Wells v Commonwealth of Australia
[2014] NSWSC 148
•28 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Wells v Commonwealth of Australia [2014] NSWSC 148 Hearing dates: 24 February 2014 Decision date: 28 February 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) An order, pursuant to UCPR r 28.2, that the following question be heard and determined before the trial of the plaintiff's claim:
"Ought the plaintiff be granted an extension of time (and if so, until when) pursuant to:
(a) s 58(2) and/or s 60G(2) of the Limitation Act 1969 (NSW); and/or
(b) s 48 of the Limitation of Actions Act 1936 (SA)?"
(2) Costs reserved.
Catchwords: LIMITATION OF ACTIONS - choice of law where the negligence is of the same character but took place in more than one jurisdiction - whether separate hearing appropriate for plaintiff's application for extension of time under the Limitations Act 1969 - just, quick and cheap resolution of the proceedings - whether separate hearing would result in significant overlap of issues and witnesses - where defendant proposes separate hearing and plaintiff opposes Legislation Cited: Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 59
Limitation Act 1985 (ACT), s 36.
Limitation Act 1969 (NSW), s 58(2), s 60G(2)
Limitation Act 1981 (NT), s 44
Limitation Act 1953 (Malaysia)
Limitation of Actions Act 1974 (Qld), s 31
Limitation of Actions Act 1936 (SA), s 48
Limitation of Actions Act 1958 (Vic), s 23A
Safety Rehabilitation and Compensation Act 1988 (Cth), s 44
Uniform Civil Procedure Rules 2005 (NSW), r 28.2Cases Cited: Australian National Industries Limited v Spedley Securities Limited (in liq) (1992) 26 NSWLR 441
Brisbane South Regional Health Authority v Taylor [1996] HCA 25;(1996) 186 CLR 541
Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
Farah Constructions v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 90
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297
Giles v Commonwealth of Australia [2014] NSWSC 83
Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225
Idoport Pty Limited v National Australia Bank Limited [2000] NSWSC 1215
James Hardie v Hall (1998) 43 NSWLR 554
John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; 203 CLR 503
Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309
Puttick v Tenon Limited [2008] HCA 54; 238 CLR 265
Robbins v The Royal Bank of Scotland Plc [2010] NSWSC 39
Sorrenti v Crown Corning Limited (1986) 7 NSWLR 77
State of New South Wales v Gillett [2012] NSWCA 83
Tepko Pty Limited v Water Board [2001] HCA 19; 206 CLR 1
Wardley Australia Limited v Western Australia [1992] HCA 55; 175 CLR 514
Yu v Spiers [2001] NSWCA 373Category: Principal judgment Parties: Roy Francis Wells (Plaintiff)
Commonwealth of Australia (Defendant)Representation: Counsel:
D Hooke SC/K Andrews (Plaintiff)
NJ Owens (Defendant)
Solicitors:
Wyatts Lawyers (Plaintiff)
Corrs Chambers Westgarth (Defendant)
File Number(s): 2013/147360 Publication restriction: Nil
Judgment
Introduction
The Commonwealth, by amended notice of motion filed on 7 February 2014, seeks the following order:
An order, pursuant to UCPR r 28.2, that the following question be heard and determined before the trial of the plaintiff's claim:
"Ought the plaintiff be granted an extension of time (and if so, until when) pursuant to:
(a) s 58(2) and/or s 60G(2) of the Limitation Act 1969 (NSW); and/or
(b) s 48 of the Limitation of Actions Act 1936 (SA)?"
By statement of claim filed on 13 May 2013, Mr Wells claims damages against the Commonwealth for negligence which, in substance, amounts to an alleged negligent failure to provide him with a safe system of work.
Mr Wells served in the Royal Australian Air Force (RAAF) from 10 September 1974. In the course of his service he worked on three RAAF bases: Williamtown (in New South Wales), Edinburgh (in South Australia) and Butterworth (in Malaysia). The most recent period of service alleged in the statement of claim was from 1 July 1986 to 16 January 1989. He was required to work on, or near, aircraft that were being serviced, prepared or maintained and was, as a consequence, exposed to various chemicals which are said to have had a lasting deleterious effect on his health.
