Mann v Commonwealth of Australia & State of New South Wales

Pleaded against the Commonwealth only, an action based upon an allegation of misfeasance in public office. 65 One matter which seems to me to be fatal to the first four causes of action is that any dealings on which the plaintiff relies as founding those causes of action were dealings between the Commonwealth and the State and WMS. They were not dealings between those departments of Commonwealth and State and the plaintiff personally. However, because I am of the view that the defence raised by both defendants under the Limitation Act should succeed I shall not deal, in detail, with the various causes of action raised by the plaintiff. 66 I turn then to the limitation point. Section 14 of the Limitation Act 1969 creates a limit of six years running from the date on which the cause of action first accrues. For the purposes of this case I shall assume that date to be 29 October 1987, the date on which the contents of Mr Rubinstein's sixth affidavit became known to the plaintiff. 67 At that date the plaintiff was made aware of the documents which Mr Rubinstein had inspected in March 1987 in Australia. There is no suggestion in the evidence, that any other documents were involved. The limitation period thus expired on 28 October 1993. 68 As I have said the Statement of Claim in this case was filed by the plaintiff on 30 September 1994. Clearly the plaintiff is out of time unless he can obtain relief from the statutory bar under the Act. In this regard he relies upon s 55 of the Act. 69 Section 55 is in the following terms: "55.(1) Subject to subsection (3) where: (a) there is a cause of action based on fraud or deceit; or (b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or by a person claiming through him against a person answerable for the fraud deceit or concealment. (2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection. (3) For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if: (a) he is a party to the fraud deceit or concealment; or (b) he is, in relation to the cause of action, a successor of a party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs. (4) Where property is, after the first occurrence of fraud deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud deceit or concealment has occurred, subsection (1) does not, in relation to that fraud deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through him." 70 It may be seen from the wording of s 55 that it operates to override the operation of the statutory bar created by s 14. 71 The plaintiff's argument that there had been a fraudulent concealment by both the Commonwealth and State of his causes of action and thus s 55(1)(b) applies and accordingly the defendants cannot rely upon their pleas in bar. 72 It was submitted that what constitutes fraudulent concealment of a cause of action was determined by the Court of Appeal in Seymour v Seymour (1996) 40 NSWLR 358. In particular the plaintiff relies upon the following passage in the judgment of Mahoney ACJ at 372: "In my opinion, there must be in what is involved a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing. At least, this is so in the generality of cases. (There is in this as in many things, the problem of dealing with the person who "closes his eyes to wrong" or is so lacking in conscience that he is not conscious of his own lack of proper standards .)" 73 It was put that in relation to both defendants their conduct falls within the emphasised exception to the general rule that consciousness of wrongdoing is necessary. The submission was that not only did the defendants disclose documents which they should not have but after that they failed to disclose what they had done to the plaintiff. 74 The submission went on that the fact that this arose from a misconception of the existence or scope of their obligation of confidentiality to the plaintiff makes no difference. 75 As both defendants, so the submission continued, were certainly well aware that the information was to be used contrary to the plaintiff's interests. Had they understood their obligations they would have known that they had breached them and at least disclosed that breach to the plaintiff. 