Reeman v State of Queensland; State of Queensland v Stephenson

[2005] HCATrans 452

[2005] HCATrans 452

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 2005

B e t w e e n -

SCOTT WILLIAM REEMAN

Applicant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
  Brisbane  No B3 of 2005

B e t w e e n -

STATE OF QUEENSLAND

Applicant

and

PETER ROBERT STEPHENSON

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.10 AM

Copyright in the High Court of Australia

__________________

MR D.B. FRASER, QC:   Your Honours, just as a preliminary matter I appear with MR G.R. MULLINS for the applicant in the matter of Reeman and for the respondent in the matter of Stephenson.  (instructed by Gilshenan & Luton)

MR R.J. DOUGLAS, SC:   If it please the Court, I appear with MR D.J. CAMPBELL, SC for the State in each matter.   (instructed by Crown Solicitor for the State of Queensland)

GUMMOW J:   Yes, we will hear first from you, Mr Douglas. Now, you do not say yes and you do not say no.

MR DOUGLAS:   Well, no, not so much that, Justice Gummow.

GUMMOW J:   Anyhow, just get on with it.

MR DOUGLAS:   Thank you.  Your Honours, our learned friends seek to champion the reasoning of Justice Davies in this matter, but just as a precursor to that it must be said that even our learned friends at first instance submitted to the Court of Appeal that the relevant issue, namely the material fact of the decisive character after the critical date, in each matter had to be established.  His Honour Justice Davies did take a different turn in that regard.

GUMMOW J:   Your real problem seems to be there was no clear guidance been given by the Court of Appeal given the varied grounds in the reasoning which trial judges can use in the daily operation of this important statute.

MR DOUGLAS:   Your Honour, that is certainly the submission put on behalf of our learned friends.  The submission we put in contest to that is this, that the essential reasoning of Justice Chesterman and Justice Williams were such that their legal reasoning was ultimately united, but the difference between them lay in the application of the facts of the case.  The cases were similar except that in the Reeman Case the finding of fact of the trial judge was to the effect that the retirement of the applicant in question was not only imminent but there was no impediment, as existed in the Stephenson Case, to the pursuit by that applicant of rights consequent upon the termination of his employment, namely by way of his retirement and services rights, which in the case of Stephenson would have accrued that particular claimant, it was found, $267,000.  In contrast, and this was the basis upon which his Honour Justice Williams decided the matter differently on the facts in the Reeman Case, there was no such impediment that existed to constrain Mr Reeman if in order to at that time pursue a cause of action. 

Now, that is the factual distinction.  We would submit that but for that disparate factual circumstance, the reasoning of Justice Chesterman and Justice Williams is essentially intact and, to respond to your Honour’s point to us, does provide the reasoning process sufficient to afford guidance to trial court judges in this State on these issues.  There is no question, your Honours, that limitation extension applications come frequently before the courts in this State but not very often turning on this distinction, with respect.

GUMMOW J:   Yes.  What is the limitation period in this State generally now?

MR DOUGLAS:   The limitation period is three years for personal injury cases.

GUMMOW J:   Well, that is the problem, is it not?

MR DOUGLAS:   Yes.  And it is a relatively short period.  It has been longer than that, as your Honours know, in other States but generally it seems to have come back towards the three-year mark in those other States in recent times.  Your Honours, the other points ‑ ‑ ‑

GUMMOW J:   It has gone in the other direction in the Trade Practices Act, has it not?

MR DOUGLAS:   It has.  It has been increased under section 82 of the Trade Practices Act for non-personal injury cases up to six years.  That is quite correct; it was three years.  That was changed, I think, about three or four years ago.  These are personal injury cases, your Honours, and they are different, we would submit, to the extent this is reflected in the legislature and there is much more likely to be, we would submit, some prejudice which may be involved to the defendant party in dealing with that.  We acknowledge in response to that the Court does enjoy a penultimate discretionary power either to allow or dismiss the application.  But at the same time that serves to juxtapose the differences that might exist in the example you just gave us from the Trade Practices Act. 

Responding to your Honours, our essential submissions are in the outline and we would submit that proper guidance is afforded by the judgments of Justices Chesterman and Williams for the trial court in circumstances where, with the exception of New South Wales causes of action, if I can put them that way, that accrued prior to 1990, the Queensland legislation is as a scheme quite unique in utilising the notion of material fact of decisive character.  Your Honours, those are our submissions; otherwise we rely upon what is in our outline.

GUMMOW J:   Thank you.  Well, Mr Fraser, in No 3 you might be pushing at an open door.  Is there anything more you want to say?

MR FRASER:   Only that what we have said in our outline about there being no particular need in the interests – or any serving of the interests of justice by taking Mr Stephenson up as well.  Mr Reeman’s case is one where he has been shut out.  Mr Stephenson has succeeded on a view which, in our submission, is entirely consistent with the plain meaning of the legislation.  There is no suggestion of prejudice to the Crown and that it was accepted that he had established everything that he otherwise needed to establish in order to secure the grant of an extension.  It really is a most unfortunate consequence for Mr Stephenson if he is taken up, as it were, as a side wind to the success by Mr Reeman in persuading the Court that this is a matter in which ‑ ‑ ‑

GUMMOW J:   Yes, experience teaches there might be pitfalls in taking half the cake, I think.

HEYDON J:   But are you asking for some protection in costs?

MR FRASER:   No, I was really submitting that Mr Stephenson’s case has the disqualifying circumstances that is put forward by the Crown as

defensive mechanism or by the status of defensive mechanism and it does not involve a litigant being shut out.  With respect, the interests of justice are not best served by taking his case along as well because everything that needs to be achieved by giving proper guidance to the courts below would be achieved by resolving the issues in Mr Reeman’s case.

GUMMOW J:   Thank you.  Yes, Mr Douglas, do you want to say anything?

MR DOUGLAS:   Do your Honours wish to hear me in response to my learned friend on both cases going forward?

GUMMOW J:   No.

MR DOUGLAS:   Thank you.

GUMMOW J:   Yes, there will be a grant of special leave in each of matters 2 and 3.  They will be argued together and constitute a one-day appeal.  Thank you, gentlemen.

AT 10.19 AM THE MATTERS WERE CONCLUDED