Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 (12 May 2005)

CITATION: Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20

FILE NUMBER(S):

40852/04

CA 40841/04

HEARING DATE(S): 09/02/2005

JUDGMENT DATE: 12/05/2005

PARTIES:

Newcastle City Council - Appellant

Roads & Traffic Authority of NSW - Appellant

Andrew Batistatos (by his tutor Nita Lavinia Batistatos) - Respondent

JUDGMENT OF: Mason P Giles JA Bryson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 21022/94

LOWER COURT JUDICIAL OFFICER: Hoeben J

COUNSEL:

For Newcastle City Council - M.J. Joseph SC

For Roads & Traffic Authority of NSW- B. Donovan QC

For Batistatos - G. Grahame

SOLICITORS:

For Newcastle City Council - Phillips Fox

For Roads & Traffic Authority of NSW- I.V. Knight, Crown Solicitor

For Batistatos - T.D. Kelly

CATCHWORDS:

PRACTICE and PROCEDURE - abuse of process - delay - plaintiff injured in motor accident in 1965, disable person, sued highway authorities in 1994 - defendants applied for strike-out under Pt.15 r.26 on ground that fair trial was impossible due to delay - review of evidence and findings on whether a fair trial was possible - found that it was not - proceedings stayed permanently.

LEGISLATION CITED:

Limitation Act 1623 (Imperial)

Limitation Act 1969

Local Government Act 1919

Main Roads Act 1924

Notice of Action and Other Privileges Abolition Act 1977

Public Roads Act 1902

Supreme Court Act 1970

DECISION:

Leave to appeal granted. Appeal allowed. Proceedings permanently stayed. See [83]

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40841/2004

40852/2004

MASON P

GILES JA

BRYSON JA

THURSDAY 12 MAY 2005

Roads and Traffic Authority of NSW v. Batistatos

Newcastle City Council v. Batistatos

Judgment

1 MASON P: I agree with Bryson JA and with the additional remarks of Giles JA.

2 GILES JA: I have had the advantage of reading the reasons of Bryson JA in draft. I agree generally with his Honour, and add the following observations.

3 Whether the defendants could have a fair trial in this case necessarily began with the negligence alleged against them. The negligence was alleged in broad terms, from the design or construction of the road to its maintenance and to its marking, lighting and signage; even to cutting the adjacent grass. The more generously the plaintiff’s case was pleaded, the more difficult it was for the defendants to meet the allegations after so long a time. The plaintiff’s case was not narrowed by proffering a meaningful account from the plaintiff of how he came to run off the road, or an expert report identifying material deficiencies in the design, construction, maintenance or state of the roadway. It is particularly against that background that it would be unfair and oppressive on the defendants to require them to attempt to meet such a generous case under the difficulties brought about by the lapse of time.

4 In the weighing process to which his Honour refers, the plaintiff has an interest in recovering compensation for his injuries, and there is a public interest in availability of the Court’s processes to enable him to do so; the defendants have a reciprocal interest in resisting payment of compensation to the plaintiff, and there is a public interest in ensuring the (relative) fairness of the trial and thus maintaining confidence in the administration of justice. While the defendants did not establish that the plaintiff’s case was untenable, nor did the plaintiff demonstrate its strength; on the limited material disclosed, it is not a strong case. I agree that the balance plainly comes down in favour of a stay of the proceedings.

5 I agree with the orders proposed by Bryson JA.

6 BRYSON JA: The plaintiff suffered catastrophically disabling injuries in a motor vehicle accident on 21 August 1965 in Fullerton Street, Stockton, New South Wales; he became quadriplegic, and after many years in hospital care he has since 1981 lived in the care of his sister Ms Nita Lavinia Batistatos, who is his tutor in these proceedings. The plaintiff was born in 1932, has always suffered from severe intellectual disabilities and spent much of his childhood and early life in institutions and hospitals; however he was in employment for some years in early adult life.

7 Proceedings were commenced in the Common Law Division by Statement of Claim 21022/1994 filed on 21 December 1994, more than twenty-nine years after the accident. There have been great delays in preparation for trial, caused at least in large part by extensive attention to interlocutory applications and correspondence relating to particulars, availability of witnesses, documents, discovery and other requests for inspection of documents and information generally. The second defendant Newcastle City Council (NCC) applied by Notice of Motion filed on 6 August 1996 for orders that the proceedings be dismissed or permanently stayed under Pt.13 r.5 of the Supreme Court Rules 1970 (which relates to summary disposal) or alternatively be struck out under Pt.15 r.26 (which relates to proceedings which are an abuse of process); and with alternative formulations. The first defendant Roads and Traffic Authority (RTA) filed a similar Notice of Motion soon afterwards. On 9 June 2000 Master Harrison declined to dismiss the proceedings against NCC as the learned Master was of the view that the plaintiff has an arguable case that s.580(6) of the Local Government Act 1919 did not apply. On appeal Bergin J for reasons published on 4 April 2001 affirmed this decision, and dealt with several other interlocutory applications. The applications for summary disposal, stay or dismissal based on abuse of process were heard by Hoeben J on 25 August 2004 and were refused by his Honour on 3 September 2004 for reasons then published. Each defendant seeks leave to appeal. Both ordinary Summonses for leave to appeal were heard together on 9 February 2004. The parties were directed to present their arguments on leave to appeal and on the proposed appeals concurrently.

8 In earlier interlocutory proceedings, before Hoeben J and on appeal, it has been accepted for the purposes of the applications that the plaintiff has a reasonably arguable case that he has always been a person under a disability for the purpose of the Limitation Act 1969 particularly subs.11(3), with the result, produced by s.52 of the Limitation Act 1969, that the running of any limitation period fixed by that Act upon a cause of action which arose on 21 August 1965 was suspended. Although the delay which occurred before the proceedings were commenced is not, in my view, a failure or shortcoming to be laid at the plaintiff’s door, or a respect in which his conduct should be impeached, it is an important fact.

9 Limitation provisions which are relevant are the six-year bar for tort claims including personal injury claims in s.14 of the Limitation Act 1969 as first enacted, the ultimate bar or “long stop” of thirty years in s.51 of that Act, and s.580 of the Local Government Act 1919 which, as in force in 1965 and thereafter until 1977, created a limitation period of two years in favour of NCC. (See Notice of Action and Other Privileges Abolition Act 1977 (since repealed) Sched.1.) The repeal of s.580 was not retrospective: see s.3). NCC has pleaded reliance upon s.580, and after the interlocutory application for summary disposal before Master Harrison on 9 June 2000, the question whether on the facts s.580 actually gives NCC a defence remains to be determined at trial. I also notice that the Limitation Act 1623 (Imperial) would (if unrepealed) have imposed a limitation period of six years expiring on 20 August 1971 upon any claim for damages. However by 1971 the Limitation Act 1623 had been repealed by the Limitation Act 1969: see s.4 and Sched. 1; with effect on 1 January 1971. It may be that a longer time than six years was available under the Limitation Act 1623 having regard to s.6(d) of the Limitation Act 1969 which appears to give a person in the plaintiff’s position the benefit of whichever provision is more advantageous. No argument was presented to the effect that the plaintiff’s position could be improved by reliance on the Limitation Act 1623, and the considerable complexities of that Act relating to disability need not be examined.

10 The Statement of Claim contains the following allegations.

6. On or about the 21st August 1965 the Plaintiff was driving a motor vehicle along Fullerton Street, Stockton when the motor vehicle ran off the road and into a depressed ditch and overturned, when the Plaintiff’s vehicle came upon an unmarked and unposted bend in the road in the vicinity of Meredith Street and its northern approaches.

7. The Plaintiff was thereby injured.

8. The said bend in the road was constructed and/or maintained and/or designed by the said Commissioner for Main Roads and/or the Second Defendant.

9. The Plaintiff injuries were occasioned by the negligence of the said Commissioner for Main Roads and the Second Defendant and each of them.

PARTICULARS OF NEGLIGENCE.

(a) Constructing and/or maintaining a bend in the said road which was at a higher level of elevation to the surrounding terrain.

(b) Failing to warn of the existence of the said bend at its north approaches or at all.

