HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJMatter No S530/2005
ANDREW BATISTATOS BY HIS TUTOR
WILLIAM GEORGE ROSEBOTTOM APPELLANTAND
ROADS AND TRAFFIC AUTHORITY OF
NEW SOUTH WALES RESPONDENTMatter No S531/2005
ANDREW BATISTATOS BY HIS TUTOR
WILLIAM GEORGE ROSEBOTTOM APPELLANT
AND
NEWCASTLE CITY COUNCIL RESPONDENT
Batistatos v Roads and Traffic Authority of New South Wales
Batistatos v Newcastle City Council
[2006] HCA 27
14 June 2006
S530/2005 & S531/2005ORDER
In each matter, the appeal is dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
Matter No S530/2005
B M Toomey QC with S J Maybury for the appellant (instructed by T D Kelly & Co)
I D Temby QC with C F Hodgson for the respondent (instructed by Crown Solicitor for New South Wales)
Matter No S531/2005
B M Toomey QC with S J Maybury for the appellant (instructed by T D Kelly & Co)
M J Joseph SC with S P W Glascott for the respondent (instructed by Phillips Fox Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Batistatos v Roads and Traffic Authority of New South Wales
Batistatos v Newcastle City CouncilAbuse of Process – Delay – Proceedings commenced in 1994 in respect of causes of action which accrued in 1965 – Appellant suffered quadriplegia and other injuries in motor accident allegedly caused by the negligence of, and nuisance created by, the respondents – Appellant born mentally retarded and later orphaned – Applications brought by respondents for summary dismissal or permanent stay for abuse of process – Whether, due to the effluxion of time since the causes of action accrued, a fair trial was not possible for the respondents.
Abuse of Process – Delay – Factors to be considered in determining whether delay precludes the conduct of a fair trial – Whether actions commenced by appellant untenable or futile – Whether actions commenced by appellant present real question to be determined – Sufficiency of evidence – Relevance of fundamental right to bring legal proceedings – Relevance of summarily denying right to a trial – Relevance of appellant's severely disabled condition – Relevance of the extent of the investigations made by the parties – Relevance of the disparity in the economic resources of the parties – Relevance of fact that the 30 year ultimate limitation bar had not yet descended.
Limitation of Actions – Appellant born mentally disabled and suffered quadriplegia in the accident out of which these proceedings arose – Appellant's causes of action not subject to 6 year limitation period which would otherwise have been imposed by the Limitation Act 1969 (NSW) by reason of the appellant's disabilities – Actions commenced within 30 year ultimate limitation period – Whether Limitation Act 1969 (NSW) precludes court from summarily dismissing or permanently staying proceedings for abuse of process when actions commenced before expiry of limitation period – Whether exercise of power to dismiss or stay in such circumstances is exceptional and requires proof of oppressive or contumelious conduct on the part of the plaintiff.
Courts – Powers of courts – Whether supplementary power of Supreme Court of New South Wales properly described as inherent or implied – Distinction between inherent powers and implied powers – Basis from which the State Supreme Court derives its jurisdiction to summarily dismiss or permanently stay proceedings.
Courts – Powers of courts – Jurisdiction – Rules of Court – Whether Rules of Court are exhaustive of the circumstances in which the Supreme Court can dismiss or stay proceedings for abuse of process – Weight to be given to the relevant legislative context in exercising discretion to dismiss or stay proceedings – Where both Rules of Court and supplementary jurisdiction empower Supreme Court to stay or dismiss proceedings for abuse of process – Relationship between supplementary jurisdiction and Rules of Court.
Words and phrases – "abuse of process", "delay", "inherent jurisdiction", "implied jurisdiction".
Limitation Act 1623 (Imp) (21 Jac I c 16), ss 3, 7.
Limitation Act 1969 (NSW), ss 5, 11(3), 51(1), 52.
Supreme Court Act 1970 (NSW).
Supreme Court Rules (NSW), Pt 13 r 5.
GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. These appeals from the New South Wales Court of Appeal[1] were heard together. The issues which arise illustrate the point made by Griffith CJ in Varawa v Howard Smith Co Ltd[2] that the term "abuse of the process of the Court" has been (as it still is) used in many senses. Reference to some of these senses of the term should first be made.
[1]Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos (2005) 43 MVR 381.
[2](1911) 13 CLR 35 at 55.
The meaning of "abuse of process"
The process with which these appeals is concerned is that of the Supreme Court of New South Wales. But it appears that the procedures of non‑curial bodies may attract the "abuse of process" doctrines. Thus, an unchallenged assumption underlying the majority decision of this Court in Walton v Gardiner[3], to which extensive reference was made in submissions in these appeals, was that the entertainment by a tribunal constituted under the Medical Practitioners Act 1938 (NSW) of complaints referred to it, might be stayed as constituting an abuse of process. However, in his dissenting judgment, Brennan J carefully distinguished the concept of alien purpose seen in the principles respecting abuse of administrative power, where the focus is upon the purpose of the repository of the power, rather than upon the purpose of the moving party[4].
[3](1993) 177 CLR 378. See also Herron v McGregor (1986) 6 NSWLR 246.
[4](1993) 177 CLR 378 at 410.
Distinctions also are to be drawn between an order staying pending proceedings as abusive (with which these appeals are concerned) and an action for what have become recognised in Australia as the torts of malicious prosecution and of collateral abuse of process. In their discussion of the subject in Williams v Spautz[5], Mason CJ, Dawson, Toohey and McHugh JJ remarked[6]:
"Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers."
From what follows in these reasons, it will be apparent that the central requirement specified in the above passage does not apply outside the area of tort.
[5](1992) 174 CLR 509 at 522‑526.
[6](1992) 174 CLR 509 at 523.
There is a further point to be made here. Objections by plaintiffs to the exercise of the power to order a stay which rely upon the point that there are available to the defendant remedies in tort have not prevailed. The reason was explained in the joint judgment in Williams v Spautz as follows[7]:
"Neither the action for malicious prosecution nor the action for collateral abuse offers the prospect of early termination of the subject proceedings. An action for malicious prosecution cannot be brought until those proceedings have terminated. Although an action for collateral abuse can be brought while the principal proceedings are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process which the court should not permit to continue."
[7](1992) 174 CLR 509 at 520.
These appeals concern abuse of process as understood in the exercise of the "inherent jurisdiction" of superior courts to stay proceedings. The phrase "inherent jurisdiction" itself is a slippery one. In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd, Gleeson CJ, Gaudron and Gummow JJ remarked[8]:
"'Jurisdiction' and 'power' are not discrete concepts. The term 'inherent jurisdiction' may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description[9]. In Harris v Caladine[10], Toohey J said:
'The distinction between jurisdiction and power is often blurred, particularly in the context of "inherent jurisdiction". But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred"[11]'."
Reference in this regard also may be made to the judgment of McHugh J in Solomons v District Court (NSW)[12], and to that of Gummow, Hayne and Heydon JJ in Minister for Immigration and Multicultural and Indigenous Affairs v B[13].
[8](2001) 204 CLR 559 at 590 [64].
[9]Williams v Spautz (1992) 174 CLR 509 at 518‑519.
[10](1991) 172 CLR 84 at 136; see also Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 450‑452 [49]-[54]; DJL v Central Authority (2000) 201 CLR 226 at 242‑243 [30]-[31].
[11]Parsons v Martin (1984) 5 FCR 235 at 241; see also Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630‑631.
[12](2002) 211 CLR 119 at 140‑141 [43].
[13](2004) 219 CLR 365 at 395 [69].
Accordingly, in Hunter v Chief Constable of the West Midlands Police[14] Lord Diplock used the term "inherent power" rather than "inherent jurisdiction". In Walton v Gardiner[15], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter[16] in which Lord Diplock spoke of "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". His Lordship went on to describe as "very varied" the circumstances where "abuse of process" can arise[17]. It will be necessary to return to that consideration later in these reasons.
[14][1982] AC 529 at 536.
[15](1993) 177 CLR 378 at 393.
[16][1982] AC 529 at 536.
[17][1982] AC 529 at 536.
In Hunter[18], Lord Diplock disavowed the use of the word "discretion" in describing the exercise of the power to prevent abuse of process. Thereafter, in R v Carroll[19], Gaudron and Gummow JJ observed that the use of the term "discretion" in this context indicates no more than that, although there are some clear categories, "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse". They added[20]:
"It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration."
[18][1982] AC 529 at 536.
[19](2002) 213 CLR 635 at 657 [73].
[20](2002) 213 CLR 635 at 657 [73].
A further distinction must now be drawn. It is accepted that the inherent power identified by Lord Diplock applies to both civil and criminal proceedings. However, the power does so with somewhat different emphases attending its exercise. In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said[21]:
"The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice."
These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law. Earlier, in Jago v District Court (NSW), Mason CJ had observed[22]:
"[T]he criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context."
[21](1992) 174 CLR 509 at 520.
[22](1989) 168 CLR 23 at 26.
Abuse of court process
What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum[23]. Again, in Cardile v LED Builders Pty Ltd[24], Gaudron, McHugh, Gummow and Callinan JJ referred to the passage in the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd[25] where it was said of the grant of an anti‑suit injunction that the counterpart of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion. Their Honours in Cardile were dealing with the doctrinal foundation of asset preservation orders, and continued[26]:
"The integrity of those processes extends to preserving the efficacy of the execution which would lie against the actual or prospective judgment debtor[27]. The protection of the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation."
[23]Logan v Bank of Scotland (No 2) [1906] 1 KB 141; Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners (1908) 6 CLR 194; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
[24](1999) 198 CLR 380 at 393 [25].
[25](1997) 189 CLR 345 at 391.
[26](1999) 198 CLR 380 at 393 [25]
[27]Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623, 638.
A convenient starting point for consideration of the development that has occurred is the statement made by Lord Blackburn in 1885, in a case frequently cited in Australian courts[28]. The causes of action at stake in Metropolitan Bank Ltd v Pooley[29] were in tort. Lord Blackburn said[30]:
"[F]rom early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse; but that was not done upon demurrer, or upon the record, or upon the verdict of a jury or evidence taken in that way, but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court; and in a proper case they did stay the action."
