FEDERAL COURT OF AUSTRALIA

Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 3) [2017] FCA 1272

ORDERS

THE COURT ORDERS THAT:

1.    The limitation period applicable to the applicant’s claim in this proceeding be extended pursuant to section 44 of the Limitation Act (NT) 1981 to 4 August 2016.

2.    The respondent file and serve written submissions on the question of costs, limited to three pages, by 4.00 pm on 22 November 2017.

3.    The applicant file and serve written submissions on the question of costs, limited to three pages, by 4.00 pm on 29 November 2017.

4.    If it considers it necessary to do so, the respondent file and serve written submissions in reply on the question of costs, limited to three pages, by 4.00 pm on 6 December 2017.

5.    The question of costs in relation to the applicant’s interlocutory application dated 23 February 2017 be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    By an interlocutory application dated 23 February 2017, the applicant seeks an order that the limitation period applicable to his claim in the principal proceeding be extended pursuant to s  44 of the Limitation Act (NT) 1981 (the Limitation Act) to 4 August 2016.

2    The principal proceeding is a representative proceeding brought under Pt IVA of the Federal Court of Australia Act 1976 (Cth). It concerns damage to seaweed farming activities in Indonesia. This damage is alleged to have occurred from an oil spill at the Montara oil field. The respondent, PTTEP Australasia (Ashmore Cartier) Pty Ltd, operates the Montara oil field, which is located within the offshore area of the Territory of Ashmore and Cartier Islands, approximately 250 km north-west of Western Australia and 700 km from Darwin. In the period between at least 7 March 2009 and 1 November 2009, the respondent was the registered holder of a petroleum retention lease for an area that covered the Montara oil field.

3    In early 2009, the respondent set about suspending an oil well, referred to as the H1 Well, in the oil field. There were certain failures in this process which led, in August 2009, to an uncontrolled release of hydrocarbons from the well which, the applicant says, remained unabated for more than 10 weeks. The applicant says that the oil spill was observed over an area of approximately 90,000 km² (the Montara oil spill). In response, the Australian Maritime Safety Authority (AMSA) used 184,000 litres of chemical dispersants to dissipate the hydrocarbons on the surface of the water into the water column.

4    The respondent accepts that it was required to carry out all petroleum exploration and recovery operations in the area in a proper and workmanlike manner and in accordance with good oil field practice. It also accepts that it was required to control the flow, and prevent the waste or escape, of petroleum or water in the area the subject of its petroleum retention lease.

5    The allegations pleaded in the further amended statement of claim (the statement of claim) by the applicant in relation to the development of the Montara oil field, the suspension of the H1 Well and the spill from the well are admitted by the respondent. Among these allegations is the fact that each control barrier the respondent relied on to prevent the release of hydrocarbons from the H1 Well was deficient. None had been tested by the respondent. Further, the respondent admits that a reasonable person in its position, or alternatively a person acting in a proper and workmanlike manner and in accordance with good oil field practice, would not have relied on those barriers against the release of hydrocarbons, and would have tested them.

6    The applicant alleges that the hydrocarbons from the Montara oil spill reached certain areas within Indonesia, including the southern coastal area of Rote, an island where he lives and carries on his occupation as a seaweed farmer. He alleges that the hydrocarbons and/or dispersants that were used had the effect of killing or destroying seaweed, and causing a drop in the production of seaweed cultivated by him and the group members defined in the statement of claim. The applicant alleges that the respondent owed him and the group members a duty of care in respect of the operation and suspension of the H1 Well and that the respondent breached that duty of care, thereby causing the oil spill and the loss or damage suffered by him and the group members.

7    The respondent denies that it owed the applicant and group members a duty of care. It also denies that the applicant and group members suffered loss or damage by reason of the Montara oil spill or the breaches of duty alleged.

8    The Limitation Act applies to the applicant’s claim because ss 8 and 80 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (the OPGGSA) have the combined effect that the laws of the Territory of Ashmore and Cartier Islands apply to certain identified lands and waters, including the area where the Montara oil field is located. Further, s 6 of the Ashmore and Cartier Islands Acceptance Act 1933 (Cth) provides that the laws of the Northern Territory apply to the Territory of Ashmore and Cartier Islands.

9    Section 12(1)(b) of the Limitation Act provides that an action founded on a tort is not maintainable more than three years from the date on which the cause of action first accrues. The applicant accepts that the principal proceeding was not commenced within three years of the date of damage first suffered as a result of the Montara oil spill or the relevant breaches of duty pleaded in the statement of claim.

10    Section 44(1) of the Limitation Act provides that a court may extend the time for instituting an action. However, there are requirements for the exercise of that power. Relevant to the present case is the requirement in s 44(3)(b)(i) that the Court must be satisfied that facts material to the applicant’s case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period; that the action was instituted within 12 months after the ascertainment of those facts by the applicant; and that in all the circumstances of the case, it is just to grant the extension of time.

11    The essence of the applicant’s present application is that a number of facts material to his case only came to his attention at a meeting on 12 October 2015, after the limitation period had expired (which, according to the applicant, was likely to have been in September 2012). He says that the principal proceeding was commenced within 12 months of that time (namely, 3 August 2016). The applicant also says that it is appropriate for the Court to extend the limitation period applicable to his claim for a number of reasons, which I will discuss below.

The applicant’s evidence

12    The applicant is 59 years old and was born on Rote, which is in the province of Nusa Tenggara Timur (NTT), Indonesia. He has lived in the village of Oenggaut all his life. He received primary level education over five years, between the ages of 10 and 15. When he left school, he helped his mother and step-father with the family crops.

13    In 2000, seaweed farming was introduced to NTT. In his affidavit, the applicant said that he began seaweed farming in 2002. He said that seaweed farming gave him a level of income he did not think he could ever achieve. He was able to feed his family properly, educate his children and buy items such as a mobile telephone and a motorbike.

