Analysis and findings
53 Whilst the respondent was able to point to some inconsistencies and discrepancies in the applicant's affidavit evidence and the documentary record constituted by Exhibit 1, I am satisfied that the applicant was a witness of truth and that, on the whole, the account which he gave in his affidavit and in his oral evidence is reliable on key points. In forming this view, I bear in mind the applicant's limited education and lack of sophistication, at least compared to the expectations and experiences of our own society.
54 I do not, with respect, consider the respondent's reliance on news reports and articles published generally in Indonesia as providing a knowledge base by reference to which the applicant's own knowledge can be reliably tested. I accept the applicant's evidence that there are no newspapers in his village and that he has never read a newspaper. I accept the applicant's evidence that, although he has a mobile telephone, he only uses it to speak to his children and that he does not have Internet access. I also accept the applicant's evidence that his household has never owned a computer and that, before October 2015, he did not know anyone in his village who did own a computer.
55 I note that the applicant did acquire a television in 2013, but I accept his evidence that he does not watch it, although his children do. In this connection, I also accept the applicant's evidence that when, in completing the questionnaire and in giving answers in his interview on 12 October 2015, he referred to having seen something on television, he was conveying what other people had told him about what they had seen on television. I would add that, in terms of the relevant knowledge that the applicant had from time to time, it does not seem to me that it makes any difference whether he personally saw something on television or whether someone else told him something about what he or she had seen on television. What is important is the knowledge that the applicant possessed, not the means by which he acquired that knowledge.
56 This leads me to another point. The respondent's reliance on the published news reports and articles assumes that others in the applicant's village or on Rote more generally, with whom the applicant came into contact, also had knowledge of the information in the news reports and articles which they, in turn, passed on to the applicant. I have no reason to conclude that others did have that knowledge beyond the inference that I am asked to draw in relation to the applicant himself. I am not prepared to draw that inference. For all I know, the people with whom the applicant came in contact were in no better position than the applicant himself so far as knowledge of the published articles and reports is concerned. Moreover, I would not infer that any different knowledge that these people might have had can be translated into knowledge that the applicant also had at the relevant time, beyond the matters about which the applicant has already given evidence.
57 The following submission was made on the applicant's behalf:
… PTTEPAA's approach to Mr Sanda's evidence relies upon multiple successive inferences being drawn. In this regard, PTTEPAA essentially asks the Court to conclude that Mr Sanda is untruthful because (1) it should be inferred that Mr Sanda considered it necessary to investigate the cause of the oil that he observed, beyond what he had already been told; (2) it should be inferred that Mr Sanda in fact took such steps to investigate the cause of the oil; (3) it should be inferred that the steps taken by Mr Sanda were successful in eliciting information about the Montara Oil Spill; and (4) it should be inferred that the steps in fact taken by Mr Sanda were sufficiently comprehensive to capture all information available in the public domain as to the Montara Oil Spill. This approach of stacking inference upon inference is forensically and logically unsound and could not provide a safe basis for disregarding Mr Sanda's actual evidence.
58 In oral argument, the respondent stressed that it was not asking the Court to find that the applicant was untruthful. Rather, the respondent submitted that the applicant's evidence provided a wholly unsatisfactory basis for making positive findings that, prior to 2 August 2015, he was not aware of the material facts referred to in his affidavit.
59 I do not accept that submission. As I have recorded, I am satisfied that the applicant was a witness of truth (notwithstanding the respondent's disavowal of any contrary submission) and that, on the whole, the account he has given is reliable on key points. I accept the applicant's submission that a significant part of the respondent's attack on the reliability of the applicant's evidence was based on multiple inferences being drawn.
60 Having made these prefatory findings, I am satisfied that, before 2 August 2015, the applicant knew that:
there had been an oil spill from Australia;
the spill was allegedly responsible for the damage to his seaweed crop;
the spill was associated with "Montara" and "PTTEP", although, at that time, he did not know what these names meant.
61 I am satisfied that he did not know until 12 October 2015 that:
the oil spill came from an oil well;
"Montara" was the name of the "oil well", which was located in Australian waters about 250 km south of Rote;
"PTTEP" was the name of a company that operated the oil well;
"PTTEP" was an Australian company;
"PTTEP" had a legal responsibility to operate the oil well "in accordance with rules and the law";
the oil spill occurred allegedly because "PTTEP" "did not comply with this responsibility";
chemicals had been applied to the oil spill to prevent the oil from spreading;
AMSA applied the chemicals; and
it was possible to take legal action in Australia against "PTTEP" for the loss or damage he had allegedly suffered because of the oil spill.
