Bradford v Commonwealth of Australia

THE CAUSES OF ACTION PLEADED BY MRS BRADFORD 5 Mrs Bradford's claim arises out of service by Mr Bradford in the Royal Australian Air Force ("the RAAF") at the Amberley Airforce Base in Queensland and at Woomera, South Australia. Mr Bradford was a leading aircraftsman enlisted in the RAAF and, between 1951 and 1957, is alleged to have been directed and required by the Commonwealth to perform his duties at Amberley and Woomera. 6 The Statement of Claim alleges that the Commonwealth used, or permitted to be used, the area and district in and around Amberley and Woomera as a site, inter alia, for the storage, repair, maintenance and decontamination of aircraft and equipment involved in the testing and explosion of atomic bombs and nuclear devices. It is alleged that Mr Bradford was, by reason of the matters just referred to, exposed to nuclear radiation and that Mr Bradford died by reason of that exposure. 7 The Statement of Claim relies on four causes of action as indicated above. They may be summarised as follows:

Negligence 8 Mrs Bradford alleges that the death of Mr Bradford was caused by the negligence of the Commonwealth. Twenty-eight particulars of negligence are set out, including: · failure to devise, institute, maintain and enforce a safe system of work in the circumstances; · failure to provide safe plant and equipment for Mr Bradford to work with; and · failure to provide a safe place for Mr Bradford to work. The particulars also include allegations of failure to observe and enforce or heed various instruments alleged to have been in force in relation to the circumstances of Mr Bradford's service.

exposure to radiation 9 Mrs Bradford alleges that nuclear radiation is an inherently dangerous thing and that, by reason of the matters alleged concerning the Commonwealth directing and requiring Mr Bradford to perform his duties at Amberley and Woomera, the Commonwealth is liable as a result of the death of Mr Bradford caused by exposure to nuclear radiation.

OCCUPIER'S LIABILITY 10 The Statement of Claim alleges that, as occupier of the Amberley and Woomera premises, the Commonwealth was under a duty to take reasonable care for Mr Bradford's safety whilst he was on those premises with the knowledge of the Commonwealth. It is alleged that the Commonwealth was in breach of that duty and, as a consequence, Mr Bradford's death was caused. The particulars of breach are the same as those furnished as particulars of negligence.

TRESPASS 11 In the Statement of Claim, Mrs Bradford alleges that the Commonwealth wrongfully and/or intentionally assaulted and beat Mr Bradford at Amberley and Woomera by casting upon him dirt, dust particles, beads and other objects contaminated by nuclear radiation and that, thereby, the death of Mr Bradford was caused.

THE LIMITATION DEFENCES 12 The amended defence raises limitation defences as follows: · By virtue of s 19(1) of the NSW Limitation Act the action is not maintainable since it is brought after the expiration of a limitation period of six years running from the date on which the cause of action accrued to Mrs Bradford. · By virtue of s 63(1) of the NSW Limitation Act, the right and title of Mrs Bradford as against the Commonwealth is extinguished in that the limitation period fixed by the said Act has expired. · The action is not maintainable by reason that, at the date of death of Mr Bradford, Mr Bradford would not have been entitled to maintain an action against the Commonwealth had he not died of his injuries as alleged, as the cause of action would not have accrued within six years of that date and therefore would have been statute barred by force of s 19(1) [sic, scilicet 14(1)] and s 63(1) of the NSW Limitation Act. · By virtue of s 36(1) of the SA Limitation Act, the action is not maintainable since it is brought after the expiration of the limitation period of three years running from the date on which the cause of action first accrued to Mrs Bradford. · By virtue of s 11 of the Qld Limitation Act the action is not maintainable since it is brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrued to Mrs Bradford.

CHOICE OF THE RELEVANT LIMITATION STATUTES 13 It is convenient to deal with each of the three relevant limitation statutes separately, since questions arise as to which of the limitation statutes operates in the present case. It is common ground however that,unless an order for extension of the relevant limitation period or periods is made under the applicable statute or statutes, Mrs Bradford's action is barred. I shall deal first with the choice of the appropriate limitation statute. 14 The question of the applicability of limitation statutes in an action in federal jurisdiction is affected by ss 79 and 80 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Sections 79 and 80 provide as follows: "79. The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. 80. So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters." 15 In a sense, it is inapt to speak of the Federal Court of Australia, in a case such as the present, as a court exercising federal jurisdiction in a State. The jurisdiction of the Federal Court of Australia extends throughout Australia and, in a case such as this, jurisdiction is exercised in Australia, not in a State or Territory. Thus, strictly, the question that arises in matters of federal jurisdiction does not involve any choice between laws of competing jurisdictions but identification of the applicable law in accordance with ss 79 and 80 of the Judiciary Act (see John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 at paragraphs [52] and [53]). 16 If the common law rules for choice of law in a case which has some interstate element are applicable and require reference to the laws of the forum, the law that will be applied will depend upon where the Court is sitting. In a case concerning a tort committed within Australia, and in respect of which the Federal Court of Australia is exercising jurisdiction, the existence, extent and enforceability of the rights and obligations of the parties may, therefore, be affected significantly by where the Court sits (see John Pfieffer Pty Ltd v Rogerson at paragraph [58]). 17 A claimant may sue in a particular forum in Australia to enforce a liability in respect of a wrong occurring outside the territory of the forum if : · the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the claimant to enforce against the alleged wrong doer a civil liability of the kind that the claimant seeks to enforce; and · by the law of the place in which the wrong occurred, the circumstances of the occurrence give rise to a civil liability of the kind that the claim seeks to enforce.

