Hardship
179 The applicants have complained about the breadth of the Commonwealth's attack, referring to statements made during the course of earlier directions hearings by counsel for the Commonwealth. Those statements indicated that the Commonwealth's strike-out application would be limited to an argument that neither applicant had identified in their pleadings grounds that would satisfy the conditions that must be fulfilled to enliven the favourable application of the Court's discretion to grant extensions of time under s 44 of the Limitation Act. Although I refused an application on the part of the Commonwealth to hear and determine, as preliminary questions, whether the applications for extensions of time should be granted and whether the claims for equitable damage should be barred, I saw no reason why these subject matters and, indeed, any other subjects that the Commonwealth thought relevant, should not be raised by the Commonwealth in the course of its submissions with respect to the claimed issue of irreparable prejudice. Indeed, I know of no reason why the Commonwealth should be restricted in its arguments on its application for summary dismissal; it is entitled to advance any relevant material in support of the orders that it seeks.
180 The Commonwealth relied heavily on the decision of the High court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The plaintiff, Ms Taylor, sued the Health Authority, alleging that it was vicariously liable for the conduct of a doctor in 1979; she claimed that the doctor had failed to explain the choices that were available to her when she was faced with a decision whether to undergo a hysterectomy. She alleged that the doctor told her that the operation was necessary to relieve severe pain and bleeding. She accepted this advice and the operation was performed. However, she continued to experience pain during the ensuing fifteen years. In 1994, she obtained the hospital records concerning her treatment; they referred to a pelvic inflammatory disease which was said to be a non-operative disease not treatable by hysterectomy. She instituted proceedings in the District Court, applying for an extension of time under subs 31(2) of the Limitation of Actions Act 1974 (Qd) in which to bring an action. That subsection provides as follows:
"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;
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a 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."
181 There was evidence that, at the time of the institution of the proceedings, the doctor who had performed the hysterectomy then resided overseas and that attempts to contact him had been unsuccessful. The learned trial judge held that the Health Authority would be placed in a position of serious prejudice having regard to the lapse of time - particularly since it was possible that the doctor may not be located and, in any event, it seemed unlikely he would have any recollection of the conversations that were alleged by Ms Taylor to have occurred. His Honour therefore declined to grant an extension of time. The plaintiff appealed successfully to the Court of Appeal of the Supreme Court of Queensland; that Court concluded that once an applicant had satisfied the conditions in subs 31(2) there was an evidentiary onus on the Health Authority to demonstrate prejudice, which in this case it had not discharged. By a majority of four to one, the High Court allowed the Health Authority's appeal.
182 McHugh J, at 552, said that the "effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions." He explained that courts and commentators have perceived four additional broad rationales for the enactment of limitation periods. They can be summarised as follows:
· as time goes by, relevant evidence is likely to be lost;
· it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;
· people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;
· the public interest requires that disputes be settled as quickly as possible.
183 When an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has "the positive burden of demonstrating that the justice of the case requires that extension": McHugh J at 554; see also Dawson J at 544 where he agreed with McHugh J, adding that to "discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant." Dawson J also agreed with McHugh J that "once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."(p 544)
184 Toohey and Gummow JJ in their joint judgment expressed themselves in these terms at 547-548:
"The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:
"It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice."
In the District Court [the trial judge] outlined the facts as they emerged from the material before him. He then referred to the judgment of Tadgell J in Kosky v Trustees of Sisters of Charity (1982) VR 961 which concerned an application for extension of time under the Limitation of Actions Act 1958 (Vict). Tadgell J referred to the discretion under the Victorian Act and continued [ in Kosky 969]:
"There are no doubt some cases in which a lapse of fourteen years from the time of allegedly negligent conduct until the commencement of an action in respect of it would of itself render a fair trial of the issues impossible or so unlikely that a trial ought not to be countenanced. In such a case it would presumably be right to refuse to make an order . . . even if the applicant were otherwise entitled to ask for one."
