Ross v Commonwealth of Australia
[2022] VSC 779
•16 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2017 02005
| CHRISTOPHER JAMES ROSS | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November and 2 December 2022 |
DATE OF JUDGMENT: | 16 December 2022 |
CASE MAY BE CITED AS: | Ross v Commonwealth of Australia |
MEDIUM NEUTRAL CITATION: | [2022] VSC 779 |
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PRACTICE AND PROCEDURE — Adjournment — Self-represented litigant — No valid rationale or explanation for plaintiff’s absence — Magjarraj v Asteron Life Limited [2009] NSWSC 1433.
PERSONAL INJURY — Preliminary trial — Action for damages against Commonwealth — Member of defence force — Service injury — Choice to bring action for common law damages — Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 — Walsh v Commonwealth of Australia (1998) 145 FLR 194 — Military Rehabilitation and Compensation Act 2004 (Cth) ss 388 and 389 — Safety Rehabilitation and Compensation Act 1988 (Cth) ss 44 and 45 — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | C Dowsett | Australian Government Solicitor |
HIS HONOUR:
The plaintiff, Christopher Ross, was a serving member of the Australian Army Reserve in the mid-2000s.
In 2015, Ross made a claim under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘MRCA’) for compensation for a service-related injury described as a stress fracture of the left leg. In the application Ross described the cause of the injury as following a training program given to him by the Army when he applied for a transfer to the Special Forces. The defendant accepted liability for the injury under s 23(1) of the MRCA.
In May 2017, Ross commenced this proceeding alleging there was negligence by the defendant that was a cause of the injury to his left leg and of the loss and damage suffered by him as a result.
Actions for damages against the Commonwealth by a member of the defence force in respect of a service injury are governed by pt 2 of ch 10 of the MRCA. Such an action does not lie against the Commonwealth unless the member makes an irrevocable choice in writing to institute an action. The defendant alleged Ross did not make a choice as required by s 389 of the MRCA before commencing the proceeding and that, as such, it is a nullity and should be dismissed. In the alternative, the defendant alleged Ross’s action was barred because it was brought outside the period provided by the Limitation of Actions Act 1958 (Vic) (‘LAA’).
The MRCA and limitation issues raised by the defendant were listed for preliminary trial under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Background
In March 2015, Ross made a claim under the MRCA for a service-related injury described as a stress fracture to the left leg. Ross sought compensation for incapacity payments, treatment, rehabilitation and permanent impairment.
The claim form set out that Ross was a member of the Army Reserve from November 2003 to July 2006.
In response to a question about how his service injury was caused Ross said:
I was following the 13 week Special Forces Training Program that was given to me by the Army when I applied for a transfer to the Special Forces. Prior to this, I was also undertaking the physical training program in this booklet: [preparation guide for Special Forces].
Ross wrote that the injury happened on 2 June 2005 and that he first noticed symptoms of the injury in May 2005. He gave the name of his treating general practitioner as Dr J Lichtblau.
The claim form appears to be signed by Dr Lichtblau. The medical diagnosis recorded in the form is as follows:
Left tibial stress fracture.
Bone scan 1/6/2005 evidence of stress fracture.
Referred for scan bone nuclear 31/5/05.
The defendant, via the Initial Benefits Team of the Department of Veterans Affairs (‘DVA’), acknowledged receipt of the claim by Ross on 21 April 2015. On 2 July 2015 the defendant accepted liability under s 23(1) of the MRCA effective 2 June 2005 for the injury recorded as stress fracture of the left tibia. In that decision, the defendant confirmed peacetime service by Ross as a member of the Reserve forces between July 2004 and July 2006. The letter accepting liability read in part:
Your service medical records indicate that the above injury was caused by your training for the Special Forces in satisfying the above [statement of principles] factor. I am therefore reasonably satisfied that your stress fracture of the left tibia arose out of your Defence service employment.
In July 2015, Ross made a further claim under the MRCA for a psychological condition. That claim was rejected by the defendant in August 2016. The letter of rejection reads in part:
As I have been unable to identify any disease or injury that meets the requirements of the legislation your claim is therefore rejected.
Ross filed a writ to commence this proceeding in May 2017. In the accompanying statement of claim, Ross pleaded that as an Army Reservist he applied for Special Forces selection, for which he successfully undertook psychological and medical assessments in October 2004. He pleaded that at completion of the assessments he was instructed to follow closely the ’13-week pre-Special Forces Selection Training Program Guide’ (‘Program Guide’) to prepare himself for the rigours of the Australian Army commando selection course. Ross pleaded:
After completing a ‘pack march’ as required in the latter stages of the Program Guide, Plaintiff begun experiencing abnormal pain in his lower left leg and went was seen by his local GP, Dr J Lichtblau, who instructed Plaintiff to undergo a Bone Scan and see a Sports Physician.