(c) Failing to place posts with reflectors in and at the approaches to the said bend.

(d) Constructing and/or maintaining the said bend where the adjacent grass camouflaged its existence.

(e) Failing to remove the said grass in the course of such construction and/or maintenance.

(f) Failing properly to illuminate the said bend.

(g) Failing to warn that the roadway was or had become unsafe to traverse at normal cruising speed.

(h) Failing to post any or any sufficient warning of the necessity to traverse the roadway at less than normal cruising speed.

(i) Failing to construct or design the roadway with adequate or proper camber, or to cause the said roadway to be so constructed or designed

(j) Constructing and/or maintaining the roadway in such a condition that it was unsafe to traverse at normal cruising speed and/or causing permitting or allowing the roadway to be so constructed and/or maintained.

(k) Failing to warn of the inadequate or defective camber of the roadway or to rectify the same.

(l) Causing permitting or allowing the said roadway to come into or remain in public operation with the deficiencies hereinbefore particularised.

10. Further and in the alternative the Plaintiff claims that the said Commissioner for Main Road and/or the Second Defendant wrongfully caused and/or permitted the said roadway to be dangerous in the respects referred to in the preceding paragraph and as hereinbefore particularised and thereby committed a nuisance on the roadway.

PARTICULARS OF INJURIES

(a) Spinal injury, shock and sequelae

PARTICULARS OF DAMAGES

(a) The Plaintiff was as at the time of the accident the subject of these proceedings employed as a Labourer by the Public Works Department of New South Wales. As a result of his injuries he has lost and continues to lose moneys that he otherwise could and would have earned in this or similar employment, details of which will be furnished in due course

(b) The Plaintiff has incurred and continues to incur expenses for medicals, hospital and the like treatment and equipment, details of which will be provided when they are ascertained.

PARTICULARS OF OUT OF POCKET EXPENSES

The Plaintiff has incurred expenses to the following:-

Royal Newcastle Hospital

Dr G Kerridge

Ambulance

William Lyne Hospital

Royal North Shore Hospital

Details will be supplied when they have been ascertained.

AND the Plaintiff claims damages against the Defendants jointly severally and in the alternative together with interest thereon.

11 Since the Statement of Claim was prepared it has become clear that the grounds on which highway authorities may incur liability for negligence in relation to the exercise of statutory powers are wider than earlier thought. See Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 19; (2001) 206 CLR 1. Nevertheless the plaintiff has not amended the Statement of Claim since the judgment in Brodie became available.

12 The bases of the defendants’ applications for summary disposal before Hoeben J appear from his Honour’s judgment:

10 The defendants sought summary dismissal or stay pursuant to Pt13 r5 of the Supreme Court Rules. Application was also made for the exercise of the Court’s inherent powers to stay the proceedings permanently. There were three bases:

(i) The proceedings were an abuse of process;

(ii) The defendants were highway authorities at the relevant time and there was no evidence that they had created any relevant danger causing the accident;

(iii) The defendants were irretrievably prejudiced by reason of the delay in the proceedings being brought.

13 The first and third of these bases are the same in substance. It was not suggested that the plaintiff had behaved vexatiously or that there has been an abuse of process in any other sense than as in subpara (iii). The second basis indicates reliance by the defendants on the power of the Court to dispose of proceedings summarily conferred by Pt.13 r.5. There have been many judicial expositions and restatements of the ground on which this power is exercised; it is sufficiently clearly expressed in General Steel Industries Inc. v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-130. The test is to the effect that it is necessary to demonstrate that the case is so clearly untenable that it cannot possibly succeed. This is a proposition which a defendant applying for summary disposal must prove, and in the circumstances of the present case this requires the defendants to show by evidence that the plaintiff is not in a position to call any evidence raising any question for determination at a trial on the allegations in the Statement of Claim. The difficulty for a defendant of demonstrating the untenability of the plaintiff’s case, to do which it is necessary to prove that no sufficient evidence is available to the plaintiff, presents itself fully.

14 Broadly stated, the bases of the applications before Hoeben J were contentions to the effect that no evidence and next to no relevant information relating to the circumstances and causation of the plaintiff’s accident and injury are available to any party, that there cannot be a fair trial of the claims and allegations in the Statement of Claim and particulars, and that it is evident that the plaintiff cannot succeed in the proceedings.

15 It can be taken to have been established, from evidence before Hoeben J, earlier findings by Bergin J treated as evidence before Hoeben J, findings of Hoeben J, and contentions before the Court of Appeal that:

· The police report relating to investigations and inquiries into the accident cannot be located and the investigating police has not been identified, although it is clear that, as is the ordinary course, there was a police investigation into the circumstances of the accident.

· It has not been suggested that a detailed investigation of the circumstances of the accident was conducted at the time by any authority other than the police.

· No records of the plaintiff’s treatment immediately or for some years after his injury at the Royal Newcastle Hospital can be located; nor can any contemporaneous records made by his treating orthopaedic surgeon Dr Gordon Kerridge be located, although Dr Kerridge has recollections of his treatment and has made a report, in rather general terms.

· Neither of the defendants has located any reports or records relating to the plaintiff’s accident and injury; and inquiries renewed from time to time, at the prompting of the plaintiff’s solicitor seeking information about specific subjects, have not resulted in any significant reports or records being located.

· No engineers or other officers with knowledge of the events earlier than or contemporaneous with the accident and injury have been identified or located.

16 The affidavit evidence put forward on behalf of the defendants is as follows:

Affidavits on behalf of NCC

Michael Edward Down 6 August 1996, solicitor – gave history of the conduct of the litigation, correspondence and of some inquiries for records and information.

Con Forster 19 March 2001, Senior Technical Officer of NCC – available to give record cards; records; an aerial photograph of Fullerton Road taken on 26 September 1965; adopted budget and revised budget; redesign and construction in 1984 and 1985 and relevant plans; and searches and inquiries among NCC’s engineering files.

Barry Marriott 23 August 2004, Records and Archives Co-ordinator of NCC – additional searches of records. Mr Marriott has been employed in NCC’s Records Department since 1984 and he also gave oral evidence about the retention of documents policy.

Matthew Conn 25 August 2004, solicitor – available documentation relating to inquiries for employees of NCC referred to in interrogatory.

17 Affidavits on behalf of RTA

John Kenneth Hughes 2 September 2002, solicitor – search for documents. Same witness 10 July 2003 solicitor – further searches; documents of employees and information available.

Anthony Love 26 March 2001, Survey Manager of RTA Hunter Region – absence of survey records.

Steven John Bates 26 March 2001, Senior Property Officer of RTA – search for an absence of records.

Corinne Wadey later named Thompson, 3 April 2000, Communications Support Officer – unsuccessful search for records. Same witness 23 March 2001 and 30 May 2000 – search for an absence of records.

John Kenneth Hughes 29 March 2000, solicitor – inquiry of archives, search for records. Same witness 27 September 1990 – search and inquiries, correspondence relating to particulars.

Graham Viner Ball 29 May 2000, solicitor – supplementary to Mr Hughes’ search for documents.

David Erenshaw 5 November 1997, Records Clerk RTA – search of records.

18 The plaintiff himself gave no evidence in the interlocutory proceedings. Answers to two interrogatories delivered to him were put in evidence. The answers to interrogatories showed that the plaintiff declined to identify whether he was aware of any witnesses to the accident. Hoeben J set out passages from the plaintiff’s particulars:

5 Particulars were requested and the following were provided:

(i) Plaintiff travelling along Fullerton Street at approximately 30 mph (45 mph speed limit) between 12 midnight and 1 am on way to catch Stockton ferry to return to the home of a couple in Newcastle where he was then living.

(ii) Had consumed a few beers during course of evening.

(iii) Driving a Ford van, similar to a PMG van which he had purchased second-hand from a caryard at Mayfield.

(iv) Stockton Police had attended the accident scene and the hospital.

(v) It was raining at the time of the accident and traffic conditions were light.

(vi) Fullerton Street was a bitumen road with a single carriageway in either direction.