His claim arose prior to 1 December 1988, being the date on which the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Comcare Act), by s 44, abolished such claims and substituted a new regime for Commonwealth employees and service persons. The Comcare Act did not abolish causes of action that had already accrued. Indeed, had it purported to do so, it would have amounted to an acquisition of property other than on just terms: Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.
It follows that any cause of action that Mr Wells had against the Commonwealth arising from negligence would have had to have been commenced before 1 December 1994, being six years after its latest accrual date; hence the need for Mr Wells to apply for an extension of the limitation period. The relief claimed in his reply filed on 24 January 2014 includes a prayer for an extension of time under s 58(2) or s 60G(2) of the Limitation Act 1969 (NSW) or s 48 of the Limitation of Actions Act 1936 (SA).
It has been decided that the Commonwealth's application for a separate question will be made in these proceedings, rather than in all other proceedings that arise out of similar facts and circumstances and concern other RAAF servicepersons, but that the result of the motion will affect the similar proceedings.
The available procedural means of litigating limitation issues
There are three available means of determining limitation issues: first, at trial; secondly, on a defendant's motion for summary judgment; and thirdly, by way of a separate question under the Uniform Civil Procedure Rules 2005 (NSW) r 28.2: Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225.
In the present, and related, proceedings it is accepted that the plaintiffs are out of time under whichever limitation statue applies. The limitation issue to be determined is whether each plaintiff ought be granted an extension of the limitation period so that his or her claim is no longer statute-barred. This circumstance gives rise to different considerations than those that arise where the issue to be determined is whether the plaintiff's claim is statute-barred at all. Indeed, the warnings against determining limitation issues separately and in advance of the trial (see, for example, Wardley Australia Limited v Western Australia [1992] HCA 55; 175 CLR 514 at 533 per Mason CJ, Dawson, Gaudron and McHugh JJ) tend to be directed to the latter case rather than the present circumstances and ought, in my view, be understood in light of this distinction.
There is no suggestion that a summary procedure would be appropriate in the circumstances of the present case, or any of the related proceedings. Accordingly, the real question is whether it would be preferable in the interests of justice to the plaintiff's application for an extension of the limitation period at a separate hearing in advance of the trial, or in the course of the trial itself. Obviously, if it is determined in favour of the Commonwealth at a separate hearing in advance of trial there will be no trial, or there will only be a trial in those proceedings where an extension is granted.
The third method, a separate hearing on the extension application, for which the Commonwealth contended, produces a final result which is binding on the parties and against which an appeal lies (subject to quantum) as of right. Once determined as a separate question, it cannot be revisited, except on appeal: State of New South Wales v Gillett [2012] NSWCA 83 at [108]- [110] per Beazley JA (McColl, Campbell, Young and Whealy JJA agreeing).
There are various matters to be taken into account in determining whether to make an order under UCPR r 28.2.
The length and complexity of any trial is a relevant consideration since no trial will occur if the plaintiff does not obtain an extension.
I accept the Commonwealth's submission that the Wells proceedings, if heard together with similar proceedings, as is contemplated, will involve inquiries including into:
(1) conduct that spans a period of decades from the early 1960's to the late 1980's;
(2) what occurred at RAAF bases in Australia and Malaysia;
(3) the relevant state of knowledge with respect to the chemicals to which the various plaintiffs, including Mr Wells, were exposed and what it is alleged the Commonwealth ought to have done to avoid or minimise the risk of harm;
(4) whether the individual plaintiffs suffer from the conditions alleged; and
(5) whether negligent exposure to chemicals caused the conditions alleged.
Counsel sought to estimate the time that would be likely to be required for a separate hearing on limitation extension and any trial if an extension was granted. Mr Hooke estimated that each plaintiff's extension application would occupy two or three days and that the trial would take in the order of four to six weeks. Mr Owens estimated that the extension applications for the twelve related proceedings could take up to a week but that preparation for any eventual trial could take months or years. He did not attempt to estimate the length of any such trial but, instead, relied on the matters listed above to indicate that it is likely to be of some length and complexity. Mr Owens also submitted that because of the minimal overlap between the issues that would arise on the extension proceedings and the issues at trial (which is considered in detail below), any eventual trial would be concomitantly shorter by reason of the separate hearing.
