Ascic v Australian Federal Police

Background

1. The applicant commenced employment with the Commonwealth Police, later and now known as the Australian Federal Police, on 25 December 1973. On 11 December 1987 the applicant went on medical leave and did not return to work. On 1 September 1988 the applicant ceased employment with the AFP.
2. During the period he was on medical leave the applicant made a claim for compensation under Pt IV of the Compensation (Commonwealth Employees) Act 1971 (Cth). From 1 September 1988 the applicant received a pension under the 1971 Compensation Act.
3. With effect from 1 December 1988 the 1971 Compensation Act was repealed and replaced by the Safety, Rehabilitation and Compensation Act 1988 (Cth). The SRC Act contains transitional provisions by which, in effect, the SRC Act applies to injury, loss or damage suffered by an employee whether it is suffered before or after the commencement day of that Act. A person is entitled to compensation under the SRC Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was or would have been payable to the person under the 1971 Compensation Act: s 124 SRC Act.
4. Comcare has made various determinations of the applicant's average weekly earnings and normal weekly earnings under the relevant provisions of the 1971 Compensation Act and SRC Act. The applicant requested Comcare conduct independent reviews of all determinations concerning his entitlement to compensation. The applicant unsuccessfully sought review of the determinations in the Administrative Appeals Tribunal: Ascic and Comcare (Compensation) [2017] AATA 1436. A challenge of the AAT's decision in this Court was unsuccessful: Ascic v Comcare [2019] FCA 819; Ascic v Comcare [2020] FCAFC 105.
5. The applicant made a claim for a lump sum compensation payment for a 'permanent impairment' for the accepted condition of 'depression and acute paranoid reaction to perceived stress in employment' under s 124 of the SRC Act. On 2 February 2017 Comcare declined the applicant's claim on the ground that the applicant's condition had become permanent before 1 December 1988 and, because the 1971 Compensation Act made no provision for a lump sum payment of compensation for psychological conditions, the applicant was not entitled to such a payment under s 174 of the SRC Act. On 16 March 2017 a delegate of Comcare affirmed that decision on a review. On 18 May 2017 the applicant lodged an application for review of the delegate's decision in the AAT. On 9 August 2019 the AAT affirmed the delegate's decision: Ascic and Comcare (Compensation) [2019] AATA 2476. An appeal from the AAT's decision to this Court was unsuccessful: Ascic v Comcare [2021] FCA 1498. An appeal from that decision was dismissed: Ascic v Comcare [2022] FCA 1245.
6. In the course of the proceedings in this Court concerning the applicant's claim for a lump sum payment of compensation he evidently raised as an issue that his claim was not for a permanent impairment, but was for compensation for personal injury under s 27 of the 1971 Compensation Act and for common law damages. Justice Jackson observed that a claim for common law damages was obviously outside the jurisdiction of the AAT. However, his Honour observed that, despite the obvious obstacles the applicant would face in establishing any common law right to compensation in view of the statutes of limitations, if he had a common law damages claim, he was free to pursue it in an appropriate forum: Ascic v Comcare [2022] FCA 1245 at [42]-[50].
7. It appears that, having unsuccessfully exhausted all avenues of extracting greater compensation from Comcare for his workplace injury sustained in 1987, the applicant now wishes to pursue the common law damages claim he sought to raise in the appeal from the AAT's decision regarding a lump sum payment of compensation. Broadly, the applicant asserts that during his employment with the Commonwealth he was subjected to intimidation, harassment and victimisation that caused him to suffer psychiatric injury characterised as 'total mental disintegration' on 11 December 1987. The applicant claims damages (compensation) in the sum of $10 million for that injury. He also seeks 'additional compensation for damages' in the sum of $10 million. The additional claim is evidently for aggravated or exemplary damages associated with the manner in which the Commonwealth (through Comcare) has dealt with his claims for increased compensation under the SRC Act.
8. The Commonwealth contends that the applicant has no reasonable prospects of successfully prosecuting the proceeding because, if the applicant has a cause of action for common law tortious damages against the Commonwealth, the personal injury (loss or damage) was suffered on 11 December 1987 or no later than 1 September 1988 and, therefore, the cause of action accrued at that time. The Commonwealth submits that it has a complete defence to the applicant's claim in the proceedings under s 38(1)(c)(vi) of the Limitation Act 1935 because the proceeding was not commenced within six years of 1 September 1988.

