FEDERAL COURT OF AUSTRALIA
Blunden v Commonwealth of Australia [2000] FCA 1581
LIMITATION OF ACTIONS – psychological injury said to have been suffered as a consequence of collision between HMAS Melbourne and HMAS Voyager in 1964 – whether factors set out in s 36(3) of the Limitation Act 1985 (ACT) taken into account.
APPEAL – party repudiating position adopted at first instance – new argument said to raise constitutional matter – whether permitted to be raised on appeal.
Limitation Act 1985 (ACT), s 11, s 36
State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) [1999] HCA 3 cited
Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 cited
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 referred to
Paramasivam v Flynn (1998) 90 FCR 489 referred to
Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95 referred to
Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701 cited
S & B Pty Ltd v Podobnik (1994) 53 FCR 380 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Niemann v Electronic Industries Ltd [1978] VR 431 cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 referred to
Commonwealth of Australia v Williams [1999] FCA 703 cited
Sydney City Council v Zegarac (1998) 43 NSWLR 195 referred to
Gronow v Gronow (1981) 144 CLR 513 cited
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 cited
Commonwealth of Australia v Mewett (1997) 191 CLR 471 cited
Eastman v R (2000) 172 ALR 39 cited
Parker v Commonwealth (1965) 112 CLR 295 cited
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 referred to
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 followed
BARRY THOMAS BLUNDEN v COMMONWEALTH OF AUSTRALIA
A 16 of 2000
MILES, KATZ and KENNY JJ
CANBERRA
7 NOVEMBER 2000
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
A 16 OF 2000 |
|
BETWEEN: |
BARRY THOMAS BLUNDEN Applicant
|
|
AND: |
COMMONWEALTH OF AUSTRALIA Respondent
|
|
|
|
|
DATE OF ORDER: |
|
|
WHERE MADE: |
THE COURT ORDERS THAT:
1. Compliance with O 52 r 5(2) of the Federal Court Rules be dispensed with.
2. The applicant be granted leave to appeal.
3. The appeal be allowed.
4. The respondent pay the applicant’s costs of the application for leave to appeal and the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
A 16 OF 2000 |
|
BETWEEN: |
Applicant
|
|
AND: |
Respondent
|
|
JUDGE: |
|
|
DATE: |
|
|
PLACE: |
REASONS FOR JUDGMENT
MILES J:
1 I have read a draft of the joint judgment of Katz and Kenny JJ and gratefully adopt what their Honours have to say about the background to the matters before the Court and the issues raised.
2 However, I am unable to agree that leave to appeal should be granted.
3 In Paramasivam, the Court confirmed at 494 that on an application for leave to appeal from an interlocutory judgment, including an order refusing to extend a limitation period, it is appropriate to apply a two-stage test, namely “first, that the decision appealed against was ‘attended with sufficient doubt’ to warrant the appellate court re-examining the matter, and, if so, whether the decision appealed from worked ‘substantial injustice’”.
4 In my opinion, the applicant satisfies neither test. In short, on the first test, it is not shown that Crispin J failed to have regard to the relevant statutory provisions and, on the second test, it does not follow from the applicant’s failure to obtain an extension of time that the respondent’s defence under the Limitation Act will necessarily succeed.
5 As the transcript shows, the application before Crispin J was contested essentially on the issue of whether it was within the terms of s 36(1) just and reasonable to grant the extension notwithstanding the prejudice caused to the respondent by the delay. In his reasons for judgment, and immediately after referring to the detail of the provisions of s 36(3), his Honour referred to the observations of McHugh J in Brisbane South at 555, which explain the “rationales for the existence of limitation periods” in terms of the inevitable prejudice to a defendant caused by extensive delay on the part of the plaintiff in commencing an action. Hence the judgment, like the argument of counsel, concentrated on that aspect.
6 Nevertheless the statute required his Honour to take into account all the circumstances of the case, including the six mandatory categories of circumstances specified in s 36(3). Of those six categories, category (b), prejudice to the defendant, was only one. The respondent agreed before his Honour that categories (c) and (d) were irrelevant, that is, on the evidence not part of the relevant circumstances of the case. On that basis his Honour was entitled to ignore them. Further, it was not suggested either before his Honour or in the appeal that there were any relevant circumstances of the case beyond those in the three remaining categories, to which his Honour was bound to have regard.
7 There is no statutory guidance as to what relative weight is to be given to any one or more of the specified categories, either amongst themselves, or in the context of other relevant circumstances which fall outside the specified categories. There is firm authority that it is not a matter of “weighing up” the prejudice which would be caused to a defendant by granting the extension against the prejudice which would be caused to a plaintiff by refusing the extension (Brisbane South at 549-550, Zegarac at 199). The statutory categories can hardly be “weighed” each against the other since they involve concepts of differing natures. Curiously, the legislation does not include prejudice to a plaintiff within the specified categories, yet it is difficult to see that it may not be regarded as part of all circumstances of the case.
