State of Queensland v Stephenson and Wrightson, Reeman v State of Queensland [2005] HCATrans 1005 (14 December 2005)

--

State of Queensland v Stephenson and Wrightson, Reeman v State of Queensland [2005] HCATrans 1005 (14 December 2005)

Last Updated: 15 December 2005

[2005] HCATrans 1005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B59 of 2005

B e t w e e n -

STATE OF QUEENSLAND

Appellant

and

PETER ROBERT STEPHENSON

Respondent

Office of the Registry
Brisbane No B60 of 2005

B e t w e e n -

SCOTT WILLIAM REEMAN

Appellant

and

STATE OF QUEENSLAND

Respondent

Office of the Registry
Brisbane No B91 of 2005

B e t w e e n -

STATE OF QUEENSLAND

Applicant

and

TIMOTHY JAMES WRIGHTSON

Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 DECEMBER 2005, AT 10.23 AM

Copyright in the High Court of Australia

MR D.B. FRASER, QC: If it please the Court, I appear with MR G.R. MULLINS, for the appellant in the matter of Reeman and for the respondents in the matters of Stephenson and Wrightson. (instructed by Gilshenan & Luton Lawyers)

MR D.O.J. NORTH, SC: May it please the Court, I appear with my learned friend, MR D.J. CAMPBELL, SC, for the appellant in the matter of Stephenson and for the respondent in the matter of Reeman. In the matter of Wrightson I appear with my learned friend, MR J.B. ROLLS, for the applicant. (instructed by Crown Solicitor for the State of Queensland)

GUMMOW J: It is the proposal of the parties in the first three appeals that you go first, Mr Fraser, is it?

MR FRASER: That is the case, your Honour, yes, if that is convenient.

GUMMOW J: And that, having dealt with both sides in those three appeals, we then proceed to the remaining appeals?

MR FRASER: There are other appeals involving different parties which I understand are listed to follow. I am not involved in those appeals.

GUMMOW J: We will proceed as I indicated. Yes, Mr Fraser.

KIRBY J: Justice Gummow on the special leave hearing in the last series of cases made it clear that there should be some arrangement between the parties so that the whole matter will finish in one day. That includes the parties who are in the rear of the Court.

MR FRASER: Yes. Your Honour, we have had communications about that and that is why we have actually proceeded in the manner we have with joint submissions.

GUMMOW J: It looks as if that has been done. It looks as if they are two half-day cases. There is no need to make any formal order, is there, that the first three appeals be heard together?

MR FRASER: I think the Court already ordered that they be argued together. I suppose formally they should have been - - -

GUMMOW J: I think that is right. Yes, go ahead.

MR FRASER: Your Honours, in these appeals it is necessary to consider the extension provisions in relation to the Limitation of Actions Act 1974 (Qld). Could I ask the Court as a starting point to take up sections 30 and 31 which are annexed to the primary submissions for the plaintiffs.

GUMMOW J: Yes.

MR FRASER: Your Honours will see in section 31(2) that there is reference in subsection (a) to:

a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action –

that date may be conveniently described as the critical date, and it is a date which is a year before proceedings are actually issued. This flows from the power of the Court to extend the limitation period for a period of one year which immediately follows at the end of that subsection.

KIRBY J: Are you able to give in a couple of sentences what Justice McHugh used to call the theory of the case? Can you say what you assert is the theory of the way the Act is intended to operate in Queensland?

MR FRASER: Yes, your Honour, I believe so. We submit that what the Act requires an applicant to do is to establish, effectively, that there was a reason why proceedings were not brought within the limitation period and that there is no prejudice to a defendant in allowing the applicant an extension of the limitation period. So, in essence, it is based upon a notion of fault or blameworthiness.

GUMMOW J: The State seems to accept, then, looking at paragraph 4 of the State’s submissions:

(a) there is sufficient evidence to establish prima facie case . . .

(b) it has not suffered any prejudice caused by delay . . .