Preliminary matters

1. On 11 September 2024 the applicant sent an email to my chambers. My chambers then sent an email to the parties indicating that I would treat the email as an application that I recuse myself on the grounds of actual and (or) apprehended bias. The applicant was requested to file submissions in support of his application by 24 September 2024 and the Commonwealth any submissions in response by 1 October 2024. The applicant filed submissions dated 24 September 2024 and the Commonwealth submissions dated 27 September 2024. The applicant filed submissions in reply on 30 September 2024. I am satisfied that an oral hearing is not necessary and the matter can be dealt with on the papers for the purposes of s 20A of the Federal Court Act.
2. Part of the applicant's submissions were directed to the merits of the Commonwealth's application. Neither party was given leave to make further submissions on that matter and, therefore, I have disregarded that part of the applicant's submissions except to the extent that it informs the background to his submissions regarding recusal. As to the grounds for recusal, in the applicant's submission of 24 September 2024 he identifies a number of matters that boil down to four principal complaints.
3. The applicant asserts that his cause of action is for common law damages including aggravated and exemplary damages and the Commonwealth has mischaracterised his cause of action as a claim in negligence for damages for personal injury suffered on 11 December 1987. The applicant submits that his claim is not for a personal injury and there were no grounds to deny his entitlement to common law damages. In substance, he submits that the Commonwealth's application should have been summarily dismissed on that ground, but instead I accepted the Commonwealth's submissions or characterisation of his claim 'without any questioning'. The applicant submits that he made a submission that personal injuries are irrelevant to his case and that the Commonwealth's application should be dismissed. He submits that I disregarded his submissions and accepted the Commonwealth's submissions.
4. The applicant submits that counsel for the Commonwealth and I agreed that the 'date of [his] personal injury needs to be changed to [a] year when the [Limitation Act 2005] is operative' because the Limitation Act 1935 was repealed before the applicant's injury on 11 December 1987. Based on exchanges between counsel for the Commonwealth and me during the Commonwealth's submissions the applicant submits 'His Honour believes their fabrications and lies, but disregards all that I say in my defence, unless it is verified by [counsel for the Commonwealth]'.
5. The applicant submits that he was not able to follow the Commonwealth's submissions and my exchanges with him because he has poor hearing and could not hear me. He submits he asked me to speak up and I 'occasionally raised [my] voice to audible level'.
6. The applicant submits, in effect, he was not permitted to make the submissions he wanted to make and was ordered to limit his submissions to the issues that I had canvassed with counsel for the Commonwealth. The applicant submits he was not able to make submissions on all the 'critical issues'. The complaints are largely repeated and augmented with citations from the transcript of the hearing in the applicant's reply submissions of 30 September 2024.
7. I infer from the nature of the applicant's submissions that the foundation for his application is that the manner in which the hearing was conducted on 10 September 2024 either: (1) demonstrates actual bias; or (2) gives rise to a reasonable apprehension of bias, in that by my words or conduct I demonstrated that I had prejudged the Commonwealth's application in favour of the Commonwealth and against the applicant. For the reasons that follow I do not accept there is any evidence of actual bias or of apprehended bias and, therefore, I do not recuse myself.
8. Insofar as actual bias is asserted, the question is not whether a decision-maker's mind is blank, but whether it is open to persuasion. The state of mind for actual bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71]-[72] (Gleeson CJ and Gummow J) and the authorities there cited. Prejudgment of that nature must be firmly established: Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 100 (Gaudron and McHugh JJ). The applicant has not identified any evidence or basis for concluding there has been actual prejudgment of the Commonwealth's application. Moreover, I do not consider that I have in any way prejudged the interlocutory application. I have not formed any view adverse to the applicant that would preclude me from deciding the interlocutory application with an open mind.
9. Insofar as a reasonable apprehension of bias is asserted, the governing principle is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The application of this principle has been expressed to logically involve: (1) identification of what the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) and the authorities there cited; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65 at [38] (Kiefel CJ and Gageler J).
10. I have reviewed the transcript of the hearing on 10 September 2024. It provides no support for any assertion of actual or apprehended bias founded on prejudgment. It does not support the applicant's complaints and does not identify any factor (prejudgment) that might lead me to resolve the application other than on its legal or factual merits. Further, and in any event, a fair-minded lay observer would not have any reasonable apprehension of prejudgment based on what was said and done during the hearing.
11. Regarding the first two complaints, there is nothing in the exchanges between counsel for the Commonwealth and me or the applicant and me that support the applicant's assertion that I had accepted the Commonwealth's submissions or disregarded the applicant's submissions on any contested issue. In particular, I had not indicated that I accepted the Commonwealth's characterisation of the applicant's cause of action, but expressed the preliminary view that it appeared consistent with what the applicant had asserted in the court documents that he had filed, but that I would confirm that with the applicant when he made his submissions. There was also no 'agreement' with counsel for the Commonwealth of the kind asserted or at all. My exchanges with counsel for the Commonwealth were directed to understanding and testing certain of the submissions the Commonwealth had made in support of its application. My exchanges with the applicant were directed to clarifying and understanding the cause of action he advanced in the proceeding and the grounds upon which he asserts that his claim is not for damages for personal injury and, otherwise, any reasons he wanted to advance as to why his common law cause of action had not accrued in December 1987 or September 1988. That I heard the Commonwealth's application without summarily dismissing it provides no ground to support an assertion of prejudgment in favour of the Commonwealth. I indicated that I understood that he submitted that his cause of action was not for personal injury, but I reserved my decision.
12. Regarding the third and fourth complaints, it is correct that the applicant sought to make submissions during the course of the Commonwealth's submissions and indicated, at least once, that he was having difficulty hearing me. Otherwise, I was not aware that he could not properly hear me or my exchanges with counsel for the Commonwealth. The applicant did not make me aware of that during the hearing. He had no evident difficulty hearing me when he made his submissions. I do not accept that the hearing proceeded in circumstances in which I was aware or the applicant had made me aware that he could not hear me or follow the proceedings. Nor do I accept that the applicant was not permitted to make submissions that were relevant to the application before the Court. If and to the extent the applicant was constrained or felt constrained, it was within the ambit of the Court's power to control its own proceeding and the object of s 37M of the Federal Court Act. The exchanges between counsel for the Commonwealth and me and the applicant and me were normal exchanges by which I sought to better understand the nature of each parties' submissions and contentions that were relevant to the application. In my view, the applicant was afforded a reasonable opportunity to make submissions and respond to the Commonwealth's submissions on the application.
13. My chambers also received documents entitled 'Urgent Interlocutory application' from the applicant dated 7 October 2024 and entitled 'Originating application To resume the suspended process to award my exemplary and Aggravated damages filed on 31/10/2023 as WAD266/2023' dated 23 October 2024. Those documents appear to make further submissions relating to the substance of the Commonwealth's application and the recusal application. Neither party was given leave to make further submissions on the substantive application or the recusal application. I have not taken these further documents into account when considering the substantive merits of the Commonwealth's application or the recusal application.