(vii) The plaintiff was travelling in the south bound side of the road and did not realise that there was a bend in the road “due to the absence of proper marking, signage, lighting and reflectors until it was too late to take effective evasive action”.

6 The following was also particularised:

“The accident occurred just north of the junction of Fullerton Road and Meredith Street. An S-bend existed at that point which the evidence on behalf of the plaintiff will suggest was known in the Stockton area as a black spot. The road had since been straightened and the hazard which gave rise to the plaintiff’s catastrophic accident has thus been eliminated. If you could furnish us with a map of the Fullerton Road Meredith Street area in the condition which it then existed we shall mark the accident site upon it for you. We enclose photocopy of photograph which shows part of the S-bend (now disused) looking southward.”

19 The following passages also appear in the plaintiff’s particulars:

5.2 Inter alia mental, emotional and behavioural retardation, illiteracy, speech impediment and neurological brain damage or deficit.

...

6.5 Believed to be between 12 midnight and 1.00 am.

...

6.11 This will be a matter of evidence. The Plaintiff did not realise there was a bend in the road, due to the absence of proper marking signage lighting and reflectors until it was too late to take effective evasive action.

6.12 The Plaintiff hit the brakes when the existence of the bend became apparent.

6.13 This is not an appropriate request for particulars. Nevertheless you are advised that there were not any passengers in the car with the Plaintiff at the time.

6.14 No. The vehicle was not fitted with seat belts.

6.15 No.

6.16 The Plaintiff had two beers along with his tea before he went to the dance and consumed two cans of beer which were given to him be friends at the dance, along with food at the dance.

6.17 No.

6.18 This is not a proper request for particulars.

6.19 Not to the knowledge of the Plaintiff.

6.20 Believed to be the Stockton Police. The Plaintiff was visited in hospital by Police Officers the next morning.

6.21 Approximately 10 years.

6.22 Queen Street, Waratah.

6.23 The Plaintiff was driving a Ford van similar to the type then used by the Postmaster General’s Department which he had purchased second hand from a card yard in Mayfield.

6.24 The Plaintiff was the owner of the vehicle.

6.25 This is more in the nature of an interrogatory than a request for particulars. Nevertheless you are advised that the car was taken away to George Moores Garage at Wallsend.

...

9.10 Sufficient to camouflage the existence of the bend. The Plaintiff did not get an opportunity to measure the grass.

20 Affidavits read on behalf of the plaintiff include:

Mary Anne Grieve 10 November 1997, solicitor – state of preparation.

Timothy Denis Kelly 29 March 2001, solicitor – inquiries, correspondence and state of preparation.

Gabrielle Anne Gould 18 May 2000, solicitor – correspondence, inquiries and evidence in relation to the plaintiff’s disability. Same witness 26 February 2002 – correspondence in relation to production and inspection of documents.

Evelyn Janice Cummins 12 August 2004, Office Manager – search for witness.

Grant Watson 18 August 2004, Law Clerk – documents obtained by plaintiff’s solicitor and correspondence.

Neville Esmond Wynne August 2004, retired maintenance supervisor – recollections while living in Stockton from about 1945 onwards; knowledge of Fullerton Road and deviation; descriptions of area and local events; knowledge of the plaintiff before accident; when told of accident:

12. As I recall it I went down to the intersection of Fullerton Road and Meredith Street on the following Monday. The van had gone by that stage but I recalled looking in the area on the western side of Fullerton Road adjacent to Meredith Street. I saw marks ... The marks led to an area to the west of Fullerton Road and some metres from the tar.

John McGregor Alston August 2004 resident in Stockton area from about 1954 onwards – knowledge of Fullerton Road and of “Zigzag;” the street lighting in the area was very poor; knowledge of plaintiff and of his van:

11. I remember seeing [the plaintiff’s] van after his accident. I was driving along Fullerton Road for a reason I now don’t recall. When I was just near Meredith Street I saw the van off to the western side of the road.

Doyne Erland Lanham 25 September 2003, farmer – observations while residing in Stockton from 1932 to 1992, knowledge of Fullerton Road and surrounding areas; fatalities on Fullerton Road; concern for safety and steps taken; street lighting; only three street lights in the area near Corroba Reserve; they certainly did not give off much light; and the witness’ safety concerns during his time as an Alderman from 1980:

18. From the beginning of my time as an Alderman, I pressed for the road to be straightened. The work was eventually carried out using nearly all the then available Stockton Ward funds. The realignment occurred to the best of my memory in the mid 80s...

19. Prior to the realignment of the road taking place, there were never any signs along Fullerton Road warning of the existence, the beginning, or the end of the deviation.

Mr Lanham further produced correspondence written by him in 1981 and 1984 expressing safety concerns.

21 The plaintiff in the Statement of Claim and in the particulars does not allege any circumstances which called for the presence of signs warning of the existence or the beginning or the end of this part of Fullerton Road, and the observation of Mr Lanham in his affidavit to the effect that there never were such warning signs is of no significance unless some reason is shown why warnings were called for and warning signs should have been present; the Statement of Claim and particulars do not give any.

22 The plaintiff also tendered in evidence a plan recording a re-marking by a surveyor of the position of Fullerton Road in 1919 pursuant to the Public Roads Act 1902 s.25. Sections 23 to 25 of that Act provided for a road to be re-marked where the position and boundaries of the road could not be identified through the absence or loss of survey marks. The plan should be understood as showing the actual location of the road in 1919. The plan appears to show that the position of the road as then marked was no longer its position in 1965, and as far as the plan can be understood the position of the road was generally straight when re-marked in 1919; whereas some plan earlier than 1919 had shown the road in a different position, with a bend to the east: but not the same position and bend as in 1965. The aerial photograph taken on 26 September 1965 at a considerable height shows generally, without great detail, the form of the road about a month after the plaintiff’s accident and injury. Nothing is known, even within the nearest decade, about construction works which moved the road away from the relatively straight line marked in 1919.

23 The bend was referred to in the affidavit of Mr Lanham and elsewhere in material emanating from the plaintiff’s side of the record as “the deviation.” It is a deviation in the sense that it does not accord with the actual position of the road in 1919 as marked in accordance with s.25 of the Public Roads Act 1902. The word “deviation” is a tendentious expression for the position and course of the tar-sealed road surface for some decades. There is no reason to think that there was any element of the temporary about the deviation.

24 Senior Counsel for NCC, in a submission adopted by Senior Counsel for RTA, gave these as the essential substance of the grounds of appeal: that Hoeben J wrongly exercised his discretion in that his Honour: (1) misunderstood the nature of the prejudice from the lack of documentation; (2) gave excessive weight to the eye-witness evidence generally and specifically that stated in three affidavits produced by the plaintiff; (3) wrongly had regard to the nature of the injury in which the plaintiff became a quadriplegic as a positive reason for not exercising the discretion; whereas the defendants contend that it is at least a neutral matter, alternatively a consideration favouring exercising the discretion; (4) failed to give sufficient weight to the defendants’ affidavit evidence about the lack of documentation and its effect and in particular to affidavit evidence that NCC had insurance at the time but cannot now establish who the insurer was; (5) reached a result which was so unreasonable as to show that there had been a wrongful exercise of discretion; and (6) although his Honour stated that he was doing a balancing of the impact of prejudice on each side or a weighing process, did not in fact do so.

25 Broadly stated, NCC’s counsel complained both regarding Hoeben J’s views about what the elements to be weighed in the exercise of discretion were, and about the manner in which the process was carried out.

26 Counsel for RTA contended that Hoeben J’s discretion miscarried in that his Honour (1) minimised the importance of the absence of documents; (2) minimised the importance of documents as means of identifying relevant witnesses; (3) was in error in his analysis of the effect of the affidavit evidence emanating from the plaintiff’s side and in particular in error in saying that the evidence could give detailed information; it could not and did not give detailed information; (4) failed to consider the reliability of witnesses forty years after the accident; (5) did not refer to the impact of the delay of twenty-nine years of commencing the proceedings, which it was contended certainly raises a real possibility of prejudice: it was contended that it raises a very strong factual inference that there has been prejudice in preparing for and going to trial; (6) did not consider the information available about the detailed condition of the road; in substance, the only detailed information of any kind is the aerial photograph of 26 September 1965; (7) did not consider who was responsible for any defect, whether the defect was the design, traffic control signs and warnings, vegetation or any other matter of detail.

