Davison v State of Queensland, Gibson v State of Queensland,

Davison v State of Queensland, Gibson v State of Queensland, - [2006] HCA 21 - HCA 2006 case summary — Zoe

[39]

The appellants submitted that to require of s 43 claimants for leave to initiate proceedings which are about to be statute barred and in relation to which an extension of time may be sought under s 31(2), that they show a reasonably arguable case for the granting of an extension, was to read words into s 43 in an impermissible manner. That submission is correct for the following reasons.
The Court of Appeal majority said that s 43 was not to be construed "restrictively" and that the s 43 discretion had an "unfettered" character[12]. However, the requirement for a reasonably arguable case does restrict and fetter discretion. There is no support for this outcome in the express statutory language or the subject-matter, scope and purpose of the legislation.
If a claimant under s 43 has to demonstrate a reasonably arguable case for extension under s 31(2), it would seem to follow from that premise that the claimant is obliged to demonstrate a reasonably arguable case on every issue relevant to the proceeding for the starting of which leave is required. This conclusion is improbable in relation to legislation which operates where there is an urgent need to start proceedings, and the improbability of the conclusion falsifies the premise.
The function of s 43 may be explained by borrowing some well-known words which Dixon J used in another context - to prevent litigants being deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose[13]. Section 43 will no doubt operate in many circumstances outside the intersection between Ch 2, Pt 1 and the limitation period exemplified by this case, but the case does illustrate an important potential field of its operation. In the present case, the construction propounded by the Court of Appeal majority prevents determination of the nature and lawfulness of the respondent's conduct in relation to the appellants while they were children - on the appellants' case, conduct of a grave kind. It also prevents determination of the preliminary potential controversy over whether the limitation period should be extended under s 31(2).
Even if there were some verbal foothold in the legislation for the construction adopted by the Court of Appeal majority, the context points strongly against that construction in the present field of application of s 43. Section 31(2), read with its companion provision s 31(1), bristles with difficulties of construction and application[14]. The court might often find the task of assessing whether there is a reasonably arguable case for the granting of an extension under s 31(2) extremely difficult where it has to be performed in the course of a necessarily hurried s 43 application.
The construction stated by the Court of Appeal majority perhaps rests on a fear that injustice for defendants might arise from too free a grant of leave under s 43. That risk is reduced by the capacity of the court under s 43(2) to impose conditions which are necessary or appropriate in the particular circumstances, and by the stay of the proceeding which has been started by leave until either the claimant complies with Ch 2, Pt 1 or the proceeding ends.
In so far as the Court of Appeal majority contended, independently of the question of construction just discussed, that there was not an urgent need to start the proceeding, the contention must fail if it is considered simply as a matter of dates: the expiration of the one year period stipulated in the tailpiece to s 31(2) was imminent. However, the majority saw the issue of whether there was urgency in a special sense - as being integrally linked with the issue of whether the s 31(2) application was reasonably arguable. This flows from the fact that the majority held that "urgency" was not established "essentially for the reasons expressed by" Douglas J[15]. His Honour said:

[51]

The respondent cast doubt on whether sub-pars (a)-(d) of par 27 were material facts. That doubt is without foundation. If the abuse of children in foster care were extensive, as par 27(c) says, it would be more likely that the respondent would have suspected it or known about it. If it did suspect it or know about it, the prospects of establishing a breach of a duty of care would be improved. That supports the existence of a "material [fact] relating to a right of action" of the kind defined in s 30(1)(a) of the Limitation of Actions Act.
The respondent then submitted that the opening words of par 27 made it evident that neither the appellants nor their solicitor could say when the facts came within the appellants' means of knowledge; that it could not be expected that this state of ignorance would cease; and hence that the appellants would never be able to demonstrate a prospect of establishing that a material fact of a decisive character relating to the right of action was not within their means of knowledge until the date identified in s 31(2).
These submissions must be rejected. Read together, pars 25-27, while cautiously drafted, do demonstrate some prospect of establishing at the hearing of the s 31(2) application that it was not until 18 June 2003 that a material fact relating to the right of action (the respondent's negligence) which was of a "decisive character" within the meaning of s 30(1)(b) of the Limitation of Actions Act was within their means of knowledge. They say, in short, that before 18 June 2003 the appellants did not realise that the respondent might be at fault. As the appellants submitted, s 31(2) applications often involve the filing of extensive affidavit material on questions of duty, breach, causation and quantum, and cross-examination on the affidavits. Evidence of that kind goes not only to the issue referred to in s 31(2)(a) (which leads back into questions about the existence of material facts under s 30(1)(a), questions about whether they were of a decisive character under s 30(1)(b), and questions about means of knowledge under s 30(1)(c)), but also to questions of whether there is evidence to establish the right of action under s 31(2)(b). Paragraph 26 of the affidavit can be seen, particularly in the light of other evidence filed by the appellants as to the extent of the inquiries they had in train in relation to s 31(2), as an elliptical reference to s 31(2)(a) issues. To say that the appellants and their advisers cannot be certain about the date referred to in s 31(2)(a) without further inquiry and medical evidence is no more than a demonstration of prudence. When par 26 is read with the opening words of par 27, it cannot be said that it was evident that neither the appellants nor the solicitor could say, or would ever be able to say, what the s 31(2)(a) date was. Holmes J was right to say that there was a strong basis for an argument that a material fact of a decisive character became known to the appellants on 18 June 2003.

