Supreme Court of the ACT|2014-06-02|Before: Chief Justice JJ, Mandie J

Blunden v Commonwealth Of Australia [2014] ACTSC 123 (2 June 2014)

BARRY THOMAS BLUNDEN v COMMONWEALTH OF AUSTRALIA

[2014] ACTSC 123 (2 June 2014)

Court Procedures Rules 2006 (ACT), rr 75, 76, 1304, 1308

Supreme Court Rules 1937 (ACT), Div 2.3, rr 21, 31

Chief Justice JJ Spigelman AC, "Measuring Court Performance" (Speech delivered at the Annual Conference of the Australian Institute of Judicial Administration, Adelaide, 16 September 2006)

J D Heydon, Cross on Evidence (Butterworths: Sydney, 1996) Vol VI (Service 156) 3029; [3075]

Ch 3 of Peter Handford, Mullany and Handford's Tort Liability for Psychiatric Damage (2006, 2nd ed, Thomson Law Book Co: Sydney).

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders V (2013, 5th ed, American Psychiatric Association: Arlington, Virginia USA) 271-2

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Blunden v Commonwealth (2007) 224 FLR 257

Blunden v Commonwealth [2000] FCA 1581

Blunden v Commonwealth [2006] ACTSC 58

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1

Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189

Caruso v Jafer (Unreported, Supreme Court of Victoria, Mandie J, 18 June 1998)

Central Trust Co v Rafuse [1986] 2 SCR 147

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159

Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

Commonwealth v Dinnison [1995] FCA 1176; (1995) 56 FCR 389

Commonwealth v Diston [2003] NSWCCA 51

Commonwealth v Smith [2005] NSWCA 478

D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582, Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139

Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562

Equuscorp Pty Ltd (Formerly Equus Financial Services Ltd) v Lah [2009] ACTSC 113

Global Realty Developments Corp (a Delaware Company) v Dominion Wines Ltd (in liq) [2005] VSC 474; (2006) 225 ALR 361

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423

Henry v Commonwealth [2012] ACTSC 94; (2012) 264 FLR 381

Hinz v Berry [1970] 2 QB 40

Jaensch v Coffey [1984] HCA 52; [1984] 155 CLR 549

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383

Owen v Residual Health Management Unit [2000] NZCA 163; [2000] 3 NZLR 475

Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] VR 27

Singles v Mander Forklift Pty Ltd (No 2) [2013] ACTSC 150

Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77

Stocks v Retirement Benefits Fund Board (2007) ANZ Con R 254

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2007] VSCA 75

Tusyn v State of Tasmania (No 2) (2008) 18 Tas R 313

Tyler v Custom Credit Corporation Ltd [2000] QCA 178

Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465

1. The Plaintiff's application to re-instate the proceedings under r 76 of the Court Procedures Rules 2006 (ACT) be dismissed.

1. On 10 February 1964, Barry Thomas Blunden, the plaintiff, was a sailor stationed on the aircraft carrier, HMAS Melbourne, for his first sea posting. On that day he was on the "Goofer's Deck", a deck next to the funnel half of the bridge, and watched when the ship on which he was stationed collided with the HMAS Voyager.

2. He says he subsequently saw the HMAS Voyager break in two and injured survivors brought on board. He later discovered that, of the eighty-four people killed, seventeen had been young men with whom he had enlisted some months earlier and had come to know personally.

3. As a result of what Mr Blunden says was the negligence of the Commonwealth, he claims to have suffered injuries of a psychological nature flowing from this experience and, on 14 May 1998, he commenced proceedings against the Commonwealth, the defendant, for damages to compensate him for the injuries he says he suffered.

4. The proceedings have had a long and convoluted history since then, including two appearances in the High Court. It will be necessary to refer to this below.

6. By virtue of r 75 of the Court Procedures Rules 2006 (ACT) (the Rules), these proceedings have been taken to be dismissed on a date to which I will later turn.

7. By application in proceedings dated 22 March 2013, Mr Blunden sought to have the proceedings re-instated under r 76 of the Rules. He supported the application by an affidavit made by his solicitor.

8. The application is opposed by the Commonwealth, which has filed an affidavit in response to which has been annexed extensive material. Mr Blunden's lawyer has filed a short affidavit in reply.

9. It is this application I am required to consider. First, however, I describe the nature of the substantive proceedings themselves.

10. Mr Blunden alleges in his Statement of Claim that the Commonwealth was negligent in that it failed to

avoid the collision between the two vessels;

offer him any effective post-traumatic counselling or medical treatment; and

warn him that he may develop a mental condition as a result of him having witnessed the collision and its consequences.

11. He claimed that the injuries he suffered and for which he sought damages were:

(a) admitted a duty of care to avoid collision, but denied a duty of care to Mr Blunden to provide effective post-traumatic counselling;

(b) pleaded that Mr Blunden's action was statute barred by reason of the Limitation Act 1985 (ACT);

(d) pleaded that the injuries and damage suffered by Mr Blunden due to excessive consumption of alcohol are too remote to provide a basis for the recovery of damages.