62 I am satisfied that these alleged facts, assuming them to be correct, are facts material to the applicant's case within the meaning of the authorities I have discussed. The circumstance that some of them remain as allegations at the present time and/or that some of them are, in part, conclusory, does not mean that they are not "facts".
63 The respondent argued that the propositions that it had a legal responsibility to operate the oil well "in accordance with rules and the law", and that it "did not comply with this responsibility", were, as to the first proposition, merely a truism and, as to the second proposition, no more than the expression of a legal opinion that could not stand as a "fact" for the purposes of s 44(3)(b)(i) of the Limitation Act: Napolitano at 570; Trevorrow at [917]. In my view, neither characterisation is correct in the present context. These propositions are factual in nature, albeit that their content may be in contest and require proof. Moreover, they are material facts. Their gravamen is that, under Australian law, the respondent had a legal obligation with which it had not complied.
64 The respondent made a similar submission with respect to the proposition concerning the possibility of taking legal action against it for the loss or damage allegedly suffered by the applicant. In essence, the respondent submitted that this proposition really amounts to an opinion as to the possibility of a good cause of action or its ultimate prospects of success. Once again, I do not think that this characterisation is correct. Once again, the proposition is factual in nature. It speaks of the availability of legal redress based on the existence of facts which the applicant believes to be true. The availability of legal redress, applicable to the applicant's circumstances, is a material fact.
65 The respondent submitted that the fact that the oil well is located about 250 km south of Rote is neither here nor there given the applicant's prior knowledge that there had been an oil spill from Australia. I disagree. One matter in dispute is whether the oil from the Montara oil spill reached Rote where the applicant conducted his seaweed farming activities. The relative proximity of the oil well to Rote compared to some more significantly remote part of Australia is plainly relevant to the likelihood that the oil that allegedly damaged the applicant's seaweed crop came from the Montara oil field.
66 The respondent submitted that the fact that chemical dispersants had been applied by AMSA to the oil spill was not of such significance as to be likely to influence the determination of the applicant's case and hence not "material" for the purposes of s 44(3)(b)(i) of the Limitation Act. Once again, I disagree. The use of chemical dispersants by AMSA is pleaded and relied upon as causative of the loss or damage to the applicant's seaweed crop.
67 In its written submissions, the respondent took issue with the characterisation and materiality of other facts deposed to by the applicant. As noted earlier, I have not found it necessary to detail all the facts which the applicant said he had learned in October 2015 or at least not before 2 August 2015. In the circumstances, it is not necessary for me to deal with a number of the criticisms and challenges which the respondent made concerning these asserted facts.
68 There is, however, a further matter I should mention that emerged in the course of the applicant's oral submissions. In those submissions, reliance was placed on part of the questionnaire completed on the applicant's behalf on 12 October 2015 which contains a note that the applicant was informed of certain findings of the Montara Commission of Inquiry (the Commission). Senior counsel for the applicant sought to make much of these findings as "facts" which the applicant had ascertained as a result of his interview with Mr Phelps that day. However, in his affidavit, the applicant merely said that, before 12 October 2015, he did not know that there had been an official inquiry to investigate the oil spill and that, on 12 October 2015, he had been told that there had been a report. Importantly, the applicant said that he has not seen the report.
69 In view of this evidence, I am not prepared to treat the specific findings of the Commission identified in the questionnaire as facts ascertained by the applicant that meet the threshold requirements of s 44(3)(b)(i). The applicant did not treat these facts as material facts ascertained by him for that purpose. The relevant facts adduced by the applicant in his evidence in chief are that there had been an official inquiry and a report. I do not accept that these facts, in and of themselves, are "material" to the applicant's case for the purposes of s 44(3)(b)(i).
70 As to the facts referred to at [61] above, I am satisfied that the principal proceeding was commenced within 12 months after those facts had been ascertained by the applicant himself.
