FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Williams [1999] FCA 703 LIMITATION OF ACTIONS – consideration of criteria set out in s 36(3) of the Limitation Act 1985 (ACT) – no error of principle. Limitation Act 1985 (ACT), s 36 Federal Court of Australia Act 1976 (Cth) s 24(1A) The Constitution, s 51(xxxi) Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44 Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297, referred to Commonwealth v Mewett (1995) 59 FCR 391, considered Commonwealth v Mewett (1997)191 CLR 471, considered Ford Motor Co Australia Pty Ltd v Kulic [1988] VR 152, mentioned Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, mentioned Henricks v Agnew (unreported, New South Wales Court of Appeal, 23 October 1997), mentioned Gronow v Gronow (1981) 144 CLR 513, followed Jones v Dunkel (1959) CLR 298, followed COMMONWEALTH OF AUSTRALIA v WILLIAMS AG 119 of 1998 GALLOP, HEEREY, R D NICHOLSON JJ 28 MAY 1999 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No AG 119 of 1998 DISTRICT REGISTRY ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND: GEORGE WILLIAMS Respondent CORAM: GALLOP, HEEREY & RD NICHOLSON JJ DATE OF ORDER: 28 MAY 1999 WHERE MADE: CANBERRA MINUTES OF ORDER THE COURT ORDERS THAT: 1. Leave to appeal should be granted. 2. The appeal be dismissed with costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No AG 119 of 1998 DISTRICT REGISTRY ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: COMMONWEALTH OF AUSTRALIA Applicant AND: GEORGE WILLIAMS Respondent CORAM: GALLOP, HEEREY & RD NICHOLSON JJ DATE: 28 MAY 1999 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 The Commonwealth seeks leave to appeal from a decision of Crispin J under s 36 of the Limitation Act 1985 (ACT) extending the period within which the respondent could bring an action for negligence until 23 December 1997 that being the day after the respondent issued an originating application. The action is based on an incident on 27 May 1982 when the respondent was employed by the Commonwealth as a fireman at the Belconnen Fire Station. The respondent claims he was required to handle uniforms and equipment which had been contaminated with the chemical Toluene Di-Isocyanide (TDI) as a result of a truck accident and fire on the Barton Highway. The respondent claims that, as the result of his skin coming into contact with the uniforms and equipment, he suffered continuing debilitating symptoms including skin rash, anxiety, depression, functional stress disorder and severe polyneuropathy. 2 It is accepted that the order was interlocutory and that leave to appeal is necessary: Federal Court of Australia Act 1976 (Cth) s 24(1A). 3 Section 36 of the Limitation Act relevantly provides, "36. (1) This section applies to any action for damages where the damages claimed consist of or include damages in respect of personal injuries to any person. (2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines. (3) In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) the length of and reasons for the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent, if any, to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (4) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding - (a) that the limitation period in respect of the relevant cause of action has expired since the cause of action accrued; or (b) that an action in respect of such personal injuries has been commenced. (5) ..." Common law claims by Commonwealth employees 4 The prosecution of the respondent's claim at common law for damages was affected by legislative intervention and the subsequent invalidating of that legislation by High Court decisions. 5 On 1 December 1988 (ie after the limitation period for the respondent's claim had expired on 27 May 1988) the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into operation. By s 44 of that Act, actions by Commonwealth employees for injuries arising out of their employment were barred, whether the injuries occurred before or after the commencement of the section. 6 On 9 March 1994 the High Court handed down its decision in Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297. A majority held that s 44 was invalid on the ground that it effected an acquisition of property otherwise than on just terms, contrary to s 51(xxxi) of the Constitution. 7 The claim that the High Court dealt with in Georgiadis had not been statute-barred by a limitation period. The Court expressly confined its decision to such a cause of action: 179 CLR at 308. The position of plaintiffs, like the present respondent, whose claims were statute-barred was dealt with in the later case of Commonwealth v Mewett. On 1 November 1994 Foster J dismissed the Commonwealth's motion seeking to strike out the whole of the proceeding on the ground that Mr Mewett had no reasonable cause of action. Foster J granted leave to appeal and reserved for a Full Court the question whether s 44(1) was invalid in its application to Mr Mewett's claim. On 31 August 1995 the Full Court answered that question in the affirmative: (1995) 59 FCR 391. The High Court affirmed this decision on 31 July 1997: (1997) 191 CLR 471. The respondent's case for extension 8 The respondent swore an affidavit on 13 October 1998 in support of his application for extension of time. He was not cross-examined. He deposed that he was required to handle the contaminated uniforms on 27 May 1982. He "subsequently" developed rashes on his upper arms and parts of his chest. He also found that he suffered night sweats and became short tempered. In 1984 he suffered a back injury at work and was eventually invalided out of the service in 1987. He continued to experience various joint pains, momentary blackouts and lack of sensation in the feet and lower legs as well as mood swings. His condition continued to deteriorate. 