14    In cross-examination, the applicant qualified this evidence by saying that in the year 2000 a group of 10 villagers, of which he was one, started “setting up” for seaweed farming (it would seem as a group). He said that, in 2002, he was “independent”—meaning that he was farming seaweed on his own, helped by his wife.

15    This evidence was contradicted by notes made by Mr Phelps, a lawyer, apparently on 29 October 2014, that seaweed farming in Oenggaut commenced in 2005 and that the applicant’s own farming commenced in 2007. The applicant said that this was not true. I do not think that anything turns on the discrepancy as to these dates so far as the present application is concerned, although the respondent relied on it as an instance of what it said was the unsatisfactory nature of the applicant’s evidence.

16    In his affidavit, the applicant gave an account of how, in September 2009, the water around his village changed and how the seaweed farmers in the village lost their crops.

18.    One day in September, I went into the water first thing in the morning when it was low tide, probably around 8am. All the other farmers were around in the water and we started shouting to each other. Usually the water was clear and we could see the seabed but it had become cloudy and yellowy and I could not see the seabed.

19.    I went into the water and my hands and legs felt slippery to touch. The water was shiny and when highlighted by the sun I could see rainbow colours. I thought that this was very strange.

20.     The day before, the water had been normal and the seaweed was green and fresh.

21.     I left the water hoping it would have improved by the following day.

22.     The next morning, I returned to the water. I walked past dead squid and fish on the beach on the way to my farming area. I was shocked and I picked up a fish which smelt of kerosene. I started to think that it could be oil. There were lumps of oily substance mixed in with the dead fish on the beach. The water was still cloudy but had changed to white. Further dead fish appeared in the days that followed.

23.     I spoke about what had happened with my step-brother, Adrianus Faturaja, who was and still is, the village secretary of Oenggaut. I also spoke with Salmon Londa, who is married to my cousin. Adrianus and Salmon told me that they did not know what had happened. I was very concerned about the loss of the seaweed and spoke to several of the seaweed farmers in the village as well, but I do not remember exactly how many or their names. No one I spoke to was able to tell me what had happened.

17    In early 2010, the applicant learned that a meeting of the village heads in Rote had been called. The applicant did not attend this meeting or a subsequent meeting because the meetings were convened for the heads of sub-villages and neighbourhood associations. The applicant held no relevant position in that regard. The applicant said that, at around this time, his step-brother, Adrianus, and another villager who was head of the neighbourhood council, told him and a group of around 10 farmers that there had been an oil spill from Australia and that this spill had destroyed the seaweed. The applicant said that, on several occasions prior to 2015, he had heard that the oil was from “Montara”; however, he did not know what “Montara” was.

18    The applicant said that, in October 2014, a group of Australian lawyers came to his village. The applicant met these lawyers who asked him questions about his seaweed farm and whether he had lost seaweed crops. One of the lawyers was Mr Phelps. The applicant gave this evidence:

34.    At the beginning of the meeting, I did not understand why the Australians were interested in our seaweed farming. During our discussion Mr Phelps told me that he was a lawyer but at the end of our conversation, I was still confused. I still did not know why these Australian lawyers were interested in us and I did not know what the purpose of the conversation was. I did not know that it might be possible to take any action in relation to the loss of my seaweed. I presumed that the loss of my seaweed was just something that I had to put up with.

19    On 12 October 2015, the applicant met Mr Phelps again. The applicant said that, at this meeting, he learned that the oil came from an oil well called “Montara” which “was in Australian waters and owned by an Australian company” and that the well was about 250 km south of Rote. He said that, at this meeting, he was told for the first time that the respondent had a responsibility to operate the oil well “in accordance with rules and the law” and that the oil spill happened because the respondent “did not comply with this responsibility”.

20    The applicant said that, before this meeting, he also did not know that chemicals had been applied to the oil spill. He said that he was told that chemicals had been sprayed on the oil to prevent it from spreading. The applicant said that he was told that AMSA had sprayed the chemicals.

21    The applicant gave evidence of other matters he learned from the meeting which, he says, he did not know beforehand. I do not find it necessary to detail all those matters.

22    He said:

44.    At the end of the meeting on 12 October 2015, for the first time I became aware that it might be possible to take legal action and the action would be against PTTEPAA. This was not promised to me, but I understood it to be a possibility. Before that, I did not know that someone else was to blame for the loss of our seaweed. I did not know then that I would later be chosen to be the lead applicant in the class action. I still find it difficult to remember the full name of PTTEPAA, being PTTEP Australasia (Ashmore Cartier) Pty Ltd.

23    In his affidavit, the applicant said that information in his village travels by word of mouth. There is no public access to television. He said that, in 2009, his neighbour had a television but he (the applicant) did not watch it. He said that he did not get his own television until 2013. The applicant also said that there are no newspapers in his village and that he has never read a newspaper. He also said that, although he has a mobile telephone he only uses it to speak to his children. He said that, although he has heard of the Internet, he does not understand what it is, and has never used it.

24    In cross-examination, the applicant’s attention was drawn to a questionnaire signed by him on 12 October 2015, in which the following question appears:

Have you heard about the Montara oil well?

25    The following answer is recorded:

Yes. People say to him that the oil is from Montara. Cannot remember which people. Never read about in the newspaper. Saw it on the television in 2010, watched but not fill [sic] attention.

26    The applicant explained that this answer was not correct and that what he really meant to say was that he had “heard it from other people who watched the television”.

27    In the transcript of an interview between Mr Phelps and the applicant on 12 October 2015, the following is recorded. The reference to “Greg” is to Mr Phelps. The reference to “Daniel” is to the applicant. The reference to “Allen” is to an interpreter who was assisting the applicant:

GREG        : Does Daniel know if the company was responsible for causing the oil spill?

ALLEN    : Do you know that the company should be responsible for causing the oil spill?