[The trial judge] referred to the difficulties confronting the respondent: the uncertainty of locating Dr Chang and the unlikelihood of him having any recollection of the conversation. His Honour recognised that the respondent bore the onus of proof in any action against the appellant and that the contemporary medical records would appear to make the discharge of that onus a difficult task for her. "Nevertheless", he concluded, "I think that the [Health Authority] is placed in a position of serious prejudice having regard to the lapse of time which has occurred". It was open to his Honour to take a different view on the facts but there can be no quarrel with the general approach he took."
185 Mr Meagher QC, for the Commonwealth, emphasised the concept of a fair trial and the acceptance of that concept by Toohey and Gummow JJ at 548 and again at 550; at that former reference their Honours had said:
"A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired."
186 In Sydney City Council v Zegarac [1998] 43 NSWLR 195 at 200, Mason P questioned whether this reasoning applied to the New South Wales Limitation Act 1969 having regard to the presence of an express provision that required the Court (when considering an application for an extension of time) to have regard to:
"(a) …
(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available."
187 As Mr Meagher QC pointed out, there is no equivalent provision in the Northern Territory Limitation Act and, hence, I do not consider that I need share the concern of the learned President. I do, nevertheless, agree with his earlier remarks (at p 199) that "mere proof of actual prejudice [to a respondent] will not dictate the rejection of an application to extend time." Prejudice of such a nature is a most important consideration but, despite its importance, it is but one of several factors that are to be assessed.
188 McHugh J in Brisbane South Regional Health Authority v Taylor (see above) also emphasised the importance of ensuring that a fair trial will be available to a prospective defendant. His Honour listed the various factors that are to be considered by a trial judge when considering an application for an extension of time and the consequences that will or might flow from the grant of such an extension. He said at 555:
"If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action."
189 There are, of course, no allegations of fraud, deception or concealment in these cases against the Commonwealth with respect to the applicants' failure to institute their respective actions within the conventional time limits. Speaking more generally, McHugh J went on to say:
"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice."(555)
190 I do not see, in this passage, a different approach to that taken by Toohey and Gummow JJ. In my view the reference to the defendant being able "to prove that he or she will not now be able to fairly defend him or herself" is only the "evidentiary onus" to which Toohey and Gummow JJ referred at 547.
191 Paramasivam v Flynn (see above) is an example of another case that was summarily dismissed because of the very great prejudice to the respondent due to the lapse in time between the date of the alleged sexual assaults and the institution of the proceedings. The appellant had issued a writ and statement of claim on 23 April 1996 alleging that twenty years earlier in 1976, as a child of eleven years of age, he had been sexually assaulted by the respondent and that the respondent had, thereafter, continued to abuse him sexually on a regular basis until the appellant reached the age of twenty one on 15 November 1985. The appellant sought damages for assault and for breach of fiduciary duty; the latter claim was based on the allegation that the respondent was, at material times, the appellant's guardian. The respondent filed a defence in which he denied all matters of fact that had been alleged against him in the statement of claim; the respondent also pleaded that the action, having been commenced more than six years after the alleged causes of action had accrued, was barred by the relevant limitation legislation. The appellant filed a notice of motion seeking to extend the limitation period to the date of the issue of the writ; the respondent countered by filing a notice of motion seeking summary judgment on the ground that the claims were statute barred. The two notices came on for hearing at the same time and the judge at first instance found in favour of the respondent; his Honour held that the appellant had not discharged the onus of showing that it was "just and reasonable" to extend the time within which to commence the proceeding and, further, that the respondent was entitled to summary judgment against the appellant.