9 During the late 1980s the respondent became aware of other firefighters who had experienced similar difficulties. In about 1990 he contacted Pamela Coward & Associates, solicitors. He gave the firm a list of his symptoms and was referred to Dr Ronald Wells. He saw Dr Wells on 6 December 1990 and Dr Wells gave a report to the respondent's solicitors. Although noted as being received by the solicitors on 31 January 1991, the report itself is dated 11 December 1990. Dr Wells concluded that the respondent's symptoms, "... would be consistent with the sort of acute and delayed hypersensitivity reactions known to be caused by TDI exposure. No other causation for these disorders is apparent in Mr Williams' case. In my opinion the balance of probability is that they are all caused by his contact with TDI when handling contaminated uniforms on 27 May 1982." Dr Wells discussed the, "most severe, distressful and disabling symptoms caused to the respondent by a chronic progressive disorder of his nervous system affecting mainly the sensory nerves in his lower legs and arms and the sensory nerves in his lower urinary tract and bowel.' Dr Wells concluded that it was, "...highly probable that Mr Williams was exposed to TDI at work on 27 May 1982, that this exposure caused acute cerebral damage resulting in personality changes and liability to momentary losses of consciousness, and that this exposure caused an auto-immune disease resulting in a polyarthritis and a severe polyneuropathy with all its consequent permanent disabilities." 10 The respondent was provided with a copy of Dr Wells' report. This was the first time he became aware that his symptoms were related to his exposure to TDI. At that time, he was advised that it was not possible to commence proceedings because of the introduction of the Safety, Rehabilitation and Compensation Act. His affidavit continues, "11. I read about a High Court case and saw notices stating that I might be able to make a claim in early 1994 and on 31 March 1994 I approached Gary Robb & Associates to discuss my case. 12. I was subsequently advised of a further court case called Mewitt [sic] that was being run by the Commonwealth as a test case and, if successful, the effect would be to prevent my right to take action and advised there was little point in proceeding until this matter was clarified. 13. I instructed my solicitors to notify the Commonwealth of my intention to make a claim. Annexed hereto and marked with the letter "B" is a true copy of the letter sent by them to the Australian Government Solicitor's office dated 4 December 1996. 14. I understand that a number of my colleagues and, in particular, Firefighters Plowman, Harrison and Schoffield, have made claims in respect of exposure to the Toluene Di-Isocyanide on 27 May 1982 and that they have been successful in pursuing their actions. 15. I believe that the relevant documents and evidence remain available." We interpolate the comment that although par 12 of the affidavit does not indicate when the respondent was advised about Mewett, the language rather suggests this occurred at an early stage (the case was "…being run by the Commonwealth as a test case and, if successful…") perhaps before the first instance decision of Foster J on 1 November 1994. In any event, even if the respondent learned of the case after Foster J's decision, the fact that the question was referred to the Full Court would indicate that the matter was certainly not resolved finally. Medical evidence 11 On 10 November 1988 the Australian Government Solicitor wrote to the respondent's solicitors asking for details of the respondent's main treating health professionals in respect of his condition and also "the name and address of each general practitioner who has treated your client on any occasion from 1 January 1980 for any medical matter whatsoever, whether arising out of the alleged incident or not." The respondent's solicitors replied on 18 November. As to the latter request, they said it was "too broad and oppressive and fishing"– a comment with which we would agree – but indicated that the respondent's "main treating general practitioners over the period" were Dr Appleby, Melba Health Centre Clinic and Dr Dunning of Doncaster, Melbourne. As to the main treating professionals in respect of the respondent's condition, the solicitors advised the names of the three practitioners mentioned and also Dr Garrick and Dr Sambrook, both of Sydney, and Dr Andrews. Dr Appleby had retired, but apparently a copy of his notes had come into the possession of the respondent. As to Dr Andrews, there was a letter from him to Dr Appleby in existence, but no notes. It was conceded that the other practitioners involved retained relevant records. 12 The Commonwealth produced medical certificates from a Dr Henderson and a Dr Lightfoot dated 3 July 1981 and 17 July 1981. These certified unfitness for work for the respondent for respectively two and four days. The latter was for "abdominal pain" and the former for some kind of infection – the certificate is otherwise indecipherable. The judgment below 13 His Honour, in an ex tempore judgment, summarised the respondent's case in terms substantially the same as those already mentioned. He noted the argument of counsel for the respondent that there was a reasonable explanation for the delay, that the Commonwealth must be taken to have some knowledge of the incident having regard to the litigation apparently instituted by other people and to the fact that the litigation had been successfully maintained. Counsel submitted that there had been no actual evidence of any real prejudice other than in relation to the unavailability of certain medical notes and, in the circumstances, that was of little importance. 