Principles applicable to summary dismissal

1. Section 31A of the Federal Court Act provides, relevantly: 31A Summary judgment … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. …
2. Rule 26.01(1) provides, relevantly, that a party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of prosecuting the proceeding; or (c) no reasonable cause of action is disclosed. The application must be accompanied by an affidavit stating the grounds of the application and the facts and circumstances relied on to support those grounds: r 26.01(2). Here, the Commonwealth filed, read and relied on the affidavit of Georgina Ellis affirmed 22 April 2024.
3. Rule 16.21(1) provides, relevantly, that a party may apply for an order that all or part of a pleading be struck out on the ground that the pleading contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice embarrassment or delay in the proceeding, or fails to disclose a reasonable cause of action.
4. The principles applicable to an application for summary dismissal under s 31A of the Federal Court Act or under r 26.01(1) of the Rules, alternatively to strike-out a statement of claim under r 16.21 of the Rules without leave to amend or re-plead were set out by Kenny J in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 at [7]-[18]. The correctness of her Honour's explanation of these principles was confirmed on appeal: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325 at [40]-[51], [93] (Perram, Dodds-Streeton and Griffiths JJ). These principles may be summarised as follows.
5. Rule 16.21 generally relates to the sufficiency of pleadings. The pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all the material facts necessary to establish that cause of action and the relief sought. A reasonable cause of action for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings upon which the applicant relies. The question on a strike-out application is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action; rather, the question is whether it would be open to the applicant upon the pleadings to prove the facts at trial which would constitute a cause of action.
6. There may be circumstances in which the failure of a pleading to disclose a reasonable cause of action may warrant striking out the action. However, the mere fact that the case appears weak is not of itself sufficient to justify striking out the action. Normally, the power to strike out an action should only be exercised in plain and obvious cases, where no reasonable amendment could cure the defect. If a substantial case is involved in the claim, the power to strike out the action should not be exercised. But, the power to strike out an action must be exercised with caution and should not be exercised unless it is obvious that there is no real question to be tried. Notwithstanding the need for caution, where in a strike-out application a point of law arises, which can be appropriately decided summarily, the judge is entitled to determine the point, thereby avoiding the need for a lengthy trial.
7. Under s 31A of the Federal Court Act and r 26.01 of the Rules, the Court may give judgment for a respondent against an applicant in relation to the whole or any part of a proceeding if the Court is satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceeding or that part of the proceeding. To have no reasonable prospects the proceeding need not be 'hopeless' or 'bound to fail'. In effect, no hard or fast rule can be laid down as to when summary judgment is available. The critical question is that set by s 31A; namely, whether the moving party has persuaded the Court that the opposing party has no reasonable prospect of success.
8. The High Court considered s 31A in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118. In that case, French CJ and Gummow J said: 25 Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 26 Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
9. Justices Hayne, Crennan, Kiefel and Bell although agreeing on the outcome explained their reasoning in slightly different terms as follows: 60 … The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of the decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
10. While there is a relationship between the operation of s 31A and r 26.01, on the one hand, and r 16.21 and other provisions of the Rules dealing with strike-outs, on the other, summary dismissal and strike-out are distinct. Evidence may disclose that an applicant has or may have a reasonable cause of action or reasonable prospects of success and, yet, the statement of claim or originating process may not disclose those matters. In such a case, the pleading may be struck-out but there would be no power to order summary judgment. However, the Court may infer from a failure to plead a reasonable cause of action after ample opportunity that none exists and, therefore, the applicant has no reasonable prospects of success.
11. To this summary I would add that the 'exercise of powers to summarily terminate proceedings must always be attended with caution', whatever may be the basis upon which that disposition is sought: Spencer at [24] (French CJ and Gummow J). It is not a power 'to be exercised lightly': Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ). There must be a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way': Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57], cited in Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [46], referred to in Spencer at [24] (French CJ and Gummow J).
12. In keeping with cautious exercise of the power, it is generally undesirable that limitation questions should be decided in interlocutory proceedings in advance of the hearing except in the clearest of cases. In general, insufficient is known of the damage sustained by the applicant and of the circumstances in which it was sustained to justify a confident answer to the question: Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 533 (Mason CJ, Dawson, Gaudron and McHugh JJ).
13. Section 37M of the Federal Court Act is also relevant. It provides that the purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That overarching purpose includes the following objectives:
14. the just determination of all proceedings before the Court;
15. the efficient use of the judicial and administrative resources available for the purposes of the Court;
16. the efficient disposal of the Court's overall caseload;
17. the disposal of all proceedings in a timely manner; and
18. the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. The civil practice and procedure provisions, which include s 31A and the Rules, must be interpreted and applied and any power conferred or duty imposed by the Federal Court Act or Rules must be exercised or carried out in the way that best promotes the overarching purpose. Thus, s 37M informs the circumstances in which the Court may be satisfied that a party has 'no reasonable prospects' of prosecuting or defending proceedings and (or) the exercise of the discretion to order judgment if so satisfied for the purposes of s 31A of the Federal Court Act and r 26.01 of the Rules.

Proceedings against the Commonwealth for tortious damages

1. It is well-established that the effect of certain provisions of the Constitution and Judiciary Act 1903 (Cth) is to deny the Crown in right of the Commonwealth immunity from liability in tort and, within certain limits, to place the Commonwealth and other litigants on the same footing: s 75(iii) of the Constitution; s 64 of the Judiciary Act; Commonwealth v Mewett [1997] HCA 29; 191 CLR 471 at 491-2 (Brennan CJ), 531 (Gaudron J), 545-552 (Gummow and Kirby JJ); Blunden v Commonwealth [2003] HCA 73; 218 CLR 330 at [35], [43] (Gleeson CJ, Gummow, Hayne and Heydon JJ, Callinan J agreeing), [99] (Kirby J). That policy of the law is also reflected in s 80 and s 79 of the Judiciary Act. The effect of these provisions of the Judiciary Act is that where the statute law in force in the State in which the Court is exercising federal jurisdiction makes provision for a limitation period within which to bring proceedings for a tort, that law is applicable as a modification of the common law of tort or as a procedural law 'picked up' and applied by the Court exercising federal jurisdiction: Blunden at [45]-[47] (Gleeson CJ, Gummow, Hayne and Heydon JJ, Callinan J agreeing), [97] (Kirby J); Mewett at 522, 525-526 (Gaudron J), 552-555 (Gummow and Kirby JJ).
2. Section 56 of the Judiciary Act confers jurisdiction on the High Court and the courts of the States and Territories to determine claims against the Commonwealth in tort. That jurisdiction is not directly conferred on the Federal Court. However, s 39B(1A)(c) of the Judiciary Act confers jurisdiction on the Federal Court 'in any matter … arising under any laws made by the Parliament…'. The concept of 'matter' extends to the justiciable controversy between the parties arsing out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction. Generally, a non-colourable assertion of a matter arsing under a law of the Parliament is enough to attract the federal jurisdiction of the Federal Court: Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 at [15]-[22]. The same logic and reasoning must apply to extend jurisdiction of the Federal Court to the entire matter even where federal jurisdiction is not conferred directly on the Federal Court as is the case with s 56 of the Judiciary Act. In any event, the Commonwealth accepts that the applicant has made a non-colourable assertion of a matter arising under the SRC Act and that is sufficient to attract the jurisdiction of this Court to the whole justiciable controversy between the parties.