In my view, it is too early to make any reliable estimate of the lengths of the respective hearings, although I am grateful that counsel, notwithstanding the uncertainty, attempted to do so. All that can be said is that the extension applications, if decided adversely to the plaintiffs, will mean that there is no trial. If they are decided in favour of the plaintiffs, this may enhance the prospects of settlement. The extension applications are likely to occupy a substantially shorter time than any eventual trial. If the extension applications are not heard in advance of the trial, the evidence in support of them will need to be adduced at trial.
The matters relevant to whether a separate question is ordered include: the matters referred to in ss 56, 57, 58 and 59 of the Civil Procedure Act2005 (NSW); the choice of law; the communality of witnesses and the extent to which there will be an overlap between the evidence required to be given at the separate hearing and at the trial; and whether there will be a challenge to the credibility of the witnesses who give evidence at the separate hearing, which is likely to have implications for the trial: see generally Idoport Pty Limited v National Australia Bank Limited [2000] NSWSC 1215 (Idoport) at [7] per Einstein J.
Although the question whether to order a separate hearing in advance of the trial is a matter of discretion, I begin with the proposition that all issues in the proceedings ought be dealt with at once and therefore the onus is, in that sense, on the Commonwealth to satisfy me that it is desirable that I make the order it seeks: Idoport at [7]. This general proposition must be viewed in light of the circumstance that the matter proposed for separate hearing is itself a discrete application: the question is whether Mr Wells ought be required to apply for the extension before trial (as the Commonwealth contended) or whether (as was contended on his behalf) Mr Wells is entitled to have a trial on all issues even though his application might be refused in the decision following the trial, thereby rendering that part of the trial that did not relate to the extension application otiose.
The nature of the limitation issue
Limitation questions are in one sense, in a notionally separate category from other matters to be determined in a separate hearing in that, if they are decided in favour of the defendant, they obviate the need for a trial altogether: Robbins v The Royal Bank of Scotland Plc [2010] NSWSC 39 at [15] per Barrett J. It is not uncommon that they be determined in advance of a hearing, and indeed, on occasions, on summons, in advance of the plaintiff filing a statement of claim.
The wording of s 58(2) of the Limitation Act 1969 provides some support for the making of an order under UCPR r 28.2 for an application for extension. It relevantly provides:
(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:
(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action, and
(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,
the court may order that the limitation period for the cause of action be extended . . .
The requirement in s 58(2)(b) that an applicant for an extension of time adduce "evidence to establish the cause of action" is, as Mr Owens contended, a powerful indication that Parliament contemplated that such applications would, at least in some cases, be determined in advance of a trial. If all issues, including the extension, were to be determined at trial, the provision would be otiose since the plaintiff/applicant for extension would have to prove the cause of action on the balance of probabilities in any event.
Potential overlap in the witnesses to be called at the hearing of the separate question and at trial (if the separate question is determined adversely to the Commonwealth)
The Commonwealth, in my view correctly, accepted that there is a real prospect that, if the separate question is decided adversely to it, the judge who determines the separate question ought not sit as the trial judge: see Australian National Industries Limited v Spedley Securities Limited (in liq) (1992) 26 NSWLR 441. One of the reasons for this is that Mr Wells may well give evidence in his application for extension and there is at least a prospect that his credibility will be challenged at that point.
The issues that would need to be determined in a separate hearing on limitation issues and whether there would be an overlap with issues at trial
However, the extent of any overlap between the issues to be determined at an extension application and the issues to be determined at trial is a relevant matter particularly where, as here, the defendant seeks a separate hearing and the plaintiff opposes it. However, the existence of some overlap is not regarded as inconsistent with the interests of justice because there is the possible "benefit" that, if the plaintiff is unsuccessful the trial will be avoided.
It is therefore necessary to determine the extent of any such overlap.