[59]

KIRBY J. Six appeals are before this Court. They raise common issues. They come from a majority decision[17] of the Queensland Court of Appeal[18]. Primarily, they concern the meaning and application of the Personal Injuries Proceedings Act 2002 (Q) ("the Personal Injuries Act").
The provisions of s 43 of the Personal Injuries Act, so far as relevant, are set out in the reasons of Gummow, Hayne, Heydon and Crennan JJ ("the joint reasons")[19]. Also appearing there are provisions of the Limitation of Actions Act 1974 (Q) ("the Limitations Act") which govern the rights of the appellants. They are otherwise well out of time to bring proceedings against the State of Queensland ("the State") for abuse which they allege they suffered, as children, when in foster care or otherwise under the responsibility of the State[20].
As appears in the joint reasons, there are two ways of interpreting s 43 of the Personal Injuries Act. The first is the way preferred by the majority in the Court of Appeal. This holds that, to secure leave under s 43, in order to start a proceeding for damages notwithstanding non-compliance with the Personal Injuries Act, it is necessary for a claimant to establish affirmatively that he or she has "a reasonably arguable case for the granting of an extension" under s 31(2) of the Limitations Act[21].
The other meaning, preferred by McMurdo P[22] in her dissent in the Court of Appeal (and by Holmes J at first instance[23]) is that, by its language and purpose, the power afforded by s 43 of the Personal Injuries Act is addressed to responding to an urgent need to start proceedings because of a danger, otherwise arising, of the descent of a limitation bar. In such circumstances, the provision is no more than a procedural facility that may be granted on terms to preserve the status quo[24]. At most, the prospect of ultimately securing an order extending the limitation period under the Limitations Act would be relevant if a court, considering the application under s 43, were convinced that the prospect of mounting an arguable case for such an extension was fanciful[25] or if it appeared that the application amounted to an abuse of process[26].
In my view, the better construction was that adopted by the primary judge and McMurdo P in the Court of Appeal. However, as is often the case, by the time disputed questions of statutory construction reach this Court, the point is not unarguable[27]. There are persuasive contentions both ways. To arrive at the preferable, and therefore the correct, interpretation of s 43, it is necessary to evaluate the arguments for and against the competing approaches.

[60]

