New South Wales Supreme Court CITATION : Henry v Commonwealth [2001] NSWSC 971 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11201/2001 HEARING DATE(S) : 26 October 2001 JUDGMENT DATE : 2 November 2001 Peter William Henry (Plaintiff) PARTIES : Commonwealth of Australia (Defendant) JUDGMENT OF : Master Harrison Mr P Hennessy SC with Ms Kumar COUNSEL : (Plaintiff) Mr C Hoeben SC (Defendant) Rishworth Dodd & Co (Plaintiff) SOLICITORS : Australian Government Solicitor (Defendant) CATCHWORDS : Extension of time to commence proceedings - Northern Territory Limitation Act Limitation Act 1981 (NT) LEGISLATION CITED : Commonwealth Employees' Rehabilitation and Compensation Act 1988 Freedom of Information Act (1982) (as amended) Pfeiffer v Rogerson (2000) 172 625 at 651 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 197 CLR 29 CASES CITED : Commonwealth of Australia v Mewett (1997) 191 CLR 297 Bridbane South Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Schenk v The Commonwealth of Australia (unreported ACTSC 10 October 1997) Commonwealth of Australia v Gill [1999] FCA 1659 DECISION : The court orders; (1) That the plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 May 1988 up to and including 16 November 2001; (2) The plaintiff is to file and serve a statement of claim on or before 16 November 2001; (3) The plaintiff is to pay the defendant's costs. 13 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION FRIDAY, 2 NOVEMBER 2001 MASTER HARRISON 11201/2001 - PETER WILLIAM HENRY v COMMONWEALTH OF AUSTRALIA Judgment (Extension of time to commence proceedings - Northern Territory Limitation Act) 1 MASTER: By amended summons filed 26 October 2001 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to s 12 of the Limitation Act 1981 (NT) (the Act). The plaintiff relied on his affidavits sworn 26 April 2001 and 22 October 2001, the affidavit of his solicitor Stephen John Dodd sworn 25 October 2001. The defendant did not rely upon any affidavit evidence. 2 I observed the plaintiff carefully while he was being examined and cross examined and I formed the view that he was a truthful witness. He ambulated with the aid of a walking stick and while giving evidence his left arm shook uncontrollably. The plaintiff had to hold it steady with his right hand. For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts. (1) The plaintiff was born on 25 August 1962 and is currently 39 years of age. (2) On about 22 February 1984 the plaintiff commenced employment with the Department of Defence as a soldier within the Australian Regular Army Supplement. (3) On 10 May 1988 during the course of his employment the plaintiff was injured when a sharp antenna aerial (RC292) travelling at speed struck him above his right eye and penetrated into his brain. He had to pull it out and did not lose consciousness and has given a detailed account of the circumstances of the accident. As a result he has suffered serious injury, including brain damage, mood swings and personality change, loss of vision, paralysis of the left limbs and chronic Post Traumatic Stress Disorder. The accident occurred near the Mataranka Homestead, which is located approximately 50 kilometres south east of the RAAF base at Tindale in the Northern Territory. (4) On 26 May 1988 the plaintiff lodged a claim for compensation in relation to the accident with the Department of Defence. (5) On 30 May 1988 the accident was investigated by Lieutenant Searles an authorised agent of the Department of Defence. (6) On 17 October 1988 the plaintiff received a letter from the Department of Defence acknowledging his claim for compensation. (7) Between August 1988 and May 1989 the plaintiff had conversations with an Army legal officer of the District Support Unit at Liverpool in relation to the accident and his compensation rights. (10) On 5 November 1988 the plaintiff was declared totally and permanently incapacitated by the Department of Defence and granted a disability pension, which is continuing to date. (11) On 3 May 1989 at the request of the Department of Defence the plaintiff attended Dr Kevin Bleasel for a medical examination. (12) On 18 August 1989 the Department of Defence admitted liability for the accident pursuant to the provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (as amended) (CERCA) . All hospital and medical expenses relating to the plaintiff's treatment to date have been paid by the Department of Defence. (13) On 9 January 1990 the plaintiff deposed in his first affidavit (26.4.01) that he contacted the compensation section of the Department of Defence and held discussions in relation to a lump sum compensation payment pursuant to the CERCA . This was because he had heard that the compensation was being revamped. In the plaintiff's subsequent affidavit, he deposed that on 9 January 1990 he contacted a male person at the compensation section of the Department of Defence and had discussions in relation