Williams v Australian Capital Territory
[2023] ACTSC 18
•10 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Williams v Australian Capital Territory |
Citation: | [2023] ACTSC 18 |
Hearing Date: | 31 January 2023 |
DecisionDate: Reasons published: | 10 February 2023 13 February 2023 |
Before: | McWilliam AsJ |
Decision: | (1) Pursuant to r 40(1)(g) of the Court Procedures Rules 2006 or the inherent jurisdiction of the Court, that part of the plaintiff’s claim which is founded upon a statutory cause of action brought under the Human Rights Act 2004 is stayed until: a. the plaintiff applies to the Court for an order otherwise under s 40C(3) of the said Act; and b. the Court makes such an order. (2) The plaintiff is to pay the defendant’s costs, with such costs not to be recoverable until the conclusion of the proceeding. |
Catchwords: | PRACTICE & PROCEDURE – stay – whether proceeding commenced out of time – whether statutory time limit applies – whether the Territory is a public authority under the Human Rights Act 2004 (ACT) – whether the causes of action brought by the plaintiff are a ‘proceeding’ within s 40C(2)(a) of the Act |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth) s 7 |
Cases Cited: | Blake v Norris(1990) 20 NSWLR 300 |
Texts Cited: | David Mossop, The Constitution of the Australian Capital Territory (Federation Press, 2021) Explanatory Statement to the Human Rights Amendment Bill 2007 (ACT) |
Parties: | Derek Joseph Williams ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel P Tierney ( Plaintiff) H Younan SC with C Ernst ( Defendant) |
| Solicitors Ken Cush ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 233 of 2022 |
McWilliam AsJ
The plaintiff in the present proceeding, Mr Derek Williams, is serving a sentence of full-time imprisonment in the Alexander Maconochie Centre (the AMC). He has brought a claim against the Territory (the defendant) alleging, among other things, breaches of the Human Rights Act 2004 (ACT) (Human Rights Act) arising out of various non-consecutive periods when he was detained in solitary or separate confinement in the Management Unit of the AMC. He was confined for a total of 21 days (described as the ‘confinement period’), with the first of the days occurring on 26 December 2019, and the last occurring on 15 January 2021. He claims that during the confinement period he did not have access to at least one hour of open air and exercise each day. In failing to provide the access, the Territory is alleged to have breached provisions of the Corrections Management Act 2007 (ACT) (Corrections Act), breached a number of the provisions under the Human Rights Act, caused the plaintiff to be unlawfully detained in breach of his human rights, and thereby falsely imprisoned the plaintiff.
The proceeding was commenced by Originating Claim accompanied by a Statement of Claim on 15 July 2022. The Defendant has not yet filed a defence. A conditional notice of intention to respond was filed on 12 September 2022. The notice was conditional because the Territory contends that the proceeding has, in part, been irregularly commenced. It asserts the plaintiff is out of time to commence the proceeding insofar as it alleges breaches of the Human Rights Act.
The present application
The application before the Court is to stay the proceeding insofar as it relates to claims made under the Human Rights Act until such time as the plaintiff has sought, and been granted, leave to extend the time in which to bring such statutory causes of action.
In that regard, the Territory relies upon s 40C of the Human Rights Act, and in particular, s 40C(3). The provision is in the following terms (emphasis added):
40CLegal proceedings in relation to public authority actions
(1)This section applies if a person—
(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.
(2)The person may—
(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person's rights under this Act in other legal proceedings.
(3)A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4)The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5)This section does not affect—
(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b) a right a person has to damages (apart from this section).
NoteSee also s 18(7) and s 23.
(6)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
The confinement period for Mr Williams was not in dispute. The last day the act complained of occurred on 15 January 2021. Accordingly, if s 40C(3) applies, then the proceeding has been commenced more than one year after the last day the act complained of happened. The issue before the Court is whether s 40C(3) applies to the present proceeding.
The application is of a representative kind, in that eight other proceedings brought by separate plaintiffs have been commenced. They are proceedings SC 235 of 2022, SC 315 of 2022, SC 317 of 2022, SC 329 of 2022, SC 234 of 2022, SC 302 of 2022, SC 316 of 2022 and SC 318 of 2022. The same allegations of breaches of human rights while the respective plaintiffs were held in solitary confinement have been made in each of those proceedings, and the same application to stay the proceeding has been filed by the Territory in respect of each of those proceedings. Accordingly, it has been agreed between the parties that the outcome of this application will also determine the outcome of the Territory’s application made in each of the aforementioned matters.