Application of limitation periods in proceedings against the Commonwealth

1. Section 44(1) of the SRC Act provides that, subject to an exception that is not relevant, an action or other proceeding for damages does not lie against the Commonwealth in respect of an injury sustained by an employee in the course of his employment, being an injury in respect of which the Commonwealth, but for that section, would be liable for damages, whether that injury, loss or damage occurred before or after the commencement of the section. The section commenced on 1 December 1988. In Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297 a majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ, Dawson Toohey and McHugh JJ dissenting) found that s 44(1) was invalid in its application to a claim that had arisen before the commencement of s 44 and which had been instituted before the expiry of a relevant limitation period because the provision purported to effect the acquisition of property otherwise than on just terms in contravention of s 51(xxxi) of the Constitution. The correctness of Georgiadis was affirmed in Mewett in circumstances in which the relevant limitation period barred the remedy, but had not extinguished the right to claim tortious damages as of 1 December 1988: Mewett at 491 (Brennan CJ), 503-505 (Dawson J), 512-513 (Toohey J), 531 (Gaudron J), 532 (McHugh J), 534-552 (Gummow and Kirby JJ). The common law right of a Commonwealth employee to damages in tort was not affected by the provisions of the 1971 Compensation Act, which was repealed by the SRC Act, except to the extent that if common law damages were awarded it was necessary to make allowance for any compensation received under that Act: s 97, s 99 1971 Compensation Act.
2. This proceeding was commenced in the Western Australian District Registry of the Court. Therefore, the Court is exercising federal jurisdiction in the State of Western Australia.
3. On 15 November 2005 the Limitation Act 2005 (WA) came into operation as a statute of the State of Western Australia: s 2 of the Limitation Act 2005. The limitation periods provided for under that Act apply only to causes of action that accrue on or after 15 November 2005: s 4(1). Section 55(1) provides that a cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs: (a) the person becomes aware that he has sustained a not insignificant personal injury; or (b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury. The concept of 'aware' refers to a subjective state of mind that involves conscious knowing of facts or their significance. It does not refer to constructive knowledge: Mullaley v State of Western Australia [2020] FCA 13 at [32]-[37] (Colvin J) and the authorities there cited. If the cause of action accrued before 15 November 2005, the applicable limitation period is that which would have applied before 15 November 2005 whether or not that period had expired. If the Limitation Act 2005 applies, s 14(1) provides, relevantly, that an action for damages relating to personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued. In the case of damages for tort generally s 13(1) provides, relevantly, that an action on any cause of action cannot be commenced if six years have elapsed since the cause of action accrued.
4. Before 15 November 2005, the Limitation Act 1935 (WA) was in force in Western Australia. Section 38(1)(c)(vi) and s 38(3) provided, relevantly, that actions, suits or other proceedings for all actions founded on tort shall and may be commenced within six years after the cause of such actions, suits or other proceedings accrued. In the case of negligence and other torts where damages are a necessary element of the cause of action, the cause of action accrues, for the purposes of s 38(1)(c)(vi) of the Limitation Act 1935, at the time when damages are first suffered: e.g., Hawkins v Clayton [1988] HCA 15; 164 CLR 539 at 561 (Brennan J), 587-8 (Deane J), 599 (Gaudron J).
5. The time at which a cause of action for personal injury in tort accrued for the purposes of s 38(1)(c)(vi) of the Limitation Act 1935 may be, but need not be, the same as the time at which that cause of action accrued for the purposes of s 55 of the Limitation Act 2005. Where the cause of action accrued, for the purposes of s 55 of the Limitation Act 2005, after 15 November 2005, the Limitation Act 2005 applies to that cause of action even if it accrued before 15 November 2005 for the purposes of the Limitation Act 1935: s 4(1), s 6(1). An applicant is permitted to commence an action on a cause of action that accrued and expired for the purposes of s 38(1)(c)(vi) of the Limitation Act 1935 before 15 November 2005. Further, if satisfied that it is reasonable to do so, the Court may set aside a judgment given before 15 November 2005 on judgments or dismissal of causes of action made before 15 November 2005 on the ground that the cause of action was statute barred: s 91. The Court has a similar power relating to pre-15 November 2005 settlements agreements. Section 91and s 92 reflects the position that the Limitation Act 1935 barred the remedy not the right. The sections also may permit a pre-15 November 2005 judgment, dismissal or settlement agreement to be set aside in circumstances in which a cause of action for damages for personal injury accrued and expired before 15 November 2005 for the purposes of s 38(1)(c)(vi) of the Limitation Act 1935, but accrued after 15 November 2005 for the purposes s 55 of the Limitation Act 2005.
6. Further, s 38 of the Limitation Act 1935 does not operate to extinguish the cause of action, it operates to bar the remedy: Re Rule of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 at [36]-[39] (Vaughan J) and the authorities there cited. Therefore, the cause of action continues after expiry of the limitation period and it is necessary for the respondent to plead the statute of limitations as a defence to the action. The statute need not be pleaded and the defence can be waived. Accordingly, the action or statement of claim will not be struck-out as disclosing no reasonably arguable cause of action merely because the applicable limitation period has expired.
7. It follows that, where a cause of action is founded wholly or in part on events that took place before 15 November 2005, in the case of personal injuries, there are three potentially relevant circumstances relating to the time at which the cause of action accrued.
8. The cause of action may have accrued for the purposes of s 55 of the Limitation Act 2005 and s 38(1)(c)(vi) of the Limitation Act 1935 before 15 November 2005. In that case, s 38(1)(c)(vi) applies to the cause of action whether the limitation period expired before or after 15 November 2005.
9. The cause of action may have accrued for the purposes of s 38(1)(c)(vi) of the Limitation Act 1935 before 15 November 2005, but accrued after 15 November 2005 for the purposes of s 55 of the Limitation Act 2005. In that case, the Limitation Act 2005 applies to the cause of action and a proceeding may be commenced even if the limitation period under the Limitation Act 1935 expired before 15 November 2005.
10. The cause of action may have accrued for the purposes of s 38(1)(c)(vi) of the Limitation Act 1935 and s 55 of the Limitation Act 2005 after 15 November 2005. In that case, the Limitation Act 2005 applies to the cause of action.
11. If s 13 or s 14 of the Limitation Act 2005 applies to the cause of action, there are other potentially relevant provisions of the Limitation Act 2005 that affect the limitation period under that Act. The Court may extend the time in which an action can be commenced if satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the respondent: s 38 of the Limitation Act 2005. The Court may also extend the time in which an action for damages for personal injury can be commenced if satisfied that a person to whom the cause of action accrues was not aware of the physical cause of the injury, or not aware that it was attributable to the conduct of a person, or had been unable to establish that person's identity: s 39 of the Limitation Act 2005. The Court may extend the time in which an action is to be commenced up to 12 years from when the cause of action accrues for an applicant who suffers a mental disability at any time after a cause of action accrues to that person if satisfied that in the circumstances it was unreasonable for a guardian of the applicant not to commence the action within the limitation period: s 42 of the Limitation Act 2005. If s 38(1)(c)(vi) of the Limitation Act 1935 applies to the cause of action, there are no provisions that permit the Court to extend the period of time within which an action, suit or other proceedings were to have been commenced. However, the limitation period is extended in certain circumstances of latent injury and disability: s 38A, s 40 of the Limitation Act 1935.

