Strano v Australian Capital Territory [2017] ACTCA 51

Cases Cited: Baker-Morrison v New South Wales [2009] NSWCA 35; 74 NSWLR 454 Commonwealth of Australia v Cornwell [2007] HCA 16; 229 CLR 519 Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233; 1 Qd R 476 Morro v Australian Capital Territory [2009] ACTSC 118; 234 FLR 71 Seal v Chief Constable of New South Wales Police [2007] UKHL 31; 4 All ER 177 Strano v Australian Capital Territory [2016] ACTSC 4; 306 FLR 232 Strano v Australian Capital Territory (No 2) [2016] ACTSC 206; 310 FLR 481

Parties: Salvatore Strano (Appellant) Australian Capital Territory (Respondent)

Representation: Counsel Mr T Crispin (Appellant) Mr P Garrison AM SC and Ms N Tarbet (Respondent)

Solicitors John O’Keefe (Appellant) ACT Government Solicitor (Respondent)

File Number: ACTCA 51 of 2016 Decision under appeal: Court: ACT Supreme Court Before: Penfold J Date of Decision: 5 August 2016 Case Title: Strano v Australian Capital Territory (No 2) Citation: [2016] ACTSC 206

THE COURT:

1. On 20 February 2005, the appellant was stopped by police while driving a vehicle in the Australian Capital Territory. Nine days later, he was charged with driving while unlicensed, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT). Significantly, he was charged with the aggravating circumstance, for sentence purposes only, of being a repeat offender, as defined. That circumstance elevated the maximum penalty from 20 penalty units to 50 penalty units and/or imprisonment for six months.

2. On 1 June 2005, following a plea of guilty, Magistrate Lalor sentenced the appellant to three months full-time imprisonment. The appellant was immediately taken into custody and remained in prison until 31 August 2005.

3. On 25 May 2007, Magistrate Burns (as he then was) was dealing with the appellant for different offences. In the course of his deliberations, Magistrate Burns noticed that the appellant had been incorrectly charged in 2005, in that he should not have been treated as a repeat offender and, therefore, should not have been imprisoned.

4. On 26 June 2007, the appellant commenced an appeal against the orders made on 1 June 2005. The appeal was heard by Marshall J on 4 December 2007. His Honour did not overturn the conviction flowing from the guilty plea. Instead, he allowed the appeal on sentence. “No penalty” was substituted for the original imprisonment order.

5. On 19 December 2012, the appellant commenced civil proceedings in the Magistrates Court seeking damages arising from his period of unlawful detention. His cause of action was said to be derived solely from s 18(7) of the Human Rights Act 2004 (ACT) (the HRA).

6. The proceedings were transferred to the Supreme Court on 28 July 2014. The respondent filed an application, dated 1 June 2015, seeking orders that the proceedings be struck out because they had been commenced outside the relevant limitation period.

7. The application was heard by Penfold J on 19 and 20 October 2015. Her Honour delivered a judgment on 2 February 2016 (Strano v Australian Capital Territory [2016] ACTSC 4; 306 FLR 232). Her Honour found that the proceedings had been filed outside the applicable limitation period and adjourned the matter for a further hearing on the consequential orders, including costs.

8. This hearing took place on 10 February 2016. Judgment was given on 5 August 2016 (Strano v Australian Capital Territory (No 2) [2016] ACTSC 206; 310 FLR 481). The following orders were made: (a) Judgment for the defendant on the plaintiff’s claim for compensation begun in the Magistrates Court by Originating Claim dated 19 December 2012.

(b) The plaintiff is to pay the defendant’s costs.

9. A Notice of Appeal against the orders made by Penfold J was filed on 27 September 2016. In this notice, the appeal was stated to be against the orders made on 5 August 2016 and also the “decisions” made both on 2 February 2016 and 5 August 2016. By an Amended Notice of Appeal, filed 1 February 2017, the appellant restricted the appeal to the orders made on 5 August 2016.

10. The grounds of appeal were wide-ranging, extending from a challenge to her Honour’s ‘decision’ on the existence of a right to compensation under s 18(7) of the HRA, the findings on the expiry of the limitation period, and costs. The appellant’s written submissions abandoned the appeal concerning costs and restricted the limitation issue to the date when the cause of action accrued.