(see McKain v R.W. Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 39).

Those requirements are referred to as the "double actionability" rule (see John Pfieffer Pty Ltd v Rogerson at paragraph [23]). However, a court exercising jurisdiction that extends throughout Australia with respect to an Australian tort is exercising jurisdiction with respect to events that occurred in its own law area. That being so, there is no scope for the operation of a double actionability rule. That is so whether or not the tort involves an interstate element (see John Pfieffer Pty Ltd v Rogerson at paragraph [88]). 18 The place of a tort may be ambiguous or diverse or difficult to locate in some cases. The present is such a case, in that the allegation is that Mr Bradford was exposed to radiation in both South Australia and Queensland. There may well be complex scientific issues as to the extent to which Mr Bradford was exposed to radiation in each location and the consequences of each such exposure. Such questions must be borne in mind by a court making a decision concerning the choice of law as between lex fori and lex loci delicti. 19 In all of the law areas of Australia, the same common law rules apply, subject to any difference stemming from statute. Applying the lex loci delicti will apply a single choice of law rule consistently in all courts exercising both federal and non-federal jurisdiction and will recognise and give effect to the predominant territorial concern of the statutes of State and Territory legislatures. Those factors favour giving controlling effects to the lex loci delicti rather than the lex fori. The application of the lex loci delicti as the governing law in Australian torts involving an interstate element will give effect to the reasonable expectations of the parties. Further, it is a rule that reflects the fact that the torts with which it deals are torts committed within a federation. Accordingly, the lex loci delicti is the governing law with respect to torts committed in Australia that have an interstate element and the lex loci delicti must be applied in the Federal Court of Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort (see John Pfieffer Pty Ltd v Rogerson at paragraph [87]). 20 Some statutes of limitation have traditionally been held to be procedural on the basis that they bar the remedy not the right. Other limitation provisions have held to be substantive. However, all limitation provisions can affect whether a plaintiff recovers. Accordingly, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance, not procedure. The application of any limitation period is therefore governed by the lex loci delicti (see John Pfieffer Pty Ltd v Rogerson paragraphs [99] and [100]). 21 Applying those principles, the lex loci delicti in the present case would be the law of Queensland or possibly the law of South Australia, depending upon where, ultimately, a tort is found to have been committed by the Commonwealth. The pleading, as it stands, does not distinguish between the effect of exposure to radiation at Woomera on the one hand and exposure to radiation at Amberley on the other. For the purposes of determining the relevant limitation statute that is to be applicable in the present case, that may not matter, since the effect of SA Limitation Act and the effect of the Qld Limitation Act may well be the same in the present circumstances. 22 It appears to follow, however, that the NSW Limitation Act has no application. Although the proceeding was commenced in the Sydney office of the Registry of the High Court and was remitted to the NSW Registry of the Federal Court, Mrs Bradford's claim has nothing to do with New South Wales. Any wrongful conduct of the Commonwealth is alleged to have occurred in Queensland or South Australia or both. Mr Bradford died in Queensland and Mrs Bradford resides in Queensland. No explanation was proffered as to why the proceeding was commenced in the Sydney office of the High Court Registry, although, if it be relevant, an inference might be drawn that New South Wales was chosen because the limitation extension provisions in the NSW Limitation Act might be thought to be more favourable to a claimant than the extension provisions in the SA Limitation Act and the QLD Limitation Act. 23 Mrs Bradford's claim is expressed to be brought under s 3 of the NSW Compensation Act. However, there may be a question as to whether that provision has any application to a claim by a widow, resident in Queensland, in respect of a death that occurred in Queensland, alleged to have been caused by wrongful conduct in Queensland or South Australia. The effect of the principles promulgated in John Pfieffer Pty Ltd v Rogerson may be that the application of lex loci delicti would exclude the application of the NSW Compensation Act. 24 However, that may not be fatal to Mrs Bradford's claim. The equivalent of Lord Campbell's Act was enacted in South Australia and Queensland. At the time of Mr Bradford's death the equivalent was to be found in s 19 of the Wrongs Act 1936 (SA) and s 12 of the Common Law Practice Act 1867 (Qld). Any technical difficulty in that regard would be capable of resolution either by deleting reference to the NSW Compensation Act from the Statement of Claim or by including express reference to the Wrongs Act 1936 (SA)and the Common Law Practice Act 1867 (Qld) or the Supreme Court Act 1995 (Qld), which re-enacts the relevant provisions of the Common Law Practice Act 1867 (Qld).

