Queensland v Stephenson

• Jurisdiction: Queensland
• Court: High Court
• Judge: Gummow,Hayne,Crennan JJ,Kirby J,Heydon J
• Judgment Date: 17 May 2006
• Neutral Citation: [2006] HCA 20,2006-0517 HCA B
• Docket Number: B59/2005 B91/2005
• Date: 17 May 2006

[2006] HCA 20

HIGH COURT OF AUSTRALIA

Gummow, Kirby, Hayne, Heydon and Crennan JJ

B59/2005

B60/2005

B91/2005

State of Queensland

Appellant

and

Peter Robert Stephenson

Respondent

Scott William Reeman

Appellant

and

State of Queensland

Respondent

State of Queensland

Applicant

and

Timothy James Wrightson

Respondent

State of Queensland v Stephenson

Reeman v State of Queensland

State of Queensland v Wrightson

Limitation of actions — Proceedings instituted after expiry of limitation period — Application for extension of limitation period — Under s 31(2)(a) of the Limitation of Actions Act 1974 (Q) (‘the Act’) a court may extend a limitation period if ‘a material fact of a decisive character relating to the right of action’ was not within the applicant's means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period (‘the relevant date’) — Where the Act separately defines ‘material fact[s] relating to a right of action’ and when those material facts are of a ‘decisive character’ — Where material fact was within each applicant's means of knowledge before the relevant date but only attained a decisive character after that date — Whether par (a) of s 31(2) of the Act was satisfied, such that the court had power to extend the limitation period in respect of each applicant.

Statutory interpretation — Remedial legislation — Purposive approach — Limitation of Actions Act 1974 (Q), s 31(2)(a).

Words and phrases — ‘material fact of a decisive character relating to the right of action’.

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

1 Gummow, Hayne and Crennan JJ. These appeals1 and application for special leave2 are brought from the Queensland Court of Appeal and involve common issues. These turn upon a close consideration of the text and structure of Pt 3 (ss 29–40) of the Limitation of Actions Act 1974 (Q) (‘the Limitation Act’). Of the British ancestor of Pt 33, Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book4. The three cases now before this Court in turn reflect divergences of views in the Supreme Court of Queensland, both at first instance and in the Court of Appeal, on fundamental matters of construction of the Queensland statute.

Gummow

2 The plaintiff in each proceeding is a former member of the Queensland Police Service (‘the Service’) who had performed duties in the investigation of drug dealing which involved him in undercover or covert activities. There were dramatic and life-threatening events and each plaintiff claims that, after return to his ordinary duties, he developed a psychiatric condition and attempted unsuccessfully to persevere with his Service career. After the end of his employment in the Service, each plaintiff sued the employer, the State of Queensland (‘the State’), in negligence for damages for personal injury.

3 ThePolice Service Administration Act 1990 (Q) (‘the PSA Act’) provided for retirement on medical grounds. It was more financially advantageous to the plaintiffs for them to retire on medical grounds rather than resign from the Service. However, the procedures for retirement on medical grounds include5 the

satisfaction of the Commissioner, on the basis of medical opinion, that the officer in question should not continue to be required to perform duties as an officer and also is insufficiently fit to perform duties in alternate employment. By the time these procedures had been completed and the plaintiffs had retired on medical grounds (23 February 2001 in the case of Mr Stephenson, 10 August 2001 in the case of Mr Reeman and 9 March 2001 in the case of Mr Wrightson) more than three years had elapsed since the accrual of their causes of action. Accordingly, the time bar imposed by s 11 of the Limitation Act had operated.

4 Section 11 of the Limitation Act is found in Pt 2 (ss 9–28). Part 2 is headed ‘PERIODS OF LIMITATION FOR DIFFERENT CLASSES OF ACTIONS’. In respect of actions for personal injury in tort, s 11 fixes a general limitation period of three years from the date on which the cause of action arose.

