Commonwealth of Australia v Gill [1999] FCA 1659 (1 December 1999)

Last Updated: 6 December 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Gill

[1999] FCA 1659

APPLICATION FOR LEAVE TO APPEAL - limitation of actions - relevance of the plaintiff's predisposition to injury and whether there was prejudice to the defendant attributable to delay on the part of the plaintiff.

LIMITATION OF ACTIONS - plaintiff in receipt of employees' compensation - relevance thereof on issue of prejudice - delay in pleading limitation defence.

Limitation Act 1985 (ACT), s 36(2)

Safety Rehabilitation and Compensation Act 1988 (Cth), s 44

Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297, followed

Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, followed

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, cited

Sydney City Council v Zegarac (1998) 43 NSWLR 195, referred to

COMMONWEALTH OF AUSTRALIA v STEVEN JAMES GILL

A 61 OF 1999

GALLOP, HILL and GYLES JJ

CANBERRA

1 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 61 OF 1999

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	STEVEN JAMES GILL Respondent
JUDGE:	GALLOP, HILL and GYLES JJ
DATE OF ORDER:	1 DECEMBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the costs of the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 61 OF 1999

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	STEVEN JAMES GILL Respondent

JUDGE:	GALLOP, HILL and GYLES JJ
DATE:	1 DECEMBER 1999
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 This is an application for leave to appeal from an order of the Supreme Court of the Australian Capital Territory granting Steven James Gill ("the respondent") an extension of time within which to bring an action against the Commonwealth of Australia ("the applicant") under s 36(2) of the Limitation Act 1985 (ACT) ("the Act"). The Court heard full argument as on the appeal against the eventuality that leave might be granted.

Chronology

2 On 28 May 1986 the respondent was an employee of the applicant as a bus driver in the Australian Capital Territory. On that day, whilst in the course of his employment, the respondent was the driver of a bus which was involved in a collision with a pedestrian, as a result of which the pedestrian died. The respondent claims to have suffered psychological damage as a result of this trauma, although the cause of action to be pursued relates only to post-accident treatment.

3 On 1 December 1988 s 44 of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act") came into operation. By that section, actions by Commonwealth employees for injuries arising out of their employment were barred, whether the injuries occurred before or after the commencement of the section.

4 In April 1992, after resigning from Commonwealth employment, the respondent first sought legal advice as to suing the applicant in regard to the development of his psychological condition following the accident. He was advised that there was no prospect of an action for damages.

5 It is clear from the evidence that between the accident and the time at which advice was sought the respondent had been in receipt of compensation benefits from the Commonwealth and that various medical reports had been provided to the Commonwealth concerning his medical condition. There is, however, no precise information concerning this.

6 On 9 March 1994 the High Court delivered its decision in Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297. The majority of the Court held that s 44 of the Compensation Act was invalid.

7 On 6 June 1995 the respondent caused a writ with an endorsed statement of claim to be issued by the Supreme Court of the Australian Capital Territory against the applicant. A defence dated 2 November 1995 was filed and thereafter an affidavit dated 13 August 1996 as to documents was filed on behalf of the applicant. The matter was not pursued vigorously until after the decision of the High Court was given in Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 on 31 July 1997.

8 On 21 April 1999 the applicant amended its defence to allege that the claim was barred by the expiry of the relevant limitation period. A notice of motion dated 7 May 1999 for an extension of time to bring the proceedings was then filed. The application was refused by a judge of the Supreme Court of the Australian Capital Territory on 22 June 1999 ("the first decision").

9 On 29 June 1999 the respondent amended the statement of claim and then brought a fresh application for an extension of time. This was dealt with by the same judge, but on this occasion, on 30 July 1999, the application was granted ("the second decision").

Decisions below

10 In the first decision, the judge, after weighing up the matters required to be examined pursuant to s 36 of the Act, decided that the application should be refused.

11 In the second decision, the judge, in a carefully reasoned judgment, took the view that the respondent's amendment to the statement of claim, omitting one of the causes of action, reduced the prejudice to the applicant by reason of the delay. The judge exercised his discretion in favour of the application.

12 In each case, the judge correctly directed himself as to the law governing the application by reference to the appropriate authorities.

Arguments for leave

13 We have considered the arguments as to errors in the judgment below advanced by the applicant in support of leave. In our opinion, the only arguable error of principle which has been identified is a reference by his Honour to the fact that the applicant takes the respondent as it finds him, pointing out that the duty alleged would not be avoided by any predisposition of the respondent. It was argued that, whilst this proposition was strictly correct, it was no answer to the relevance to the case as pleaded of information as to the pre-existing condition of the respondent. It was argued that this error in principle would vitiate the decision, particularly bearing in mind the importance of prejudice as emphasised by the decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

Reasoning on application

14 Although the matter is not clear, we are not satisfied that his Honour did rule that the respondent's existing condition was irrelevant. The statement that his Honour made was related to the duty of care and he went on to say:

"The matter of the standard of care required to discharge the duty and the further matters of causation and the assessment of damages may be affected by the pre-disposition. However, I do not think that there is material prejudice to the defendant on those issues which is attributable by [sic] delay on the part of the plaintiff."

It seems to us that his Honour was not rejecting the relevance of predisposition, but, rather, finding that there was no material prejudice to the applicant which was attributable to the respondent's delay. Although minds could no doubt differ as to that conclusion, that is not a sufficient basis for the grant of leave. It amounts to an attack upon a finding of fact relevant to a discretionary judgment.

15 Even if what his Honour said could be viewed as an error of principle sufficient to vitiate the judgment below, the applicant would have a formidable task achieving a different result. The factor of prejudice is, of course, significant. The decision of the High Court in Taylor (supra) was a timely reminder that the pendulum had swung too far in favour of applicants on that factor. However, s 36 requires consideration of other issues and a balance to be struck (cf Sydney City Council v Zegarac (1998) 43 NSWLR 195).

16 Here, there are powerful factors which support the result, including the following:

(1) The effect of the Compensation Act.

(2) The High Court decisions in Georgiadis (supra) and Mewett (supra).

(3) The applicant's delay in pleading the limitation defence.

(4) The circumstance that, during the period not affected by any limitation, the respondent was in receipt of compensation from the applicant which must have involved consideration of the respondent's pre-existing condition by the applicant.

17 Taking all things into account, we do not think that this is an appropriate case to grant leave. The application is dismissed. The applicant is to pay the costs of the respondent.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gallop, Hill and Gyles .

Associate:

Dated: 1 December 1999

Counsel for the Applicant:	Mr PM Biscoe QC with Ms P Burton
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr GP Segal with Mr J Evans
Solicitor for the Respondent:	Gary Robb & Associates
Date of Hearing:	18 November 1999
Date of Judgment:	1 December 1999