Geoffrey Joseph Fitzgibbon v Commonwealth of Australia [1994] ACTSC 106 (11 October 1994)

SUPREME COURT OF THE ACT

GEOFFREY JOSEPH FITZGIBBON v. COMMONWEALTH OF AUSTRALIA
No. SC466 of 1994
Number of pages - 5
Limitation Of Actions

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation Of Actions - personal injury claim - extinguished by Commonwealth legislation - application for extension - relevant provision later found invalid by High Court - limitation period had expired - discretion to extend period - consideration of applicable test - whether Commonwealth provision prevents exercise of discretion - whether the plaintiff's barred cause of action is "property" - whether any value - whether just and reasonable to extend period.

Commonwealth Employees Rehabilitation Compensation Act 1988 (Cth), Part IV, s.44
The Constitution, s.51(xxxi)

Limitation Act 1985 (ACT), ss.11(1), 36
Judiciary Act 1903 (Cth), s.79
Interpretation Act 1967 (ACT), s.36

Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994)

179 CLR 297

Commonwealth v Dixon (1988) 13 NSWLR 601
Newton v State Government Insurance Office (Q) (1986) 1 Qd R 431
Commonwealth v Verweyan [1990] HCA 39; (1990) 170 CLR 394
Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77
Daroczy v B and J Engineering Pty Ltd (1986) 67 ACTR 3, 83 FLR 423
Thomson v Les Harrison Contracting Co (1976) VR 238

HEARING

CANBERRA, 9 September 1994
11:10:1994

Counsel for the Plaintiff: Mr G Lunney

Instructing solicitors: Higgins Solicitors

Counsel for the Defendant: Ms J Godtschalk

Instructing solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT: The time to commence proceedings in this matter be extended to and including 25 July 1994.

DECISION

HIGGINS J By writ dated 25 July 1994, the plaintiff claimed damages for personal injury sustained by him in the course of his employment with the defendant. The alleged accident sued upon occurred on or about 9 June 1987. The plaintiff was at the time, he alleges, working on a scaffolding frame to repair the door hydraulics of a bus. The frame tipped over and he was injured.

2. If the plaintiff's allegations were found to be proved he would have a strong prima facie case that his injury was due to the negligence of his employer, the defendant.

3. The plaintiff has suffered continuing pain as a result of his injuries but has been redeployed to lighter duties.

4. On or about 22 January 1988, in the course of his employment with the defendant, the plaintiff slipped and fell on a wet and slippery locker/change-room floor. He fell, further injuring his back and injuring his right hip. The allegations of negligence associated with this fall, if proved, would also give the plaintiff a good prima facie case against the defendant.

5. The plaintiff continued to work until October 1988, being operated upon by Dr Chandran, a neurosurgeon, on 11 November 1988. Ultimately the plaintiff was redeployed as a bus driver, because of continuing disability and pain.

6. On 2 February 1988, a claim for worker's compensation was lodged with the defendant. This claim was met by the Commissioner for Employees' Compensation.

7. The plaintiff says that he was unaware of his rights at common law to claim damages until 1990. He was then referred by his union to Pamela Coward and Associates, Solicitors. The plaintiff proceeded to seek legal advice from that firm of solicitors. He saw Mr Robert Cohn who advised him that, as he had not commenced proceedings before 1 December 1988, Part IV of the Commonwealth Employees Rehabilitation Compensation Act 1988 (Cth) ((1) Now known as the Safety Rehabilitation and Compensation Act 1988 - see CERC Amendment Act 1992 (Cth) s.4.) (the CERC Act) extinguished any prior right he might otherwise have had to bring a claim against the defendant at common law.

8. That advice correctly stated the purported effect of s.44 of that Act. On 9 March 1994, the High Court of Australia handed down its decision in Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297. In that case, it was held that, in respect at least of a cause of action not otherwise statute-barred at the time of commencement of proceedings, s.44 of the CERC Act was ineffective to bar such actions against the Commonwealth and was invalid to the extent that it purported to do so. Insofar as it extended to accrued causes of action, it was, the majority found, an acquisition of property otherwise than on just terms contrary to s.51(xxxi) of the Constitution.