192 The relevant legislation that the Court was required to consider in Paramasivam v Flynn included the Limitation Act 1985 of the Australian Capital Territory. Subsection 36(2) of that Act imposed an onus on a plaintiff to satisfy the Court that it was "just and reasonable" to order an extension of time, whilst subs 36(3) identified matters that the Court "shall have regard to" in coming to its decision. Of the several matters that are listed in the subsection, the length of and the reasons for delay and the extent to which, having regard to the delay, there is, or is likely to be, prejudice to the defendant are the first two that are mentioned. The following passage from the judgment of the Full Court at pp 209-210 addresses the issue of delay and sets the scene for the ultimate decision that the appellant's appeal should be dismissed:
"In relation to delay, his Honour observed that the claim for the earliest of the assaults alleged became statute barred on 15 November 1985 while the claim for the most recent of the assaults became statute barred on 15 November 1991. It follows that the writ was 10˝ years "out of time" in respect of the former and four and a half to five years in respect of the latter. The length of time from the first alleged assault in Fiji to the issue of the writ was in the order of 20 years and for the first alleged assault in Sydney more than 17 years. Thus the appellant was seeking a very substantial extension. His Honour considered that the nature of the appellant's case was such that it was forensically unrealistic to consider granting the extension of time in relation to only some of the later assaults. It was a case where evidence would have to be led in relation to all of the alleged assaults in order to establish a pattern of behaviour of the type for which the appellant contended and he would certainly be cross-examined at large."
193 The acts of removing Mrs Cubillo - first from Banka Banka Station to Seven Mile Creek, then to the Six Mile Creek, then to Phillip Creek and finally from Phillip Creek to the Retta Dixon Home - are probably the most important part of Mrs Cubillo's case; all other allegations, including the claim that the removal was part of an indiscriminate, uncaring government policy, radiate out from those acts of removal. The case for the Commonwealth would, so it was claimed, have been materially assisted by the evidence of:
· the two patrol officers, Messrs Harney and McGuiness who allegedly removed Mrs Cubillo, forcibly and against the wishes of her family from Banka Banka Station;
· Mr and Mrs Ward, the owners of Banka Banka Station at the time of Mrs Cubillo's removal;
· Mr Penhall, the patrol officer who drove Mrs Cubillo and the other children from Phillip Creek to the Retta Dixon Home in Darwin; and
· Miss Amelia Shankelton, the Superintendent of the Retta Dixon Home during Mrs Cubillo's residency and the person who is said to have played a pivotal role in taking Mrs Cubillo from Phillip Creek to Darwin.
194 The Commonwealth claims that these witnesses would have refuted the claim that Mrs Cubillo was removed without the consent of her family. But all those witnesses are dead and the Commonwealth is deprived of the opportunity of investigating and using their evidence. The Commonwealth is not, of course, in a position to say that these witnesses would have refuted Mrs Cubillo's claim: after all the witnesses are dead and no one knows what they might have said. However, I do not think that it is necessary for the Commonwealth to prove what the witnesses would have said; it is sufficient for it to prove that they would have been, more likely than not, material witnesses and that they are no longer available to give evidence because of the delay on the part of Mrs Cubillo in the institution of her proceedings.
195 In par 1(a) of her statement of claim, Mrs Cubillo alleged that she was, following her removal, "detained and kept away from her mother and family by the Director of Native Affairs …". She later identified the persons who held the office of Director during her detention as Messrs Chinnery, Carrington, Moy, Stahl, McCaffrey and Giese. All these men except Mr Giese are dead and Dr Burrows gave evidence that Mr Giese is not able to give evidence due to memory impairment and the onset of dementia.
196 I have earlier said that in par 31 of her statement of claim Mrs Cubillo claimed that there was a "general policy of removal and detention of half-caste children . . . without regard to the individual circumstances" of the particular child. The Commonwealth has denied that there was such a policy. But in order to substantiate that denial, the case for the Commonwealth would have been assisted, so it was argued, by the oral evidence of the senior bureaucrats and the political leaders of the day. Miss Lajos, in her first affidavit, has listed Prime Ministers, Ministers of the Crown responsible for administration of the Northern Territory, the Administrators and the relevant Departmental Secretaries over various periods encompassing the periods of Mrs Cubillo's and Mr Gunner's detention; they are all dead. Of the political leaders, Sir Paul Hasluck stands out; he was the Minister of State responsible for the welfare of Aboriginals in the Northern Territory from 1951 to 1963. He wrote extensively on the subject. But he died on 9 January 1993. His writings are available but the Commonwealth is denied the opportunity of presenting his oral evidence.