THE DISCRETION TO EXTEND THE LIMITATION PERIODS 25 The parties have assumed that the claim under the NSW Compensation Act is open. Accordingly, I shall deal with the limitation statutes of each of the relevant States. There are two aspects of the exercise of discretion to extend the time within which a proceeding might be commenced under each of the limitation statutes. First, the claimant must satisfy certain requirements as to want of knowledge of elements of the cause of action, which vary according to the various statutes. Secondly, even if the claimant satisfies those requirements, the Court must be satisfied that there has been no prejudice to the alleged wrongdoer by reason of the delay. It was common ground that the criteria in relation to the second matter did not materially vary in relation to the three limitation statutes in question. Accordingly, I shall deal with that matter first.

PREJUDICE TO THE COMMONWEALTH 26 The Commonwealth contends that it has been prejudiced by reason of the delay in the commencement of the proceeding in that it has lost the opportunity of investigating the incidents in question and of obtaining evidence from prospective witnesses. The Commonwealth says that the vast majority of witnesses who could potentially testify in relation to the specific and actual nature of Mr Bradford's duties and the protective and preventative measures in place at the time are, or were, by the commencement of the proceeding, not living or otherwise unavailable. The Commonwealth also contends that the vast majority of medical practitioners who could give evidence as to treatment sought and received by Mr Bradford were no longer available at that date. The Commonwealth says that, having regard to the length of time since the events and the lack of specificity with respect to allegations, the Commonwealth would not be able to adduce evidence that would otherwise have been adduced if the proceeding had been commenced earlier. 27 Mr Bradford enlisted in the RAAF on 5 February 1940 and was discharged on 5 February 1946. He rejoined the RAAF at Amberley, on 5 February 1951, mustering as a wireless maintenance mechanic. He remustered to radio technician "Air" on 26 June 1952. He was discharged on 4 February 1957. In Mr Bradford's first base posting at Amberley, he was attached to Number 82 Wing (482 Squadron) on 28 May 1951. On 25 October 1954, he was posted to 3 Aircraft Depot at Amberley. On 31 January 1954 he was posted to the base squadron at Amberley until his discharge on 4 February 1957. 28 However, Mr Bradford proceeded on temporary duty from 482 Squadron to Woomera on 26 September 1953 and returned to 482 Squadron on 28 October 1953. The records of the Commonwealth indicate that Mr Bradford appeared on the list of RAAF personnel involved in operation "Totem". The first "Totem" bomb was detonated at Emu Field at Maralinga, South Australia, on 15 October 1953. RAAF Lincoln and USAF V229 aircraft undertook air sampling tasks. Mr Bradford served at Woomera at the time of those tests. I have assumed that there is a relevant connection between Maralinga and Woomera. 29 The range commander at Maralinga in 1957 was Colonel Richard Durance. As part of the preparation of the defence in litigation in the Federal Court commenced by other applicants who were posted to Maralinga, Colonel Durance was interviewed by the solicitor now acting for the Commonwealth. However, Colonel Durance died on 29 August 1986. Since Colonel Durance did not arrive at Maralinga until some years after Mr Bradford had spent several weeks at Woomera, his evidence is unlikely to be directly relevant. In any event, at least some information that he may well have been able to impart in relation to the matters in question would have been available from earlier interviews in connection with other litigation. 30 The Commonwealth also contends that potential witnesses for the Commonwealth in relation to health physics procedures, and security and precautionary measures are also unavailable in many instances. Four witnesses in particular are singled out, being: · John Robert Maroney, Executive Officer, Atomic Veterans Test Safety Committee and member of the National Radiation Advisory Committee. Mr Maroney was at Maralinga at the same time as Mr Bradford was at Woomera. Mr Maroney gave evidence in the Court in proceedings before Foster J in 1992. Mr Maroney died in June 1993. It seems likely that any information that might be necessary for the conduct of the defence of Mrs Bradford's claim that could have been obtained from Mr Maroney could be gleaned from the evidence given by Mr Maroney before Foster J. · D.J. Stephens was Director of the Commonwealth X-Ray & Radium Laboratory from July 1956 to August 1958 and from late 1958 to 1973, and was a member of the Atomic Weapons Test Safety Committee between 1956 and 1958. Mr Stephens was not at Maralinga at the time when Mr Bradford was at Woomera and his evidence would not be directly relevant. · Harry Oliver Turner was Health Physics Supervisor at Maralinga between March 1958 and January 1959. Mr Turner was interviewed on behalf of the Commonwealth in relation to other litigation before Foster J, although Mr Turner was unable to give evidence for the Commonwealth in that proceeding. It appears that Mr Turner would be unable to give direct evidence concerning the circumstances surrounding Mr Bradford's service in Woomera in 1953. · Joseph Faulding Richardson was Senior Australian Health Physics Representative at Maralinga from 16 August 1956 to 8 October 1959. Mr Richardson died in February 1989. Mr Richardson would have been unable to give direct evidence concerning the time when Mr Bradford was at Woomera. 