9. Shortly thereafter, the plaintiff responded to an advertisement placed by his present solicitors, Messrs Higgins. The solicitor he consulted advised the plaintiff of the Georgiadis decision. The Comcare file was requested so that the particulars of the plaintiff's claims could be obtained. The file was not made available until 5 July 1994. The writ and statement of claim then issued on 25 July 1994.

10. By that date, of course, the six year period of limitation prescribed by s.11(1) of the Limitation Act 1985 (ACT) had expired. The limitation laws of the Territory apply to such actions as the present by virtue of s.79 of the Judiciary Act 1903 (Cth).

11. Had these causes of action been sued upon before the six year limitation period had expired under Territory law, then the Georgiadis decision would clearly apply and the plaintiff would have been entitled to proceed notwithstanding the terms of s.44 of the CERC Act.

12. But for s.44 of the CERC Act, it would have been open to the plaintiff, notwithstanding that he had not commenced proceedings before the expiration of that limitation period, to apply, pursuant to s.36 of the Limitation Act, for an order extending the time within which he could bring an action such as the present.

13. The legislative test for exercising such a power pursuant to s.36(2), is that the Court is satisfied that it is "just and reasonable" to do so.

14. A provision such as that contained in s.11(1) of the Limitation Act, does not extinguish a plaintiff's right of action. It is a procedural bar to proceeding thereon applied by the law of the place where the action is commenced: Commonwealth v Dixon (1988) 13 NSWLR 601. That procedural barrier may be waived by a party: Newton v State Government Insurance Office (Q) (1986) 1 Qd R 431. Indeed a party may be estopped from pleading a limitation defence even if otherwise available: Commonwealth v Verweyan [1990] HCA 39; (1990) 170 CLR 394.

15. The defendant contends that Georgiadis does not apply in respect of causes of action already statute-barred even if the procedural barrier could be extended. If this contention was to be accepted, it would follow that s.44 of the CERC Act would prevent this action from being maintained. In effect, it is contended that s.44 prevents the exercise of the power otherwise available to extend the bar created by s.11 of the Limitation Act.

16. An application to extend time pursuant to s.36 of the Limitation Act may be made after the limitation period has expired and whether or not proceedings upon the cause of action so barred have already been commenced: Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77.

17. In Georgiadis, the joint judgment of Mason CJ, Deane and Gaudron JJ noted that to effectively bar forthwith a cause of action vested in a plaintiff against the Commonwealth or an agency of the Commonwealth, is to acquire that cause of action and call into play s.51(xxxi) of the Constitution. However, their Honours expressed the following reservation at 308:

... what has been said thus far concerns only the two causes of action
which were not statute-barred before these proceedings were commenced.
The position with respect to a statute-barred cause of action was not
explored in argument. It is arguable that a cause of action that is
statute-barred, whether it is the action or the remedy that is barred,
is not a valuable right and thus, not property for the purposes of
s.51(xxxi). Whatever the position, the reserved question, as it bears
on a statute-barred cause of action, is largely, if not entirely,
academic. It does not require an answer at this stage.

18. It may be noted that the reservation mentioned above would focus on the characterisation of the right which, but for s.44 of the CERC Act, would have been available to the plaintiff.

19. The issue was not addressed by Brennan J but his Honour agreed with the conclusion reached in the majority judgment. Dawson, Toohey and McHugh JJ dissented. Their Honours, in separate judgments, concluded that there had been no relevant "acquisition" of property. For that, and other reasons, they would have dismissed the plaintiff's appeal.