197 The Commonwealth has directly taken issue with the applicant's allegations as to the policies of the Government that were formulated from time to time and as to the manner in which those policies were implemented. The Commonwealth's claim is that those policies were benign policies, directed to the welfare of Aboriginals and administered in terms consistent with those policies; its claim is that its capacity now to conduct its defences has been severely prejudiced by the passage of time and the loss of so many potential witnesses; it has been denied the opportunity of questioning people and of ascertaining whether, and to what extent (if at all), they would have been available as witnesses to assist the Commonwealth in the presentation of its defences.
198 It is not necessary to know that these missing witnesses would have assisted the Commonwealth's case; it is sufficient to know that they are not available to be interviewed and, if appropriate, called as witnesses. It would be illogical to expect a respondent to put before the Court material pointing to the nature of the evidence that a dead or missing witness might have been able to give; it is sufficient if the Court is satisfied that the deceased or missing person was a person who, more likely that not, would have been able to assist the Court in resolving the issues.
199 Counsel for the Commonwealth acknowledged that there are a number of available documents that reflect the policies of the Government of the day. Acknowledging that those documents will speak for themselves, counsel nevertheless submitted that they would offer no assurance that they reflect all aspects of policy. That proposition could only be correct if material documents were missing so that the available documents did not thereby disclose the complete picture. If it was intended to mean that oral evidence that would supplement or, perhaps, contradict the contents of the documents has been lost as a result of deaths, I consider the submission to be misconceived. The thought that matters of importance relative to policy issues were not committed to writing has little or no appeal. It was also advanced, as part of the Commonwealth's submissions, that the Commonwealth has produced writings on policy issues that are different in their effect to those contained in the documents that have been produced by the Applicants. As no examination of any documents has been undertaken by the Court at this stage, it is not appropriate to express a view on any alleged differences. But it does not follow that the Commonwealth is or will be thereby prejudiced. To say, as was suggested by the Commonwealth during the course of its submissions, that it has lost the opportunity to lead oral evidence as to which writing correctly reflected the policies that applied to Mrs Cubillo or to Mr Gunner - or to part Aboriginal children in general - is to overlook the possibility that (absent any question of ambiguity) oral evidence as to the meaning of a written document would not normally be admissible. It would seem to me that, in dealing with a matter of such importance as official government policy on a nominated issue, the likelihood of oral evidence being admitted to supplement or contradict official policy documents would be remote.
200 I do not, however, believe that I should make a finding, one way or the other, at this stage that the Commonwealth is or will be embarrassed in the presentation of its defence by virtue of the fact that senior political and executive officers are now dead. I include in that classification the various Prime Ministers and the Ministers of the Crown whose portfolios included Aboriginal Welfare, along with the Secretaries and senior members of the staff of their Departments; I also include the different Administrators of the Northern Territory. The Directors, and the officials who were answerable to the Directors, stand in a different position. Their potential to have been witnesses in these actions rests on different grounds; they would not so much be giving evidence on the identification of Government policies in matters pertaining to Aboriginals: the thrust of their evidence would, more likely than not, have been directed to the implementation of those policies and - more importantly - whether their actions and those of their subordinates exceeded the bounds of those policies.
201 The case for the Commonwealth that the respective statements of claim should be struck out and that the actions should be summarily dismissed is dominated by the claim that it will suffer irreparable prejudice if the matters are permitted to proceed. In short, the case for the Commonwealth is that so much time has gone by and so many material witnesses are now dead that it would not be possible for the Commonwealth to present its defence adequately. In other words, so it was submitted, one can consider, based on the material that is presently before the Court, this fundamental proposition in isolation from the question of extensions of time: one can consider whether the Commonwealth has made out such a case of prejudice that the two actions should now be dismissed. The Commonwealth put its submission on this issue in these terms:
"The only way in which these defences may be defeated, it is submitted, is by the Applicants being successful in invoking the judicial discretion to extend time. Such an application, whilst made in the statements of claim, has not been heard, determined and allowed. So long as that is the position, the defence must succeed. It is submitted that the Respondent has an unqualified existing right in law not to be pressed into trial on the common law claims."