31 On 2 April 1994, Mrs Bradford filed an affidavit sworn by Mr Robert Henry Dash, who was attached to No. 82 Wing at Woomera during the time that Mr Bradford was at Woomera. Mr Dash returned to Amberley at the end of October or beginning of November 1953 and remained there for a further ten months before being posted to Townsville. Mr Dash deposes to Mr Bradford's duties while at Amberley during the time that Mr Dash was at Amberley. Mr Dash also deposes to the protective clothing that was supplied at Woomera. 32 The Commonwealth asserts that, with the exception of the evidence of Mr Dash, there is no evidence of what Mr Bradford actually did at Woomera, what terrain he traversed and what activities he undertook. The Commonwealth has available to it a list of persons who served with Mr Bradford but the overwhelming majority of those persons are now unavailable. If there were other witnesses, or if better particulars of those matters were furnished, the Commonwealth would submit those particulars to an expert health physicist who would undertake appropriate modelling to ascertain the extent and degree, if any, of exposure of Mr Bradford to radiation and its affect on the body. The Commonwealth asserts that, in the absence of such evidence and particulars, it is not possible for the Commonwealth to prepare such expert evidence, and that that would prejudice the Commonwealth in its defence of Mrs Bradford's claim. However, it seems unlikely that witnesses, at a time after Mr Bradford's death, would have recalled details of such matters. 33 The Commonwealth has prepared a list of all medical practitioners who are known to have treated Mr Bradford at any time. All of the medical records relating to Mr Bradford, in the Commonwealth's possession, have been examined and a schedule has been prepared of all medical practitioners referred to. Attempts at locating all of those medical practitioners have been largely unsuccessful. It is reasonable to draw the inference that, having regard to the date of their registration as medical practitioners, many of them are now deceased. If those medical practitioners were available, the Commonwealth would have asked them to provide any medical notes with respect to their consultations with Mr Bradford, including any history of possible exposure to radiation and an opinion as to the ćtiology of Mr Bradford's illness. The Commonwealth asserts that, because those medical practitioners are not available, the Commonwealth will not be able to adduce appropriate evidence and its defence of Mrs Bradford's claim would be thereby prejudiced. 34 However, many of the medical practitioners relate to attendances that clearly had no connection whatsoever with the possible consequences of Mr Bradford's exposure to radiation. Further, as will appear later, there have been several instances where the Commonwealth had occasion to investigate the circumstances leading to Mr Bradford's death. Claims have been made for benefits under workers compensation legislation and under veterans' entitlements legislation in respect of the death of Mr Bradford. They required medical investigation. 35 An application for an extension of time under the limitation statutes should be refused if the effect of granting the extension would result in significant prejudice to the alleged wrongdoer (Holt v Wynter [2000] NSWCA 143 at 119). The eventual question to be decided in the exercise of a discretion to extend a limitation period is whether it is fair and just to do so. The onus is on the applicant to show that it is fair and just to do so. In considering whether it is fair and just, the disadvantage to the alleged wrongdoer that would result from the granting of leave is a material, but not conclusive, consideration (see Holt v Wynter paragraphs [47] and [73]). 36 It appears to have been common ground that those principles require a consideration of whether "a fair trial" would be possible if the extension sought by Mrs Bradford were to be allowed. That term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. Such a degree of fairness is unattainable. Trials are constantly held in which, for a variety of reasons, not all relevant evidence is before the Court. Time and chance will have their effect on evidence in any case. That does not necessarily prevent a fair trial (see Holt v Wynter at paragraph [79]). 37 The position of the Commonwealth in the present case is not ideal. Doubtless, having regard to the lapse of time since the death of Mr Bradford and the even greater lapse of time since the events alleged to give rise to the claim against the Commonwealth, the Commonwealth will not be in as favourable a position to defend Mrs Bradford's claim as it would have been had she commenced her claim within the time limited by the various limitation statutes. A fortiori, the position of the Commonwealth would be more favourable if Mr Bradford had commenced a proceeding within the limitation period under the various limitation statutes in respect of the alleged wrong to him. 38 While the issues that would be raised in relation to claims that have been made for workers compensation and repatriation benefits do not involve the questions of negligence that would arise in the present proceeding, issues concerning the causal connection between Mr Bradford's exposure to radiation and his death were relevant in relation to those claims. Accordingly, I am disposed to conclude that the prejudice to the Commonwealth is not such that, if I am otherwise persuaded that the requirements of the limitation statutes concerning Mrs Bradford's knowledge have been satisfied, the discretion to extend the limitation period should be exercised against Mrs Bradford.