20. However, the majority view prevails. It means that I am bound to accept that, by barring a right to sue as from 1 December 1988 there was, at that date, a purported acquisition of the property rights then vested in the plaintiff. Those rights were identifiable as the causes of action in tort for damages for personal injury upon which the plaintiff has now sued. Those rights may lack value if negligence is not proved. Their value may be more or less depending on other factors. However, for the purposes of s.51(xxxi) of the Constitution, they cannot have been said then to have been of no value.

21. Such causes of action might lose whatever value they had if not sued upon in time. Consequently, if the causes of action were subject to a limitation bar which was absolute, the question as to whether they were affected by s.44 would indeed be "academic". The causes of action would then be of no value.

22. However, whilst the plaintiff's right to sue in this case might be less valuable than if action had been taken within the period provided by s.11 of the Limitation Act, it does not follow that the causes of action have no value. If there had been an agreement not to plead s.11, the value of the causes of action relied on by the plaintiff would have been undiminished. If the plaintiff claimed the benefit of some equitable right to prevent the defendant relying upon a limitation defence, then the causes of action would have value commensurate with the prospects for that equitable claim succeeding.

23. In this case, the plaintiff has a right to sue upon the causes of action prima facie vested in him only insofar as he succeeds in persuading this Court that it is "just and reasonable" for the bar to be postponed. If it is, his right to sue is undiminished by the prior existence of the time bar. If it is not, then those causes of action will have no value. However, at all times since the bar took effect the plaintiff has had some prospect of successfully asserting a claim under s.36 of the Limitation Act so as to restore the previous value of his causes of action. It seems to me, therefore, that it could not be said that his causes of action were of no value so long as there was a prospect of the time bar being extended pursuant to s.36 of the Limitation Act.

24. Therefore, if the case is one in which it would be "just and reasonable" to extend the period of limitation, Georgiadis applies and s.44 is inapplicable.

Is it "Just and Reasonable" to postpone the bar?
25. The principles upon which it may be concluded that it is "just and reasonable" to postpone the time bar imposed by s.11 were extensively considered in Daroczy v B and J Engineering Pty Ltd (1986) 67 ACTR 3; 83 FLR 423.

26. As Kelly J noted in that case, s.36 confers a wide discretion. Attention is directed to a number of factors enumerated in s.36(3), not by way of fettering the discretion of the Court, but by way of directing attention to certain considerations of relevance.

27. In this case, the delays date from 9 June 1993 and 22 January 1994 respectively. It is arguable that, as 22 January 1994 was a Saturday, that time bar took effect on the following Monday: Interpretation Act 1967 (ACT), s.36; Thomson v Les Harrison Contracting Co (1976) VR 238. However, on any view of this case, the limit had expired by 25 January 1994 in respect of both causes of action.

28. The delay from the respective dates of expiry, until March 1994, is explained on the basis that, until then, the plaintiff held the reasonable belief that he had no right to sue. He had sought advice at a time when, but for the apparent effect of s.44 of the CERC Act, he could have commenced proceedings as of right.

29. Counsel for the defendant, with commendable fairness, concedes that she cannot point to any prejudice occasioned by the delay other than, of course, the loss of the defence which otherwise would be open to the defendant. There is some inevitable diminution in the cogency of the available evidence, but it is unlikely that such diminution would have been significant between the dates of expiry of the limitation periods in question and of commencement of this action. I also note that each accident sued upon was reported to the defendant and investigated by Comcare soon after they happened. The defendant has had full access to the plaintiff's accident related medical assessments and treatment.

30. It seems to me, therefore, that it would be unjust and unreasonable, having regard to the apparently serious injury and disability suffered by the plaintiff, not to extend the time to commence proceedings. The plaintiff did act with reasonable diligence once he became aware of the possibility of a successful claim. He had taken legal advice in a timely fashion following his injuries and the advice he received was sound at the time it was given.

31. In my opinion, therefore, time to commence proceedings in this matter should be extended to and including 25 July 1994. I so order.

32. I will hear the parties as to the costs of this application.