Supreme Court New South Wales Medium Neutral Citation: Yousefi v The Commonwealth of Australia [2012] NSWSC 967 Hearing dates: 20 and 21 August 2012 Decision date: 20 December 2012 Jurisdiction: Common Law Before: Davies J Decision: (1) Extend time to 3 May 2010 for the Plaintiff to commence the present proceedings against the First, Second and Third Defendants. (2) Extend time to 3 May 2010 for the Plaintiff to commence the present proceedings against the Fourth Defendant limited to a cause or causes of action not based on events which occurred after 1 May 2004. (3) Costs of the application are the Defendants' costs in the proceedings. Catchwords: LIMITATION OF ACTIONS - application to extend - Limitation of Actions Act 1936 (SA) - whether material facts ascertained within 12 months prior to commencement of proceedings - claim by refugee for post-traumatic stress disorder as a result of conditions in detention centres - whether just to extend time - whether sufficient explanation for delay - prejudice to the defendants. PROCEDURE - costs - appropriate costs order where applicant for extension successful - unreasonable behaviour by applicant in the way the application was run. Legislation Cited: Coal & Allied Operations Pty Ltd v Springer [2003] NSWCA 271 Choice of Law (Limitation Periods) Act 1993 (NSW) Civil Liability Act 2002 Law Reform (Ipp Recommendations) Act 2004 Limitation Act 1969 (NSW) Limitation of Actions Act 1936 (SA) Uniform Civil Procedure Rules Cases Cited: ASB-Tech Services Pty Lty (in liquidation v Doeland [2003] NSWCA 167 Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Lewis [2007] NSWCA 127 Commonwealth of Australia v Smith [2005] NSWCA 478 Holt v Wynter [2000] NSWCA 143 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 Jones v Dunkel (1959) 101 CLR 298 Locklier v The State of NSW [2009] NSWSC 746 Napolitano v Coyle (1977) 15 SASR 559 Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443 Salvation Army (South Australia Property trust) v Graham Rundle [2008] NSWCA 347 Shayan Badraie bht Mohammad Saeed Badraie v Commonwealth of Australia and Ors [2005] NSWSC 1195 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Wright v Donatelli (unreported - Supreme Court of South Australia Full Court - 20 October 1995) Zambo v The State of South Australia [2007] SASC 62 Category: Interlocutory applications Parties: Mehrnoosh Yousefi (Plaintiff) The Commonwealth of Australia (by the Department of Immigration, Multicultural and Indigenous Affairs) (First Defendant) Australasian Correctional Services Pty Ltd (Second Defendant) The GEO Group Australia Pty Ltd (formerly known as Australasian Correctional Management Pty Ltd (Third Defendant) G4S Australia Pty Ltd (formerly known as GSL Australia Pty Ltd and Group 4 Falck Global Solutions Pty Ltd (Fourth Defendant) Representation: Counsel: Dr A S Morrison SC & R Royle (Plaintiff) P S Jones (First Defendant) N E Chen (Second & Third Defendants) C Purdy (Fourth Defendant) Solicitors: Slater & Gordon (Plaintiff) Australian Government Solicitor (First Defendant) Wotton & Kearney (Second & Third Defendants) Gilchrist Connell (Fourth Defendant) File Number(s): 2010/109439 Judgment 1The Plaintiff applies for an extension of time to bring proceedings commenced on 3 May 2010 against the Commonwealth and three other Defendants. The Plaintiff's claim arises out of her detention and the detention of her husband and son at Woomera IRPC and Baxter IDF as a result of the Plaintiff and her family arriving in Australia without visas on 20 April 2001. The family were ultimately found to be refugees. 2Because the Plaintiff suffered the damage that she alleges in South Australia and as a result of detention in South Australia her rights to an extension of time are governed by the Limitation of Actions Act 1936 (SA) (the SA Act). Background 3The Plaintiff and her husband were born and grew up in Iran. The Plaintiff was born 16 August 1970 and is now aged 42 years. 4At the age of 19 she married her husband Parviz. A year later her only son Manoochehr was born. 5After a trip to the United States in 1998 the Plaintiff and her husband ran into difficulties with the government of Iran and in their work with the Iranian oil company. At one point they were interrogated by government officials. 6They were denied passports to leave Iran. Accordingly, in late 2000 they left Iran on false passports and came to Australia via Malaysia and Indonesia. In Indonesia they were waiting for a United Nations representative to come to the immigration camp where they were situated. No representative came so they travelled to Jakarta where they met people smugglers and arrived at Ashmore Reef after a three day boat journey ride in April 2001. They did not have visas to enter Australia. 7Between 30 April 2001 and 3 January 2002 they were detained at the Woomera IRPC. At one point the Plaintiff and her son were moved to Carson in Woomera City where they remained for 12 months. During that time the Plaintiff's husband was separated from them. 8In mid-2002 the Plaintiff and her son were moved back to the Woomera IRPC until 2 January 2003 when they were transferred to Baxter IDF. They remained there until 15 June 2004 when they were accepted as refugees by the Refugee Review Tribunal. They then moved into the community and were given temporary protection visas. 9In the claim as ultimately filed, the Plaintiff alleges that whilst she was held at Woomera between 26 April 2001 and 2 January 2003 she witnessed or experienced a number of traumatic events. Those traumatic events were said to include but not be limited to the following: (a)prolonged detention in a physically restraining, harsh and isolated environment; (b)prolonged separation from the Plaintiff's husband whilst being housed in the Woomera Residential Housing Project; (c)severe restrictions placed upon contact between the Plaintiff and the Plaintiff's husband, including in relation to telephone and direct contact for up to 6-8 weeks at a time; (d)transfer of the Plaintiff, the Plaintiff's husband and son to Oscar Compound, an area regarded as a punishment area and where at that time there were only two other detainees for an initial period and thereafter, no detainees other than the Plaintiff, the Plaintiffs husband and son; (e)periods of isolation from other detainees including the Plaintiff's husband while the Plaintiff's husband was held in an isolation room known colloquially as the "Silly Room"; (f)severe breakdown of family relations; (g)acts of self-harm and threatened self harm by the Plaintiff's family members upon themselves, including wrist and arm cutting; and preparation of noose for hanging; (h)acts of violence and intimidation on the part of the servants or agents of the First, Second and Third Defendants towards the Plaintiff, the Plaintiffs family and other immigration detainees; (i)acts of violence and intimidation on the part of immigration detainees towards other immigration detainees, including members of the Plaintiff's family, and the servants or agents of the First, Second and Third Defendants; (j)acts of self harm and/or attempted acts of self harm and/or threats of suicide and/or harm by other immigration detainees such as hunger strikes and wrist cutting; (k)exposure to rioting and aggressive behaviour, tear gas, fires and water cannons. 