THE NSW LIMITATION ACT 39 Section 14(1)(b) of the NSW Limitation Act provides that an action on a cause of action founded on tort is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. However, under s 14(2), s 14 does not apply to a cause of action to which s 19 applies. Section 19(1) of the NSW Limitation Act relevantly provides that an action on a cause of action arising under the NSW Compensation Act, by virtue of a death, is not maintainable if brought after the expiration of a limitation period of six years running from the date of death. 40 Section 63(1) of the NSW Limitation Act provides that, subject to s 63(2), on the expiration of a limitation period fixed by or under that Act, for a cause of action to recover any damages, the right and title of the person formerly having the cause of action to the damages is extinguished, as against the person against whom the cause of action formerly lay and as against the person's successors. Section 63(2) provides that where, before the expiration of the limitation period for a cause of action to recover damages, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to the damages for the purposes of the action or so far as the right of title is established in the action. 41 The effect of the combination of ss 14(1) and 63(1) is that, insofar as the NSW Limitation Act is applicable, any cause of action that was available to Mr Bradford was extinguished at the expiration of six years from the date on which it first accrued to him. Thus, at the time of his death, he was no longer entitled to maintain an action and recover damages in respect of the wrongful act, neglect or default of the Commonwealth that allegedly resulted in injury and subsequent death. That is because his cause of action had been extinguished, at least on one view, more than six years before his death. That question, of course, depends upon when his cause of action first accrued. In the case of an action for negligence the cause of cation accrues when substantial damage is first suffered. There may be a question as to when Mr Bradford first suffered damage as a result of the alleged exposure to radiation. One view is that he suffered damage at the time of exposure to radiation, since that began the process of cellular dysplasia that resulted ultimately in the disease that caused his death. 42 Section 3 of the NSW Compensation Act relevantly provides as follows: "(1) Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence." [Emphasis added.] 43 The consequence is that, upon Mr Bradford's death, no cause of action arose in favour of Mrs Bradford because, under s 3 of the NSW Compensation Act, her cause of action depended upon there being a subsisting cause of action for Mr Bradford at the date of his death (see, by way of example, Bergfels v Port Stephens Shire Council [1983] 2 NSWLR 578 at 582). 44 Sections 60(2) and 60H of the NSW Limitation Act were enacted to overcome the perceived injustice that might operate from the effect of ss 14 and 19 when coupled with s 63 of the NSW Limitation Act. Section 60 relevantly provides as follows: "(1) This section applies to a cause of action for damages which arises (or which would arise, but for the expiration as against the deceased of a limitation period before or after the commencement of this Act) under section 3 of the Compensation to Relatives Act of 1987 by virtue of the death of the person caused by a wrongful act, neglect or default. (2) Where… it appears to the court that:

(a) any of the material facts of a decisive character relating to the cause of action of the deceased in respect of the wrongful act, neglect or default was not within the means of knowledge of the deceased at any time before the next year preceding the death of the deceased, and

(b) there is evidence to establish the cause of action which the applicant claims to have…