11. At the commencement of the hearing, it was pointed out to the appellant’s counsel that the ground of appeal concerning the existence of a right to compensation was misconceived. A close examination of the reasons for the decision reveal that it was confined to whether or not the limitation period had expired. Her Honour was not determining whether a cause of action existed under the HRA. This is made plain in the introduction to the judgment, at [2]:

For reasons related to such things as the availability of court time, it has been agreed that I should determine the limitation issue before hearing arguments about the substantive claim. This has required me, to some extent, to assume the existence of the cause of action relied on. A decision that the claim is not statute-barred would not, in these circumstances, imply a conclusion that the cause of action does exist, only that if it does, the claim in the current case has been brought within time.

12. Although her Honour discusses the existence of a statutory cause of action under s 18(7), and provides an analysis of the decision of Gray J in Morro v Australian Capital Territory [2009] ACTSC 118; 234 FLR 71, she specifically states that her opinion does not extend beyond general comment. Her Honour states, in the plainest terms, at [52]:

For present purposes, however, I do not need to make any finding about whether the s 18(7) cause of action exists, and therefore, I do not need to reject Gray J’s conclusion, or alternatively agree with it for other reasons. All I need to consider is whether, if the s 18(7) cause of action does exist, Mr Strano’s claim was made before the expiry of the applicable limitation period.

13. Having reiterated her task in the matter, her Honour then goes on to consider the relevant limitation period, ultimately deciding that “whatever the nature of Mr Strano’s claim, it was filed after the expiry of the applicable limitation period, and therefore cannot be maintained”.

14. Counsel for the appellant accepted that the existence of the statutory right to compensation could not form part of the appeal and proceeded to the limitation question.

15. The approach taken in the Court below can be seen from [53] of the decision of 2 February 2016.

16. In summary, the appellant’s argument came down to this proposition: where a cause of action involves proof of unlawfulness, the cause of action does not accrue until the claimant becomes aware of the unlawfulness. In this case, this occurred on 25 May 2007, when the appellant was informed by the Magistrate that he should not have been imprisoned in 2005. If the limitation period of six years ran from 25 May 2007, then the institution of proceedings on 19 December 2012 was in time.

17. The six year limitation period is derived from s 11 of the Limitation Act 1985 (ACT) which states:

General (1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims. (2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.

18. The appellant conceded that, without more, the cause of action would have accrued on 31 August 2005, when the appellant was released from prison. His case was that the position was different here, however, because he asserted that the cause of action did not accrue, as noted above, until 25 May 2007.

19. The appellant’s argument commenced with ss 138 and 139 of the Legislation Act 2001 (ACT):

138 Meaning of working out the meaning of an Act pt 14.2 In this part: Working out the meaning of an Act means – (a) Resolving an ambiguous or obscure provision of the Act; or (b) Confirming or displacing the apparent meaning of the Act; or (c) Finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or (d) Finding the meaning of the Act in any other case. 139 Interpretation best achieving the Act’s purpose (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act. Note The Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

20. The appellant submitted that s 11 of the Limitation Act 1985 (ACT) needed “working out” because it was ambiguous or it produced a result that was “unreasonable”.

21. The appellant then referred to s 30 of the HRA, which states:

Interpretation of laws and human rights So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

22. The appellant’s submission was that, in order to give effect to the human right (to compensation) created by s 18(7), it was necessary to interpret the limitation provision (s 11) in such a way that the cause of action only accrued when the claimant became aware of the unlawfulness required to enforce the right.

23. The appellant distinguished between the human right and the tort of unlawful imprisonment, pointing out correctly that an action in respect of this tort did not require proof that the imprisonment was unlawful. Proof of this fact was on the defendant.

24. By way of authority, the appellant relied primarily on the decision of the Queensland Court of Appeal, in Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233; 1 Qd R 476, in particular at [30]. This paragraph contains a discussion of a Canadian case, the effect of which was described by the Court of Appeal as follows:

As the plaintiff did not discover and could not have reasonably discovered the solicitors’ negligence until the validity of the mortgage was challenged in the action for foreclosure, the cause of action did not arise until that date and was not statute-barred.

25. The difficulty with reliance on the above quote comes later in the judgment, at [44], when it is observed that the High Court has rejected the Canadian approach. When faced with this apparent contradiction, counsel for the appellant pointed out that it was stated in the same paragraph that the law was “developing incrementally”.