10The Plaintiff alleges that during the time she was detained at Baxter IDF she witnessed or experienced a number of traumatic events. Again, these are said to include but not be limited to the following: (l)prolonged detention in a physically restraining, harsh and isolated environment; (m)detention within a high security compound involving isolation from most other detainees; (n)continued breakdown of family relations; (o)acts of self-harm and threatened self-harm by the Plaintiff's family members upon themselves, including arm cutting; (p)acts of violence and intimidation on the part of the servants or agents of the First, Second and Third Defendants towards the Plaintiff, the Plaintiff's family and other immigration detainees; (q)acts of violence and intimidation on the part of immigration detainees towards other immigration detainees and the servants or agents of the First, Second and Third Defendants; (r)acts of self-harm and/or attempted acts of self-harm and/or harm, by other immigration detainees such as hunger strikes and wrist cutting. The complaint to HREOC and the Tentative View 11In or about September 2002 and January 2003 the Plaintiff made complaints to what was then called the Human Rights and Equal Opportunity Commission (HREOC), now known as the Australian Human Rights Commission (AHRC). The complaints were made against the Department of Immigration, Multicultural and Indigenous Affairs on the basis that her human rights had been breached by the Department by reason of the conditions under which she, her husband and her son were being detained at Woomera IRPC. She received two letters of acknowledgement of these complaints which said that HREOC had written to the Department about the matters and would be in touch when they had more information. 12On 15 June 2004, as noted, the Plaintiff and her family were accepted as refugees by the Refugee Review Tribunal and they were moved into the community. 13In about February 2005 the Plaintiff inquired of Maurice Blackburn Cashman lawyers regarding a proposed claim for each of the members of her family. A claim on behalf of the Plaintiff's husband was commenced in 2005 and litigated to settlement on 7 December 2007. The Plaintiff says that she was advised by Maurice Blackburn Cashman to wait until her husband's claim was finalised before bringing her claim. After her husband's claim was settled she said simply that there was no discussion whether she had a claim. 14On 30 November 2009 the AHRC published what is called a Tentative View in relation to the Plaintiff's claim that her human rights had been breached. It appears that the procedure was that this Tentative View is published to the parties, the parties are permitted to make further submissions to the AHRC and then those submissions are considered when the inquiry is finalised. 15In substance, the Tentative View found that there had been some breaches of the family's human rights in the sense that there had been behaviour inconsistent with certain of the Articles of the International Covenant of Civil and Political Rights and the Convention on the Rights of the Child. The AHRC was of the tentative view that compensation should be paid to each member of the family for particular breaches that had been found and that the Minister should provide each member of the family with a formal apology. 16Because this report formed the basis of the application for the extension of time it is necessary to set out a number of paragraphs in the report. [116] In my tentative view, the evidence before me supports the view that the prolonged detention of the Yousefi family had a devastating effect on each member of the family. ... [130] On 20 May 2002, Psychiatric Nurse John Quarry noted that Mrs Yousefi was 'stressed' and 'worried' about her husband and son and required 'supportive psycho-therapy'. Professor Norman James diagnosed her as suffering from a depressive illness on 26 July 2002. [131] On 21 October 2002, Psychologist, Desa Acaster noted that Mrs Yousefi was withdrawing from excursions, had lost 15 kilos in 2 months, her energy and concentration were low and her menstruation was altered. [132] On 13 April 2004, Dr Jon Jureidini expressed concerns about Mrs Yousefi's mental state, considering the 'stress and strain of her heroic effort to care for her husband and son was catching up with her.' (d) The mental health experts' repeated recommendations [133] The evidence before me indicates that the Yousefi family were noted as being of concern from as early as May 2002. On 10 May 2002, Jude Maguire, Senior Practitioner, Crisis Response & Child Abuse and David Lawry, Social Worker recommended counselling and psychiatric assessment for Manoochehr as well as allocating a social youth worker to provide long-term services. [134] On 6 June 2002, it was recommended that Manoochehr and at least one parent be released from detention to facilitate counselling. On 18 June 2002, Psychologist Robin Grade reports 'previous intervention has been on-going counselling, psychological intervention, medication and time out in hospital'. [135] The first report unequivocally advising the ACM Manager, Mr David Coulton, that the Yousefi family should be removed from the detention centre environment is that of Dr P Bakhitarian, Fellow in Child Psychiatry and Con Paleologos, Senior Clinical Psychologist, dated 23 July 2002. The report states: 1. We recommend that Manoochehr and his family be removed from the Detention Centre as a matter of urgency. Manoochehr's emotional deprivation and PTSD can not be treated in the detention context, because that environment is contributing to it. Continued detention increases the risk of self-harming behaviour and increased traumatisation. ... 3. We do not believe that separating the family at this stage would be in their best interests. However we do feel strongly that further detention in the centre would be detrimental to their mental health and may pose significant risk as it could result in serious self harm attempts ... [136] After this report, a further 10 separate reports from medical and mental health professionals outline their author's extreme concern for the wellbeing of the Yousefi family and recommend that the family be removed from the detention centre environment. These reports are outlined in the table below. Date Name Extracts of Recommendations 1. 