the court may order that the expiration as against the deceased of a limitation period for a cause of action by the deceased in respect of the wrongful act, neglect or default have no effect in relation to the cause of action which the applicant claims to have and thereupon for the purposes of an action brought by the applicant in that court on the cause of action which the applicant claims to have, that expiration has no effect." 45 It is common ground that the requirement of s 60(2)(b) is satisfied in the present case. However, the Commonwealth does not accept that s 60(2)(a) is satisfied in the present case. Clearly enough, s 60 was enacted to overcome the consequence that the statute barring of the cause of action by the deceased would have on a cause of action under s 3 of the NSW Compensation Act. 46 However, s 60 relates only to the cause of action of the deceased. Section 60H was enacted to overcome difficulties that might arise in relation to the expiration of a cause of action under the NSW Compensation Act itself. Section 60H relevantly provides as follows: "(1) This section applies to: (a) a cause of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of the person caused by a wrongful act, neglect or default, and (b) such a cause of action that would arise under the Compensation to Relatives Act 1897 but for the expiration as against the deceased of a limitation period… ……………………… (2) If an application for an order under this section is made to a court…, the court,… may, if it decides that it is just and reasonable to do so, order: (a) that a limitation period for the cause of action for the decease for the wrongful act, neglect or default in relation to the cause of action that the applicant claims to have be extended for such a period as it determines, or (b) that a limitation period for the cause of action that the applicant claims to have be extended for such a period as it determines, or both. ………………………" 47 In effect, s 60H may, therefore, render s 60 otiose, since s 60H empowers a court to extend not only the limitation period for the cause of action under the NSW Compensation Act itself, but also the limitation period for the cause of action for the deceased. That is to say, s 60H authorises an extension of the periods under both s 14(1)(b) and s 19(1). 48 However, under s 60I(1), a court may not make an order under s 60H unless it is satisfied that: "(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendants act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 49 Mrs Bradford did not rely on paragraphs (i) or (ii) of s 60I(1). Argument was addressed only to the requirement of paragraph (iii), namely, whether Mrs Bradford was unaware of the connection between the personal injury to Mr Bradford and the alleged act or omission on the part of the Commonwealth, at the expiration of the period of six years running from the date of Mr Bradford's death. That period expired on 29 December 1978. The proceeding was not commenced until 7 December 1989. Mrs Bradford's application under s 60H was first brought on 26 March 1992. Accordingly, the Court must be satisfied that she became aware or ought to have become aware of all three matters listed in paragraph (a)(i)-(iii) after 26 March 1989. 50 Mrs Bradford, in an affidavit relied on by her in support of her application, said that, following Mr Bradford's service at Woomera, he suffered from frequent headaches, listlessness, frequent tiredness in the eyes, marked paling around the eyes and vomiting and diarrhoea which occurred from time to time. The bouts of diarrhoea from which Mr Bradford suffered following his return from Woomera lasted until 1958. Prior to his going to Woomera, Mr Bradford had a "very healthy head of hair". However, when he came back, his hair became thinner and some lumps developed on his head. However, Mr Bradford did not consult any doctor about any of those symptoms. 51 On 6 September 1970, Mr Bradford was diagnosed with cancer of the oesophagus. On that day, be applied to the Repatriation Department for a pension on the basis that the cancer arose out of his service with the RAAF. On 14 September 1971, the Repatriation Board rejected his application. On 7 August 1972 an appeal against the rejection was dismissed. 52 During the late 1970s, Mrs Bradford joined the Australian Nuclear Veterans Association. She was advised by "Mr Pat Cready from the Association" that she could "make a claim". After receiving that advice, Mrs Bradford lodged a claim on 27 March 1980 for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). It appears that in her claim, Mrs Bradford stated that she considered that the disease that caused Mr Bradford's death, namely cancer of oesophagus with secondaries, was caused by Mr Bradford's exposure to radiation during testing at Woomera in 1953-1954. 53 On 12 June 1980, Mrs Bradford wrote to the Secretary of the Department of Defence requesting information concerning Mr Bradford. In particular, she asked: "Whether any of his duties were in any way associated with or in support of atomic testing or was such that atomic radiation possible." In response, the Air Force Office wrote on 25 July 1980 referring to Mrs Bradford's application for compensation "in respect of the detrimental effect of radioactivity on your late husband's health". The letter confirmed that "[t]his procedure is correct in that the Compensation Officer [of the Defence Regional Office Brisbane] is the appointed delegate of the Commissioner of Compensation who is responsible for the administration of the Compensation (Government Employees) Act 1971 [sic]". 54 On 29 July 1980, Mrs Bradford wrote again to the Secretary of the Department of Defence asking, in relation to Mr Bradford: "Whether any of his duties were in any way associated with or in support of atomic testing or were such that atomic radiation was possible." There was no evidence of any further response to that enquiry. 55 On 23 May 1981, Mrs Bradford wrote to Senator Carrick concerning the death of Mr Bradford. She said, inter alia, the following: "My husband was directly involved in the atomic weapons test. I found this out after many extensive enquiries, as he worked on the radar equipped aeroplanes that had been tracking the radiation in the clouds and was not issued with any protective clothing till they had been working for a week on the contaminated aircraft. I have supplied the Department of National Development & Energy with all the information I could last year in October 1980, but I have heard nothing from them since. I was wondering if you would be able to help me in this regard." 56 Senator Carrick responded on 9 June 1981 saying, inter alia, the following: "My Department has obtained from the Department of Defence particulars of your husband's service, which have been forwarded to the Office of the Commissioner for Employees' Compensation in connection with the claim you submitted in March 1980. The evidence on your husband's case is, I understand, to be sent to a specialist medical referee in the near future in the course of the Office's investigation of your claim." 57 On 20 November 1981, a delegate of the Commissioner for Employees' Compensation found that the death of Mr Bradford was due to the nature of his employment by the Commonwealth. The delegate determined that Mr Bradford's death occurred in circumstances under which the Department of Defence would have been liable to pay compensation under the Commonwealth Employees' Compensation Act 1930 (Cth), that the Department of Defence was liable to pay compensation, that Mrs Bradford was a widow and sole dependant of Mr Bradford at the date of his death and that the amount of compensation payable in accordance with the provisions of that Act was $14,500. Mrs Bradford was notified of the determination by letter of 20 November 1981 and the sum of $14,500 was subsequently paid to her. 58 While the letter notifying Mrs Bradford of the determination made no mention of radiation, it is clear that the basis upon which the claim for compensation was made and accepted was that the death of Mr Bradford resulted from exposure to radiation in the course of his employment by the Commonwealth. 