5 Each of the proceedings against the State was instituted in the Supreme Court after the expiry of the three year limitation period fixed by s 11. Proceedings were instituted on 20 December 2001 by Mr Stephenson, 22 July 2002 by Mr Reeman and 20 December 2001 by Mr Wrightson. The actions were statute-barred unless there was some additional statutory provision for relaxation of that time bar imposed by s 11. The State pleaded the time bar in each case and applied for summary judgment. Each plaintiff responded with an extension of time application under s 31 of the Limitation Act. If the extension of time were granted, this would answer the summary judgment application.

6 Part 3 of the Limitation Act (ss 29–40) is headed ‘EXTENSION OF PERIODS OF LIMITATION’. Section 33 states:

‘Where after the expiration of a period of limitation to which this Part applies, the period of limitation is extended by order under this Part, the prior expiration of the period of limitation has no effect for the purposes of this Act.’

Section 29 deals with extension in cases of disability, s 32 with survival of actions and s 31, upon which the present cases turn, with what is identified as ‘ordinary actions’.

7 Section 31(1) provides that the section applies to a range of actions for damages, including those relied upon by the plaintiffs, Messrs Stephenson, Reeman and Wrightson. The critical provision is s 31(2). It provides for the extension of the period of limitation by force of a court order. The application may be made ex parte but the court may require that notice of the application be given to other parties (s 34(1)). The State appeared and was heard on the applications by the plaintiffs.

8 The text of s 31(2) should now be set out. It states:

‘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 untila 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 afterthat date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.’ (emphasis added)

9 It will be apparent that s 31(2) both creates a new subject-matter for adjudication and invests jurisdiction to determine applications made thereunder. The section thus is an example of the double function discussed inR v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett6 and in later authorities concerning State legislation including James Hardie & Coy Pty Ltd v Seltsam Pty Ltd7.

10 The jurisdictional threshold requires that the applicant claim to have a right of action to which the description in s 31(1) applies. That requirement, as has been indicated, was met by all the plaintiffs in these cases. Further, it must appear to the court that, limitation questions aside, there is evidence to establish the right of action in question. The satisfaction of that requirement also is not in dispute. The provision states that the court ‘may’ make an order. It is accepted by the State that, if the criteria specified in s 31 otherwise are satisfied, the discretion indicated by the use of that term should be exercised in favour of the plaintiffs for extension of the time bar.

11 The exercise of the jurisdiction created by s 31(2) operates upon the period of limitation otherwise applicable, here the three year period prescribed by

s 11. The court may make an order which has the effect of altering the prescribed period so that it expires at the end of one year after a date which is ascertained in accordance with par (a) of s 31(2).

12 On its face, s 31 authorises the obtaining of an extension before the institution of the action within the period so extended. However, s 31 may also be utilised where an action already has been instituted (s 31(3)). That was the state of affairs with which all three cases were concerned. As remarked above, in each instance, an action had been instituted out of time and an application under s 31 was made subsequently.

13 An appreciation of the operation of the critical provision made by s 31(2) is assisted by reference to the chronology of theStephenson litigation. During mid-1997, Mr Stephenson commenced to suffer from symptoms of increasingly severe depression and he developed a paranoid reaction to the Service. The limitation period fixed by s 11 thus expired by mid-2000. He retired on medical grounds on 23 February 2001. Thereafter, on 20 December 2001, Mr Stephenson instituted an action in the Supreme Court. The State pleaded the time bar imposed by s 11 and applied for summary judgment. In response, on 14 October 2003, Mr Stephenson made an application, under s 31 and in the action which was on foot, for an extension, as it were nunc pro tunc, of the time for the commencement of that action to 20 December 2001.

14 If the terms of s 31(2) be read against that sequence of events inStephenson, the following appears. The commencement of the last year preceding the expiration of the three year s 11 period was mid-1999; until a date (‘the relevant date’) occurring after mid-1999, a material fact of a decisive character relating to the right of action must not have been within the means of knowledge of Mr Stephenson; the court then might order an...