26 July 2002 Professor Norman James This is a highly dysfunctional family unit with serious individualpsychopathology..little can be done to help them while in detention. Amanda Liar from the mental health team agrees 2. 19 August 2002 Dr Jon Jureidini Concurs unreservedly with Dr Bakhitiarian and Mr Paleologos' recommendation that the whole family should be removed from detention. It is dangerous for Manoochehr to remain in the detention environment. 3. 11 October 2002 Dr Lockwood At a case conference: Actual improvement to their mental health would only occur outside detention. Another detention centre would just maintain the status quo. From a child protection perspective, this situation cannot continue as it constitutes serious emotional abuse of Manoochehr. Recommends investigation of possible release. 4. 16 October 2002 J Cooke & D Current placement in November compound inappropriate. Acaster, Psychologists 5. 21 October 2002 D Acaster, Psychologist Long term detention has had a devastating effect on the Yousefi family. Strongly recommend alternative accommodation in community with psychological care. Anything less is a failure in our duty of care 6. 29 October 2002 Mental Health Team All avenues to help this family have been exhausted. The Mental Health staff have strongly recommended that the family be given alternative accommodation and provided with psychiatric and psychological treatment and support. DIMIA have refused all options put forward. The Mental Health staff can no longer help this family. 7. 12 April 2003 Dr Elaine Skinner Detention environment appears to have been a significant contributor to Mr Yousefi's condition and a better alternative should be sought. 8. 21 May 2003 Dr Jon Jureidini All ACM visiting mental health staff have been unanimous in their agreement that this family cannot be treated in detention. Each member suffers severe psychological disturbance sufficient to warrant consideration of admission. Unless removed, they cannot benefit from any mental health intervention DIMIA's actions are denying them any significant mental health intervention To keep the family in detention is a decision to deny them mental health intervention Mental health interventions in detention setting will prove fruitless. 9. 13 June 2003 Stephen Monaghan, Supports past recommendations for community detention Health Services Manager No progress has been made by the Baxter Health Team 10. 30 October 2003 Dr Jon Jureidini Once again let me state the need for urgent psychiatric treatment that cannot occur within the Detention environment. Failure to do so carries enormous risks. The fact that 1 have previously warned of such risks and there has not yet been a disaster should not be regarded as reassuring. ... [139] Each of the above medical reports, including the initial report of 23 July 2002 recommending the Yousefi family be removed from the detention centre environment, was addressed to either Department Centre Managers, ACM Managers or to members of the ACM mental health team reporting to these managers. [140] Additionally, I note that DIMIA Manager Annabelle O'Brien made the following departmental communications about the Yousefi family: Date Addressee Extracts 14 October 2002 Assistant Secretary, Jim Williams The other examining specialists strongly recommend the family be moved from Woomera as a matter of urgency. Continued detention at Woomera IRPC will only worsen the condition. Consider alternative detention either in Psychiatric facility or community placement, with strong network of support. Family is effectively 'unfit to travel'. Dr Lockwood believes that remaining in a detention centre environment will not allow for the family to achieve any improvements in their mental health. 2. 21 October 2002 Detention Operations Director Concerns about capacity for family to be managed within current detention environment. 3. 7 July 2003 Assistant Secretary, Jim Williams The strategies utilized by the Mental Health team to provide ongoing management and health services to this family have been exhausted and there appears to be no interventions left at the disposal of the staff to attempt to rectify this predicament. ... [144] Anne Dutney, Acting General Manager of Detention Services followed up this minute with a letter to the Assistant Secretary, dated 5 November 2002. She enclosed 18 previous reports about the Yousefi family's situation and noted the serious concerns ACM held about the safety and welfare of the Yousefi family. She noted that the solutions available to ACM, as the contracted service providers, were unable to provide an effective response. ... [166] In the case of Mrs Yousefi, there is evidence that the Department was aware from as early as 20 May 2002 that the family's prolonged detention was causing Mrs Yousefi significant distress and depression as she bore the burden of caring for her husband and son and watching helplessly as their condition deteriorated. ... [188] In my tentative view, the Department's failure to act on the recommendations made in at least 11 separate reports from qualified mental health professionals demonstrates a failure to treat Mr Yousefi, Mrs Yousefi and Manoochehr humanely and with respect for their inherent dignity as human beings. The Plaintiff's claim 17The Plaintiff's claim was filed on 3 May 2010. The Defendants were the Commonwealth and three companies who, by a contractual arrangement, were responsible for operating the detention centres on behalf of the Commonwealth. Those other Defendants were the Australasian Correctional Services Pty Ltd (ACS) (Second Defendant), the GEO Group Australia Pty Ltd (ACM) (Third Defendant) and G4S Australia Pty Ltd (G4S) (Fourth Defendant). 18On 27 February 1998 the Commonwealth entered into an agreement with the Second Defendant whereby ACS agreed to manage and operate detention centres including the Woomera and Baxter Immigration Detention Facilities. ACS, by subcontract with ACM, transferred the management and operation of Woomera and Baxter to ACM. 19Woomera closed in about April 2003. ACM ceased managing Baxter in September 2003 but it continued in its operational role until 19 January 2004 to hand over to G4S. 20G4S did not have a contractual arrangement with the Commonwealth until 1 September 2003 and did not commence to manage the Baxter facility until 19 January 2004. Consequently, it was much less involved with the Plaintiff than the other Defendants and, for reasons which will be explained, its position involves additional considerations under the relevant statute. 