71 I am satisfied, therefore, that the threshold requirements of s 44(3)(b)(i) of the Limitation Act have been met.
72 I accept that the discretionary considerations advanced by the applicant are relevant considerations which weigh in favour of time being extended. In particular, I am satisfied that the applicant is not sophisticated in terms of his appreciation of the existence of legal rights and remedies provided by Australian law and, until October 2015, was not aware of a number of material facts that bear on his claim, including that he could even bring a legal claim against the respondent for the loss or damage he alleges he has suffered. I accept that, given his background and circumstances, he could not have understood, without the benefit of sophisticated legal advice (itself informed by reference to a number of complex, technical facts), that he might have a cause of action against the respondent. I accept, in this regard, the applicant's evidence that, before October 2014, he had never used a lawyer - indeed, did not know of any lawyers. I am therefore satisfied that his delay in bringing the principal proceeding has been explained and should be accepted.
73 I accept that, in respect of his interests, a refusal to extend time would work a significant injustice because he would be denied a significant avenue for seeking legal redress for the loss or damage he has alleged.
74 The applicant submitted that he has a "strong" prima facie case. I do not propose to offer any view as to the strength of that case other than to note that it is one which, on the face of the pleadings, is a sustainable case that has been advanced on genuine grounds. I note, in this connection, that the respondent has made a number of admissions in relation to the allegations that have been pleaded, although liability is denied.
75 For its part, the respondent advanced a number of considerations which, it submitted, militate against the exercise of the discretion in favour of the applicant.
76 First, the respondent emphasised the passages I have quoted from Prince Alfred College at [45] above. It submitted that there is no presumptive entitlement to an extension of time merely because the threshold requirements of s 44(3)(b)(i) have been met. It also submitted that while it bears an evidentiary onus to raise any consideration relevant to the denial of the discretion, the legal burden remains with the applicant throughout to establish that, in all the circumstances of the case, it is "just" for the extension to be granted. I do not understand there to be any dispute between the parties as to the correctness of these submissions.
77 The respondent also submitted that the applicant must establish that the commencement of the principal proceeding beyond the limitation period would not result in any significant prejudice to the respondent. Relatedly, it submitted that it was trite that delay of any sort would necessarily impact on the cogency of the evidence.
78 In this connection, the respondent submitted that, in the present case, the applicant has not adduced any evidence going to the justice of the application for an extension of time or to the absence of any prejudice accruing to the respondent, such as to enliven a favourable exercise of the discretion. The respondent submitted that the focus of the applicant's evidence has been the satisfaction (or otherwise) of the threshold requirements. The respondent complained that, in the present application, the applicant has not addressed the evidence, or even the types of evidence, he will rely upon at trial with a view to demonstrating that the passage of time will not have prevented the respondent from being able to meet that evidence.
79 Relatedly, the respondent pointed to the fact that, having allegedly suffered the loss or damage in 2009, the applicant took no steps to prosecute his claim for approximately seven years, more than twice the limitation period under the Limitation Act for bringing claims of this kind. The respondent also argued that the material facts on which the applicant now relies were capable of ascertainment by him before 12 October 2015, with the most obvious occasion being in October 2014 when the applicant was first visited by Australian lawyers.
80 A number of these submissions appear to reverse the evidentiary burden placed on the respondent. I accept the proposition that the onus of satisfying the Court that the discretion should be exercised in favour of the applicant rests on the applicant: Brisbane South Regional Health Authority at 544 (Dawson J); 547 (Toohey and Gummow JJ); 567 (Kirby J). But the respondent has the burden of adducing evidence of actual or specific prejudice beyond presumed prejudice. The respondent has the benefit of a fully pleaded statement of claim, setting out the material allegations of fact made against it. As I have noted, it has made a number of admissions. The principal areas of controversy appear to be whether the respondent owed the applicant and group members the duties of care pleaded in the further amended statement of claim and whether the loss or damage alleged can be sheeted home to the respondent. It is for the respondent to identify, on facts and circumstances known to it, and by reference to the areas of controversy delineated by the pleadings, whether it will be prejudiced in some material way should time be extended. I do not think it is for the applicant to rehearse the evidence it proposes to adduce in support of its pleaded case and then speculate on whether the respondent will have difficulty in meeting that evidence. Of course, once a respondent puts forward evidence of actual or specific prejudice, it will be for an applicant, in discharging its ultimate onus, to show that extending time will not result in significant prejudice to the respondent of a kind that would warrant a refusal to grant that extension.