DANIEL    : Yes

GREG        : Why does he believe that?

ALLEN    : How do you know?

DANIEL    : I saw an interview on TV one day.

ALLEN    : By watching an interview on TV.

GREG        : When was that?

ALLEN    : When did you see it?

DANIEL    : Year 2010

ALLEN    : 2010 …

GREG        : But he didn’t know the name?

ALLEN    : You didn’t know the name?

DANIEL    : No, I didn’t. It was just some glimpse.    

28    In cross-examination, the applicant gave a number of explanations for the answers given in this part of the interview. He stressed that he never watched television and that, in this part of the interview, he was simply reporting what other people had told him. This section of the cross examination included the following exchange:

MR SHEAHAN:    Mr Sanda, I’m going to read to you what is the recording here of what was said at this meeting. Mr Allen said to you:

        Do you know that the company should be responsible for causing the oil spill?

MR SHEAHAN:    You were asked that?

THE WITNESS:    Yes.

THE INTERPRETER:    Yes. That was back in 2015, wasn’t it?

MR SHEAHAN:    Yes. And your answer is “yes”. That was your answer.

THE WITNESS:    Yes.

THE INTERPRETER:    Yes.

MR SHEAHAN:    And Mr Greg – well, it’s Ms Allen; is that right?

THE INTERPRETER:    She was a miss, yes.

MR SHEAHAN:    Yes. Ms Allen said:

            How do you know?

    And you responded:

            I saw an interview on TV one day.

    Is that what you said; correct?

THE INTERPRETER:    I never watch television.

MR SHEAHAN:    Is that what you said to Ms Allen?

THE INTERPRETER:    I did not really understand at that time. So I said “yes” but the fact was that I never watch television.

MR SHEAHAN:    Ms Allen then said to you:

            When did you see it?

        And your answer is recorded as, “year 2010.” That is what you said to Ms Allen.

THE INTERPRETER:    What I thought then was that I should provide the answer what my younger sibling said.

MR SHEAHAN:    Ms Allen then asked you:

                You didn’t know the name.

            And you are recorded as saying:

                No, I didn’t. It was just some glimpse.

            That is what you said to Ms Allen; is that correct?

THE INTERPRETER:    It is true that my neighbour had a television set, but I usually come home from work tired, and then I went to sleep.

MR SHEAHAN:    I must ask the question again.

THE WITNESS:    Yes.

MR SHEAHAN:    Did you say to Ms Allen:

            I didn’t know the name. It was just some glimpse.

THE INTERPRETER:    I did not say that. The truth was that I did – I never watched television. I only conveyed what other people said to me.

MR SHEAHAN:    And to be clear, does Mr Sanda say that he did not tell Ms Allen that he watched an interview on TV, or part of an interview on TV about the oil.

THE INTERPRETER:    Yes. So I know nothing about the oil.

MR SHEAHAN:    So let me ask the question again because, Mr Sanda, I need to be clear about this. Mr Sanda, are you telling the court that you did not say to Ms Allen that you watched something about the oil on television.

THE INTERPRETER:    Correct. I never watch television.

MR SHEAHAN:    I’m sorry, I need to be clear. Did you say to Ms Allen that you had seen something about it on television?

THE INTERPRETER:     No. I did not.

29    In the questionnaire signed by the applicant on 12 October 2015, the following question appears:

Do you know anything about a company by the name of PTTEP Australasia (Ashmore Cartier) Pty Ltd in connection with the Montara oil well? [How, when, why?]

30    The following answer is recorded:

NO. I have just heard the name PTTEP but I do not know what it means.

31    Further, in the transcript of the interview with Mr Phelps on that day, the following is recorded:

GREG    : Do you know anything about a company by the name of P-T-T-E-P Australasia Ashmore Cartier Pty in connection with the Montara oil well?

ALLEN    : What do you know about a company by the name PTTEP Australasia Ashmore Cartier in connection with the Montara Oil Well?

DANIEL    : No

GREG        : Has he ever heard the name P-T-T-E-P?

ALLEN    : Have you heard of P-T-T-E-P?

DANIEL    : Yes I have heard but I don’t know what it was.

ALLEN    : Yes, he has ever heard but he doesn’t know. …

GREG        : He has heard the name. But he only heard it was PTTEP?

ALLEN    : He just heard.

GREG        : Does he know what that means? PTTEP?

ALLEN    : So PTTEP is the name of the company. You heard about it right?

DANIEL    : Yes I have heard about it but didn’t know what it was.

ALLEN    : He just heard about PTTEP but did not know.

GREG        : Doesn’t know that it means.

32    It was put to the applicant that, based on these answers, he had heard the name PTTEP before 12 October 2015. In response, the applicant suggested that he had not heard of the name PTTEP until 12 October 2015. However, after further cross-examination, the applicant appeared to accept that he had heard that name before 12 October 2015, although he did not know what it meant.

33    The respondent pointed to inconsistencies in the applicant’s evidence, particularly in relation to whether he himself had seen anything on television about the Montara oil spill and whether he had heard the name PTTEP before October 2015. The respondent submitted that these inconsistencies cautioned against the Court accepting the applicant’s recollection of what he did and did not know prior to October 2015.

34    The respondent argued that, because of the importance of his seaweed crop to his and his family’s economic well-being, it is improbable that the applicant would have taken no, or very few, steps to understand why the loss to his seaweed crop occurred. Indeed, the respondent submitted that the Court should infer that the applicant did take an active interest in seeking out information in this regard and find that the applicant acquired the general state of knowledge available on Rote from time to time.