The issues that will need to be determined in Mr Wells' application for extension under s 58(2) of the Limitation Act 1969 are:
(1) What are the material facts of a decisive character relating to his cause of action?
(2) Were any of the material facts not within Mr Wells' means of knowledge until a date after 1 December 1993?
(3) Upon what date were all the material facts within his means of knowledge?
(4) Is there evidence to establish the cause of action?
The first issue requires:
(a) the crucial matters that would disclose a cause of action to be identified (s 57B(1)(b)); and
(b) a determination to be made whether a reasonable person knowing those facts and being appropriately advised would regard them as indicating the existence of a cause of action that should be litigated (s 57B(1)(c)).
Because this is an objective inquiry, Mr Wells' actual state of mind is irrelevant to issue (1). There is, in my view, no overlap between the first issue and any issue relevant to the substantive proceedings.
Issues (2) and (3) require an inquiry into Mr Wells' means of knowledge, in respect of which his evidence, though not legally mandatory, would be relevant. There is no overlap between issues (2) and (3) and any issue relevant to the substantive proceedings. However, if Mr Wells gives evidence (as well he might) his credibility may be in issue, both at the separate hearing of his application for extension and at trial. However, this can be accommodated, for the reasons given above, by having a different trial judge.
The determination of issue (4) does not require the Court to determine whether Mr Wells can establish his cause of action, but merely whether evidence enabling him to do so exists. The relevant statement of principle was expressed by Hunt J in Sorrenti v Crown Corning Limited (1986) 7 NSWLR 77 (Sorrenti) at 79D-G in the following terms:
It is unnecessary for the purposes of an application pursuant to the
Limitation Act, s 58, for the plaintiff to produce the actual evidence to be adduced at the trial. It is necessary only for the plaintiff to make it appear that the evidence to establish a cause of action exists and that it is available to be adduced at the trial. The material showing that such evidence exists and is available need not itself be in admissible form, but may be adduced by way of
hearsay:Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443, Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 at 602-604.
The Commonwealth also relied on Yu v Spiers [2001] NSWCA 373, a case that concerned s 60G, which, it has been held, requires relevantly similar matters to be considered. The extension application in Yu v Spiers had been conducted on the basis that it was necessary for an applicant for an extension of time under s 60G to establish a prima facie case. The Court of Appeal rejected a construction of s 60G that required proof at that level, at least as that term is commonly understood in other contexts. In the course of Rolfe A-JA's analysis (with which Beazley JA and Ipp A-JA agreed), his Honour took as the starting point Martin v Abbott Australasia Pty Ltd (another case decided by Hunt J) which Hunt J cited in Sorrenti as authority for the statement of principle set out above. The Court of Appeal approved Sorrenti and emphasised that, to the extent to which the expression "prima facie case" is used in the context of an application for extension of time under s 60G, it refers to evidence at the level referred to by Hunt J in Sorrenti which Rolfe A-JA described in [65] as a "far less stringent test". An applicant for extension does not, for example, need to show a reasonable chance that he or she will succeed in the proceedings and may adduce evidence in hearsay form that would not be admissible at trial.
There is a potential overlap between issue (4) and what must be determined at the trial; the difference is in the cogency and admissibility of the evidence required at the two stages. The threshold applicable at an extension application is relatively low, as the passage set out above shows. The purpose of requiring the plaintiff to adduce such evidence on an application for extension is to protect a defendant from proceedings that are commenced out of time in circumstances where there is no real prospect of evidence being available to substantiate the causes of action alleged in them. This is consistent with the purpose of limitation legislation of avoiding the prejudice to defendants that comes from having to defend old claims: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552-553 per McHugh J.
The issues that will need to be determined in Mr Wells' application for extension under s 60G of the Limitation Act 1969 appear from s 60G and s 60I.
Section 60G relevantly provides:
(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.
Section 60I relevantly provides:
60I Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant's act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).
. . .
The issues to be determined are, accordingly:
(1) Whether, as at 1 December 1994, Mr Wells knew all of the matters identified in s 60I(1)(a)(i)-(iii);
(2) The date on which Mr Wells knew all of these matters; and
(3) Whether it is just and reasonable that an extension ought be granted.