Ross pleaded that he then sought treatment from Dr Lichtblau.
Ross pleaded that in August 2005 he was told the Army would treat his injury, and that as a result he provided relevant medical documents to his commanding officer, and did not return to his own doctors for further treatment. Ross pleaded that no treatment was provided to him.
Ross pleaded that in May 2006 he was ordered to perform a basic fitness assessment, during which he began to feel pain in his lower left leg. Believing this to be a recurrence of the stress fracture to his left tibia, Ross elected to resign from the Army Reserve. Ross pleaded: ‘To date Plaintiff still suffers physically and psychologically from this injury and has been forced to consult with numerous medical professionals for treatment.’
Ross pleaded details of his psychiatric diagnosis and treatment, which he alleged were directly due to the negligent actions by the defendant in relation to the medical treatment and care of the injury he sustained as a Special Forces candidate in his time in the Army Reserve. By way of compensation, Ross sought damages for loss of earning capacity, vocational rehabilitation and general damages.
In February 2018, Ross emailed the DVA advising of his intention to pursue common law damages rather than any permanent impairment benefits that might be available under the MRCA. On 6 March 2018, a DVA officer wrote to Ross acknowledging his email as confirmation of his choice in writing pursuant to s 389 of the MRCA. However, in August of the same year, a second DVA officer wrote to Ross advising that a valid choice to institute an action for common law damages could only be made after the DVA had assessed and determined that Ross was entitled to permanent impairment compensation for his accepted compensable conditions. Ross responded in September 2018 by requesting that the DVA undertake a permanent impairment assessment. The email from Ross read in part:
Please note, in my common law suit, I will be seeking both compensation for economic and non-economic loss and damages, and for non-economic loss that is outside the DVA legislation. For this reason, at no stage will I ever accept any compensation from the DVA, however I will follow your instructions as stated, so my law suit is ‘valid’.
In January 2019, the DVA wrote to Ross advising he was not entitled to an impairment benefit. The letter read in part:
In order for Permanent Impairment compensation to be paid under section 68 of the MRCA, I must be reasonably satisfied based on medical evidence that your conditions meet a minimum of 10 impairment points. The medical evidence provided by the doctor(s) indicates that this minimum is not met at this time.
This is not to say that your impairment will not meet this threshold in the future. If your conditions deteriorate or there are new conditions accepted under the MRCA, I invite you to request a new assessment. As things change, your entitlement to compensation may also change.
Procedural issues and adjournment
This proceeding has a long and difficult history. Ross has been self-represented throughout. He has repeatedly, but unsuccessfully, agitated in this proceeding and in other forums the issue of funding for his legal representation.
The preliminary trial of the MRCA and limitation questions has been listed on a number of occasions. On each occasion Ross has resisted the trial proceeding. Most recently, the preliminary issues were listed for trial on 13 September this year. Very shortly prior to the hearing Ross filed an application to adjourn, supported by an affidavit. However, without explanation, he did not appear to argue the adjournment or the preliminary issues. The material on which Ross relied indicated that he was in the process of engaging lawyers to provide advice about his action. In the circumstances, the defendant consented to an adjournment of the hearing to provide Ross an opportunity to obtain advice from the lawyers. The preliminary trial was adjourned to 6 October 2022.
Shortly before 6 October, Ross and his lawyers separately communicated to the Court indicating that the lawyers were in the process of obtaining instructions and providing advice. On that basis a request was made for a further adjournment of the preliminary trial for a period of six weeks. Before the hearing date, the defendant acceded to that request. The preliminary trial was adjourned to 28 November.
The lawyers instructed by Ross have not filed an appearance or taken any step to formally represent him in the proceeding.
In the week prior to the trial on 28 November, Ross communicated with my chambers on a number of occasions. Amongst other matters Ross communicated that he was unwell with the flu and would be unable to attend the trial on 28 November, and on that basis sought an adjournment. At my instruction my chambers communicated to Ross that any application to adjourn should be supported by medical evidence from his doctor as to his incapacity to attend the hearing.
The preliminary trial of this proceeding was conducted remotely by audio-visual link. All hearings in this proceeding have been conducted in the same way over the last two and a half years. Ross has been able to engage in those hearings and to represent himself without apparent difficulty.
On the afternoon of 27 November, Ross provided a document dated 25 November headed ‘Medical Certificate’ that read:
THIS IS TO CERTIFY THAT
Mr Christopher Ross has a medical condition and has been unfit for work from 22/11/2022 to 28/11/2022 inclusive.