Does the Federal Court have jurisdiction?

1. The first paragraph of the originating application asserts: This is my continuing action, since about 1992; to recover common law damages, or compensation for non economic loss; following my serious mental injury on 11/12/1987 and invalidity retirement on 01/09/1988. This is an entitlement that arises under common law, as confirmed by the provisions. of Part IV of SRC 1988 Act, for personal injuries.
2. The applicant's statement of claim asserts:
3. This document accompanies an originating application, seeking relief that includes a claim for recovery of damages, aggravated damages and malfeasance, in the sum of $10,000,000, for damages deliberately and systematically inflicted upon me, by my employer, from 25/12/1973 to 11/12/1987, resulting in my total mental disintegration. This damage was continued util the present and I seek an additional compensation of $10,000,000 for perpetuated deliberate and aggravated damages, implemented and prosecuted from 11/12/1987 until the present. The details of these damages are identified and explained in the attached originating application.
4. My right to recover damages for non economic loss from AFP was denied by AFP/Comcare, by concealing that this action lies against AFP, my employer and not Comcare; with a false claim that this right was removed in the SRC 1988 Act, as a means of reducing the ballooning compensation costs. Comcare is not my employer and therefore this action for damages does not lie with Comcare.
5. Comcare falsely claims that this right was replaced by the right to claim permanent impairment compensation under sections 24 and 27 instead.
6. The Comcare denial of my claim is based on a fabricated determination at T17 and a fabricated reviewable decision at T22, which can not be actioned under SRC 1988 or the AAT Act, as neither is produced under the authority of a Comcare Delegate. Similarly, these can not be actioned by any Court either. The primary decision maker must be a sworn Comcare Delegate and a sworn public servant, for such a decision to be actionable under those provisions.
7. The, decision of Justice Jackson, at paragraph 50 of Ascic v Comcare [2022] FCA 1245 confirms that the right to damages does exist and that the provisions for review of Comcare determinations is not the correct forum for pursuing the right to recover damages.
8. The right to recover damages is enshrined in Part IV of SRC 1988 Act, including section 4 definitions of: action for non economic loss, damages, sections 10 (recovery of damages) for non economic loss, sections 47(1) (a) and (b), 52, 123A, 124, 127(2) and 128.
9. I have been compelled to litigate this case through an irrelevant forum, as a means of AFP/Comcare concealing and disregarding all of the above provisions; through a fabricated primary decision, (Determination) to enable an unsupported case on permanent impairment compensation to replace the right to recover damages. A genuine Delegate would not ever have produced such a fabrication or initiated such a process.
10. The assertion regarding the judgment of Jackson J is incorrect. Justice Jackson made no such finding or confirmation. As already mentioned, his Honour merely observed if, despite the obvious difficulties that the applicant would face establishing any common law right to compensation in view of the statutes of limitation, the applicant has a common law claim, he was free to pursue that claim in an appropriate forum: Ascic v Comcare [2022] FCA 1245 at [49]-[50]. Further, none of the sections of the SRC Act to which the applicant refers make provision for any right to common law damages.
11. Section 4 merely defines the terms 'action for non-pecuniary loss' and 'damages' for the purposes of the Act. Section 10 addresses the circumstances in which damages are taken to have been recovered by an employee or for the benefit of a dependant of a deceased employee for the purposes of the Act. It makes no provision for the right to recover damages.
12. Part IV of the SRC Act is headed 'Liabilities arising apart from this Act'. It includes s 44 to which reference has been made which, as already mentioned, purports to exclude liability for common law damages rather than make provision for such claims to be made within the framework of the Act. Section 45 makes provision for an exception for non-economic loss if compensation is payable under s 24, s 25 or s 27 and the employee elects to institute an action against the Commonwealth before any amount of compensation is paid. Section 47 provides for Comcare to be notified if a claim for damages against the Commonwealth is made. Section 52 relates to circumstances in which compensation is payable under the SRC Act and a benefit under an industrial award in respect of the same injury. Section 123A provides that a reference in Pt X (transitional provisions) to an injury suffered before the commencement day is a reference to an injury, relevantly, within the meaning of the 1971 Compensation Act. Section 124 addresses the application of the SRC Act to and compensation payable under that Act for injuries suffered before the commencement day. Section 127(2) gives effect to determinations made or action taken under the 1971 Compensation Act in respect of liability of the Commonwealth to pay compensation as determinations in respect of the corresponding liability under the SRC Act.
13. On the facts asserted in the originating application and statement of claim, the applicant's contention that he has a right to common law damages under the provisions of the SRC Act is without foundation. However, that does not deprive this Court of federal jurisdiction. There is no suggestion that the applicant's claim is colourable in the sense that he has not genuinely sought to invoke the jurisdiction of this Court. Nor is that a reason for considering that his asserted cause of action for common law damages has no prospects of success. As already mentioned, s 44(1) is not valid insofar as it purports to exclude the Commonwealth's liability for common law damages for causes of action that accrued before 1 December 1988. Otherwise, the applicant has not asserted any facts from which a claim is made or could be made to the effect that a common law cause of action accrued after 1 December 1988 and the applicant has made an election to commence an action for damages against the Commonwealth.

