Blunden v Commonwealth of Australia

Federal Court of Australia|2000-11-07|Before: Kenny JJ, Crispin J, McHugh J, Miles J

the applicant's submissions in this court 38 The applicant's draft notice of appeal proposed a number of grounds. It is, however, unnecessary to set them out. It suffices to say that, in written submissions addressing these grounds, the applicant contended: In deciding whether it is just and reasonable to extend time, his Honour was required to take into account the six circumstances set out in s 36(3) [of the Limitation Act]. His Honour focused on the prejudice issue to the exclusion of other factors. It was for Mr Blunden to establish that it was "just and reasonable" to extend the period within which he might bring his action. Cf Podobnik and Lorenzo. In so deciding, a court is required by s 36(3) to have regard to "all the circumstances of the case", including each of the matters listed in pars (a) to (f) of s 36(3) of the Limitation Act. Although not an exhaustive statement of the matters to be considered, the court must have regard to these listed matters. This is made plain by the terms of s 36(3) itself: cf Commonwealth of Australia v Williams [1999] FCA 703 at [34-35]. 39 The terms of s 36(3) show that an application under s 36(2) will not necessarily fail because there is proof that the defendant will suffer some prejudice if the application is granted. Prejudice to the defendant is but one of the matters to be taken into account by the court. In considering s 60E(1) of the Limitation Act 1969 (NSW), which has a similar structure to s 36(3) of the Limitation Act (ACT), Mason P in Sydney City Council v Zegarac (1998) 43 NSWLR 195 ("Zegarac") said at 198: Nothing in the structure of s 60E(1) suggests that mere proof of prejudice must lead to the rejection of the application. On the contrary, prejudice is but one of a list of factors to be taken into account. This is further underscored by par (b)'s focus of the court's attention on the extent of the prejudice to the defendant. It follows that the exercise of the discretion may result in a trial in which the defendant is placed at some disadvantage in consequence of the plaintiff's tardiness. (Emphasis original) After discussing the judgments of the High Court in Brisbane South, the President continued at 199: I would hold that proof of actual prejudice, even 'significant' prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account, including each factor mentioned in s 60E(1) to the extent that it is relevant to the circumstances of the case. If this is 'individualised justice', it was what parliament intended. Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus, as Toohey J and Gummow J emphasise in Brisbane South. These observations are equally applicable to s 36(3) of the Limitation Act. 40 Did the primary judge err in failing to consider the matters listed in s 36(3) of the Limitation Act as he was required to do? Before his Honour, the applicant conceded that pars 36(3)(c) and (d) were not relevant to the application. It was, of course, for his Honour to determine how much weight was to be given to any particular factor. It would not matter that an appellate court differed from him in his assessment: see Commonwealth of Australia v Williams at [26], citing Gronow v Gronow (1981) 144 CLR 513. This said, the fact remains that the primary judge did not, in the course of his judgment, discuss any of the matters listed in s 36(3) other than prejudice to the respondent. It is true, as the respondent's counsel submitted, that his Honour set out, in summary form, the applicant's counsel's submissions concerning the matters which are the subject of pars (a), (e) and (f). In this connection, his Honour wrote: Mr Bartley [the applicant's counsel] also submitted that there was a compelling case for the exercise of any discretion in his client's favour. He maintained that the plaintiff's life had been effectively ruined as a result of the psychological damage which he had suffered as a result of the defendant's negligence. Yet he had not known that the saga of the misfortune and sadness that he had experienced had been caused by his fateful experience on the Melbourne until he became aware of Dr White's opinion to that effect in late 1996. Thereafter, he moved reasonably quickly to obtain legal advice and assert his rights. Accordingly, this is a case in which the delay occurred without any significant fault on the plaintiff's part and if an extension of time is not granted he will forever lose his opportunity to maintain a claim against the defendant for damages to compensate him for all that he has suffered.