8 In concentrating on the ultimate issue of whether it was just and reasonable to extend the period in the light of the prejudice to the respondent caused by the extensive delay, his Honour did not say anything express to make it clear that he had not overlooked the other specified categories. However, on a reading of the whole of his Honour’s reasons, it appears to me that he did have regard to them. The fact that he did not say so is not any more decisive than the fact that he did not expressly say that he had had regard to all the circumstances. His Honour did not for that matter say that he had had regard to all the evidence, or to the affidavit material that was relied upon, or to the submissions of counsel. Nor was he required to say so: see State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) [1999] HCA 3 at [90]; Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386. The omission to give express, precise and discrete consideration to each of the specified criteria has to be approached not only in the light of how the case was conducted by counsel, but also in the light of the absence of complaint that his Honour failed to give reasons at all or gave reasons which indicated that he applied wrong or irrelevant criteria: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 260-261.
9 On the matter of the length of the delay on the part of the applicant, it is sufficient to refer to [10] in which his Honour said:
“By the time the present proceedings were commenced more than thirty-four years had elapsed since the tragic incident which the plaintiff claims precipitated the post traumatic stress disorder and the other psychological conditions from which he continues to suffer.”
10 On the associated matters of the reasons for the delay and extent to which the applicant acted promptly and reasonably once he knew that the conduct of the respondent to which his injury was attributable might be capable at the time of giving rise to an action for damages, his Honour said:
“[9] … whilst an applicant may have an apparently good claim and a good explanation for not pursuing it earlier those facts will not, of themselves, justify the exercise of the discretion in his or her favour.
[13]… he had not known that the saga of the misfortune and sadness that he had experienced had been caused by his fateful experience on the Melbourne until he became aware of Dr White’s opinion to that effect in late 1996. Thereafter, he moved reasonably quickly to obtain legal advice and assert his rights. Accordingly, this is a case in which the delay occurred without any significant fault on the plaintiff’s part …”
11 It is not quite clear whether the latter extract is a finding or a statement of the submissions put by counsel. However, the evidence that the applicant did not know about the causal connection between the events on HMAS Melbourne and his subsequent psychological condition until late 1996 was not contradicted. On that basis his Honour was entitled, if not bound, to conclude that the applicant moved reasonably quickly to obtain legal advice once he was aware of his possible rights and that the delay was not attributable to any significant
fault on his part. In the context of the judgment as a whole, it would be unrealistic to approach the appeal on any basis other than that his Honour so found.
12 On the steps taken by the applicant to obtain medical, legal or other expert advice and the nature of such advice, Crispin J summarised the position at the beginning of his reasons when he said at [4]:
“Shortly after the collision the plaintiff began to have nightmares about what had occurred. He began to drink heavily and had difficulty coping with his duties. He was discharged from the navy on 20 October 1967 but continued to drink heavily. He also experienced difficulties in relation to his marriage and other relationships and found it difficult to maintain employment. He first had counselling in about 1993 from the Vietnam Veterans Counselling Service and received psychiatric treatment in about June 1995 though he said that even at that stage he did not know what was wrong with him. On 22 May 1996 he was referred to Dr Brian White, a psychiatrist, who diagnosed his problem and expressed the opinion that it was largely brought on by his experience with the sinking of the Voyager. He consulted his solicitors on 25 January 1997.”
13 Later in the reasons his Honour, over some three or four pages, discussed what he acknowledged to be a “few references” to the medical evidence, nearly all of those references being to steps taken by the applicant prior to the issue of the writ to seek medical advice for the condition on which he sued.
14 It was not contended for the applicant on the application for leave, nor could it be, that his Honour should have discussed the voluminous medical evidence at greater length. Nor was it contended that his Honour misrepresented or misunderstood the effect of the evidence about the steps taken to obtain medical advice or the nature of it. His Honour did omit to say whether or not the applicant received legal advice and what the nature of the legal advice was. His Honour stated that the first consultation with solicitors was on 25 January 1997, although according to the affidavit evidence it was on 25 February 1997. Further, according to the affidavit evidence, counsel was briefed on 27 February 1997 and inquiries were made over a period of a year or more. Counsel’s final opinion was received on 14 April 1998 and the writ was issued on 14 May 1998. Again it would be unrealistic to approach the case other than on the basis that his Honour found that the applicant received legal advice but that it was not until after some time in early 1998 that the applicant was advised that it would be reasonable for him to sue the respondent.
15 Although his Honour did not expressly say that he had had regard to the affidavit evidence, and although the evidence was inexplicably scant as to the nature of the legal advice received, I do not think that it can be said that his Honour failed to have regard to the nature of the legal advice the applicant “may have received”. The respondent does not appear to have raised the issue before his Honour. Neither the applicant nor his solicitor was required for cross‑examination. Had the respondent raised the issue his Honour could have been expected to be more explicit about it in his reasons. Again the statutory provision is curious: it does not require consideration of what advice the plaintiff did receive.
16 The matter of expert advice, as distinct from medical and legal advice, was not raised as an issue in the present application and does not appear to have been an issue before his Honour.