21As noted above, the Statement of Claim alleged that the Plaintiff witnessed or experienced a number of traumatic events whilst in detention. The Statement of Claim then alleged a duty of care on the part of the Defendants and breaches which were set out at some length albeit they were expressed in general terms. In substance, the claims involved an assertion that the Defendants were aware of the mental health problems being increasingly experienced by the Plaintiff and members of her family as well as being aware of what the Plaintiff was undergoing at the facilities and failing to act appropriately with that knowledge. The Plaintiff claims to have suffered severe and chronic post-traumatic stress disorder and major depression as a result. 22In their Defences, each of the Defendants has pleaded that the claim is statute-barred pursuant to s 36 of the SA Act which provides a three year limitation period for bringing proceedings claiming damages for personal injuries. 23In addition, the Commonwealth has cross-claimed against the other Defendants seeking contribution or indemnity. To that Cross-Claim the other Defendants have pleaded that the Commonwealth's Cross-Claim against them is also out of time. The Legislation 24The power to extend the limitation period is to be found in s 48 of the SA Act. It provides: 48 - General power to extend periods of limitation (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for - (a) instituting an action; or (b) doing any act, or taking any step in an action; or (c) doing any act or taking any step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require. (2) A court may exercise the powers conferred by this section in respect of any action that - (a) the court has jurisdiction to entertain; or (b) the court would, if the action were not out of time, have jurisdiction to entertain. (3) This section does not - (a) apply to criminal proceedings; or (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied - (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or (ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, 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 any other relevant circumstances, and that in all the circumstances of the case it is just to grant the extension of time. (3a) A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless - (a) it forms an essential element of the plaintiff's cause of action; or (b) it would have major significance on an assessment of the plaintiff's loss. Example - In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes - (a) a substantial reduction of the plaintiff's capacity to work; or (b) that the plaintiff will require substantially more medical care than previously expected; or (c) a significant loss of expectation of life. (3b) In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to - (a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and (b) the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and (c) the nature and extent of the plaintiff's loss and the conduct of the parties generally; and (d) any other relevant factor. (4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section. (5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings. (6) This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law. 25The relevant limitation on the Court's power to extend is in sub-s (3)(b)(i). 26Sub-sections (3a) and (3b) only commenced by amendment on 1 May 2004. If they apply at all in the present case they apply only to the Fourth Defendant in respect of any cause of action which accrued on or after 1 May 2004. I shall discuss those sub-sections at a later time in this judgment. 27The effect of s 48 prior to the 2004 amendments was that the regime for extension of time in South Australia was amongst the most liberal of any such provisions in Australia. That caused Cox J to say in Wright v Donatelli (unreported - Supreme Court of South Australia Full Court - 20 October 1995): Perhaps one might be permitted a general observation about these s 48 applications. Everyone now understands that the test for an ascertained material fact under s48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out-of-time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensic energies in more rewarding ways. 28The Act in its unamended form was considered by the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628. Special leave was granted by the Court to consider three aspects of s 48 (3)(b)(i). The High Court first considered the holding of the Full Court of the Supreme Court of South Australia that upon a proper construction of s 48 the ascertainment of the fact said to be material to the Plaintiff's case within the meaning of s 48(3)(b)(i) need have no effect upon any decision of the Plaintiff to take proceedings either within time or out of time. 29In relation to that holding the joint judgment of the High Court said (at 636): ... Unlike the 1963 Act, there is no requirement that the material facts be of a decisive character, no reference to constructive knowledge, no obligation to have used due diligence in seeking to discover at an earlier time the facts in question and no mention of seeking appropriate advice. The effect of the paragraph was described by Bray C.J. in Napolitano [Napolitano v Coyle (1977) 15 SASR 559], at p.569, in words which we are glad to adopt: A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases, may not be of great significance, has left all the rest to the discretion of the court. In our opinion the Full Court was correct in overruling Cakebread and Raison. There is no warrant for writing into the Act a further qualification that, to attract the operation of s.48(3)(b)(i), there must be some interaction between the material fact and the plaintiff's decision to sue. It is materiality to the plaintiff's case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff's mind would complicate the court's task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. 30The High Court held secondly that the ascertainment of material facts must be by the Plaintiff personally and that the ascertainment of such facts by an agent such as the plaintiff's solicitor did not satisfy the requirements of the sub-section. 31The third issue in respect of which special leave was granted was an issue that assumes some significance in the present case. The respondent in Sola Optical, Mrs Mills, injured her right arm in the course of her employment. She instructed solicitors to prosecute both a claim for worker's compensation and a claim for damages at common law. The solicitors through inadvertence failed to commence the proceedings within time. The solicitor explained that the limitation period had expired and invited her to peruse several documents from the file. The solicitor did this in the hope that the respondent would discover new material facts to her case which would thereby create grounds upon which an application for an extension of time pursuant to s 48 could be made. 32During the course of this exercise the respondent found a report from a surgeon, Mr Morgan, who had examined her some years earlier. That report expressed Mr Morgan's opinion that notwithstanding some improvement in the function of her arm she still suffered a loss of function of the arm estimated at 80%. 