27 The particulars on which the plaintiff relies do not relate only to facts and events generally contemporaneous with the accident, that is to say to marking, signage, lighting and reflectors, street lighting or other illumination as they then were, the state of the grass which is alleged to have camouflaged the existence of the bend, and the maintenance or other control programs and measures, if there were any, which were then in place for controlling vegetation; they also relate to the construction and design of the road. The particulars do not state in any detailed way what is the substance of the allegations, and for that reason do not indicate in any useful way what it is that the defendants are to investigate, adduce evidence of and answer at the trial.

28 Without attempting to depict fully the subjects on which evidence might have been relevant, I make divisions into:

(1) The condition of the road, and the design and engineering works which led to its being in that condition;

(2) More immediate general circumstances of the road on the date of the accident including the availability of warning signs, line markings and the state of vegetation; and

(3) The immediate circumstances of the accident and the events whatever they were in which the van ran off the road and the plaintiff was injured.

29 Subjects which naturally present themselves for investigation, and for adduction of evidence, by the defendants and also by the plaintiff, are any facts and circumstances relating to the design and construction of Fullerton Road in the form which it took in August 1965. The plaintiff’s allegations relating to the design of the road can only be based on some very broad proposition to the effect that to design and build the road with the bend in that position was negligent.

30 Address to whether there was negligence in design, and also address to the defendants’ defence against such an allegation, cannot really be undertaken without knowledge of the conditions which bore on the design and construction at the time and the place of those construction works. The available technology, land formation and geology, land ownership and funds all bear on engineering design; the time of the design work is not known, even within a decade, and the persons who did the design work cannot be identified. It cannot be established which organisation they worked for, nor can it be established whether their relationship with the organisation was as staff or external consultants. No address to reasonable preparation on behalf of the defendants to go to trial and meet the allegations against them can be undertaken, or can even begin.

31 Evidence shows that Main Road 108, described in a way which includes Fullerton Road, was proclaimed as a main road in a Gazette Notice of 31 July 1940, and has been a main road ever since. It follows that powers conferred on the predecessor of RTA by the Main Roads Act 1924 and later legislation on the Department of Main Roads (DMR) (or the Commissioner of Main Roads), were available for exercise by RTA’s predecessor in 1965 and for 25 years earlier; but no evidence indicates any particular activity or exercise of power by DMR that might be presently relevant. No record of any such activity by the predecessor of RTA has been identified notwithstanding the conduct of searches for the purpose of discovery. The possibilities about the extent of RTA’s involvement are many, as RTA’s predecessor might have exercised powers relating to road construction and maintenance itself, might have delegated such powers or some of them to NCC, or might have left NCC to operate with little or no intervention.

32 Records of NCC show provision for £3,000 to be expended (and probably it was expended) in the year 1964 on “resurfacing with premix on Fullerton Road between Meredith Street and the Fort Entrance,” and this part of Fullerton Road includes the place of the accident. The plaintiff has evidence available from a witness who (quite credibly) interprets the aerial photograph as indicating recent resurfacing. The 1964 budget papers of NCC providing £3,000 for resurfacing and an apparent indication on the aerial photograph that resurfacing had taken place do nothing to indicate that the course of the road was then altered, or that anything other than resurfacing then occurred. The funds for resurfacing were provided in the budget of NCC, and not of RTA. The fact that NCC had recently resurfaced the road in 1964 may be significant as an indication of the actual discharge by NCC of powers of maintenance, although I cannot see that carrying out resurfacing could support any adverse implication in support of a finding of negligence.

33 The state of the grass is an important fact because particulars appear to claim that grass camouflaged a bend in the road. What the nature of the vegetation was and what influence it had on the accident are not clearly indicated by the plaintiff’s allegations. The condition of vegetation is forever changing, and the appropriate response can only be judged in relation to the state of affairs at any particular time. In any event the allegation relating to vegetation is itself obscure. No reason appears why the sealed surface of the road was obscured by vegetation.

34 The aerial photograph can give some indications of some relevant matters, but only in the most general sense; it could be analysed to show in detail the path of the road and the geometry of the bend, probably to a high degree of accuracy, but will not assist in discovering levels and cambers. It cannot provide any reliable information about the state of vegetation more than a month earlier than the date of the photograph.

35 There is so little evidence about the lighting that the quality and effect of the light projected cannot be assessed. The indications available which are in any way contemporaneous with the events of 1965 are so slight as to have no practical value.

36 There are no prospects whatever of investigation and adduction of evidence relating to the plaintiff’s consumption of alcohol, the effect of alcohol on him, of characteristics of his van such as the state of its headlights and brake, of measurement and direction of skid marks, of the location of the vehicle after it ran off the road, or any other matter of detail related to the immediate circumstances of the accident at all.

37 Plaintiff’s counsel made submissions pointing to what it was contended were conceivable lines of inquiry based on the records and documents available from the period 1981 to 1985 for information about the state of affairs in 1965. It was contended to the effect that if inquiries were made of various persons and sources alluded to in the documents from the period 1981 to 1985 it is possible that some further information about the state of affairs in 1965 might emerge. While these submissions were presented in considerable detail and with some ingenuity, there was, in my opinion, nothing of substance in the suggestion that the inquiries made by defendants to identify evidence which may be available to them have not been pursued to reasonable lengths.

38 A section of Fullerton Road was under study in 1981; the studies included an appraisal of traffic safety considerations and the view available to overtaking motorists; they were followed by redesign and reconstruction without the bend. Papers from this period (1980-81) include references to complaints about the road including suggestions that there were blind spots. See Annexure F of affidavit of Mr Watson 18 August 2004 regarding complaints concerning fatal accidents at the corner of Meredith Street and Fullerton Road, and a NCC report recording recommendation of reconstruction of the road by a Committee of Council on 2 June 1981 which was received and adopted by NCC on 9 June 1981:

Following an inspection of Fullerton Street southerly from Main Road no.108 to the residential development of Stockton, the Committee observes that existing speed signposting is adequate.

However, the Committee recommends that the barrier lines on the “dog-leg” section be reviewed and that curve advisory signs be also provided at this location.

No other traffic facility is recommended.

39 Also there is a departmental memorandum of 24 November 1981 (affidavit of Mr Watson p9) calling for a sight-distance appraisal and suggested length of the barrier line to be provided in the dog-leg section of Fullerton Road, and a report dated 23 December 1981 by a council officer of the sight-distance appraisal, accompanied by four coloured photographs which illustrate some parts of the road referred to as the dog-leg section near and north of Meredith Street.

40 Exhibit B to the affidavit of Mr Forster 19 March 2001 is a record card by NCC of Fullerton Road giving a brief indication of construction work performed by NCC; there is an entry as early as July 1943 and there are others until 1992. There is a reference to the proposed reconstruction, attributed to 9 May 1985. NCC carried out reconstruction of Fullerton Road, from Meredith Street to Fort Wallace, which includes the place of the accident, in or about 1985 after preparation extending over several years from about 1981 onwards. In the course of this work Fullerton Road was straightened and the bend complained of in the plaintiff’s particulars was eliminated. Documents relating to this reconstruction including engineering drawings enable some understanding to be formed of the reconstruction works and the earlier formation of the road; and there is material enabling some Council officers concerned in the drawings and the reconstruction to be identified. Indications on an engineering plan of the previous position of the road could well, if supplemented by credible evidence of persons with local knowledge, be relied on to establish the position of the road twenty years earlier in 1965. However these indications do nothing to show the design considerations which led to the road’s being constructed in the form, with the bend, it took in 1965, nor do they have any significance for establishing the vegetation, signage, lighting or other circumstances of 1965.

41 The state of the roadway in the period 1981 to 1985 when a design drawing was prepared and decisions were taken and reconstruction work was carried out is not, without more, any indication of the state of the road in 1965, sixteen years or more earlier. Reasoning back, in a form of the presumption of continuance, from the state of the road in 1981 to a conclusion about the state of the road in 1965, is extremely unreliable reasoning, and not reasoning which the defendants could fairly contend with, as it is obviously possible that there were changes during the interim.

