Re Religious Sisters of Charity of Australia

[1992] QCA 443

[1992] QCA 443

COURT OF APPEAL

PINCUS JA

Appeal No 243 of 1992

IN THE MATTER OF S92(2) OF “THE DISTRICT COURTS ACT OF 1967"

and

IN THE MATTER OF “THE SUPREME COURT ACT OF 1990"

and

IN THE MATTER OF THE APPLICATION BY THE CONGREGATION OF THE RELIGIOUS SISTERS OF CHARITY OF AUSTRALIA TRADING AS MT OLIVET HOSPITAL FOR LEAVE TO APPEAL AGAINST THE DECISION OF HIS HONOUR ACTING JUDGE M J GRIFFIN PRONOUNCED ON 22.10.92 UPON THE APPLICATION OF DESLEY RHONDA FITZPATRICK

BRISBANE

..DATE 18/11/92

JUDGMENT

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HIS HONOUR: This is an application for leave to appeal from
a judgment of the District Court given on 22 October 1992 in
a suit which had been instituted on 17 July 1992. The
application which was determined on 22 October was one made
under s 31(2) of the Limitation of Actions Act 1974 and it
depended upon the applicant showing that a material fact of
a decisive character within the meaning of that section was
not within her means of knowledge until after 8 December
1990. The Judge found that although the applicant knew of
the circumstances of the injury of which she complained, it
was not until 12 months preceding 17 July 1992 that she
became aware of the nature and extent of the original injury
and its effect upon her. He accepted the applicant's
assertions made in a certain affidavit to which I will refer
in more detail and that led him to a favourable conclusion
on the whole case. The complaints which are made about the
Judge's mode of proceeding are three but I will mention two
of them only.

First, it is said and not disputed that the respondent to the application sought leave to cross-examine the applicant and that was refused. It is said by Mr Clifford QC, who appears in this application for leave, that the refusal will, if it is allowed to be argued by way of appeal, raise

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a significant issue as to how this sort of case should be
conducted. Secondly, Mr Clifford says that there is an
important question of justice in that natural justice was
denied to his side; in substance they did not get a fair
opportunity to contest the case which was put before the

District Court.

The affidavit of the plaintiff to which I have referred says
that it was only in the 12 months preceding 17 July 1992
that she became (a) aware of the fact that negligence on 8
December 1988 caused the symptoms she had been experiencing
since in or about July 1991, and (b) aware of the nature and
extent of those injuries. An affidavit was put in on the
other side by one P M Taylor who said that on 15 July 1991
she had a conversation with the plaintiff and was told she
had been suffering pain and numbness for the previous six
months; that the cause of the symptoms was two bulging
discs; and that she had previously been told by a doctor not
to go back to work due to her back condition.

The affidavit of P M Taylor on the face of it would, if accepted, seem to create some difficulty in accepting what the plaintiff said in her affidavit. The way in which the Judge dealt with it was as follows:

“It was urged upon me in argument by counsel for

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the respondent that the affidavits of Pamela
Margaret Taylor support knowledge by the plaintiff
of the origin of her later condition. I reject
this contention on the basis that the notes of
conversation Exhibit PMTl to the affidavit of 7
October 1992 are imprecise in relation to the
nature of the injury and may well have led the
deponent to an incorrect recollection of that
conversation had more than 12 months prior to the
swearing of the affidavit.”

I should mention that His Honour's reference to “affidavits" in the plural is due to Pamela Margaret Taylor having made a further affidavit which elaborated somewhat upon her earlier affidavit.

It immediately strikes one, in my view, that His Honour must
have had some difficulty in reaching his conclusion.
Accepting that the notes arguably created difficulty in
acting on the conversations sworn to by P M Taylor, still,
it may have been that if the matter had been fought out more
comprehensively His Honour might have been convinced that
something to the effect of what was said to have been told
to P M Taylor was, in fact, said. It could well have reached
the result that the plaintiff's case would have been
rejected. In answer to all that, Mr Lee, who resists the
granting of the leave, says in effect that His Honour was
entitled to refuse leave to cross-examine because, he said,
there was not any issue raised. He said that if you read the

affidavit of P M Taylor carefully you will see that it does

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not really contradict anything the plaintiff says.

In view of the fact that it is conceivable that I will be
sitting on this appeal, I do not propose to express a view
about that other than to say that the proposition seems to
me to be arguable. It is more important, I think, to notice
that His Honour in the District Court had to decide a rather
fine and difficult point. It seems to be common ground that
there was substantial back trouble after the incident which
is complained of in the suit and His Honour held, in effect,
that the cause of it and the nature and extent of it were
not known by the plaintiff until late enough to enable the
plaintiff to succeed in the application under the
Limitations Act. It is my opinion that to refuse leave to
cross-examine, particularly (as I am told by Mr Lee) without
any submission on his behalf, does create difficulties. It
may be that, as Mr Lee submitted, if the matter is argued
out His Honour's exercise of discretion will be upheld, but
prior to that there is the question of the basis on which
such a discretion should be exercised. It is contended here
that there is untrammelled discretion and that the Court of
Appeal should say nothing about it. That may be so, but it
is common that rightly or wrongly when a wide discretion
exists Courts do lay down rules for the exercise of it - or

at least, guidelines - and, of course, applications under

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what used to be called the TFM Act are a familiar example of

that.

In my view, although one hesitates to give leave in such a
matter as this, because to do so inevitably holds up the
resolution of the dispute, one is left with a sense of
unease on both the points raised by Mr Clifford. Firstly,
whether or not His Honour's exercise of discretion was right
- and Mr Lee says that the exercise of discretion was within
permissible limits - and, secondly, whether or not the
applicant had what might be described as a fair trial. As to
the first point, I think there is a significant question
raised as to the way in which these matters should be
handled. One can understand a reluctance on the part of the
Court to hold what Mr Lee described as a mini trial, but
there must be some reasonable foundation for doing what the
Judge here held he had to do, which was to decide between
what seemed to me to be, on the face of it, two stories
difficult to reconcile one with the other.

As to the second point, I think that a private litigant in the position of the loser in the District Court would arguably be entitled to think that the matter had been decided in an excessively summary way. I do not for a moment hold that if the appeal is pursued it must succeed. It may

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be that Mr Lee's submissions will triumph. But I think there
are sufficiently arguable points raised in the matter to
require the grant of leave. I say "require” having regard to
the fact that in my opinion a reason for granting leave is
to enable the Court of Appeal to do the very thing which Mr
Lee says should not be done; that is to consider whether
some guidance should be given in these cases - which seem to
be reasonably common - where an important decision, held to
be interlocutory but, nevertheless perhaps in some cases
finally decisive, has to be made on affidavits. I therefore

propose to allow the application.

I will give the applicant - that is, the proposed appellant
Congregation - leave to appeal to the Court of Appeal
against the Judgment of the District Court given on 22
October 1992.

I make the costs of the application for leave costs in the appeal.

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