Commonwealth of Australia v Dinnison, B.C. [1995] FCA 192

CATCHWORDS

LIMITATION OF ACTIONS - effect of ss. 60-60J of the Limitation Act 1969 (NSW) in the light of Dedousis v Water Board (1994) 69 ALJR 1 - claim for nervous shock arising out of the witnessing of atomic explosions at Maralinga in 1957 - whether the plaintiff, who feared he had sustained radiation damage, nevertheless did not know within s. 60I(1)(a)(i) that personal injury, being an anxiety state amounting to an illness, had been suffered by him - whether, in any case, he was unaware within s. 60I(1)(a)(ii) of the nature or extent of his illness - whether it was open to the judge to find it just and reasonable to make an order within s. 60G.

PRIVATE INTERNATIONAL LAW RULES AS BETWEEN THE STATES - action in tort against the Commonwealth in respect of act in South Australia, the action being brought in the New South Wales Registry of the High Court and remitted to the Federal Court - effect of ss. 79 and 80 of the Judiciary Act 1903 - effect of Musgrave v The Commonwealth and Suehle v The Commonwealth.

Judiciary Act 1903 (Cth), ss. 56, 79 and 80

Limitation Act 1969 (NSW), ss. 60-60J

Dedousis v Water Board (1994) 69 ALJR 1

Musgrave v The Commonwealth (1937) 57 CLR 514

Suehle v The Commonwealth (1967) 116 CLR 353

Breavington v Godleman (1988) 169 CLR 41

COMMONWEALTH OF AUSTRALIA v BARRIE CHARLES DINNISON

NG 159 of 1994

Burchett, Gummow and Cooper JJ.

Sydney

4 April 1995

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) NG 159 of 1994

)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

BETWEEN: COMMONWEALTH OF AUSTRALIA

Appellant

AND: BARRIE CHARLES DINNISON

Respondent

CORAM: Burchett, Gummow and Cooper JJ.

PLACE: Sydney

DATE : 4 April 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT the appeal be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) NG 159 of 1994

)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

BETWEEN: COMMONWEALTH OF AUSTRALIA

Appellant

AND: BARRIE CHARLES DINNISON

Respondent

CORAM: Burchett, Gummow and Cooper JJ.

PLACE: Sydney

DATE : 4 April 1995

REASONS FOR JUDGMENT

BURCHETT J:

I have had the advantage of reading the reasons prepared by Gummow and Cooper JJ., in which their Honours analyse the tangled legal and constitutional background to this case. However, I would take as my starting point the Statement of Defence filed by the Commonwealth in reliance upon ss. 14(1), 51 and 63(1) of the Limitation Act, 1969 of New South Wales. Since the Commonwealth raised provisions of a New South Wales Statute of Limitations in its defence of the action, it could not be heard (and did not ask to be heard) to say that the further provisions of this statute, qualifying the availability of the same defences, were inapplicable on the basis that the whole statute was inapplicable. This is why, as I understand the position, the plaintiff moved for an extension of the time limited by the New South Wales legislation which had been pleaded in bar of his action.

In the circumstances, whilst sharing the view of Gummow and Cooper JJ. that the defence itself raises wide-ranging questions not debated either in the argument before the judge at first instance or upon the appeal, I think the Court can decide the appeal simply upon the issues which were raised. Upon those issues, I am in agreement with the conclusions reached by their Honours.

In my opinion, it was open to the judge who heard the motion to decide that each of the requirements to enable the extension to be granted had been established, and that it was appropriate for him to exercise his discretion in favour of the respondent plaintiff. No argument was put on the appeal to challenge the conclusion (reached at this interlocutory stage) that the Commonwealth unreasonably exposed the plaintiff to danger. Of course, it does not follow that the alleged anxiety state resulted from this exposure; it may actually have resulted from the plaintiff's later exposure to rumours, information (or misinformation) and opinions emanating from persons for whom the Commonwealth was in no way responsible. These are questions for the trial. But the evidence showed a sufficient case, for the purposes of the motion, to justify the order that was made.

Accordingly, the appeal should be dismissed with costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 4 April 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG159 of 1994

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia.

BETWEEN: COMMONWEALTH OF AUSTRALIA

Appellant

AND: BARRIE CHARLES DINNISON

Respondent

BEFORE: BURCHETT, GUMMOW, COOPER JJ.

PLACE: SYDNEY.

DATE: 4 APRIL 1995.

REASONS FOR JUDGMENT

GUMMOW, COOPER JJ:

This is an appeal, by leave, from an order of a Judge of this Court (Foster J) made 4 March 1994. His Honour ordered that the limitation period for the respondent's cause of action against the Commonwealth, the appellant, be extended until 31 March 1994.

In order to appreciate the complex issues that arise from that apparently simple state of affairs, it is necessary first to look to the history of this litigation and to the legal framework within which the case is to be understood. This is
so even though some of the matters to which we shall refer were not the subject of debate before us.