Issues (1) and (2) require a determination of Mr Wells' knowledge of what he is alleging. There will be no overlap with any issue at trial, except to the extent to which Mr Wells gives evidence and his credibility becomes an issue.
Issue (3) is relevantly the same as issue (4) on an application under s 58(2): Yu v Spiers at [17]. What I have said above applies to issue (3) here.
I do not regard the potential for some overlap as being a strong factor against ordering a separate hearing. The question of the plaintiff's credibility, if it arises, can readily be accommodated by ensuring that the judge who hears the extension application at the separate hearing is not the trial judge. Although there may be some overlap between the evidence adduced on the extension application to show the availability of evidence to establish the cause of action, there is such a substantial difference in cogency and admissibility of the evidence required at each stage that I do not regard it as a substantial reason not to order a separate hearing.
Choice of law
The limitation law applicable to Mr Wells' claims is the lex loci delicti: John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; 203 CLR 503 at [100] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The determination of the place of the tort requires an assessment of the defendant's conduct, not the plaintiff's damage: Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 at [43] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Although various particulars of negligence are alleged, the place of the tort would be "the place where the system of work ought to have been safe": James Hardie v Hall (1998) 43 NSWLR 554 at 576-7 per Sheller JA (Beazley and Stein JJA agreeing).
It is said that Mr Wells worked in New South Wales, South Australia and Malaysia. It follows, if Mr Wells puts his case on the basis of discrete injuries caused by individual negligent exposures to chemicals, that the proper law of the tort will be the laws of these three jurisdictions. If Mr Wells puts his case on the basis that all negligent exposures were a cause of a single, indivisible injury, the determination of the proper law of the tort may be more vexed: see Puttick v Tenon Limited [2008] HCA 54; 238 CLR 265. The Commonwealth submitted that the law does not presently provide a settled answer to the identity and choice of the proper law of the tort where the negligence is of the same character but took place in more than one jurisdiction. Mr Wells did not submit to the contrary.
Torts are alleged to have been committed against related plaintiffs in other Australian States but they need not be addressed specifically here. If all related proceedings were to have the limitation question determined under UCPR r 28.2 in advance of the hearing, each of the potentially applicable limitation provisions would need to be considered.
The parties did not contend that at this stage of the proceedings it was necessary, or even possible, to identify the proper law. Indeed such a determination would be likely to be premature since it is not clear how Mr Wells puts his case.
Mr Hooke contended that the selection of the proper law of the tort could be assisted by expert conclaves which would not be available at a separate hearing but would be available at trial. I do not consider that it would be appropriate that the proper law of the tort be determined at a separate hearing; all that would be determined would be whether a particular plaintiff would be entitled to an extension under a particular provision if it formed part of the proper law of the tort. Nor do I see how experts could assist in the determination of the proper law of the tort, which is legally difficult because the plaintiffs worked in more than one jurisdiction and are alleged to have suffered injury arising from the same or similar negligence in each place.
The applicable limitation provisions
Mr Owens submitted on behalf of the Commonwealth that it was not necessary to identify the proper law for the purposes of determination of the separate question in any event because the limitation laws of the various Australian jurisdictions are substantially similar and it is common ground that there is no relevant right to apply for an extension of time under Malaysian law. He submitted that the matter could be resolved by determining whether the plaintiff would be entitled to an extension whatever law in Australia applies, given that Malaysian law does not permit such an extension.
I have been provided, for the purposes this application, with the relevant limitation provisions for all relevant Australian jurisdictions, the laws of which may be contenders for the proper law of the tort in these and related proceedings (s 58 and s 60G of the Limitation Act 1969 (NSW), s 48 of the Limitation of Actions Act 1936 (SA); s 31 of the Limitation of Actions Act 1974 (Qld); s 23A of the Limitation of Actions Act 1958 (Vic); s 44 of the Limitation Act 1981 (NT); s 36 of the Limitation Act 1985 (ACT)). I have also been provided with the Limitation Act 1953 in force in Malaysia.
