Sani Christine Roos v Allan Nelson [1996] ACTSC 51 (31 May 1996)

SUPREME COURT OF THE ACT

SANI CHRISTINE ROOS v. ALLAN NELSON
No. SC486 of 1991
SANI CHRISTINE ROOS v. AUSTRALIAN CAPITAL TERRITORY
No. SC665 of 1994
Number of pages - 3
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Practice and Procedure - Application to List Matters for Hearing - Whether Hearing Should be Delayed Pending Decision of High Court on Operation of S.44 of the Safety Rehabilitation and Compensation Act 1988 (Cth).

Commonwealth of Australia v Mewett (unreported, Full Court, Federal Court of Australia, Spender, Cooper and Lindgren JJ, 31 August 1995)
Limitation Act 1985 (ACT), s.36, s.41

Safety Rehabilitation and Compensation Act 1988 (Cth), s.44
Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6;

(1994) 179 CLR 297

The Constitution, s.51(xxxi)
Limitation of Actions Act 1958 (Vic)
Mudford v Australian Capital Territory Electricity and Water

(unreported, Supreme Court of the ACT, Higgins J, 23 May 1996)

HEARING

CANBERRA, 24 May 1996
31:5:1996

Counsel for the Plaintiff: Mr B. Meagher

Instructing Solicitors: Scott Sheils and Glover

Counsel for the Defendant: Mr N. Greenslade

(SC486 of 1991)

Instructing Solicitors: Minter Ellison

Counsel for the Defendant: Mr R. Bayliss

(SC665 of 1994)

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The Notice of Motion is dismissed.
2. The plaintiff pay the defendant's costs.

DECISION

MASTER T. CONNOLLY This is an application to list these matters for hearing. While this is not in the nature of an appeal, the Notice of Motion follows a decision of the Deputy Registrar to delay the issue of a hearing date until the decision of the High Court of Australia in three appeals against the decision of the Full Court of the Federal Court of Australia in Commonwealth of Australia v Mewett (unreported, Full Court, Federal Court of Australia, Spender, Cooper and Lindgren JJ, 31 August 1995) and two related actions are known.

2. The plaintiff in these two actions has suffered injuries. These injuries occurred in the course of her employment with the Commonwealth at Royal Canberra Hospital on 26 October 1986. The plaintiff brings action against the legal successor to her then employer and the solicitor who she engaged in 1988 to sue her then employer. This is an action in negligence based on that solicitor's alleged failure to commence the plaintiff's proceedings before that action was purportedly extinguished by s.44 of the Safety Rehabilitation and Compensation Act 1988 (Cth). The action against the employer was commenced after the period prescribed by the Limitation Act 1985 (ACT), but on 18 November 1994 Justice Higgins granted an extension of time to bring the actions pursuant to s.36 of that Act. By s.41 of that Act the cause of action is in effect deemed to have been continually valid.

3. The validity of the claim against the employer turns on the operation of s.44 of the Safety Rehabilitation and Compensation Act 1988 of the Commonwealth. This Section purports to extinguish certain causes of action against the Commonwealth as employer.

4. In Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 the High Court (Mason CJ, Brennan, Deane and Gaudron JJ, Dawson, Toohey and McHugh JJ dissenting) held that in its application to an employee whose cause of action was not statute barred before the action was commenced, s.44 was invalid on the ground that it effected an acquisition of property; namely his right to bring an action for damages, other than on just terms as required by s.51(xxxi) of the Constitution.

5. On 31 August 1995 the Full Court of the Federal Court of Australia (Spender, Cooper and Lindgren JJ) in Commonwealth of Australia v Mewett and two related actions held that s.44 was also invalid insofar as it purported to extinguish a cause of action that is statute barred.

6. The Court held that the relevant Act, the Limitation of Actions Act 1958 of Victoria operates only to bar the remedy but leaves unimpaired the underlying cause of action. Thus s.44 of the Safety Rehabilitation and Compensation Act 1988, insofar as it purports to extinguish that cause of action, is, on the authority of Georgiadis, an acquisition of property and the section is invalid.

7. The Commonwealth has appealed to the High Court against the decision in Mewett, and leave to appeal has been granted. The matter will be heard later this year. The Notice of Appeal, which was before me as an annexure to an affidavit of Counsel for the defendant Nelson, states that the grounds of the appeal are: "The Full Court of the Federal Court erred in holding that the application of s.44(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) to a cause of action which is statute barred constitutes an acquisition of property contrary to S.51(xxxi) of the Constitution."

8. The Deputy Registrar declined to list these matters for hearing on the grounds that until the law was resolved by the High Court, there was uncertainty both as to the status of the plaintiff's claim against the employer and against her former solicitor. I note that in an application to extend time pursuant to s.36 of the Limitation Act 1985 in a claim against an employer which it was argued, was barred by s.44 of the Safety Rehabilitation and Compensation Act, Higgins J has recently indicated that while he was minded to so extend time, he would refrain from making a formal order until the High Court resolved the Mewett appeal (Mudford v Australian Capital Territory Electricity and Water, unreported, Higgins J, 23 May 1996).

9. Mr Meagher argued that these matters ought to proceed to trial without delay. He argued that this matter was different to the Mewett appeals because in this case an extension of time had been granted pursuant to the Limitation Act, and that, pursuant to s.41 of that Act, the cause of action is deemed to have always existed. On this basis, he argues, there is no uncertainty as to the law and the action against the employer is valid on the authority of Georgiadis.

10. Mr Bayliss for the Territory, argues that the deeming provision of the Limitations Act cannot overrule a law of the Commonwealth, and that, if the High Court rules that Mewett is wrongly decided, and that s.44 of the Safety Rehabilitation and Compensation Act is valid insofar as it extinguishes a cause of action once the limitation period expires, then the action against the Territory as successor to her then employer must fail.

11. Mr Greenslade, for the defendant Nelson, submitted that the law is uncertain, and that in these circumstances it is more appropriate to await the outcome of the High Court appeal. The balance of convenience, on this argument, strongly favours a delay, as otherwise parties will be put to the expense of a trial when it may emerge that there is in fact no cause of action against them. If the Mewett decision is upheld, he argues there is then no effective cause of action against his client.

12. While I understand the desire of any plaintiff to proceed to a hearing, I am persuaded by this argument. I think that it is unnecessary for me to resolve the conflicting legal submissions of Mr Meagher and Mr Bayliss. Central to this dispute is the effect of s.44 of the Safety Rehabilitation and Compensation Act on an action that is, or has at some time been, statute barred. Until the High Court resolves this appeal this question is unresolved, and I will not venture my opinion. The High Court decision will mean that the plaintiff has one cause of action, and it would put the defendants to considerable inconvenience, as well as involving an unnecessary use of Court time, to hear the two matters when the matter will shortly be resolved.

13. The Notice of Notice is denied, with costs.