted in respect of that Act. In the amended defence filed on behalf of the Commonwealth, the limitation defence is raised. No application has been made in respect of that defence. No steps have been taken on behalf of the applicant to bring the matter on for trial. There is some justification for some delay in that this proceeding is one of a number of proceedings that have been managed together because they all arise out of similar claims. Nevertheless, the matter has been mentioned on at least fifteen occasions without any forward progress.

5. On 9 August 1995 the Australian Government Solicitor (“AGS”), acting for the Commonwealth, wrote to the then solicitors for the applicant inquiring whether the matter would be discontinued.  On 4 September 1995 the applicant’s solicitors indicated that the matter should await the outcome of the proceeding Cubillo v The Commonwealth (Federal Court of Australia, Foster J, 14 December 1995, unreported).  That case was decided in December 1995. 

6. On 1 February 1996 the amended defence pleading the Limitation of Actions Act 1935 (WA) and the Limitation Act 1969 (NSW) was filed. On 22 February 1996 the AGS wrote to the solicitors for the applicant saying that if the matter was not discontinued within twenty-one days, an application would be made for the matter to be struck out. This motion was then filed on 27 March 1996. On 23 July 1999 discussions took place between the solicitors for the parties to discuss alternative avenues besides litigation available to the applicant. On 13 August 1999 the applicant’s solicitors sought clarification of the details discussed at that meeting as to the nature and scope of alternative dispute resolution mechanisms offered by the Commonwealth and an indication as to whether the Commonwealth was prepared to waiver requirement for the majority of plaintiffs in the associated cases to seek an extension of time under the limitation legislation.

7. On 8 September 1999 information concerning the nature and scope of alternative dispute resolution mechanisms offered by the Commonwealth was furnished to the applicant's solicitors.  On 22 December 1999 the AGS wrote to the applicant’s solicitors indicating it was not possible for the Commonwealth to give a blanket consent to the extension of time.  The letter indicated that that question could only be answered after a full analysis of each statement of claim and the evidence in support of the extension.

8. After the exchange to which I have just referred, there was no further request for consideration of alternative dispute resolution mechanisms, and as I have said, the applicant has not filed any further formal application for extension of time and has certainly filed no evidence in support of the application contained in the original proceeding before the High Court.  In September 2001 there was a change of solicitors acting for the applicant.  That change, however, does not appear to have produced any change in the speed with which the matter has been prepared.

9. Shortly before the matter came on for hearing today, notice of ceasing to act was filed on  by the second solicitors and there was no appearance for the applicant when the motion was called for hearing today.  In the meantime, however, there were further exchanges of correspondence with the solicitors.  The final communication from the first solicitors was a letter of 17 September 2001 enclosing a copy of an opinion of Mr H. Bauer of counsel, given in relation to the claim.  The circumstances in which the solicitors wrote the letter are not clear, but their action was unequivocal and the letter was not marked in any way to suggest that it was by way of a settlement negotiation.

10. The opinion of Mr H. Bauer is undated.  It says that for the applicant to succeed, the following matters would have to be established:

    (a)       there was exposure to ionising radiation,

    (b)       the person was injured as a result of that ionising radiation,

    (c)       the exposure was the result of the negligence of the employer.

    The opinion makes reference to correspondence from the AGS saying that on the day the weapon was fired HMAS Shoalhaven was one hundred miles east-north-east of Monte Bello Islands and that it sailed to Melbourne two days after that firing.  The conclusion of counsel was that it was not possible for the applicant, under those circumstances, to demonstrate exposure to ionising radiation and that the matter should be discontinued. 

11. The solicitor for the Commonwealth who appeared on the hearing of the motion informed the court that he had had discussions with the applicant in person following the cessation to act by her present solicitor.  I am informed that it is the understanding of the AGS that the applicant does not wish to proceed with the matter.  Be that as it may, I am satisfied that the proceeding should be dismissed summarily for want of prosecution and on the basis that in the light of the opinion, it would be frivolous or vexatious for the matter to proceed.  Accordingly, I propose to dismiss the application.  The Commonwealth does not ask for costs in relation to the proceeding generally or in relation to the motion, and accordingly, I will make no order as to costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            10 April 2002

Counsel for the Applicant:	There was no appearance for the applicant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 April 2002
Date of Judgment:	4 April 2002