[28]For example, Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 at 361; (1966) 66 SR (NSW) 335 at 345; R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219 at 228; Herron v McGregor (1986) 6 NSWLR 246 at 250; Mickelberg v The Queen (1989) 167 CLR 259 at 312; Walton v Gardiner (1993) 177 CLR 378 at 393; Ridgeway v The Queen (1995) 184 CLR 19 at 74.
[29](1885) 10 App Cas 210.
[30](1885) 10 App Cas 210 at 220‑221.
The references by Lord Blackburn to "power" rather than to "jurisdiction" and to the summary procedure whereby the court informed its conscience upon affidavits are significant.
Several other points are to be made respecting that statement in Metropolitan Bank. The first is that Lord Blackburn treated vexatious process as synonymous with, or at least an instance of, abuse of process. Secondly, the issues to be considered go beyond a question as to whether the claim or defence in question is bad in law; the demurrer was developed to deal with that situation. Thirdly, and as later emphasised in this Court in authorities to which reference has already been made in these reasons, Lord Blackburn indicated that the power existed to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation.
It should be added that, in this Court, it has yet to be determined whether the inherent power identified by Lord Blackburn is, like the power to punish contempt[31], an attribute of the judicial power of the Commonwealth provided in Ch III of the Constitution. However, in this Court much attention has been given to the nature and extent of the inherent power to deal with abuse of process.
[31]Re Colina; Ex parte Torney (1999) 200 CLR 386 at 394‑397 [15]-[25], 429 [113].
In Ridgeway v The Queen, Gaudron J explained[32]:
"The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose[33], as well as proceedings that are 'frivolous, vexatious or oppressive'[34]. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard[35]. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories'[36] because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case[37]. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose[38] and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging'[39] or 'productive of serious and unjustified trouble and harassment'[40]."
[32](1995) 184 CLR 19 at 74‑75. See also the remarks of Gleeson CJ, Gummow, Hayne and Heydon JJ in D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at 768 [74]-[75]; 214 ALR 92 at 109‑110.
[33]Williams v Spautz (1992) 174 CLR 509.
[34]See, eg, Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210.
[35]See, eg, Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 242‑243, 246‑247, and the cases there cited.
[36]Hamilton v Oades (1989) 166 CLR 486 at 502, citing Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639 and Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 340, 344. See also Jago v District Court (NSW) (1989) 168 CLR 23 at 25‑26, 47‑48, 74; Walton v Gardiner (1993) 177 CLR 378 at 393‑395; Rogers v The Queen (1994) 181 CLR 251 at 255, 285-286.
[37]See Dietrich v The Queen (1992) 177 CLR 292 at 328‑329, 364.
[38]As to what constitutes improper purpose, see Williams v Spautz (1992) 174 CLR 509 at 526‑530, 532‑537, 553‑556; see also at 543‑551.
[39]Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247.
[40]Hamilton v Oades (1989) 166 CLR 486 at 502.
Earlier, in Rogers v The Queen, McHugh J observed[41]:
"Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."
His Honour added[42]:
"Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process."
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious[43]. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.
[41](1994) 181 CLR 251 at 286.
[42](1994) 181 CLR 251 at 286.
[43]Mickelberg v The Queen (1989) 167 CLR 259 at 312.
The width of these propositions, drawn from judgments in this Court, the appellant seeks to restrict. The appellant relies in particular upon a House of Lords decision which predated Hunter[44], namely Birkett v James[45]. It will be necessary to return to Birkett v James later in these reasons.
[44][1982] AC 529.
[45][1978] AC 297.
Delay and the "inherent jurisdiction"
The appellant in this Court wishes to be freed of the permanent stay upon his actions which was imposed by the Court of Appeal. The causes of action he asserts are given by the common law and are subject to any applicable statutory limitation but not to equitable defences of laches, acquiescence and delay. Those defences, in relation to a suit to establish the existence of a trust of land, were considered by this Court in Orr v Ford[46]. It was accepted by the majority that prejudice occasioned by the loss of evidence as a result of delay by the plaintiff might be raised as part of a defence of laches[47].
[46](1989) 167 CLR 316.
[47](1989) 167 CLR 316 at 330.
The absence in the Anglo‑Australian common law of the importation of such equitable doctrines as laches, acquiescence and delay as defences to legal claims to legal remedies has emphasised the significance of the development of the inherent power with respect to abuse of process to supplement the "long‑stop" barriers imposed by limitation statutes. In various jurisdictions in the United States, matters developed rather differently. First, various judicially developed "tolling doctrines" may be relied upon by plaintiffs to lengthen statutory limitation periods[48]. Secondly, the doctrine of laches has been used to shorten statutory periods; and, in that respect, laches has been treated as a defence available equally in actions at law[49].
[48]See the discussion by Ormiston JA in Kuek v Victoria Legal Aid [1999] 2 VR 331 at 339‑340.
[49]Teamsters & Employers Welfare Trust of Illinois v Gorman Bros Ready Mix 283 F 3d 877 at 881 (2002), where the leading judgment of the Court of Appeals for the Seventh Circuit was delivered by Judge Posner.
Inherent power and Rules of Court
Rules of Court in their various forms may be influenced by, and to differing degrees restate, the characteristics of the inherent power to stay for abuse of process. That relationship between the Rules of the Supreme Court of New South Wales and its inherent power is significant for understanding the issues of the present appeals. Before turning to the facts and the history of the litigation in the Supreme Court, something more should be said of the development of the inherent power alongside the formulations found in Judicature system Rules of Court, such as those in New South Wales introduced by the Fourth Schedule to the Supreme Court Act 1970 (NSW) ("the 1970 Act").
In England, the demurrer was abolished in 1883[50] and replaced by provisions in RSC, O XXV rr 3‑4 which were described as forms of proceedings "in lieu of demurrer". Among other things, RSC, O XXV r 4 then empowered the court to order a pleading to be struck out on the ground that it disclosed "no reasonable cause of action or answer". In that case, and also in the case of the action or defence being shown by the pleadings "to be frivolous or vexatious", the court might order the action to be stayed or dismissed or judgment to be entered accordingly, as might be just. The first limb of the new rule might be seen as providing a procedure in place of the demurrer (overlapping r 3 which created the procedure by which a preliminary point of law can be taken on the pleadings and dealt with separately). However, the second limb, with its reference to frivolous or vexatious actions or defences, went further and into the field of abuse of process. Yet it was decided that the procedure under r 4 did not permit the court to inform itself by affidavits, so that if the pleading did not disclose that the action was bad on its face and extrinsic evidence was required to show that the action was bad, the rule did not apply[51].
[50]Rules of the Supreme Court 1883, O XXV r 1. But, in this Court, see High Court Rules 2004, r 27.07.
[51]Attorney-General of the Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274 at 278; Goodson v Grierson [1908] 1 KB 761 at 764; Winfield, The Present Law of Abuse of Legal Procedure, (1921) at 240.
Hence the point made by Professor Jolowicz[52] that it was not surprising that the English courts held soon after 1883 that the inherent jurisdiction was unaffected by the introduction of r 4. Hence also the emphasis by Dixon J in Dey v Victorian Railways Commissioners[53] upon the inherent authority of the Supreme Court of Victoria to stop the abuse of its process when employed for groundless claims. His Honour indicated that the question on the summons to dismiss the plaintiff's action did not arise on the statement of claim and involved no matter of pleading. The local equivalent of RSC, O XXV r 4 therefore did not apply. Rather, the application, which was supported by affidavit evidence, invoked the inherent powers of the Supreme Court of Victoria.
[52]"Abuse of the Process of the Court: Handle With Care", (1990) 43 Current Legal Problems 77 at 83.
[53](1949) 78 CLR 62 at 91.
However, things were to change. The revised Rules of the Supreme Court introduced in England in 1962[54] permitted evidence on strike‑out applications and the phrase "an abuse of the process of the court" appeared in terms[55]. The result in England was described by Professor Jolowicz[56] as incorporating in the 1962 Rules the inherent jurisdiction and supplying two sources, express and inherent, from which the court drew power to bring the proceedings to an end in summary fashion.
[54]Rules of the Supreme Court (Revision) 1962.
[55]RSC, O 18 r 19(1)(d).
[56]"Abuse of the Process of the Court: Handle With Care", (1990) 43 Current Legal Problems 77 at 84‑85.
In New South Wales, as introduced in the Fourth Schedule to the 1970 Act, Pt 13 r 5 of the Supreme Court Rules ("the Rules") provided:
"(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –
(a)no reasonable cause of action is disclosed;
(b)the proceedings are frivolous or vexatious; or
(c)the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1)."
Part 13 r 5 remained unchanged and was in force at the time of the events giving rise to these appeals[57].
[57]No issue arises respecting changes to procedure in 2005 by the Uniform Civil Procedure Rules. However, Pt 13 r 13.4 of the new Rules does not appear to be materially different from its predecessor.
If the provenance of Pt 13 r 5 is kept in mind, it is apparent that it serves several purposes, not all of a piece. Rule 5(1)(a) may be traced to the provision made in England in 1883 after the departure of the demurrer. Paragraph (b) of r 5(1) may be seen as a species of the genus of abuse of process identified specifically for the first time in par (c).
A further and significant consideration is that, at the critical time for this litigation, there existed in the Supreme Court both the inherent jurisdiction or power to which reference has been made and the power under Pt 13 r 5 of the Rules to order a stay or dismissal of proceedings as an abuse of the process of the court, in each situation evidence being admissible on an application.
It is with the several fields of operation of Pt 13 r 5 itself and with the duality of available avenues with respect to the agitation of allegations of an abuse of process leading to stay or dismissal, and the attendant possibility of confusion at several levels, that attention should be given to what now follows in these reasons. The conduct of the applications giving rise to these appeals displayed an imperfect appreciation of these distinctions and coincident remedial avenues outlined above. This, in turn, was significant for the approach taken by the Court of Appeal in its reasons now under appeal.