13. An important question to be decided in this application is whether the proceedings are statute-barred. The two positions are starkly opposed.

14. The Commonwealth says that any cause of action arose on 10 February 1964 which meant that the limitation period would have barred the proceedings from 10 February 1970 unless an extension of time was granted. No extension of time has been granted.

15. Mr Blunden says that his cause of action arose when his psychiatric condition was diagnosed by Dr Brian White on 22 May 1996, making the commencement of proceedings on 14 May 1998 within time.

16. As noted above (at [6]), these proceedings have been taken to be dismissed. A question arose as to when that happened.

17. Rule 75, under which the deemed dismissal occurred, is in the following terms:

75 When proceeding taken to be dismissed

(1) A proceeding is taken to be dismissed in relation to a defendant if -

(a) at the end of 1 year after the day the originating process is issued, an affidavit of service of the process on the defendant has not been filed in the court; or

(b) at the end of 1 year after the day the originating process is served on the defendant -

(i) a notice of intention to respond or defence has not been filed in the court by the defendant; and

(ii) judgment has not been entered in relation to the defendant; and

(iii) the proceeding has not otherwise been disposed of in relation to the defendant.

(2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.

(3) For subrule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the proceeding.

Note See approved form 2.84 (Notice of intention to proceed) AF2008-3.

(4) A proceeding is taken to be dismissed under subrule (1) or (2) on the day after the day the relevant 1-year period mentioned in the subrule ends.

Example

There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before 1 July 2007, the proceeding is taken to be dismissed on 2 July 2007.

18. The question arises as to when that deemed dismissal occurred.

19. In Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594, McPherson SPJ, with whom Ryan and Dowsett JJ agreed, said of a rule in Queensland, that required notice if three years had lapsed since "the last proceeding" was taken, that

... to constitute a 'proceeding' the act or activity must have the characteristic of carrying a cause or action forward ...

It need not be a step taken or act done in a court or its registry ...

I am, however, unable to accept that acts done in the recesses of a solicitor's office partake of the character of a proceeding simply because they may, from the standpoint of the party for whom that solicitor is acting, be supposed to carry the action forward. That is particularly so where the act in question has, so far as the other party or the court is aware, no readily discernible impact on the progress of the action. Time and effort expended on preparing an affidavit of documents achieves nothing if the affidavit is never delivered. Taking instructions from the client or proofs from witnesses are necessary activities if the action is to be brought to trial. None of them can however fairly be described as a 'proceeding' in the cause ...

20. Subrule 75(2) of the Rules is the relevant rule. An inspection of the file and the affidavits show that, on 2 October 2007, the Court of Appeal delivered its decision in Blunden v Commonwealth (2007) 224 FLR 257. Before that, no document had been filed since October 2005 and, on 19 June 2006, a copy of the Notice of Appeal to the Court of Appeal was placed on the file.

21. It is not clear that the decision of the Court of Appeal is a step in the proceedings. The decision will, of course, carry the action forward in the sense of resolving an issue that, until resolved, prevented further progress of the matter.

22. While the decision is not a step taken by a party, I am prepared in the circumstances, and in the absence of anything else in the court file or in the evidence, to say that the last step in the proceedings occurred on 2 October 2007.

23. Under r 75, then, the proceedings are deemed to be dismissed on 2 October 2008 unless a party took a step in proceedings in the preceding year.

24. In fact, the step in proceedings next after the delivery of the Court of Appeal decision was the filing by Mr Blunden of a Notice of Intention to Proceed (Form 2.84) purportedly under r 75(3) on 31 October 2008, by which time the proceedings had been taken to have been dismissed.

25. There were subsequent documents filed but no application for re-instatement of the proceedings until this application.

26. I am prepared to find that, on 2 October 2008, the proceedings were taken to be dismissed. I turn then to the application for re-instatement of the proceedings under r 76.

27. The regime for re-instatement of proceedings, as noted above (at [7]), is contained in r 76 of the Rules, which is in the following terms:

76 Reinstating dismissed proceeding

(1) A person whose proceeding has been dismissed under rule 75 may apply to the court to re-instate the proceeding.

(2) The court may re-instate the proceeding if it is in the interests of justice to re-instate the proceeding.

(3) A proceeding that has been dismissed under rule 75 (2) is re-instated if, before the end of 1 year after the day the proceeding is dismissed, a party to the proceeding files a document in the proceeding.

(4) The party filing the document must serve a copy of the document on each other active party to the proceeding not later than 3 days after the day the document is filed.

(5) For any time limit (including a limitation period), a proceeding that is re-instated is taken to have started on the day the originating process for the proceeding was filed in the court and is taken never to have been dismissed.