14 His Honour then referred to the argument of counsel for the Commonwealth. Counsel pointed out that this was "a very old claim indeed" and, when commenced, was almost a decade out of time. Further, while some of the delay may have been explicable, there had been no adequate explanation of the delay of more than 2 ˝ years between 31 March 1994 when the respondent said he consulted his present solicitors to discuss (presumably) the Georgiadis decision and 4 December 1996 when notification of the claim was given to the Commonwealth. Counsel argued that the respondent did not indicate what advice he had received about the Mewett case and did not explain any delay prior to being so advised. His Honour noted and accepted counsel's submission that the onus was on the respondent to establish grounds upon which the discretion provided by s 36 should be exercised in his favour. 15 His Honour noted that counsel for the Commonwealth referred to Ford Motor Co Australia Pty Ltd v Kulic [1988] VR 152 at 157. His Honour indicated he would not regard a finding on the facts of Kulic as being conclusive in relation to a claim under s 36. His Honour continued, "As I have already indicated, the length of the delay is very substantial indeed and that factor is a significant factor which provides a significant impediment to the present application. On the other hand the reasons for the delay are in my view, valid at least insofar as the majority of that period is concerned. Secondly, the section enjoins me to have regard to the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant." 16 His Honour then referred to Dr Appleby's notes and the letter from Dr Andrews. His Honour referred to the certificates of Dr Lightfoot and Dr Henderson in 1981 and said, "It should be noted that the conditions seem to be unrelated and that in each case they were suffered prior to the relevant incident. Nevertheless, it is said that neither Dr Henderson's records nor Dr Lightfoot's are any longer available." 17 His Honour recorded the Commonwealth's submissions that there had never been any claim for workers' compensation by the respondent arising out of the injuries sustained on 27 May 1982 and that there may well be a real prejudice because the medical explanation for the continuing symptoms of the respondent may be a major issue at the trial, and that therefore it would be of critical importance to examine records as to the state of his health both before and after the incident in question. His Honour said, "... That is again a matter of some significance although it does seem to me that there is nothing in the material to suggest that Dr Henderson or Dr Lightfoot had anything much to contribute in relation to a comparison of this man's health before and after the incident in question. Indeed, there is nothing in the evidence to indicate what contact they may have had with him other than, so far as, that is disclosed by medical certificates relating to a single consultation in each case in 1981. In the circumstances it seems to me that there is a substantial amount of records available, although records - all of the medical records will no doubt not be available. In particular, I note that the paucity of records relating to any involvement by Dr Andrews. Furthermore, in this case as in any case where there has been an extensive delay, there is an inevitable potential for prejudice, even if it cannot be established with any clarity by the defendant. As the High Court of Australia pointed out in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, the quality of justice may deteriorate in ways not recognised by the parties." Taylor is now reported at (1996) 186 CLR 541. 18 His Honour also referred to the unreported decision of the New South Wales Court of Appeal in Henricks v Agnew, 23 October 1997, to the effect that an applicant bore the onus of establishing that it was fair and just that a discretion be exercised in his favour. His Honour thought that decision was obviously applicable to the present circumstances. 19 His Honour went on to consider the other criterion prescribed by s 36 as to the conduct of the defendant (s 36(3)(c)). He noted that counsel for the respondent submitted that his Honour should take into account the fact that the Commonwealth was on notice that other people had been injured as a result of coming into contact with the chemical and yet it did nothing to call in the plaintiff and have him medically examined. On the one hand, according to counsel for the Commonwealth, there had been no claim for compensation by the respondent and no reason for the Commonwealth to take any initiative. His Honour accepted the Commonwealth's submission as to that criteria. 20 As to s 36(3)(d), his Honour accepted on the basis of the report of Dr Wells that there had been continuing disability for some years which, in Dr Wells' view, was permanent. 