The litigation
Interlocutory applications were brought by the present respondents, the Roads and Traffic Authority of New South Wales ("the RTA") and the Newcastle City Council ("the Council") (collectively "the defendants") seeking the summary dismissal or permanent stay of an action for damages which had been commenced in the Supreme Court against each of them for the appellant ("the plaintiff") by his tutor on 21 December 1994. The plaintiff requisitioned a jury trial. The action was brought upon a cause of action which accrued over 40 years ago on 21 August 1965 after a motor vehicle accident in which the plaintiff was severely injured allegedly due to the negligence of the defendants.
It was the plaintiff's pleaded case that, notwithstanding the lapse of 29 years since the accident, he was not barred from bringing his action by the Limitation Act 1969 (NSW) ("the Limitation Act"). This was because he was and has always been a "person under a disability" within the meaning of s 11(3) of that statute. The consequence was that s 52 had suspended the running of any limitation period under the Act subject to the ultimate bar of 30 years fixed by s 51(1).
The proceedings were at all times conducted in the Supreme Court on the basis that the Limitation Act was the relevant statute. At the time when the cause of action accrued the Limitation Act 1623 (Imp) remained in force[58] in New South Wales under the Australian Courts Act 1828 (Imp)[59]. Section 5 of the Limitation Act applied to the repeal of the 1623 Act the preservation of the accrued rights provision made in s 8 of the Interpretation Act 1897 (NSW)[60].
[58]The presently relevant provisions of the Limitation Act 1623 (Imp), 21 Jac I c 16, were repealed by s 4 and Sched 1 of the Limitation Act, which commenced on 1 January 1971.
[59]9 Geo IV c 83, s 24. See Waung v Subbotovsky (1969) 121 CLR 337.
[60]Now repealed by the Interpretation Act 1987 (NSW), s 82 and Sched 2, s 30 of which is to the same effect.
After the conclusion of oral argument in this Court written submissions were filed by the parties respecting the appropriate limitation period. The RTA and the Council now submit that the relationship between the 1623 statute and the Limitation Act was such that, so long as the plaintiff remains disabled, he may bring his claim at any time. It is unnecessary to pursue these matters to any conclusion. Whatever the limitation period, or lack of it, the plaintiff sued within time, and, as further explained in these reasons, an action commenced in time may attract the exercise of a power to stay it for abuse of process.
The applications by the RTA and the Council were for orders that the plaintiff's action be summarily dismissed or permanently stayed pursuant to the Rules as an abuse of process, or alternatively in what was identified as the inherent jurisdiction of the Supreme Court. Reduced to its essence, the presently relevant basis for these applications was that by reason of the effluxion of time since 1965, for the defendants a fair trial was not possible. That submission failed before the primary judge (Hoeben J)[61], but was successful in the Court of Appeal (Mason P, Giles and Bryson JJA). Hence the appeal by the plaintiff to this Court.
[61]Andrew Batistatos by his tutor Nita Lavinia Batis v Roads & Traffic Authority [2004] NSWSC 796.
The plaintiff's cause of action
The plaintiff was born on 11 April 1932 in Sydney and, following the death of his mother and the inability of his father and other relatives to care for him, spent much of his early childhood in the St Anthony's Home at Croydon. On 1 March 1938, the plaintiff was "scheduled" under the Lunacy Act 1898 (NSW) and committed to the Newcastle Mental Asylum. He was released on leave of absence on 30 July 1954, and ultimately discharged on 10 January 1956. From around the date of his release on leave of absence up to the date of the accident, the plaintiff was employed with the Department of Public Works in Newcastle as a cleaner.
On the evening of 20‑21 August 1965, while returning from a party the plaintiff was involved in an accident in Fullerton Street, Stockton. The plaintiff pleaded that the accident occurred when he "came upon an unmarked and unposted bend in the road in the vicinity of Meredith Street and its northern approaches", causing the motor vehicle he was driving to run off the road into a depressed ditch and overturn. He sustained spinal injuries, and was rendered quadriplegic.
The plaintiff's case as pleaded was that either the Commissioner for Main Roads (to whom the RTA is the statutory successor[62]) or the Council had the care, control and management of Fullerton Street and that either the RTA or the Council constructed, designed and maintained the bend in Fullerton Street which allegedly caused the accident. The particulars of negligence were broad-ranging, alleging negligence in design, construction or maintenance of the road, together with failure to provide adequate warning of the bend and permitting the road to be used whilst in an unsafe condition.
[62]Transport Administration Act 1988 (NSW), Sched 7, Pt 2, Div 5.
The lapse of time
Following the accident the plaintiff remained a patient at various hospitals and rehabilitation hospitals. In 1979 or shortly thereafter, the plaintiff was located by his brother, whom he had not seen since the date he was committed to the Newcastle Mental Asylum, and his sister, who had been placed in the care of a different orphanage. They made arrangements for him to come to Sydney in 1982 and ultimately, in 1983, the plaintiff came to live with his sister. She continues to provide his basic care. The plaintiff's present solicitor was instructed in or about December 1993, and commenced investigating the circumstances of the accident over the ensuing 12 months before filing the Statement of Claim on 21 December 1994.
Neither the RTA nor the Council sought to attribute blame for the lapse of time (to use a neutral expression instead of the legally connotative word "delay") between the accident and the filing of the Statement of Claim to the plaintiff or any person who cared for him. In so far as the defendants' applications for summary stay or dismissal of the proceedings relied upon the lapse of time, the gravamen of their submission (in a position to which both adhered in this Court) was that the objective consequence of the lapse of time was that a fair trial was no longer possible, and so constituted an abuse of process. The determination of the interlocutory applications proceeded on this basis.
It is useful to note the effects of the lapse of time relied upon by the defendants in support of the contention that a fair trial was no longer possible. In their written submissions before this Court, these related generally to the deterioration of the evidence and encompassed six broad grounds: (1) the inability to obtain any police records of investigations relating to the accident; (2) the inability to locate hospital or medical records concerning the plaintiff's treatment before 1980; (3) neither the Council nor the RTA had most of the documents relevant to the design and construction of Fullerton Street for the period from 1965 to 1980; (4) difficulty in identifying and locating any person who had active involvement in road maintenance work in and before 1965 who could give evidence of considerations affecting design and construction; (5) the inability to locate any record that could assist in proving the insurer on risk at the relevant time; and (6) the physical state of the road where the accident occurred had altered substantially due to a reconstruction of Fullerton Street carried out by the Council in or about 1985 eliminating the bend which the plaintiff had alleged caused the accident (such evidence as remains regarding the reconstruction not bearing on establishing the signage, vegetation, lighting or other relevant circumstances at the time of the accident). The first four grounds were considered in detail by Hoeben J, whereas the latter two (while raised before Hoeben J) assumed greater significance before the Court of Appeal.
There was a further lapse of time between the initial close of pleadings in 1996 and the determination of the interlocutory applications in 2000. However, the defendants did not rely upon delay in conducting proceedings after the issue of the Statement of Claim in December 1994 to support their applications.
The course of proceedings in the Supreme Court
In order to understand the way the proceedings developed, it is necessary to set out the defences filed by the RTA and the Council. In its Defence filed 9 May 1996, the Council pleaded contributory negligence and that the plaintiff's cause of action was not maintainable by reason of non‑compliance with s 580(6) of the Local Government Act 1919 (NSW) ("the LGA"), which was in force at the time of the accident[63]. This provided a distinct statutory bar to the commencement of proceedings against councils. In its Defence filed 9 October 1997, the RTA pleaded contributory negligence and that the plaintiff's cause of action was not maintainable by reason of the general six year limitation provision in s 14(1) of the Limitation Act[64].
[63]Section 580(6) was later repealed by the Notice of Action and Other Privileges Abolition Act 1977 (NSW).
[64]Although the RTA filed an Amended Notice of Grounds of Defence dated 11 April 2001, the additional ground is not relevant to this appeal.
Following the close of pleadings, the Council and the RTA each moved for an order that the proceedings be dismissed or permanently stayed under Pt 13 r 5 of the Rules, which has been set out earlier in these reasons. Alternatively, the defendants sought orders striking out the plaintiff's pleading pursuant to Pt 15 r 26 of the Rules, which was in similar terms, but confined in its terms to the striking out of pleadings. In what follows, attention is directed to Pt 13 r 5.
The motions came before Master Harrison on 2 June 2000[65], but the Master stood over the motions to be heard by a judge in so far as they relied upon the inherent power of the Court[66]. This course was adopted because Pt 60 r 1A of the Rules does not extend to permit the Master to exercise the inherent jurisdiction of the Court. It does not appear from the reasons given by the Master why the motions were thought to rely upon the inherent jurisdiction as distinct from merely the relevant provisions of the Rules.
[65]Batistatos v Roads and Traffic Authority of NSW [2000] NSWSC 506.
[66][2000] NSWSC 506 at [1].
Be that as it may, the Master dealt only with the Council's claim relating to the application under Pt 13 r 5 of the Rules that the plaintiff's proceedings be summarily dismissed as against the Council for non‑compliance with s 580(6) of the LGA. The Master declined to dismiss the proceedings summarily on this basis[67]. An appeal from the Master's decision on this point was dismissed by Bergin J. The balance of the motions were adjourned by Bergin J to permit the plaintiff's legal representatives to make further specified inquiries directed to locating further evidence.
[67][2000] NSWSC 506 at [22].
Following another lengthy delay, the motions came before Hoeben J on 25 August 2004. His Honour had before him all the evidence which had been before Bergin J, together with further affidavits resulting from the plaintiff's solicitor's inquiries in the interregnum. The evidentiary material was the subject of a detailed summary by Bryson JA in the Court of Appeal[68], and it is unnecessary for the resolution of this appeal to repeat it.
[68](2005) 43 MVR 381 at 385‑389.