The action was instituted in the Sydney office of the Registry of the High Court by writ issued 24 November 1988. In the writ the plaintiff (the present respondent, Mr Dinnison) is stated as residing at Duncraig in the State of Western Australia. When he gave evidence before the primary Judge, in 1994, the plaintiff resided at Darlington Point in New South Wales.

The High Court writ was accompanied by a Statement of Claim. It was asserted that the action was within the original jurisdiction of the High Court under s. 75 (iii) of the Constitution. The critical complaint by the respondent in the Statement of Claim was his exposure to nuclear radiation at Maralinga in the State of South Australia. Paragraphs 3, 4, 5, 6 and 7 were as follows:

"3. At all material times the Plaintiff was employed by the Defendant as a Motor Transport Mechanic enlisted in the Royal Australian Air Force.

4. Between 1957 and 1958 the Defendant directed and required the Plaintiff to perform his duties at Maralinga.

5. At all material times the Defendant used and/or permitted the area and district in and around Maralinga to be used as a range for the testing and explosion of atomic bombs and nuclear devices. The Defendant at all material times knew that the operations connected therewith produced contamination by nuclear radiation in the surrounding natural and built environment,
and that such contamination had a propensity to cause human death and/or injury whether immediately or many years later.

6. By reason of the matters set forth in paragraphs 4 and 5 the Plaintiff was exposed to nuclear radiation.

7. By reason of the matters set forth in paragraphs 4, 5 and 6 the Plaintiff has and will continue to suffer injury, loss and damage.

PARTICULARS OF INJURY

(a) Bleeding from bowel;

(b) Premature loss of teeth;

PARTICULARS OF ECONOMIC LOSS

To be supplied in due course."

By Amended Defence, dated 21 February 1989, the Commonwealth pleaded (para. 6) certain defences raising the Limitation Act 1969 (NSW) ("the 1969 Act"). There were three defences. The first was that the action was not maintainable, within the meaning of sub-s. 14 (1) of the 1969 Act, because it was brought after the expiration of a limitation of 6 years running from the date on which the cause of action first accrued to the plaintiff. Secondly, it was pleaded that the right and title of the plaintiff against the defendant was extinguished (within the meaning of sub-s. 63 (1) of the 1969 Act) because the limitation period fixed by that statute had expired. Finally, the Commonwealth asserted that by virtue of s. 51 of the 1969 Act, Division 3 of Part 3 of the statute (including s. 58, which provided for extension of the limitation period by Court order) did not apply to the plaintiff; this was because the action on which his case was brought was instituted after the expiration of 30 years running from the date on which the cause of action first accrued to the plaintiff, and s. 51 made the procedure under s. 58 unavailable in such a case.

The Commonwealth appears to have proceeded on the footing that whatever otherwise might be the significance of the alleged commission of the wrongful acts at Maralinga in the State of South Australia, the result of the institution of the action in the Sydney office of Registry of the High Court was to pick up under s. 79 or ss. 79 and 80 of the Judiciary Act (1903) ("the Judiciary Act") the rules of private international law as applied in New South Wales.

The relevant rule of private international law between the States, as now settled, is that (i) the claim must arise out of circumstances of such a character that had they occurred in New South Wales a cause of action would have arisen entitling the plaintiff to enforce against the Commonwealth a civil liability of the kind which he claims to enforce, and (ii) by the law of the place where the alleged wrong occurred (semble, here, the State of South Australia) the circumstances of the occurrence give rise to a civil liability of a kind which the plaintiff claims to enforce: McKain v R.W. Miller & Company (S.A.) Pty Ltd (1991) 174 CLR 1 at 39.

The rule is subject to the qualification or refinement that the civil liability to which the law of the place in which the wrong occurred gave rise must be a continuing liability. If civil liability be extinguished, the cause of action conferred by the forum is extinguished also. This is so whether the civil liability is extinguished by merger in a judgment, by accord and satisfaction, or by statute (McKain, supra at 39-40). A statute of the place where the wrong was committed which is a true statute of limitation (i.e. a law which cuts off resort to the courts for enforcement of a claim) is procedural in character and procedure is a matter for the forum. But a statute which extinguishes a civil liability and destroys a cause of action is a substantive law.

The point taken by the Amended Defence filed in the High Court in February 1989 was of a different nature. The assertion was that the cause of action had been extinguished by the operation of a statute of the forum, for this purpose New South Wales, so as to prevent fulfilment of the first of the two requirements for maintenance of an action under the rules of private international law operating in the State of New South Wales.

Sub-section 44 (2A) of the Judiciary Act states:

"44.(2A)Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia."

By consent order made by Mason CJ on 22 August 1991, the matter was remitted to the New South Wales District Registry of this Court. Upon remitter by the High Court under sub-s. 44 (2A), this Court has jurisdiction in the matter: sub-s. 44 (3) (a); McCauley v Hamilton Island Enterprises Pty Ltd (1986) 69 ALR 270 at 275-6. The scheme of s. 44 is to confer on the court to which the remitter is made federal jurisdiction which is "coextensive" with that of the High Court: Johnstone v The Commonwealth (1979) 143 CLR 398 at 408-9. The result is that in this Court also the laws of New South Wales will be "picked up" as they had been in the High Court. Thus, the question does not arise as to the consequences of a remitter to a Registry of this Court in a State which differs from that of the Office of the High Court Registry in which the proceeding had been instituted and in which pleadings had been filed.