33The issue for the High Court was whether the ascertainment by the respondent of what Mr Morgan had written in his report was the ascertainment of a fact material to her case. 34It was submitted that what was in the report was not a fact material to the respondent's case for the reason that the Doctor was only putting a percentage on her disabilities which she had described and demonstrated and of which she must necessarily have been aware at the time of her examination. However, the High Court said this (at 638): But the second report was doing more than that. It was expressing a specialist medical opinion as to the effect of the disabilities upon the functional capacity of the respondent's arm. The respondent certainly had a knowledge of the physical disabilities that she suffered, but it was material to her case to learn that a medical assessment of the effect of those disabilities upon her capacity to function was expressed in terms of 80 per cent loss of function. Such a fact was material to the issue of damages. Whilst the cogency of the evidence was undoubtedly affected by the fact that the assessment was made in the light of an examination carried out in February 1983 and that it mentioned the possibility of some further improvement, we do not think that the passage of time destroyed its materiality completely. It remained a significant benchmark pointing to a very substantial disability that was still present in 1983 several months after surgery. In any event, the fact of the existence and contents of Mr Morgan's report was also capable of being material to the respondent's case in the sense that the report represented available evidence that could be called in support of her case. Facts material to the Plaintiff's case 35As the High Court made clear in Sola Optical in the passage set out in para [29] above the relevant enquiry is whether the fact is material to the Plaintiff's case. There is no requirement that there be a connection or interaction between the material fact and the Plaintiff's decision to sue. It is an objective enquiry which is undertaken. That was why the discovery of the Doctor's opinion in that case that the Plaintiff had suffered a loss of function of her arm at 80% was material. 36In the present matter there are a number of findings in the Tentative View of the AHRC that are material to the Plaintiff's case. In my opinion these include, at least, the matters contained in paragraphs 130, 132, 133, 134, 135, 136, 139, 144 and 188 (set out in paragraph 17 above). The conclusions and recommendations of the various doctors, psychologists and associated medical personnel are material facts in the Plaintiff's case. The Plaintiff only ascertained these material facts on reading the Tentative View. That was within a period of 12 months before the Statement of Claim was filed on 3 May 2010. 37These facts are material to the Plaintiff's case because they identify clear evidence on behalf of professionals who examined the family in 2002 and 2004 that there was a need for the Commonwealth and ACM to make decisions about the Plaintiff's and the family's welfare. Those paragraphs also make clear that the Commonwealth and ACM were aware of the Plaintiff's and her family's plight. Many of the matters referred to in those paragraphs are matters about which she complains in the present proceedings. 38The Commonwealth submitted that there were no material facts which were ascertained by the Plaintiff for the first time within 12 months prior to the commencement of the proceedings. The Commonwealth drew attention to what was said by Bray CJ in Napolitano v Coyle (1977) 15 SASR 559 at 568, 569 and 570. In particular, the Commonwealth drew attention to the statement at 569 that: The material facts are those relating to the Plaintiff's case, not to his cause of action. 39In this regard, the Commonwealth appears to have been sidetracked by what was said by the Plaintiff's solicitors in a letter of 1 June 2011 to the Australian Government Solicitor as follows: In particular the interim decision of the Human Rights Commissioner in November 2009 indicated that it was the Commissioner's recommendation that compensation be paid to Mrs Youseffi. It was this that formed the trigger for Mrs Youseffi to decide to commence proceedings. Without prejudice to the evidence that will be presented in the limitation application and to our arguments in relation to that evidence, Mrs Youseffi will state that she had been advised by her former solicitor that she should wait until the finalisation of her husband's case before considering whether she should proceed. She was not informed at that stage of any limitation period. 40The statement in the first of those paragraphs, that it was the interim decision of the Human Rights Commissioner that formed the trigger for the Plaintiff to decide to commence the proceedings, is an irrelevant consideration on the basis of how the Act has been construed by the High Court in Sola Optical and by the other decisions of the Full Court of the Supreme Court of South Australia as well as Napolitano v Coyle. The enquiry is not what formed the trigger for her to bring the proceedings but rather what material facts, if any, were ascertained by her for the first time within the 12 month period before the proceedings were commenced. 41Further, the statements in the second paragraph of the Plaintiff's solicitor's letter could only be matters which went to the overall question of whether it was just to grant the extension of time and the balancing exercise involved in that assessment arising from any prejudice demonstrated by the Defendants. 42The Commonwealth also pointed to what the Plaintiff said in her affidavit read in support of the Motion. In paragraph 44 she said that she did not become aware that she had a case until she read the Tentative View of the AHRC. In paragraph 48 she said that she knew her husband could make a claim in relation to what had happened to him but she was not aware that she could make a claim for what had happened to her until she received advice from her solicitors and the Tentative View of the AHRC. 43As I have indicated, the making of a connection between the ascertainment of some material fact and the bringing of the proceedings is irrelevant for the enquiry under s 48(3)(b)(i). It may, however, have a relevance when, in the exercise of its discretion, the Court determines whether in all the circumstances it is just to grant the extension of time. It would be relevant at that point to see how quickly the Plaintiff instituted the proceedings after making the connection. 