In his reasons, Hoeben J identified, under the heading "Absence of triable issue", the first submission of the defendants. This was that the claim by the plaintiff "was so obviously untenable that it could not succeed"[69]. The submission was framed in terms which appeared to state as a principle remarks made by Barwick CJ in a passage in General Steel Industries Inc v Commissioner for Railways (NSW)[70]. Barwick CJ pointed out that, on the one hand, great care was to be exercised to ensure that a plaintiff was not improperly deprived of the opportunity for the trial of the case "under the guise of achieving expeditious finality", and, on the other, the summary intervention of the court was not reserved for cases where "argument is unnecessary to evoke the futility of the plaintiff's claim". His Honour then immediately continued[71]:
"Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
[69][2004] NSWSC 796 at [14].
[70](1964) 112 CLR 125 at 130.
[71](1964) 112 CLR 125 at 130.
The conclusion in General Steel was that Barwick CJ was satisfied that the statement of claim did not disclose a reasonable cause of action so that this Court was authorised by O 26 r 18 of the then High Court Rules to strike out that pleading[72]. To reach that conclusion, extensive argument was considered respecting the construction and application of the Crown use provisions of the Patents Act 1952 (Cth).
[72](1964) 112 CLR 125 at 137.
The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde[73], Gaudron, McHugh, Gummow and Hayne JJ observed:
"It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[74], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
[73](2000) 201 CLR 552 at 575‑576 [57].
[74]Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ.
Hoeben J referred to affidavit evidence provided for the plaintiff by three deponents who said they were familiar with Fullerton Street as it was in 1965 and that they would give evidence as to its configuration, the height and location of grass, control measures provided by the Council, maintenance provided by the Council, and lighting provided in the vicinity of the accident site. Hoeben J concluded that the plaintiff had discharged "any evidentiary onus which he bears to indicate that there is evidence available which could, if accepted, establish his case"[75]. The upshot was that his Honour rejected the submission by the defendants that the plaintiff's claim was so obviously untenable that it could not possibly succeed or was "so manifestly faulty that it does not admit of argument"[76]. The latter phrase also appeared in the judgment of Barwick CJ in General Steel[77].
[75][2004] NSWSC 796 at [21].
[76][2004] NSWSC 796 at [26].
[77](1964) 112 CLR 125 at 129.
Hoeben J then went on under the heading "Prejudice" to deal with the further submission by the defendants that the effluxion of time was such that a fair trial for the defendants was not possible. His Honour treated this submission as founded upon the ground of abuse of process appearing both in Pt 13 r 5 and as an element in the inherent jurisdiction of the Supreme Court. Hoeben J concluded that the defendants, who bore the onus, had failed to satisfy him that they could not have a fair trial in the circumstances of the case and he dismissed the defendants' motions that the proceedings be permanently stayed or dismissed.
The Court of Appeal
The course taken in the submissions to Hoeben J helps explain the path taken in the judgment of Bryson JA in the Court of Appeal. In truth, the absence of a triable issue, as well as the impossibility of the defendants obtaining a fair trial in the circumstances of the case, may be seen as instances of abuse of process and that term is not applicable solely to the latter situation. It will be recalled that, in the passages set out earlier in these reasons from the judgments of Gaudron J in Ridgeway v The Queen[78] and McHugh J in Rogers v The Queen[79], the jurisdiction was described in terms sufficiently ample to encompass both situations.
[78](1995) 184 CLR 19 at 74‑75.
[79](1994) 181 CLR 251 at 286.
The leading judgment in the Court of Appeal was delivered by Bryson JA. His Honour treated as the same in substance the complaints made by the defendants that the proceedings were an abuse of process and that they were irretrievably prejudiced by reason of the delay in the bringing of the proceedings; he treated the remaining complaint as distinct and as depending upon Pt 13 r 5, it would seem, as the only possible basis of power. This complaint was that the defendants were highway authorities at the relevant time and that there was no evidence relating to the circumstances and causation of the accident and injury sustained by the plaintiff.
To that complaint, Bryson JA treated as applicable the reasoning in General Steel[80]. His Honour said that the "test" was to the effect that the defendants had to demonstrate "that the case is so clearly untenable that it cannot possibly succeed"[81]. His Honour then treated the task of the defendants as being to show by evidence that the plaintiff was not in a position to call any evidence raising any question for determination at trial of the pleaded allegations.
[80](1964) 112 CLR 125 at 128‑130.
[81](2005) 43 MVR 381 at 385.
Bryson JA did not accept the conclusion of Hoeben J that the affidavit evidence relied upon by the plaintiff indicated clear recollections by the deponents. However, Bryson JA went on to disagree with an assumption by the primary judge that the plaintiff had no recollection of how the accident occurred. There was nothing in the nature of an admission by the plaintiff that he had no recollection of what happened; even though there was no basis upon which it could be found that the plaintiff was able to do so, it might well be that the plaintiff was in a position to give some evidence about the events. The defendants in their strike‑out application had not met "the standard of certitude" required for them to succeed, with the result that the conclusion reached by Hoeben J on the summary disposal application "under Pt 13 r 5" was correct[82].
[82](2005) 43 MVR 381 at 394.
His Honour then turned to consider, as a distinct matter, the exercise of the inherent jurisdiction to stay proceedings by reason of the great delay in the commencement of the action. Bryson JA referred to the statement by Dixon J in Cox v Journeaux [No 2][83]:
"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."
[83](1935) 52 CLR 713 at 720.
His Honour discountenanced any approach which saw the absence of a statutory time bar as in some sense an authorisation to bring proceedings at the particular time within the statutory period when they were instituted. His Honour, correctly, emphasised that statutory time bars speak to the consequence of the passage of time, regardless of other considerations. He said[84]:
"Delay is not what the [Limitation Act] 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 2 years or 3 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 3 decades passed before the proceedings were commenced, and 4 decades will have passed before the proceedings ever go to trial. The [Limitation Act] 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."
[84](2005) 43 MVR 381 at 405‑406.
The critical holding by Bryson JA appears in the sentence[85]:
"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."
Bryson JA also stated[86]:
"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."
[85](2005) 43 MVR 381 at 406.
[86](2005) 43 MVR 381 at 405.
In his concurring reasons, Giles JA dealt as follows with the two strands in the defendants' applications for a permanent stay. His Honour dealt with the first strand saying[87]:
"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."
[87](2005) 43 MVR 381 at 382.
With respect to the other strand, his Honour observed that whether the defendants could have a fair trial necessarily required consideration of the negligence alleged against them. The negligence was alleged in broad terms and the more generously the terms of the pleading of the plaintiff's case, the more difficult it was for the defendants to meet the allegations after so long a time. His Honour continued[88]:
"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 deficiences 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."
The third member of the Court of Appeal, Mason P, agreed with both judgments.
[88](2005) 43 MVR 381 at 381‑382.
The appeals to this Court
There is no issue by way of cross‑appeal or notice of contention by the defendants in respect of the treatment by the Court of Appeal of the failure of the defendants to establish that the cause of action was "untenable". The focus of the appeal is upon the other strand in the reasoning in the Court of Appeal.
Here the ground taken by the plaintiff is one which, if accepted, would have denied, in the circumstances, the existence of the power to order the permanent stay. The plaintiff accepts that his case in the Court of Appeal would have failed if there had been misconduct shown on his part which caused the inability of the defendants to have a fair trial. But, the plaintiff submits, in the absence of such a showing of misconduct, there was no power to make the order complained of by the plaintiff.
It is in this respect that the plaintiff relies particularly upon Birkett v James[89], a decision of the House of Lords which has been accorded significant standing in several Australian intermediate courts of appeal[90].
[89][1978] AC 297.
[90]De Nier v Beicht [1982] VR 331; Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493.
Counsel for the plaintiff developed the submission by placing particular emphasis upon the operation of s 52 of the Limitation Act. This had suspended the running of the limitation period for the duration of the disability suffered by the plaintiff. Reference was made to a number of English authorities[91]. These were said to demonstrate that where there is a statutory limitation period any exercise of power to stay proceedings commenced within that period must be exceptional and could not be supported merely by prejudice which might be expected to flow from the effluxion of time within the limitation period. The plaintiff submitted that some element of "oppressive" conduct on the part of the plaintiff must be discernible before the court would exercise the power to order a permanent stay. The "oppression" lay in conduct which was burdensome, harsh, wrongful.
[91]Tolley v Morris [1979] 1 WLR 592; [1979] 2 All ER 561; Hogg v Hamilton and Northumberland Health Authority [1993] 4 Med LR 369; Bull v Devon Area Health Authority [1993] 4 Med LR 117; Headford v Bristol and District Health Authority [1995] 6 Med LR 1.
Conclusions on the appeals
There is no substance in the negative implication which the plaintiff seeks to draw from an unexpired statutory limitation period. As Bryson JA pointed out, periods of statutory limitation operate indifferently to the existence of what might be classified as delay on the part of a plaintiff. Section 63 of the Limitation Act provides for the extinction of causes of action "to recover any debt damages or other money". But s 68A requires a party claiming the benefit of extinction to plead that extinguishment. To say that a limitation period has not run is to say that the potential defendant, if now sued, has no accrued defence to the action.
In that setting it is unsatisfactory to speak of a common law "right" which may be exercised within the applicable statutory limitation period, and of the enacting legislature as having "manifested its intention that a plaintiff should have a legal right to commence proceeding with his action". The words are those of Lord Diplock in Birkett v James[92]. The difficulty is in the expression "a legal right". The plaintiff certainly has a "right" to institute a proceeding. But the defendant also has "rights". One is to plead in defence an available limitation defence. Another distinct "right" is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.
[92][1978] AC 297 at 320.
It is a long, and impermissible, step to deny the existence of what may be the countervailing right of a defendant by imputation to the legislature of an intent, not manifested in the statutory text, to require the court to give absolute priority to the exercise by the plaintiff within the limitation period of the right to initiate proceedings. The truth is that limitation periods operate by reference to temporal limits which are indifferent to the presence or absence of lapses of time which may merit the term "delay".