The medical document appears to be signed by a doctor.
At the same time, Ross provided a draft summons and an affidavit and submissions in support. The affidavit records that it was affirmed by Ross at the Geelong Magistrates’ Court on 25 November. The affidavit exhibits documents relating to engagement of lawyers and the attempt by Ross to arrange to be examined by a medico-legal psychiatrist. The affidavit contains no evidence going to the health issues relevant to Ross’s adjournment application.
Ross did not appear when the hearing commenced at 10:30am on 28 November. I stood the matter down until 12 noon. At my instruction my chambers communicated to Ross to inform him the preliminary trial had not been adjourned and invited him to attend remotely when the hearing reconvened at 12 noon. Ross did not appear at that time.
No evidence was provided by Ross that explained or justified his alleged inability to engage in a remotely conducted court hearing on 28 November. The medical document is not evidence that Ross was unfit to attend the hearing. It does not record a diagnosis. It refers only to unfitness to attend work. No explanation is given of the work duties contemplated, or why Ross was incapable of attending to them. The document carries no weight.[1]
[1]Magjarraj v Asteron Life Limited [2009] NSWSC 1433, [20], [22] (Barrett J).
At the same time as he was claiming incapacity, Ross prepared and provided to the Court a number of documents upon which he sought to rely. These included an affidavit, which he attended the Magistrates’ Court at Geelong to affirm. There is an apparent inconsistency, which is unexplained by Ross, between his ability to engage in these activities and his alleged inability to attend a remote court hearing on 28 November.
I also note that the lawyers currently engaged by Ross, having informally requested of the Court a six-week adjournment from early October in order that they could provide advice to him, did not further communicate with the Court in relation to the trial on 28 November.
For these reasons I concluded on 28 November that the preliminary trial should not be further adjourned, and that the hearing should proceed in the manner indicated below, providing a further opportunity to Ross to be heard.
When the hearing recommenced at 12 noon on 28 November, I heard the submissions of the defendant relevant to the trial of the preliminary issues. I then adjourned the hearing to allow Ross a further opportunity to make submissions in writing or orally in relation to the preliminary issues. At my instruction, when transcript became available on 29 November, my chambers provided a copy to Ross so that he could be aware of the oral submissions made by the defendant. Ross was provided with an opportunity to make submissions in writing by 10:30am on 2 December, or to appear remotely at a reconvened hearing at that time to make oral submissions.
On 30 November, Ross emailed my chambers requesting a further adjournment of four to six weeks for him to make submissions about the preliminary issues. In the email Ross did not say he could not attend a hearing on 2 December because of ill health or any other reason. Ross did not take the opportunity to provide any further written submissions about the preliminary issues. He did not appear on 2 December 2022.
On 5 December 2022, Ross forwarded to my chambers an unfiled application by summons seeking an injunction to delay the delivery of this judgment along with an affidavit and submissions. I have read the material. No basis is disclosed for an injunction restraining the delivery of judgment. The issues raised by Ross in the documents relating to the limitation issue are not the subject of this judgment and therefore are not relevant to adjournment. Ross also alleged that he lacks capacity to represent himself in this proceeding. I have previously considered Ross’s mental health, and his capacity in relation to the proceeding. An arrangement was made for an appropriately qualified specialist to examine Ross. The specialist concluded he was capable of managing his affairs in relation to the proceeding. I note that while Ross has been diagnosed with a mental health condition, he has taken numerous steps in different legal proceedings and various forums outside formal court proceedings to pursue and advance his legal rights.[2] I do not accept that Ross’s mental health condition provides a basis for delaying judgment.
[2]Ross v Victoria Legal Aid Office [2022] VSC 473, [42] (Keogh J).
Analysis
An action for damages against the Commonwealth in respect of a service injury is governed by pt 2 of ch 10 of the MRCA. Under s 388 an action for damages does not lie against the Commonwealth in certain cases:
Subject to section 389, an action or other proceeding for damages does not lie against the Commonwealth, or a potentially liable member, in respect of:
(a) a service injury sustained, or a service disease contracted, by another member or a former member; or
(b) the loss of, or damage to, a medical aid used by another member.
Note: However, a person may choose to institute an action for damages for non-economic loss against the Commonwealth or the potentially liable member under section 389.
Relevantly, ‘member’ means a member of the Defence Force. The Reserves are included within the Defence Force.[3]
[3]Military Rehabilitation and Compensation Act 2004 (Cth) s 5.
