The Commonwealth v Blunden

[2004] HCATrans 104

[2004] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Registry  No C26 of 2000

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Applicant

and

BARRY THOMAS BLUNDEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 APRIL 2004, AT 10.05 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   May it please the Court, I appear with my learned friend, MR A.P. BERGER, for the applicant.  (instructed by Australian Government Solicitor)

MR G.F. LITTLE, SC:  May it please your Honours, I appear with my learned friend, MS E.J. TECHERA, for the respondent.  (instructed by Pamela Coward & Associates)

McHUGH J:   Yes, Mr Hanks. 

MR HANKS:   Justice McHugh would have had less familiarity with the background to this litigation than Justice Kirby has, for ‑ ‑ ‑

McHUGH J:   No, I have read all the papers, including the special leave transcript before Chief Justice Gleeson and Justice Hayne back on 12 October 2001. 

KIRBY J:   Once his Honour has read the papers, he has more familiarity than I have.

MR HANKS:   Thank you.  Well, your Honours, essentially, the special leave question that we seek to agitate is this, what is the relevance of significant prejudice to a defendant – prejudice to the extent that a fair trial is not possible – to the exercise of discretion which is conferred by section 36(2) of the ACT limitation statute? 

McHUGH J:   Mr Hanks, let me tell you, I have a lot of sympathy for defendants where they are likely to be prejudiced, but what principle is involved in this particular case?  This decision does not seem to me to have any significance outside the particular case.  That is, Mr Blunden’s application is not an authority for anything.

MR HANKS:   Your Honours, it is authority for this proposition, that in limitation statutes such as that which you find in the ACT and Victoria – to take those as two examples – it is not sufficient for the judge who is dealing with an application for an extension of time to find that a fair trial is not possible.  That is not a sufficient basis on which to reject the application for extension of time.  The judge must go through and consider and weigh the catalogue of matters referred to, in this case, in section 36(3).

McHUGH J:   That is what the statute directs the judge to do.

MR HANKS:   With respect, your Honour, what the statute does ‑ ‑ ‑

McHUGH J:   It does not say anything about the weightings to be given to any of the matters and, ordinarily, I would have thought, if the fair trial is prejudiced, then the application should not be granted.  Justice Buchanan said something to that effect in a case from Melbourne, the name of which escapes me.

MR HANKS:   Indeed, your Honour.  We have provided your Honours with a copy of that case.  Essentially, Justice Buchanan took exactly the same approach as Justice Crispin did in the present case, focused on the prejudice and the absence of the possibility of a fair trial and said, “Well, that’s the end of it, no extension should be granted”.  If I might make this point, your Honour, in every limitation statute there is a discretion vested in the judge or the court.  The discretion in this case is vested by section 36(2), 36(3) says that in exercising the discretion:

a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following –

The discretion which is vested by 36(2) is a discretion to be exercised where the court decides that it is just and reasonable, and that discretionary aspect can be found in every limitation statute.  It was present in the limitation statute considered in Brisbane South, for example, where the discretion was expressed in quite wide terms.  In every limitation statute there is a discretion.  Our argument is that that discretion is to be exercised judicially, and where there is a finding, as there was here, that a fair trial of the proceedings is not possible because of the delay of the plaintiff in commencing the proceedings, we would say the discretion should not be exercised favourably to the extension.

McHUGH J:   But that is seeking to put a gloss on the statute, is it not?  I know you rely on what Justice Buchanan said in Calder’s Case, was it, the unreported case ‑ ‑ ‑

MR HANKS:   Yes.

McHUGH J:    ‑ ‑ ‑ but earlier, in the reported case of Tsiadis, he said that the form of the Victorian statute: 

does not permit the conclusion that proof of prejudice considered alone must lead to the refusal of an application. 

MR HANKS:   That is so, your Honour, and we seek to challenge that observation.  We say that in every statute where there is a discretion a finding of significant prejudice such that a fair trial is not possible will be sufficient to justify a decision against an extension of time, to justify a refusal to exercise the discretion, by itself, without going through the process of considering other matters that might perhaps weigh in favour of granting extension.  That critical finding, we would say, is sufficient to justify refusal.  If I might just add this observation, your Honours – and we would assume that your Honours are well familiar with this – the implications of what was said in this Court in Brisbane South are a subject of some judicial debate.

McHUGH J:   Yes, I understand that.

KIRBY J:   We have read what Justice Meagher has to say about it.  He said it was a highly controversial decision.