17 In my view, a judgment on discretionary matters pronounced by a court, especially a superior court, after a hearing in which the parties are represented by counsel who may be expected, in the interests of justice, to narrow the real issues, should not be presumed to be incorrect because the judgment fails to expressly mention (let alone discuss) all relevant matters. An appeal from a court exercising proper jurisdiction is not the same as judicial review of an act, including a decision, of an administrative official.
18 I do not think that Noja is authority for a general proposition that an omission to refer to all the statutory criteria in s 36 necessarily indicates a failure to take them into account. Noja was a case in which the primary judge had applied the wrong section and wrongly considered, as a relevant circumstance, the plaintiff’s right to sue her solicitor for negligence. Those matters, together with the absence of reference to some of the criteria in s 36, were considered by the Full Court to have indicated appellate error. The present case is very different.
19 For these reasons I do not think that it has been shown that the judgment of Crispin J is attended with sufficient doubt to justify granting leave to appeal.
20 There is the further matter of whether the refusal to grant leave results in substantial injustice. As the remarks of Katz and Kenny JJ show, counsel for the applicant sought to agitate on the application for leave to appeal, a question whether the Limitation Act applies to the applicant’s cause of action. It was suggested that the applicant’s injury having occurred on the high seas and outside the Australian Capital Territory, the decision of the High Court in Pfeiffer requires the application of the limitation law of New South Wales, Sydney being the last port of departure of the Melbourne before the collision. I agree with Katz and Kenny JJ that the question of the application of the Limitation Act of the Australian Capital Territory does not fall to be determined in the present application or in any appeal which might follow. If there is a real question whether the law of the Territory or the law of New South Wales is the appropriate law to apply for the purpose of a defence that the applicant’s cause of action is defeated by a limitation law, then that question may be raised and determined in the applicant’s action against the respondent which still remains on foot in the Supreme Court.
21 I would refuse leave to appeal and make no order as to costs.
|
I certify that the preceding paragraphs numbered 1 to 21 are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. |
Associate:
Dated: 7 November 2000
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
A 16 OF 2000 |
|
BETWEEN: |
BARRY THOMAS BLUNDEN Applicant
|
|
AND: |
COMMONWEALTH OF AUSTRALIA Respondent
|
|
JUDGES: |
MILES, KATZ and KENNY JJ |
|
DATE: |
7 NOVEMBER 2000 |
|
PLACE: |
CANBERRA |
REASONS FOR JUDGMENT OF KATZ AND KENNY JJ
22 This is an application for leave to appeal from an interlocutory judgment of a judge of the Supreme Court of the Australian Capital Territory (“the Supreme Court”) dismissing an application for an extension of time in which to sue the respondent: see Federal Court of Australia Act 1976, s 24(1A) and Federal Court Rules, O 52 r 5. The Court heard argument not only on this application but also on the issues that would arise if leave to appeal were granted. These issues were identified in a draft notice of appeal.
23 Because the application was not filed within the time limited by O 52 r 5(2), the applicant was also required to seek an order, which was not opposed, that compliance with sub-rule (2) be dispensed with: see O 52, r 5(3). On the hearing of the application, the Court indicated that it would make an order pursuant to O 52, r 5(3), dispensing with compliance with O 52, r 5(2).
24 The HMAS Melbourne and the HMAS Voyager collided on the high seas some twenty miles off the Australian coast on 10 February 1964. At the time of the collision, the applicant was serving as an Ordinary Seaman on the HMAS Melbourne. On 14 May 1998, the applicant initiated an action for damages in the Supreme Court, claiming that he had suffered injury in consequence of the respondent’s negligence in failing, amongst other things, “to avoid the collision”, “to offer [him] any or any effective post-traumatic counselling or medical treatment”, or “to warn [him] that he may develop a mental condition as a result of his having witnessed the collision and its aftermath”. The injuries alleged were chronic post traumatic stress disorder, major depressive disorder, alcohol abuse, and shock and sequelae. By its defence of 8 June 1998, the respondent pleaded that “the [applicant’s] action is statute barred by section 3 of Imperial Act 21, James 1 Chapter 16 or alternatively by section 11 of the Limitation Act 1985 (ACT)”. By motion, notice of which was dated 11 June 1999, the applicant sought an extension of the limitation period to 14 May 1998, relying on s 36 of the Limitation Act 1985 (ACT) (“the Limitation Act”).
25 The motion was heard on 25 June 1999, 6 August 1999 and 5 November 1999. On 26 November 1999, the learned primary judge held that the applicant had not discharged the onus of showing that it was “just and reasonable to extend the period within which the action might be brought”. Accordingly, his Honour dismissed the motion with costs.
the legislation
26 The Limitation Act came into operation on 19 December 1985. Subsection 11(1) relevantly provides that “an action on any cause of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he or she claims”. By virtue of s 36, however, the court may, in the circumstances set out in that provision, order that the period within which an action on the cause of action may be brought be extended for such period as it determines. Section 36 provides:
(1) This section applies to any action for damages where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3) In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following:
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received.