to a lump sum compensation payment pursuant to the Act. He said words to the effect "How do I stand legally with compo and should I take legal action against the government". The officer from the defendant replied with words to the effect "I will get someone to call you back in relation to this aspect". The defendant's file note of 9 January 1990 refers to the telephone conversation and a number of matters were discussed and states that the plaintiff "Wanted to know how he stood legally with compo as he wanted to seek legal opinion whether he should take legal action against the Government for his injuries. I said I would get someone to call him back in relation to this respect." Within three to four days or possibly a week later a male person from the compensation section telephones the plaintiff and said words to the effect "I refer to you enquiries in relation to an action against the Commonwealth. You have no rights under common law." Further, the defendant's file note of 8 May 1990 records that "as he may go common law instead of L/S from LS". (14) On 25 March 1990 the plaintiff was declared permanently incapacitated medically unfit for further defence service and was discharged from the Australian Army and granted a fortnightly benefit from ComSuper. (15) On 16 June 1990 a file note of the defendant states: " THIS SHEET TO REMAIN TOP FOLIO NOT TO BE REMOVED PLEASE TREAT THIS AS SERIOUS – NO ONE IS TO TALK TO ANYONE WHO PHONES UP RE THIS CLAIM. TALK TO LAUR - ENCE IF THIS IS A PROBLEMS OR SENKS IF I AM UNAVAILABLE LAURENCE 16.6.90" "Laurance" is an officer of the defendant who handed the plaintiff's case. (16) In early 1991 the plaintiff consulted the late Mr Frank Hibbett an advocate from the Returned Services League of Australia in relation to his compensation rights. Mr Hibbett sought information from the Department of Defence on the plaintiff's behalf in relation to the effect of his disability pension upon a grant of lump sum compensation pursuant to CERCA . (17) In about August 1992 the plaintiff was referred to Messrs Vardanega Roberts Solicitors ("former solicitors") by Mr Hibbett in order to seek legal advice as to his rights under common law. (18) On 13 August 1992 the plaintiff was advised by his former solicitors that he could not sue the Department of Defence in an action for negligence or breach of contract as the law prevented him from doing so. (19) On 7 September 1992 the plaintiff wrote to the Department of Defence requesting access to documents recording the conversations he had had with Lieutenant Searles. (20) On 3 December 1992 the plaintiff was advised by the Department of Defence that they did not hold the documents. (21) On 22 March 1999 Colonel J Haynes of the Regular Defence Force Welfare Association referred the plaintiff to Mr Bernie Sullivan, barrister. Mr Sullivan advised the plaintiff to consult a solicitor in order to obtain records in relation to the accident as he might have a claim for damages under common law. (22) In May 1999 the plaintiff consulted his present solicitors Rishworth Dodd & Company in relation to the accident, who advised him that he might have a claim under common law. This was the first time that the plaintiff became aware of his common law rights. His solicitors also advised him that before an application could be considered it would be necessary to obtain the documents relating to his accident from the department of Defence. In May 1999 the plaintiff lodged an application with the Department of Defence to gain access to the record pursuant to the Freedom of Information Act (1982) (Cth) (as amended) ("the FOI application"). (23) In June 1999 the plaintiff received a letter from the Department of Defence dated 7 June 1999 requesting payment of $30 before the FOI application could be processed. In June 1999 the plaintiff also received a letter dated 7 June 1999 from the Defence Legal Office stating that s 15A of the Freedom of Information Act 1982 prevented processing of the FOI application without first seeking the requested documents through normal administrative channels and advising that the plaintiff's request for access had been referred to the Soldiers Career Agency for attention. The plaintiff was informed by Colonel J Haynes that processing of request for access to documents through normal administrative channels would take in excess of six to seven months. To date the plaintiff has not received any further advice with regards to the processing of his application. (24) In late 1999 the plaintiff located the following witnesses to the accident – Lance Corporal Wayne Piggot, PJ McNeil, Sergeant Steve Porter and Lieutenant Searles. (25) In December 1999 the plaintiff made enquiries with the Australian Army RAAC Memorial and Army Tank Museum with respect to Antenna RC-292. On 11 December 1999 G Linford WO2, Curator wrote to the plaintiff as follows: "1. As discussed, I searched for the sig referring to the incidence of eye and brain damage caused by falling elements of the 292, and the safety procedures to be taken to ensure this did not happen. On searching through the records at the Mounted Combat Division HQ (old School of Armour) and Communications Wing I was unable to find any Ref to the signal or of any of the procedures to be adopted. 