35    The respondent then pointed to a number of news reports and articles exhibited to an affidavit prepared by Mr Maher, a lawyer with joint carriage of this proceeding on the respondent’s behalf. Mr Maher gave evidence of research that he and others had undertaken in relation to the circulation of published news reports and articles. Based on this evidence, the respondent submitted that all the reports and articles appeared in publications or on websites with significant readerships in Indonesia. The respondent submitted that the inference should be drawn that the applicant was aware of the respondent’s name and what “Montara” was prior to 4 August 2015. The respondent submitted that it is improbable that the origination of the oil from Montara was discussed or referred to “on several occasions” — to which the applicant deposed in his own affidavit — without the operator of the oil well being mentioned.

Relevant principles

36    Section 44(3)(b)(i) of the Limitation Act is in materially the same terms as s 48(3)(b)(i) of the Limitation of Actions Act 1936 (SA) (the South Australian Act). In respect of the latter provision, the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 (Sola) said (at 636-637):

A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word “material”, inter alia, to mean “Of such significance as to be likely to influence the determination of a cause”. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to “facts material to the plaintiff’s case”.

37    The High Court observed that, unlike the Limitation Act 1963 (UK) on which s 48 is based, there was no warrant for writing into the South Australian Act a qualification that there must be some interaction between the material fact and the plaintiff’s decision to sue. For example, there was no requirement that the material fact be of “a decisive nature”.

38    In so holding, the High Court adopted the following explanation by Bray CJ in Napolitano v Coyle (1977) 15 SASR 559 (Napolitano) at 569:

A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases may not be of great significance, has left all the rest to the discretion of the court.

39     In Lovett v Le Gall (1975) 10 SASR 479, Bray CJ observed at 482 that, in the context of s 48 of the South Australian Act, the word “material” takes in:

…the whole complex of evidence and argument which will be advanced at the trial…

on the plaintiff’s behalf and would include matter:

…which, though not necessary to be proved to establish the cause of action, would be admissible in evidence, whether as going to damages or otherwise...

40    The same notion has been applied to s 44(3)(b)(i) of the Limitation Act in Fersch v Power and Water Authority (1990) 101 FLR 78 at 82; see also Braedon v Hynes [1986] NTJ 88 at 893.

41    It will be apparent from this brief summary that the threshold requirement of “facts material to the plaintiff’s case” is not high. Indeed, in Wright v Donatelli (1995) 65 SASR 307, Cox J said (at 310) with respect to the corresponding provision in the South Australian Act:

Perhaps one might be permitted a general observation about these s 48 applications. Everyone now understands that the test for an ascertained material fact under s 48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out–of–time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensics energies in more rewarding ways.

42    It is important to note that the ascertainment of the material fact(s) is directed to the plaintiff’s (here, applicant’s) ascertainment. In Sola, the High Court said that the provision:

…says nothing about constructive notice and facts of which the plaintiff ought to have known. Read as a whole, the section yields the conclusion that it is ascertainment of material facts by the plaintiff personally that is required…

43    Further, the ascertainment of a material fact is to be distinguished from the discovery of new evidence of a known fact and expressions of mere opinion: Trevorrow v State of South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136 (Trevorrow) at [915] and [917].

44    The respondent accepted that the threshold requirement is “set very low”. It submitted, however, that this made the exercise of the discretion all the more important.

45    The discretion to grant an extension of time pursuant to s 44(1) of the Limitation Act has been described as “unfettered”: Bleakley v Higgins [2006] NTSC 89 at [92]. Nonetheless, in Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134 (Prince Alfred College), the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) observed at [99]-[100] (citations omitted) with respect to the South Australian Act:

99    In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court's decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.”

100    Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.

46    In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South Regional Health Authority), McHugh J observed at 551 (citations omitted):

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

47    At 555, his Honour said:

Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.

48    In the same case, Kirby J remarked (at 565) that the discretion is to be exercised in a way that gives effect to the exception but in the context of a statute designed also to uphold the general rule.

49    Some cases have set out factors that are relevant to the exercise of the discretion to extend time in the context of a limitation statute. For example, in Trevorrow, Gray J said at [924]-[927]:

924    In Ulowski v Miller, Bray CJ observed that the discretion to extend time should not be fettered by any absolute or inflexible rules. However, Bray CJ went on to outline what he referred to as five paramount matters to be considered in the exercise of the discretion. Those factors are the length of the delay; the explanation for the delay; the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred; the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and the conduct of the defendant in the litigation. Bray CJ then went on to say:

“I think the discretion [to extend time] should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.”

925    In Lovett v Le Gall, Bray CJ held that the following two considerations could be added to the list in Ulowski: the conduct of the plaintiff; and the nature, importance and circumstances surrounding the ascertainment of the new material facts.

926    In Forbes v Davies, Kearney J agreed with Bray CJ as to the relevant factors to consider when contemplating an exercise of the discretion to extend time, and added a further factor to the list - the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed.

927    In McPhee v Blyth, Olsson J reaffirmed the view adopted by Legoe J in Luscombe v South Australia that the five factors outlined by Bray CJ in Ulowski were relevant to applications made pursuant to section 48 of the Limitation of Actions Act. These factors form the basis for any consideration of an application for an extension of time. An analysis of the circumstances of a matter relevant to these factors assists the Court to ascertain whether, in the interests of justice, the application for extension of time should be granted.

50    Based on certain observations made by O’Loughlin J in Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [1421] which, on appeal, the Full Court did not disapprove (Cubillo v Commonwealth (2001) 112 FCR 455 at [414]), the applicant submitted that the factors to which regard should be had in exercising the discretion include, relevantly to the present case:

    whether the delay in bringing the application may be explained by lack of knowledge of the existence of legal rights and remedies;

    the extent to which a refusal to exercise the discretion in favour of an applicant would bring his or her cause of action to an end and thereby leave the applicant with no other remedy at law;

    the nature of the case, in particular whether the nature of the case is such that by virtue of its size, complexity or time-consuming nature, a person in the position of the applicant could not have understood without the benefit of legal advice that he or she had, or may have had, causes of action against some person;

    whether a person in the position of the applicant could have been expected to have commenced and prosecuted litigation of the nature of the application without substantial assistance; and

    the extent to which the respondent would suffer forensic or other relevant prejudice by reason of the delay in the commencement of the proceeding.