The Court’s power to stay the proceeding
The application was made pursuant to r 40(1)(g) of the Court Procedures Rules 2006 (ACT) (the Rules) which expressly provides for the Court to grant a stay. The Territory also relied upon the general power of the Court to make any other order it considers appropriate pursuant to r 40(1)(k) of the Rules, in the event that the Court determines that the relief sought by the Territory is more appropriately granted by way of some other order either further to, or instead of, a stay.
During the hearing, the plaintiff quite properly accepted that, if the Court found s 40C(3) of the Human Rights Act applied, and that it was appropriate to determine the question of the plaintiff being out of time in advance of a substantive hearing, then the appropriate relief would be an order staying the proceeding until further order, limited to the statutory causes of action under the Human Rights Act.
The issues in dispute
The first issue is whether the statutory time limit applies. That depends on whether the Territory is held to be a “public authority” under the Human Rights Act. The Territory argued that it is a public authority to which the Human Rights Act applies. The plaintiff argued that it was not, firstly because it did not fall within that definition and secondly, because it was not being sued as the authority who had acted incompatibly with the plaintiff’s human rights.
The second issue is whether the claim brought by the plaintiff is a proceeding to which the statutory time limit in s 40C of the Human Rights Act even applies.
The third issue is whether it is appropriate to determine any question of time limitation as a separate preliminary issue, either before a defence has been filed or in advance of a substantive hearing.
Depending on how those issues are determined, the fourth issue is whether it is appropriate in the residual discretion of the Court to grant a stay.
The applicable statutory framework
The arguments discussed below call attention to the statutory framework, which in this case requires consideration of a number of interacting statutes.
Human Rights Act
The starting point is s 40B of the Human Rights Act, which provides (emphasis added):
40BPublic authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.
NoteA law in force in the Territory includes a Territory law and a Commonwealth law.
(3)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
From the emphasised words above, it is clear that all public authorities have an obligation to act compatibly with human rights as defined in the statute. If the Territory was not a public authority and therefore not bound by s 40B, that would be at least an anomalous, if not absurd, result.
The reference in s 40B(3) to a public authority including an entity for whom a declaration in force is immaterial here. It simply brings within the meaning of public authority any entity which has chosen to be bound by the obligations of a public authority under Part 5A of the Human Rights Act and for whom a declaration to that effect has been made.
Section 40 of the Human Rights Act then provides:
40Meaning of public authority
(1)Each of the following is a public authority:
(a)an administrative unit;
(b)a territory authority;
(c)a territory instrumentality;
(d)a Minister;
(e)a police officer, when exercising a function under a Territory law;
(f)a public employee;
(g)an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).
NoteA reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).
(2)However, public authority does not include—
(a)the Legislative Assembly, except when acting in an administrative capacity; or
(b)a court, except when acting in an administrative capacity.
Three matters are worth noting about s 40. The first is that it is a non-exhaustive definition. It does not provide that only those listed are public authorities. Rather, it states that certain people or bodies are a public authority. In Millard v Collins & Ors [2021] ACTSC 216, Elkaim J determined a claim under s 40C of the Human Rights Act, stating at [19] that the Territory as the third defendant in the proceeding was a public authority. His Honour had no reason to consider otherwise, as the fact was not disputed.
Second, s 40(2)(a) excludes the Legislative Assembly and courts – that is, the legislation expressly excludes the legislative and judicial exercises of power or branches, but not the executive. The Territory is the legal entity or personality through which the executive acts: Williams v Commonwealth [2012] HCA 23; 248 CLR 156 (Williams v Cth) at [21] per French CJ, and at [154] per Gummow and Bell JJ.
Their Honours in Williams v Cth were referring to the Commonwealth as the polity under consideration, but as submitted by the Territory, the same analysis is applicable to the Territory and that position is supported by authority in this Court: Eastman v ACT Executive, Australian Capital Territory [2013] ACTSC 53; 274 FLR 286 per Rares J at [21]-[22].
Third, s 40(1)(g) refers to an entity whose functions are or include functions of a public nature. That idea is taken up in s 40A as follows (emphasis added):
40AMeaning of function of a public nature
(1)In deciding whether a function of an entity is a function of a public nature, the following matters may be considered:
(a)whether the function is conferred on the entity under a territory law;
(b)whether the function is connected to or generally identified with functions of government;
(c)whether the function is of a regulatory nature;
(d)whether the entity is publicly funded to perform the function;
(e) whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.
(2)Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.
(3)Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:
(a)the operation of detention places and correctional centres;
(b)the provision of any of the following services:
(i) gas, electricity and water supply;
(ii) emergency services;
(iii) public health services;
(iv) public education;
(v) public transport;
(vi) public housing.