No more was said by his Honour of these matters, however. Immediately following this passage, his Honour turned to the matters which are the subject of par (b). His Honour did not indicate whether he accepted or rejected the applicant's submissions, in whole or in part. 41 A similar situation was considered by the Full Court in Noja, a case concerning a challenge to an exercise of discretion under s 39 of the Limitation Ordinance 1985 (ACT). Section 39 made provision for the extension by a court of the limitation period in relation to an action on a cause of action arising under the Compensation (Fatal Injuries) Act 1968 (ACT). Subsection 39(5) (which was held applicable) set out the matters to which the Court was to have regard in determining whether to grant the extension. The structure of this provision was substantially the same as s 36(3) of the Limitation Act. The Court said, at 109: It remains to consider whether the exercise by the primary judge of the discretion vested in him by s 39 of the Limitation Ordinance miscarried. A significant matter which supports an affirmative answer being given to that question is that the primary judge, as has already been mentioned, referred to subs (3) of s 39 as prescribing the matters to which regard was to be had in exercising the discretion whereas the relevant subsection was subs (5) of that section. As appears from the text as set out earlier in these reasons, the two subsections deal with different situations. Subsection (3) deals with the situation where, at the date of his death, the deceased, by reason of the expiry before that date of the relevant limitation period, could not have maintained an action in respect of the wrongful act, neglect or default that caused his death. On the other hand, subs (5) is concerned with the situation where an extension of time is sought by the personal representative of the deceased person - the only person entitled to make such application - of the limitation period prescribed in respect of the new right created by s 7 of the Compensation (Fatal Injuries) Act. In the course of his judgment, the primary judge did refer to the matters set out in pars (a) and (d) of s 39(5), though his did so without express reference to those paragraphs. The matters so taken into account were the reasons for, and the length of, the delay on the part of the appellant, as the personal representative of the deceased, in instituting the proceedings and the extent to which an extension of the limitation period would, or would be likely to, result in prejudice to the respondents. There is, however, no reference in the judgment to the matters set out in pars (b), (c), (e) and (f) of that subsection and, as those matters were clearly relevant to the exercise of the discretion, the only conclusion open is that his Honour failed to take them into account. In the present case, unlike Noja, the primary judge did not mistake the relevant provision, but he did fail to discuss anything but the matter mentioned in par (b) of s 36(3) of the Limitation Act. In the absence of any reference to the matters set out in s 36(3)(a), (e) and (f), we arrive at the same conclusion reached in Noja, namely, that his Honour failed to take those matters into account in refusing the application before him. 42 In this case, both parties relied on Brisbane South. The case does not, however, determine the outcome of the appeal. The matter upon which the majority agreed in that case was that the Queensland Court of Appeal had erred in holding that "the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period": see 186 CLR 541 at 554-5 per McHugh J and 548-9 per Toohey and Gummow JJ. This was not at issue on this appeal: see also Zegarac at 200 per Mason P. There may be, as Mason P noted in Zegarac at197-199, important differences between the joint judgment of Toohey and Gummow JJ in that case and the judgment of McHugh J with whom Dawson J agreed. We are not required in this case to consider these differences, if any. We are concerned only with an error that has arisen in consequence of a departure from the express terms of s 36(3). 43 Having regard to this and the nature of the application before the primary judge, it seems to us that, in the circumstances of the case, we should grant leave to appeal and allow the appeal.

why the court declined to hear a new argument 44 At the commencement of the hearing of this appeal, counsel for the applicant informed the Court that he was seeking to raise a new argument. This, so counsel said, involved "a matter arising under the Constitution or involving its interpretation". He sought an adjournment in order that notice might be given in compliance with s 78B of the Judiciary Act 1903 (Cth). The gist of the new argument was, as we understood it, that, having regard to John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 (delivered after the primary judge's decision), the proper law to be applied in resolving the limitation question was the Limitation Act 1969 (NSW) and not the Limitation Act 1985 (ACT). The applicant's counsel referred to certain remarks of Gaudron J in Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 527, to Eastman v R (2000) 172 ALR 39 and to Parker v Commonwealth (1965) 112 CLR 295. Counsel submitted that there was "a matter arising under the Constitution or involving its interpretation" because the Commonwealth was being sued and a question arose as to whether there was any limitation of action in respect of a tort allegedly committed by the Commonwealth on the high seas. 45 Bearing in mind that no such submission had been made to the primary judge, the applicant sought leave to raise the argument in this Court. Save in exceptional cases, a party is bound by the conduct of his case at first instance. In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, the High Court said: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Metwally did not involve an appeal. The principle was, however, reiterated in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, which was an appeal by way of re-hearing. Mason P, with whom Gleeson CJ and Priestley JA agreed, said at 645-6: A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court 'may find it expedient and in the interests of justice to entertain the point': Water Board v Moustakas (1988) 180 CLR 491 at 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47. The rule is not an absolute one, as evidenced by this Court's decision in Della Patrona v Director of Public Prosecutions (Cth) [No 1] (Court of Appeal, 1 September 1995, unreported). Unlike the present case, the respondent in Della Patrona failed to raise the 'procedural point' until long after the appellant had been given leave to debate it. This was a very important factor in the Court's consideration. In the present case, it would not, so it seems to us, be "in the interests of justice" to have permitted Mr Blunden to repudiate on appeal the position which he expressly adopted before the primary judge. The applicant, by his counsel, unequivocally chose to make his application for an extension of time under the Territory's legislation. The respondent answered the applicant's case below on that basis, adducing evidence on the basis the Territory's Limitation Act applied. Both parties invited the primary judge to treat the extension of time application as made under s 36(3) of the Territory's legislation. In this circumstance, we declined to permit the applicant to raise on appeal a new argument to the effect that the New South Wales Act, not the Territory Act, governed the limitation question. I certify that the preceding paragraphs numbered 22 to 45 are a true copy of the Reasons for Judgment herein of the Honourable Justices Katz and Kenny.