The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.
Birkett v James concerned a second action commenced in anticipation that a strike‑out motion, for want of prosecution, would dispose of the first action. Lord Diplock said that in such a situation[93]:
"[E]xceptional cases apart, where all that the plaintiff has done has been to let the previous action go to sleep, the court in my opinion would have no power to prevent him starting a fresh action within the limitation period and proceeding with it with all proper diligence notwithstanding that his previous action had been dismissed for want of prosecution".
[93][1978] AC 297 at 320‑321.
What those "exceptional cases" might include was not explored beyond the possible example given by Lord Diplock of Spring Grove Services Ltd v Deane[94], but it is apparent from other passages[95] that "contumelious disregard" by a plaintiff in observance of the more important steps in the preparation of the action for trial could enliven the exercise of the inherent power of the court. Such default was not relied on in Birkett v James[96] itself. However, it is upon this footing that the present plaintiff points to a requirement of "oppressive conduct", to its conceded absence in this case, and to consequent error in principle by the Court of Appeal.
[94](1972) 116 Sol Jo 844. In that case the plaintiff's action had been dismissed for want of prosecution within the limitation period. When the same writ was filed two years later, the Court struck it out as an abuse of process, the plaintiff's solicitor having previously told the defendant the action was abandoned, so resulting in the defendant falling out of touch with a principal witness.
[95][1978] AC 297 at 318.
[96][1978] AC 297 at 318.
The decisions in England since Birkett v James were analysed recently and in detail by the New Zealand Court of Appeal in Bank of New Zealand v Savril Contractors Ltd[97]. It is unnecessary to repeat what is there said, beyond making one point. This is that, as exemplified by the decision of the English Court of Appeal in Securum Finance Ltd v Ashton[98], the new Civil Procedure Rules have been taken in England as giving a wider scope for the use of principles of abuse of process in dealing with dilatory plaintiffs. It has been suggested that the significance of Birkett v James has been "overtaken" by the strictures of the new procedural code[99].
[97][2005] 2 NZLR 475.
[98][2001] Ch 291.
[99]Andrews, "Slow Progress in Striking Out Dilatory Litigants: 'No Second Bite at the Cherry'", [2001] Cambridge Law Journal 56 at 58.
The descriptions, rather than definitions, given in this Court and set out earlier in these reasons post‑date Birkett v James and do not provide any ground for a requirement of oppressive conduct by the plaintiff. Rather, as in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants.
What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay[100], with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there was no "requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff"; what was decisive was the objective effect of the continuation of the action.
[100](1988) 165 CLR 197 at 247. See also the judgment of Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555.
In assessing that effect, there must be taken into account the consideration expressed by Dixon J in Cox v Journeaux [No 2][101] and set out earlier in these reasons. Bryson JA in terms did so. He went on to remark in that connection that the defendants had not shown that the plaintiff's action was "clearly without foundation". But, he concluded that there was "in practical terms nothing of utility to place in the balance against the defendants' claim for a permanent stay"[102].
[101](1935) 52 CLR 713 at 720.
[102](2005) 43 MVR 381 at 405.
There was no error of principle in the decision of the Court of Appeal.
Orders
The appeals should be dismissed with costs.
KIRBY J. Mr Andrew Batistatos ("the appellant") has suffered serious mental retardation from birth and gross disadvantages in life. He was catastrophically injured in a motor accident which left him paralysed by quadriplegia. After the accident, he lived for 14 years, confined and friendless, in a hospital and later a nursing home, until his siblings (from whom he had been separated as an infant) sought him out.
Eventually, his sister arranged for him to retain a legal practitioner. Subsequently, having been appointed the appellant's tutor, she commenced proceedings for negligence on his behalf against two public authorities that, it was claimed, had caused his accident. The proceedings were brought within 30 years, the ultimate ("long stop") time limit fixed by the statute of limitations accepted by all parties below to be applicable to the case[103].
[103]Limitation Act 1969 (NSW), s 51(1).
These appeals to this Court concern the law of limitations in New South Wales[104]. But chiefly they relate to the power of the Supreme Court of that State to provide a permanent stay of the appellant's proceedings as an abuse of process. The respondents sought such relief on the basis that the appellant's delay in bringing the proceedings would occasion an unfair trial.
[104]Specifically the Limitation Act 1969 (NSW), ss 14, 51 and 52.
Reversing orders of the primary judge (Hoeben J)[105], the New South Wales Court of Appeal[106] permanently stayed the appellant's proceedings. Although mentally disabled before injury, profoundly injured by the accident, within the time limit to bring his case and found to have a "not untenable" cause of action, the appellant is thus denied access to the courts to decide his proceedings as they would normally be decided: after a trial on the evidence and based on the relevant law. By special leave, the appellant appeals to this Court to restore the orders of the primary judge so that he can proceed to trial.
[105]Batistatos v Roads & Traffic Authority [2004] NSWSC 796.
[106]Newcastle City Council v Batistatos (2005) 43 MVR 381.
In Holt v Wynter[107], Priestley JA observed that "different judges have somewhat different ideas" upon the matters debated in these appeals. However, the outcome now reached by the majority appears so counter-intuitive as to demand the closest scrutiny of the arguments that succeed.
[107](2000) 49 NSWLR 128 at 142 [79].
The majority conclusion involves error of law. It gives inadequate weight to the right of access to the courts and to the parliamentary law that considered, and provided for, a long stop limitation bar in the case of persons whose delay in commencing proceedings is excused by their mental disability. The judgment of the primary judge should be restored. A trial should be had. No sufficient reason of fact or law supports the contrary, exceptional, conclusion.
The facts
Long delayed proceedings: The background to this case is found in the reasons of Gleeson CJ, Gummow, Hayne and Crennan JJ ("the joint reasons")[108]. Mr Andrew Batistatos was born in April 1932. He was effectively orphaned soon afterwards. From birth, he suffered from mental disability – so much so that he was scheduled under the Lunacy Act 1898 (NSW).
[108]Joint reasons at [27]-[31].
Until the age of 22, the appellant spent most of his life confined to a mental asylum. Tests disclosed an IQ of 69 points. This is ranked as mental retardation. He had little formal education. Dr Gordon Kerridge reported that he "suffered from a significant mental disability which had substantially impeded him in the management of his affairs".
The appellant's disabilities were compounded when, in the subject motor accident on 21 August 1965, he suffered a fracture of the spine at the C7/T1 level, causing quadriplegia. Dr Keith Mayne concluded that he was "unable to manage his own affairs, and although he can perform simple calculations and understands the nature of money, he is unable to read, to write cheques or to conduct business of any complexity". Self-evidently, such a person, and particularly after such an injury, was seriously impeded in bringing an action to court to protect his legal rights. In practical terms, the appellant was dependent upon others to do that for him.
The appellant's injuries occurred when he was driving his vehicle in Fullerton Street, Stockton, near Newcastle. At the relevant time, Fullerton Street followed an "S" curvature. This was shown in an aerial photograph tendered in evidence. It had been taken 36 days after the accident. As ultimately pleaded, the appellant's claim was that his vehicle ran off the road at night into a ditch and overturned. The pleading blamed the accident, and the consequent injuries and losses, on the fact that the appellant's vehicle had come "upon an unmarked and unposted bend in the road in the vicinity of Meredith Street".
After the accident, Fullerton Street was reconstructed so as to travel through the former Stockton Soccer Club field. This reduced the curvature of the previous design[109]. Arguably, this alteration decreased the risk to a motorist such as the appellant. According to the evidence, before the reconstruction, Fullerton Street was known as a "black spot"[110]. The appellant argues that it was so dangerous as to suggest that the respondents, or one of them, were negligent, among other things, in allowing it to be and remain that way.
[109]Batistatos v Roads & Traffic Authority of NSW [2001] NSWSC 237 at [65]-[66].
[110][2004] NSWSC 796 at [6].
The appellant has spent his life since the accident in a wheelchair. He spent the ensuing 14 years in a hospital and later a nursing home. It was at that point that he met his brother and sister again. The appellant's legal practitioner was instructed in 1993. Within the year following, he brought the present proceedings. As was his right, the plaintiff requested a trial by jury.
Defences and summary relief: The defendants named by the appellant (now the respondents) were the Roads and Traffic Authority of New South Wales ("the RTA"), as successor to the former Commissioner for Main Roads and the Newcastle City Council ("the Council"). The appellant alleges that the respondents had the care, control and management of Fullerton Street and were responsible for the design, construction and maintenance of the road at the point at which the accident occurred. However, the respondents applied for the summary dismissal, or a permanent stay, of the proceedings. Their applications were made both under the Rules of the Supreme Court, providing for such relief[111], and under the "inherent" jurisdiction of the Supreme Court, operating to similar effect.
[111]Supreme Court Rules (NSW), Pt 13 r 5.
The basis for the respondents' claims was not the descent of a limitation bar and extinguishment of the appellant's cause of action, as is often the case where a great delay has followed an occurrence, allegedly tortious. Nor was this a case where, to commence and maintain his proceedings, the appellant needed to obtain an extension of time under the limitation statute to bring the action outside the applicable limitation period[112]. Instead, making common cause, the respondents sought summary relief on the basis that the appellant's proceedings were legally and factually untenable or that, because of the objectively lengthy lapse of time, a fair trial of the action was no longer possible thereby rendering the proceedings an abuse of the process of the Supreme Court.
[112]Cf Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234.
In so far as the relief was sought by the respondents on the basis that the action was "clearly without foundation", the primary judge in the Supreme Court rejected that claim. He did so based on the Supreme Court Rules[113]. The Court of Appeal accepted that, in this respect, the primary judge's conclusion was correct, in outcome if not in all of the reasoning[114]. In this Court, both of the respondents accepted that the appellant's case had not been shown to be "untenable"[115]. Accordingly, that issue is not before this Court. No cross-appeal, nor any notice of contention, raising that issue, or contesting the proceedings on any other basis, was filed by either of the respondents.
[113][2004] NSWSC 796 at [49].
