Is it just to grant the extension of time?
60The Defendants submitted that there was no explanation or no adequate explanation from the Plaintiff about why these proceedings were not commenced earlier. In this regard my attention was drawn to what was said in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 at [4]; Coal & Allied Operations Pty Ltd v Springer [2003] NSWCA 271 at [3] and ASB-Tech Services Pty Ltd (in liquidation) v Doeland [2003] NSWCA 167 at [34].
61The Plaintiff provides an explanation although it is not an entirely satisfactory one. What she said in her affidavit was this:
[43] I made my initial inquiry to Maurice Blackburn Cashman Lawyers regarding a proposed claim for myself, son and husband in about February 2005. I was advised by Maurice Blackburn Cashman to wait until my husband's claim was done. There was no discussion as to whether I had a case. My husband's claim resolved by way of settlement on or about 7 December 2007. Following the settlement of my husband's claim, there was no discussion whether I had a claim.
[44] I did not become aware as to whether I had a case until the AHRC Tentative View dated 30 November 2009, attached and marked "C", which recommended that I had a claim. This was when I formed a view of making a claim for myself.
...
[48] Although I had been involved in assisting my husband in relation to his case, I was aware he was profoundly ill and could therefore make a claim in relation to what had happened to him. I was not aware that I could make a claim for what had happened to me until I had received advice from my solicitors and the tentative view of the AHRC in relation to my matter.
62It was suggested by G4S that the evidence in paragraph 43 was somewhat surprising given that was advice coming from a firm well experienced in this area. The suggestion appeared to be that I should not accept this evidence. However, the Plaintiff was not cross-examined about this nor any other part of her affidavit. I have no basis upon which I could not accept what she says in that regard.
63In assessing the explanation she provides I cannot ignore the fact that she is a refugee who is unlikely to be familiar with the laws and procedures of the Australian legal system. In that regard she would be heavily dependent upon advice she was receiving, particularly from lawyers engaged by her.
64I also cannot overlook the fact that the wording of s 48(3) refers to whether it is "just" to grant the extension of time. That is to be contrasted with s 60C(2) of the Limitation Act 1969 (NSW) where the test is whether it is "just and reasonable". The difference may well be illustrated what Bray CJ said in Napolitano at 569 in the passage quoted by the High Court in Sola Optical (set out in [29] above).
65However, even if the test is whether it is just and reasonable, Hodgson JA points out in Coal & Allied Operations at [3] that a satisfactory explanation
is but one of a number of factors to be taken into account by the Court in deciding the essential question before it, namely whether it is just and reasonable to grant the extension.
66As sparse as the explanation is and although it would have been preferable if more information had been given I consider, bearing in mind what I have already mentioned about the Plaintiff's position, that a sufficient explanation has been provided and it is to be assessed along with the other considerations in determining whether it is just to grant the extension of time.
67The principal matter to which argument was directed on the issue of whether it is just to grant the extension of time was the question of prejudice in identifying witnesses to the matters complained of.
68On the Commonwealth's part there was evidence that the Australian Government Solicitor had written to the solicitors for the other Defendants requesting their assistance to identify persons and incidents described by the Plaintiff in her evidentiary statement. Not surprisingly, given the short period of time that G4S was involved, its solicitors wrote saying that it was not apparent that any of the events referred to occurred whilst it managed Baxter. The solicitors for ACS and ACM identified some of the persons inquired about by the Commonwealth but in a number of other cases said that no information was available.
69There was other evidence from the Commonwealth about enquiries that the Australian Government Solicitor had made to identify persons and events and to locate persons who might be able to assist the Commonwealth with its defence of the claim.
70ACS and ACM adduced a great deal of evidence of how they have gone about locating and collecting evidence. In particular, the affidavit of Jack Feng Geng sworn 31 July 2012 set out in a systematic way the approach that had been taken to identifying the incidents complained of and the persons or documents that might have been involved with those incidents. Mr Geng was a solicitor employed by ACS's and ACM's solicitors.