(1) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding –
(a) that the limitation period in respect of the relevant cause of action has expired since the cause of action accrued; or
(b) that an action in respect of such personal injuries has been commenced.
(1) This section does not apply in respect of a cause of action to which the Compensation (Fatal Injuries) Act 1968 applies.
nature of the proceeding in this court
27 In Paramasivam v Flynn (1998) 90 FCR 489 at 493, a Full Court stated that:
An order granting an extension of time to sue after the expiry of the limitation period is an interlocutory order (whether or not it is also characterised as an order made on a matter of practice and procedure). An appeal against an interlocutory order may not be brought without leave of the court: Federal Court of Australia Act 1976 (Cth), s 24(1A). An order refusing an application to extend time to sue after the expiry of the limitation period may or may not be regarded as interlocutory since it may or may not finally determine the rights of the parties in respect of the subject matter of the action. It is possible that the state of the pleadings and of the circumstances of a particular case leaves open the question whether the defence of expiry of the limitation period will succeed at the trial. In the present case no reply was filed on behalf of the appellant to join issue with the defence of the expiry of the limitation period. Instead, his response was to bring the application for extension of time, seeking leave to be granted retrospectively (nunc pro tunc) to the date of the issue of the writ. That response was in turn met by the respondent bringing the application for summary judgment. In the light of the approach taken by the parties, and the order of his Honour that there be summary judgment for the defendant, we conclude that the decisions appealed against were final in nature and that leave to appeal is unnecessary.
28 In this case, although the applicant has filed no reply and has brought an application for an extension of time up to the date of issue of the originating application, the respondent has made no application for summary judgment. The parties have argued the matter before us upon the basis that the primary judge’s decision was interlocutory and that leave to appeal was necessary. This approach is consistent with the authorities in this Court: see, e.g., Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95 (“Noja”) at 96 and Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701 (“Lorenzo”). Leave will be granted where the challenged judgment is seen, in all the circumstances, to be “attended with sufficient doubt” to warrant its reconsideration and, if wrong and leave refused, to work substantial injustice: see S & B Pty Ltd v Podobnik (1994) 53 FCR 380 (“Podobnik”) at 382; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Niemann v Electronic Industries Ltd [1978] VR 431.
the evidence before the primary judge
29 At first instance, the applicant relied on his own affidavit (sworn 11 June 1999) and that of his solicitor (sworn 17 June 1999) in support of his application for an extension of time. Neither he nor his solicitor was cross-examined. The applicant also tendered, without objection, a psychiatric report from Dr Steven Stern dated 23 October 1998.
30 The applicant deposed that he saw the collision and watched the Voyager as it sunk. He heard men screaming. Some of the drowned were sailors whom he had known well. He said:
8. On 28 February 1964, I provided a statement to the Navy Investigators inquiring into the incident. . . .
9. Pretty soon afterwards I started to have nightmares about the incident. There was no counselling offered.
10. Following this I started to drink heavily and had difficulty coping with my duties.
11. I was discharged from the Navy on 20 October 1967.
12. I continued to experience difficulties with my drinking and with my marriage and other relationships and in maintaining employment.
13. I first received counselling in about 1993 from the Vietnam Veterans Counselling Service.
14. I first received psychiatric treatment from the Woden Valley Hospital in about June 1995, although I did not at that stage know what was wrong with me. . . .
15. On 22 May 1996, I was referred to Dr Brian White, a psychiatrist, who diagnosed my problem as arising from the Voyager incident. . . .
16. I did not think that I could do anything about what had happened to me until I talked to Steven King of the Vietnam Veterans Association who took me to my current solicitors, Garry Robb & Associates on 25 February 1997.
Annexed to the applicant’s affidavit were a copy of (1) the applicant’s statement to the Navy’s investigators in 1964; (2) a report from Dr LRH Drew, The Canberra Hospital, dated 23 October 1997, concerning the applicant’s treatment between June 1995 and March 1996; and (3) a report from Dr Brian White dated 23 May 1996. In his report, Dr Drew, who is a psychiatrist, stated:
[M]y knowledge of Mr Blunden is restricted to the period June 1995 to March 1996. The history he gave was one of progressive social deterioration presumably related to his alcohol dependence (typically associated with such a course). . . .
. . .
It is possible that Mr Blunden’s experiences in association with the sinking of the Voyager contributed quite significantly to his development of alcohol dependence, which appears to be his primary problem. However I cannot give a firm opinion upon this from my contacts with him at this late stage.
The applicant relied on the opinions of Drs White and Stern. In his report, Dr White stated:
I am a Consultant Psychiatrist in Private Practice. My specialist qualification is the Fellowship of the Royal Australian and New Zealand College of Psychiatrists.
I saw Barry Blunden on 22 May 1996. He is a 50 year old man who lives alone. He is divorced. He is currently on workers compensation leave for a back injury. He has had distressing events in his life including the death of his father by drowning in 1966 and the recent death of his brother.