[114](2005) 43 MVR 381 at 394 [48].
[115]Cf joint reasons at [58].
Instead, invoking the "inherent" jurisdiction of the Supreme Court, to provide relief against the proceedings, the respondents sought a permanent stay. It was that relief that the primary judge refused and the Court of Appeal granted. The ultimate issue in these appeals is, thus, whether the appellant has demonstrated error in the Court of Appeal's approach to the exercise of its jurisdiction and powers, allowing the reinstatement of the primary judge's orders or other relief.
Evidentiary deficiencies and repair: As appears in the joint reasons[116], the respondents relied heavily on the suggested imperfections in the evidence available to them, with which to defend themselves against the appellant's claims. Specifically, the respondents relied on the difficulties presented by what they claimed was the unavailability of (1) reports of police investigations of the accident; (2) hospital or medical records relating to treatment of the appellant before 1980; (3) documents relevant to the design, maintenance and construction of Fullerton Street before 1980; (4) identification of witnesses involved in road design, construction and maintenance in the street prior to the accident; (5) proof of the insurer(s) on risk at the applicable time; and (6) evidence as to the physical state of the road when the accident occurred, having regard to the post-accident reconstruction which eliminated the bend and other features on the road of which the appellant complained.
[116]Joint reasons at [37].
The decisions at first instance
The initial hearings: Before the respondents' proceedings for summary relief were heard by Hoeben J, there had been two earlier hearings in the Supreme Court. The first, before Master Harrison, was eventually confined to an application for summary relief based on the appellant's failure, before action, to give a notice of intended action, as then provided for in s 580 of the Local Government Act 1919 (NSW). The Master declined to dismiss the proceedings summarily on that basis[117]. Her refusal was affirmed by Bergin J, in an appeal from her orders[118]. That issue has not been pressed in this Court. It can be disregarded.
[117][2000] NSWSC 506 at [1].
[118][2001] NSWSC 237 at [39].
In the balance of her reasons, Bergin J turned to an alternative claim for relief advanced by the respondents. This invoked the Supreme Court Rules and the "inherent" powers of the Supreme Court to terminate or stay the appellant's proceedings permanently[119]. Bergin J's consideration of the arguments of the parties on those issues was well advanced when the appellant's legal practitioner made a late application for an adjournment. This application was granted to permit further investigations following a grant of legal aid for the proceedings[120]. With the consent of all parties, the resumed proceedings came before Hoeben J[121].
[119][2001] NSWSC 237 at [41].
[120][2001] NSWSC 237 at [71].
[121][2004] NSWSC 796 [13].
The intervening decision in Brodie: Two consequences followed this interruption. The first was a development in the law which, as Hoeben J recognised, made one aspect of the respondents' resistance to the appellant's proceedings more difficult for them. This was the decision of this Court in Brodie v Singleton Shire Council[122]. That decision overruled previous understandings of the common law. The former "highway immunity rule"[123] had limited the liability for negligence of highway authorities, such as the respondents, to positive acts of misfeasance. It relieved them of liability for relevant nonfeasance.
[122](2001) 206 CLR 512.
[123]See Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at 375-376.
Accordingly, if the appellant could prove that both or either of the respondents were responsible for the design, construction or maintenance of Fullerton Street (such that, for example, they ought to have eliminated the bend in that street and the "black spot" said to have caused or contributed to the appellant's accident before he was injured and not after), the appellant would begin building his case. Certainly, Brodie would make the appellant's task easier. The ruling (being with respect to common law doctrine) would apply retrospectively to the time when the appellant was injured in August 1965[124].
[124]Ha v New South Wales (1997) 189 CLR 465 at 503-504.
The reasoning of the primary judge: Also important for Hoeben J's conclusion was the use that the appellant's solicitor had made of the adjournment. During that interval, he had gathered evidence from three witnesses, namely Messrs Lanham, Wynne and Alston[125]. Affidavits from these witnesses were received by Hoeben J. Each of them deposed that he was "familiar with Fullerton Road, as it was in 1965, and would be able to give evidence as to its configuration, the location and height of grass, control measures provided by the Council, maintenance provided by the Council, and lighting provided in the vicinity of the accident site"[126].
[125][2004] NSWSC 796 at [19].
[126][2004] NSWSC 796 at [19].
As recorded by Hoeben J[127], Mr Alston "actually saw the [appellant's] vehicle in position off the road not long after the accident". "[A]lthough the [appellant's] vehicle had been removed by the time [Mr Wynne] went to the accident site, he observed marks on the road and off the road at the accident site"[128]. The witnesses could give evidence about these facts.
[127][2004] NSWSC 796 at [20].
[128][2004] NSWSC 796 at [20].
By reference to this evidence, to the aerial photograph of the road taken within days of the accident, to survey plans of the road dating from 1984/1985 and to internal Council documents concerning complaints about the road and photographs of parts of the road to which those complaints related[129], Hoeben J concluded that relevant evidence would be available at a trial of the appellant's claim. It would describe the condition of the road at the time of his accident and relate that condition to subsequent objective evidence about the road after its trajectory was changed.
[129][2004] NSWSC 796 at [23]-[25].
In his reasons, Hoeben J contrasted the success of those representing the appellant in locating the three persons mentioned and the alleged inability of the respondents to find any evidence at all. He pointed out that Mr Lanham had, for many years, been an alderman of the respondent Council. The three newly found witnesses had "detailed recollection of the road and of events which had happened in relation to the road at the relevant time"[130]. As Hoeben J explained[131]:
"There was no suggestion that these witnesses were partisan or that their evidence would necessarily favour the [appellant]. These witnesses now having been identified could be interviewed by the [respondents] and through them it may well be possible to locate other persons with knowledge of the road and of the accident."
[130][2004] NSWSC 796 at [40].
[131][2004] NSWSC 796 at [40].
The conclusions of the primary judge: There is no doubt that the interval between the appellant's accident and the commencement of his proceedings was significant. It imposed burdens and disadvantages on both sides. So much was not denied by the appellant. However, he disputed that the delay was such as to prevent a fair trial being had or even attempted. He also asked why his legal representative had been able to turn up relevant evidence but the respondents, by inference, with much larger resources, had failed to pursue lines of enquiry that were obvious, might have been fruitful and could still be explored[132].
[132][2004] NSWSC 796 at [36]-[37] referring to the earlier reasons of Bergin J at [2001] NSWSC 237 at [38], [39], [40], [45].
By reference to such evidentiary material, Hoeben J concluded[133]:
"I am not satisfied that the [respondents] 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.
...
Of particular importance is the aerial photograph taken thirty six days after the accident which shows the road and surrounding features and houses with considerable clarity. There is no evidence before me that there was any significant change to the road between 1965 and the early 1980s when the survey plans were prepared and when the photograph attached to Mr Garner's report were taken."
[133][2004] NSWSC 796 at [45]-[46].
The reasons of the Court of Appeal
Finding the action not untenable: The respondents appealed to the Court of Appeal. In that Court, Mason P agreed in the reasons of Bryson JA and also with additional remarks of Giles JA[134]. In those remarks, Giles JA, who likewise agreed with Bryson JA, noted the broad terms in which the appellant's case had been pleaded and particularised and the failure of the appellant himself to give evidence in the applications for summary relief. Nevertheless, as Giles JA recognised, the appellant's case was basically about the "design, construction, maintenance or state of the roadway"[135]. He observed, correctly, that any trial would depend significantly upon expert testimony[136].
[134](2005) 43 MVR 381 at 381 [1].
[135](2005) 43 MVR 381 at 382 [3].
[136](2005) 43 MVR 381 at 381-382 [3].
Inferentially, expert evidence about the standards of road design, construction and maintenance at the time of the appellant's injury in August 1965, would be available. It would be derived from contemporary texts and from the evidence of engineers having the necessary recollection, knowledge or training. Armed with the contemporaneous aerial photograph and with detailed lay evidence of the kind gathered by the appellant's legal representative, the prospects of a fair trial, involving contesting experts, seemed within reach. The essential reason that led Giles JA to his conclusion, adverse to the appellant, was[137]:
"While the [respondents] did not establish that the [appellant's] case was untenable, nor did the [appellant] 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."
[137](2005) 43 MVR 381 at 382 [4].
Except by cross-reference to the reasons of Bryson JA, neither Mason P nor Giles JA gave explicit weight to the appellant's ordinary entitlement to approach the court for a determination, in a full trial, of a serious action at law. This was so despite the significance of such a trial for the appellant and his carers and his desire to present his case for decision on the basis of full evidence and argument.
Nor did any member of the Court of Appeal give explicit weight to the significance of the fact that the appellant, in his disabled condition, was bringing his claim within the time fixed by Parliament before his cause of action was extinguished by the long stop bar provided by law. Nor did any of their Honours refer, or give weight to, the entitlement of the respondents or either of them, at or after the close of the appellant's case at trial, to submit that the appellant's proceedings should be dismissed at that stage, on the basis that there was no case to answer[138].
[138]Supreme Court Rules (NSW), Pt 34 r 8. See also Pt 34 r 7; cf Uniform Civil Procedure Rules (NSW), Pt 29 rr 9-10.
In recent times, pressures, unreasonable ones in my view, have been placed upon advocates, effectively to decide in advance of a hearing, whether there is a good cause of action, or a defence. Indeed in New South Wales, s 345 of the Legal Profession Act 2004 (NSW) relevantly provides:
"Law practice not to act unless there are reasonable prospects of success
(1)A law practice[243] must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate[244] responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success."
The section then goes on to define the critical expressions found in sub-sec (1):
"(2)A fact is provable only if the associate reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.
(3)This Division applies despite any obligation that a law practice or a legal practitioner associate of the practice may have to act in accordance with the instructions or wishes of the client.
(4)A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim."
[243]"Law practice" is defined in s 4(1) of the Legal Profession Act as:
"(a)an Australian legal practitioner who is a sole practitioner, or
(b)a law firm, or
(c)a multi-disciplinary partnership, or
(d)an incorporated legal practice, or
(e)a complying community legal centre."