21 As to s 36(3)(e), the requirement that the plaintiff act promptly and reasonably, his Honour noted that this criterion raised the criticism of the respondent's perceived delay following the initial consultation with his present solicitor on 31 March 1994. His Honour said, "It is true that the delay to which Mr Stretton [counsel for the Commonwealth] refers has not been proven with any precision. It seems to me probably that at some stage following the initial decision of 1 November 1994, the plaintiff was advised of the proceedings and advised that it would be appropriate to wait until the matter had been clarified. I think it would have been entirely reasonable for that advice to have been given and for the plaintiff to have accepted it. It is possible that he was informed of the existence of the case even prior to that decision, although as Mr Stretton points out, there is no evidence of that. In any event it is true to say that there is some delay running to at least a number of months and perhaps longer than that, which the plaintiff has failed to adequately explain. On the other hand, that is a delay which occurred in 1994 and perhaps 1995 in relation to an accident which had occurred in May 1982 and was already then some 12 years old. In all the circumstances it does not seem to me that great weight should be attached to that factor.". 22 As already mentioned, the language of the affidavit perhaps seems to be more indicative of a consultation before the decision of Foster J at first instance in Mewett, but the language is admittedly ambiguous and we do not think the point is critical. 23 His Honour noted the final criterion (s 36(3)(f)) as to the steps the respondent took to obtain medical, legal and other expert advice. His Honour indicated that he had already dealt with those matters. His Honour concluded as follows, "Ultimately it seems to me that one has a situation in which there has been a very extensive delay which has undoubtedly given rise to some significant risk of prejudice of a kind which that can be perhaps confirmed by reference to the fact that some medical records are not available, but which would inevitably arise simply as a result of the affluxtion [sic] of time and the consequent loss of memory and perhaps other documents. On the other hand, those considerations must be balanced against the fact that this man has had a very serious disability which developed progressively over a number of years and in relation to which he had no knowledge that it might have been caused by the events of May 1982 until at the very earliest the end of 1990. I am satisfied that thereafter he returned to his solicitors who had apparently referred him to Dr Wells and he acted in accordance with their advice. It does not seem to me to be possible to suggest that he has been guilty of any inappropriate delay until, at the very earliest, some time after 31 March 1994. That delay seems to me to have been unlikely to have been of any great significance although one simply does not know when records cease to become available and the possibility of one period of delay being of more significance than another cannot be excluded. It is a significant matter, I think, that other proceedings were brought against the Commonwealth and the Commonwealth therefore had some notice of the proceedings. There does not appear to be any indication in the evidence as to when those proceedings were brought but one would assume that they were brought within time since there are – at least some of them would have been brought within time. In all the circumstances I think that it is appropriate that the plaintiff be granted leave to commence or rather to maintain the present proceedings. It seems to me that the balance of the circumstances in the case, including the particular criteria set out in sub-section 36(3) of the Limitation Act lies in the plaintiff's favour and in the exercise of my discretion I propose acceding to the plaintiff's application." The Commonwealth's argument 24 First, counsel argued that his Honour erred in failing to consider the question of prejudice in relation to the whole period from 27 May 1982 but instead considered the position from two later dates, namely January 1991, when the respondent first became aware of the possible connection between his medical condition, and from 31 March 1994 when he received legal advice of his entitlement to sue. 25 We do not think a fair reading of his Honour's reasons as a whole supports this criticism. Obviously, this was a very long period of delay and his Honour expressly acknowledged that it was. His Honour's express reference to Taylor indicates that he was well aware of the prejudicial effect of delay. Nevertheless, in the particular circumstances of this case, his Honour was also required to direct his attention to the particular milestones of the respondent's awareness of (i) the connection between his medical condition and the accident and (ii) his entitlement to sue. The fact that his Honour discussed the periods commencing from this date does not mean that he ignored the overall period. 26 Secondly, it was said there was no evidence as to the cause of the delay between 31 March 1994 and 4 December 1996. We agree, however, with counsel for the respondent that this amounts to no more than a complaint that his Honour did not give enough weight to the particular period of delay for which, as counsel conceded, the explanation was not entirely satisfactory, at least with respect to some of that time. That a trial Judge has given too much or too little weight to a particular fact or circumstance is not a permissible ground of appeal against the exercise of a judicial discretion: Gronow v Gronow (1981) 144 CLR 513. 