59 In 1983, Mrs Bradford made an application for a pension under the Repatriation Act 1920-1973 (Cth). On 26 October 1983, a determination was made to the effect that Mr Bradford's death was not related to war service. That determination was affirmed on 3 April 1974 by a War Pensions Entitlement Tribunal. However, on 24 December 1984, the appeal decision was reviewed with the effect that Mr Bradford's death was then accepted as being related to war service. Benefits payable to Mrs Bradford were made effective from 24 December 1980. The basis upon which the claim was made by Mrs Bradford, and accepted by the Repatriation Commission, appears to have been that exposure to radiation at Amberley and Woomera while on service with the RAAF was the cause of Mr Bradford's death. 60 Mrs Bradford apparently gave consideration to the commencement of a proceeding against the Commonwealth for damages no later than 1984. At some time in 1984, she contacted Maurice May & Co, solicitors, at the suggestion of the Australian Nuclear Veterans Association. She gave Maurice May & Co a statement for the purposes of "any common law action for damages". 61 On 19 November 1984, Maurice May & Co wrote to her saying, inter alia, as follows: "Since taking a statement from you for the purposes of Common Law action for damages, the Royal Commission has been progressing… A significant volume of new information about the tests has come to light, both from the testimony taken from veterans and from the documentary evidence supplied by the Australian and United Kingdom Governments. Needless to say, all this material will have to be carefully analysed and evaluated and is particularly significant in terms of any Common Law action that may be taken on behalf of veterans or their relatives. ……………………… We have… retained Counsel for the purposes of Common Law Actions and are planning to progress such actions in the New Year. ……………………… We will be asking a number of you for additional particulars over the next few months and will be starting applications for legal aid on a case-by-case basis. ………………………" 62 Maurice May & Co wrote again to Mrs Bradford on 27 May 1986 saying: "We refer to your instructions in the [Maralinga Common Law] matter and as you are aware the Royal Commission has now been completed. To enable us to obtain legal aid on your behalf please complete the enclosed application forms and return same to this office so that we can forward it to the appropriate authority. ………………………" 63 Mrs Bradford subsequently completed the form that was enclosed with that letter. On 9 October 1987, her application for legal aid was refused and it appears that nothing was done immediately thereafter. However, on 5 October 1988, Maurice May & Co wrote again to Mrs Bradford referring to "the decision in Bird's Case". That appears to be a reference to Bird v Commonwealth (1988) 165 CLR 1. That case concerned a claim by a member of the RAAF, who had fitted and removed canisters from aircraft that had collected radioactive air and dust samples after a nuclear test that took place on 3 October 1952 and who had subsequently serviced contaminated aircraft and taken part in their cleansing. The letter from Maurice May & Co went on to say: "At this stage we are of the opinion that your claim should proceed as soon as possible in the High Court. In order to precede the commencement of operation of adverse legislation which takes effect on December 1st, 1988, it is necessary to file proceedings prior to that date. A Writ has been drafted and submitted to Counsel for settling and it is anticipated that an individual Statement of Claim may have to be prepared on your behalf. As negotiations with Legal Aid have to date proved largely fruitless, it will be necessary to provide the initial High Court filing fee in the sum of $150.00, a cheque for which we request you make payable to Maurice May & Co. We ask that you give this aspect your urgent attention." 64 On 8 February 1989, Maurice May & Co wrote again to Mrs Bradford acknowledging receipt of a cheque for $150 for filing fee and saying: "We advise that the particular time of constraint does not apply to you as you are a widow. We further advise that proceedings will shortly be commenced on your behalf and filed in the High Court." 65 Notwithstanding the terms of that letter, no proceeding was commenced at that time. On 22 August 1989, Maurice May & Co wrote again to Mrs Bradford saying: "We refer to your recent telephone enquiry and advise we have not, at this stage, issued a Writ on your behalf. We are still negotiating with the Legal Aid Commission in Queensland and are hopeful we will obtain Legal Aid on behalf of at least some of the residents of that State. In addition we are at the present time preparing a test case to be argued in the High Court to determine the validity of some of the Defences raised by the Commonwealth." 66 It appears that on 5 December 1989, Maurice May & Co were notified by Queensland Legal Aid that legal aid to make an application to extend limitation periods had been granted to Mrs Bradford. The proceeding was commenced two days later on 7 December 1989. 67 There is no evidence that the form of the Statement of Claim was different from the draft that was submitted to counsel, as referred to in Maurice May & Co's letter of 5 October 1988. Having regard to the intervening correspondence and in the absence of evidence to the contrary, I draw the inference that there was no material change in the form of the writ and Statement of Claim. Thus, it appears that, by October 1988, the particulars of negligence ultimately relied upon in the Statement of Claim were known to those advising Mrs Bradford. Indeed, she had been contemplating the commencement of such a proceeding since 1984. Certainly, delays were occasioned by the desire to obtain legal aid. Indeed, there was unchallenged evidence from Mr Maurice May, the principal of Maurice May & Co, that without a grant of legal aid it would have been impossible, in his view, for claims to be prepared on behalf of Mrs Bradford. Nevertheless, it appears that sufficient material was available by October 1988 to enable a claim to be formulated. Further, Mr Bradford had claimed from as early as March 1980 that Mr Bradford's death was caused by his exposure to radiation. 68 Mrs Bradford gave no evidence as to the state of her knowledge concerning the matters referred to in s 60I(1)(a). Whether or not any adverse inference should be drawn in those circumstances, it appears, from the facts that I have summarised, that her legal advisers were aware of all of the matter alleged in the statement of claim no later than October 1988. The Statement of Claim makes allegations of all of the matters referred to in s 60I(1)(a). It is in those circumstances that it is necessary to consider the matters raised by s 60I(1)(a)(iii) and s 60I(1)(b) of the NSW Limitation Act. 69 On the basis of the facts that I have summarised, Mrs Bradford became aware, or ought to have become aware through her legal advisers, of all of the three matters listed in s 60I(1)(a) by October 1988. The application for an order under s 60H was not made within three years after that time, notwithstanding that a defence expressly raising ss 14, 19 and 63 of the NSW Limitation Act was filed on behalf of the Commonwealth on 19 September 1990. In the circumstances, I am not satisfied as to the matters referred to in s 60I(1) of the NSW Limitation Act. Accordingly, it is not open to make an order under s 60H(2). It is therefore unnecessary to consider the possible operation of s 60(2) of the NSW Limitation Act in the present case.