Nor has any point been taken as to the application of s. 51 (xxxi) of the Constitution to ss. 79 and 80 of the Judiciary Act. They had picked up s. 63 of the 1969 Act to extinguish any cause of action which, before the commencement of the 1969 Act, had accrued to the plaintiff, was presently subsisting and was not statute barred under the 1623 legislation previously in force in New South Wales; cf Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 308.

Indeed, one of the difficulties in the present matter is the absence of a finding, or indeed any specific allegation or assertion, as to the date when the claim accrued. The position is put negatively, by concession of the respondent that whenever the claim accrued it had done so more than 6 years before the institution of the High Court action in 1988.

It is still unsettled whether the liability of the Commonwealth in tort is brought about by s. 75 (iii) of the Constitution itself or whether it arises from statute, namely s. 64 and perhaps 56 of the Judiciary Act (see Georgiadis supra at 312 (Brennan J), 325-6 (McHugh J) and also Cowen & Zines "Federal Jurisdiction in Australia", 2nd ed., 1978, pp. 35-38).

In either case, an action against the Commonwealth brought in tort involves the exercise by the court in question of federal jurisdiction. Further, s. 56 of the Judiciary Act provides that if a claim made against the Commonwealth in tort "arose" in a State or Territory, it may be instituted in the High Court or in the Supreme Court or other court of competent jurisdiction of that State or Territory.

As we have indicated, the effect of s. 79 of the Judiciary Act, perhaps in conjunction with s. 80, is to make the laws of a State binding upon courts exercising federal jurisdiction within that State. The law thus designated is "the whole body of the law of the State including the rules of private international law so far as applicable": Pedersen v Young (1964) 110 CLR 162 at 169-70 per Windeyer J. See also Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39, per Dixon CJ and the authorities collected by Wilson and Gaudron JJ in Breavington v Godleman (1988) 169 CLR 41 at 87-8.

However, actions in tort against the Commonwealth which arose in a State or Territory may stand in a special position. The inclination of Dixon J upon the subject was expressed in Musgrave v The Commonwealth (1937) 57 CLR 514 at 547-8, as follows:

"Secs. 79 and 80 of the Judiciary Act apply only where otherwise Federal law itself is insufficient, and it may be considered that the provisions of Federal law do impliedly prescribe the law that is to govern the delictual responsibility of the Commonwealth for a given act of its servants. For once an intention is discovered, either in sec. 75 of the Constitution or in Part IX of the Judiciary Act 1903-1934 [ss. 56-67], that the Commonwealth should be under a substantive liability for tort, it may well be thought to be part of this intention that the liability should be that otherwise flowing from the law of the State or territory in which the wrongful act or omission is committed or made."

To similar effect is the statement in the same case by Evatt and McTiernan JJ (at 550-51):

"In any case, sec. 56 of the Judiciary Act expressly recognizes that any person may bring any action of tort against the Commonwealth, either in the High Court or in the Supreme Court of the State in which the claim arose. In our opinion, the law to be applied in cases where the tort alleged is the publication of a libel in one of the States of the Commonwealth and action has been brought in the High Court, is the same law as must be applied where the action is brought in the Supreme Court of the State where the claim arose by reason of the publication of the libel, viz., the law of such State. In the present case, the claim arose in Queensland, the defamatory letter having been published in that State. Whatever may be the precise limits to be assigned to sec. 79 of the Judiciary Act, it does not introduce, for the purpose of determining the lawfulness of the publication complained of, the general body of New South Wales law, merely because the action, being instituted in the High Court, happens to have been heard at Sydney. Therefore, in our opinion, the principle embodied in such cases as Machado v Fontes [1897] 2 QB 231 has no application to the present case. The result is that the law of Queensland and it alone must determine the lawfulness of the defendant's publication, and the statement of defence, which is not based upon, or in any way referable to, the New South Wales law, but is based solely upon the Queensland law, will, if proved, afford an answer to the plaintiff's action."

In Suehle v The Commonwealth (1967) 116 CLR 353, an action in tort instituted in the Canberra Registry of the High Court but heard in Sydney, Windeyer J applied the law of South Australia, where the cause of action against the Commonwealth had arisen.

The correctness of the views expressed in these authorities was not denied in the judgments of those forming the majority in Breavington supra. Brennan J, one of the majority, said (169 CLR at 118):

"If the action is brought in this Court pursuant to s. 56 (1) (a) of the Judiciary Act, the kind of liability to which the Commonwealth is subject is determined by the law of the relevant Territory for that becomes the lex fori for the purpose of the action: Suehle v. The Commonwealth (1967) 116 C.L.R. 353. If the action is brought in the court of the appropriate Territory pursuant to s. 56 (1) (b), that court will, of course, apply the law of that Territory. And if the action is brought in a court on which jurisdiction is conferred only by s. 39 (2) of the Judiciary Act, and the Commonwealth submits to the jurisdiction of that court, that court will adopt the same choice of law principles as it adopts in actions between subjects: see s. 79 of the Judiciary Act. No exception is made to that rule in an action in which the Commonwealth is a party: s. 64 of the Judiciary Act."