44These irrelevant statements in the Plaintiff's affidavit and in the letter from her solicitors, whilst unfortunate, do not alter the fact that, viewed objectively, the Tentative View contains facts which were ascertained by the Plaintiff for the first time when she received and read that report. The facts satisfy the test of materiality because they are relevant to the issues to be proved (her health and her mental health and the conditions under which she and her family were held) and they are of sufficient importance to be likely to have a bearing on the case (assessment of her health by various professionals and knowledge of the Defendants of what was contained in those reports): see Sola Optical at 636. 45If all that the Plaintiff could point to was the advice from her solicitors after receiving the Tentative View that would not be sufficient: Zambo v The State of South Australia [2007] SASC 62 at [16]-[17]. That is not, however, the position in the present case. The evidence goes well beyond this as I have indicated. 46The Second and Third Defendants made similar submissions with regard to the ascertainment of material facts as were made by the Commonwealth but submitted also that they were in a significantly different position because the Tentative View from the AHRC was only concerned with the Commonwealth and not the Second and Third Defendants. However, it is clear from paragraphs 135, 136, 139 and 144 that ACM was aware at the time of the health issues of the Plaintiff and the concerns expressed by the various health professionals. That ACM had the requisite knowledge at the time is self-evidently a material fact relevant to any claim made by the Plaintiff against ACS and ACM in respect of the treatment of the Plaintiff and her family by those organisations. 47The Second and Third Defendants submitted that the existence of the Tentative View was not a material fact contrary to what Lander J said in Wright v Donatelli at 6 & 11. In that case Lander J held that the existence of a medical report was a material fact. The Plaintiff had only seen the report some 3 years 3 months after the motor vehicle accident where he had been injured. Mr Chen of counsel for the Second and Third Defendants submitted that Lander J had misinterpreted what was said by the High Court in Sola Optical at 638. 48I do not think that Lander J misinterpreted what the High Court said. He made specific reference to the passage at 638 in Sola Optical which I have set out in [34] above. Cox and Perry JJ agreed with Lander J's reasons although adding some extra reasons of their own. 49It is of course a question of fact, as Mr Chen submitted, whether the existence of a report will itself be a material fact. In Sola Optical it was held that its existence was capable of being material to the Plaintiff's case because the Plaintiff learnt that the medical assessment of her disabilities was expressed as an 80% loss of function. 50However, it is not necessary to decide that point in the present matter. In my opinion the material facts ascertained by the Plaintiff were facts contained within that report in the paragraphs that I have identified. It is not necessary in the present case to decide if the report's existence itself was a material fact although my inclination is to think that it was not. The report will not be admissible in the present proceedings, unlike the reports in Sola Optical and Zambo. 51The position of G4S differs considerably from the position of the other Defendants. That is for two reasons in particular. First, G4S, as noted earlier, only took over the management of Baxter in the middle of January 2004. On what is contained in the Statement of Claim the Plaintiff's damage had largely, but not completely, been sustained by that time. Secondly, the SA Act was amended by the insertion into s 48 of subsections (3a) and (3b). Those subsections did not commence to operate until 1 May 2004 and only did so for events that occurred after that date. 52In relation to the first of these matters the case against G4S is to be found in paragraphs 37 to 43 and 45 to 46 of the Statement of Claim. Paragraphs 37 to 39 are the key paragraphs to the claim that is made against G4S. They state: [37] Between 1 September 2003 and 15 June 2004 the Plaintiff continued to witness or experience further traumatic events whilst in immigration detention at Baxter IDF which further exacerbated and/or aggravated her fragile psychiatric state. [38] [This paragraph provided some general particulars of the continuing traumatic events that had been earlier identified in the Statement of Claim] [39] As a consequence of the matters pleaded in paragraphs 37 and 38 above the Plaintiff continued to suffer from inter alia major depression whilst she remained in immigration detention at Baxter IDF. 53No specific events are identified in that period of time nor did the Plaintiff's affidavit of 25 June 2011 or her Evidentiary Statement of 27 April 2011 identify specific events in this period. A request for particulars made by the Australian Government Solicitor to the Plaintiff's solicitors of 5 July 2010 did not, in answer to a specific question about traumatic events referred to in these paragraphs, elicit any further specific information. 54Nevertheless, G4S took over running the Baxter facility from ACM and ACS in early 2004. Despite all of the medical material available at that time (as the Tentative View identifies) it appears that the Plaintiff and her family remained at Baxter under the same conditions. The medical reports referred to in the Tentative View are material facts in respect of G4S as well for the other Defendants. What is contained in paragraph 132 occurred on G4S's watch. 55In relation to the amendment to the legislation, subsections (3a) and (3b) were introduced by the Law Reform (Ipp Recommendations) Act 2004 (SA). Schedule 1 of that Act provided: (1) The amendments made by the Law Reform (Ipp Recommendations) Act 2004... are intended to apply only prospectively. (2) If a cause of action that is based wholly or partly on an event that occurred before the commencement of the Ipp Recommendations Act arises after the commencement of the Ipp Recommendations Act, it will be determined as if the amendments had not been enacted. 56To the extent only, therefore, that a new cause of action or new causes of action arise after 1 May 2004 based wholly on events that occur after that date will the amendments apply. 