He saw service in Royal Australian Navy for four and a half years. This included duty on HMAS Sydney ferrying troops to Vietnam on three trips. He found aspects of this distressing but the major focus of his anxiety has been from his experience when he was on HMAS Melbourne when the collision with HMAS Voyager occurred. He witnessed this collision.
He has had problems since 1964. He has recurrent nightmares of which the most distressing of those relates to the sinking of HMAS Voyager. He also has recurrent, intrusive memories of the Voyager. At times these have the intensity of flashbacks.
. . .
He has no close friends and no social life. He is socially withdrawn. When he has been at work he was not doing well. His concentration was limited. He was irritable and he does not get on well with people.
My diagnosis is of chronic Posttraumatic Stress Disorder (PTSD) with related Major Depressive Disorder and Alcohol Abuse (possible dependence). He drinks alcohol to help his insomnia and anxiety. My opinion is that this was largely brought on by his experience with the sinking of the Voyager.
. . .
I consider he is permanently unfit to work effectively in any regular full time or part time employment. . . .
His prognosis is that this condition will continue indefinitely. . . .
Dr Stern gave a similar opinion, stating that the applicant’s “psychiatric condition has been significantly contributed to by his employment with the Royal Australian Navy, specifically the HMAS Melbourne and HMAS Voyager collision of 10 February 1964”.
31 The applicant’s solicitor deposed that he had consulted a solicitor at his firm on 25 February 1997. On 27 February 1997, advice was sought from counsel. The solicitor added that:
5. Various enquiries were then made regarding other solicitors who had conducted Voyager cases, particularly that of a Mr William McLean which had been reported in the Canberra Times on 1 March 1997. …
6. Various medical reports were obtained and counsel was briefed to draw the originating process.
7. Counsel’s opinion was received on 14 April 1998 and the Writ was lodged with the Court on 14 May 1998.
In opposing the extension of time application, the respondent relied on two affidavits sworn by a solicitor employed by its solicitor on 12 October and 1 November 1999 respectively. The solicitor was cross-examined. The respondent also tendered, without objection, a number of documents which, for present purposes, it is unnecessary to describe. In his first affidavit, the solicitor deposed:
6. In my opinion details of the Plaintiff’s alcohol consumption before 10 February 1964 and particularly from that date until the present are relevant to any claimed link between that alcohol consumption, the other injuries and disabilities claimed and the collision between HMAS Melbourne and HMAS Voyager.
. . .
12. Although the Plaintiff has not disclosed the name and address of any health professional who appears to have treated him from the date of his discharge from the Navy on 20 October 1967 until June 1995 when he consulted Dr Drew, the Plaintiff, in a medico-legal examination with psychiatrist Dr A White on 29 July 1998 … disclosed that following a split-up with his wife he was admitted for three weeks to the Drug and Alcohol Unit in Wagga Wagga.
. . .
14. Records produced [from that Unit] include a history of drinking heavily since age 17 which pre-dates the Voyager/Melbourne collision and comments that his father’s death gave him an excuse for drinking. The notes include substantial references to members of his family but only one reference to the Voyager/Melbourne collision and apparently only as a matter of history not as a significant event affecting his alcohol consumption or mental state.
15. As part of the inquiries into this matter undertaken by my office, some Navy records have been obtained including a record of out-patient treatment on 8 September 1966 by a surgeon, Dr Sakker, and on 20 September 1966 by a psychiatrist Dr McGeorge. . . .
. . .
17. In view of the many stressful incidents occurring in the Plaintiff’s life and the potential effect those incidents might have had upon the Plaintiff’s medical condition the absence of records is, in my opinion, prejudicial to the Defendant. . . .
. . .
27. My office has arranged for the Plaintiff to be examined by three psychiatrists, Dr White, Dr Bell and Dr Bryant.
The solicitor also deposed to difficulties in obtaining information about the applicant’s employment history.
32 Amongst the documents annexed to the solicitor’s affidavit were copies of the reports of Dr Sakker and Dr McGeorge, as well as copies of reports by Drs Allan White, Bell and Bryant. There were also numerous reports written in 1970 by Dr A Arnaud Reid, consultant psychiatrist, Prison Medical Services, Long Bay, New South Wales.
33 On 8 September 1966, Dr Sakker recorded in his clinical notes that:
This sailor has been in trouble constantly during his stay in the RAN. He bitterly resents authority, doesn’t like the Navy & the work. Was on the Melbourne in its accident with the Voyager and recent drowning of his father on the Central Coast has made him fear and hate the sea. Is engaged to a girl who is unhappy that he is in the Navy.
On 20 September 1966, Dr McGeorge recorded:
Not happy in the service. Can’t take the discipline. He thinks about his father’s drowning all the time. He certainly looks a picture of misery but this is probably occasioned by his dissatisfaction in the Navy. Feels like smashing things. He seems to be at a loss to recount any real psychiatric symptoms.
Dr McGeorge also recorded that he was “inclined to regard [the applicant] as a disciplinary, rather than a medical, problem”.