Another member of the majority, Dawson J, said (at 151-2) that there was much to be said for the view of Windeyer J in Suehle. Of the other members of the Court, Wilson and Gaudron JJ (at 101) said that if s. 56 of the Judiciary Act had the function ascribed to it by Dixon J and Windeyer J, this in any event would be achieved by the adoption of the choice of law rule favoured by them, namely that "tortious liability be determined by the substantive law that would be applied if the action were brought in a court exercising the judicial power of the State or Territory in which the events occurred".

It will be recalled that in Breavington one of the three defendants was the Australian Telecommunications Commission ("Telecom"), that it was common ground that Telecom was "the Commonwealth" for the purposes of Part IX of the Judiciary Act, and that the alleged tort had been committed in the Northern Territory. The action had been instituted in the Supreme Court of Victoria. The matter came to the High Court, by special leave, from the decision of the Full Court of the Supreme Court of Victoria which had reversed the decision of the primary Judge on a strike out application. The contention of all three respondents in the High Court was that the governing law was the lex loci delicti. The submission was put on two bases as described by Mason CJ (at 69):

"(1)the principles of private international law and

(2) ss. 106, 107 and 118 of the Constitution and s. 18 of the State and Territorial Laws and Records Recognition Act 1901 ..."

Therefore, it is not surprising that in the judgments of those forming the majority, discussion of the significance of s. 56 of the Judiciary Act primarily is directed to the question of whether the action should have been instituted in the Supreme Court of the Northern Territory, in which the claim arose, rather than in the Supreme Court of Victoria. However, Telecom had filed an unconditional appearance and had raised no objection to the jurisdiction of the Supreme Court of Victoria: see 169 CLR at 44. The consequence, in the judgments of those forming the majority (at 69, 117-8, 152-3, 169) was that even if s. 56 was a source of liability of the Commonwealth in tort, rather than merely facultative, it did not prevent the Commonwealth subjecting itself to the federal jurisdiction conferred upon State courts by s. 39 (2) of the Judiciary Act.

None of the succeeding High Court cases, McKain supra, Stevens v Head (1993) 176 CLR 433 and Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463, was an action in which federal jurisdiction was attracted, save insofar as questions arose involving the interpretation of ss. 117 and 118 of the Constitution. None was an action against the Commonwealth. Therefore, none raised the issues which had been discussed in Musgrave and Suehle as to the interrelation between the rules of private international law and that branch of federal jurisdiction concerned with actions against the Commonwealth in tort.

The Commonwealth has conducted its defence of the present case as if Suehle had not been decided and the case is to be treated simply as if ss. 79 and 80 controlled it.

On 1 September 1990, the Limitation (Amendment) Act 1990 (NSW) ("the 1990 Act") came into force. This inserted in the 1969 Act s. 18A which imposed a limitation period of three years for causes of action, founded on negligence, nuisance or breach of duty, for damages for personal injury and accruing on or after 1 September 1990. The 1990 Act also introduced fresh provisions (ss. 60A - 60E) which applied to causes of action accruing on or after 1 September 1990 (s. 60B). The purpose of these provisions (in a subdivision headed "Secondary limitation period") is to provide a procedure for a maximum five year extension of the three year limitation period for personal injury cases (s. 60A).

Finally, ss. 60F-60J (in a subdivision headed "Discretionary extension for latent injury etc.") provided a procedure for a further discretionary extension of limitation periods in respect of causes of action accruing on or after 1 September 1990 where, to put it broadly, the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. The procedure is also available for causes of action which had accrued before 1 September 1990. This is brought about by the operation of the new Schedule 5 to the 1969 Act.

On 15 June 1993, the present respondent applied to this Court for what was expressed to be an order pursuant to s. 60G of the 1969 Act extending the limitation period for his cause of action against the Commonwealth. After hearing evidence including oral evidence of the applicant, the primary Judge made the order against which the Commonwealth brings this appeal.

We return to the terms of the 1990 Act. Sub-section 60G (1) provides that it applies to a cause of action that accrues on or after 1 September 1990 "founded on negligence, nuisance or breach of duty, for damages for personal injury". Sub-section 60G (2) is as follows:

"60G. (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."

Sub-section 60I (1) states that the court may not make an order under s. 60G unless it is satisfied of the two matters set out in paras. (a) and (b). These are:

"(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)."