71It may be accepted that the Defendants have available to themselves a large number of documents that are relevant to the incidents complained of. It can also be accepted that there have been problems identifying and locating all persons who might be relevant witnesses concerning the incidents. On some occasions the appropriate persons have been identified and located but are unable accurately or at all to recall the incidents complained of. It can be accepted, therefore, that all of the Defendants will, in this way, suffer a measure of prejudice by not having available evidence either as witnesses or documentary evidence to enable them to answer all of the complaints made against them.
72However, as Mason P said in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199:
[P]roof of actual prejudice, even "significant" prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account, ...
His Honour went on to make reference to the factors mentioned in s 60E(1) of the Limitation Act (NSW) and continued:
If this is "individualised justice", it was what parliament intended.
73Where the test in the SA Act is whether "it is just to grant the extension of time" untrammelled by particular considerations, it must be concluded that individualised justice was what the South Australian parliament also intended.
74Although, as I have said, it may be accepted that the Defendants will suffer actual prejudice partly because of the generalised nature of some of the complaints and because of the difficulty of identifying and locating some witnesses, a number of matters suggest that it would be just to grant the extension of time. In coming to that view I am conscious of the need to avoid any idea of balancing the actual circumstances and merits of the evidence of prejudice: Zegarac at 199 and 241. I am also conscious of the need to avoid considering whether extending the limitation period would make the Defendants worse off than they would have been if the proceedings had commenced towards the end of the limitation period: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554.
75First, the Plaintiff's husband brought proceedings against the Defendants in 2005. Many of the complaints made in his proceedings mirror complaints made by the present Plaintiff in her proceedings. The Defendants made the enquiries and had evidence to answer some of those complaints in those proceedings. They are not, in that sense, being called upon for the first time to investigate events that took place many years ago: Cf Rundle v The Salvation Army; Locklier v The State of NSW [2009] NSWSC 746.
76I note in this regard that there is evidence from another solicitor employed by ACS's and ACM's solicitors that there was available to those solicitors some 80 boxes of discovered and non-discovered documents from the Plaintiff's husband's claim. I note the evidence from the solicitors for ACS and ACM concerning what of that material was considered to be relevant for the present claim.
77Secondly, it is apparent from a reading of the Tentative View and also from a reading of the Final Report of July 2011 of AHRC into the Plaintiff's family's complaints that a number of the matters now complained of in the proceedings were matters investigated by AHRC and its predecessor from as early as 2003. The letter from HREOC to the Plaintiff of 27 February 2003 informed her that HREOC had written to the Department of Immigration, Multicultural and Indigenous Affairs by that date. A reading of the Tentative View and the Final Report makes it clear that the Second and Third Defendants must have been consulted before those reports were produced. For the Commonwealth to have answered the matters raised by HREOC it would have to have investigated those matters and have done so at a time very close to the events and matters complained of.
78It was submitted, particularly by the Commonwealth, that what HREOC and its successor were investigating were human rights breaches whereas the present claim concerns damages for personal injury including mental and psychological injury. It is apparent, however, that it was the same experiences identified in the present Statement of Claim that formed the basis of the HREOC enquiry which necessitated investigation by the Commonwealth and the other Defendants.
79Thirdly, the Plaintiff submitted that it was relevant to the consideration of prejudice that the Defendants, particularly the Commonwealth, had complained of evidence they were unable to obtain but had not been prepared to disclose the evidence that they had which would enable them to defend the claim. Reference was made to Rundle.
80I do not consider that the failure of the Commonwealth to show what evidence they have available to defend the case puts the matter into the category of a case such as Rundle where the primary judge found that the evidence put forward by the Defendant was misleading. It was not considered by the Court of Appeal in that case that her Honour had reversed the onus on the matter of prejudice as had been submitted by the Defendant on the appeal - see Salvation Army (South Australia Property trust) v Graham Rundle [2008] NSWCA 347 at [44] and [102]-[104].