Corrections Act
Also relevant is s 223 of the Corrections Act, which provides (emphasis added):
223Protection from liability
(1)This section applies to a person who—
(a)exercises, or has exercised, a function under this Act; or
(b)is, or has been, otherwise involved in the administration of this Act.
(2)The person does not incur civil liability for an act or omission done honestly and without recklessness for this Act.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and the corrections rules (see Legislation Act, s 104).
(3)Any civil liability that would, apart from this section, attach to the person attaches instead to the Territory.
The emphasised words are important in the present case, and have been pleaded by the plaintiff as the reason why the Territory is alleged to be liable for actions taken by personnel at the AMC. That is consistent with what has been held in Williams v Cth above, that the Territory is the entity through whom the executive acts, and therefore it is appropriate that it takes responsibility for the actions of those performing its functions honestly and without recklessness.
Legislation Act
The references in the notes to the Legislation Act are to the Legislation Act 2001 (ACT) (Legislation Act), section 4 of which provides:
4Application of Act
(1)This Act applies to all Acts (including this Act) and statutory instruments.
(2)In particular, Acts and statutory instruments are taken to be made on the basis that they will operate in conjunction with this Act.
…
That is important, because the Legislation Act contains a number of definitions in the Dictionary relevant to the arguments of the parties here. The parties did not focus on these in argument, but to my mind, they are important in resolving the dispute.
The first is “proceeding”, a word used in s 40C(3) of the Human Rights Act above, which is defined as follows:
proceeding means a legal or other action or proceeding.
The second is “the Territory” which means:
(a) when used in a geographical sense—the Australian Capital Territory; or
(b) in any other case—the body politic established by the Self-Government Act, section 7.
Self-Government Act
The reference to the Self-Government Act is itself defined in the same Dictionary as the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act), s 7 of which provides:
7Establishment of body politic
The Australian Capital Territory is established as a body politic under the Crown by the name of the Australian Capital Territory.
In R v Scott (1993) 114 ACTR 20, Higgins J stated (at 30) that the Self-Government Act:
…creates a legal entity which, for the purposes of the imposition of rights and liabilities may be described either as the “Australian Capital Territory” or as the “Crown in right of the Australian Capital Territory”.
The plaintiff drew attention to what is meant by “a body politic under the Crown”, referring the Court to The Constitution of the Australian Capital Territory (Federation Press, 2021) at 83 where Mossop J (writing extra-judicially) first referred inter alia to the following extract from Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 at 279 (references omitted):
The expression "body politic," as distinguished from "body corporate," indicates to my mind a body created for some public purpose. For instance, the Hudson's Bay Company and the East India Company, invested with public functions, were bodies politic. The Sovereign is a body politic (see Magdalen College Case). In Attorney-General for Ontario v. Attorney-General for the Dominion Lord Watson used the expression "body politic" to denote the Dominion of Canada….
Justice Mossop went on to state at 84 (emphasis added):
It is clear that when used in the Self-Government Act, “body politic” implies something more than merely the self-evident fact that the body established exists for a public purpose. Rather, it is intended to convey the notion that what is being established is a political community rather than simply any other form of body corporate or government authority.
…
The use of the words “under the Crown” serves to emphasis the fact that a new political entity is being created.
The following definitions from the Dictionary to the Legislation Act are also relevant to terms used in s 40 of the Human Rights Act, set out above (emphasis added):
territory authority means a body established for a public purpose under an Act, but does not include a body declared by regulation not to be a territory authority.
territory instrumentality means a corporation that is a territory instrumentality under the Public Sector Management Act 1994.
“Act” is defined earlier in s 7 of the Legislation Act to mean an act of the Legislative Assembly. Here, the Territory is a body established for a public purpose, but it is established under a Commonwealth Act (the Self Government Act).
The competing arguments
In comprehensive written submissions the Territory argued that the Human Rights Act applied to it and that the time limitation provision in s 40C(3) applied to this proceeding. The Human Rights Act applied because the Territory was plainly a “public authority”, for various reasons discussed more fully below. In turn, s 40C(3) applied because:
(a) This was a “proceeding”;
(b) Commenced in the Supreme Court;
(c) Against the Territory directly as a public authority; and
(d) The proceeding raised breaches of, and sought relief under, the Human Rights Act.