As we have indicated, s. 60F indicates that the above procedure is available for causes of action accruing before 1 September 1990 and that provision is made for this in Schedule 5. Clause 4 of Schedule 5 deals with the subject. Sub-clause (1) thereof states that s. 60G applies, as indicated, to a cause of action "that accrued or would have accrued before 1 September 1990". Sub-clause (3) states that s. 60G applies whether or not any one or more of four listed circumstances exist. These are as follows:

"(a)whether or not a relevant limitation period has expired:

(i) before 1 September 1990; or

(ii) before an application is made under either of those sections in respect of the cause of action; and

(b) whether or not an action has been commenced on the cause of action before 1 September 1990; and

(c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date); and

(d) whether or not a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date)."

So far as relevant, sub-cl. (4) states:

"(4)The court may make an order under section 60G ... in relation to a cause of action referred to in this clause [if an application for such an order is made] within:

(a) the period of 3 years referred to in section 60I; or

(b) the period of 3 years commencing on 1 September 1990."

The words which we have emphasised were inserted in para. (4) by s. 3 of the Statute Law (Miscellaneous Provisions) Act 1993
(NSW), with effect on 15 June 1993. This was the day on which the present application to this Court was filed. The argument before us proceeded on the apparent footing that the amendment was procedural in nature so that there is no ground open of objection to its operation upon pending litigation or upon rights which were vested before 15 June 1993.

Sub-clause (4) poses the question whether the application for extension was made within time. Here, the application was made within the period of 3 years commencing on 1 September 1990, and thus satisfied para. (b) of sub-cl. (4).

Section 60G applies even if a relevant limitation period had expired before 1 September 1990 (sub-cl. (3) (a)) and even though an action had been commenced on the cause of action before 1 September 1990 (sub-cl. (3) (b)).

The primary Judge approached the issues before him on the footing of the law as it was understood after certain decisions of the New South Wales Court of Appeal construing the 1990 Act. The primary Judge delivered his decision 4 March 1994. On 16 November 1994, the High Court delivered judgment in Dedousis v Water Board (1994) 69 ALJR 1.

The High Court held that in the earlier decisions too much emphasis had been placed upon s. 60F. Rather, s. 60F is no more than an introductory provision indicating the purpose of the legislation by providing a summary of its substantive provisions. Section 60F is not to be construed as obliging a plaintiff to show that he was "unaware of the fact, nature, extent or cause of the injury ... at the relevant time".

In relation to a cause of action which accrued before 1 September 1990, the primary task is to apply sub-cl. 4 (4) of the Schedule as it bears upon s. 60I. The statement in sub-cl. 4 (4) that the Court may make an order under s. 60G if an application be made within the period of 3 years commencing on 1 September 1990 affects the operation of para. 60I (1) (b). This states that a court may not make an order under s. 60G unless it is made "within 3 years after the plaintiff became aware (or ought to have become aware) of all three matters listed in [sub-para. 60I (1) (a) (i)-(iii)]".

The result, the High Court held, is that a person in the position of the present respondent, Mr Dinnison, must satisfy the requirements of sub-s. 60I (1) (a), and then satisfy the Court that the application is brought within time as specified in sub-cl. 4 (4). As indicated, there is no dispute that the application in the present case was brought within such time. The question is whether the respondent has satisfied the requirements of para. 60I (1) (a). To these we now turn.

"60I(1) A court may not make an order under section 60G ... 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."

The primary Judge found that the respondent, as a member of the Royal Australian Air Force, then aged 19, had attended and witnessed three atomic explosions at Maralinga in September and October 1957. The respondent had left the RAAF in January 1961. The primary Judge said that although it was clear from the evidence that the respondent held and apparently still held the view that he suffered injury as a result of exposure to radiation, the case relied upon for the application was not one of radiation damage but of psychiatric damage, specifically the causing of a chronic and disabling anxiety state. It followed that the question of the establishment of a cause of action for the purposes of the application of the legislation was to be approached in terms of the current law relating to the infliction of damage by "nervous shock" as expounded in the High Court in Jaensch v Coffey (1984) 155 CLR 549.

The primary Judge said:

"It is not, of course, for the Court to come to any final decision in this application. I am satisfied, however, that there is sufficient material to indicate that the [respondent] has reasonable prospects of establishing that he received 'nervous shock' on the occasion of his witnessing the third blast. Also, it is arguable that his earlier experiences at Maralinga and his general condition of concern about radiation, would have made him more susceptible to shock on the final occasion and more vulnerable to the effects of it."

His Honour referred to the evidence of the respondent that whilst he was in the RAAF he had begun to experience dreams which were apparently related to his witnessing the third blast. The dreams occurred on average about once a week and had commenced two or three years after the respondent left Maralinga. They had resulted in a disturbed sleeping pattern. The primary Judge continued:

"I consider that this evidence and other evidence is capable of establishing that the applicant took from aspects of his service in Maralinga, culminating in his exposure to the shock of the third atomic blast, a deep seated fear that he had been affected by radiation and was a potential candidate for cancer. It is at least reasonably arguable that whilst he was still in the airforce, this condition of fear manifested itself in dreams and in disturbed sleep.