42 One matter argued on appeal was referred to by Hoeben J at [15] of his Honour’s reasons thus:

15 Before me it was argued that because the plaintiff had not sworn an affidavit, or otherwise given direct evidence, I could draw an inference that he had no knowledge of how the accident occurred and if that were the case it would be impossible for the plaintiff to prove the case which had been set out in the statement of claim and otherwise particularised.

His Honour disposed of this argument at [16]:

16 I do not accept that proposition. It frequently occurs that plaintiffs are so severely injured that they have no recollection of how an accident occurred. If the accident can be proved by other means, eg the observations of other people or reconstructive opinions by experts, such a plaintiff can still succeed. The failure of the plaintiff to provide any direct evidence does not, in my opinion, have the effect argued for.

43 On appeal Counsel for defendants contended that Hoeben J took a wrong view of the effect and significance of other witnesses relied on by the plaintiff, and that the information which their affidavits show is of the most general kind and relates to events happening forty years ago, on which recollection is very unlikely to be reliable in detail. Hoeben J described their recollections as clear, but with respect the terms of their affidavits show that this is quite incorrect.

44 In my respectful opinion Hoeben J’s reasoning is not cogent. It appears to have been assumed by his Honour that the plaintiff himself has no recollection of how the accident occurred. The basis of this assumption appears to be that the plaintiff did not in the interlocutory applications himself make an affidavit dealing with the manner in which the accident occurred. If the plaintiff is able to give evidence about events he could well have decided to bring that evidence forward in response to the applications for summary disposal; but it was not compulsory for him to do so. The plaintiff did not bear any onus of proof, and there are forensic considerations adverse to his going into evidence and exposing himself to cross-examination at an interlocutory stage. There is nothing in the nature of an admission by the plaintiff himself that he has no recollection of what happened, nor is there any clear assertion traceable to him that he does have any recollection. There are some indications, of little weight, that he may be in a position to give evidence to support instructions upon which his Statement of Claim and later particulars were based. It may well be that the plaintiff is in a position to give some evidence about the events, although there is no basis in which it could be found that he is able to do so. NCC has had the plaintiff examined by Dr Shand a psychiatrist, but no report or other evidence of Dr Shand was tendered in evidence. The defendants have not proved that the plaintiff is unable to give evidence.

45 As well as not giving evidence himself the plaintiff has not embarked on showing that he has a case of the other kind referred to by Hoeben J in [16] of his Honour’s reasons, that is proof of the event by observations of other people or by reconstructive opinions of experts. The plaintiff produced and filed in Court on the day of the hearing before Hoeben J three affidavits of lay witnesses, Messrs Lanham, Wynne and Alston, which do not set out evidence sufficient to establish any discernible case of negligence.

46 There has never been any suggestion that there was any eye-witness to the accident. The material in the affidavits of Messrs Lanham, Alston and Wynne could not reasonably furnish a basis for some evidence of a reconstruction of the events of the accident, however expert the witness making the reconstruction might be. These affidavits furnish in substance no context within which to come to a conclusion about what measures ought reasonably to have been taken in the defendants’ exercise of powers of maintenance, or what reasonable needs there were for lighting, signage or other measures; and of course they can make no contribution whatsoever to an understanding of any consideration relating to the design and construction of the road as it was in 1965. The whole context of exercise of powers, including the earlier state of the road before it was designed and constructed, whenever that was, and perceptions of considerations arising from land form, geology, available technology and resources at that unknown time are not advanced in any way by these three affidavits. There is simply not enough information to enable a useful expert view to be formed.

47 The inference is available that the plaintiff might have no other evidence than the evidence he brought forward, but reasoning by inference in this way would not in my opinion enable a conclusion that the plaintiff’s case is plainly untenable to be reached, as is necessary having regard to expressions collected in General Steel by Barwick CJ on the exceptional caution with which this power must be exercised. Barwick CJ said to the effect that the power is to be sparingly employed, and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. His Honour also said to the effect that the plaintiff’s lack of a cause of action is to be clearly demonstrated, and referred to the need for exceptional caution. His Honour cited passages from the judgment of Dixon J in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 including the following at 91: “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.” Hoeben J referred to treatment in Carson v. Legal Services Commissioner & Anor [2000] NSWCA 308 at [295] of the onus which lies on the applicant and also to the possibility of there being an evidential onus on the respondent.

48 In my opinion the evidence which the defendants have brought forward, even assisted by reasoning about the opportunities available to the plaintiff to resist the application by bringing forward any evidence he does have available, and by the insufficiency of the affidavits of Messrs Lanham, Wynne and Alston which he did bring forward, does not meet the standard of certitude required for the exercise of this power. Although I have not endorsed Hoeben J’s reasoning in all respects, I am of the opinion that his Honour’s conclusion on summary disposal under Pt.13 r.5 was correct.

49 The Supreme Court has jurisdiction, derived from its inherent jurisdiction reconferred by s.23 of the Supreme Court Act 1970, to stay proceedings in the Supreme Court and in other courts and tribunals upon the ground that the continuance of the proceedings is harsh, oppressive and an abuse of process; and the grounds upon which proceedings have been stayed for abuse of process include great delay in the commencement or in the conduct of proceedings. There is not a simple equation between great delay and abuse of process. In Herron v McGregor (1986) 6 NSWLR 246 the Court of Appeal exercised this power to stay disciplinary proceedings against medical practitioners where there had been delays in the order of seven to ten years between the acts allegedly constituting professional misconduct and the complaints to the Disciplinary Tribunal. McHugh JA attributed the power not only to inherent powers of the Court but also to Supreme Court Act 1970 s.23; see 252. In the course of a review of authority (at pp250-252) McHugh JA said at 251:

However, the reasoning expressed in the decisions of the highest courts in England, Canada and New Zealand seems equally applicable to the administration of justice in New South Wales. In the absence of a contrary decision of the High Court on the point I think that this Court, as a superior court of justice, has inherent power to prevent an abuse of procedure in instituting or continuing proceedings in both civil and criminal cases. It is not necessary in the present case to determine whether the disciplinary tribunal itself had jurisdiction to stay the proceedings before it. For I am strongly of opinion that not only has this Court the inherent power to stay its own civil and criminal proceedings for abuse of process but its general supervisory and protective power extends to protecting inferior courts and tribunals from abuse of their procedure in relation to civil, criminal and disciplinary matters.

50 Although most of the authorities to which his Honour referred related to criminal or disciplinary proceedings, his Honour’s firm and clear statement that the inherent power to prevent abuse of process extends to civil proceedings was made in the context of authority which did relate to civil proceedings: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 214 (Lord Selborne LC) and at 220-221 (Lord Blackburn). In criminal proceedings it is usual to state the principle in wide terms, for example in Connelly v. Director of Public Prosecutions [1964] AC 1254 at 1301 Lord Morris of Borth-y-Gest said:

There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.

51 McHugh JA went on to deal, separately, with circumstances in which delay in instituting or continuing proceedings may amount to an abuse of process. McHugh JA addressed delay in instituting proceedings at pages 253-255. At 253 his Honour said:

Since the passing of the Statute of Limitations 1625, the institution of most civil proceedings has been subject to time limitations. Even before that time many actions were subject to time limitations: see 4 Bacon's Abridgment, 5th ed at 461 et seq. And criminal proceedings heard summarily are also invariably subject to time limitations. In civil and summary criminal cases,

therefore, it hardly seems possible for a court to say that an action brought within the limitation period is oppressive because mere delay in commencing the proceeding has prejudiced the defendant or accused person: cf Birkett v James (at 322). The limitation period represents the legislature's judgment as to what the public interest requires after taking into account the relevant

factors including the prejudice which delay may create. In respect of criminal charges triable on indictment, limitation periods are rarely enacted. In the absence of legislation, the maxim nullum tempus occurrit Regi (time never runs against the Crown) applies: Sheffeild v Ratcliffe [1792] EngR 1454; (1615) Hob 334 at 347;

[1792] EngR 1454; 80 ER 475 at 487; Re J (A Person of Unsound Mind not so found by Inquisition) [1909] 1 Ch 574. Nevertheless, in my opinion the courts have power to stay an action, though brought within the relevant limitation period or even though not governed by such a period, if the conduct of the plaintiff or prosecutor is oppressive to the defendant or accused person.