The applicant’s case for an extension of the limitation period

51    The applicant argued that he was unaware of substantially all of the facts that are material to his case before 2 August 2015 (being the date 12 months prior to the commencement of the principal proceeding). Indeed, he argued that many critical material facts were unknown to him until October 2015.

52    The applicant submitted that it would be appropriate for the Court to extend the limitation period applicable to his claim because:

    his failure to institute proceedings within time is adequately explained by his lack of knowledge of material facts, including his lack of knowledge of the potential to make any claim and of the existence of the limitation period under the Limitation Act;

    he would be shut out from seeking redress for his alleged losses in circumstances where he has a strong prima facie case;

    his claim is highly complex and technical, such that a reasonable person could not have been expected to have anticipated or discovered for himself/herself either the existence of the claim or the material facts giving rise to the claim;

    a person in his position, lacking “litigation sophistication” and acting under informational asymmetry, could not have been expected to have brought and prosecuted his claim, in a legal system and pursuant to laws foreign to him, without substantial assistance; and

    no prejudice resulting from the effluxion of time would be suffered by the respondent in being required to meet his claim.

Analysis and findings

53    Whilst the respondent was able to point to some inconsistencies and discrepancies in the applicant’s affidavit evidence and the documentary record constituted by Exhibit 1, I am satisfied that the applicant was a witness of truth and that, on the whole, the account which he gave in his affidavit and in his oral evidence is reliable on key points. In forming this view, I bear in mind the applicant’s limited education and lack of sophistication, at least compared to the expectations and experiences of our own society.

54    I do not, with respect, consider the respondent’s reliance on news reports and articles published generally in Indonesia as providing a knowledge base by reference to which the applicant’s own knowledge can be reliably tested. I accept the applicant’s evidence that there are no newspapers in his village and that he has never read a newspaper. I accept the applicant’s evidence that, although he has a mobile telephone, he only uses it to speak to his children and that he does not have Internet access. I also accept the applicant’s evidence that his household has never owned a computer and that, before October 2015, he did not know anyone in his village who did own a computer.

55    I note that the applicant did acquire a television in 2013, but I accept his evidence that he does not watch it, although his children do. In this connection, I also accept the applicant’s evidence that when, in completing the questionnaire and in giving answers in his interview on 12 October 2015, he referred to having seen something on television, he was conveying what other people had told him about what they had seen on television. I would add that, in terms of the relevant knowledge that the applicant had from time to time, it does not seem to me that it makes any difference whether he personally saw something on television or whether someone else told him something about what he or she had seen on television. What is important is the knowledge that the applicant possessed, not the means by which he acquired that knowledge.

56    This leads me to another point. The respondent’s reliance on the published news reports and articles assumes that others in the applicant’s village or on Rote more generally, with whom the applicant came into contact, also had knowledge of the information in the news reports and articles which they, in turn, passed on to the applicant. I have no reason to conclude that others did have that knowledge beyond the inference that I am asked to draw in relation to the applicant himself. I am not prepared to draw that inference. For all I know, the people with whom the applicant came in contact were in no better position than the applicant himself so far as knowledge of the published articles and reports is concerned. Moreover, I would not infer that any different knowledge that these people might have had can be translated into knowledge that the applicant also had at the relevant time, beyond the matters about which the applicant has already given evidence.

57    The following submission was made on the applicant’s behalf:

… PTTEPAA’s approach to Mr Sanda’s evidence relies upon multiple successive inferences being drawn. In this regard, PTTEPAA essentially asks the Court to conclude that Mr Sanda is untruthful because (1) it should be inferred that Mr Sanda considered it necessary to investigate the cause of the oil that he observed, beyond what he had already been told; (2) it should be inferred that Mr Sanda in fact took such steps to investigate the cause of the oil; (3) it should be inferred that the steps taken by Mr Sanda were successful in eliciting information about the Montara Oil Spill; and (4) it should be inferred that the steps in fact taken by Mr Sanda were sufficiently comprehensive to capture all information available in the public domain as to the Montara Oil Spill. This approach of stacking inference upon inference is forensically and logically unsound and could not provide a safe basis for disregarding Mr Sanda’s actual evidence.

58    In oral argument, the respondent stressed that it was not asking the Court to find that the applicant was untruthful. Rather, the respondent submitted that the applicant’s evidence provided a wholly unsatisfactory basis for making positive findings that, prior to 2 August 2015, he was not aware of the material facts referred to in his affidavit.

59    I do not accept that submission. As I have recorded, I am satisfied that the applicant was a witness of truth (notwithstanding the respondent’s disavowal of any contrary submission) and that, on the whole, the account he has given is reliable on key points. I accept the applicant’s submission that a significant part of the respondent’s attack on the reliability of the applicant’s evidence was based on multiple inferences being drawn.

60    Having made these prefatory findings, I am satisfied that, before 2 August 2015, the applicant knew that:

    there had been an oil spill from Australia;

    the spill was allegedly responsible for the damage to his seaweed crop;

    the spill was associated with “Montara” and “PTTEP”, although, at that time, he did not know what these names meant.

61    I am satisfied that he did not know until 12 October 2015 that:

    the oil spill came from an oil well;

    “Montara” was the name of the “oil well”, which was located in Australian waters about 250 km south of Rote;

    “PTTEP” was the name of a company that operated the oil well;

    “PTTEP” was an Australian company;

    “PTTEP” had a legal responsibility to operate the oil well “in accordance with rules and the law”;

    the oil spill occurred allegedly because “PTTEP” “did not comply with this responsibility”;

    chemicals had been applied to the oil spill to prevent the oil from spreading;

    AMSA applied the chemicals; and

    it was possible to take legal action in Australia against “PTTEP” for the loss or damage he had allegedly suffered because of the oil spill.