28. A detailed consideration of the law relating to applications under r 76 was undertaken by Buchanan J in Equuscorp Pty Ltd (Formerly Equus Financial Services Ltd) v Lah [2009] ACTSC 113 (Equuscorp).

29. His Honour set out at [27] the aim of r 75, namely to encourage and require the timely and efficient management of proceedings. In Rumble v GPT Re Ltd (2012) 6 ACTLR 257 at 262; [21], Master Harper set out, however, his "suspicion" that the principal motivation was to establish a mechanism for removal of dormant proceedings from the court files, primarily for statistical purposes.

30. So far as I can recall from the lengthy period of drafting the Rules, the principal motivation was to simplify the rather cumbersome process in Div 2.3 of the Supreme Court Rules 1937 (ACT) which established an Inactive List of Cases. In that Division, r 31 provided

31 Dismissal of action following entry on list

(1) If an action remains on the list of inactive cases 2 months after the date of its entry on the list, the action is to be taken to be dismissed for want of prosecution.

(2) If an action is taken to be dismissed under subrule (1)-

(a) that dismissal is no bar to the commencement of fresh proceedings in the same action by the plaintiff; and

(b) the court may re-instate the action in special circumstances.

31. The Rules were made at a time when the regular Report on Government Services was prepared by the Productivity Commission and was causing consternation amongst courts. See, for example, Chief Justice JJ Spigelman AC, "Measuring Court Performance" (Speech delivered at the Annual Conference of the Australian Institute of Judicial Administration, Adelaide, 16 September 2006).

32. No doubt all this did lead to some pressure for removing from the Court's pending list of cases any dormant cases so that the clear-up rate of the Court would be improved.

33. Were that the only motivation, however, an application under r 76 would not require much argument, apart, perhaps, from a commitment from the parties to keep the proceedings moving along promptly.

34. While there must be a balance between the needs of justice and speed of the conduct of proceedings for the sake of speed or statistics, there is no doubt that courts are an expensive public resource and, as such, there is a need for those, who seek to engage the courts to resolve their disputes, to bear in mind the costs, the needs of other litigants and the requirements for the efficient conduct of litigation.

35. Hence, while not dismissing some relevance in Master Harper's comment, it does seem to me that the regime was intended to put pressure on parties to engage in timely and efficient litigation so that, if they were not prepared to do so, there would be a need to show that, as r 76(2) makes clear, it is in the interests of justice that the proceedings be allowed to proceed, especially so that hopeless cases are not permitted back into the system, but also so that those plaintiffs who do not proceed with appropriate timeliness (see r 21 of the Rules) do not vex or prejudice defendants or other litigants.

36. In Equuscorp, Buchanan J applied principles from cases involving the dismissal for want of prosecution, an extension of a limitation period or other extensions of time as well as from a somewhat similar regime that existed for a short period in Victoria to argue analogically in determining the appropriate principles to be applied.

37. The genesis of r 76 of the Rules in r 31 of the Supreme Court Rules shows the close relationship between the dismissal of a proceeding for want of prosecution and the regime in ss 75 and 76 of the Rules, identified by Master Harper in Rumble v GPT Re Ltd at [23], where his Honour, referred to the list of factors relevant to an application for such a dismissal identified by Atkinson J in Tyler v Custom Credit Corporation Ltd [2000] QCA 178 at [2] as helpful in considering an application for re-instatement under r 76. These were, omitting references to cases:

how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
how long ago the litigation was commenced or causes of action were added;

what prospects the plaintiff has of success in the action;

whether or not there has been disobedience of Court orders or directions;
whether or not the litigation has been characterised by periods of delay;
whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
how far the litigation has progressed;
whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
whether there is a satisfactory explanation for the delay; and

whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

38. Nevertheless, Buchanan J in Equuscorp pointed out the practical and legal differences between the two applications. His Honour referred to a statement by Mandie J in Caruso v Jafer (Unreported, Supreme Court of Victoria, Mandie J, 18 June 1998), which approach, his Honour suggested, had been accepted by the Victorian Court of Appeal in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2007] VSCA 75 at [31].

39. The substance of the passage in Caruso v Jafer may be summarised as follows:

• A plaintiff seeking re-instatement must satisfy the Court that justice requires the court to re-instate the proceedings.

• If, when re-instated, the proceeding would be dismissed for want of prosecution, they should not be re-instated.

• Nevertheless, even if they would not be so dismissed, that does not mean they should be re-instated.

• Whether they should be re-instated depends on whether the Court should exercise its discretion to re-instate.

• This depends on what justice requires and all the relevant circumstances must be taken into account.

• Undoubtedly, many of the same circumstances might be considered as on an application to dismiss for want of prosecution, but the plaintiff is seeking an indulgence.

• The plaintiff bears the onus of satisfying the Court that the proceedings should be re-instated even if they would not, if re-instated, be dismissed for want of prosecution.