The present applications were not founded on delay in conduct of the proceedings after the issue of the Statement of Claim on 6 December 1994. More than ten years have since passed but, albeit with many delays, the proceedings have more or less continuously been in preparation and the defendants’ applications have been pending since 1996.

52 At 254 in the context of disciplinary proceedings for which there is no statutory time limit his Honour said:

Since no time limit has been laid down under the Act, a complaint may be made at any time unless the institution of the proceedings in the circumstances is oppressive and an abuse of process. Nevertheless, while the Act contains no time limitation for lodging a complaint it does not follow that a complainant, with knowledge of the facts, can stand by and allow time to pass. The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) "what has been forgotten can rarely be shown". In

some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: "Where there is delay the whole quality of justice deteriorates." The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):

"In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have

progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.

It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the

significance - indeed, the enormity - of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place."

Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the

common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.

53 The circumstances in which the power to stay permanently criminal proceedings may be exercised was considered extensively in Jago v. District Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23 in which the High Court was not prepared to stay long-delayed criminal proceedings. In Walton v. Gardiner (1993) 177 CLR 378, which related to medical disciplinary proceedings, the High Court upheld a stay of disciplinary proceedings on the ground of delay. To some extent there was diversity in the views expressed in Jago, and the majority judgment in Walton v. Gardiner provides a resolution which must command great respect. At 392-395 Mason CJ, Deane and Dawson JJ, who formed the majority, said:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail[ See, e.g., Metropolitan Bank v Pooley (1885) 10 App Cas 210, at 220-221; General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at 128-130. ]. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them [See, generally, Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538]. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings [See, e.g., Reichel v Magrath (1889) 14 App Cas 665, at 668; Connelly v DPP [1964] AC 1254, at 1361-1362]. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [[1982] AC 529, at 536.] as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people”.

In Jago v District Court of New South Wales[(1989) [1989] HCA 46; 168 CLR 23], at least three of the five members of the Court clearly rejected “the narrower views that a court’s power to protect itself from an abuse of process in criminal proceedings “is limited to traditional notions of abuse of process”2[ibid., per Mason CJ at 28]. Mason CJ considered that a court, “whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves”, possess the necessary power to prevent its processes being employed in a manner which gives rise to unfairness2 [ibid., at 28]. His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour[[1980] 1 NZLR 464, at 481]:

“public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike And the due administration of justice is a continuous process, not confined to the determination of the particular case It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice. “

Deane J expressed a similar view in his judgment in Jago[ (1989) 168 CLR, at 58]

“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed. “

In her judgment in Jago [ibid., at 74], Gaudron J stressed that the power of a court “to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.” Her Honour added the comment [ibid.] “that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand.” Subsequently in her judgment [ibid., at 77], her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings.

It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v Spautz [1992] HCA 34; [(1992) 174 CLR 509, at 519-520]. When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition [ibid., at 520, see, in particular, the approving reference to the judgment of Richardson J. in Moevao v Department of Labour [1980] 1 NZLR 464, at 482].

54 At 395 – 396 their Honours referred to a balancing process and said:

As was pointed out in Jago[See, in particular, (1989) 168 CLR, per Mason CJ at pp.30-34; per Deane J. at 59-61; per Toohey J. at 72; per Gaudron J. at 76-78.] the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. As we read their Honours’ judgments, the members of the Court of Appeal all utilized such an adapted weighing process in the present case.

55 The principles governing stays in criminal prosecutions were further considered in the judgment of the High Court in Subramaniam v. The Queen [2004] HCA 51; (2004) 79 ALJR 116 at 122-123 [24-27].

56 The observations in Walton v Gardiner confirm the availability of the Court’s power in civil proceedings, and its availability in cases where there is not, as well as where there is intended abuse of the powers and procedures of the Court. My researches suggest that the use of this power on the basis of delay in instituting proceedings in civil cases must be rare. Norman v Howarth [2003] FamCA 1284; (2003) 180 FLR 1 is an instance. A circumstance which has probably restricted applications for and exercise of the power in civil cases is the availability of statutory time limits for the institution of civil proceedings. Such statutes typically do not operate by conferring authorisation to delay, but simply prevent effectual institution of proceedings, irrespective of merits, after a period determined by the legislature, and they appear to give an authorisation of a kind to allow most of whatever period the statute allows to pass, so long as proceedings are instituted within that period. Observations of McHugh JA in Herron v. McGregor at 253 illustrate the difficulty of concluding that there has been an abuse of process where this apparent authorisation exists. A similar difficulty presents itself in a different context where the Court is asked to dismiss proceedings which have been commenced in due time but have not been conducted in accordance with time scales prescribed by Rules of Court; there has been a strong general reluctance to dismiss proceedings in such circumstances where the statutory time limits have not expired and it remains open to a plaintiff to commence fresh proceedings. See Birkett v. James [1978] AC 297 and Stollznow v. Calvert [1980] 2 NSWLR 749.

57 However I am unable to see any reason in principle why the power should not be exercised in a proper case. The existence of apparent authorisation in a statute of limitation is not in principle a reason why great delay may not be an abuse of process, or a reason why the power of the Court may not be exercised.

58 In the present case the issue in relation to whether the defendants can have a fair trial if the plaintiff’s proceedings were allowed to continue was addressed by Hoeben J at [41]:

[41] Much has been said about the inability of the defendants to have a fair trial if the plaintiff’s proceedings are allowed to continue. This argument has taken place in the context of cases relating to the extension of a limitation period. Some care needs to be taken when using those cases in relation to this application. At all times it needs to be remembered that the defendants in this case carry the onus. It is not for the plaintiff to establish that a fair trial can be had but for the defendants to establish that their chances of having a fair trial are so low that to allow the proceedings to continue would be unjustifiably vexatious and oppressive to them.

59 It is correct, as Hoeben J pointed out, that the defendants bear the onus of proof of facts showing that a fair trial cannot take place. His Honour referred in this context to observations of Priestley JA in Holt v. Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at 142 on what is necessary for a fair trial; as Priestley JA said, the term “a fair trial” is a relative one, and for a trial to be fair it need not be perfect or ideal. It is necessary to set on one side, as Hoeben J clearly did, the approach to be made in an application in which a plaintiff seeks an extension of time to bring proceedings and in so doing comes under a need to show that a fair trial is possible; see Brisbane South Regional Health Authority v. Taylor [1996] HCA 25; (1996) 186 CLR 541. The matters under consideration in that case, including the observations of McHugh J at 553 to 554, relate to quite different state of the law to that now significant. His Honour’s earlier observations at 552 to 553 relating to the underlying policy of statutory time limits on bringing proceedings are as follows:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost.[ Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704] Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.[ RB Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81-2] Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.[ New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50 at 3; The Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper, (1992) Project No 36, Part II at 11] Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.[ In Limitation of Actions for Latent Personal Injuries (1992) Report No 69 at 10, the Law Reform Commissioner of Tasmania said: “The need for certainty can be justified in many cases. For example, manufacturers need to be able to `close their books’ and calculate the potential liability of their business enterprise with some degree of certainty before embarking on future development. Under modern circumstances, an award of damages compensation may be so large as to jeopardise the financial viability of a business. The threat of open-ended liability from unforeseen claims may be an unreasonable burden on business. Limitation periods may allow for more accurate and certain assessment of potential liability.”]As the New South Wales Law Reform Commission has pointed out:[ New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50 at 3]

The potential defendant is thus able to make the most productive use of his or her resources [Kelley, “The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience” (1978) 24 Wayne Law Review 1641 at 1644] and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided.[ “Developments in the Law, Statutes of Limitations” (1949-1950) 63 Harvard Law Review 1177 at 1185] To that extent the public interest is also served.