[244]Under s 7(2)(a) of the Act, a "legal practitioner associate" is an "associate" of a law practice who is an Australian legal practitioner. "Associate" is given an extensive definition in s 7(1) and includes, inter alia, a sole practitioner, a partner in a "law practice" and an employee of a "law practice".
Section 347 is also relevant. It provides:
"Restrictions on commencing proceedings without reasonable prospects of success
(1)The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.
(2)A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
(3)Court documentation on a claim or defence of a claim for damages is not to be accepted for lodgment unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification."
The breadth of these requirements is excessive, especially s 345(4) which requires, among other things, the taking of an effectively final view of the current law. Advocates are advocates, and judges are judges. The respective roles and obligations are not to be confused, particularly in an adversarial system. The New South Wales provisions go much further than the opinion of Lord Esher MR that I have quoted as to the nature of the obligation at common law.
In Queensland the Uniform Civil ProcedureRules now allow judges, indeed encourage them to be much more robust in striking out worthless actions and defences[245]. Even this has its dangers but it does offer a somewhat better way to proceed in relation to causes that are not legally sustainable, or are genuinely abusive. It is a way that maintains the distinction between advocate and judge.
[245]"171 Striking out pleadings
(1)This rule applies if a pleading or part of a pleading –
(a)discloses no reasonable cause of action or defence; or
(b) has a tendency to prejudice or delay the fair trial of the proceeding; or
(c)is unnecessary or scandalous; or
(d)is frivolous or vexatious; or
(e)is otherwise an abuse of the process of the court.
(2)The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
(3)On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading."
The truth is that in recent times, the courts, especially this Court have not always altered the law only incrementally. On the strict application of the New South Wales rule, were it in force and applicable in the relevant jurisdiction at the time, it is hardly likely that the causes of action or defences raised in Lange v Australian Broadcasting Corporation[246], Burnie Port Authority v General Jones Pty Ltd[247], and Brodie vSingletonShire Council[248] about which more will be said later, would ever have been pleaded or raised, and the cases decided as they were. It is certainly hard to imagine how, in the setting of 1982 when Mabo v Queensland[249] was commenced, the result for which the plaintiffs contended could have constituted a certifiable cause of action under the New South Wales rule. Until Brodie vSingletonShire Council, it is equally unimaginable that an advocate could have certified, as required by s 347(2), that there were reasonable grounds for believing, on the basis of provable facts and a reasonably arguable view of the law, that the claim in non-feasance by a highway authority had reasonable prospects of success. How could any advocate have certified, before the High Court said so in David Securities Pty Ltd v Commonwealth Bank of Australia[250] in 1992, that, contrary to hundreds of years of settled law, a mistake of law could give rise to a good cause of action in the same way as a mistake of fact? I took the view in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[251] that the time was ripe for the consideration at least of the recognition by the law of a cause of action for invasion of privacy. In view of the fact that my opinion was only a dissenting one[252], it is difficult to see how an advocate in New South Wales could seek to bring this matter before the courts now even though the law is moving in that direction in the United Kingdom[253]. There has however been a civil case in Queensland where damages were awarded for invasion of privacy[254].
[246](1997) 189 CLR 520.
[247](1994) 179 CLR 520.
[248](2001) 206 CLR 512.
[249]Mabo v Queensland [No 2] (1992) 175 CLR 1.
[250](1992) 175 CLR 353.
[251](2001) 208 CLR 199.
[252]But see (2001) 208 CLR 199 at 225-226 [40]-[42] per Gleeson CJ.
[253]The results may have been influenced by the European Convention on Human Rights, incorporated into the domestic law of the United Kingdom by the Human Rights Act 1998 (UK). See, for example, Douglas v Hello! Ltd [2001] QB 967; Douglas v Hello! Ltd (No 2) [2003] 1 All ER 1087; Douglas v Hello! Ltd (No 3) [2006] QB 125; HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch).
[254]Grosse v Purvis (2003) Aust Torts Reports ¶81-706. Other civil claims for invasion of privacy have been dismissed, see: Kalaba v Commonwealth [2004] FCA 763 and Giller v Procopets [2004] VSC 113.
The truth is that the common law has often owed its development to, and has benefited from, the adventurousness and ingenuity of counsel.
Statutes of limitation
Statutes of limitation give effect to societal and commercial ends of high importance. It is true of course that it is highly desirable that persons who have been wronged not be deprived of a remedy. It is also important however, that there come a time, fixed with certainty, after which the threat of litigation be removed, and the person against whom it is threatened be permitted to carry on life or business without that threat or fear. In general, people who have been wronged should be obliged, not only in the interests of those whom they would sue and, in most cases, themselves personally, but also of society itself, to bring and prosecute their actions with a reasonable degree of diligence. The consequences of delay are not only of impairment of the integrity of the trial itself, but also of obstruction to the orderly working of the courts. Not all people can however sue promptly. A number of these considerations are self-evidently competing ones. The statutes of limitations resolve these tensions in various ways: by specifying fixed periods for causes of action, by making special provision for persons under a disability, and, in modern times, by giving courts powers under fairly strict conditions to enlarge periods of limitation.
Even in the absence of relevant statutes of limitation, the law, equity in particular, has recognised that there comes a time when, in relation to some civil wrongs or derelictions of duty, the wrongdoer should no longer be vexed with the possibility or actuality of legal proceedings. I am referring to the elaborate rules of laches and acquiescence devised by equity to deny in some circumstances, equitable relief. But as the joint judgment in this case recognises, it has never been part of the law of Australia that the equitable defences to which I have referred are available[255] in common law cases.
[255]Joint reasons at [18] where the position in the United States of America is contrasted citing the discussion of "tolling doctrines" in Kuek v Victoria Legal Aid [1999] 2 VR 331 at 339-340 per Ormiston JA and of the equitable defences of laches and acquiescence in Teamsters & Employers Welfare Trust of Illinois v Gorman Bros Ready Mix 283 F 3d 877 at 881 (2002) per Judge Posner speaking for the Court.
When therefore a legislature has enacted an express and clear period of limitation, it is not for the courts to subvert it, or to seek to qualify it, by the introduction of words embodying the concept that the specified period might be shortened or lengthened, in the discretion of the court according to whether the court thinks that a period is too long or too short. As I said in Agar v Hyde[256]:
"Limitations statutes are enacted to put an end to uncertainty. They confer rights upon defendants and encourage the expeditious commencement of proceedings. Exceptions to enable time to be enlarged should not, in my opinion, be construed with any predisposition either way, that is, between strictness or liberality."
[256](2000) 201 CLR 552 at 601-602 [131].
Statutes of limitations seek to draw lines. Far too often, but sometimes with justification, courts are accused of blurring lines. In my view the line drawn at 30 years by the legislature here should be accepted and applied without qualification.
Nothing that I have said is affected by the New South Wales Supreme Court rule[257] quoted in the joint reasons which provides, among other things, that the Court may, in relation to any claim for relief in proceedings, stay it either generally, or in a particular respect, as an abuse of the process of the Court. Having regard to the fact that the legislature has enacted limitations periods, and that other parts of the same rule refer to an absence of a reasonable cause of action, and the frivolousness or vexatiousness of the proceedings, and not effluxion of time within the limitation period, as criteria for the grant of a stay, I am unable to regard the rule as intended to apply to the sort of abuse of process which is said to arise here, that is as a result of the effluxion of time before the expiration of the limitations period. Nor could I regard an inherent jurisdiction or power of the Court to prevent abuses of its process, as extending to what is contended to be abuse here.
[257]Pt 13 r 5 Supreme Court Rules.
Jurisdiction or power to stay
Some observations should be made about the function of appellate courts in reviewing decisions at first instance either to grant or not to grant a stay. As the joint reasons point out[258], in R v Carroll[259] (although a criminal case) Gaudron and Gummow JJ, said that the use of the words "discretion" in this field of discourse indicates no more than that, although there may be some clear categories, "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse". What may however be said with some confidence of discretionary exercises in this area, may be said in my opinion with equal force of discretionary exercises in other areas and generally. Appellate courts exercising their appellate powers under unqualified enactments as to those powers have tended to defer rather too much to the views and the discretionary judgment of the judge at first instance, in a somewhat similar way to the way that they have paid deference to the factual findings of trial judges at first instance[260]. Just as s 75A of the Supreme Court Act 1970 (NSW), the appeal provision, makes no distinction between appeals on factual and legal grounds, it says nothing about, and in no way suggests that appeals against discretionary decisions require different treatment from other appeals. It is easy to see why the decision of, for example, a trial judge who has heard all of the evidence in a criminal trial, should not have his or her discretionary sentence lightly overturned. To preside over a criminal trial undoubtedly gives to the trial judge insights as to the nature and gravity of the crime, and the criminality of the conduct of the convicted person, that an appellate court would rarely have. It is often overlooked that the remarks which are most often cited in Australia in appellate courts by those seeking to uphold a discretionary judgment were made in a criminal case and in relation to a sentence[261]. Too frequently there has been too ready a disposition on the part of appellate courts to adopt their Honours' statements in that case as if they were a canon applicable to all judgments, involving the exercise of discretion, particularly judgments in which the facts have been found, and in respect of which the discretion is to be exercised upon the basis of them, and not otherwise. In principle there is no reason why the views of a majority of appellate judges as to the exercise of the discretion in those, and perhaps other cases when judges are performing their unqualified appellate function, should not prevail over the discretionary view of a single judge. Judges need to be careful about erecting qualifications and barriers to their powers, whether out of expediency, judicial defensiveness, fear of the collapse of floodgates limiting the flow of appeals, or otherwise, if the relevant authorising statute makes no provision for them. By now, the courts of equity, which exercise many discretions, should long have shed any antipathy that they might have initially had to appeals against exercises of discretion stemming from the extraordinary nature of the unusual jurisdiction of the Court of Chancery founded on the prerogative, and exercisable by the King himself on advice from the Chancellor or others[262]. It is unnecessary to add to what I said in Fox v Percy about other appeals and with which an analogy can be drawn, including factual appeals in common law cases and to which I would adhere[263].