26. There are a number of difficulties with the appellant’s submissions. Firstly, s 11 of the Limitation Act 1985 (ACT) is not ambiguous. In Commonwealth of Australia v Cornwell [2007] HCA 16; 229 CLR 519, the High Court said this about the Act, at [5] – [6]:

However, to show the existence of a completely constituted cause of action in negligence, the plaintiff must be able to show duty, breach, and damage caused by the breach; accordingly, in the ordinary case, it is at the time when the damage sustained that the cause of action “first accrues” for the purposes of a provision such as s 11 of the Limitation Act. In Hawkins v Clayton, which turned upon a provision of the New South Wales legislation relevantly indistinguishable from the Territory legislation, this Court refused to place a particular gloss upon the statutory text. The Court rejected the proposition that, at least in the case of claims in negligence for economic loss, time does not run until the plaintiff discovers, or could on reasonable enquiry have discovered, that damage has been sustained.

27. The next difficulty is that there is nothing unreasonable in the interpretation of s 11 which might give rise to a need to interpret the section in the manner suggested by the appellant. It is noteworthy here that when the appellant discovered the apparent unlawfulness of his sentence, there were some four years of the limitation period still to run. There can be no suggestion on the present facts of an unjust or unreasonable result.

28. As far as s 30 of the HRA is concerned, the statement by Lord Bingham of Cornhill in Seal v Chief Constable of South Wales Police [2007] UKHL 31; 4 All ER 177 at [20] is apposite:

…What matters… is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right..

29. As already observed, the right here was available to the appellant from his release from prison and was within his knowledge from 25 May 2007.

30. The appellant’s distinction between a right created by s 18(7) and an action for wrongful imprisonment, because of the shifting onus in relation to the lawfulness of the imprisonment, is a distinction that has no consequence for the limitation period. In almost every other tort, the onus is on the plaintiff to establish his allegations. There is no reason why torts other than wrongful imprisonment should be distinguished from the presently assumed cause of action under s 18(7) of the HRA.

31. Her Honour, in the Court below, put the matter this way, at [58] – [59]:

Counsel for Mr Strano said on numerous occasions that the distinction he asserted could be extracted from a reading of s 18(7), but did not at any point explain how to read s 18(7) as creating a cause of action with, apparently, the same elements as the common law action but a different approach to how the claim was to be established. Nor did counsel explain why a statutory remedy said to be created in order to protect human rights should be interpreted as, generally, providing less protection to a plaintiff than the common law (in that it was said to impose a higher burden on the plaintiff in establishing the cause of action, albeit possibly compensated for in the case of tardy or uninformed plaintiffs by an extended limitation period). Nor did counsel explain why, if the independent statutory cause of action for unlawful imprisonment does in fact place a heavier legal or evidentiary burden on the plaintiff, that burden should be mitigated by delaying the accrual of the cause of action by reference to, in general terms, the plaintiff’s awareness of the legal issues giving rise to the cause of action.

32. There is also nothing in s 18(7) that suggests that, assuming that it gives rise to a cause of action, it gives rise to any consideration dependent upon the discoverability of the unlawfulness.

33. The appellant also submitted that the Limitation Act 1985 (ACT) itself provided for extensions of the limitation period, based on the concept of time not starting to run until the cause of action was “discoverable”. The notion of a discoverable cause of action was introduced into the New South Wales Limitation Act 1969 in 2002, and has been the subject of much authority since then (see, for example, Baker-Morrison v State of NSW [2009] NSWCA 35; 75 NSWLR 454). The ACT legislation does not, however, contain any provision similar to s 50D of the New South Wales legislation.

34. The ACT legislation does include a number of provisions for extending the limitation period in respect of latent defects or particular physical conditions. Section 16B provides for a potentially extended limitation period where the claimant has a disease or disorder, s 36 gives a court power to extend the limitation period in personal injury cases and s 40 allows an extension following the discovery of latent damage to property.

35. The very existence of these provisions works against the appellant’s submissions. That is, because they give specific expression to circumstances of a type which the appellant submitted applied without the need for any such provision, and which, rather, flow naturally from the terms of s 11 or the HRA. As Penfold J noted in her Honour’s reasons at [84]:

This case [State of New South Wales v Gillett [2012] NSWCA 83] supports the proposition that there are causes of action in respect of which there is a specific provision linking the operation of a limitation provision to the plaintiff’s knowledge about his or her legal rights. It provides no support for the proposition that, absent such specific provisions, such a link can be inferred simply because it would be convenient for the plaintiff. Indeed, the existence of specific provisions of this sort would seem to tell against a proposition that such links can readily be inferred in the absence of such a provision.

36. The result of the above is that no error can be detected in the approach taken below in respect of the limitation period.

37. The Court makes the following orders:

(i) The appeal is dismissed.

(ii) The appellant is to pay the respondent’s costs of the appeal.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Elkaim and Bromwich JJ, and Robinson AJ.

Associate:

Date: 2 November 2017