Several considerations favour the approach adopted by the majority in the Court of Appeal.
First, although it is contemplated that an order under s 43(1) of the Personal Injuries Act will be made on an interlocutory basis, subject to any conditions imposed pursuant to s 43(2) and subject also to a stay as contemplated by s 43(3) of that Act, the grant of leave to start proceedings that might not otherwise be lawfully commenced, is clearly a serious step. It disturbs the entitlement of a party to be free of the burdens, worries and costs of litigation.
The law abhors judicial orders (even of a temporary and conditional kind) which disturb the legal rights of parties without good reasons being demonstrated for making them. Thus, the necessity to demonstrate the existence of a "reasonably arguable" foundation for the granting of leave might be viewed as no more than affirmation of the common requirement that a litigant, seeking a privilege not otherwise belonging to it, must demonstrate, to a reasonable standard, the utility and justifiability of granting that benefit. Such an approach is not unknown in judicial procedure. Where a litigant has become out of time and seeks leave to file a defence, he or she will often be required to justify an order to overcome the time default by, for example, demonstrating that he or she has a real defence[28]. This is sometimes expressed as the requirement to show a defence on the merits. Applications for such leave might otherwise easily become a means of spinning out litigation, without any ultimate prospect of success and, in the meantime, imposing unreasonable burdens on the opposing party.
Secondly, the foregoing considerations may have special relevance where the propounded "start [of] the proceeding[s]", claimed pursuant to s 43(1) of the Personal Injuries Act, involves the commencement of proceedings that are otherwise barred by a limitation statute. Until the appellants in the present case could secure orders that "the period of limitation for the action be extended", in accordance with s 31(2) of the Limitations Act, they are out of time. One objective of limitation statutes is to spare potential defendants of having to live with the burden of a legal action indefinitely where a potential claimant has not pursued his or her remedies in a timely fashion. Old claims impose special burdens on parties obliged to defend them. Parties conducting their affairs are ordinarily entitled to predict when they can regard potential actions as stale and expired. The community has a general interest in the prompt commencement of proceedings and in the finality of contested rights and obligations, given the injustices that can attend long delayed claims[29]. In such circumstances, where the propounded "urgency" to start the proceedings involves the hypothesis that an extension of the period of limitation for the bringing of the action will be granted, proof that this is a reasonable hypothesis is, in one sense, inherent in the exercise of the grant of leave under s 43(1) of the Personal Injuries Act.
Thirdly, the State put this last submission in terms (accepted by the majority of the Court of Appeal) of the language of s 43(1) of the Personal Injuries Act. Unless it could be shown that the appellants enjoyed, as a matter of fact and law, "a reasonably arguable case for the granting of an extension" the precondition to the utility and urgency for the order under s 43(1) would not be made out. On this view, there could only be "an urgent need to start the proceeding" if "the proceeding" so envisaged were shown to be "reasonably arguable". If, at the time the applications under s 43(1) of the Personal Injuries Act were made, the appellants could not show this, it would follow that the appellants could not truly demonstrate "an urgent need to start the proceeding." The very "urgency" and the "need", upon this view, postulates the demonstrable viability of "the proceeding."
The majority in the Court of Appeal, and a judge at first instance who had earlier rejected similar interlocutory applications for grants of leave under s 43(1) of the Personal Injuries Act (Douglas J[30]) embraced this approach. It was one that they regarded as inherent in the provision of leave for "an urgent need to start the proceeding." Absent demonstrated viability, such a "need", particularly an "urgent need", was unproved.
Fourthly, the State contested (correctly in my view) the repeated suggestions of the appellants that the discretion conferred on the primary judge (relevantly Holmes J in the second application under s 43) was "unfettered". Support for such a categorisation of the power in s 43 of the Personal Injuries Act appears in some of the reasoning in the Court of Appeal in this case[31] and in an earlier decision on the section[32].
However, no discretion granted by statute is absolutely unfettered[33]. The applicable law may not contain express qualifications, limitations or restrictions. But it remains for a repository of statutory power always to exercise that power in accordance with the language of the grant, and so as to achieve the purposes of the statutory provision. The State's submission to this effect was clearly right. To the extent that the appellants rested their resistance to disturbance of the order Holmes J made under s 43 of the Personal Injuries Act upon the suggestion that her Honour's discretion was "unfettered" or "untrammelled"[34], their argument should be rejected. However, this analysis leaves to be ascertained the ambit of the requirements imposed on the exercise of the power by the Personal Injuries Act.