40. I pause to add that, as with a successful application to strike out the proceedings for want of prosecution, the certainty or perhaps likelihood of which would justify a refusal to re-instate the proceedings, a valid plea that the claim was barred by a statutory limitation would also provide a proper basis for refusing re-instatement of the proceedings.

41. In Equuscorp at [32], Buchanan J followed Caruso v Jafer to hold that an applicant for re-instatement, here the plaintiff, bears the onus of persuading the court that it is in the interests of justice that the proceedings be re-instated. As his Honour noted, that is no empty formality. French CJ referred in, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 182; [5], to the 'irreparable element of unfair prejudice in unnecessarily delaying proceedings".

42. The test is, as Buchanan J noted, not simply to determine whether the proceedings would have been liable to be struck out for want of prosecution, though that would ordinarily be decisive against the success of an application for re-instatement.

43. His Honour also considered that, as with other applications for relief from a failure to take a step within the time limited, it is normally necessary to show an acceptable explanation for delay. His Honour summarised the position as follows (at [37]):

I am satisfied that on the present application the plaintiff bears the overall onus of showing that the interests of justice favour re-instatement of the proceedings, including the task of satisfactorily explaining the delay as well as excluding not only the prima facie presumption of prejudice to a defendant arising from delay (see eg Brisbane South Regional Health Authority per Dawson J at 544) but any particular prejudice to which an opposing party might draw attention (Brisbane South Regional Health Authority per Toohey and Gummow JJ at 547).

44. These principles have been followed in a number of cases since. I do not need to analyse all of them.

45. In Singles v Mander Forklift Pty Ltd (No 2) [2013] ACTSC 150, Nield AJ reversed the decision of the Master who had refused to re-instate the proceedings. His Honour was clearly affected by what he saw as lack of real prejudice to the respondent and, perhaps, not quite in conformity with the approach taken in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, that there was no greater prejudice at the date of the application than there had been when the proceedings commenced, notwithstanding that there had been a delay of fifteen years.

46. His Honour was also clearly influenced by the fact that the proceedings had previously been stood over generally by the Court and that the plaintiff had not been warned that the proceedings were at risk of being struck out.

47. I note that his Honour considered, incorrectly, in those proceedings that leave was required for an appeal against an interlocutory decision of the Master, which appeal is taken to a single judge of this Court. That is not the correct position as can be seen from s 9(2)(a) of the Supreme Court Act 1933 (ACT).

48. That there is such an appeal of right to a single judge is now, in light of the current, very wide jurisdiction of the Master - indeed, the widest in Australia - obsolete and there is an urgent need to remove what has become an anomaly and provide for such appeals to be taken by leave only to the Court of Appeal, as is the case of similar decisions of a single judge of the Court, with whose jurisdiction that of the Master is, in civil proceedings, co-ordinate.

50. As I have noted above (at [4]), the proceedings have had a long history. Mr Blunden's claim is in negligence. As Lord MacMillan said in Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562 at 618-9, the constituent elements of the cause of action in negligence requires that there be a duty to take care and that a failure in that duty has caused damage. Indeed, damage is essential to the cause of action in negligence; it is said to be "the gist of the action", as pointed out in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474.

51. As may be expected, the cause of action then arises or accrues when the plaintiff actually suffers damage in consequence of the breach of the duty of care. See Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189 at 195, 206.

52. As at 14 May 1998, the Limitation Act 1985 (ACT) provided that an action on any cause of action is not maintainable if brought after the expiration of the limitation period of six years running from the date on which the cause of action first accrues.

53. In the case of personal injuries, however, s 36 of the Limitation Act then provided that under certain circumstances, an extension of time within which to commence such proceedings, notwithstanding the expiry of the limitation period of six years, may be granted by the court.

54. On 11 June 1999, Mr Blunden, apparently concerned that the proceedings commenced in 1999 in respect of an incident which occurred in 1964 would be statute barred, applied for an extension of time within which to commence the proceedings. That application was heard by Crispin J who, on 26 November 1999, dismissed it on the ground that his Honour could not be satisfied that a fair trial of the issues relating to the onset and causation of Mr Blunden's PTSD would be possible after such a lengthy period had elapsed.

55. Mr Blunden appealed from this decision and, on 7 November 2000, a Full Court of the Federal Court of Australia decided, by majority, to allow the appeal; Katz and Kenny JJ formed the impression that Crispin J had not taken into account the other considerations referred to in s 36 of the Limitation Act; Miles J formed the contrary impression. See Blunden v Commonwealth [2000] FCA 1581.

56. The Commonwealth then applied for special leave to appeal to the High Court of Australia from the decision, but, on 12 October 2001, the High Court pointed out that the Full Court of the Federal Court had merely upheld the appeal without making any order as to the disposition of the motion. The matter was duly remitted to the Full Court. On 12 December 2001, the Full Court duly set aside the orders Crispin J had made in November 1999 and remitted the matter to the Supreme Court for rehearing. However, the Commonwealth subsequently sought to have a case stated to the High Court to resolve a question that had apparently arisen between the parties, as to what limitation law applied to the action, and that aspect of the case was removed to the High Court by order of Gummow J on 11 March 2003. On 10 December 2003, the High Court gave judgment, holding that the applicable limitation law was that of the forum, which in this case was the ACT, namely the Limitation Act. See Blunden v Commonwealth (2003) 218 CLR 330.