34 The more recent psychiatric reports obtained by the respondent failed to support the applicant’s claim that his present condition was attributable to his experience on board the Melbourne in 1964. In a report dated 29 July 1998, Dr Allan White, consultant psychiatrist, concluded that “there is no evidence that [the applicant] has suffered from a psychiatric disorder at any time in his life”. He added that the applicant “has a long history of significant Alcohol Abuse which is both necessary and sufficient causation for his ‘psychiatric symptoms’”. He opined that the applicant “does not and never has suffered from a psychiatric disorder or stress related illness which can be reasonably attributed to his employment with the Navy”. Two other psychiatrists (Drs Bell and Bryant) expressed similar views.
35 In his second affidavit, the solicitor stated that inquiries had revealed that Dr McGeorge died in 1979. He deposed to attempts to locate those who had served with the applicant. The affidavit concluded,
In my opinion the inability to locate witnesses who had the opportunity to observe the Plaintiff’s behaviour in the Navy both before and following the collision and the inability of witnesses to recall matters relating to the Plaintiff will significantly effect [sic] the Defendant’s ability to test the claimed link between alcohol consumption, the other injuries and disabilities claimed and the said collision.
the primary judge’s decision
36 The application made to the primary judge was “for orders pursuant to section 36 of the Limitation Act 1985 [ACT]”. The applicant’s counsel mentioned that “there may theoretically at least be a threshold argument about whether there is a limitation period … because of when the accident happened”. He added that “I think for much more abundant caution, … it would be better to proceed as if there were.” Subsequently he told the court that:
At common law, matters of limitation are procedural. [T]herefore in this Court the law to be applied is the Limitation Act of the Australian Capital Territory. That seems to be what my learned friend would say too. We may both be wrong but we both say it. So if that is right then your Honour is applying s 36 of the Limitation Act.
The respondent’s counsel agreed.
37 It is in this context that the primary judge accepted that the extension of time application was to be determined by reference to s 36 of the Limitation Act. After referring to the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”) at 551, his Honour observed at [9]:
[T]here will be ‘presumptive prejudice’ even if actual prejudice has not been proven. Limitation periods reflect a judgment by the legislature that the general welfare of society is best served by causes of action being litigated within the period so specified notwithstanding the real risk that legitimate claims might thereby be defeated. A judicial discretion such as that provided by s 36 of the Limitation Act 1985 (ACT) must be exercised in this context. Consequently, whilst an applicant may have an apparently good claim and a good explanation for not pursuing it earlier those facts will not, of themselves, justify the exercise of the discretion in his or her favour. It is incumbent upon such an applicant to demonstrate that it is just and reasonable for the period to be extended notwithstanding the considerations which I have mentioned. As McHugh J observed, again at 555, it may sometimes be a lesser evil to expose a defendant to an otherwise statute barred claim than to deprive a plaintiff of the right to have it litigated. That will often be the case when the delay has occurred without significant fault on the part of the plaintiff and when it has not occasioned any readily apparent prejudice to the interests of the defendant. On the other hand, the apparent justice of a plaintiff’s claim will seldom be sufficient to warrant reinstating a right of action against a defendant who has been effectively deprived of the opportunity of fairly defending the claim or has suffered significant prejudice as a result of the delay.
After summarising the submissions of both parties and some of the relevant medical reports, his Honour stated, at [22-24], that:
22. These few references to the evidence may be sufficient to illustrate the nature of the problems which the defendant would encounter in attempting to defend the plaintiff’s claim should leave be granted. There are some records of his medical and psychological condition but the records of any treatment he may have received prior to 1979 which was, of course, some fifteen years after the collision, are sparse. There are few records of any of his employers and no taxation returns in relation to such employment he may have undertaken prior to the late 1980’s. Furthermore, the defendant has been unable to locate many fellow sailors who may have been able to observe his behaviour before and after the collision and those few who have been located now have little or no memory of relevant matters. In these circumstances I am unable to be satisfied that the defendant’s position has not been significantly prejudiced by the extensive delay in commencing proceedings. There are a number of issues which I think it would be difficult if not impossible for the defendant to now address. For example the suggestion that he might have had psychiatric problems at least since joining the Navy in 1963 cannot now be explored by reference to medical records, his employment history or the evidence of people who knew him.
23. The defendant would be similarly hampered in any attempt to explore other possible causes of his alcohol dependence such as some factor related to his upbringing, emotional responses to other incidents or a deliberate course of drinking to excess which he may have found himself unable to stop. It would also be difficult for the defendant to attempt to disentangle any psychological injury sustained by his response to the loss of friends following the collision from any other psychological harm sustained as a result of other factors such as his guilt over the death of his father, his service in Vietnam or being bashed in jail.
24. In all the circumstances I am not satisfied that a fair trial of the action would be possible after the passage of such a lengthy period of time. Accordingly, I am unable to be satisfied that it would be just and reasonable to extend the period within which the action might be brought. The motion must be dismissed.
the applicant’s submissions in this court
38 The applicant’s draft notice of appeal proposed a number of grounds. It is, however, unnecessary to set them out. It suffices to say that, in written submissions addressing these grounds, the applicant contended:
In deciding whether it is just and reasonable to extend time, his Honour was required to take into account the six circumstances set out in s 36(3) [of the Limitation Act]. His Honour focused on the prejudice issue to the exclusion of other factors.