The plaintiff raised four arguments as to why the proceeding was not affected by s 40C(3) or why the time limitation question should be reserved for trial:
(a) The Territory was not a “public authority”, so that the time limitation in s 40C(3) did not apply to the proceeding;
(b) The plaintiff was not claiming that the Territory as a public authority has acted in a way that infringed his human rights under the Human Rights Act;
(c) What has been commenced falls into the category of ‘any other proceeding’ under s 40C(2)(b) above. That is because although there is a claim for compensation under s 18(7) of the Human Rights Act, the causes of action include a statutory breach of the Corrections Act resulting in unlawful detention and the tort of false imprisonment, and specifically seeks damages; and
(d) Even if s 40C(3) applied to the claims, the application is premature. The reliance by a defendant upon a limitation period must be specifically pleaded by way of defence. Further, the orderly conduct of the matter is that the separate determination of a time limitation issue should be ordered only if the utility, economy and fairness to the parties of a separate hearing is beyond question.
Is the Territory a public authority?
The Territory is plainly a public authority to which the Human Rights Act applies. Whether it is described as a body politic or separate legal entity, it is properly to be seen as the overarching “public authority” through which all the various components of executive branch of government in the geographical location of the Australian Capital Territory act.
In the reasons that follow, in working out the meaning of public authority I have applied the orthodox approach of considering the text and context along with the purpose behind the legislation: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14].
The text and context of the Human Rights Act supports an interpretation or construction of “public authority” to include the Territory. As to the text, to my mind, it is axiomatic that the Territory as the body politic is a public body performing public functions, and therefore a public authority. It is the case that the Territory is not named in the list in s 40 of persons or entities that are “public authorities”. But it does not follow that exclusion from such a non-exhaustive list equates to exclusion from the meaning of a “public authority” and the obligations on such authorities imposed by the statute. The list of other separate legal personalities in s 40 are all those who perform functions for the Territory and whom there might otherwise have been doubt as to whether they were caught by the words ”public authority” in the Human Rights Act, such as individuals like a Minister, or a police officer. No such doubt exists in relation to the Territory.
As to the statutory context, the references to “Territory authority”, “Territory instrumentality”, or entities whose functions include “functions of a public nature, when …exercising those functions for the Territory” all contain with them the necessary implication that the Territory itself is a public authority bound by the Act. That is carried through to s 40A, where the functions of a public nature refer to the functions of the Territory, such as “functions conferred on the entity under a territory law”, a function “generally identified with functions of government”, or where the majority of shares of a company are “held by or for the Territory”. It would be illogical to construe the Territory as not coming within the term “public authority” used in the Human Rights Act, and therefore escaping the obligation to act compatibly with human rights, when all those acting or performing functions on behalf of the Territory are subject to those obligations.
Further, among the list of services deemed or taken to be of a public nature in s 40A(3) is the operation of detention places and correctional centres. Again, it would make no sense to construe the Human Rights Act as applying to the operation of the AMC and those acting under the Corrections Act as squarely coming within the definition of a “public authority”, while finding that such term does not equally mean the Territory, on whose behalf such persons are acting (as made clear by s 223 of the Corrections Act set out above).
An analogous example concerns the provision of public health services in the Territory, which is also listed in s 40A(3) as a deemed public service. Canberra Hospital is the primary provider of public health services in the Territory, but it is not a separate legal entity. In Chaloner v Australian Capital Territory [2013] ACTSC 269; 281 FLR 449, Master Harper stated at [28]:
Public Authority is defined in s 40 of the Human Rights Act. It seems plain that the Canberra Hospital is a public authority for the purposes of the Act. It is not a legal entity, and the Territory, it seems to me, is the appropriate defendant for an action against the Canberra Hospital as a public authority.
The purpose of the Human Rights Act also supports a construction of public authority as extending to the Territory. The long title to the Human Rights Act is: “An Act to respect, protect and promote human rights”. Part of the Preamble that follows states:
5 This Act encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others.
Given that absent a specific declaration, it is only ”public authorities” that must act compatibly with human rights (s 40B), the protection of human rights is best achieved by construing a “public authority” as including, rather than excluding, the Territory. That is the construction the Court should prefer: s 139 of the Legislation Act.
The plaintiff argued that human rights statutes must be construed in the “broadest possible way” citing among others, Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 (Islam) at [79], which stated as follows:
Each right is to be construed in “the broadest possible way”: see Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 (Certain Children) at [143] and the authorities there-cited.
This was said to support a construction of the time limitation in s 40C(3) of the Human Rights Act so that it did not apply to claims against the Territory. The argument was misconceived. First, as submitted by the Territory, what was being said in cases such as Islam was directed to defining the statutory human right itself broadly (that is, the rights specified in ss 8-27B). What is under consideration here is a different issue.
Second, what is being construed is the term “public authority” across the entire statute. In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole: s 140 of the Legislation Act. Applying a beneficial construction to the protection of human rights in the Human Rights Act leads to an interpretation that includes the Territory as a public authority required to act compatibly with the obligations of the statute.