76 In Seymour v Seymour the learned trial judge had held that s 55 did not apply in that case. Mahoney ACJ's conclusion as to what is involved in the concept of fraudulent concealment in the subject section involved his Honour carrying out the following analysis at 371 where he said: "The learned judge held that s 55 had no application in the present case. I infer that he so concluded on the ground that, for the section to apply, it was necessary that the solicitor be shown to have been involved in 'moral turpitude' or the like and that that had not been shown. Two things require consideration: what the section requires; and does it apply in the present case. What is here in question is an allegation that Mr Lewis 'fraudulently concealed' the cause of action which existed against him. Mr Brereton relied upon, as he described them, the English line of cases. He cited: Beaman v ARTS Ltd [1949] 1 KB 550 at 559, 561-562; Kitchen v Royal Air Force Association [1958] 1 WLR 563 at 568, 572, 573-574, 578, 579; [1958] 2 All ER 241 at 245I, 249C-E, 250B, 253F-G, 254C; Applegate v Moss [1971] 1 QB 406 King v Victor Parsons & Co [1973] 1 WLR 29 at 33-34; [1973] 1 All ER 206 at 209-210; Tito v Waddell (No 2) [1977] Ch 106 at 244H-245C; Nupponen v Hymix Quarries Pty Ltd (Supreme Court, Foster J, 24 October 1986, unreported) at 3.8-4.5; Hamilton v Kaljo (1989) 17 NSWLR 381 at 386; Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 at 704-711; Rippon v Bradley (Smart J, 13 August 1992, unreported): see also Hawkins v Clayton (at 590.5), per Deane J. Mr McClintock submitted that the decision of McLelland CJ in Equity in Hamilton v Kaljo should be followed in preference to the English authorities. McLelland CJ in Equity said (at 386): 'For my own part, I would regard it as a misuse of language, and unsound, to apply the statutory expression 'fraudulently' in s 55 to any conduct which did not involve some form of dishonesty or moral turpitude.' Mr McClintock referred the Court to Nupponen v Hymix Quarries Pty Ltd, State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 and CE Heath Underwriting and Insurance (Aust) Pty Ltd v Daraway Constructions Pty Ltd (Supreme Court of Victoria, Batt J, 3 August 1995, unreported). In my opinion, the section is not confined to simple common law fraud. It extends to conduct beyond that. On the other hand, it is not, I think, sufficient merely that for the defendant to take advantage of the statute of limitations would be unconscionable or inequitable in the wide sense of these terms. Terms such as unconscionable or inequitable now are used to describe conduct which, in previous times, would not have fallen within them: see Baumgartner v Baumgartner (1987) 164 CLR 137 at 147 and Hibberson v George (1989) 12 Fam LR 725 at 731. Nor, in my opinion, is 'fraudulently' wide enough to include everything which would fall within the description of 'equitable fraud'. Equitable fraud is a doctrine which depends, for this purpose, too much upon nice distinctions which have been drawn in other times: see Snells Equity, 29th ed (1990) at 550 et seq; Meagher, Gummow & Lehane, Equity: Doctrines and Remedies, 3rd ed (1992) at par 1208; and see the discussion in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 553. The history of the English legislation was recently reviewed in Sheldon v RHM Outhwaite (Underwriting Agencies) [1996] 1 AC 102: see, eg, at 144, 153." 77 Earlier in his reasons Mahoney ACJ (with whom Meagher JA and Abadee AJA agreed) found that contrary to the finding of the trial judge that a solicitor had in fact been negligent in relation to a conveyancing transaction. 78 However, in holding that the trial judge was correct in applying s 55, Mahoney ACJ at 372 observed: "I do not think that such a finding should be made. Mr Brereton, in his detailed and comprehensive cross-examination of Mr Lewis, did not, in terms, suggest to him the kind of dishonesty to which I have referred. Nor, I think, did Mr Lewis concede such. The learned judge did not so find and I, on a review of the matter as on a re-hearing, would not make such a finding against him. 79 In relation to the claim against the Commonwealth, the plaintiff relied upon the conduct of an officer of the Commonwealth, a Mr Joseph, the Assistant Secretary of the Department of Immigration in disclosing the documentation to Mr Rubenstein. 80 In support of this contention the plaintiff submitted an affidavit sworn by Mr Joseph, in which Mr Joseph set out his dealings with Mr Rubenstein. In my view there is nothing in that affidavit which points to the kind of dishonesty identified by Mahoney ACJ in Seymour v Seymour. 81 In relation to the claim against the State, there is nothing in the evidence which suggests dishonesty of the type described by Mahoney ACJ in Seymour's case by any officer of the State of New South Wales. Accordingly, I am of the view that in relation to the conduct of the individual members of the public service, both State and Commonwealth, in disclosing the subject documents to Mr Rubenstein that in so doing they were not involved in fraudulently concealing any causes of action the plaintiff might have. 82 The argument went on to submit that Rubenstein's affidavit of 19 October 1987 did not disclose the identity of the person or body making the disclosures. In actual fact the documents in question were disclosed and the sixth paragraph of Mr Rubenstein's affidavit identifies his relevant agencies as being the New South Wales Medical Board and the Commonwealth Departments of Health and Immigration and Ethnic Affairs. 