[61]

Whilst I accept that establishment of a reasonably arguable case (and thus in a matter of the present kind of a reasonably arguable entitlement to an extension of the period of limitation) is a possible interpretation of s 43 of the Personal Injuries Act), I do not consider it to be the preferable construction of the section.
First, the language of s 43(1) of the Personal Injuries Act does not spell out, in terms, a requirement that leave should not be granted unless the claimant demonstrates a reasonably arguable case for an extension under the Limitations Act. To make good that precondition, it is necessary to derive it, by implication, from the language and purpose of s 43(1), read with other applicable legislation, such as that providing for an extension of the period of limitation where "the proceeding" could otherwise not be successfully maintained.
Secondly, s 43 is a remedial provision[35]. It is designed to permit a party to start a proceeding who is not otherwise entitled to do so. It thus contemplates an exceptional facility. Clearly, it does so for a purpose protective of the rights of the party seeking to do so, so that such party will not lose possible rights by reason of any further delay in commencing the proceedings. It is normal for remedial provisions of legislation to be given a broad, and not a narrow or restricted, interpretation[36]. This is especially so where the beneficial provision in question has been enacted to protect the access of a party to the courts so as to vindicate claims to legal rights before those courts[37] and to prevent such access from being lost by the descent of a limitation bar[38].
Moreover, the settled approach to the construction of legislation, expressed by this Court over many years[39], is one that endeavours to give effect to the purpose of a legislative prescription, deriving that purpose from the language and structure of the legislation and any available supplementary sources. In the present case, the purpose of s 43 is, relevantly, to permit the Court to deal with urgent circumstances by the provision of what is, effectively, interim relief granted on conditions designed to do no more than to prevent any further detrimental running of time that might result from additional delay in the commencement of proceedings.
Thirdly, the foregoing arguments for affording the language of s 43 of the Personal Injuries Act a broad and beneficial construction are reinforced when regard is had to considerations implied in the language of the section. Section 43(1) requires that the claimant, seeking leave, must secure it from "[t]he court". Of itself, this affords a protection to the party affected by the grant of leave, but only in terms of the stated conditions for its exercise. As stated, this is no more than the existence of "an urgent need to start the proceeding." The focus, expressed in the statute, is therefore upon procedural urgency. The statutory language goes no further.
The need for care in the importation of other preconditions was correctly explained by Jerrard JA in Gillam[40]. In that case, his Honour (with the agreement of Dutney J and Philippides J) rejected an attempt to import into s 43 of the Personal Injuries Act an implication obliging the claimant, seeking the urgent leave there provided, to demonstrate a "reasonable excuse for delay". Addressing that submission, which is analogous to the construction favoured by the majority of the Court of Appeal in this case, Jerrard JA said[41]:

[63]