81 Perhaps recognising this, the respondent referred to one particular matter in this regard. It relied on an affidavit made by Yermias Lomba on 16 February 2017, which has been filed by the applicant. Yermias Lomba is described as the former Secretary of Village for Oenggaut. The respondent relied on certain passages in the affidavit dealing with the collection of information which was made to estimate the village's production of seaweed in the period 2007 to 2015. It would seem that there are no written records in relation to seaweed sales and that the estimate provided in the affidavit was based on the collective memory of the farmers concerned. The respondent relied on the affidavit to point out the difficulties which the applicant and group members themselves have in putting together material as to the loss they allege so many years after the event.
82 The respondent's point was that, if time were to be extended, it would be left with the task of having to test the recollection of the villagers on issues about causation and loss in an environment where there are no documents and where the events in question took place nearly 10 years ago. The respondent submitted that this constituted undeniable prejudice and that the applicant has made no attempt to discharge his onus of satisfying the Court that issues of this kind could fairly and justly be tried after such a long period. Whilst it is true that the applicant did not address this topic, it seems to me that the problem, if there be one, lies with the applicant and group members adducing evidence of sufficient cogency at a final hearing to discharge the onus of proof which rests squarely on them of establishing the existence of loss or damage and the quantum thereof. The respondent bears no burden of proof in this regard.
83 In making these observations, I do not intend to make light of the added burden that the passage of time may have placed on the respondent in testing the applicant's evidence on these issues. But, as I have said, the problem lies more with the applicant and the group members than with the respondent. Quite independently of the passage of time, it would seem that the applicant's and group members' cases will lack the persuasive force of contemporary documentary records relating to the extent and quantum of the loss they allege. Thus, this is not a case of evidence lost because of the passage of time. It would seem that the evidence never existed.
84 It is also important to bear in mind, in this connection, that the delay in commencing the principal proceeding after the expiration of the limitation period is not particularly long in the scheme of things - about four years - recognising that, unlike some other jurisdictions, the limitation period applicable to the applicant's claim is three years, not six years.
85 Given these matters, it does not seem to me that any added burden placed on the respondent by the passage of time is of such significance that it would stand steadfastly against time being extended to commence the principal proceeding, if it were otherwise appropriate to grant that extension.
86 The prejudice which the respondent has advanced (both presumptive and actual) must be seen against the background that the circumstances of the Montara oil spill were immediately the subject of an extensive inquiry with which, it seems, the respondent was intimately involved.
87 In this connection, the applicant took me to parts of the Report of the Montara Commission of Inquiry dated 17 June 2010, specifically the Terms of Reference for the inquiry, which were announced on 5 November 2009. The Terms of Reference are extensive. Amongst other things, the Commission was to assess and report on the environmental impacts after the Montara oil spill using available data and evidence, including the outcomes from monitoring activities that were already underway.
88 In this regard, the applicant also took me to the respondent's Outline of Submissions on Sentence in relation to charges brought against the respondent under the OPGGSA following the spill. The submissions are dated 28 August 2012. The purpose of taking me to the submissions was to draw attention to the fact that, on 7 September 2009, the respondent had agreed with the Department of Sustainability, Environment, Water, Population and Communities to fund a long-term monitoring program to address any long-term environmental impacts of the spill. This program is described in the submissions as primarily directed to:
operational monitoring focused on providing information of use in planning or executing the response to the oil spill; and
scientific monitoring studies that may be undertaken over extended periods, focused on non-response objectives such as estimating environmental damage and post-response recovery.
89 The submissions record that the monitoring program consisted of five operational monitoring studies and a number of scientific studies.
90 The operational studies are described in the submissions as:
Monitoring of Oil Distribution and Marine and Coastal Resources (Study 01);
Monitoring of Oil Character Fate and Effects (Study 02);
Shoreline Assessment and Ground Surveys (Study 03);
Monitoring of Dispersant Efficiency and Fate of Dispersed Oil (Study 04); and
Wildlife Impact Monitoring (Study 05).