2. The 292 is now out of service with the ARA, but is used by the ARES and no Ref material is held here on its erection. I was able to locate a TM 11-5820-348-15 Manual on the 292 and parts of this are attached, page 3 on the erection is missing. There was another manual but this was kept with the equipment showing the erection details and the number of elements req which I was unable to source. 3. On speaking to several other WO's they tell me they remember the incident with P Henry and that it (sic) why the dress on erecting the antenna was revised, this was the wearing of goggles, helmet gloves? And attaching superbails to the end of each element. 4. One WO remembers the signal indicating the revised dress, and that amendments to publications would be forthcoming, but does not believe this happened, alas this was after the accident. 5. This is the end of the trail for me, you may like to contact 1/15 RNSWL who may be able to help or the OH &S people in Army, who should have the paper work on this change to procedure." (26) On 18 April 2001 the Department of Defence denied the plaintiff access to the documents pursuant to s 24A of the Freedom of Information Act . (27) On 26 April 2001 the summons was filed in these proceedings. (28) On 4 July 2001 the plaintiff sought an internal review of the denial of access to the documents. (29) On 15 October 2001 the defendant finally granted the plaintiff access to the documents. A folder has been tendered and marked "Ex A". The law 3 It is common ground that the law where the tort occurred governs the limitation period – Pfeiffer v Rogerson (2000) 172 625 at 651. Therefore the Limitation Act 1981 (NT) applies. 4 Section 12(1) of the Act provides: "12(1) Subject to subsection (2), the following actions are not maintainable after the expiration of a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims - (b) an action founded on tort including a cause of action found on a breach of statutory duty." 5 Thus the limitation period expired on 10 May 1991. 6 Section 44 provides for an extension of in certain circumstances. It provides: "44(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for - (a) instituting an action; (b) doing an act, or taking a step in an action; or (c) doing an act or taking a step with a view to instituting an action, a Court may extend the time to prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit. …" 44(3) This section does not - "(b) empower a Court to extend the limitation period prescribed by this Act unless it is satisfied that - (i) facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or (ii) the plaintiff's failure to institute the action within the limitation period resulted from representations or conduct of the defendants, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances, and that in all the circumstances of the case, it is just to grant the extension of time." 7 The plaintiff relied upon s 44(3)(ii). Between August 1988 and May 1989, the plaintiff was advised by an Army legal officer of the defendant as to his compensation rights. On 9 January 1990 the plaintiff telephoned the defendant and requested advice regarding his rights. A few days later a male person in the compensation section of the Department of Defence informed him that he did not have any common law rights. There is file note confirming the first conversation occurred. 8 The plaintiff submitted that the defendant did not notify him after the High Court decisions in Georgiadis v Australia and Overseas Telecommunications Corporation (1994) 197 CLR 29 and Commonwealth of Australia v Mewett (1997) 191 CLR 297 had been delivered that he had a cause of action at common law. In Georgiadis the High Court held that s 44 was unconstitutional therefore Commonwealth employees were entitled to common law rights. On 31 July 1997 the High Court held in Mewett that Commonwealth employees were entitled to common law rights even though such claims were statute barred. The plaintiff submitted that because after Georgiadis the defendant did not advise him that he could now lodge a common law claim this constituted a representation or alternatively constituted conduct that caused him to fail to institute proceedings. I do not think that s 44(3)(ii) casts a positive obligation on the defendant to give the plaintiff advice. This submission fails. 