57As Simpson J said in Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443 at [9]: These subsections quite radically restrict the approach to be taken to the determination of (i) whether a fact or facts not ascertained by the plaintiff within the limitation period is or are material to his/her case; and (ii) whether it is just to extend the time for commencing proceedings. 58In my opinion, the material facts which I have identified, that the Plaintiff ascertained within 12 months of commencing the present proceedings, would not be regarded as material for the purposes of subsection (3a). Only one of those facts (in paragraph 132 of the report) is temporally relevant. It could not be said to form an essential element of the Plaintiff's cause of action against the Fourth Defendant nor could it have major significance on an assessment of the Plaintiff's loss. 59Accordingly, in my opinion, to the extent that the Plaintiff has any fresh causes of action against the Fourth Defendant wholly arising after 1 May 2004 no extension of time to bring such causes of action should be granted. 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. The failure to endorse 92Section 48(4) requires the initiating process to be endorsed with a statement to the effect that the Plaintiff seeks an extension of time pursuant to s 48. No such endorsement appeared on the Statement of Claim. 93The Commonwealth submitted that this was a fatal flaw in the Plaintiff's application. This is because the requirement to endorse forms part of the substantive law of limitation of actions in South Australia that must be applied by a Court in this State. 94Section 38A of the Limitation of Actions Act (SA) provides that the limitation law of South Australia is a substantive law of that State and that the limitation law of another State or Territory or of New Zealand is to be regarded as a substantive law of that place. 95Such an assertion in another State Act may not have bound a Court in NSW. However, any doubt about that was clarified by the enactment of the Choice of Law (Limitation Periods) Act 1993 (NSW). Section 5 of that Act provides: If the substantive law of a place, being another State, a Territory or New Zealand, is to govern a claim before a court of the State, a limitation law is to be regarded as part of that substantive law and applied accordingly by the court. That provision makes clear that the limitation law of South Australia is to be regarded as a substantive law by the courts of NSW. 96The definition of "limitation law" is found in s 3 of the Act as follows: Limitation law means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced. 97The effect of s 48(4) of the SA Act was debated during the hearing. At the conclusion of the debate I gave leave to the Plaintiff to amend the Statement of Claim by filing in Court an Amended Statement of Claim containing the endorsement required by s 48(4). I indicated that I would give reasons for doing so in this judgment. 98None of the Second, Third or Fourth Defendants relied on s 48(4). 99The Commonwealth did not plead in its Defence any reliance on s 48(4). Rule 14.14(2) UCPR requires a party in a defence specifically to plead any matter that if not pleaded specifically may take the opposite party by surprise. In Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 a defendant did not plead reliance on s 43A Civil Liability Act 2002 although the defence pleaded in answer to the whole of the allegations made in the Statement of Claim that the provisions of Pt 5 of the Civil Liability Act 2002 applied to the determination of the Plaintiff's liability. Section 43A appears in Pt 5. The first time that s 43A was referred to during the hearing was in the Plaintiff's written submissions following completion of the evidence. Objection was taken by the Plaintiff but the Trial Judge allowed the Defendant to rely on it because Pt 5 of the Civil Liability Act had been pleaded and no particulars had been sought of that reliance by the Plaintiff. 100Beazley JA, with whom Whealy JA and Sackville AJA agreed, said: [23] Any statutory provision that provides a complete, even if defeasible, defence to a claim, if not pleaded, would take a party by surprise. Any such defence is required to be pleaded: see r 14.14(2)(a). In any event, s 43A was required to be specifically pleaded because it raised a defence, which if successful, would make the claim of the plaintiff not maintainable: r 14.14(2)(b). The appellant's defence, therefore, failed to comply with the pleading rules. [24] A failure to comply with the rules of court, including the pleading rules, is not necessarily fatal to a party's right to rely upon the unpleaded matter. The court has power to dispense with its rules: see the Civil Procedure Act 2005, s 14. It has also been long accepted that a party may litigate an issue notwithstanding a failure to comply with a pleading rule. However, the entitlement of a party to do so is dependent upon a favourable exercise of the court's discretion if objection is taken by the opposing party. The exercise of the discretion is predicated upon fairness to the parties. ... [33] For my own part, I am also unimpressed by the submission that because the issues raised by s 43A involve the determination of legal questions, the respondent could not be prejudiced. A party to litigation is entitled to know the case it has to meet: see White v Overland [2001] FCA 1333. ... [47] In my opinion, this is a complaint of prejudice. The failure to plead s 43A deprived the respondent of the opportunity, at any stage of the proceedings, to consider its position in relation to any such defence. Nor was it in a position to test evidence relevant to the existence of the alleged " special statutory power ". ... [49] In any event, it goes without saying that a party, confronted with a previously unpleaded defence, would almost certainly be prejudiced if such an amendment was allowed. In this case, the respondent had not had an opportunity to even consider whether to adduce evidence. ... [50] In my opinion, the unfairness to the respondent in allowing the defence pursuant to s 43A to be raised by the appellant is such that the defence should not and ought not to have been allowed. 101On one view the procedural requirement contained in s 48(4) was not a limitation law within the meaning of s 3 of the Choice of Law (Limitation Periods) Act 1993 (NSW) because it is not a law that provides for the limitation or exclusion of any liability by reference to the time when a proceeding on a claim is commenced. On the other hand, what is contained (relevantly) in ss 36 and 48(1)-(3)(b) is such a limitation law. Nevertheless, the issue can be resolved without determining that matter. 