(c) should the requirements of 31(2)(a) be satisfied the [court’s] discretion . . . ought to be exercised - - -

MR FRASER: Yes. Our case is that we have to prove a negative proposition, that is that that concept, which is defined in section 30 in a fairly elaborate way, involves that the plaintiffs or the applicants have to establish, as it were, a negative proposition. The response from the State is that they contend that each plaintiff had to prove that he learnt of a new material fact of a decisive character on or after the critical date.

Now, we have an alternate position and that is if that be correct then we did establish the required material facts in any event and there are findings in our favour in that respect at first instance in Wrightson and on appeal in Wrightston and in Stephenson. We submit that regardless of how the principle is to be applied – that is whether or not a negative proposition is being established or as the State contends some new fact needs to be identified – each of the plaintiffs should have succeeded.

GUMMOW J: Now, looking at 31(2), which I guess is the critical provision, it says:

Where on application to a court . . . it appears to the court . . .

the court may order -

So all of these materials up to the phrase “the court may order” create the jurisdiction and specify something in the nature of jurisdictional facts.

MR FRASER: Yes, your Honour. That is how we approached the matter.

GUMMOW J: It does not seem quite to have been looked at that way in some of the cases in Queensland, but that seems to me what it is. It is the sort of provision in the Hetton Bellbird Collieries Case [1944] HCA 42; 69 CLR 407 at 434 to 435 and 440, which we have looked at often enough. Particularly in that case it was the jurisdiction of the Conciliation and Arbitration Commission. It is this composite collection of facts, circumstances and opinions which have to be crossed before you get into the Court.

MR FRASER: Yes, your Honour, that is accepted. Your Honours, because the - - -

HAYNE J: How, in identifying those facts, do you relate the proposition you put in answer to Justice Kirby’s question, the applicant must establish why the action was not brought?

MR FRASER: Because of the way in which – a material fact of decisive character is defined in section 30. Can I take your Honours to section 30 and your Honours will see that - - -

GUMMOW J: You have to get to material facts, do you not, first?

MR FRASER: Well, your Honours, essentially the submission – and we will take your Honours to the authority later – is that what occurs is that by section 30 there is a prescription of when a material fact relating to a right of action will be of a decisive character. By that prescription, if one has to prove the absence of a material fact relating to a right of action of a decisive character, one can achieve a jurisdictional basis for the exercise of the discretion by saying in essence this section asks an applicant to identify why the applicant should not have sued before the expiration of the limitation period.

The way that I was proposing to take your Honours to that was to identify the purpose which underlies the legislation and then take your Honours to some of the authorities, particularly - - -

GUMMOW J: Just before you do that though, we do have to grapple with section 30(1)(a), do we not?

MR FRASER: Yes, your Honour.

GUMMOW J: And I think the States suggest that that is a genus even though it says “including”.

MR FRASER: Yes.

GUMMOW J: And that they are really matters that you would want or be required to plead in a judicature pleading system, that materials facts are what you would be pleading so in Do Carmo, that case in this Court, it was the unsafe system of work.

MR FRASER: A breach of duty and that would be perhaps a particularisation of it.

GUMMOW J: This man did not know that there could have been this safe system of work.

MR FRASER: Yes, but it might be a particularisation if one then looked at cause of action, a particularisation of the allegation that there was a breach of the duty, which was the essential allegation or averment against the defendant.

GUMMOW J: But does Mr North’s submission cause you any trouble? That is what I am trying to work out.

MR FRASER: We submit, no, because one of the aspects of the material facts that needs to be considered is damage. Damage will be a material fact in an action in negligence, breach of duty and damage and when we get to the end of the day, if we are running this case, we will have to particularise and prove, in order to recover economic loss for the past, when each of these plaintiffs commenced to suffer economic loss, because until each of them was terminated from their position with the police service, they suffered no economic loss at all.

HAYNE J: Why?