While certain consequences under s 40C(3) may follow depending on when the conduct complained of occurred, the Court does not construe the words “public authority” in that section by reference to the outcome for those individuals bringing claims or seeking a remedy. That would be the tail wagging the dog. It would lead to the opposite result in terms of a beneficial construction applied to the statute as a whole. If the Territory is not a “public authority” under s 40C(3), then absent a specific s 40D declaration (and there is none applying here) it is not a public authority to which the Human Rights Act applies at all.
Accordingly, having considered the text, context and purpose of the Human Rights Act, all favour a construction of the Territory as a public authority. However, even if I were wrong on that interpretation, I would have found that the Territory fell within s 40(1)(g) of the list of public authorities, being an entity, whose functions are or include functions of a public nature, when exercising those functions for the Territory. The Territory is an entity, having a separate legal personality. It is performing the public function of managing detention centres, through employees of the Territory. By virtue of s 223 of the Corrections Act, in taking responsibility for the conduct alleged at the AMC, it is clear that such management function is on its own behalf.
Is the Territory being sued as a public authority who has acted in a way that infringed the plaintiff’s human rights?
The second reason why the plaintiff argued s 40C(3) of the Human Rights Act did not apply was because of the particular words of s 40C(2)(a), namely that the Territory was not being sued “as a public authority who has acted in a way that infringed the plaintiff’s human rights”. The plaintiff drew a distinction between the employees at the AMC and the Territory itself. It was argued that the infringement of the right was by the AMC employees, but the remedy is against the Territory because of the operation of s 223 of the Corrections Act. The plaintiff asserted he is not suing the public authority who he claims infringed his human rights. His claim falls within s 40C(2)(b), ‘other proceedings’. As such, he submitted his human rights claims are not affected by s 40C(3), which only applies to s 40C(2)(a).
There are two problems with that submission. First, it runs contrary to the plaintiff’s Amended Statement of Claim (Amended Claim), paragraph 8 of which states (emphasis added):
The defendant [the Territory], by its Justice and Community Safety Directorate… and its employee, the Director-General…, maintained and was responsible for:
(a)ACT Corrective Services as a business unit;
(b)adult correctional services which promote the rehabilitation and successful reintegration of offenders into the community; and
(c)Corrections centres meeting the minimum living conditions pursuant to Section 12 of the Corrections…Act…
Paragraph 9 pleads the Territory as being vicariously liable for the conduct of its employees, servants and agents in so far as that conduct is committed in the course of their employment with the Territory and further, that the Territory:
…is liable for the acts and omissions of the Director General or a corrections officer when exercising a function under the [Corrections Act] or when involved in the administration of the [Corrections Act] done honestly and without recklessness.
The effect of a pleading of vicarious liability is that the conduct of the employees of the Territory is taken at law to be the conduct of the Territory itself.
The pleading then alleges that the employees, servants and agents of its Directorate, each of whom is a public authority, infringed the Plaintiff’s rights in contravention of s 40B.
Paragraph 37 of the Amended Claim alleges:
By reason of section 40B(1) of the Human Rights Act 2004, by acting in a way that was incompatible with, further and alternatively by failing to give proper consideration to, the Plaintiff’s Human Rights, the defendant [the Territory] acted unlawfully.
The plaintiff may have misunderstood the nature of what is pleaded, but the allegation that the Territory (by its employees and agents) engaged in the conduct that is said to be unlawful is clear.
Second, to the extent that the plaintiff is (either consciously or inadvertently) seeking to resile from what he has pleaded, the argument reveals a misunderstanding of the effect of s 223 of the Corrections Act. By that section, the Territory steps into the shoes of those who are alleged to have infringed the plaintiff’s rights. It is the equivalent of a deeming provision, in that the Territory is deemed to be the public authority who has engaged in the conduct asserted and therefore infringed the plaintiff’s rights (if that is what is ultimately found).
Accordingly, the argument that the plaintiff’s claim is not brought against the public authority who is claimed to have infringed the human right must be rejected.
Is the present litigation a “proceeding” within the meaning of s 40C(2)(a) or (b)?
The third reason why the plaintiff argued s 40C(3) of the Human Rights Act did not apply was because what has been commenced instead falls into the category of ‘any other proceeding’ under s 40C(2)(b). Consideration must first be given to the plaintiff’s Amended Claim. There is a claim pleaded in tort for false imprisonment (claiming damages, including aggravated and exemplary damages). There is also what appears to be more in the nature of a judicial review claim for breaches of the Corrections Act resulting in unlawful detention, although no relief in the form of a declaration to that effect has been pleaded. Finally, there is a claim for compensation directly brought under s 18(7) of the Human Rights Act.