[258]Joint reasons at [7].
[259](2002) 213 CLR 635 at 657 [73].
[260]Fox v Percy (2003) 214 CLR 118 at 126-128 [25], [27]-[29] per Gleeson CJ, Gummow and Kirby JJ, 163-166 [142], [145]-[146], [148] per Callinan J.
[261]House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[262]Meagher, Heydon and Leeming, Meagher Gummow & Lehane's Equity: Doctrines and Remedies, 4th ed (2002) at 4 [1-020]; Spence, Equitable Jurisdiction of the Court of Chancery, (1846) vol 1 at 393-396.
[263]Fox v Percy (2003) 214 CLR 118 at 163-164 [142], [145].
It follows from what I have said that I do not doubt that there was a jurisdiction or power available to the Court of Appeal in this case to take a different view from the Master and Judges at first instance who declined to grant the stay sought. And equally of course this Court also has the power to take a different view on any discretionary issue from the Court of Appeal.
Disposition of the appeal
It is not suggested in this case that the unfortunate appellant has in any way been blameworthy, or that the delays which have occurred since the institution of his action should be laid at his door. The respondents' case is first, simply that objectively a fair trial is not possible: that as the years have passed their means of defending the action have, and again without any fault on their part, been lost. It is for these reasons, and one other to which I will refer, that they say that the continuation of the case would represent an abuse of process. The other reason that they advance is, effectively, that the appellant's prospects of succeeding are ultimately hopeless anyway, and satisfy the stiff test stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW)[264], and almost invariably applied in this country.
[264](1964) 112 CLR 125 at 129-130.
It is with the latter that I will deal first. There is no doubt that there are many hurdles for this appellant to surmount in order to succeed in a trial. It is unnecessary to deal with the legal difficulties that may confront him with respect to the selection of the correct statute of limitations applicable to his case as the proceedings in the Supreme Court were all conducted on the basis that the Limitation Act 1969 (NSW) was the relevant statute, and because both respondents accepted for the purpose of these appeals that the appellant had a reasonably arguable case, that the long stop provision of 30 years under s 51(1) of the Limitation Act was the applicable provision[265].
[265]See joint reasons at [29]. Subsequently the respondents filed written submissions resiling from this proposition. Without finally concluding against them on this issue, I am inclined to prefer the view of Kirby J that 30 years is the relevant period. I do not consider that this Court should decide differently before the case has been tried.
The facts in this case are admittedly sparse. Any trial that may take place would be an imperfect one factually. But this must be so in many cases brought long after the event by persons under a disability. There are some records that are just as likely to have been destroyed after seven years as after 29 years. So too, there may be cases in which relatively recent recall, of say five years, may be no better than recall after many years, of events which, by their singularity, or their consequences, have unambiguously etched themselves on the minds of those who have witnessed them, or know of them. But whether this is so or not has certainly not been the concern of the legislature. Section 51(1) of the Limitation Act does not offer any distinction between cases in which witnesses are available and have good recall, and those in which there are no, or few witnesses, or ones whose memory is of little value.
In an adversarial system under the most ideal of circumstances so far as time limits are concerned, a court is often obliged to make decisions on incomplete facts. Parties are not bound to bring to the attention of the court facts which are detrimental to their cases. Sometimes, by reason of the absence, or sudden death of a witness or a witness' departure, or for any number of other reasons, key facts cannot be established. The courts have to do the best that they can on the material before them and, in doing so, may make allowances for the circumstances in which each of the parties finds himself or herself. As Gleeson CJ, Gummow and Callinan JJ said in Vetter v Lake Macquarie City Council[266], a case in which there was a paucity of relevant material:
"As long ago as 1774 Lord Mansfield said[267] that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted."
[266](2001) 202 CLR 439 at 454 [36].
[267]Blatch v Archer (1774) 10 Cowp 63 at 65 [98 ER 969 at 970]. See also Weissensteiner v The Queen (1993) 178 CLR 217 at 226-227, per Mason CJ, Deane and Dawson JJ.
Perhaps one might have expected the appellant to have sworn an affidavit in the courts below stating in detail his recollection of the relevant events, and his recollection of the layout of the road upon which he came to grief. That he has not done so does not however give rise to any necessary inference against him that even he cannot speak to the matters central to the case which he has to prove. It should not be assumed that all of the relevant facts are in. The applications made here are applications only. They are not trials. Applicants take their chances when they make them. It is undesirable and inappropriate in my view that they be elevated to something in the nature of a full scale pre-trial trial. That this is so is reason for the adoption of the hard test that General Steel prescribes.
From what is known of the case now, I am bound to say that it is, at this stage apparently, a slight one and that the appellant's prospects of proving negligence do not appear promising. But I have not had the benefit of hearing any of the evidence, and of conducting a trial, at which time, as I have said, circumstances may change. I do think however, as did Master Harrison[268], that the respondents have been unable to make out the case for a stay upon the basis of the principles stated in General Steel which I am content to apply here.
[268]Batistatos v Roads and Traffic Authority of New South Wales [2000] NSWSC 506 at [22].
There remains what was the respondents' principal argument, that objectively there is an abuse of process simply because of the effluxion of time within the limitations period. I would reject that argument. To accept it would be to subvert or qualify the explicit statutory language and to disturb the compromise which the Limitation Act, relevantly here s 51(1), reflects.
I would accept the appellant's submission that in the absence of any relevant misconduct on his part there is no power to make the order for a stay that the Court of Appeal did. I would respectfully agree with Lord Diplock in Birkett v James that the appellant had a right to bring his action at the time that he brought it[269]. I agree with the decision and the reasoning of the House of Lords in that case in which it was held that the power of the court to dismiss an action for want of prosecution should be exercised only where the plaintiff's default has been intentional or contumelious or if there has been inordinate and inexcusable delay in the prosecution of proceedings instituted within time giving rise to a substantial risk that a fair trial would not be possible or of serious prejudice to the defendant, propositions which have been accepted and applied by various intermediate courts of appeal and judges at first instance in this country since Birkett v James[270].
[269][1978] AC 297 at 320.
[270]See Muto v Faul [1980] VR 26; De Nier v Beicht [1982] VR 331; Exell v Exell [1982] VR 842; Bruce Pie & Sons Pty Ltd v Mainwaring [1987] 1 Qd R 304; Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493; Flynn v Kailis Groote Eylandt Fisheries Pty Ltd (1992) 108 FLR 354; Mickelberg (1996) 90 A Crim R 126; Spitfire Nominees Pty Ltd v Ducco [1998] 1 VR 242; Bishopsgate Insurance Australia (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Velcrete Pty Ltd v Melsom [2000] WASCA 109; Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398.
I cannot accept that the fact that the holding of a fair trial because of effluxion of time within the limitation period has become very difficult, perhaps even impossible, can justify a stay. There must be many cases in which objectively a fair trial is impossible. A court may not know that this is so in a particular instance but will often be aware that what is taking place in a trial falls far short of the ideal. That cannot justify the stopping of the case by the court.
There is, in this case, a particular aspect of unfairness which the common law tolerates as a matter of course. It arises out of the legal fiction that the current law is treated as if it has always been the law. Hence the decision of this Court in Brodie v Singleton Shire Council which (temporarily only in New South Wales) swept away the distinction between nonfeasance and misfeasance on the part of highway authorities may have improved, to the significant disadvantage of the respondents, the appellant's prospects of success on any trial. This may seem particularly unfair now that the New South Wales parliament has substantially reintroduced the old distinction between nonfeasance and misfeasance on the part of highway authorities, but not retrospectively so as to apply to this case[271]. Why, it may be asked, should such objective unfairness arising out of the actions of the court, be treated differently from unfairness resulting from the passage of time within the limitations period?
[271]Civil Liability Act 2002 (NSW), s 45.
No doubt some European lawyers and others would take the view that the adversarial system is not productive of fair trials generally, a view that I do not share but that I understand, just as I am by no means certain that an inquisitorial process will always produce a fair result. But this is beside the point. The legislature has spoken in unequivocal terms and it is the duty of the court to give effect to its words by allowing the appellant's action to proceed at this point.
The High Court's discretion
What I have said is sufficient to require that the appeal be allowed. I would add however that if, as is held in the joint reasons[272], what was said by Lord Diplock in Birkett v James were to be rejected, I would be disposed to allow the appeal by revisiting the exercise of the discretion of the Court of Appeal, and by exercising the discretionary powers of this Court for myself. I have said earlier in these reasons that appellate courts defer too often to the factual findings and exercises of discretion of lower courts. With the greatest of respect, I would disagree with the sequence of reasoning which appears at the end of the joint reasons[273], that because "[t]here was no error of principle in the
decision of the Court of Appeal", the appeals should be dismissed. There would then remain the question whether this Court should exercise its discretion in the same way the Court of Appeal exercised its discretion[274]. As I have said, I am of a different opinion.[272]Joint reasons at [63].
[273]Joint reasons at [63]-[72].
[274]See, generally, the comments of Lord Halsbury LC in Riekmann v Thierry (1896) 14 RPC 105 at 116, on the broad nature of the appellate jurisdiction. That case concerned revisiting a trial judge's finding of fact, but the principle seems just as relevant here.
Conclusion
I would allow the appeals and join in the orders proposed by Kirby J.
HEYDON J. For the reasons given by Callinan J[275], there is sufficient strength in the plaintiff's claims against the defendants to prevent the prosecution of those claims, even at this late stage, from being characterised as an abuse of process. On that basis I would allow the appeal and join in the orders proposed by Kirby J. In those circumstances it is unnecessary to decide whether or not a plaintiff has a right to sue within the longest available limitation period which is untrammelled by anything except blameworthy conduct on the part of that plaintiff, or to decide on the other matters of law debated in the majority reasons for judgment and those of Kirby J and Callinan J.
[275]At [193]-[203].