south australia LIMITATION ACT 70 Section 36(1) of the SA Limitation Act provides that all actions in which the damages claimed consist of or include damages in respect of personal injuries to any person shall be commenced within three years next after the cause of action accrued but not after. That section is pleaded in the amended defence filed on behalf of the Commonwealth. However, s 48(1) of the SA Limitation Act provides that, where an Act prescribes or limits the time for instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require. That provision is subject to s 48(3)(b), which provides that s 48 does not empower a court to extend a limitation of time prescribed by that Act unless it is satisfied, relevantly, as follows: "(i) that the facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff." 71 Having regard to the conclusion that I have reached in relation to the NSW Limitation Act, it is clear that I cannot be satisfied as to the matter referred to in s 48(3)(b)(i) of the SA Limitation Act. That is to say, this proceeding was not instituted within twelve months after ascertaining all of the mattes alleged in the Statement of Claim. Accordingly, it is not open to make an order under s 48(1) of that Act.

QUEENSLAND LIMITATION ACT 72 Section 11 of the Qld Limitation Act provides that an action for damages for negligence, trespass or breach of duty in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person shall not be brought after the expiration of three years from the date on which the cause of action arose. However, s 31(2) provides as follows: "(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court:

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly." Under s 31(1) the section applies to the actions referred to in s 11. 73 Having regard to the conclusion that I have reached in relation to the NSW Limitation Act, it follows that it would not appear to the Court as is required by s 31(2). Thus, the period of limitation was three years from the death of Mr Bradford. The Court can only order that the period of limitation be extended so that it expires at the end of one year after the date on which all the material facts of a decisive character relating to the right of action were within Mrs Bradford's means of knowledge. That was no later than October 1988. Extension of the period for one year after that date would be of no utility, since the proceeding was not commenced until December 1989.

conclusion 74 Having regard to the conclusions that I have reached in relation to each of the relevant limitation statutes, I consider that the application for orders under those statutes should be refused. Whether or not that will result in dismissal of the proceeding has not been the subject of any argument at this stage. The parties have requested that I reserve the costs of the motion, and accordingly, I propose to make no orders on Mrs Bradford's motion at this stage but will fix the matter for further directions on 7 February 2003. I certify that the preceeding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 29 November 2002 Counsel for the Applicant: Mr H.W.H. Bauer

Solicitor for the Applicant: Ms R. May of Maurice May & Co

Solicitor for the Respondent: Mr C. Ktenas of the Australian Government Solicitor

Date of Hearing: 26, 27 November 2002