The statutory causes of action alleging breaches of human rights or seeking compensation pursuant to s 18(7) of the Human Rights Act are claims falling within s 40C(2)(a) of the Human Rights Act. The remaining causes of action, which are augmented by allegations of breaches of human rights but not solely founded upon them, arguably fall within s 40C(2)(b) of the Human Rights Act, as being ‘other proceedings'. The problem to grapple with is the correct characterisation of proceedings where a cause of action separate from a statutory action under the Human Rights Act is intermingled with allegations of breaches of human rights.
The Territory drew the Court’s attention to the Explanatory Statement to the Human Rights Amendment Bill 2007 (ACT) as providing assistance in working out the meaning of s 40C(2)(a) and (b):
Paragraph 40C(2)(a) creates a direct right of action in the Supreme Court. A victim of an unlawful act by a public authority may institute proceedings against the public authority in the Supreme Court.
Paragraph 40C(2)(b) provides that a victim of an unlawful act by a public authority may also rely on human rights as part of any other legal proceeding in a court or tribunal. This may include, for example, in an action brought against a public authority under the Administrative Decisions (Judicial Review) Act 1989, or an order in a civil or criminal proceeding, a stay of proceedings or exclusion of evidence.
Sub-section 40C(2) is modeled on section 7 of the United Kingdom Human Rights Act 1998. It is intended to enable victims of unlawful acts by public authorities to rely on human rights in legal proceedings in courts and tribunals or to institute an independent cause of action in the Supreme Court.
Having referred to the Explanatory Statement and to part of what appears in the extract above, Master Mossop (as his Honour then was) stated in LM v Childrens Court of the Australian Capital Territory [2014] ACTSC 26 at [29], citing Russell v Pangallo [2012] ACTMC 4 at [22]:
Thus, consistent with the language of the legislation, the purpose of the legislature as expressed in the explanatory statement was to permit reliance upon human rights in proceedings both in the Supreme Court and in other courts or tribunals such as the Magistrates Court.
The Territory accepted that where the plaintiff had pleaded separate causes of action that did not rely upon any breach of the plaintiff’s human rights, they could be pursued unaffected by the time limitation provision in s 40C(3) and the procedural irregularity it raised as giving rise to the need for a stay. The orders sought by the Territory only concerned those claims by which the plaintiff seeks a finding or determination that he is a victim of contraventions of s 40B by a public authority.
That then gives rise to whether the Court can effectively carve out some causes of action and stay others. The plaintiff submitted this was a novel proposition, which amounts to seeking a stay of particular pleaded paragraphs, rather than a cause of action, and otherwise made submissions about the court striving to extend jurisdiction to litigants to allow their claims for relief. He submitted (correctly) that a stay of proceedings should only be granted where the interests of justice demand it, relying upon Williams v Spautz [1992] HCA 34; 174 CLR 509 at 519.
I accept the Territory’s submission that the question to ask is, to draw together the words of the statute, whether the plaintiff has started a ‘proceeding’ in the Supreme Court against a public authority, claiming that the public authority has acted in contravention of s 40B by acting in way incompatible with a human right, or failing to give proper consideration to a relevant human right in making a decision, and that they are a victim of the contravention: s 40C(1).
It is understandable why the plaintiff treated the Territory’s submission as one about particular paragraphs in a pleading; the relief sought in the stay application was directed to particular paragraphs. But what is really being argued by the Territory, at least as I understood it, is that where the cause of action includes an allegation that the Territory, its employees or agents acted incompatibly with the plaintiff’s human rights, that is a claim or action in the Supreme Court against the Territory that the plaintiff is a victim of the contravention, and therefore a “proceeding” falling within s 40C(2)(a) of the Human Rights Act. That it may also include other extraneous allegations is immaterial.
There is no reason why one cause of action in a pleading cannot be the subject of a stay while another be permitted to proceed. The definition of “proceeding”, picked up through the Dictionary in the Legislation Act, means a “legal or other action or proceeding”. Such definition is capable of referring to one cause of action or the entire litigation involving multiple causes of action. That is broadly consistent with judicial authority to the effect that the meaning of “proceeding” depends upon the context: Blake v Norris(1990) 20 NSWLR 300, at 306 per Smart J.
As I see it, s 40C is concerned with providing a mechanism to individuals who claim that their human rights have been infringed to either seek redress directly, in which case they must go to the Supreme Court, or to rely on the conduct indirectly in seeking other remedies (such as a stay of a criminal proceeding, or review of a decision) which may be in other courts or tribunals. Where the individual wishes to seek direct redress against the public authority in the Supreme Court, they have a year to do it unless the Court extends the time.