‘Service injury’ and ‘service disease’ are relevantly defined in s 27 of the MRCA:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member; …
‘Defence service’ is defined in s 6 of the MRCA:
(1) In this Act:
(a) warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b) non‑warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act; and
(c) peacetime service means any other service with the Defence Force; and
(d) defence service means warlike service, non‑warlike service or peacetime service
The circumstances in which a member may institute an action for damages against the Commonwealth in respect of a service injury are governed by s 389 of the MRCA:
(1) A person may choose to institute an action or proceeding against the Commonwealth or a potentially liable member for damages for non-economic loss suffered by the person if:
(a) compensation is payable under section 68, 71 or 75 in respect of a service injury or disease of the person but the compensation has not yet been paid; and
(b) the Commonwealth or the potentially liable member would, apart from subsection 388(1), be liable for damages for that loss.
(2) A choice must be in writing and must be given to the Commission.
(3) A choice is irrevocable.
(4) If the person chooses to institute the action or proceeding:
(a) subsection 388(1) does not apply to the action or proceeding; and
(b) compensation under section 68, 71 or 75 in respect of the injury or disease is not payable after the date of the choice.
(5) In any action or proceeding instituted as a result of the person’s choice, the court must not award the person damages of more than $110,000 for non-economic loss suffered by the person.
(6) The person’s choice to institute an action or proceeding against the Commonwealth or the potentially liable member does not prevent the person from doing any other thing that constitutes an action for non-economic loss before, or instead of, formally instituting such an action or proceeding.
The entitlement of a member to compensation for permanent impairment is governed by s 68 of the MRCA:
(1) The Commonwealth is liable to pay compensation to a person if:
(a) the Commission has accepted liability for one or more service injuries or diseases (the compensable condition) of the person; and
(b) the Commission is satisfied that:
(i) as a result of the compensable condition, the person has suffered an impairment; and
(ii) the impairment is likely to continue indefinitely; and
(iii) the person’s compensable condition has stabilised; and
(c) a claim for compensation in respect of the person has been made under section 319.
Note 1: The impairment must constitute a minimum number of impairment points for compensation to be payable (see sections 69 and 70). However, the impairment points from more than one service injury or disease can be combined to make up that minimum number.
Sections 71 and 75 of the MRCA deal respectively with the entitlement to additional compensation and interim compensation.
The phrase ‘in respect of’ used in s 388 of the MRCA has the broad effect of barring a claim based on a member having suffered a service injury.[4]
[4]FJ (a pseudonym) v Commonwealth (2017) 55 VR 108, 154–56 [132]–[136] (Tate, Santamaria and Beach JJA).
There has been no authoritative consideration of the requirements of s 389 of the MRCA of which I am aware.
A number of authorities have considered the operation of ss 44 and 45 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRCA’). In a similar manner to s 388 of the MRCA, s 44 of the SRCA provides that an action for damages does not lie against the Commonwealth in certain cases. Section 45 of the SRCA, which covers similar ground to s 389 of the MRCA, is expressed as follows:
(1) Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
(2) Where an employee makes an election:
(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and
(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3) An election is irrevocable.
(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee.
(5) The election by an employee under this section to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non-economic loss.
The provisions of the SRCA were considered by the New South Wales Court of Appeal in Commonwealth of Australia v Flaviano.[5] The first respondent, a Lance Corporal in the Army Reserve, was injured when he was struck by a tourist coach being driven by the second respondent while travelling in a convoy of trucks in the course of his duties. After he had commenced proceedings against the second respondent for damages, the first respondent made what purported to be an election under s 45 of the SRCA to receive compensation for permanent impairment and non-economic loss. The second respondent then joined the appellant as a third party to the common law proceedings seeking to recover contribution for any liability to the first respondent. Relying on s 44 of the SRCA the Commonwealth argued it was not liable for any damage in respect of injury to the first respondent. Sheller JA, with whom Meagher and Beazley JJA agreed, said:
An election is a choice of alternative rights or claims. It may be made expressly or implied from conduct: see R P Meagher, W M C Gummow and J R F Lehane, Equity Doctrines and Remedies, 3rd ed (1992) at par 3915. While in some circumstances the institution of proceedings may be treated as an act of election, strictly speaking it is conduct from which an election may be inferred. Section 45 speaks of the employee electing in writing. I would infer that the employee is required so to express his or her election so that there can be no doubt about the matter. The requirements of the subsection are not met by conduct from which an election could be implied, such as the institution of proceedings to recover damages. That this is so finds support in the language of s 45. Subsection (2) provides that when an election is made, subs(1) does not apply in relation to an action or other proceedings subsequently instituted by the employee against the Commonwealth (my emphasis). Subsection (4) speaks of any action or proceeding instituted as a result of an election (my emphasis). With the greatest respect to the opinion of her Honour Judge McMurdo in Grogan v The Commonwealth, I do not think Mr Flaviano made an election in writing to institute an action or proceeding within the meaning of s 45(1) by instituting the action or proceeding.[6]
[5](1996) 40 NSWLR 199 (Meagher, Sheller and Beazley JJA).
