Robertson v Esso

5. Section 85D Sentencing Act 1991 by which this application for an out of time order is made provides:

"(1) A court may on the application of a person who wishes to apply for a compensation order extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so. (2) A court may extend time under (1) before or after the time expires and whether or not an application for an extension is made before the time expires."

9. In the present case, on 25 September 1998 there were substantial explosions and fires at Esso Australia's Longford plant which tragically resulted in the death of two persons and the injury to many others and extensive damage to the plant. On 28 June 2001 in this court the respondent, Esso Australia, was convicted of 11 counts of breaches of s.21 and 22 Occupational Health & Safety Act 1991. The present application by Mr Robertson for extension of time to make an application out of time was issued on 11 December 2003, that is two and a half years after the convictions which are the basis of these proceedings. Section 85C(1) provides in relevant part:

(a) must be made within 12 months after the offender is ... convicted."

Thus this application is a year and a half out of time.

16. In fairness to the respondent in this case and to any respondent, plainly the Court should not facilitate, let alone encourage, claims made long out of time. Any respondent is entitled to know its position with finality some reasonable time after an offence and in particular in this case, Esso Australia should be entitled to know its position with finality some reasonable time after the offence. As Mr Curtain has properly pointed out, it has obligations to shareholders; and the respondent has a legitimate public reputation which it wishes to defend and promote without constant long out of time applications being made re-agitating the tragic events now years ago. Finality to litigation is important. The courts on the civil side have regarded those considerations as significant. The expression "the interests of justice" - the touchstone of s.85D(1) - has been passed upon in other, civil, contexts. It has been held that the expression is one which properly should be construed not narrowly but liberally: Bourke & Ors v State Bank of NSW[1]. It is not to be utilised as a means to defeat otherwise legitimate claims unless real injustice is likely to be caused to a respondent: Baffsky v John Fairfax & Sons Ltd[2]. However as Mr Dreyfus has rightly pointed out in paragraph 7 of his written submissions, Part 4 Div.2 compensation applications are consequent upon criminal convictions and different considerations, albeit not totally different, apply in relation to this type of proceeding as distinct from civil claims. The offender has been convicted of criminal offences. That is the basis of this and like compensation applications. This is a proceeding under a criminal statute[3]. Under the Sentencing Act 1991, compensation applications are made by victims of crimes committed by respondents. That circumstance - that an applicant is a victim of a crime committed by the respondent - of itself is a circumstance which should cause a Court to view out of time applications with a liberal and not narrow or pedantic approach. Victims should not be shut out readily. On the other hand, a pivotal principle of sentencing is rehabilitation, and it can be antipathetic to rehabilitation for offenders to have compensation proceedings brought against them long out of time. The interests of the victim are significant under s.85D in particular (and under Part 4 Div. 2) but those of the offender notably rehabilitation must be borne in mind (see, for example, the provisions of s.85H(1)). A proper balance needs to be achieved.

19. It thus behoves the court to look with particularity at the reasons why Mr Robertson says that an application was not made by him earlier.

22. Filed in support of the extension application were an affidavit of Mr Robertson in support of proceeding out of time and sworn 8 December 2003, to which was exhibited a statutory declaration by him made 8 November 2003 (referred to as his victim impact statement), an affidavit of Mr Robertson's solicitor Ms A.L. Neesham affirmed on 11 December 2002, and other exhibited documents including a psychiatric report of Dr M. Epstein and dated 14 November 2003.

25. I turn to the relevant considerations and material.

28. First, these are claims for pain and suffering - that is to say psychological injury, quite different from physical injury such as sustained by persons in the explosions on 25 September 1998. Psychological injury often is developmental and longitudinal in its nature.

31. Next, in his affidavit sworn 8 December 2003, Mr Robertson said in par. 4

"I don't exactly recall when I first became aware that people who worked at the Esso site at Longford were making applications for compensation as a result of the explosion. It was by accident really, I think it was some time in mid to late 2001. I overheard some contractors talking about it at work. I don't recall who I heard talking about it but I remember someone saying something about Esso looking after their own. I remember it being said that office workers and others who were not even close to the explosion were being 'looked after'. I understood this to mean that some Esso employees were receiving compensation of some kind as a result of the explosion. I didn't really understand how it worked but I thought that this compensation was only available to Esso employees. I thought because I was only a contractor that I wasn't covered. I didn't make any enquiries about this because I thought it wasn't available to me."

In fact Mr Robertson was a maintenance contractor employed by Gladman's Truck and Bob Cat Hire, which company employed Mr Robertson to work full time at the Esso site at Longford. He had been working there in that capacity for that company, not for Esso Australia, for some nine years at the time of the explosions. Given that the nature of the injury here complained of is psychological and developmental, as distinct from a demonstrable and immediate physical injury and given the arms' length relationship of the applicant namely that he was not an employee of Esso but was an employee of another company which had him working at the site at Esso as a maintenance contractor, one can understand that Mr Robertson might not initially think he was entitled to make a claim.