62    I am satisfied that these alleged facts, assuming them to be correct, are facts material to the applicant’s case within the meaning of the authorities I have discussed. The circumstance that some of them remain as allegations at the present time and/or that some of them are, in part, conclusory, does not mean that they are not “facts”.

63    The respondent argued that the propositions that it had a legal responsibility to operate the oil well “in accordance with rules and the law”, and that it “did not comply with this responsibility”, were, as to the first proposition, merely a truism and, as to the second proposition, no more than the expression of a legal opinion that could not stand as a “fact” for the purposes of s 44(3)(b)(i) of the Limitation Act: Napolitano at 570; Trevorrow at [917]. In my view, neither characterisation is correct in the present context. These propositions are factual in nature, albeit that their content may be in contest and require proof. Moreover, they are material facts. Their gravamen is that, under Australian law, the respondent had a legal obligation with which it had not complied.

64    The respondent made a similar submission with respect to the proposition concerning the possibility of taking legal action against it for the loss or damage allegedly suffered by the applicant. In essence, the respondent submitted that this proposition really amounts to an opinion as to the possibility of a good cause of action or its ultimate prospects of success. Once again, I do not think that this characterisation is correct. Once again, the proposition is factual in nature. It speaks of the availability of legal redress based on the existence of facts which the applicant believes to be true. The availability of legal redress, applicable to the applicant’s circumstances, is a material fact.

65    The respondent submitted that the fact that the oil well is located about 250 km south of Rote is neither here nor there given the applicant’s prior knowledge that there had been an oil spill from Australia. I disagree. One matter in dispute is whether the oil from the Montara oil spill reached Rote where the applicant conducted his seaweed farming activities. The relative proximity of the oil well to Rote compared to some more significantly remote part of Australia is plainly relevant to the likelihood that the oil that allegedly damaged the applicant’s seaweed crop came from the Montara oil field.

66    The respondent submitted that the fact that chemical dispersants had been applied by AMSA to the oil spill was not of such significance as to be likely to influence the determination of the applicant’s case and hence not “material” for the purposes of s 44(3)(b)(i) of the Limitation Act. Once again, I disagree. The use of chemical dispersants by AMSA is pleaded and relied upon as causative of the loss or damage to the applicant’s seaweed crop.

67    In its written submissions, the respondent took issue with the characterisation and materiality of other facts deposed to by the applicant. As noted earlier, I have not found it necessary to detail all the facts which the applicant said he had learned in October 2015 or at least not before 2 August 2015. In the circumstances, it is not necessary for me to deal with a number of the criticisms and challenges which the respondent made concerning these asserted facts.

68    There is, however, a further matter I should mention that emerged in the course of the applicant’s oral submissions. In those submissions, reliance was placed on part of the questionnaire completed on the applicant’s behalf on 12 October 2015 which contains a note that the applicant was informed of certain findings of the Montara Commission of Inquiry (the Commission). Senior counsel for the applicant sought to make much of these findings as “facts” which the applicant had ascertained as a result of his interview with Mr Phelps that day. However, in his affidavit, the applicant merely said that, before 12 October 2015, he did not know that there had been an official inquiry to investigate the oil spill and that, on 12 October 2015, he had been told that there had been a report. Importantly, the applicant said that he has not seen the report.

69    In view of this evidence, I am not prepared to treat the specific findings of the Commission identified in the questionnaire as facts ascertained by the applicant that meet the threshold requirements of s 44(3)(b)(i). The applicant did not treat these facts as material facts ascertained by him for that purpose. The relevant facts adduced by the applicant in his evidence in chief are that there had been an official inquiry and a report. I do not accept that these facts, in and of themselves, are “material” to the applicant’s case for the purposes of s 44(3)(b)(i).

70    As to the facts referred to at [61] above, I am satisfied that the principal proceeding was commenced within 12 months after those facts had been ascertained by the applicant himself.

71    I am satisfied, therefore, that the threshold requirements of s 44(3)(b)(i) of the Limitation Act have been met.

72    I accept that the discretionary considerations advanced by the applicant are relevant considerations which weigh in favour of time being extended. In particular, I am satisfied that the applicant is not sophisticated in terms of his appreciation of the existence of legal rights and remedies provided by Australian law and, until October 2015, was not aware of a number of material facts that bear on his claim, including that he could even bring a legal claim against the respondent for the loss or damage he alleges he has suffered. I accept that, given his background and circumstances, he could not have understood, without the benefit of sophisticated legal advice (itself informed by reference to a number of complex, technical facts), that he might have a cause of action against the respondent. I accept, in this regard, the applicant’s evidence that, before October 2014, he had never used a lawyer—indeed, did not know of any lawyers. I am therefore satisfied that his delay in bringing the principal proceeding has been explained and should be accepted.

73    I accept that, in respect of his interests, a refusal to extend time would work a significant injustice because he would be denied a significant avenue for seeking legal redress for the loss or damage he has alleged.

74    The applicant submitted that he has a “strong” prima facie case. I do not propose to offer any view as to the strength of that case other than to note that it is one which, on the face of the pleadings, is a sustainable case that has been advanced on genuine grounds. I note, in this connection, that the respondent has made a number of admissions in relation to the allegations that have been pleaded, although liability is denied.

75    For its part, the respondent advanced a number of considerations which, it submitted, militate against the exercise of the discretion in favour of the applicant.

76    First, the respondent emphasised the passages I have quoted from Prince Alfred College at [45] above. It submitted that there is no presumptive entitlement to an extension of time merely because the threshold requirements of s 44(3)(b)(i) have been met. It also submitted that while it bears an evidentiary onus to raise any consideration relevant to the denial of the discretion, the legal burden remains with the applicant throughout to establish that, in all the circumstances of the case, it is “just” for the extension to be granted. I do not understand there to be any dispute between the parties as to the correctness of these submissions.