It was for Mr Blunden to establish that it was “just and reasonable” to extend the period within which he might bring his action. Cf Podobnik and Lorenzo. In so deciding, a court is required by s 36(3) to have regard to “all the circumstances of the case”, including each of the matters listed in pars (a) to (f) of s 36(3) of the Limitation Act. Although not an exhaustive statement of the matters to be considered, the court must have regard to these listed matters. This is made plain by the terms of s 36(3) itself: cf Commonwealth of Australia v Williams [1999] FCA 703 at [34-35].
39 The terms of s 36(3) show that an application under s 36(2) will not necessarily fail because there is proof that the defendant will suffer some prejudice if the application is granted. Prejudice to the defendant is but one of the matters to be taken into account by the court. In considering s 60E(1) of the Limitation Act 1969 (NSW), which has a similar structure to s 36(3) of the Limitation Act (ACT), Mason P in Sydney City Council v Zegarac (1998) 43 NSWLR 195 (“Zegarac”) said at 198:
Nothing in the structure of s 60E(1) suggests that mere proof of prejudice must lead to the rejection of the application. On the contrary, prejudice is but one of a list of factors to be taken into account. This is further underscored by par (b)’s focus of the court’s attention on the extent of the prejudice to the defendant. It follows that the exercise of the discretion may result in a trial in
which the defendant is placed at some disadvantage in consequence of the plaintiff’s tardiness. (Emphasis original)
After discussing the judgments of the High Court in Brisbane South, the President continued at 199:
I would hold that proof of actual prejudice, even ‘significant’ prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account, including each factor mentioned in s 60E(1) to the extent that it is relevant to the circumstances of the case. If this is ‘individualised justice’, it was what parliament intended. Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus, as Toohey J and Gummow J emphasise in Brisbane South.
These observations are equally applicable to s 36(3) of the Limitation Act.
40 Did the primary judge err in failing to consider the matters listed in s 36(3) of the Limitation Act as he was required to do? Before his Honour, the applicant conceded that pars 36(3)(c) and (d) were not relevant to the application. It was, of course, for his Honour to determine how much weight was to be given to any particular factor. It would not matter that an appellate court differed from him in his assessment: see Commonwealth of Australia v Williams at [26], citing Gronow v Gronow (1981) 144 CLR 513. This said, the fact remains that the primary judge did not, in the course of his judgment, discuss any of the matters listed in s 36(3) other than prejudice to the respondent. It is true, as the respondent’s counsel submitted, that his Honour set out, in summary form, the applicant’s counsel’s submissions concerning the matters which are the subject of pars (a), (e) and (f). In this connection, his Honour wrote:
Mr Bartley [the applicant’s counsel] also submitted that there was a compelling case for the exercise of any discretion in his client’s favour. He maintained that the plaintiff’s life had been effectively ruined as a result of the psychological damage which he had suffered as a result of the defendant’s negligence. Yet he had not known that the saga of the misfortune and sadness that he had experienced had been caused by his fateful experience on the Melbourne until he became aware of Dr White’s opinion to that effect in late 1996. Thereafter, he moved reasonably quickly to obtain legal advice and assert his rights. Accordingly, this is a case in which the delay occurred without any significant fault on the plaintiff’s part and if an extension of time is not granted he will forever lose his opportunity to maintain a claim against the defendant for damages to compensate him for all that he has suffered.
No more was said by his Honour of these matters, however. Immediately following this passage, his Honour turned to the matters which are the subject of par (b). His Honour did not indicate whether he accepted or rejected the applicant’s submissions, in whole or in part.
41 A similar situation was considered by the Full Court in Noja, a case concerning a challenge to an exercise of discretion under s 39 of the Limitation Ordinance 1985 (ACT). Section 39 made provision for the extension by a court of the limitation period in relation to an action on a cause of action arising under the Compensation (Fatal Injuries) Act 1968 (ACT). Subsection 39(5) (which was held applicable) set out the matters to which the Court was to have regard in determining whether to grant the extension. The structure of this provision was substantially the same as s 36(3) of the Limitation Act. The Court said, at 109:
It remains to consider whether the exercise by the primary judge of the discretion vested in him by s 39 of the Limitation Ordinance miscarried. A significant matter which supports an affirmative answer being given to that question is that the primary judge, as has already been mentioned, referred to subs (3) of s 39 as prescribing the matters to which regard was to be had in exercising the discretion whereas the relevant subsection was subs (5) of that section. As appears from the text as set out earlier in these reasons, the two subsections deal with different situations. Subsection (3) deals with the situation where, at the date of his death, the deceased, by reason of the expiry before that date of the relevant limitation period, could not have maintained an action in respect of the wrongful act, neglect or default that caused his death. On the other hand, subs (5) is concerned with the situation where an extension of time is sought by the personal representative of the deceased person - the only person entitled to make such application – of the limitation period prescribed in respect of the new right created by s 7 of the Compensation (Fatal Injuries) Act.