36. Mr Robertson went on in his affidavit in support to say in para.6:

"I left briefly for a period shortly after the explosion but returned approximately six weeks later after being unable to find work elsewhere. I didn't want to go back there but I felt I had no choice. Since the explosion, and really before too, gas leaks occur all the time. I estimate that there are at least two of varying seriousness each week. Oil leaks regularly occur. Attending to these sorts of things is much of the work that the maintenance teams do. The difficulties I have experienced all came to a head for me in early July of this year [that is 2003] when there was another gas leak at Gas Plant 1. The alarms went off and the area was cleared. We were all sent to the marshalling area until the all clear was given. I got that sick feeling I felt the day of the explosion. I feel like this often when I'm at work, particularly when the alarms go off but I just try to deal with it. Something inside of me snapped that day. I had just had enough. I went home and told my partner that I didn't know how long I could go on feeling like this at work."

In the event he contacted solicitors in late July 2003. First he had a conference with Ms Neesham on 4 August 2003 and then he gave formal instructions to apply for out of time compensation on 18 August 2003.

41. Mr Curtain, for the respondent, has submitted in effect that the applicant cannot have it both ways and either the supposedly precipitating event in July 2003 caused something which "inside of me snapped that day", or it did not. Mr Curtain has submitted that if it did not, then there is nothing shown to suggest why the applicant did not apply earlier, or why he has applied at all. Mr Curtain submitted that if it was a precipitating event of the character described, it is conspicuously absent from the applicant's victim impact statement and also from the psychiatric report dated 14 November 2003 of Dr Epstein, which carefully goes through the longitudinal history.

44. As I pointed out to Mr Curtain in submissions, the statutory declaration, being the victim impact statement, is not wholly inconsistent with the paragraph six 'snapping' paragraph of the affidavit in support, because in paragraph 19 of the victim impact statement the applicant stated:

"The stress gets to me and I find myself coming home from work stressed and irritable. This is particularly the case where there are further minor incidents that sometimes occur on site. Every time they occur they remind me of the explosion and make me feel anxious. Each time I wonder how long I can go on like this."

48. Mr Curtain, in a submission which was not insensitive, said that the characterisation in Paragraph 19 was 'minor', and yet the applicant had said that in effect, in paragraph six of the affidavit in support, it was major, in that "something inside of me snapped that day."

51. I agree to a degree with what Mr Curtain said. However, I think the proper characterisation at its highest is that there can be said to be some tension between the two paragraphs, and some tension between the snapping characterisation in paragraph six and the absence of the episode in the Epstein report. I am not persuaded that they are truly inconsistent and far from persuaded that they are inconsistent in such a way as would properly lead a court to doubt their veracity. I am not persuaded that I should reject the application on the basis of the presence in one body of material, and in the absence in the other body of material of the matter that I have just rehearsed. Further, and I shall say no more about this because the application proper is yet to be heard, I have observed Mr Robertson give evidence and suffice it to say that there is nothing in his answers or in his demeanour as a witness which would lead me further to be persuaded by Mr Curtain as to his characterisation of the documents being inconsistent.

54. I do consider that if there are freeloaders who seek to come forward to take advantage of the existence and size of a company like Esso the Court should not lend itself to Esso being subjected to such freeloading. I am not persuaded, and I say no more than that because the application is yet to be heard, that I should make any conclusion in that regard adverse to the applicant on this preliminary application.

57. I am also sensitive to the argument Mr Curtain advanced, that the respondent has properly in the past sought to provide counselling and other support to persons affected by the explosions of 1998, and not just to employees but to others. Mr Curtain submitted that the respondent has been denied the opportunity both of itself and for minimisation of consequences by reason of the applicant not coming forward. However that of itself is not, in my view, a conclusive reason to refuse an application if I am persuaded of its bona fides otherwise. In fact, I am persuaded of its bona fides. I think the applicant in his statutory declaration, his affidavit and his evidence before me has established that this is not an attempt to take advantage of Esso Australia but is a bona fide application out of time. I think I should say no more than that as the application proper has yet to be heard.

60. I take into account the numerous relevant authorities, in particular that of the Brisbane South Regional Health Authority v Taylor[4] and the other authorities so helpfully cited by Mr Curtain. I am persuaded that it is in the interests of justice that the applicant be allowed to institute proceedings out of time as contemplated by 85D(1) and accordingly I grant the application for the compensation claim to be made out of time and to proceed.

[1] (1988) 22 FCR 378 at 394 per Wilcox J.

[2] (1990) 97 ACTR 1 at 6 per Higgins J.

[3] I set out some incidents of s.85B proceedings in D.P.P. v Esso Australia Pty Ltd [2003] VSC 367 at [7].

[4] [1996] HCA 25; (1996) 186 C.L.R. 541 at 553-554 per McHugh J.