Fourthly, the last observation suggests a critical reason why the construction urged by the State, and adopted by the majority in the Court of Appeal, should not be accepted. To accept it would be to undermine the achievement of the expressed purpose of s 43. By its terms, that section is addressed to interim relief designed to hold the status quo for an identified period. It is designed to do so in urgent circumstances. To impose as a precondition for the provision of such urgent relief the obligation to prove a reasonably arguable case for an order for the extension of the period of limitation under the Limitations Act, would risk frustrating or defeating the object of s 43.
Historically, before the enactment of the Personal Injuries Act, it had been possible in Queensland (as in other jurisdictions) simply to file a statement of claim (previously a writ of summons). That initiative, without more, would then typically stop time running. Applications for an extension of time under provisions such as those in the Limitations Act could then be made without the pressure of the risk of the descent of a limitation bar, either on the cause of action itself or on an application for extension of the period of limitation for bringing an action. The enactment of the Personal Injuries Act, which was retrospective in its operation[42], terminated this more leisurely state of procedural affairs. It introduced various restrictions and time limits, presenting a statutory obstacle course to be negotiated by a party wishing to vindicate a claim in court. Because this is the context in which s 43 of the Act has been enacted, it suggests the manner in which the section should be construed. A construction that upholds the facility of urgent relief is to be preferred to one that would endanger, or defeat, the grant of such relief in circumstances arguably urgent.
Fifthly, an added reason for adopting this approach to s 43 of the Personal Injuries Act is the highly complex nature of the law applicable to the provision of orders for extensions of a period of limitation under the Limitations Act. The law in question, copied in Queensland as in other Australian States from amendments to limitations law first enacted in England[43], has given rise to much litigation, uncertainty and complaint[44].
Apart from the law, the facts usual to many cases arising under applications for orders to extend the limitation period are typically complicated by many features of such applications, including the vulnerability, disadvantage and other personal characteristics of claimants[45]. To accept, as a precondition to the provision of the urgent relief for which s 43 of the Personal Injuries Act provides, an obligation in the claimant to establish a reasonably arguable case that extension of the limitation period will be ordered would not only impose, in many instances, a burden difficult or impossible to discharge in an application which, of its nature, is addressed to allegedly urgent circumstances. It would also risk shifting the contest about that question from the proper time when, and venue where, it is presented for determination. It would divert a proceeding essentially concerned with an "urgent need", into a proceeding likely to frustrate, or defeat, a timely response to such need. This cannot be what Parliament meant by enacting s 43(1). If the law abhors futility, it is especially reluctant to accept futility in a provision enacted by Parliament for particular and limited purposes.
Sixthly, nothing that is done by the provision of leave under s 43 of the Personal Injuries Act to start a proceeding alters, in the slightest, the ultimate disposition of the application that may then be necessary for an order for the extension of the period of limitation. The grant of leave under s 43(1) does not advance the proceeding substantively until any necessary order is made extending the period of limitation. The grant of leave outside a limitation period, if that it be, does not overcome any available limitation defence[46]. It merely suspends the running of time that would have occurred had the proceeding not been started at all.
Seventhly, the imposition of procedural safeguards, as contemplated by s 43(2) of the Personal Injuries Act, and compliance otherwise with the provisions of the Act as contemplated by s 43(3) (with the prospect of revocation of leave if such conditions and compliance are not forthcoming), mean that abuse of the leave for which s 43(1) provides can be quickly, and effectively, dealt with.
This fact was acknowledged by Holmes J when her Honour made it clear that the leave provided was conditional on the appellants' seeking orders for an extension of the limitation period in applications filed and served within an indicated period after the date of her Honour's orders. The orders subsequently made by Holmes J established a clear timetable for the filing and serving of the appellants' applications; for the return of such applications before the court; and for the personal swearing by each of the appellants "to the issue of when ... and the circumstances under which, a material fact or facts of a decisive character relating to [the] cause of action against the respondent was first within [his or her] means of knowledge". These were the kind of conditions that s 43 of the Personal Injuries Act contemplated.
In the events that occurred, Holmes J's timetable was interrupted by the appeal to the Court of Appeal[47]. The orders were vacated when the Court of Appeal, by majority, substituted its own orders dismissing each appellant's application under s 43. Had such orders not been made, the orders of Holmes J would have quickly brought the proceedings to a consideration of the extension of the limitation bar. But they would have done so in the proper place and at the proper time for decisions on such questions.

[64]

Once it is accepted that the majority of the Court of Appeal applied an incorrect test for the grant or refusal of leave under s 43 of the Personal Injuries Act, and imposed an inapplicable precondition that the appellants must prove a "reasonably arguable case for the granting of an extension" under s 31(2) of the Limitations Act, the judgment of the Court of Appeal cannot stand.
The State filed no notice of contention, seeking to uphold the Court of Appeal's orders on a different basis. However, it did submit orally that, even if the test of McMurdo P, as to the prospective "futility" of the appellants' proceedings, were applied, the State was entitled to hold the orders of the Court of Appeal. In expressing the very clear case in which, where urgent need to start the proceeding is otherwise demonstrated, leave might be refused under s 43(1) by reference to futility, McMurdo P could not have meant a futility discovered only following a full exploration of the merits of the application for orders that the periods of limitation for the proposed actions be extended to show "a reasonably arguable case" for the extension. In some, rare, cases it will be plain, and easily demonstrable in a proceeding necessarily urgent and abbreviated, that the proceeding for which s 43(1) leave is sought is bound to fail. In such circumstances alone, the focus of attention in the court to which the application is made under s 43(1) of the Personal Injuries Act would shift from the urgent need to preserve the status quo to the pointlessness of providing any relief in the particular circumstances of the case.
For the reasons expressed in her minority opinion in the Court of Appeal, McMurdo P was correct to conclude that the present was not a case where "futility" of this kind was made out[48]. In her Honour's view, there had been an arguable advance in the preparation of the appellants' cases for the orders they would seek for the extension of the respective limitation periods applicable to those cases. This was affirmed by the appellants' solicitor, notwithstanding the acknowledged difficulties of securing instructions from the appellants themselves. Moreover, in the opinion of McMurdo P, other material before Holmes J demonstrated the genuine attempts that had been made by the appellants to gather materials in order to advance their respective claims for limitation extensions. And, as McMurdo P put it[49]:

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