[6]Ibid 203.
There is no reference in s 389 to a ‘proceeding subsequently instituted’. However, it is clear from sub-s 5, which speaks of a proceeding instituted as a result of a person’s choice, that an irrevocable choice must be made in writing before a proceeding is instituted.
The text of s 389 shows that the irrevocable choice in writing given to the Commission is different to the act of initiating an action or proceeding. An express choice in writing demonstrates the plaintiff’s informed choice between two inconsistent rights.[7] It is necessary that the choice be express so that there is no doubt that a deliberate irrevocable choice has been made.[8] Initiating proceedings alone does not amount to a such a choice.[9]
[7]Harris v The Commonwealth of Australia [2003] WASCA 220, [10] – [11] (Malcolm CJ) (‘Harris’).
[8]Ibid [9].
[9]Ibid [6], [8].
The construction of s 45 of the SRCA arrived at in Flaviano has been applied by courts at appellate level.[10] I conclude, consistent with these authorities, that the same approach should be taken to the construction and operation of s 389 of the MRCA.
[10]Austral Pacific Group Limited (in liq) v Airservices Australia (2000) 203 CLR 136, 148–9 [32]–[33] (Gleeson CJ, Gummow and Hayne JJ) (‘Austral’); Harris (n 7) (Malcolm CJ, McKechnie J).
The requirements of s 45 of the SRCA have been held to be substantive and not merely procedural.[11] The result is that s 44 operates to deny at the outset the existence of a cause of action.[12] The effect of s 45 is to deem s 44 never to have applied so as to allow an action to be validly instituted.[13] The plaintiff bears the onus of demonstrating that an election has been validly made.[14] I conclude those principles equally apply to ss 388 and 389 of the MRCA.
[11]Austral (n 10) 148–9 [32] (Gleeson CJ, Gummow and Hayne JJ).
[12]Ibid 145 [21].
[13]Ibid 146 [22].
[14]Ibid 149 [34].
There is no evidence of an irrevocable choice in writing made by Ross in accordance with s 389 of the MRCA before commencing the proceeding. As a result, s 388 applies to deny the existence of the cause of action against the defendant. The invalidity of the claim, and therefore the proceeding, cannot be cured by Ross taking steps in accordance with s 389 after the proceeding was instituted.
I conclude that in the circumstances the current proceeding should be dismissed.
The operation of s 389 is also dependent on compensation being payable under ss 68, 71 or 75. The evidence is that the DVA has at this stage rejected the claim by Ross for permanent impairment compensation. An issue may arise as to whether Ross could in those circumstances satisfy the requirement in s 389(1)(a), and whether it was necessary to do so before issuing proceedings.
In Walsh v Commonwealth of Australia,[15] Mason P, with whom Beazley JA agreed, concluded that the equivalent requirement in s 45(1)(a) of the SRCA did not impose a precondition that it was necessary to satisfy before proceedings could be validly instituted. Mason P said:
There is nothing unusual in a statute conferring a conditional right to institute an action, where the court deciding the action must determine if the conditions were fulfilled. And the idea of a court deciding what another body, judicial or administrative, would have done in a particular situation is a common occurrence …[16]
[15](1998) 145 FLR 194 (Mason P, Beazley JA and Sheppard AJA).
[16]Ibid 200–1.
The same conclusion in relation to s 389 may be supported by the fact that, as is evident from the DVA determination rejecting Ross’s application under s 68, that that was a point in time decision only.
If the reasoning in Walsh were accepted as applying, the rejection by DVA of Ross’s application would not determine whether he can satisfy the requirements of s 389(1)(a). Satisfaction of that requirement may be an issue to be determined at trial.
This issue was not the subject of submissions, and I express no concluded view about it.
It appears Ross has now made a choice in accordance with s 389 of the MRCA. If that is correct, there is nothing to prevent him issuing a proceeding against the defendant claiming damages in respect of a service injury.
The defendant also relied on a defence under the LAA that the claim by Ross was barred because more than six years had expired from the date on which his cause of action accrued. Having regard to my conclusion about the operation and effect of s 389 of the MRCA, the limitation issue does not arise for consideration.
Conclusion
The proceeding will be dismissed. I will hear from the parties in relation to the form of orders, and as to costs.
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