77    The respondent also submitted that the applicant must establish that the commencement of the principal proceeding beyond the limitation period would not result in any significant prejudice to the respondent. Relatedly, it submitted that it was trite that delay of any sort would necessarily impact on the cogency of the evidence.

78    In this connection, the respondent submitted that, in the present case, the applicant has not adduced any evidence going to the justice of the application for an extension of time or to the absence of any prejudice accruing to the respondent, such as to enliven a favourable exercise of the discretion. The respondent submitted that the focus of the applicant’s evidence has been the satisfaction (or otherwise) of the threshold requirements. The respondent complained that, in the present application, the applicant has not addressed the evidence, or even the types of evidence, he will rely upon at trial with a view to demonstrating that the passage of time will not have prevented the respondent from being able to meet that evidence.

79    Relatedly, the respondent pointed to the fact that, having allegedly suffered the loss or damage in 2009, the applicant took no steps to prosecute his claim for approximately seven years, more than twice the limitation period under the Limitation Act for bringing claims of this kind. The respondent also argued that the material facts on which the applicant now relies were capable of ascertainment by him before 12 October 2015, with the most obvious occasion being in October 2014 when the applicant was first visited by Australian lawyers.

80    A number of these submissions appear to reverse the evidentiary burden placed on the respondent. I accept the proposition that the onus of satisfying the Court that the discretion should be exercised in favour of the applicant rests on the applicant: Brisbane South Regional Health Authority at 544 (Dawson J); 547 (Toohey and Gummow JJ); 567 (Kirby J). But the respondent has the burden of adducing evidence of actual or specific prejudice beyond presumed prejudice. The respondent has the benefit of a fully pleaded statement of claim, setting out the material allegations of fact made against it. As I have noted, it has made a number of admissions. The principal areas of controversy appear to be whether the respondent owed the applicant and group members the duties of care pleaded in the further amended statement of claim and whether the loss or damage alleged can be sheeted home to the respondent. It is for the respondent to identify, on facts and circumstances known to it, and by reference to the areas of controversy delineated by the pleadings, whether it will be prejudiced in some material way should time be extended. I do not think it is for the applicant to rehearse the evidence it proposes to adduce in support of its pleaded case and then speculate on whether the respondent will have difficulty in meeting that evidence. Of course, once a respondent puts forward evidence of actual or specific prejudice, it will be for an applicant, in discharging its ultimate onus, to show that extending time will not result in significant prejudice to the respondent of a kind that would warrant a refusal to grant that extension.

81    Perhaps recognising this, the respondent referred to one particular matter in this regard. It relied on an affidavit made by Yermias Lomba on 16 February 2017, which has been filed by the applicant. Yermias Lomba is described as the former Secretary of Village for Oenggaut. The respondent relied on certain passages in the affidavit dealing with the collection of information which was made to estimate the village’s production of seaweed in the period 2007 to 2015. It would seem that there are no written records in relation to seaweed sales and that the estimate provided in the affidavit was based on the collective memory of the farmers concerned. The respondent relied on the affidavit to point out the difficulties which the applicant and group members themselves have in putting together material as to the loss they allege so many years after the event.

82    The respondent’s point was that, if time were to be extended, it would be left with the task of having to test the recollection of the villagers on issues about causation and loss in an environment where there are no documents and where the events in question took place nearly 10 years ago. The respondent submitted that this constituted undeniable prejudice and that the applicant has made no attempt to discharge his onus of satisfying the Court that issues of this kind could fairly and justly be tried after such a long period. Whilst it is true that the applicant did not address this topic, it seems to me that the problem, if there be one, lies with the applicant and group members adducing evidence of sufficient cogency at a final hearing to discharge the onus of proof which rests squarely on them of establishing the existence of loss or damage and the quantum thereof. The respondent bears no burden of proof in this regard.

83    In making these observations, I do not intend to make light of the added burden that the passage of time may have placed on the respondent in testing the applicant’s evidence on these issues. But, as I have said, the problem lies more with the applicant and the group members than with the respondent. Quite independently of the passage of time, it would seem that the applicant’s and group members’ cases will lack the persuasive force of contemporary documentary records relating to the extent and quantum of the loss they allege. Thus, this is not a case of evidence lost because of the passage of time. It would seem that the evidence never existed.

84    It is also important to bear in mind, in this connection, that the delay in commencing the principal proceeding after the expiration of the limitation period is not particularly long in the scheme of things—about four years—recognising that, unlike some other jurisdictions, the limitation period applicable to the applicant’s claim is three years, not six years.

85    Given these matters, it does not seem to me that any added burden placed on the respondent by the passage of time is of such significance that it would stand steadfastly against time being extended to commence the principal proceeding, if it were otherwise appropriate to grant that extension.

86    The prejudice which the respondent has advanced (both presumptive and actual) must be seen against the background that the circumstances of the Montara oil spill were immediately the subject of an extensive inquiry with which, it seems, the respondent was intimately involved.

87    In this connection, the applicant took me to parts of the Report of the Montara Commission of Inquiry dated 17 June 2010, specifically the Terms of Reference for the inquiry, which were announced on 5 November 2009. The Terms of Reference are extensive. Amongst other things, the Commission was to assess and report on the environmental impacts after the Montara oil spill using available data and evidence, including the outcomes from monitoring activities that were already underway.

88    In this regard, the applicant also took me to the respondent’s Outline of Submissions on Sentence in relation to charges brought against the respondent under the OPGGSA following the spill. The submissions are dated 28 August 2012. The purpose of taking me to the submissions was to draw attention to the fact that, on 7 September 2009, the respondent had agreed with the Department of Sustainability, Environment, Water, Population and Communities to fund a long-term monitoring program to address any long-term environmental impacts of the spill. This program is described in the submissions as primarily directed to:

    operational monitoring focused on providing information of use in planning or executing the response to the oil spill; and

    scientific monitoring studies that may be undertaken over extended periods, focused on non-response objectives such as estimating environmental damage and post-response recovery.