MR FRASER: Because they were paid sick leave.

HAYNE J: I understand that, but the prospect of having a shorter career had come to pass, had it not?

MR FRASER: The damages for future economic loss could be assessed but unless a plaintiff went to court and said, “I was terminated from my position on this date”, the court would not have any materials to assess the loss up to the date of trial.

If a plaintiff came to court and said, “I was a police officer, I no longer am. Here is the difference in my wages between what I was earning as a police officer or what I would have been now earning as a police officer and what I am now going to earn”, that would establish the basis for an award for future economic loss, but for the past, there would be no materials upon which the court could make that assessment, and that would be likely to be a very substantial amount.

The other aspect which we rely on and which, with respect, does not seem to have received a great deal of attention is that in each case there is evidence of an improvement of the plaintiffs’ health. Now, that is something which is directly referrable to the nature and extent of the injury. It is a little complicated in that the way that the psychiatric condition has developed and the treatment of it progressed, it was necessary for the plaintiffs to be, as it were, separated from their employment which contained the stresses which actually excited their symptoms and caused their illnesses, and then to recover their health and then try to obtain alternate employment elsewhere.

Now, the nature and extent of your injury includes the level of symptoms that you continue to suffer. There is nowhere in the Act a requirement that in order for a fact to be material it must increase the level of damages. The fact could be material if it relates to the assessment but if it qualifies as a material fact and by the occurrence of that fact a plaintiff is converted from the position where he could sue but should not sue to a position where he both could and should sue then it will be decisive.

GUMMOW J: Yes. I think we understand what you say about material facts. Then you have to get to paragraph (b) “decisive character”.

MR FRASER: Yes, your Honour. “Decisive character”, perhaps if I can take your Honours to the words used. It is prescriptive because it uses the expression “if but only if” in the second line of subsection (b). The first limb is a limb which has been described as establishing whether an action would be, in effect, worthwhile, and one can see that there is a compound requirement that an action would:

have a reasonable prospect of success and a resulting in an award of damages sufficient to justify the bringing of an action on the right of action -

so it is really saying if one makes - - -

GUMMOW J: I am sorry, I am not following it.

MR FRASER: In (i) there are two components but they achieve a compound result it appears:

an action on the right of action would –

and then there is a reference to -

(apart from the effect of the expiration of a period of limitation) –

so that is a reference to the pleading of a limitation defence –

have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action - - -

GUMMOW J: The reasonable prospect qualifies both success and result, does it?

MR FRASER: The “reasonable prospect of success” - - -

GUMMOW J: “and of” it says.

MR FRASER:

have a reasonable prospect of success and of resulting in an award of damages –

So “reasonable prospect” qualifies both of those and then there is a further qualification which is - - -

GUMMOW J: And then “sufficient”. Does that qualify “reasonable prospect”?

MR FRASER: Yes, your Honour. The compound effect is apparently qualified by it is:

sufficient to justify the bringing of an action –

So, in other words, in practical terms, if an assessment were made of this case would it be a worthwhile case to bring. But then there is a second limb which is a conjunctive limb. Subsection (i) ends with the word “and” and that is the one that has caused the excitement in these appeals:

that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action –

If we compare the two - - -

GUMMOW J: And “to bring” is linked to “ought” is it? There should be a comma after “ought” should there and a comma after “into account”? Is that right?

MR FRASER: Yes, your Honour, that would seem to be the logical way of approaching it, yes.

GUMMOW J: Now, what is the controversy about (ii)?

MR FRASER: There is no controversy as to the findings that that stage was never reached for any of these applicants, that is, that it is not suggested that any of the applicants were possessed of material facts which at the critical date showed that it was in their own interests and taking their circumstances into account that they ought bring an action. It is not suggested that any of them had reached that stage, essentially, because of the ramifications of bringing proceedings both in terms of the effect it might have upon them, disciplinary proceedings, prosecutions under the Police Service Administration Act and in terms of their health and the additional stress of instructing solicitors to bring proceedings. That is not a controversial matter. There are findings below which were not attacked. So the controversy is whether or not if subsection (1) is satisfied a plaintiff or an applicant, at least, can get over the jurisdictional hurdle alone. That is really the - section 1 is satisfied but subsection (2) is not.