Counsel for the Applicant: Mr G Little with Mrs E Techera

Solicitor for the Applicant: Gary Robb & Associates

Solicitor for the Respondent: Australian Government Solicitor

Limitation Ordinance 1985(ACT)

Compensation (Fatal Injuries) Act 1968(ACT)

5 As the transcript shows, the application before Crispin J was contested essentially on the issue of whether it was within the terms of s 36(1) just and reasonable to grant the extension notwithstanding the prejudice caused to the respondent by the delay. In his reasons for judgment, and immediately after referring to the detail of the provisions of s 36(3), his Honour referred to the observations of McHugh J in Brisbane South at 555, which explain the "rationales for the existence of limitation periods" in terms of the inevitable prejudice to a defendant caused by extensive delay on the part of the plaintiff in commencing an action. Hence the judgment, like the argument of counsel, concentrated on that aspect. 6 Nevertheless the statute required his Honour to take into account all the circumstances of the case, including the six mandatory categories of circumstances specified in s 36(3). Of those six categories, category (b), prejudice to the defendant, was only one. The respondent agreed before his Honour that categories (c) and (d) were irrelevant, that is, on the evidence not part of the relevant circumstances of the case. On that basis his Honour was entitled to ignore them. Further, it was not suggested either before his Honour or in the appeal that there were any relevant circumstances of the case beyond those in the three remaining categories, to which his Honour was bound to have regard. 7 There is no statutory guidance as to what relative weight is to be given to any one or more of the specified categories, either amongst themselves, or in the context of other relevant circumstances which fall outside the specified categories. There is firm authority that it is not a matter of "weighing up" the prejudice which would be caused to a defendant by granting the extension against the prejudice which would be caused to a plaintiff by refusing the extension (Brisbane South at 549-550, Zegarac at 199). The statutory categories can hardly be "weighed" each against the other since they involve concepts of differing natures. Curiously, the legislation does not include prejudice to a plaintiff within the specified categories, yet it is difficult to see that it may not be regarded as part of all circumstances of the case. 8 In concentrating on the ultimate issue of whether it was just and reasonable to extend the period in the light of the prejudice to the respondent caused by the extensive delay, his Honour did not say anything express to make it clear that he had not overlooked the other specified categories. However, on a reading of the whole of his Honour's reasons, it appears to me that he did have regard to them. The fact that he did not say so is not any more decisive than the fact that he did not expressly say that he had had regard to all the circumstances. His Honour did not for that matter say that he had had regard to all the evidence, or to the affidavit material that was relied upon, or to the submissions of counsel. Nor was he required to say so: see State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) [1999] HCA 3 at [90]; Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386. The omission to give express, precise and discrete consideration to each of the specified criteria has to be approached not only in the light of how the case was conducted by counsel, but also in the light of the absence of complaint that his Honour failed to give reasons at all or gave reasons which indicated that he applied wrong or irrelevant criteria: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 260-261. 9 On the matter of the length of the delay on the part of the applicant, it is sufficient to refer to [10] in which his Honour said: "By the time the present proceedings were commenced more than thirty-four years had elapsed since the tragic incident which the plaintiff claims precipitated the post traumatic stress disorder and the other psychological conditions from which he continues to suffer." 10 On the associated matters of the reasons for the delay and extent to which the applicant acted promptly and reasonably once he knew that the conduct of the respondent to which his injury was attributable might be capable at the time of giving rise to an action for damages, his Honour said: "[9] … whilst an applicant may have an apparently good claim and a good explanation for not pursuing it earlier those facts will not, of themselves, justify the exercise of the discretion in his or her favour. [13]… he had not known that the saga of the misfortune and sadness that he had experienced had been caused by his fateful experience on the Melbourne until he became aware of Dr White's opinion to that effect in late 1996. Thereafter, he moved reasonably quickly to obtain legal advice and assert his rights. Accordingly, this is a case in which the delay occurred without any significant fault on the plaintiff's part …" 11 It is not quite clear whether the latter extract is a finding or a statement of the submissions put by counsel. However, the evidence that the applicant did not know about the causal connection between the events on HMAS Melbourne and his subsequent psychological condition until late 1996 was not contradicted. On that basis his Honour was entitled, if not bound, to conclude that the applicant moved reasonably quickly to obtain legal advice once he was aware of his possible rights and that the delay was not attributable to any significant fault on his part. In the context of the judgment as a whole, it would be unrealistic to approach the appeal on any basis other than that his Honour so found. 12 On the steps taken by the applicant to obtain medical, legal or other expert advice and the nature of such advice, Crispin J summarised the position at the beginning of his reasons when he said at [4]: "Shortly after the collision the plaintiff began to have nightmares about what had occurred. He began to drink heavily and had difficulty coping with his duties. He was discharged from the navy on 20 October 1967 but continued to drink heavily. He also experienced difficulties in relation to his marriage and other relationships and found it difficult to maintain employment. He first had counselling in about 1993 from the Vietnam Veterans Counselling Service and received psychiatric treatment in about June 1995 though he said that even at that stage he did not know what was wrong with him. On 22 May 1996 he was referred to Dr Brian White, a psychiatrist, who diagnosed his problem and expressed the opinion that it was largely brought on by his experience with the sinking of the Voyager. He consulted his solicitors on 25 January 1997." 13 Later in the reasons his Honour, over some three or four pages, discussed what he acknowledged to be a "few references" to the medical evidence, nearly all of those references being to steps taken by the applicant prior to the issue of the writ to seek medical advice for the condition on which he sued. 14 It was not contended for the applicant on the application for leave, nor could it be, that his Honour should have discussed the voluminous medical evidence at greater length. Nor was it contended that his Honour misrepresented or misunderstood the effect of the evidence about the steps taken to obtain medical advice or the nature of it. His Honour did omit to say whether or not the applicant received legal advice and what the nature of the legal advice was. His Honour stated that the first consultation with solicitors was on 25 January 1997, although according to the affidavit evidence it was on 25 February 1997. Further, according to the affidavit evidence, counsel was briefed on 27 February 1997 and inquiries were made over a period of a year or more. Counsel's final opinion was received on 14 April 1998 and the writ was issued on 14 May 1998. Again it would be unrealistic to approach the case other than on the basis that his Honour found that the applicant received legal advice but that it was not until after some time in early 1998 that the applicant was advised that it would be reasonable for him to sue the respondent.