Although I understood Mr Hooke to submit to the contrary, I am satisfied, having considered the relevant Malaysian statute (Limitation Act 1953), that there is no comparable provision to s 58 and s 60G of the Limitation Act 1969 (NSW) which would permit time to be extended based on absence of knowledge of material facts. Indeed, Mr Hooke did not point to any such corresponding provision in the Malaysian statute.
Further, Mr Owens confirmed on behalf of the Commonwealth that, given the uncertainty relating to the choice of law question, the Commonwealth accepts that if the plaintiff is entitled to an extension under any one law and denied an entitlement under all other laws, the matter would have to be determined at trial. That would leave open the possibility of the trial judge determining that the law under which the plaintiff has been found entitled to an extension does not apply because it is not the proper law of the tort. The existence of such a possibility does not, however, mean that the process has no utility at that stage since the plaintiff's entitlement to an extension as a factual matter would have to be determined at trial, in the absence of a separate hearing, in any event.
Mr Hooke submitted that, although the limitation statutes of various Australian jurisdictions might appear to be similar, they had been construed by the various courts of the corresponding jurisdiction in different ways which meant that there were significant differences between them that might not be apparent from the text. Mr Hooke did not identify any instance to make good the proposition for which he contended.
The High Court has emphasised the obligation of Australian courts not to depart from an interpretation placed on uniformly, or similarly, worded legislation unless convinced that that interpretation is plainly wrong: Farah Constructions v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 90 at [134] per Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ.
In my view, there is much force in the Commonwealth's submission that the legislative provisions are substantially similar. Although the wording of the different limitation provisions throughout Australia is not uniform, the concepts contained within the corresponding provisions are similar, if not the same. Although it will undoubtedly be a matter for argument, it is difficult to envisage that there will be a substantial difference in the result of an application for an extension of time depending on which State's law is applicable, when the wording is so similar and the legislative purpose apparently common to all corresponding provisions. This is not to say that a judge who determines the question can, without the agreement of the parties, truncate the process by considering only one law, if the law of another State is properly in contention for the proper law of the tort. However, it is likely that the consideration of the effect of corresponding provisions can be done with relative efficiency once the relevant facts are found.
Civil Procedure Act2005: s 56, s 57, s 58 and s 59
To the extent to which the matters referred to in these sections have already been addressed in the context of the factors considered above, I shall not repeat them.
Section 58(2) of the Civil Procedure Act 2005 (NSW) makes the matters referred to in s 56 and s 57 of the Act mandatory relevant considerations for the purposes of determining the dictates of justice. Section 56 identifies the overriding purpose of the Act and UCPR as being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
The matters which I am obliged to take into account under s 57 of the Civil Procedure Act 2005 are listed in s 57(1)(a) - (d). They relate to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings.
If Mr Wells' application for an extension is heard separately and he succeeds, there will be a need for two hearings rather than one. However, if his application for extension is refused, there will be no trial. There is, for the reasons given above, little overlap. Although it may be necessary that the trial judge, if there is a trial, not be the judge who heard the extension application, this will not involve a substantial duplication of resources.
In terms of matters which I may, as distinct from must, take into account, they include, as s 58(2)(b) provides, the degree of difficulty or complexity to which the issues in the proceedings give rise. The issues arising from the choice of law are complex, but, if any plaintiff obtains an extension, the proper law of the law will need to be determined at the trial. If no plaintiff obtains an extension, then they do not need to be dealt with at all.
Mr Hooke also identified the issue of causation as one of considerable complexity which will require much evidence and occupy a substantial amount of time at the trial. In my view, this is a factor that weighs in favour of the appliaction for extension being dealt with in advance of trial. The trial is likely to be lengthy and potentially complex. The evidence required to establish causation at trial to the requisite standard may be substantial. However, the evidence required to show (for the purposes of an extension of the limitation period) that such evidence exists and is available, will necessarily be easier to procure and less voluminous.
Dealing with the other matters in s 58(2)(b) of the Civil Procedure Act, the degree of expedition which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activity is a relevant matter. These proceedings, and some of the related proceedings, were commenced in May 2013. The Commonwealth filed its notices of motion for a separate question in August 2013 even before it had filed its defence in which it relied on the limitation defence. The Commonwealth's application was made at an appropriately early stage.