MR HANKS:   We have also provided our friends this morning with a copy of a judgment of the South Australian Full Court, in which Justice Doyle said this is a question that remains unsettled and in which Justice Gray made the same observation.  There are some members of the New South Wales Court of Appeal who think they can synthesise the two approaches and have done so.  The Queensland Court of Appeal has also effected that synthesis.  Other members of the New South Wales Court of Appeal have taken a different view, and other courts, of course, have taken a different view, seeing this still as a matter of some uncertainty.  It is that uncertainty which, if your Honours would accept that we seek to agitate a general principle ‑ ‑ ‑

McHUGH J:   Yes, but your problem is that subsection (3) of this statute says: 

A court shall have regard to all the circumstances of the case including –

and then you have this catalogue (a) to (f).  Now, what weight is given to them is a matter for the individual case.  I cannot see how anything we say is going to lay down some principle of law which will assist in determining these discretionary issues.  You want us to say, contrary to the statute, that if the delay is such that there is prejudice to the defendant, that is all the judge need consider.

MR HANKS:   No, your Honour, I would not put it quite like that.

McHUGH J:   That is the effect of it.

MR HANKS:   Your Honour is, perhaps, putting a too abbreviated form of our proposition, but if the court finds that a fair trial is not possible because the delay has caused prejudice to the defendant – and it is that critical finding, we would say, the impossibility of a fair trial – that will justify the court in declining to exercise its discretion because it cannot be satisfied that it would be just and reasonable, that being the controlling criterion ‑ ‑ ‑

McHUGH J:   Well, that is probably right in most cases, but in cases commenced within a limitation period there are frequently unfair trials by reason of material witnesses being dead, unable to be found or, in some cases, incapacitated and unable to give evidence.

MR HANKS:   How can that be a relevant comparison, your Honour?

McHUGH J:   You can have unfair trials.

MR HANKS:   Of course one can, but here we are dealing with the discretion, your Honour.

McHUGH J:   It is unfair from the defendant’s point of view, but it is just possible in a particular case.  Suppose, for example, that the delay on the plaintiff’s part had been induced by fraudulent conduct on the part of the defendant ‑ ‑ ‑

MR HANKS:   Of course.  Your Honour adverted to that in Brisbane South and we would not cavil with that.  Obviously, there will be circumstances in which, adopting that equitable proposition about clean hands, you would not expect the discretion to be exercised against granting an extension if the defendant was responsible in some way for the delay.  There is certainly no finding of that type in the present case.  We have a simple finding that a fair trial of this proceeding is not possible because the extensive delay of the plaintiff, some 34 years, has prejudiced the defendant in the conduct of its defence.  That, we say, ought to be treated as sufficient to justify refusing to exercise the discretion, just as Justice Crispin declined to do.

McHUGH J:   This makes only a fact‑specific case, does it not, Mr Hanks?  The case, as I have said to you, seems to me to be of no authority whatever.

MR HANKS:   Every case is fact‑specific, your Honour.

McHUGH J:   But some cases turn on principles of law.  The statute contains the principles to be applied here and we would only be putting a gloss on it.

MR HANKS:   Your Honour understands that we say that there is a principle expressed in the statute.  It is found in section 36(2), and that principle is that the discretion is to be exercised when the court is satisfied that it is just and reasonable.  It is that, we say, which would support ‑ ‑ ‑

KIRBY J:   Could I raise a slightly different point, and it is this.  This is really an interlocutory appeal, and one of the reasons why courts do not grant special leave or leave in interlocutory appeals is because the experience of the law is that problems go away, people abandon cases, withdraw cases, settle cases, determine cases, and the law is that anything that you want to raise on an interlocutory point can be brought up at a later stage.

McHUGH J:   Not in this case.

MR HANKS:   Not in this case.  This is a peculiar interlocutory point, your Honour.  This is it.  This is our one chance.

KIRBY J:   No, no, I know it is very inconvenient to you, but let us assume that the case goes ahead and you say, “This demonstrates that the decision to grant the extension of time was an incorrect decision in the circumstances”.  Could you not bring that up in challenge to the final judgment, if any? 

MR HANKS:   I doubt it, your Honour.  Orders have been made.

McHUGH J:   No, at the moment, the plaintiff has no cause of action and he has to get into the court door.

KIRBY J:   Yes, but it is a fundamental principle that you can raise interlocutory points against a final judgment.

MR HANKS:   Well, this is a peculiar interlocutory point.  The point that we are dealing with here is a refusal to grant the extension of time.  The door, as Justice McHugh said, has been kept closed and the plaintiff is locked out.

KIRBY J:   Well, if you do not want to reserve your interlocutory point, let it be on your head.

McHUGH J:   You cannot, can you?

MR HANKS:   I do not think so.

KIRBY J:   Well, that is your opinion.

MR HANKS:   It is a very seductive offer, your Honour, but I do not think I am in a position to accept it.  In fact, I do not think it is a real offer, with respect, your Honour. 

KIRBY J:   I do accept that in this particular case it is a pretty empty right, given what follows from the adverse decision against you.