57. The defendant was refused special leave to appeal against the decision of the Full Court of the Federal Court on 13 April 2004. A motion to have the application determined at the same time as the hearing of the action was heard but dismissed on 3 December 2004.

58. A further application under s 36 of the Limitation Act was made to this Court on 9 December 2005 and was heard on 29 and 30 March and 6 April 2006.

59. On 9 June 2006, Crispin J dismissed the application principally because his Honour was not satisfied that the Commonwealth had not suffered significant prejudice by the extensive delay in commencing proceedings. See Blunden v Commonwealth [2006] ACTSC 58.

60. An appeal was taken from that decision to the Court of Appeal, which dismissed the appeal: Blunden v Commonwealth (2007) 1 ACTLR 1.

61. One of the judges hearing the appeal, Connolly J, died before judgment could be given, though his judgment had been circulated to the other members of the Court. Gray J, with one amendment not presently relevant, adopted his Honour's reasons.

Counsel for the plaintiff indicated that they may seek to argue that, in the case of psychiatric injury, the cause of action only accrues at the point of diagnosis, which in this matter would be within the limitation period. That matter may be litigated at the proper time, and I do not believe that I should express any view on the matter.

63. A similar view was expressed by Moore J at 9; [19].

64. It appears that, thereafter, little by way of substantial steps to bring the proceedings to hearing were actually taken. Despite the fact that the proceedings appear to have been dismissed, the plaintiff did file what purported to be Notices of Intention to Proceed on 31 October 2008 (served on the defendant on 31 October 2008), 29 October 2009 (served on the defendant on 5 November 2009) and 6 October 2010 (which was not served on the defendant). On 28 April 2011, a Certificate of Readiness was signed by the solicitor for the plaintiff and submitted to the defendant. That Certificate appears never to have been signed for the defendant nor, it appears, was an application made under r 1308 of the Rules as then in force.

65. Nevertheless, although there continued to be correspondence between the solicitors for the parties, no step of the kind referred to above (at [19]) was taken in the proceedings until the Application in Proceedings with which I am concerned was filed on 22 March 2013.

66. The Application in Proceedings sought the following orders:

(1) The plaintiff is granted leave to re-instate these proceedings.

(2) The plaintiff pay the defendants [sic] cost of the application but that such costs not be assessed until the conclusion of this matter.

67. While the intent of the first order can be understood, it is not an appropriate order to be sought. It is clear from r 76 that it is the Court and not a party that re-instates the proceedings and no leave is necessary; it is simply a case of seeking from the Court an order that the proceedings be re-instated. No point, however, was taken about this.

68. The affidavits filed in the proceedings set out the course of correspondence between the solicitors for the parties. One of the affidavits then annexed the judgments of the Full Federal Court of Australia, Blunden v Commonwealth [2000] FCA 1581 and the judgment of the Court of Appeal to which I have referred above (at [60]). It is, of course, not necessary to annex such material to an affidavit; it is on the public record and the Court may have reference to it. See, for example, the comments in J D Heydon, Cross on Evidence (Butterworths: Sydney, 1996) Vol VI (Service 156) 3029; [3075]. Such decisions can simply be handed up to the Court.

69. The defendant's affidavit also set out a chronology of the proceedings in somewhat more detail though not inconsistently with that included in the affidavits filed by Mr Blunden. Extracts from the various judgments were included making the affidavit read a little like submissions, but they were helpful nevertheless.

70. Mr Blunden wishes to have his claim listed for hearing. Mr Blunden contends that his claim is not statute barred because his legal proceedings were commenced within three years of a diagnosis by his treating psychiatrist, Dr White, that he was suffering from Post Traumatic Stress Disorder. That, of course, does not deal with the other claims he made in his Originating Claim that I set out earlier (at [11]).

71. Mr Blunden further contends that, after the legal proceedings were commenced on 14 May 1998, the Commonwealth had the opportunity to investigate the circumstances of the claim. In the course of preparing for and conducting the hearings referred to at [54] above, Mr Blunden gave detailed evidence of the basis upon which his claim is made and he has been cross-examined by the defendant. Other than any argument the Commonwealth wishes to present regarding the commencement of proceedings in 1998, Mr Blunden submitted that there was no additional prejudice to the defendant in having this matter restored to the list with a view to obtaining a hearing date, because of the full details of what he has now supplied.

72. The first matter to be considered is whether Mr Blunden's claim is statute barred, for, if it is then there is no purpose in reinstating the proceedings. That must follow from the principles I have set out above (at [39]).