HEYDON J: Do you mean subparagraph?

MR FRASER: Subparagraph (2) - my apologies, your Honour, yes – is not satisfied. Can the applicant by demonstrating that he does not possess material facts of a right of action of a decisive character because we submit there is only one way of looking at subsection (b) and that is that both limbs must be met in order for the material facts to be of a decisive character.

HEYDON J: Do your opponents say the contrary?

MR FRASER: It may be better if I let them say that, your Honour. I must say, and with no disrespect, it is a little unclear - - -

GUMMOW J: You have the chance to poison us - - -

MR FRASER: Yes. The submission introduces a number of citations from the reasons below, and that includes concepts that a fact cannot change its characterisation, that it is an immutable feature of a fact that its characterisation is or is not decisive when it is first learnt, or that a factor has to be decisive in order to qualify. Our response is that is really mixing the two concepts. You have a concept of a material fact and a decisive material fact, and the Act in section 30(b) prescribes an exhaustive code of when a “material fact relating to a right of action” will be of a decisive character.

HAYNE J: Now, does this analysis pay sufficient attention to the premise which underpins all of section 30 and following, namely that the limitation period has run?

MR FRASER: Yes, your Honour.

HAYNE J: By that I mean do we know when, in the case of these plaintiffs, it is said that the cause of action accrued?

MR FRASER: Yes, your Honour. In each case there was a finding that the cause of action had accrued before they issued. Sorry, they had accrued more than three years before they issued the proceedings.

HAYNE J: And in light of that fact, what is the material fact upon which the plaintiffs fasten?

MR FRASER: On their alternate case they fasten upon the circumstance that the Commissioner, after taking medical advice, determined that the plaintiffs’ employment should be terminated, and there is another component to that, that they should not be reclassified in a staff position but they should no longer be police officers in any capacity. The second material fact is that they each had an improvement in their health sufficient to enable them to address the need to litigate, to bring proceedings.

Your Honour, is it convenient if I turn to the purpose of the legislation? In very broad terms, the extension provisions are designed to address the injustice to a plaintiff of having to face the limitation defence in circumstances where the merits concerning that limitation defence lie with the plaintiff.

GUMMOW J: Were these sections part of the package which reduced from six years to three years? Or the reduction from six to three already happened?

MR FRASER: I think it had already happened, your Honour. Can I check that?

GUMMOW J: Yes, it would be helpful to know.

MR FRASER: I think it had already happened. Your Honour, the converse of the proposition as to the purpose, which is really quite unremarkable, is to say that will be a circumstance where the limitation defence lacks any real merit because the community at large, it is fair to say, has frowned upon limitation defences where they lack merit. Counsel have to get specific instructions to advance a plea of the expiration limitation period against the opprobrium that might attract if somebody escapes liability on what might be termed an unmeritorious limitation defence.

KIRBY J: Well, that is one way of putting it, but Justice McHugh in that Brisbane Case pointed out that the whole purpose behind limitation defences for hundreds of years has been to give finality, certainty, an end to the risks and perils of litigation, a quietude in life. There is always another side on the limitation issue.

MR FRASER: Of course, your Honour, and that underlies why the State puts in place these limitation periods, but I am really addressing, I hope, why they have enacted the extension provisions. Even though they form part of an Act which consolidated the limitation periods, the purpose of introducing the extension provisions obviously serves another function than permitting defendants to be assured in the ordering of their affairs because - - -

KIRBY J: I think Justice McHugh in that case said that you have to see the extension provisions in the context of the large policy which limitation Acts generally play.