81However, where, as here, it is clear that some of the evidence available to the Defendants from the defence of the Plaintiff's husband's case is relevant for the defence of the Plaintiff's case, a Jones v Dunkel inference is available with regard to the failure to identify what evidence the Defendants have. I do not consider that the Defendants have attempted to mislead the Court. However, I can infer that the evidence that could have been adduced of material available to the Defendants is not likely to have been of assistance to them in resisting the present application on the grounds of prejudice.
82Fourthly, this is not the first case brought by a person in a similar position to the Plaintiff against the Commonwealth, ACS and ACM. My attention was drawn to the claim by Shayan Badriaie in respect of his incarceration at Woomera from March 2000 to March 2001: see Shayan Badraie bht Mohammad Saeed Badraie v Commonwealth of Australia and Ors [2005] NSWSC 1195. I note that this period immediately precedes the period the Plaintiff and her family were detained at Woomera. The claims in that case included the experiencing of traumatic and aversive events whilst in immigration detention leading to mental health problems: see at [19] - [25].
83Whilst I accept that the particular incidents complained of will be different from those in other cases, to the extent that the claim is a system-failure claim there is likely to be a reliance on similar documents and witnesses in this case as in other cases. In that regard the Defendants will not be seeking such evidence for the first time, and to that extent the problems with fading memories of witnesses do not loom so large.
84The Commonwealth also submitted that it would suffer prejudice by reason of the fact that the Plaintiff's claim was not brought with the Plaintiff's husband's claim. The particular prejudice from that separation of cases is the extra costs that will be involved in defending a second case when there would have been common evidence given in each case. That submission sits uneasily with the submission of prejudice by reason of the unavailability of witnesses and/or documents although I acknowledge that there are some discrete incidents alleged in the present proceedings that did not form part of the husband' proceedings.
85It may be accepted that there is some prejudice to the Commonwealth, as well as to the other Defendants, by reason of the bringing of this case separately. However, not only is that a small consideration, it is a consideration which can be answered by appropriate costs orders at the conclusion of the present proceedings.
86The Commonwealth submitted further that it was prejudiced because the Plaintiff has given inconsistent accounts of particular matters. An example given was of her state of health and psychological wellbeing prior to the time she was incarcerated in Australia. The Commonwealth claims to be prejudiced because her account of these matters will be the only account that the Court will have available to it.
87This complaint of prejudice seems to me to be misplaced. The identification of the inconsistency in accounts was taken from various medical and other reports available to the Defendants. Some of the reports are contemporaneous reports. The fact that the inconsistencies are able to be identified enables the Defendants both to cross-examine the Plaintiff and otherwise to point to the discrepancies in order to submit that the Plaintiff should not be accepted on these and other matters. There does not appear to me to be any prejudice in that regard.
88The final matter of prejudice to which all Defendants pointed was the issue of whether, if the Plaintiff's claim was allowed to proceed, each Defendant could obtain an extension of the limitation period for bringing a cross-claim against the other Defendants. Doubt was expressed about whether there was power in the SA Act to extend the time for the bringing of cross-claims: cf s 26 Limitation Act 1969 (NSW) noting that that section deals only with contribution between tortfeasors and not cross-claims generally.
89In my opinion, s 48(1) is wide enough to enable an extension of time for the bringing of a cross-claim. It would not be difficult to regard as material facts, for the purposes of that section, any matters alleged by the Plaintiff in her Statement of Claim. Not all of the matters alleged would have previously been known to the particular Defendant desirous of cross-claiming. Alternatively, how that particular matter was said to have affected the Plaintiff is unlikely to have been known to the Defendant before service of the Statement of Claim.
90In any event, it is a matter for a defendant in any particular case to decide whether that defendant pleads a limitation defence. In circumstances where each of the present Defendants will, as a result of this judgment, be obliged to defend the Plaintiff's claims against them it would be in the interests of all of them to have an appropriate apportionment amongst them rather than simply having separate judgments in favour of the Plaintiff if that is the final outcome. In those circumstances it would be open to the Defendants to agree not to plead any limitation defence in answer to any Cross-Claim served upon them.
91The parties agreed that the issue of dealing with extensions of time for cross-claims could be postponed until after judgment had been delivered on the Plaintiff's application.