MR HANKS:   Yes.  Might I remind your Honour that this very proposition that this is an interlocutory point and therefore not a suitable vehicle for special leave was raised, I think, by your Honour, in the special leave application in Brisbane South and your Honour said that, on the other hand, these are very important matters, very many of these matters constantly come before the Court and it was appropriate the Court should try to shed some light and add some certainty to the principles.

KIRBY J:   Your best point is the confusion we have thrown amongst the intermediate courts by the Brisbane South Case.

MR HANKS:   We think that the confusion is more apparent than real, and that ‑ ‑ ‑

KIRBY J:   But your worst point is, as Justice McHugh has pointed out, that the statute is in very, very broad terms, deliberately so, and it is hard to read in the legal principle against the words of the statute.

MR HANKS:   The very breadth of the statute requires a principled approach, so that ‑ ‑ ‑

McHUGH J:   But, in any event, the matter has gone back for this discretion to be re‑exercised.  If you lose that, then it seems to me that you would be able, ultimately, to litigate that on appeal – not only on appeal, in the final court of appeal.  You could raise it then.  Indeed, it has been done in New South Wales.  It was done in those Dalkon Shield cases in New South Wales. 

MR HANKS:   It was done in Cubillo, your Honour, you may recall, because of the particular way in which the limitation point was dealt with by the trial judge.

KIRBY J:   I come back to my question, this is an interlocutory application.

McHUGH J:   Yes, but this is on the other side of the coin, is it not, from your point of view? 

MR HANKS:   It is.  At the moment, we have an order in our favour, which effectively disposes of the risk of litigation, removes the prejudice and forestalls the unfair trial, and we want ‑ ‑ ‑

KIRBY J:   To hang onto that.

MR HANKS:   Yes, indeed, entirely properly, with respect, your Honour.  That is our objective, but in order to do that we have to persuade your Honours that there is a general principle which applies throughout all the limitation statutes.  It is the principle which is, as we see it, articulated primarily by Justice McHugh in Brisbane South and, we think, generally supported by Justices Toohey and Gummow and expressly supported by Justice Dawson, that where there is prejudice, there should not be an extension of time.  There is nothing in our statute, we say, which goes against that general principle.

McHUGH J:   Well, you can go back and put that to the trial judge rehearing this application.

MR HANKS:   We are somewhat embarrassed by the majority of the Full Court in the Federal Court saying, “No, you have to go through and tick every box and prejudice by itself isn’t enough”.  We think that is wrong, with respect.  Prejudice by itself, if it is of the character found by Justice Crispin, that is, resulting in the impossibility of a fair trial ‑ ‑ ‑

McHUGH J:   Well, correct me if I am wrong, I thought the reasoning of the Full Court was that it was not clear that the judge had considered all the other matters, that he just zeroed in on delay, and Justice Miles said, “No, when you look at his reasons, he did consider all these things”.

MR HANKS:   Yes, that is right, and your Honours will understand that we also had sought special leave on that point, namely, that the majority of the Full Court applied an unrealistic standard.  Your Honours may wonder why, but we think that our best point is this first point about the relevance of the impossibility of a fair trial to the exercise of the discretion.  That is, we think, the point where the guidance of this Court is required. 

If I could refer your Honours to page 35 of the application book ‑ this is in the judgment of the majority – there is a quotation from the Court of Appeal’s judgment in Zegarac.  At line 7, your Honours will see the passage there, the President of the Court of Appeal:

“I would hold that proof of actual prejudice, even ‘significant’ prejudice, does not dictate the rejection of an application for extension of time.” 

Their Honours say, at line 16:

These observations are equally applicable to s 36(3) –

As we understand it, the majority took the view that prejudice was not sufficient.  Perhaps if I can go back to the preceding page, page 34, line 30:

The terms of s 36(3) show that an application under s 36(2) will not necessarily fail because there is proof that the defendant will suffer some prejudice if the application is granted.

So the majority, in our submission, are discounting the relevance of prejudice.

McHUGH J:   But at page 35.6, their Honours said:

This said, the fact remains that the primary judge did not, in the course of his judgment, discuss any of the matters listed in s 36(3) other than prejudice to the respondent.

MR HANKS:   Yes.  It takes us back to our primary submission, your Honour, that once the judge had made that finding, the finding that there was prejudice to the extent that a fair trial was not possible, he was entitled to exercise the discretion adversely to the present respondent.

McHUGH J:   Thank you, Mr Hanks.

KIRBY J:   I see in Brisbane South that I did not favour glossing the statute.  That remains my position.

MR HANKS:   Yes, your Honour.

McHUGH J:   Yes, we need not hear from you, Mr Little. 

The application for special leave is refused in this matter.  We think the case turned on its own facts, and is not authority for any general principle other than that the judge exercising the discretion under section 36 of the Act must take into account all the factors specified in section 36(3).  The application is dismissed with costs. 

AT 10.24 AM THE MATTER WAS CONCLUDED