In the course of his judgment, the primary judge did refer to the matters set out in pars (a) and (d) of s 39(5), though his did so without express reference to those paragraphs. The matters so taken into account were the reasons for, and the length of, the delay on the part of the appellant, as the personal representative of the deceased, in instituting the proceedings and the extent to which an extension of the limitation period would, or would be likely to, result in prejudice to the respondents. There is, however, no reference in the judgment to the matters set out in pars (b), (c), (e) and (f) of that subsection and, as those matters were clearly relevant to the exercise of the discretion, the only conclusion open is that his Honour failed to take them into account.
In the present case, unlike Noja, the primary judge did not mistake the relevant provision, but he did fail to discuss anything but the matter mentioned in par (b) of s 36(3) of the Limitation Act. In the absence of any reference to the matters set out in s 36(3)(a), (e) and (f), we arrive at the same conclusion reached in Noja, namely, that his Honour failed to take those matters into account in refusing the application before him.
42 In this case, both parties relied on Brisbane South. The case does not, however, determine the outcome of the appeal. The matter upon which the majority agreed in that case was that the Queensland Court of Appeal had erred in holding that “the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period”: see 186 CLR 541 at 554-5 per McHugh J and 548-9 per Toohey and Gummow JJ. This was not at issue on this appeal: see also Zegarac at 200 per Mason P. There may be, as Mason P noted in Zegarac at197-199, important differences between the joint judgment of Toohey and Gummow JJ in that case and the judgment of McHugh J with whom Dawson J agreed. We are not required in this case to consider these differences, if any. We are concerned only with an error that has arisen in consequence of a departure from the express terms of s 36(3).
43 Having regard to this and the nature of the application before the primary judge, it seems to us that, in the circumstances of the case, we should grant leave to appeal and allow the appeal.
why the court declined to hear a new argument
44 At the commencement of the hearing of this appeal, counsel for the applicant informed the Court that he was seeking to raise a new argument. This, so counsel said, involved “a matter arising under the Constitution or involving its interpretation”. He sought an adjournment in order that notice might be given in compliance with s 78B of the Judiciary Act 1903 (Cth). The gist of the new argument was, as we understood it, that, having regard to John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 (delivered after the primary judge’s decision), the proper law to be applied in resolving the limitation question was the Limitation Act 1969 (NSW) and not the Limitation Act 1985 (ACT). The applicant’s counsel referred to certain remarks of Gaudron J in Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 527, to Eastman v R (2000) 172 ALR 39 and to Parker v Commonwealth (1965) 112 CLR 295. Counsel submitted that there was “a matter arising under the Constitution or involving its interpretation” because the Commonwealth was being sued and a question arose as to whether there was any limitation of action in respect of a tort allegedly committed by the Commonwealth on the high seas.
45 Bearing in mind that no such submission had been made to the primary judge, the applicant sought leave to raise the argument in this Court. Save in exceptional cases, a party is bound
by the conduct of his case at first instance. In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, the High Court said:
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Metwally did not involve an appeal. The principle was, however, reiterated in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, which was an appeal by way of re-hearing. Mason P, with whom Gleeson CJ and Priestley JA agreed, said at 645-6:
A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court ‘may find it expedient and in the interests of justice to entertain the point’: Water Board v Moustakas (1988) 180 CLR 491 at 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47. The rule is not an absolute one, as evidenced by this Court’s decision in Della Patrona v Director of Public Prosecutions (Cth) [No 1] (Court of Appeal, 1 September 1995, unreported). Unlike the present case, the respondent in Della Patrona failed to raise the ‘procedural point’ until long after the appellant had been given leave to debate it. This was a very important factor in the Court’s consideration.
In the present case, it would not, so it seems to us, be “in the interests of justice” to have permitted Mr Blunden to repudiate on appeal the position which he expressly adopted before the primary judge. The applicant, by his counsel, unequivocally chose to make his application for an extension of time under the Territory’s legislation. The respondent answered the applicant’s case below on that basis, adducing evidence on the basis the Territory’s Limitation Act applied. Both parties invited the primary judge to treat the extension of time application as made under s 36(3) of the Territory’s legislation. In this circumstance, we declined to permit the applicant to raise on appeal a new argument to the effect that the New South Wales Act, not the Territory Act, governed the limitation question.
|
I certify that the preceding paragraphs numbered 22 to 45 are a true copy of the Reasons for Judgment herein of the Honourable Justices Katz and Kenny. |
Associate:
Dated: 7 November 2000
|
Counsel for the Applicant: |
Mr G Little with Mrs E Techera |
|
Solicitor for the Applicant: |
Gary Robb & Associates |
|
Counsel for the Respondent: |
Mr T Howe |
|
Solicitor for the Respondent: |
Australian Government Solicitor |
|
Date of Hearing: |
11 August 2000 |
|
Date of Judgment: |
7 November 2000 |