9 It was in May 1999 that the plaintiff first became aware that he had a claim under common law when he consulted his present solicitors. He has acted expeditiously since then. In fact the plaintiff has been a driving force in attempting to ascertain whether or not he could take common law proceedings. In 1990 he was told by the defendant that he could not do so. He acted in accordance with that advice and accepted that at that time he did not have common law rights. It is my view that in 1990 when a person in the employ of the defendant told him that he did not have common law rights, which constituted a representation, that caused him to fail to institute the action within the limitation period. The defendant's conduct evidenced by the file note of 16 June 1990 is conduct that was clearly aimed at preventing the plaintiff from obtaining information. The plaintiff was entitled to believe that the person he spoke to was acting on behalf of the defendant. It should be stated that the plaintiff's belief in those representations was reasonable. The defendant held the view that the plaintiff did not have common law rights in good faith. The defendant submitted that as those representations were not held in bad faith, it falls outside s 43(b)(ii). Section 43(b)(ii) refers to representations. It does not require those representations to be made in bad faith. It is my view that the plaintiff has satisfied the threshold requirement as stipulated in s 43(b)(ii). 10 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. The ultimate test in any such application is whether a fair trial can be conducted not withstanding any or whether the defendant would suffer significant prejudice. 11 The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. The plaintiff was employed by the defendant. He was injured in the course of his employment. The injuries were caused by the accident. There have been experts reports provided which opine that the defendant breach its duty of care and was negligent. After the accident safeguards such as the wearing of goggles were put into place. There is a real case to advance. 12 From the time of the injury until May 1999 the plaintiff's delay was caused by the incorrect belief that s 44 was valid law. In 1999 the High Court held that this belief was incorrect and that s 44 was unconstitutional - see Mewett and Schenk v The Commonwealth of Australia (unreported ACTSC 10 October 1997). 14 In Georgiadis the High Court held that s 44 was unconstitutional and therefore it did not extinguish common law causes of action that were not statute barred. Mewett's case applied Georgiadis and held that causes of action that were statute barred were capable of being extended. In Commonwealth of Australia v Gill [1999] FCA 1659, the plaintiff was injured on 28 May 1986 and did not commence proceedings until 6 June 1995. A defence filed 21 April 1999 pleaded that the action was statute barred. The Full Bench of the Federal Court upheld the decision to extend time and stated that one 'powerful factor' that supported such a result were the High Court decisions in Georgiadis and Mewett. 15 The delay from May 1999 until 26 October 2001 is explained by the substantial delay of the defendant in responding to the plaintiff's Freedom of Information request. The plaintiff made a FOI request on 17 May 1999 (as soon as he became aware of his legal rights). The defendant did not reply to this request until 23 April 2001 (the search was commenced on 15 January 2001). The summons was filed on 26 April 2001. It was only on 15 October 2001 that the records were provided to the plaintiff's solicitors. 16 The defendant rightly conceded that it would be able to obtain a fair trial. The defendant has retained many records and investigated the event (see report by Searles dated 26 May 1988); the witnesses to the accident wrote statements at the time of the accident. There are voluminous medical records that span from the time of the actual accident up to the present time. The witnesses have been located and are available to give evidence and have recall of the accident. The witnesses include Lance Corporal Wayne Piggot, P J McNeill, Sergeant Steve Porter and Lieutenant Searles. The material on the RC292 antenna is in existence. 17 Even though 13 years have passed since the accident occurred, and witnesses memories may have faded with the effluxion of time, there are witnesses available to give evidence, contemporaneous witnesses' statements, medical records and the case has been investigated by the defendant. There will able to be a fair trial. The defendant does not suffer significant prejudice. It is my view that in all the circumstances, it is just to grant an extension of time. 18 Costs are discretionary. As the plaintiff sought an indulgence of the court, he should pay the costs of the summons. 19 The court orders: (1) That the plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 May 1988 up to and including 16 November 2001. (2) The plaintiff is to file and serve a statement of claim on or before 16 November 2001. (3) Costs are reserved. Liberty to apply. ********** Last Modified: 11/06/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.