Even where the cause of action relates to personal injuries,[ The vast majority of defendants in personal injury actions are insured. Consequently, the amount of the verdict will not be met by the defendant. Nevertheless, it is a charge on the revenue of the insurer for the relevant year and is ultimately met by the shareholders of the insurer or the individual proprietors of the insurance business if the insurer is not incorporated. Although the burden of the plaintiff’s claim is spread in such cases, the consequences for the proprietors of the insurance business can be significant. When a large number of claims are allowed to be brought out of time, as has been the case in respect of some types of injuries or in some industries in recent years, the financial consequences for an insurer can be drastic] it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.2[New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50 at 3; The Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper (1992) Project No 36, Part II at 11]

60 In my view the first of what McHugh J referred to as rationales for limitation periods, that “As time goes by, relevant evidence is likely to be lost,” is important in the exercise of the power now invoked.

61 It is always necessary to have in mind the object of an inquiry for information and evidence. The question whether information is sufficiently available to the defendants, on their making reasonable inquiries, to make it possible for a fair trial on the plaintiff’s allegations to take place has to be considered in association with what the plaintiff’s allegations are. The plaintiff’s allegations are of the most general kind, and although they occupy some folios when written out they communicate next to nothing as particulars of negligence. The object of inquiry by the defendants for evidence is not defined. They have not been told by the plaintiff even to the decade when it was alleged that their negligent acts or omissions occurred; nor, in any real way, what those negligent acts or omissions were.

62 Counsel for the plaintiff developed at length contentions to the effect that the defendants had not pursued lines of inquiry for witnesses which counsel contended were open to them. Hoeben J addressed this issue at [33] – [38]:

33 The effect of the evidence adduced by the defendants was that for the period before 1965 up to the early-mid 1980’s most documents had been lost or destroyed and there were not documents available which would enable the defendants to properly defend the claim which was being brought against them. That most of the documents for the period 1965-early 1980’s were no longer available was clearly established.

34 The defendants submitted that this absence of documents meant that the proceedings were unfair and unjustifiably oppressive to them. The great delay and the inability to properly investigate and contest the allegations made by the plaintiff were powerful factors to be taken into account in deciding the application.

35 The defendants pointed out that there were no hospital records available, nor medical records before 1980. There do not appear to be any police records in relation to the accident.

36 These arguments were put by the defendants to Bergin J when the matter was before her. She noted that although there had been comprehensive searches made by the defendants to locate documents there had been no such searches to identify and locate persons who may have had personal knowledge, either of the road or of the accident. Her Honour noted that the survey plans refer to a surveyor, Mr G Hearns, and to a Mr J Rennies, and there was a reference to a maintenance engineer, Mr Bradley, who had taken a series of photographs which demonstrated parts of the original road. Fullerton Street passed through the Stockton Soccer Club field but no enquiry had been made of the soccer club in respect of any information it may have relating to the original road in 1965.

37 Her Honour also noted that until the new Stockton Bridge had been opened to traffic on 1 November 1971 access across the Hunter River at that location was provided by a ferry service. It was “highly likely” that Fullerton Street remained as a main road until that point in time. It was therefore a road with which people living in the area would have been familiar.

38 When this part of the motion was argued before me and additional evidence was tendered on behalf of the defendants, that evidence again focused upon documents, the search for documents and their absence, but was almost entirely silent concerning the identity of any personnel who had worked for the defendants from 1965, who might have had personal knowledge concerning the road or the accident. It is not so much that such persons are no longer available, there is no evidence that any attempt has been made to identify and locate such persons by either of the defendants. Despite her Honour’s reference to Mr Hearns and Mr Bradley there is no evidence before me that any attempt had been made to locate and interview those persons.

63 In applications for stay of the proceedings before Hoeben J counsel for the plaintiff referred to other persons identified in documents as persons who had previously worked for one or other of the defendants and could be expected to have some significant knowledge of the road; reference was made to Mr Moore regional engineer, Mr Thew and Mr Garner (who prepared a report for NCC in 1981 and took some photographs for that purpose). Hoeben J expressed the view that it was a valid criticism that the defendants’ approach to the matter was to focus on documents and made little or no attempt to locate witnesses who may have some knowledge of the road and/or the accident. Hoeben J also said:

40 I am also mindful of the fact that during the adjournment the plaintiff was able to locate the three persons previously referred to Messrs Lanham (who had been an alderman on the Council for many years) Wynne and Alston, all of whom have it seems, detailed recollections of the road and of events which had happened in relation to the road at the relevant time. There was no suggestion that these witnesses were partisan or that their evidence would necessarily favour the plaintiff. These witnesses now having been identified could be interviewed by the defendants and through them it may well be possible to locate other persons with knowledge of the road and of the accident.

64 Hoeben J further said at [45]:

45 In this case three witnesses have been identified by the plaintiff who have personal knowledge of the road and two of whom have personal knowledge by way of observation of the accident site. I am not satisfied that the defendants have thus far taken steps reasonably open to them to identify and locate other persons, particularly from their own organisations, who may have similar information.

The forensic motivations bearing on the plaintiff to make known any available evidence in response to an application for dismissal of the proceedings on the ground of abuse of process are not the same as those bearing on the plaintiff with respect to the adduction of his own evidence on the application for summary disposal under Pt.13. The plaintiff did indeed produce affidavits of three witnesses; produced only on the day of the hearing before Hoeben J. It seems to me that the possibility that the plaintiff may actually have other witnesses available about the events in 1965 in addition to these three is so slight that it does not require attention.

65 With respect, the relevant information in the affidavit of Messrs Lanham Wynne and Alston, as I mentioned previously, is extremely slight and goes no real distance at all to establishing in any concrete way the state of affairs in which the accident happened in 1965; and is of no real value whatsoever in attempting to come to a conclusion about whether there was any negligent act or omission in the design and construction of the road, or in its maintenance. These three affidavits illustrate, to my mind rather fully, the process of degradation of the availability and quality of evidence where there are long delays. In my view there is no reasonable basis for the conjecture that relevant information might become available to defendants from inquiring for persons who were concerned in management of the road in the period from 1981 to 1984 leading up to and including redesign and reconstruction.

66 To my mind the plaintiff’s contentions that the defendants had not pursued all lines of inquiry serve to emphasise the conjectural nature of the possibility that there may be any further information which could be discovered, and the slight basis of any possibility that further inquiry would produce any useful outcome. Even if some person were identified who had active involvement in road maintenance work in and before 1965, such a person could deal only with part of the allegations made; most unlikely to be other than a small part, and altogether unlikely to cast any light on considerations affecting design and construction of Fullerton Road at earlier times.

67 In my respectful opinion his Honour’s conclusion at [45] was not correct, that is, it was an error to conclude that his Honour was not satisfied that the defendants have thus far taken steps reasonably open to them to identify and locate other persons who may have information similar to that of the three witnesses identified by the plaintiff. In relation to the nature of the task and the difficulties confronting them, and of the lack of available information with which to begin the task, the reference to the defendants’ not having taken steps reasonably open appears to me to reflect a wrong appreciation of the position of the defendants and the lines of inquiry which should be found to be open. The task is not to find any persons who have any recollections, however slight and indefinite, of what the position was or might have been in 1965; the task is to elicit knowledge and evidence of what the position then actually was, and of what led to it; in relation to events of so many decades ago, relating to design, construction and maintenance of the road, the measures the defendants have taken, involving as they do working through available documents, are the only measures which have any more than a remote prospect of adducing any useful information.

68 His Honour’s conclusion at [47] was:

47 As was pointed out in Jago v District Court [1989] HCA 46; (1999) 168 CLR 23 and in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 the power to grant a stay is discretionary and should only be used in the most exceptional circumstances. I have not been satisfied by the defendants that the circumstances of the present case are such as to justify a permanent stay of proceedings which would have the effect of permanently preventing the plaintiff exercising his right to bring proceedings in respect of his injuries.

48 I also take into account when carrying out the weighing process required of me, that the plaintiff has suffered very serious injuries and that if he succeeds he is to be compensated for the effects of those injuries since 1965. His claim if successful is a large one. That also is a matter which I consider to be relevant to my exercise of discretion.