After he left the airforce, this fear appears to have been fed by a number of events. Whilst working in the Snowy Mountains in 1961, he spoke to an ex-serviceman from Japan, who provided him with some frightening information as to the effect of the Hiroshima atomic bomb explosion upon those unfortunate Japanese people who had been exposed to it. The information he received was that 'people who were as close to the bomb on Hiroshima as I was at the bomb at Maralinga were all riddled with cancer or they had this bone problem, bone marrow problem and that and lots of other defects of their body that caused death'. He said of this information 'that really shook me up a fair bit'.

His evidence appears to indicate that the receipt of information of this kind would revive or increase his sleeping problems until its effect would subside. It did not cause the problem, but temporarily added to it. The Snowy Mountains informant 'sort of put a bit more on top of it when I met him'."

Some time in 1986, on a date not disclosed by the evidence before Foster J, the respondent completed a questionnaire prepared by the Maralinga and Monte Bello Atomic Ex-Servicemens' Association. He answered the question as to whether he had any health problems which he felt may be associated with exposure to radiation in the affirmative. He described them as follows:

"I have to wear glasses and get them strengthened every 12-18 months.

I pass blood every 1-2 months."

On 9 October 1986, a letter was addressed to him at Duncraig in Western Australia by Maurice May & Co., solicitors, in Sydney. They said that they acted on behalf of the Association and had been supplied by it with a copy of the questionnaire. A written authority was enclosed. This authorised the solicitors to investigate and if appropriate to commence common law proceedings arising out of injuries suffered by the respondent as a result of the British nuclear tests in Australia. The authority was signed by the respondent on 19 October 1986. The letter of 9 October had concluded:

"Meanwhile, we would appreciate a more detailed account of your state of health referred to on your questionnaire. Please write to us of any change in health which you may feel is due to your participation in the test program."

The respondent later forwarded to the solicitors a letter to him dated 23 January 1987 from the Department of Defence. It commenced:

"I refer to your claim for compensation in respect of 'teeth became loose and had to be removed - very bad eyesight - passing of blood - poor hearing - anxiety - troubled uneasy and concerned from exposure to radiation'."

The writer went on to refer to the Compensation (Commonwealth Government Employees) Act 1971, and asked the respondent to submit a statement outlining his involvement in the programme at Maralinga and, more specifically, details of his exposure to radiation.

On 5 October 1988, the solicitors wrote to Mr Dinnison drawing attention to the recent passage of legislation which after 1 December 1988 would further restrict his right to seek not only statutory but common law damages. [The law in question appears to be s. 44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, considered in Georgiadis supra.] He was told that his claim should proceed as soon as possible in the High Court in order to precede the commencement of adverse legislation taking effect on 1 December. The letter continued:

"A Writ has been drafted and submitted to Counsel for settling and it is anticipated that an individual Statement of Claim may have to be prepared on your behalf."

We have referred to the particular of "anxiety" given to para. 7 of the Statement of Claim which accompanied the writ issued 24 November 1988.

To his affidavit in support of the present application, the respondent annexed a copy of a report by Dr Anthony Dinnen, consultant psychiatrist, dated 4 May 1993, and continued (para. 42):

"Until I was given the report of Dr. Dinnen I was not aware of any medical evidence that would support my claim against the Commonwealth".

In his report Dr Dinnen gave the following opinion:

"This patient is suffering from a chronic anxiety state as a result of his experiences at Maralinga during the atomic testing in 1957. His involvement with Aborigines at that time has much affected his life, and coloured his experiences. He perceives that his general health has been adversely affected by his exposure to radiation at Maralinga."

The primary Judge expressed as follows his conclusions:

"Obviously, the case sought to be presented may well be beset with difficulties. However, I think sufficient has been put forward to support a claim on behalf of the [respondent] that he was unreasonably exposed to nervous shock from the third atomic blast and that that exposure foreseeably set in train the development of an anxiety state. ... I consider ... that if he is not otherwise statute barred, the applicant has shown the existence of a case capable of being brought.

...

In this case, it is unnecessary to identify with precision when the relevant limitation period expired as this would have occurred many years ago. In my view, it is sufficiently demonstrated that it was not until the applicant was examined by Dr Dinnen that he was made aware of the fact that he had any psychiatric injury, as opposed to the physical injuries, from which he considered that he suffered. He was previously unaware of the fact, nature, or extent of the anxiety state which Dr Dinnen diagnosed."

[Emphasis supplied]

In this passage, the phrase "fact, nature, or extent of the anxiety state" reflects the terms of sub-paras. (i) and (ii) of para. 60I (1) (a) of the 1990 Act, that the respondent did not know that personal injury had been suffered, or was unaware of the nature or extent of the injuries suffered. It is common ground that the primary Judge did not consider sub-para. (iii) namely, unawareness of the connection between the personal injury and the act or omission of the appellant. In argument before us, there was no real opposition to the submission that if the appeal succeeded as to (i) and (ii), it would still be necessary to send the case back for resolution of the factual issues involved with (iii).