Mr Hooke sought to describe the motion for a separate hearing as the Commonwealth "seeking an indulgence". I reject the ephithet. Legal practitioners have an obligation to their clients who are parties to proceedings to conduct litigation in an efficient way. As I see it, the Commonwealth's application reflects a view that it would be more efficient to have a separate hearing of the various plaintiffs' applications for an extension of time.
Mr Hooke criticised the Commonwealth for what he described as "an established pattern of conduct over many, many years" of being obstructive and withholding relevant documents. He referred to proceedings other than the present and related proceedings. I understood him to be submitting that the Commonwealth's conduct in other proceedings was a reason for not making the order the Commonwealth seeks. It would be wrong for me to take into account against the Commonwealth, or indeed any party, its conduct of other proceedings. Nor would I assume, without evidence, that the Commonwealth would conduct itself in any given case other than in accordance with its obligations as a model litigant.
Mr Hooke tendered evidence that showed that there was some dispute between the parties about the production of documents in these proceedings. I understood this evidence to be adduced in support of a submission that the Commonwealth was behaving in an obstructive fashion. I was informed by Mr Owens that the dispute has since been resolved. The determination of the Commonwealth's notice of motion is not the occasion to adjudicate on disputes relating to documents, where the need for such adjudication is neither properly before me, nor, apparently, required.
The next matter is the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective party. The only lack of expedition evident is that of Mr Wells and other plaintiffs in related proceedings in commencing proceedings in respect of causes of action that accrued before 1 December 1988. This is not something that could reasonably be held against them for the purposes of this application since the law provides that an extension of time may be granted in certain circumstances and their applications for extension have not been determined. Accordingly this is a neutral factor.
The other matter of potential relevance is s 59 of the Act which provides that in any proceeding the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceeding and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case. I do not consider that the ordering of a separate hearing will delay the trial, if there be one, to any substantial extent, although only time will tell.
For completeness I note that Mr Hooke relied heavily on Giles v Commonwealth of Australia [2014] NSWSC 83, in which Garling J ordered that the hearing and determination of the pleaded limitation issue take place at the same time as, and as part of, the final hearing of the plaintiffs' claim. I do not regard it as fruitful to address the various factual and legal differences between that case (which involved representative proceedings) and the present. Whether it is appropriate to make an order under UCPR r 28.2 depends on the particular proceedings in which an order is sought and guidance is, in this area, more readily to be obtained by consideration of the Civil Procedure Act, the UCPR and statements of principle rather than close examination of the exercise of discretion by other judges in other proceedings, particularly those which bear little resemblance to the present case.
In my view, the effect of the provisions of the Civil Procedure Act referred to above, and in particular s 56(1) and (2) has been to modify the previously cautious approach towards separate questions, such as was articulated by the oft-quoted passage in Tepko Pty Limited v Water Board [2001] HCA 19; 206 CLR 1 at [168]-[170] per Kirby and Callinan JJ: see the cases cited by Hoeben J in Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 at [19]-[21].
The principles to which I have referred in s 56, s 57, s 58 and s 59 of the Civil Procedure Act weigh in favour of the order the Commonwealth seeks. For the reasons set out above, I am satisfied that the just, quick and cheap resolution of the proceedings would be advanced by having Mr Wells' entitlement to pursue these proceedings determined separately and in advance of the trial, rather than having a full trial on all issues including the plaintiff's application for extension of the limitation period.
In accordance with the indications given by Mr Owens at the outset, I assume that this order will be accepted as indicating the appropriate approach in other related proceedings.
Orders
I make the following orders in these proceedings:
(1) An order, pursuant to UCPR r 28.2, that the following question be heard and determined before the trial of the plaintiff's claim:
"Ought the plaintiff be granted an extension of time (and if so, until when) pursuant to:
(a) s 58(2) and/or s 60G(2) of the Limitation Act 1969 (NSW); and/or
(b) s 48 of the Limitation of Actions Act 1936 (SA)?"
(2) Costs reserved.
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Decision last updated: 03 March 2014
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