89    The submissions record that the monitoring program consisted of five operational monitoring studies and a number of scientific studies.

90    The operational studies are described in the submissions as:

    Monitoring of Oil Distribution and Marine and Coastal Resources (Study 01);

    Monitoring of Oil Character Fate and Effects (Study 02);

    Shoreline Assessment and Ground Surveys (Study 03);

    Monitoring of Dispersant Efficiency and Fate of Dispersed Oil (Study 04); and

    Wildlife Impact Monitoring (Study 05).

91    The scientific studies are described in the submissions as including:

    Marine megafauna aerial assessment surveys;

    Shoreline ecological assessment aerial surveys;

    Assessment of fish catch for the presence of oil;

    Assessment of effects on Timor Sea fish and fisheries;

    Offshore banks assessment survey; and

    Oil fate and effects assessment.

92    These matters suggest that the respondent gave keen attention to the consequences of the oil spill right from the outset as, I suppose, one would naturally expect.

93    Finally, the applicant took me to an email dated 26 October 2012 from the respondent’s then lawyers to Mr Phelps. In that email, the lawyers advised that the respondent would not raise a limitation defence to any proceeding commenced in an Australian jurisdiction by the West Timor Care Foundation in relation to the oil spill. The applicant accepted that this statement of intention was directed specifically to proceedings commenced by the West Timor Care Foundation. He submitted, however, that if the respondent had reached the conclusion that it would not raise a limitation defence in any such proceeding, it was reasonable to infer that the respondent had recognised that it had not suffered prejudice through the effluxion of time. That submission has obvious limitations. But perhaps of more importance is the fact that, certainly by October 2012, if not beforehand, the respondent must have recognised that litigation was “on the cards”.

94    The applicant argued that the matters I have noted at [86]-[93] above, displace the presumptive prejudice flowing from the fact that the principal proceeding was not commenced within the three-year limitation period. I do not accept that submission. However, the matters to which the applicant has referred do provide context for considering the presumptive and actual prejudice the respondent relies on, and the weight to be accorded to that prejudice, in balancing all the discretionary factors brought forward by the parties.

95    The respondent then turned to a different topic on the question of discretion. The respondent submitted that the present case is an example of lawyer-driven litigation: “this litigation came to Mr Sanda”.

96    The respondent submitted that, although the knowledge of the applicant’s lawyers might not be relevant to the threshold question posed by s 44(3)(b)(i), such knowledge was “unusually important because this is a class action”. The respondent argued that, in the present case, the applicant’s lawyers must have known the results of the Commission’s report in October 2014 when they first visited the applicant. It was, however, only in October 2015 that they conducted an interview with the applicant in, what the respondents said was, a carefully-scripted manner so that the applicant could place reliance on s 44. In oral submissions, senior counsel for the respondent put the matter this way:

But when one comes to be making an application of this kind, to avoid the impact of a statute by reliance on facts coming late to the attention of the plaintiff, it is very important – unusually important – that the lawyers have known for years and they have been setting up the case for years, knowing all the facts said to be material. And when it’s convenient to the lawyers, in terms of the – I say convenient but in terms of the construction of the case and getting funders lined up and all the things that have to be done for a class action – when it’s appropriate for them to do it, then they choose to disclose the information to the plaintiff.

97    Thus, the respondent submitted, when considering the exercise of the residual discretion, the Court should give significant weight to “what was known by the lawyers and when they knew it”.

98    I am not persuaded that this submission has the significance which the respondent has given it. Assuming everything that the respondent has said on this score to be true, what is to be made of its criticism, which is directed to conduct for which the applicant is entirely blameless? I raise this question in circumstances where it is not at all apparent to me that any lawyer-client relationship existed in respect of communications between the applicant and Mr  Phelps, or any other lawyer, at least up to October 2015. It seems to me that one is driven back to considering the prejudice that is likely to be suffered by the respondent should time be extended. In this connection, I do not think that the matters raised in this part of the respondent’s submissions adds in any way to the prejudice that the respondent has advanced (both presumptive and actual), even though it might explain, at least in part, why time has passed and the applicant finds himself in his present position. The simple fact is that the applicant did not know he had a right of action against the respondent under Australian law until he was told of that fact. Having been told of that fact, he commenced proceedings within the time prescribed in s 44(3)(b)(i) of the Limitation Act.

99    Finally, the respondent criticised the fact that the applicant has not sought to address the rights he might have under Indonesian law or some other applicable jurisdiction to compensate him for his alleged loss. The respondent submitted that, in these circumstances, the applicant could not say that a refusal to extend time would result in the loss of his only possible remedy. This submission is correct, so far as it goes. But it is answered by the fact that the Court’s focus must be on the matter that falls within its jurisdiction. The applicant’s right of action in this Court is valuable, regardless of the rights or remedies, if any, the applicant might have elsewhere. The question which the Court must address is whether it is just in the circumstances to grant an extension of time to permit the applicant to pursue this action.

Conclusion and disposition

100    Weighing in the balance the competing contentions of the parties, considered in light of the discussion above, I am persuaded that it would be just in all the circumstances to grant the extension of time the applicant seeks. The prejudice advanced by the respondent is not of such significance as to countervail against the discretionary factors advanced by the applicant. I am satisfied that the applicant has discharged the onus which rests on him.

101    The respondent has sought an opportunity to address me on the question of costs should I come to the decision that time should be extended. I will provide that opportunity by ordering the parties to file written submissions on that question. I will then determine the question of costs on the papers, unless the parties indicate that they wish to address me orally.

Associate:

Dated:    15 November 2017