MR FRASER: We do not controvert that for a moment, your Honour, but - - -

KIRBY J: Where did this idea come from? The idea of this “material fact of a decisive character”, was that an English idea originally?

MR FRASER: It was, your Honour. We have copies of the relevant English legislation and we can hand those up to the Court.

KIRBY J: Yes, I think I saw a note on this. Was it the Law Commission, did they come up - - -

MR FRASER: There was a Law Reform Commission report. It has addressed at some length the histories detailed in the New South Wales Law Reform Commission report which led to the enactment of the cognate New South Wales provisions.

KIRBY J: Did that become the template for the Queensland legislation?

MR FRASER: It did, your Honour, yes.

KIRBY J: So that is how it happened.

MR FRASER: It was picked up almost entirely. I think one word was changed. In fact, we have also provided the Court with the relevant Queensland Law Reform Commission report which drew heavily from the New South Wales Law Reform Commission report and attached a draft Bill which was in identical terms. The only difference that we can pick up is that, if your Honour looks at section 32(2)(a), instead of the word “a” the word in the New South Wales legislation is “any”, and that coincidentally was the word that was used in the draft Bill which the Queensland Law Reform Commission proposed, but that has been - - -

KIRBY J: No doubt parliamentary counsel who proposed that change was very proud of his day’s work.

MR FRASER: Yes. I do not know if the setting out changed as well, your Honour. It seems that it does not make any material difference but, for our part, we suggest that it helps us rather than hinders us.

KIRBY J: And the theory that is behind this type of legislation is that, is it, that there are some things which are latent and which people do not ordinarily know about or are consciously aware that lie underneath as an undercurrent in their lives and that somehow this becomes known to them and material after a limitation period that makes it just that they should get a short time within which to have a second go and to breathe life into that which was otherwise legally dead.

MR FRASER: Essentially, we do not cavil with that description, your Honour. It is basically, we submit, a little more expansive because of this concept of, “Why didn’t you sue within the limitation period?” and establishing a proper basis for that. So it is not just that you did not know about the insidious onset of a particular disorder, although that was the initial impetus for it.

GUMMOW J: It was Cartlege v Jopling, was it not? That appears at paragraph 272 of the material which you have given us from New South Wales.

MR FRASER: Yes, your Honour, but when the legislation was introduced from the United Kingdom to New South Wales, the New South Wales Law Reform Commission indicated that they thought the law reform in England did not go far enough and they introduced a new provision which is that subparagraph (ii) to section 30(1)(b). So that provision, subparagraph (ii), “that the person whose means of knowledge is in question ought in the person’s own interests”, et cetera, that is something which was added to - - -

GUMMOW J: That was not in the British Act?

MR FRASER: No, your Honour. Indeed, the Act is, if I may make perhaps an odious comparison, if anything, more complicated than the New South Wales and Queensland Acts. It was a reform which permitted an ex parte application. It did not involve an exercise of discretion and the leave could be revoked at the trial. It was really quite an elaborate – even more elaborate set of provisions but, as I indicated, I have copies of those provisions for your Honours. There are nine copies here and I can hand them to the Court. I apologise for the quality of the photocopies. They are from a very old book.

GUMMOW J: Perhaps we will get more by going to the New South Wales Law Reform Commission. What do you want us to look at there, Mr Fraser?

MR FRASER: I just handed that to your Honours because I was just responding to the question. I was going to take your Honours to the provisions in some little detail. Your Honour, I really want to just conclude about the question of the underlying purpose of the legislation of introducing extension provisions as opposed to the maintenance of limitation periods per se.

The way that I wanted to do that was to articulate it in terms of that converse proposition, that is, you have injustice to a plaintiff which people would be concerned about, but you also have the situation where the converse is that the limitation defence for practical purposes is not meritorious, and a limitation defence may lack merit if it has a number of features, or perhaps all the following features: that there is no prejudice to the defendant which would prevent a fair trial, that the plaintiff has a viable cause of action because a limitation defence, if there is a frivolous claim, could be an efficient way of ending an action in those circumstances, and the question of merit is also involved if there is a good reason why the plaintiff did not bring the action before the limitation period expired.