nature of the proceeding in this court 27 In Paramasivam v Flynn (1998) 90 FCR 489 at 493, a Full Court stated that: An order granting an extension of time to sue after the expiry of the limitation period is an interlocutory order (whether or not it is also characterised as an order made on a matter of practice and procedure). An appeal against an interlocutory order may not be brought without leave of the court: Federal Court of Australia Act 1976 (Cth), s 24(1A). An order refusing an application to extend time to sue after the expiry of the limitation period may or may not be regarded as interlocutory since it may or may not finally determine the rights of the parties in respect of the subject matter of the action. It is possible that the state of the pleadings and of the circumstances of a particular case leaves open the question whether the defence of expiry of the limitation period will succeed at the trial. In the present case no reply was filed on behalf of the appellant to join issue with the defence of the expiry of the limitation period. Instead, his response was to bring the application for extension of time, seeking leave to be granted retrospectively (nunc pro tunc) to the date of the issue of the writ. That response was in turn met by the respondent bringing the application for summary judgment. In the light of the approach taken by the parties, and the order of his Honour that there be summary judgment for the defendant, we conclude that the decisions appealed against were final in nature and that leave to appeal is unnecessary. 28 In this case, although the applicant has filed no reply and has brought an application for an extension of time up to the date of issue of the originating application, the respondent has made no application for summary judgment. The parties have argued the matter before us upon the basis that the primary judge's decision was interlocutory and that leave to appeal was necessary. This approach is consistent with the authorities in this Court: see, e.g., Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95 ("Noja") at 96 and Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701 ("Lorenzo"). Leave will be granted where the challenged judgment is seen, in all the circumstances, to be "attended with sufficient doubt" to warrant its reconsideration and, if wrong and leave refused, to work substantial injustice: see S & B Pty Ltd v Podobnik (1994) 53 FCR 380 ("Podobnik") at 382; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Niemann v Electronic Industries Ltd [1978] VR 431.

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Legislation Cited (6)

Cases Cited (19)

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