69 Hoeben J referred to Williams v. Spautz [1992] HCA 34; (1992) 174 CLR 509 for the proposition that “... the power to grant a stay is discretionary and should only be used in the most exceptional circumstances.” The facts and the nature of the abuse of process in Williams v. Spautz are altogether different from those now relevant. In Williams v. Spautz the proceedings were private criminal prosecutions which, in the view of the majority in the High Court, were an abuse of process because they were being maintained for improper purposes. There is no element in the present facts of an improper purpose such as the use of court process for some collateral advantage or ulterior purpose or so as to cause improper vexation and oppression. Notwithstanding the context in which observations in Wiliams v. Spautz were made, it is significant that in that case, for example in the judgment the majority at 519-520, there were not only passages deprecating the use of the power to grant a permanent stay on flimsy grounds, but also passages stating fully and clearly the obligation of the Court to act in a case in which it is proper to act.

70 Hoeben J regarded the size of the verdict which the plaintiff could expect to recover if he should succeed as favouring the plaintiff’s being allowed to proceed with his case. If the plaintiff were completely successful his damages would amount to a very large sum. The large amount involved is it seems to me a fact which has to be considered when deciding whether proceedings should be permanently stayed, because the decision will bear, potentially unjustly, on the defendants just as it may potentially bear unjustly on the plaintiff. The large size of the amount involved makes the perception of the injustice of an unfair trial particularly acute. It may be that for a smaller claim, or a shorter delay a different conclusion might be made; these speculations do not need to be pursued.

71 Paragraph 22 of the affidavit of Mr Down 6 August 1996 is:

22. I am informed and verily believe that after having conducted investigations in relation to its insurance arrangements relevant as at 21 August 1965 the Second Defendant is unable to locate any record that would assist it in proving the insurer on risk as at the date of the accident pleaded by the Plaintiff. I am informed and verily believe that the Council has always had insurance.

Hoeben J did not refer to the unavailability of insurance and NCC’s counsel conceded that this was not put forward in a clear way to his Honour as an element which NCC asked him to consider. It is available for reconsideration on any re-exercise of the discretion. The availability or non-availability of insurance appears to me to be an important factor. See Brisbane South Regional Health Authority v Taylor at 552-553 footnote 186.

72 In substance the decision of Hoeben J was to the effect that the defendants had not discharged the onus of proof which lies on them on showing that it is not possible that a fair trial should take place. In my view his Honour’s finding is based on views of what in fact have been the opportunities available to the defendants to make inquiries, and what opportunities continue to exist, which were wrong in fact because they were not properly related to what the defendants reasonably can do.

73 In Cox v. Journeaux No. 2 [1935] HCA 48; (1935) 52 CLR 713 at 720 Dixon J said:

The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

74 It is not the defendants’ case and they have not shown that the action is clearly without foundation and the applications for stay of the proceedings do not fall within the opening sentence to the passage I have quoted. However it is clear from later authority including passages I have cited from Herron v. McGregor that proceedings may be an abuse of process or, in Dixon J’s expression an abuse of jurisdiction, if a fair trial is not possible.

75 Negligence in the exercise of statutory powers requires consideration, particularly when the negligence is said to be or include by omissions, of decisions, or failure to make decisions relating to the manner and time of exercising powers. When an attempt is made to pursue further consideration of what contribution the meagre and obscure detail referred to by Messrs Lanham, Wynne and Alston would add to the fair trial of the proceedings it appears that their evidence is of practically no significance. A finding of negligence based on material such as they have given, or on further evidence of a similar kind if any could be found, could not reasonably be made at the conclusion of an exercise directed to coming to a decision about the facts in a fair manner and to a standard of proof on the balance of probabilities. The few scraps of information about the availability of funds to NCC for reconstruction work on Fullerton Road in the past serve only to illustrate how incomplete any picture about the availability of funds and decisions about balancing competing claims could be.

76 In all practicality there appears to be no prospect of any evidence becoming available relating to decisions about design and construction which led to the state the road was in 1965; this is so however intense the inquiries now to be made should be. After a gap of time, now of four decades, the prospect that some officer of a public authority who was engaged in affairs at the relevant time might be able to provide information without records can be no more than extremely slight; and any such evidence could not be regarded as reliable.

77 Whether either defendant has any liability relating to design and construction is a subject of which consideration can hardly begin without establishing when the road was designed, and which public authority was responsible for the design, and also when and by which authority the road was built. The public authority involved might not have been either of the defendants; the possibilities include that a predecessor of NCC was involved, and it could not be assumed, without identifying the predecessor and tracing legislation relating to its amalgamation with NCC, that NCC was liable for acts of its predecessor which caused or contributed to a loss or injury which occurred after the amalgamation. Design might have been undertaken by engineers employed by a public authority, or by consultants who were independent contractors. Other possibilities include construction or reconstruction of the road by some Federal authority concerned with access to Army or Navy land or Williamtown Airport.

78 A number of circumstances to which Hoeben J referred would support a conclusion that it is improbable that either party will be able to prove in detail the events, including the events of the accident itself, or the circumstances relating to the design and construction of the road and the safety measures such as lighting and warning signs which were in position, in any but the most vague and general ways. On the evidence put forward in support of the applications for summary disposal it seems quite unlikely that the plaintiff has a case of fact fit to go to trial, and this conclusion is supported by the paucity of the evidence which the plaintiff chose to bring forward on the applications. The defendants’ evidence shows that searches for documents have been carried out over a number of years, and further searches have been pursued at the prompting of the plaintiff’s solicitors in various directions; the possibility that any record either of road design or of the accident will be located has for practical purposes been excluded. The possibility that any records relating to the state of maintenance or traffic safety measures in 1965 may be forthcoming has also been excluded for practical purposes. The information, itself not ample, relating to events in the period 1981 to 1985 has very little bearing on the plaintiff’s allegations.

79 To my mind the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct a trial into the question whether the plaintiff’s injuries were caused by negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate with any realistically useful information. The balancing exercise in Walton v. Gardiner at 395-396 can hardly be carried out, as there is in practical terms nothing of utility to place in the balance against the defendants’ claim for a permanent stay.

80 In my view it is not correct to approach the present application on the view that the absence of any statutory time limitation is in some sense an authorisation for bringing the proceedings at the time in which they were brought. Delay is not what the Limitation Act 1969 authorises, literally or in substance. It operates in quite another way, by preventing proceedings being brought after prescribed times, irrespective of whether or not the proceedings can be fairly adjudicated. Some statutory time limits are quite short, for example time limits of two years or three are sometimes prescribed, and there must be many cases where a fair hearing could be conducted even if those statutory limits have not been observed. The present case is one at the extremes, as almost three decades passed before the proceedings were commenced, and four decades will have passed before the proceedings ever go to trial. The Limitation Act 1969 cannot in my view close the Court’s eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis. No more than a formal enactment of the process of hearing and determining the plaintiff’s claim could take place; it cannot be expected that the process would be just.

81 In my opinion Hoeben J’s disposition of the applications for stay of proceedings under Pt.15 r.26 should be set aside. As well as errors which I have mentioned in these reasons, I am of the view that the grounds for a decision in favour of a stay are so strong and clear that there must have been some departure from principle in his Honour’s course of reasoning which the judgment has not made overt. To my mind it would manifestly be quite unjust to allow these proceedings to go to what would in form be a trial but in substance would be only a ceremonial enactment of an opportunity to establish whether or not the plaintiff has the rights he claims.

82 There were no submissions as to costs. The course of the proceedings and the costs orders earlier made could be material to the order now to be made, and there may be other considerations which the parties should have the opportunity to address. In my opinion, therefore, no order for costs should presently be made, and directions should be given for written submissions on that matter.

83 The Court of Appeal should order in each Summons:

1. Leave to appeal granted.

2. Appeal allowed.

3. Orders of Hoeben J of 3 September 2004 set aside.

4. In lieu thereof order that the proceedings be stayed permanently.

5. Direct that the question of costs be decided upon written submissions: appellants to lodge written submissions on costs within 14 days, respondent within 28 days and any reply within 35 days.

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LAST UPDATED: 13/05/2005