73. Mr Blunden, through his counsel, Mr J L Sharpe, submitted that the relevant time for the commencement of the limitation period under the Limitation Act was when Mr Blunden was diagnosed by Dr White with Post Traumatic Stress Disorder.

74. That does not seem to me to be correct. A cause of action in negligence arises when the relevant damage is caused. As Deane J said in Hawkins v Clayton (1988) 164 CLR 539 at 587

A cause of action in negligence is complete when the damage caused by the breach of duty is sustained. It is at this time that, in the ordinary course, the cause of action 'first accrues' ...

75. Mr Sharpe submitted, however, that in the area of psychiatric injury, it is now accepted that for such harm to be actionable arising from negligence, it must be some recognisable psychiatric injury or illness. As Denning MR said in Hinz v Berry [1970] 2 QB 40 at 42-3

In English law no damages are awarded for grief and sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are however recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.

76. To the same effect was what Windeyer J said in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 394 as follows

Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a 'shock', however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psycho-neurosis or a psychosomatic illness. For that, if it be the result of a tortuous act, damages may be had.

77. Seminal to the entitlement to sue for compensation for psychiatric injury, however, was the decision of the High Court in Jaensch v Coffey [1984] HCA 52; [1984] 155 CLR 549.

78. Jaensch v Coffey was principally concerned with the question of the limit to what the duty of a tortfeasor extended to those who suffered psychiatric harm, "somewhat crudely called 'nervous shock'" (Jaensch v Coffey at 552 per Gibbs CJ).

79. Nevertheless, the Court made it clear that Australian law now entitles a person who suffered psychiatric harm from the actions of a tortfeasor could recover damages for such harm, re-affirming what had been said in Mount Isa Mines Ltd v Pusey. Brennan J referred (at 559) to the description of such damage by Dixon J in Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1 at 16 as "neurasthenic breakdown amounting to [psychiatric] illness" which term his Honour took to mean what Lord Denning MR had referred to as "any recognizable psychiatric illness" in Hinz v Berry and Windeyer J in Mount Isa Mines Ltd v Pusey. Brennan J made it clear (at 567) that recovery was for "a recognizable psychiatric illness".

80. There was, however, nothing said in Jaensch v Coffey to identify when the cause of action against a tortfeasor for compensation for injury which is psychiatric illness.

81. Mr Blunden referred to Commonwealth v Dinnison [1995] FCA 1176; (1995) 56 FCR 389 where the plaintiff had sought an extension of time within which to bring proceedings for recovery of damages for psychiatric illness. In that decision, it was noted (at 394)

the absence of a finding, or indeed any specific allegation or assertion, by concession as to the date when the claim occurred. The position is put negatively, by concession of the [plaintiff] that whenever the claim accrued it had done so more than six years before institution of [the initial proceedings].

82. The appeal decision did not otherwise address the issue of when the cause of action arose, save that it accepted that the plaintiff was unaware that he had suffered an anxiety state amounting to an illness. That was relevant in that case, for the extension of time was sought under a provision which permitted an extension of time to be granted when a plaintiff is unaware that injury has been suffered or of its nature or extent or of the connection between it and the defendant's tort: s 60G of the Limitation Act 1969 (NSW). It had no relevant counterpart in the Limitation Act at the time. It is of no assistance to Mr Blunden.

83. The final Australian decision to which Mr Blunden referred is Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317. Again, that decision was directed to the question of what was foreseeable rather than when the cause of action arose. It did re-affirm that the level of injury for "nervous shock" had to be more than "distress, alarm, fear, anxiety, annoyance or despondency without any recognised psychiatric illness" (329; [7] per Gleeson CJ).

84. Mr Blunden sought to rely on such cases to submit that the result of this approach was that the diagnosis of the psychiatric illness was the point at which the cause of action arose. This is clearly not what the cases say or from which such an inference can be drawn.

85. Reference was then made to a New Zealand case, Owen v Residual Health Management Unit [2000] NZCA 163; [2000] 3 NZLR 475. The development of this area of law, however, has been quite different from that of Australia in this area.

86. That issue was well summarised by Blow J in Tusyn v State of Tasmania (No 2) (2008) 18 Tas R 313 at 321; [26]-[27] as follows:

Counsel for Mr Tusyn submitted that I should follow decisions of the Supreme Court of Canada and the New Zealand Court of Appeal in which it has been held that, in actions for damages for psychological or psychiatric harm caused by child sexual abuse, the cause of action does not exist, and the limitation period does not begin to run, until the victim discovers, or becomes reasonably capable of discovering, both the psychological damage and the link between the sexual abuse and that damage: M (K) v M (H) ( 1992) 96 DLR (4th) 289 at 301 - 314; S v G (supra). Evans J made comments as to the merits of such an approach in Wilson v Horne [1999] TASSC 33; (1999) 8 Tas R 363 at 386 - 389, without reaching a conclusion as to whether those cases should be followed in Tasmania.
In those Canadian and New Zealand cases, the courts each applied and followed earlier decisions in which they had held that limitation periods for torts do not necessarily begin to run when damage is suffered, and will not begin to run until the victim discovers, or becomes reasonably capable of discovering, both the damage and the link between the event constituting a breach of duty and that damage: City of Kamloops v Nielsen (1984) 10 DLR (4th) 641; Central Trust Co v Rafuse (1986) 31 DLR (4th) 481 at 535 - 536; Invercargill City Council v Hamlin [1994] 3 NZLR 513. In Canada that principle is referred to as the reasonable discoverability rule. The High Court has declined to adopt such a rule in relation to claims in negligence for economic loss: Hawkins v Clayton (1988) 164 CLR 539; Commonwealth v Cornwell (supra) at 523.

87. I do not accept that the Australian courts have followed or adopted the Canadian or New Zealand approach.

88. In Hawkins v Clayton, Deane J did (at 588) specifically reject the Canadian approach in Central Trust Co v Rafuse [1986] 2 SCR 147, but considered that this general rule could be modified to special circumstances or in a special category of cases. The kind of case that Mr Blunden brings, however, does not seem to be such a case as I understand what his Honour is describing.

89. There is no doubt that where a tortfeasor by negligence causes another to suffer a recognised psychiatric illness, the tortfeasor can be required to compensate that person in damages. As was pointed out in Hawkins v Clayton, the cause of act is complete when the damage is sustained. The damage is sustained when the illness is first suffered by the person.

90. Clearly, a diagnosis will be important for a determination of whether there is a recognised psychiatric illness but it will not be the onset of the illness in itself nor the point of time where the cause of action arises. I do not, consider, however, it is the time when the cause of action arises.

91. The ACT position has since changed. By virtue of s 100 of the Limitation Act (a transitional provision which has now expired), s 16B of the Act applies to causes of action that arise after 9 September 2003 and that latter section sets the commencement of a cause of action in respect of a "disease or disorder". These terms are not defined and, ordinarily, the common or plain English meaning would be attributed to them. There is a useful discussion in Ch 3 of Peter Handford, Mullany and Handford's Tort Liability for Psychiatric Damage (2006, 2nd ed, Thomson Law Book Co: Sydney). I am satisfied that a recognised psychiatric illness is a "disorder" within s 16B of the Limitation [2006] HCA 37; Act. See Stingel v Clark (2006) 226 CLR 442 at 459; [28].

92. This, of course, does not assist Mr Blunden. Presently, there is no evidence before me as to the date of onset of the psychiatric illness, namely Post-Traumatic Stress Disorder. While the diagnosis was made within the limitation period of three years prior to the commencement of these proceedings, that is insufficient. That view is supported by Wilson v Horne [1999] TASSC 33; (1999) 8 Tas R 363.

93. Mr Blunden also relied on Henry v Commonwealth [2012] ACTSC 94; (2012) 264 FLR 381, commenting in the written submissions of his counsel, that this was a case "where the Plaintiff sought to bring an action in relation to events that had commenced 20 years before". At issue in that decision was, in fact, the same question as here, detailed at 389; [31], where Burns J said

As I noted earlier, the question for resolution in this matter is: when did the plaintiff's causes of action accrue? In the circumstances of this case, that question is answered by the answer to another question: when did the plaintiff suffer actual, as opposed to contingent, damage as a result of the defendant's negligence?

94. The case was otherwise, however, a very different one from this case and no argument was advanced by Mr Blunden to show how any of the reasoning in that case was applicable here. I do not find the decision of any assistance to the issues I have to decide.

95. The evidence, also, was of little assistance. For example, I do not have a copy of Dr White's report. The highest the evidence rises is the assertion in the affidavit filed on behalf of the Commonwealth, which asserts

the plaintiff's sworn answers to interrogatories made it clear that he claimed that he first suffered symptoms consistent with psychological injury shortly after the collision.

96. A copy of Mr Blunden's answers to interrogatories was annexed to the affidavit. The summary I have quoted appears to be an accurate summary of what Mr Blunden there said, which includes

• 'my psychological injuries have made it difficult for me to maintain steady employment or gain promotion and I can no longer work'. (4(a)).

• 'Since the collision, I have occasionally been required to take time off work as a consequence of nervousness, anxiety or depressive conditions. This manifested itself in my becoming depressed and anxious. From time I have succumbed to bouts of binge drinking, and often feel that I am unable to cope'. (11).

• 'I often suffer from depression which effects [sic] my life, physical health in general'.

• 'Since [I have become aware or was told that drinking alcohol was potentially dangerous to my health] I have tried but not been able to cease drinking, or reduce my intake of alcohol'. (14(b), 15(b)).

• 'I first noticed symptoms of stress and anxiety within the first week after the collision. These came in the form of anxiety attacks. I commenced drinking alcohol excessively in an effort to rid myself of the nightmares. Ever since the collision, I have suffered from a sleeping disorder. I feel that I am unable to communicate with or mix with other people'. (18).