Is a reasonably arguable cause of action disclosed?

1. In general, the expression 'cause of action' is used to describe a factual situation the existence of which entitles one person to obtain from a court a remedy against another person: Morgan v Banning (1999) 20 WAR 474 at 476, 484, citing with approval Letang v Cooper [1965] 1 QB 232 at 242-243 (per Diplock LJ). See, also, Fewin Pty Ltd v Prentice [2018] FCA 852 at [69]-[71].
2. The originating process contains a lengthy section setting out details of the applicant's claim in narrative form. It describes the applicant's employment history before and during his employment with the Commonwealth Police (later AFP). He asserts his employment with the Commonwealth commenced on 25 December 1973. He started in Canberra, before moving to Sydney, then back to the Australian Capital Territory before moving to Perth in Western Australia, it appears, during 1974. The applicant describes various incidents of alleged mistreatment by various police officers including an incident at the Perth Airport in August 1987. The last event appears to have resulted in him taking sick leave in early December 1987. He asserts that his last day of work was 11 December 1987 and the AFP referred him to the Commonwealth medical officer for assessment on 15 December 1987. He asserts that his 'mental injuries and damages were caused by [his] employer, Australian Federal Police from 1974; maliciously, deliberately, systematically, in increasing intensity and frequency, until this resulted in [his] total mental disintegration on [11 December 1987] and continued invalidity and inability to live a normal life worth living.' As already mentioned, he seeks damages of $10 million for that injury. The applicant asserts that he had 'invalidity retirement' on 1 September 1988. He asserts that he was paid compensation for injury and illness. He asserts that the payments were at inadequate levels and that he was mistreated in various ways from the time of his retirement. As already mentioned, he seeks 'additional compensation for damages, perpetrated on [him] from [11 December 1987] until [1 September 2023] in the sum of $10,000,000.00'.
3. The applicant also filed an affidavit in opposition to the Commonwealth's application affirmed 12 August 2024. It is a mixture of assertion, submission and statement of fact. It largely repeats parts of the applicant's originating process, statement of claim and submissions. It also includes details of the various proceedings in which the applicant has been involved and complaint regarding the manner in which he has been treated by the Commonwealth and Comcare. Although not formally read on the application, given that the applicant represents himself and it was referred to at times during the hearing, I take that affidavit as read without objection.
4. Taking into account that the applicant represents himself in the proceeding and the nature of the assertions and facts described in the documents he has filed, it is evident that he claims relief in the form of damages and aggravated or exemplary damages against the Commonwealth, as his employer, for an unidentified common law cause of action. The reference to 'malfeasance' is indicative of a tort. At the very least the facts asserted are indicative of relationship of employer and employee and breach of a duty the Commonwealth owed the applicant to take reasonable care to avoid foreseeable risks of personal injury (including mental injury) to him, in his workplace, from harassment, intimidation and victimisation by his superiors and co-workers. That breach of duty caused the applicant to suffer mental injury that has resulted in his inability to work as a police officer since 11 December 1987. The applicant also appears to contend that the manner in which he has been treated by the AFP (through Comcare) after he ceased working for the AFP is such that he is entitled to aggravated or exemplary damages.
5. Leaving to one side the potential difficulty with claiming aggravated or exemplary damages for conduct attributed or attributable to Comcare, the applicant has asserted sufficient facts in his originating process and statement of claim to disclose a reasonably arguable cause of action for damages for the common law tort of negligence. As already mentioned, s 38(1)(c)(vi) of the Limitation Act 1935 does not operate to extinguish the applicant's cause of action. Therefore, merely pleading facts that disclose a cause of action that accrued more than six years before the originating process was filed does not amount to a failure to disclose a reasonably arguable cause of action. Accordingly, the Commonwealth's interlocutory application insofar as it relies on r 16.21(1) and r 26.01(1)(c) should be dismissed.

Is the asserted cause of action clearly statute barred?