The Commonwealth takes issue with the statement by the primary Judge to the effect that whilst previously aware of his alleged physical injuries, the respondent was only aware of "the fact" that he had any psychiatric injury after the report by Dr Dinnen in 1993.

Paragraph 60I (1) (a) of the 1990 Act fixes upon the absence of knowledge and unawareness of the respondent at the expiration of "the relevant limitation period" or at a time before then when "proceedings might reasonably have been instituted". It was not disputed in the present case that the relevant limitation period in New South Wales had expired some years before the institution of proceedings in the High Court in 1988. The submission by the Commonwealth is that given the state of knowledge and awareness manifested by the making of the respondent's claim for compensation and supported by what he later conceded in cross-examination, the order under s. 60G was made in error. This is said to be because the primary Judge could not properly have been satisfied that the respondent, at the relevant dates before the expiration of the limitation period, or a time before then when proceedings might reasonably have been instituted, (i) did not know that he had suffered personal injury or (ii) was unaware of the nature and extent of that personal injury.

The Commonwealth submits that the claim by the respondent for compensation in respect, among other things, of "anxiety", the subject of the letter from the Department of Defence dated 23 January 1987, which was passed on to his solicitors before the writ and Statement of Claim were drawn and filed in 1988, is a significant matter and one not noted by the primary Judge in his reasons. The letter recites the claim received as one not only in respect of teeth, eyesight, passing of blood and poor hearing, but also "anxiety - troubled, uneasy and concerned from exposure to radiation".

Reference before us also was made to these passages in the cross-examination of the respondent:

"... You know what your concerns were coming in to 1993, you have just outlined to the Court what they were? - Yes.

Those are what you understood to be meant by chronic anxiety, is it not, by Dr Dinnen? - Well, I didn't know what Dr Dinnen wrote until about a month or so later.

I understand that but now that you have read it, you have read the basis on which he said that, it was in relation to your concerns, was it not? - Well, when you read his report like I did, I told him what was wrong with me and I got his report I - I didn't realise how bad I was or how - what it was. I knew I had problems and if he writes anything is chronic, OK, I've got to accept that.

But chronic means something that goes on for a long while, do you agree with that? - Well certainly 36 years of it.

But do you understand what the meaning of the word chronic is? - Yes.

Right and you already knew that in relation to your concerns about your bowel, concerns about your bladder, concerns about your eyes and your teeth, you had had those concerns for many years? - I've had them for a fair few years yes, I agree with that.

And those concerns had been experienced by you down to the time that you went to see Dr Dinnen, that is right, is it not? - Yes.

And it came - if that is the meaning of the word chronic, it does not come as any surprise to you that whatever condition you had arising from those concerns was described as chronic, that is fair comment is it not, you knew that you had had this for a while? - I knew I had problems and that but I wouldn't say that I was overjoyed or surprised or anything like that with the word chronic.

I am not suggesting you were overjoyed at all, Mr Dinnison, all I am suggesting to you is that you knew very well that you had had - because you had told Dr Dinnen, that you had had those various concerns for, according to you, for quite a number of years? - Yes, I also might add too that I was pretty surprised when an appointment was made for me to go to see a psychiatrist.

It was the first time that this had ever happened to you, had it? - I didn't think I was - I needed psychiatry treatment, you know."

It is important to appreciate, as did the primary Judge, that the personal injury, the suffering of which Mr Dinnison alleged he did not know, or was unaware as to its nature or extent, was a psychiatric illness. In the opening passages of his judgment, the primary Judge set out a passage from the judgment of Brennan J in Jaensch v Coffey, supra at 567. There his Honour made the point that a psychiatric illness induced by mere knowledge of a distressing fact or phenomenon which affronts or insults the mind of the plaintiff is not compensable; rather what is essential is perception by the plaintiff of that distressing phenomenon. One then, in the immediate context of the present case, supplied by the 1990 Act, has to ask whether Mr Dinnison did not know that personal injury of this nature had been suffered or was unaware of the nature or extent of that personal injury.

The respondent's oral evidence and the documentary material to which we have referred certainly is capable of supporting the proposition that from aspects of his service at Maralinga, culminating in exposure to the shock of the third atomic blast, the respondent derived a deep seated fear that he had been affected by radiation, which condition of fear manifested itself in dreams and in disturbed sleep. This state of affairs might be accurately described, as it was, in his claim for compensation as "anxiety - troubled, uneasy and concerned about exposure to radiation". But, in our view, the primary Judge, in a passage set out earlier in these reasons, correctly emphasised the importance of awareness by the respondent that his anxiety amounted to psychiatric illness.

Despite Mr Dinnison's agreement at one stage in his cross-examination that he understood the meaning of the word "chronic" as something that goes on for a long while, later passages, also set out above, suggest that "chronic" had to him the popular, if inaccurate, meaning of a serious or intense state of affairs. Hence the statement in cross-examination that whilst he "knew I had problems", he was, in effect, taken aback by the use of the word "chronic" and was surprised when an appointment was made for him to go and see a psychiatrist.