• His alcohol consumption and cigarette consumption 'increased dramatically after the collision'. (20(c)(i), (d)(i)).

• He suffers 'intrusive recollections of the collision' which 'commenced from the date of the collision'. (21).

• He suffers from 'panic attacks' and the 'first attack occurred the day after the collision'. (22)

• He suffers from nightmares which also 'commenced from the date of the collision'. (23).

• He 'began to experience difficulties falling asleep immediately after the collision'. (24(b)(iii)).

• He 'began to experience difficulties in staying asleep immediately after the collision'. (24(c)(v)).

• He has received 'physical treatment, as well as counselling'. (33(b)).

• He was 'first told that [he] was suffering from post-traumatic stress disorder after consultation with the War Veteran's Counselling Service ... in May 1996'. (33(c), (d)).

97. Despite this, I note the following comments of Moore J in the Court of Appeal, Blunden v Commonwealth at 14; [19]

In the present matter, the way the plaintiff has conducted this litigation, when taken together with the answers he gave to the interrogatories, does not preclude him from identifying with more precision than has been the case to this point, when he alleges he first suffered a psychiatric illness as a result of the collision. I understood the Commonwealth to accept this was so during the course of argument in this application for leave to appeal. Identifying with more precision the alleged time of the onset of the illness should probably be done as an amendment to the presently vaguely formulated statement of claim or a reply to the Commonwealth's defence.

98. No amendment has been made and it seems to me, with the greatest respect to his Honour, that the answers to interrogatories that I have summarised above show significant psychological disorder occurring very shortly after the collision.

99. Whether the symptoms constitute a recognised psychiatric disorder is a matter for expert evidence, no doubt, but the evidence does fit within the Diagnostic Criteria for Post-Traumatic Stress Disorder set out in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders V (2013, 5th ed, American Psychiatric Association: Arlington, Virginia USA) 271-2.

100. Without a copy of Dr White's Report, the above excerpts from the answers Mr Blunden gave to the Commonwealth's interrogatories seems to me strongly indicative of his psychiatric disorder or disorders pre-dating the 1996 diagnosis by many years, perhaps even to the day after the collision.

101. In that event, the suggestion that the proceedings have been commenced within the limitation period seems to me to be so unlikely that it would sound strongly against the re-instatement of the proceedings.

102. There is, further, an inconsistency in the approach taken by Mr Blunden to the claim. As can be seen from the summary of the answers to interrogatories, the injuries he says he suffered and for which he seeks compensatory damages date back to a period shortly before the collision; indeed, some of the symptoms are said to have been identified the day after the collision.

103. If, however, the cause of action only commences when the psychiatric disorder suffered by Mr Blunden is diagnosed, then the injuries he suffered prior to the cause of action arising are not compensable.

104. This is, indeed, one of the reasons why it seems unlikely that the diagnosis is the date of the cause of action. It hardly makes sense.

105. In Australia, the onus of proving that proceedings have been commenced after the expiry of the limitation period rests with a defendant who has specifically to plead it. See Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] VR 27. See also Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77.

106. In Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159, Malcolm CJ, with whom Kennedy J agreed, discussed relevant authority which suggested that in them there was a conflict as to whether plaintiff or defendant bore the onus of proof but concluded that the court should follow the reasoning in Pullen v Gutteridge, Haskins & Davey Pty Ltd.

107. Underwood CJ surveyed the more recent authorities in Stocks v Retirement Benefits Fund Board (2007) ANZ Con R 254 at 274-5; [120]-[123] and followed the decision in Pullen v Gutteridge, Haskins & Davey Pty Ltd. I shall also do so.

108. It is, however, not necessary for me to make a final decision, but I have to say that the Commonwealth has raised very cogent evidence that would, in the absence of countervailing evidence from Mr Blunden that the various psychiatric disorders for which he is seeking compensation arose shortly after the collision in 1964. This is relevant to the question of re-instatement.

109. Mr Blunden, as noted above (at [54], [58]), has made two applications for an extension of time, both unsuccessful, though the first was reversed on appeal (see [55] above). The second was upheld on appeal (see [60] above).

110. Those decisions, however, do not create an estoppel such that, with new material, though, if available at the time of the earlier applications, there must be an explanation as to why it was not used, a further application could be made. See D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582, Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139. There is, however, some risks in second applications, as noted by Mandie J in Global Realty Developments Corp (a Delaware Company) v Dominion Wines Ltd (in liq) [2005] VSC 474; (2006) 225 ALR 361 at 366; [21].

Blunden v Commonwealth Of Australia [2014] ACTSC 123

At a glance

Court

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Judgment (254 paragraphs)

Blunden v Commonwealth Of Australia [2014] ACTSC 123 (2 June 2014)

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Legislation Cited (8)

Cases Cited (23)