83 The documentation disclosed in the annexure to Mr Rubenstein's affidavit, JSYR 10, which I have annexed to these reasons, clearly identifies the correspondence and that correspondence (which in many cases was written by the plaintiff) identifies the Commonwealth and State agencies involved. 84 As far as the defendant Commonwealth is concerned, Mr Conybeare's letter of 3 March 1992 to the plaintiff is a striking concession by the Commonwealth that the documents had in fact been shown to Mr Rubenstein. 85 Whatever view Mr Joseph may have had concerning the plaintiff the fact is the plaintiff was well and truly aware that the documents had been disclosed when Mr Rubenstein's affidavit was tendered before Master Prebble on 29 October 1997. 86 His contention that he only became aware of a right to sue on reading a report from the Commonwealth Ombudsman of 10 January 1994 is flawed by this uncontested fact. 87 For these reasons I am driven to the conclusion that s 55(1)(b) has no application in this case and that the plaintiff's causes of action at common law are statute barred. 88 The matter does not end there. As an alternative submission it was put that the plaintiff's first cause of action, namely an action for breach of confidence is based upon the general equitable jurisdiction to grant relief in relation to disclosure of confidential information. In this regard reliance was placed upon what had fallen from the High Court in Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] (1984) 156 CLR 414 at 438. 89 Accordingly, so it was put in so far as the plaintiff relies upon breach by the defendants of their equitable obligations the Limitation Act 1969 does not apply. It was put that s 14 of the Act does not apply to equitable causes of action except by analogy: Limitation Act s 23, Williams v Minister (1994) NSWLR 497 at 509C-E, 515G. 90 It was thus put that there is no equitable reason why the plaintiff's first nominated cause of action should not be allowed to proceed against both defendants. Reliance was placed upon the fact that the plaintiff did not acquiesce to the breach of confidence nor have the defendants indicated any reliance upon the status quo or other prejudice arising from the elapse of time which would make it inequitable to allow the plaintiff's action to proceed. 91 It is true that Williams v Minister is authority for the proposition that s 14 of the Limitation Act does not apply to equitable causes of action except by analogy. However, in this case the first cause of action as pleaded claims damages for liability in tort against both defendants. No equitable relief in terms of a continuing breach of obligation is contended for. In other words what is being sought as I have said is damages for tortious liability. 92 It follows that as it is not equitable relief which the plaintiff seeks but relief at common law, the argument based on equitable relief cannot succeed. 93 That being so I am of the view that the defence based upon s 14 of the Limitation Act is made out in relation to all causes of action by the defendants. 94 Because I have reached this conclusion it is unnecessary for me to deal with the merits of the causes of action brought by the plaintiff. As I have already mentioned, one difficulty which stands in his way is the fact that in relation to four of the causes of action it was not the plaintiff himself who had standing to litigate those matters but WMS. 95 However, the plaintiff's problems in terms of merit do not end there. I highlight but one of those difficulties. 96 For instance, as far as damage is concerned, the delay occasioned by Mr Rubinstein's motion of 29 October 1987 in the discovery procedure in the High Court was but five days. How that would sound in damage is difficult to contemplate. Indeed, how either the Commonwealth or the State are liable in law for the actions of an English solicitor in private litigation in the United Kingdom with which neither governmental entity was concerned is incomprehensible. Particularly, because the plaintiff, in my view, should have discovered those documents prior to Mr Rubinstein moving as he did. Furthermore, the ease with which Mr Mann was able to deal with that problem (by his affidavit of 9 November 1987) underscores the remote nature of his claim that he was damaged. 97 However, as I have already stated, it is not necessary for me, having concluded that the causes of action are in fact statute barred for me to expatiate any further on the substantive merits of the causes of action brought by the plaintiff. Suffice it for me to say that I am of the view that even if the statutory bar did not apply the plaintiff would have failed to establish his case in relation to any of these causes of action. 98 For these reasons the plaintiff's case fails and there will be judgment for the defendants plus costs.

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Judgment (12 paragraphs)

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Cases Cited (6)

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