There was, in the evidence before the primary Judge, in our view, sufficient to support a finding that within the meaning of sub-para. 60I (1) (a) (i) the respondent, at the relevant time, did not know that personal injury, being an anxiety state amounting to an illness, had been suffered by him. Even if that be not so, then within the meaning of sub-para. (ii) there was sufficient support for the finding that the respondent was unaware of the nature or extent of the illness. It should be noted that the paragraph uses the phrase "the nature or extent". The result is that even if there is awareness of the real nature of the personal injury, there may be a lack of awareness as to the extent thereof. Put at its very lowest, awareness of the extent of the illness only followed the diagnosis by Dr Dinnen.

We were referred to various decisions on other legislation which, whilst of the same general nature as the 1969 Act, is differently expressed. Further, none of the decisions was concerned with psychiatric illness. For example, we were referred to Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697. This was a decision upon an extension application made pursuant to the old s. 58 of the 1969 Act by a plaintiff claiming damages for negligence for personal injuries caused by exposure to asbestos. The previous legislation, there under consideration, used the phrase "the nature and extent of the personal injury ...". The discussion at 703-4 of knowledge of symptoms and of progressive manifestation of
disease, with explanation thereof by competent persons, has to be understood with those matters in mind.

In Re Siholva [1979] Qd R 458 at 465, Wanstall CJ was dealing with an application under s. 31 of the Limitation of Actions Act (1974) (Qld) that the period of limitation for an action which the plaintiff desired to initiate be extended. His Honour said:

"The issuing of a writ presupposes knowledge, or at least belief, by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme, i.e. that he has not issued a writ because he lacked knowledge of some material fact, on proof of which his cause depended, either entirely or for a worthwhile result. The scheme is designed to relieve such a plaintiff from the consequence of a failure to issue a writ within time which is shown to be due to ignorance of this kind."

The scheme of which the Chief Justice spoke was reflected in the terms of sub-s. 31 (2) of the Queensland statute as follows:

"31.(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of
the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation,

the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

His Honour's remarks in Siholva were adopted by the Full Court in Castlemaine Perkins Limited v McPhee [1979] Qd R 469 at 471, and Sugden v Crawford [1989] 1 Qd R 683 at 686, in each case in the judgment of Connolly J.

It may be true that the issuing of a writ presupposes knowledge or belief on the part of the plaintiff or the legal advisors of the plaintiff that the plaintiff can establish the cause of action alleged by proving facts then within the knowledge of the plaintiff. But the institution of the present action in 1988 and the particulars given in the Statement of Claim are but one piece of evidence bearing upon the particular issues that arise with the claim for extension later made after the commencement of the 1990 Act.

This and other matters we have referred to were not mentioned by the primary Judge in his reasons. They support the proposition, independently established in any event, that the respondent was aware of and complained about being anxious, troubled, uneasy and concerned from exposure to radiation. Nevertheless, it does not follow that the Court could not properly have been satisfied that the respondent did not know that personal injury had been suffered or was unaware of the nature or extent thereof, within the meaning of sub-s. 60I (1) of the 1969 Act.

The appeal on these issues should fail.

As is apparent from the legislative text, the Court had a discretion in the matter. Section 60G requires the Court to decide that it is "just and reasonable" to make the order. The Commonwealth submitted that the only matter considered by his Honour when deciding favourably to the respondent was the matter of "prejudice" to the Commonwealth. Complaint was made that the trial Judge failed to have regard to, and should have had regard to, whether or not the respondent had acted promptly and reasonably once he knew of his anxieties and fears, which was said to be by at least 1963. Reference was made to Koumorou v State of Victoria [1991] 2 VR 265. The Commonwealth also submitted that there had been lengthy and unexplained delay, and that mere delay of itself if as lengthy as in this case, would be sufficient evidence of prejudice. For example, medical records of the Commonwealth might be expected to have been destroyed.

Certainly the last matter was not outside the consideration given by his Honour. Further, he dealt with the question of discretion at the end of the reasons for judgment after detailed consideration of the matter including narration of events which spoke of considerable lapses in time.

The passage in question is the penultimate paragraph in the reasons and is as follows:

"Although it will obviously be burdensome for the [appellant] to be required to deal with this claim, based upon long-ago events at Maralinga there are no precise matters of prejudice relied upon as indicating that it would be unjust and unreasonable to allow this claim to proceed. In all the circumstances, after some hesitation, I have reached the decision that an appropriate order should be made allowing the claim to be brought in time."

In our view, there was no miscarriage of his Honour's discretion or failure to address the criteria presented by s. 60G.

The appeal should be dismissed with costs.

I certify that this and the preceding thirty one (31) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Gummow and the Honourable Mr Justice Cooper.

Associate:

Date: 4 April 1995.

Counsel and solicitors Mr M.J. Joseph SC instructed

for the appellant: by the Australian Government

Solicitor.

Counsel and solicitors Mr A.F. Puckeridge QC and

for the respondent: Mr R.F. Wilkins instructed by

Maurice May & Co.

Date of hearing: 13 February 1995.

Date of judgment: 4 April 1995.

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