102The Commonwealth needs the Court's exercise of discretion to permit it to rely on s 48(4) because it raises a defence which, if successful, would make the claim of the Plaintiff not maintainable: Bellingen at [23]. The exercise of any discretion in favour of the Commonwealth is predicated upon fairness to the parties: Bellingen at [24]. Accordingly, the condition upon which that discretion will be exercised in favour of the Commonwealth is leave to the Plaintiff to amend its initiating process in the manner sought by the Plaintiff. Conclusion 103In my opinion facts material to the Plaintiff's case were not ascertained by her until she received and read the Tentative View of the AHRC in November or December 2009. Her proceedings were commenced within 12 months of that time. The facts material to her claim were those matters contained in paragraphs 130, 132, 133, 134, 135, 136, 139, 144 and 188 of the report. Accordingly, the Plaintiff satisfies s 48(3)(b)(i) of the SA Act. 104In my opinion it is just in all the circumstances to grant the extension of time the Plaintiff seeks. Costs 105The Defendants seek an order that the Plaintiff should pay the costs of the application even if successful on the basis that she seeking an indulgence from the Court by asking for an extension of the limitation period. Whilst that may have been the general approach as a result of observations made in Holt v Wynter [2000] NSWCA 143 at [121] per Sheller JA and followed in Commonwealth of Australia v Lewis [2007] NSWCA 127 at [95] per Beazley JA, another line of authority derived from remarks of Santow JA in Commonwealth of Australia v Smith [2005] NSWCA 478 at [159]-[160] must be considered. Santow JA said: [160] However, there is no rule that binds the judge to deny costs to an applicant for extension of the limitation period. A costs order for such an application is a matter of practice and procedure within the discretion of the primary judge. In view of the Commonwealth's failure in so many of these extension cases over six years... the judge would have been entitled to find that the Commonwealth acted unreasonably in opposing an extension in this case and should pay the applicant's costs. It is not suggested that the Commonwealth in the present case is in the same position as it was in Smith. The only consideration is whether it has behaved unreasonably in opposing the present application. 106Basten JA said in Smith: [221] Taking into account these factors, together with the practice in recent cases, it would seem that the Applicant should not get his costs unless the Respondent has acted in a manifestly unreasonable fashion. Even then, it may be that an appropriate order would grant the Applicant his costs if ultimately successful in the substantive proceedings. Absent unreasonable conduct on the part of the Respondent, it may nevertheless seem inappropriate, generally speaking, that the Respondent should obtain its costs of its unsuccessful opposition, unless the Applicant has acted unreasonably. In such circumstances the costs of the application might be allowed to lie where they fall, or the costs could be the Respondent's costs of the action. 107He returned to this approach in Rundle: [147] The language adopted by Sheller JA in Holt v Wynter, referring to an applicant who has "allowed him or herself to get out of time" was apt in the circumstances of that case, the applicant having formed an intention to make a claim within time, but failed to effect the intention before the expiration of the relevant limitation period. That was the kind of case in which it could appropriately be said that the applicant was seeking an indulgence. However, that is not true of a case in which the applicant was unaware of material facts until after the expiration of the limitation period. [148] Nevertheless, an application for an extension of time, if successful, results in the prospective defendant losing an immunity from suit which it would otherwise enjoy. Whether the suit will ultimately be successful is not known. The application may be seen in these circumstances as an interlocutory, but essential, element of the plaintiff's proceedings. Unless it can be said that the plaintiff was at fault in not bringing the proceedings earlier, or did not otherwise run the application appropriately, it is doubtful whether the applicant should be ordered routinely to pay the respondent's costs of a successful application. [149] That being so, it does not follow that the respondent should be required to pay the applicant's costs of the application, on the assumption that the respondent had not acted unreasonably or inappropriately in resisting the application. In such a case, the preferable order may be that the costs of the motion be the applicant's costs of the proceedings. Such an order means that, as explained by Heydon JA in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; 53 NSWLR 116, at [37], if the plaintiff succeeds at trial he or she will receive the costs of the application but, if the plaintiff is ultimately unsuccessful, there will be no order as to the costs of the application for extension of time. This approach seems to have had the support of McColl JA at [110]. 108I do not consider that the Defendants have acted unreasonably in opposing the present application, except for the Commonwealth's reliance on the failure of the Plaintiff to endorse the Statement of Claim as required by s 48(4). In that regard, I note that this opposition was not supported by the other Defendants. 109If there had been no other considerations I would have ordered that the costs be the Plaintiff's costs in the proceedings, following the approach of Basten JA in Smith and Rundle. However, it was not until the Plaintiff served her outline of submissions that there was any identification of what the material facts were in the Tentative View of AHRC. Further, both in her solicitors' letter of 1 June 2011 and in her affidavit in support of the application the basis for the application was said to rest upon matters which were ultimately irrelevant to the proper consideration of s 48 of the SA Act. I consider that, in that regard, the Plaintiff acted unreasonably in the was the application was run. 110In these circumstances the appropriate order is that the costs should be the Defendants' costs in the proceedings: Smith at [221]. 111Accordingly, I make the following orders: (1)Extend time to 3 May 2010 for the Plaintiff to commence the present proceedings against the First, Second and Third Defendants. (2)Extend time to 3 May 2010 for the Plaintiff to commence the present proceedings against the Fourth Defendant limited to a cause or causes of action not based on events which occurred after 1 May 2004. (3)Costs of the application are the Defendants' costs in the proceedings. ********** 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. Decision last updated: 20 December 2012