1. The obvious difficulty with the applicant's asserted cause of action is that a not insignificant injury (psychiatric harm of sufficient magnitude to render him unfit to continue his work as a police officer) must have been suffered no later than his asserted 'invalidity retirement' on 1 September 1988. It is difficult to see how there could be any reasonable prospect, on the asserted facts, of the applicant demonstrating that the first symptom, clinical sign or other manifestation of personal injury consistent with the applicant having sustained a not insignificant personal injury occurred later than 1 September 1988 and, in any event, less than six years before the proceeding was commenced on 18 October 2023.
2. As already mentioned, summary dismissals of proceedings on the basis of limitation defences are not ordered except in the clearest of cases because, generally, determination of the time at which a cause of action accrued is a question of fact. The Commonwealth has not adduced any admissible evidence of the time when the applicant became aware of the significance of his injury or when the first symptom, clinical sign or other manifestation of personal injury consistent with the applicant having sustained a not insignificant personal injury occurred. The Commonwealth relied upon certain statements of fact recorded in the reasons of the AAT in Ascic and Comcare (Compensation) [2019] AATA 2476. Although the applicant made no objection to the affidavit to which those reasons were exhibited or to the Commonwealth's reliance on them as evidence of the facts recorded in them, after a number of invitations, counsel for the Commonwealth was not able to identify any authority by which these statements were admissible or, otherwise, could be said to be of any probative value.
3. The relevant issues before the AAT were whether the applicant had suffered a permanent impairment and, if so, the time at which that impairment became permanent for the purposes of the SRC Act. The AAT surveyed the medical evidence before it. That evidence included reports of Professor German of 17 May 1988, in which he diagnosed the applicant as suffering from a paranoid personality disorder with a poor prognosis, and of Dr Yeap in which the applicant was diagnosed with depression and acute paranoid reaction to stress in employment since 1987 with no anticipated change to his condition. That evidence, amongst other evidence, resulted in the AAT finding that on the balance of probabilities the applicant had a permanent impairment within the meaning of s 4 of the SRC Act.
4. The AAT also considered a report of the Commonwealth medical officer dated 9 May 1988 that was said to have found that the applicant was unfit for continued employment and should be retired on the grounds of invalidity. After considering that report and other evidence, the AAT concluded that there was insufficient evidence to reach a conclusion about the date by which the applicant's impairment became permanent. However, the AAT concluded that on the balance of probabilities the impairment became permanent before 1 December 1988.
5. In the course of his submissions, the applicant accepted that he suffered a mental injury when he went on sick leave on 11 December 1987 and he was aware of that injury. However, he submits that his mental injury is not a personal injury and, as a consequence, neither the Limitation Act 2005 nor the Limitation Act 1935 has any application to his cause of action for common law damages. The precise manner in which the applicant contends that the distinction between mental injury and personal injury renders the Limitation Acts inapplicable is not clear. The applicant's submissions suggest that he may not have appreciated that damages are awarded as a remedy for a common law cause of action and that aggravated or exemplary damages would only be available upon demonstration of a common law cause of action. Further, that the applicant does not appreciate that mental injury is a form of personal injury for the purposes of the law of tort. It is now well-established that common law damages for negligence may be recovered for pure psychiatric injury (a recognisable psychiatric illness which is neither caused by nor related to a physical injury sustained by the person concerned): Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [192]-[196] (Gummow and Kirby JJ), [18]-[19] (Gleeson CJ, agreeing), [44] (Gaudron J, agreeing). As already mentioned, it is also well-established that a cause of action for damages in negligence is complete when the damage caused by the breach of duty is sustained: Hawkins v Clayton at 587 (Deane J).
6. The Limitation Act 2005 defines personal injury to include 'disease, impairment of a person's physical condition, and mental disability'. The term 'mental disability' is defined to mean in relation to a person 'a disability suffered by the person (including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia) an effect of which is that the person is unable to make reasonable judgments in respect of matters relating to the person or the person's property': s 3 Limitation Act 2005.
7. It follows that, whether or not meeting the definition of 'mental disability', a psychiatric illness falls within the ordinary meaning of personal injury for the purposes of the common law tort of negligence and for the purposes of the Limitation Act 2005. Further, irrespective of characterisation as personal injury or some other compensable injury, any cause of action for common law damages for the tort of negligence accrued when the applicant first suffered the injury. In the case of pure psychiatric injury there may be difficulties identifying when the injury is sustained, but such difficulties do not arise on the asserted cause of action in this case. While the applicant was making submissions and not giving evidence, on his own admission or concession, he suffered a non-trivial mental injury at the earliest on 11 December 1987 and at the latest 1 September 1988. In general, parties are bound by the manner in which they conduct their cases, including concessions made during submissions: e.g., Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71.
8. Having regard to the applicant's originating process, statement of claim, affidavit of 12 August 2024 and concessions made during his submissions, it is tolerably clear that he asserts that he suffered a not insignificant psychiatric injury no later than 1 September 1988 caused by a common law wrong (tort) committed by the Commonwealth as his employer. Further, on the asserted facts and concession made, he was aware of that injury and the first symptom, clinical sign or other manifestation of a not insignificant psychiatric injury (personal injury) occurred no later than 1 September 1988 for the purposes of s 55 of the Limitation Act 2005. Thus, on the asserted facts and concession made, the Commonwealth may plead a defence to the applicant's cause of action under s 38(1)(c)(vi) of the Limitation Act 1935 and that defence remains available after commencement of the Limitation Act 2005, by operation of s 6 of that Act.
9. However, s 40 of the Limitation Act 1935 provides: If any person entitled to any such action as is referred to in section 38(1) was at the time of the cause of action accrued within the age of 18 years or insane, then such person may commence the same within such time as is before limited after being of full age or sane as if that was the time at which the cause of action accrued.
10. The term 'insane' is not defined in the Limitation Act 1935, but may be regarded as equivalent to 'of unsound mind'. That is, persons who, by reason of mental illness, are incapable of managing their affairs in relation to the claim. The test is similar to that which applies to the appointment of a litigation representative under Div 9.6 of the Rules: see, e.g., Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 at [435]-[437] (McLure J).
11. The applicant's originating application contains assertions referring to his 'mental disintegration', being driven into a 'state of madness', losing his 'sense of reality' and 'lapsing out of and into reality desperately trying to hold a grip on reality'. The reasons of the AAT, upon which the Commonwealth relies, concluded that the applicant had a mental impairment that became permanent prior to 1 December 1988. That opinion was founded on medical evidence. Parts of the medical evidence are extracted in the Tribunal's reasons. These include the following:
12. The [Commonwealth] conceded that the Applicant suffers from an impairment as a result of the accepted conditions of depression and acute paranoid reaction to perceived stress in employment (Exhibit R2, paragraph [4.1]).
13. This was on the basis that the Applicant's impairment is well documented in the Applicant's medical records, and specifically in the reports of Professor German (psychiatrist), Dr C K Yeap (general practitioner) and Dr Arokiasamy (the Applicant's treating general practitioner). At the Tribunal hearing, Ms Slack referred the Tribunal to relevant parts of these reports.
14. In his report of 17 May 1988, Professor German stated (T8, pages 19-20): As a result of these consultations and my examination of him I came to the conclusion that he suffers from: 1 A paranoid personality disorder which he has always had, and which is characterised by suspicious and sensitive feelings in relationship to his perception of the society he lives in, and people's acceptance of him or otherwise. 2 Occasional intensifications of paranoid personality traits, to the extent of an acute paranoid reaction, brought about by perceived stress in his employment. As I have noted in my report of 26.2.88, he is an obsessional and perfectionistic man, who, given his paranoid personality, takes badly to the requirements of a tightly regulated and disciplined work environment, particularly when he feels he is not appreciated or being given care and attention. A layman might say he develops tantrums when thwarted, but unfortunately from a psychiatric point of view these tantrums are of a paranoid nature, backed up by intense anger, and characterised by behaviours and threats which in my view make him unsuitable to continue in the police force. 3 Also present during these paranoid reactions are symptoms of depression, although these are less intense and of less significance in terms of his capacity for continued employment. Thus, in my opinion, his disorder, particularly the paranoid elements of his disorder, arise from an interaction between his personality and the nature of his job, and are likely to continue to so arise in his work environment. … I believe the prognosis to be poor.
15. In a letter to Comcare dated 21 August 2011, Dr Yeap stated that (T12, page 31): He has depression and "acute paranoid reaction to perceived stress in employment" since 1987. I do not anticipate any change to his condition. … He still has the same underlying mental condition that precipitated his current condition in the first place.
16. At the hearing, Ms Slack also referred to the section of the Applicant's Comcare claim form completed by Dr Arokiasamy on 12 December 2016, where the doctor states his diagnosis of the Applicant's condition as "Depression and Acute Paranoid Reaction", and refers to the impairment having "stabilised". Dr Arokiasamy also answered "yes" to the question "Has active treatment of the condition been completed?" (T14, page 40).
17. When the Applicant was diagnosed by Professor German in 1988, his prognosis was "poor", and there is no compelling evidence before the Tribunal to suggest that the Applicant's condition improved; indeed he was still suffering from the condition in 2011 and also in 2016, as stated by Dr Yeap and by Dr Arokiasamy respectively, which indicates that the condition did not improve. Progress Medical Certificates also show that the Applicant was totally unfit for work between 31 March 2009 to 12 March 2016 (T26, page 83) which also tends to show that the Applicant continued to suffer from the condition. Thus, applying this medical evidence to the factors in s 24(2)(a) and (b) of the SRC Act, the Tribunal finds that the Applicant has been suffering from the impairment for approximately 30 years.
18. The Tribunal has limited information before it as to whether the Applicant has undertaken all reasonable rehabilitative treatment for the impairment (s 24(2)(b) of the SRC Act), although as stated above, Dr Arokiasamy answered "yes" in response to a question about whether active treatment of the condition had been completed. The Applicant gave evidence at the hearing that he was taking medication for a period until 1993, when he reduced the amount of medication he was taking, and that he subsequently stopped taking medication entirely in 2001. This tends to suggest that he was under medical supervision during this time, given that such medications are prescription only.
19. On balance, the Applicant's medical records show that as a result of his accepted conditions the Applicant's daily ability to function is impaired, including his ability to socialise, interact with others, and to work; that the consensus of medical opinion is that his "prognosis is poor" (T8); that there is unlikely to be any change in his condition (T12); and that since 1988 the Applicant has continuously been certified as being unfit for work (see T26, pages 78-86).
20. The Tribunal therefore finds that, on the balance of probabilities, the Applicant has a permanent impairment within the meaning of s 4 of the SRC Act.
21. These materials raise an issue concerning the applicant's capacity to manage his affairs in relation to his asserted common law cause of action by reason of psychiatric illness at the time that illness became manifest. In short, on the materials presently before the Court and having regard to the potential operation of s 40 of the Limitation Act 1935, I am not satisfied that the proceeding was clearly commenced after the limitation period under s 38(1)(c)(vi) of that Act had expired.