Applying that reasoning, the consequence of construing “proceeding” to refer to individual causes of action are:
(a) Where there are other causes of action contained in the same pleading which may not be described as a claim for a breach of the plaintiff’s human rights, those causes of action are unaffected by any time limitation stipulated in s 40C(3), but that does not mean that the entire pleading is categorised as an ‘other proceeding’ under s 40C(2)(b) of the Human Rights Act.
(b) Equally, even if part of the plaintiff’s Amended Claim pleads matters extraneous to the Human Rights Act, any cause of action which is founded upon a contravention of the Human Rights Act, and where the authority is sued – regardless of whether the cause of action is brought directly pursuant to the Human Rights Act or independently, such as in tort – remains a ‘proceeding’ of the kind described in s 40C(2)(a) and is therefore affected by the time limitation provided in s 40C(3).
If the position were otherwise, a plaintiff could simply plead allegations in a cause of action that were independent of human rights to escape the time limitation in s 40C(3), or tack on to a pleading alleging breaches of human rights a cause of action (such as negligence) so as to classify the whole proceeding as falling within s 40(2)(b) and thus circumvent the operation of s 40C(3). Such a construction of the word “proceeding” is not to be preferred, because it would not further the purpose of the provision, which is designed to require claimants with human rights complaints to bring forward their claims against public authorities in a timely fashion.
Applying that analysis to this case, paragraphs [31] to [42A] of the Amended Claim plead a cause of action founded upon the plaintiff being a victim of the Territory acting incompatibly with his human rights, leading to a claim for compensation pursuant to s 18(7) of the Human Rights Act. That cause of action is one to which s 40C(2)(a) applies. The same may be said for any damages component of [43] the Amended Claim that relies upon infringements of, or incompatibility with, the Human Rights Act for such a remedy.
The false imprisonment claim is not affected by the one-year time limitation if limited to the facts of confinement pursuant to an invalid or unlawful procedure. However, to the extent that such cause of action relies upon claimed breaches of the Human Rights Act, that action is a cause of action to which s 40C(2)(a) applies.
For example, if even one of the reasons the confinement is said to be invalid or unlawful is that it was incompatible with the plaintiff’s human rights, that brings the action or the “proceeding” within s 40C(2)(a), even though the allegations are part of a claim made in tort. In that regard, [22B] of the Amended Claim alleges that a clause of the procedures implemented under the Corrections Act was incompatible with the plaintiff’s human rights under s 19(1) of the Human Rights Act. While [22B] of the Amended Claim is not a cause of action in itself and no relief is sought by way of a declaration to the effect pleaded, any claim which relies on that pleaded fact is a “proceeding” to which s 40C(2)(a) applies.
Similarly, if one of the reasons for seeking aggravated or exemplary damages is that the plaintiff’s human rights have been breached, that brings that part of the proceeding within s 40C(2)(a).
Should the argument about time limitation be determined now or at a final hearing?
The plaintiff argued that the Territory had taken an incorrect approach in raising the limitation period point before even filing a defence. The plaintiff relied on one of the leading authorities on the question of when to deal with a limitation question (as a preliminary matter or at a final substantive hearing), Wardley Australia Ltd v State of Western Australia [1992] HCA 55; 175 CLR 514 (Wardley), in submitting that the limitation point should be contested at a final hearing. In support of that submission, the plaintiff argued:
(a) The approach taken in Dudycz v Vager Pty Ltd t/a Gerald Slaven Holden & Anor [2011] ACTSC 7 (Dudycz) in relation to the use of r 40 should be followed here. The Territory should simply file a defence relying on the limitation period, or apply for summary judgment, not seek a stay of the proceeding.
(b) The availability in s 40C(3) of an extension of a limitation period, and whether the court should exercise its discretion in that regard, was an issue that should be determined when a trial judge can determine all issues of fact and law and exercise any relevant discretion. A peremptory “stay” on components of the Claims would be inconsistent with that process.
(c) A separate determination of an issue in the case should be ordered only if the utility, economy and fairness to the parties of a separate hearing is beyond question: Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1 at [170].
In Wardley, Mason CJ, Dawson, Gaudron and McHugh JJ remarked (at 533) on the undesirability that ‘limitation questions...should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases’.
I accept that in cases where the Court has a discretion to extend the time in which to bring a human rights claim and there are questions of fact which need to be determined which will inform the Court’s discretion, it may be inappropriate to determine the time limitation question in advance of a substantive hearing of the proceeding. I found as much in Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital [2018] ACTSC 53 at [56]. However, I have considered it appropriate to determine whether the limitation period applies here because on the plaintiff’s pleading, this is one of the clearest of cases where the plaintiff is out of time. The conduct complained of was conceded by the plaintiff to have occurred, in its entirety, more than one year before this litigation was commenced.
