Davison v Queensland

• Jurisdiction: Queensland
• Court: High Court
• Judge: Gummow,Hayne,Heydon,Crennan JJ,Kirby J
• Judgment Date: 17 May 2006
• Neutral Citation: [2006] HCA 21,2006-0517 HCA A
• Docket Number: B62/2005, B63/2005, B64/2005, B65/2005, B66/2005, & B67/2005
• Date: 17 May 2006

[2006] HCA 21

HIGH COURT OF AUSTRALIA

Gummow, Kirby, Hayne, Heydon and Crennan JJ

B62/2005, B63/2005, B64/2005, B65/2005, B66/2005, & B67/2005

Sarah Davison

Appellant

and

State of Queensland

Respondent

Vanessa Fayne Jean Gibson

Appellant

and

State of Queensland

Respondent

Stephen Andrew Girard

Appellant

and

State of Queensland

Respondent

Jason Thomas Orr

Appellant

and

State of Queensland

Respondent

Natasha Yarrie

Appellant

and

State of Queensland

Respondent

Alexandra Orr

Appellant

and

State of Queensland

Respondent

Representation:

R J Douglas SC with G R Mullins and M Horvath for the appellants (instructed by Nicol Robinson Halletts)

M Grant-Taylor SC with K Philipson for the respondents instructed by Crown Solicitor for State of Queensland)

Limitation of Actions Act 1974 (Q), ss 30(1), 31(2).

Personal Injuries Proceedings Act 2002 (Q), s 43.

Davison v State of Queensland

Limitation of actions — Personal injury — Personal Injuries Proceedings Act 2002 (Q) — Limitation of Actions Act 1974 (Q) — Appellants alleged serious physical and mental abuse suffered while in foster care under the supervision and care of the respondent — Application for extension of limitation period — Whether an applicant for leave to commence proceedings under s 43 of the Personal Injuries Proceedings Act 2002 (Q) must demonstrate a ‘reasonably arguable case for the granting of an extension’ of time under s 31(2) of the Limitation of Actions Act 1974 (Q) — Whether evidence relied on by appellants established a prima facie case for extension of time under s 31(2).

Statutory interpretation — Remedial legislation — Purposive approach — Provision for urgent interim relief — Personal Injuries Proceedings Act 2002 (Q), s 43.

ORDER

In each matter:

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 3 December 2004 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

1 Gummow, Hayne, Heydon and Crennan JJ. Each appellant 1 wished to commence an action in tort in relation to abuse allegedly suffered as a child while in foster care and while under the supervision and care of the respondent, the State of Queensland. In relation to each, the limitation period expired. Each wished to obtain an order extending the limitation period pursuant to s 31(2) of the Limitation of Actions Act 1974 (Q), which provides:

‘(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –

• (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

• (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.’

The key terms in s 31(2) are defined in s 30(1) as follows:

‘(1) For the purposes of this section and sections 31, 32, 33 and 34 –

• (a) the material facts relating to a right of action include the following –

  • (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

  • (ii) the identity of the person against whom the right of action lies;

  • (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

  • (iv) the nature and extent of the personal injury so caused;

  • (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

• (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –

  • (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

  • (ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account, to bring an action on the right of action;

• (c) a fact is not within the means of knowledge of a person at a particular time if, but only if –

  • (i) the person does not know the fact at that time; and

  • (ii) as far as the fact is able to be found out by the person — the person has taken all reasonable steps to find out the fact before that time.’

2 Each appellant wished to argue that ‘a material fact of a decisive character’ became known to them on 18 June 2003, when the Brisbane Courier-Mail published an article suggesting that there had been widespread abuse of children in the care of the respondent. However, each had failed to comply with the preconditions for commencing proceedings created by the Personal Injuries Proceedings Act 2002 (Q) (‘the Act’), particularly the requirements for service of timely and detailed notices of accident.

3 Section 43 of the Act, which is in Ch 2, Pt 1, provides in part:

‘(1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding.

(2) The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.

(3) However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.’ 2

4 Each appellant made an application to the Supreme Court of Queensland ( Douglas J) for leave under s 43 well before the end of the one year period referred to in s 31(2) of the Limitation of Actions Act. Douglas J made orders refusing the applications for leave on the ground that there was no urgent need to start the proceedings 3. Appeals were brought against those orders. More than one month after the Queensland Court of Appeal heard those appeals, nine days before it dismissed them 4, and two days before the latest date to which the limitation period could be extended, Holmes J heard and granted further applications by the appellants for leave under s 43 5. After the orders of Holmes J were made, proceedings were commenced and applications to extend time under s 31(2) were filed. They have not been heard, because appeals were brought by the respondent against Holmes J's orders, and those appeals were allowed by the Court of Appeal (de Jersey CJ and Chesterman J, McMurdo P dissenting) 6. The majority reasoning rested on the proposition, with which McMurdo P disagreed, that an applicant seeking a s 43 order after the expiration of the ordinary limitation period must demonstrate a reasonably arguable case for the granting of an extension to the limitation period.

5 The appellants have brought appeals to this Court against the allowing of the respondent's appeals to the Court of Appeal. The appellants' appeals should be allowed.

Statutory background

6 Before the Act came into force on 18 June 2002, with its requirement for various steps to be taken before proceedings could be commenced, a solicitor consulted by a client whose cause of action was subject to a limitation period which was about to expire, or which had expired and in respect of which the maximum period for extension under s 31(2) of the Limitation of Actions Act was about to expire, could commence proceedings by filing a claim and statement of claim. This would stop the limitation period running, and, if it had expired, would stop the one year period referred to in s 31(2) from running. If the defendant then chose to raise a limitation defence and apply for summary judgment, the plaintiff could make a cross-application for extension of the limitation period. The issues raised by s 31(2) could then be examined with appropriate care.

7 The introduction of Ch 2, Pt 1 of the Act was an important and drastic inroad into the common law rights of citizens. The effect of the preconditions for commencing proceedings created by Ch 2, Pt 1, in cases where either the limitation period or the one year period in s 31(2) was about to expire, was to create the potential for harsh results where plaintiffs or their legal advisers had failed to realise the significance of the need for compliance with Ch 2, Pt 1. The function of s 43 is to avert these potentially harsh results, and this has relevance to the construction of s 43.

Court of Appeal's reasoning

8 One ground of appeal to the Court of Appeal against Holmes J's orders was that the application to her was an abuse of process, in view of the failure of the earlier application to Douglas J. However, this ground was abandoned in the Court of Appeal 7 and not renewed in this Court.

9 In allowing the appeal, the Court of Appeal majority appeared to differ from the primary judge in two respects. First, the Court of Appeal majority said that leave could not be extended under s 43 in aid of an application to extend time under s 31(2) unless the claimant for leave could demonstrate that there was ‘a reasonably arguable case for the granting of an extension’ under s 31(2) 8. The Court of Appeal majority did not explicitly say whether the need to show a reasonably...