Should the proceeding be dismissed?

1. In substance, the Commonwealth contends that if the Court were to assume that the applicant could prove facts at trial that constitute a cause of action for common law damages in tort, there is no reasonable prospect of the applicant succeeding on that cause of action because this proceeding was not commenced within six years of that cause of action accruing (no later than 1 September 1988). Therefore, while the applicant's originating process and statement of claim may disclose a reasonably arguable cause of action, the applicant has no reasonable prospects of succeeding on that cause of action because the applicant has no reasonably arguable answer to the Commonwealth's limitation defence.
2. For the reasons already given, I do not accept the Commonwealth's submission to the effect that it has an 'iron clad' defence founded on s 38(1)(c)(vi) of the Limitation Act 1935. The applicant may be able to raise, by way of reply, reasonably arguable grounds that his cause of action was not barred, by operation of s 40 of the Limitation Act 1935, at the time the proceeding was commenced.
3. During the course of his oral submissions the applicant asserted that he had made enquiries of the Commonwealth (AFP) or Comcare about making a claim for common law damages and was informed that he had no right to make such a claim. For the reasons already mentioned, the SRC Act does not operate to exclude common law claims for injuries suffered before 1 December 1988. While the submission was made in passing, it alludes to conduct that could provide a basis for asserting that the Commonwealth is precluded from relying on an available limitation defence.
4. Nonetheless, having regard to s 31A(3) and s 37M of the Federal Court Act and recognising that s 31A represents a departure from earlier provisions and rules concerning summary judgment, the relevant question here may be framed not so much as whether there is an issue that could arguably go to trial, but whether the issue should be permitted to go to trial: Wang v Anying Group Pty Ltd [2009] FCA 1500 at [43] (Foster J). That involves a practical judgment, by reference to the stage the proceeding has reached, as to whether the applicant has reasonable prospects of successfully prosecuting the proceeding: Spencer at [25].
5. In the absence of a defence and a reply and any evidence concerning diagnosis, prognosis and progression of the applicant's asserted (and evidently accepted) psychiatric illness between December 1987 (when the applicant ceased to work due to psychiatric illness) and October 2023 (when this proceeding was commenced), I am not satisfied, at this stage, that the applicant has no reasonable prospect of prosecuting the proceeding. I have reached this view taking into account that summary dismissal is to be approached with caution and the general undesirability of resolving limitation defences in interlocutory proceedings except in the clearest of cases.

Disposition

1. In my view, the Commonwealth's application is premature, but not without merit. Therefore, while I will order that the application be dismissed, the Commonwealth may renew the application at the close of pleadings if, at that time, the pleadings and (or) evidence demonstrate(s) that the applicant has no reasonable prospect of prosecuting the proceeding.
2. I am also of the view that the proceeding has factual and legal complexity that would challenge an experienced legal practitioner let alone a person without legal training suffering from an ongoing psychiatric illness. Having regard to these matters, I will refer the applicant to a lawyer for legal assistance under Div 4.2 of the Rules. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.