27 Thirdly, counsel for the Commonwealth argued that his Honour should have drawn an inference unfavourable to the respondent as a result of his lack of explanation for the reasons for this particular period of delay (31 March 1994 – 4 December 1996): Jones v Dunkel (1959) 101 CLR 298. But as counsel for the respondent pointed out, there was, at least in broad terms, an explanation for this period of delay, namely awaiting the result of the Mewett case. While it is true that the respondent's evidence could have been clearer as to the date on which he was informed about Mewett, the respondent did not attempt to explore this by cross-examination. But we do not see that there was any inference more favourable to the Commonwealth, for which there was ground in the evidence, which might more confidently be drawn from any lack of particularity in the evidence of the respondent: Jones v Dunkel at 308. 28 Fourthly, counsel for the Commonwealth attacked the reliance by his Honour on the proceedings involving the respondent's fellow workers. It was said that no evidence as to whether any other action had been brought on the basis of an exposure to TDI at the same time as the respondent. There was no evidence as to the injuries of the other plaintiffs or whether they bore any relationship to injuries alleged by the respondent. There was no evidence as to whether full medical records were available as to any other plaintiff. 29 However, in our respectful opinion, the learned judge was clearly correct in referring to these other claims as a significant factor in favour of the respondent. It is plain from the unchallenged evidence of the respondent that he believed three named fellow employees had made claims in respect of exposure to the same chemical on the same date as his exposure and that they had been successful in pursuing their actions. This latter aspect suggests that the actions were brought within time and thus the Commonwealth had access to relatively fresh information about the effect of TDI on the date in question and the circumstances of the accident. On the other hand if there were never any claims by those named individuals, or if they had failed, a ready check of the Commonwealth's files would reveal this and one would expect that evidence would be proffered accordingly. The failure by the Commonwealth to adduce any such evidence attracts the Jones v Dunkel rule. A court can the more confidently draw the inferences relied on by the respondent. By the same token, the Commonwealth did not adduce any evidence to show that exposure to TDI could not have the effect claimed by the respondent. 30 Fifthly, counsel for the Commonwealth complained of his Honour's dealing with the absence of the records of Dr Henderson and Dr Lightfoot. But his Honour did acknowledge this as a matter of some significance and, in any event, his comment that there was nothing "in the material", ie the two medical certificates, to suggest that Dr Henderson or Dr Lightfoot had anything much to contribute in relation to a comparison of the respondent's health before and after the incident was a factual observation obviously open. 31 Sixthly, it was said that the absence of some medical records did create an actual prejudice and that his Honour erred in concluding that the prejudice was of little weight. Again, this seems no more than a complaint that some particular aspect should have been given greater weight. 32 Seventhly, counsel complained that undue weight was given to the "very serious disability" that might have been caused by the accident. Again, this is merely a complaint as to weight. Conclusion 33 This was a discretionary decision. His Honour was directed by the statute to consider a number of specific criteria, which he did. It is plain, as already mentioned, that his Honour had regard to the very long overall period of delay and the inherent likelihood of prejudice resulting therefrom. However, the legislature has not seen fit to impose a super limitation period, that is to say an absolute period beyond which no extension of time can be granted. Other judges might have reached a different conclusion on the same material. But it is of the essence of a discretionary decision that reasonable minds may differ. In our respectful opinion, it has not been shown that his Honour took into account any irrelevant consideration or failed to take into account any relevant consideration; nor is there ground for thinking that the decision is manifestly unjust. The one striking feature in this case, the very long period of delay, is in a sense balanced by two other factors, namely, the late awareness to the respondent of the possible connection between his condition and the accident and the complication arising from the purported statutory abolition of common law rights. 34 Moreover, much of the Commonwealth's argument implicitly assumed that the criteria in s 36(3)(a) to (f) form a cumulative set of mandatory requirements so that a failure, or less than satisfactory performance, on any one criterion, would be necessarily fatal. But s 36(2) requires the Court to make the order sought if it is "just and reasonable to do so". The criteria in sub-s (3) are matters to which the Court is to have regard, and indeed they are not an exhaustive list since they do not derogate from the generality of sub-s (2). 35 Since this was a case where substantial injustice would be caused to the Commonwealth if a wrong decision remained, and since it was not, practically speaking, possible to consider whether the decision was attended with sufficient doubt without reviewing the Commonwealth's complaint, we think it is appropriate that leave to appeal should be granted. However, the appeal should be dismissed with costs, including reserved costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 28 May 1999 Counsel for the Appellant: Mr G Stretton Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr R Crowe Solicitor for the Respondent: Gary Robb & Associates Date of Hearing: 13 May 1999 Date of Judgment: 28 May 1999