In Dudycz, Master Harper was dealing with a general limitation period for a personal injury claim where the defendant had filed an unconditional notice of intention to respond and the plaintiff had filed an application seeking to extend the limitation period, which his Honour heard concurrently with a strike out application made pursuant to r 40 of the Rules. His Honour expressed the following view at [33]:
The application by the first defendant to set the proceedings aside pursuant to rule 40 of the Court Procedures Rules 2006 (ACT) was in my view misconceived. The commencement of an action outside a limitation period does not necessarily mean it is doomed to failure. The bar must be pleaded by the defendant. Where a plaintiff commences proceedings outside a limitation period, a defence is filed pleading the limitation issue and the plaintiff does not within a reasonable time make an application for extension, the proper course for the defendant is to apply for summary judgment. It was not in my opinion open to the first defendant to make an application to have the proceeding struck out prior to the delivery of a defence. The first defendant’s application in that regard will be dismissed.
The decision is of no assistance here. First, the Territory filed a conditional notice of intention to respond, squarely putting the plaintiff on notice of the limitation point. Despite invitation by both the Territory before the bringing of the present application and the Court during hearing, no application to extend the time has been made as an alternative to the plaintiff’s primary arguments, dealt with above, as to why the proceeding was not one to which s 40C(3) applied.
Second, the relief sought in Dudycz pursuant to r 40 was to strike out the pleading, which is not what the Territory has sought here.
Third, it is not necessary to plead a limitation point in defence before making an application such as has been made in the present proceeding. In Riches v Director of Public Prosecutions [1973] 1 WLR 1019 (Riches), Lawton LJ stated at 1027:
One of the uncontested sets of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is statute barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, there is no reason to think that the plaintiff can bring himself within the exceptions set out in the Limitation Act... In those circumstances it is pointless for the case to go on so that the defendant can deliver a defence.
That was a case where what was sought on the basis of a limitation provision applying was summary judgment rather than a stay pending the grant of an extension of time, but the principle as to when the limitation point should be raised (before or after a defence has been filed) is the same. Riches was cited with apparent approval by Refshauge J in Piscioneri v Reardon [2015] ACTSC 61 at [63]. His Honour went on (at [64]) to cite the following extract from the judgment of Stephenson LJ, with whom Sir Sebag Shaw agreed, in Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 at 408:
There are many cases in which the expiry of the limitationperiod makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitationswill be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases, what was done in Riches v Director of Public Prosecutions [1973] 1 WLR 1019: strike out the claim and dismiss the action.
Here, there are no questions of credit involved and the expiry of the time limitation is clear. There is real public interest in ensuring that the parties’ resources are not spent litigating a matter to a final hearing and that the Court’s resources are not similarly expended hearing such a case. This is a costs jurisdiction, and an unsuccessful plaintiff may be the subject of an adverse costs order. There is no utility at all to be gained for the plaintiff in running a claim that is at risk of being determined to be statutorily barred. That leads to a conclusion that the utility, economy and fairness to the parties of determining whether a stay should be granted now is beyond question.
Counsel for the plaintiff accepted that if I accepted that s 40C(3) of the Human Rights Act applied and that the question of the time limitation provision was appropriate to be determined in advance of both a defence being filed and a final hearing, that there was no other discretionary reason why a stay would not be ordered.
Conclusion
For the above reasons, the proceeding that has been commenced is a proceeding to which s 40C(3) applies. There is an irregularity and the appropriate course is to stay the proceeding until further order, to give the plaintiff an opportunity to file the necessary application seeking to extend time under the provision.
The Territory has been successful on the application and has made an application for costs. As there is no reason to depart from the usual order that costs follow the event, the plaintiff should bear the costs, but I will order that such costs not be recoverable until the conclusion of the proceedings.
The same orders will be made in respect of the other proceedings, with the intent that each plaintiff affected shares the burden of the interlocutory dispute.
The orders of the Court are as follows:
(1) Pursuant to r 40(1)(g) of the Court Procedures Rules 2006 or the inherent jurisdiction of the Court, that part of the plaintiff’s claim which is founded upon a statutory cause of action brought under the Human Rights Act 2004 is stayed until:
a. the plaintiff applies to the Court for an order otherwise under s 40C(3) of the said Act; and
b. the Court makes such an order.
(2) The plaintiff is to pay the defendant’s costs, with such costs not to be recoverable until the conclusion of the proceeding.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 13/02/2023 |
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