91 The scientific studies are described in the submissions as including:
Marine megafauna aerial assessment surveys;
Shoreline ecological assessment aerial surveys;
Assessment of fish catch for the presence of oil;
Assessment of effects on Timor Sea fish and fisheries;
Offshore banks assessment survey; and
Oil fate and effects assessment.
92 These matters suggest that the respondent gave keen attention to the consequences of the oil spill right from the outset as, I suppose, one would naturally expect.
93 Finally, the applicant took me to an email dated 26 October 2012 from the respondent's then lawyers to Mr Phelps. In that email, the lawyers advised that the respondent would not raise a limitation defence to any proceeding commenced in an Australian jurisdiction by the West Timor Care Foundation in relation to the oil spill. The applicant accepted that this statement of intention was directed specifically to proceedings commenced by the West Timor Care Foundation. He submitted, however, that if the respondent had reached the conclusion that it would not raise a limitation defence in any such proceeding, it was reasonable to infer that the respondent had recognised that it had not suffered prejudice through the effluxion of time. That submission has obvious limitations. But perhaps of more importance is the fact that, certainly by October 2012, if not beforehand, the respondent must have recognised that litigation was "on the cards".
94 The applicant argued that the matters I have noted at [86]-[93] above, displace the presumptive prejudice flowing from the fact that the principal proceeding was not commenced within the three-year limitation period. I do not accept that submission. However, the matters to which the applicant has referred do provide context for considering the presumptive and actual prejudice the respondent relies on, and the weight to be accorded to that prejudice, in balancing all the discretionary factors brought forward by the parties.
95 The respondent then turned to a different topic on the question of discretion. The respondent submitted that the present case is an example of lawyer-driven litigation: "this litigation came to Mr Sanda".
96 The respondent submitted that, although the knowledge of the applicant's lawyers might not be relevant to the threshold question posed by s 44(3)(b)(i), such knowledge was "unusually important because this is a class action". The respondent argued that, in the present case, the applicant's lawyers must have known the results of the Commission's report in October 2014 when they first visited the applicant. It was, however, only in October 2015 that they conducted an interview with the applicant in, what the respondents said was, a carefully-scripted manner so that the applicant could place reliance on s 44. In oral submissions, senior counsel for the respondent put the matter this way:
But when one comes to be making an application of this kind, to avoid the impact of a statute by reliance on facts coming late to the attention of the plaintiff, it is very important - unusually important - that the lawyers have known for years and they have been setting up the case for years, knowing all the facts said to be material. And when it's convenient to the lawyers, in terms of the - I say convenient but in terms of the construction of the case and getting funders lined up and all the things that have to be done for a class action - when it's appropriate for them to do it, then they choose to disclose the information to the plaintiff.
97 Thus, the respondent submitted, when considering the exercise of the residual discretion, the Court should give significant weight to "what was known by the lawyers and when they knew it".
98 I am not persuaded that this submission has the significance which the respondent has given it. Assuming everything that the respondent has said on this score to be true, what is to be made of its criticism, which is directed to conduct for which the applicant is entirely blameless? I raise this question in circumstances where it is not at all apparent to me that any lawyer-client relationship existed in respect of communications between the applicant and Mr Phelps, or any other lawyer, at least up to October 2015. It seems to me that one is driven back to considering the prejudice that is likely to be suffered by the respondent should time be extended. In this connection, I do not think that the matters raised in this part of the respondent's submissions adds in any way to the prejudice that the respondent has advanced (both presumptive and actual), even though it might explain, at least in part, why time has passed and the applicant finds himself in his present position. The simple fact is that the applicant did not know he had a right of action against the respondent under Australian law until he was told of that fact. Having been told of that fact, he commenced proceedings within the time prescribed in s 44(3)(b)(i) of the Limitation Act.
99 Finally, the respondent criticised the fact that the applicant has not sought to address the rights he might have under Indonesian law or some other applicable jurisdiction to compensate him for his alleged loss. The respondent submitted that, in these circumstances, the applicant could not say that a refusal to extend time would result in the loss of his only possible remedy. This submission is correct, so far as it goes. But it is answered by the fact that the Court's focus must be on the matter that falls within its jurisdiction. The applicant's right of action in this Court is valuable, regardless of the rights or remedies, if any, the applicant might have elsewhere. The question which the Court must address is whether it is just in the circumstances to grant an extension of time to permit the applicant to pursue this action.