In each of these appeals all of those elements were satisfied. There is no claim to merit by the State in advancing these defences. No prejudice. There is a proper cause of action. It all comes back to have you met or have you been able to overcome the hurdle which is posed by section 31(2)(a).

KIRBY J: There may be industrial relations or other reasons behind this, but I am surprised that you give away so lightly as if it is trifle the merit which lies behind the general limitation period which is an end to the disruption that litigation can cause to the State, to individuals, to corporations, and it is against that background that you get this exceptional provision for extension in circumstances where one could say that it is not reasonable to have required a plaintiff in the limitation period to have brought an action. I am surprised you treat so triflingly the merit of finality, because most citizens out there, you know, would not. They would say, “We should not be harassed years later by proceedings brought against us”.

MR FRASER: But I suppose the response is that we would not have any provision for extension if that were the overwhelming and only consideration. The function of permitting or providing for an extension is to address injustice in the particular circumstance as between the particular plaintiff and defendant in that case.

GUMMOW J: The period of limitation is very material, is it not?

MR FRASER: Yes, your Honour.

GUMMOW J: Six years to three years. It used to be three years in the Trade Practices Act, remember, and they had to extend it because it gave rise to endless trouble because the period was too short.

MR FRASER: Yes, your Honour, and that affects the - - -

GUMMOW J: Six years was not all that lacking in sense.

MR FRASER: Well, that is part of the context, that in Queensland we have a three-year limitation period and although it may seem to be a lengthy period, three years, it may take longer for that for real problems to surface so - - -

KIRBY J: I wonder how the six years was fixed in the Imperial Act. Was it a biblical idea?

MR FRASER: I am sorry, my researches have not extended that far, your Honour. I apologise for not being able to assist your Honour about that, but I spoke - - -

GUMMOW J: Do you rely on paragraph 296 of the New South Wales report?

MR FRASER: Yes, your Honour. I have a note about that. I can perhaps assist. In paragraphs 296 and 297 there is reference to why that additional requirement has been introduced. If your Honours see 295, it starts off:

Section 57(1)(c) states the tests for determining whether material facts relating to a cause of action are of a decisive character: the paragraph is based on section 7(4) of the Imperial Act of 1963.

Then in paragraph 296 – and I will let your Honours read that - - -

GUMMOW J: Now, how do the sort of circumstances they are talking about there fit with the sort of circumstances in these cases today?

MR FRASER: Your Honour, in relation to the point made in 296, that appears to referable to the concept of an award of damages because it is understood that there will be charges over the award which will mean that the net result to a plaintiff will be made very modest and not worthwhile. So, in those circumstances, someone might not sue. I should mention just in passing that in Queensland, in some legislations, the stratagem is adopted of actually deducting from the assessment of damages the amount of, if I could call it loosely, the charge, so that the award of damages for a plaintiff will be the net amount rather than there being a charge, so that would not be of particular relevance. You would not need that particular reason where you have a statute for that kind, but in many situations there may just be simply charges to the Commonwealth which will reduce the amount or charge to some third parties – hospitals and the like.

HAYNE J: But what is said in 296 is driven, is it not, by the consideration reflected in section 30(1)(a)(iv), namely “the nature and extent of the personal injury so caused”?

MR FRASER: It is perhaps more about the amount of the damages, I think, which will be assessed and - - -

HAYNE J: That is the consequence of the nature and extent, but the relevant material fact, it seems to me, from the last line and word of paragraph 296 is the nature and extent of injury.

MR FRASER: Yes, your Honour.

HAYNE J: Which drives us - - -

KIRBY J: You might have a case where there is a large nature and extent of injury but there is perfectly adequate workers compensation or other benefits.

MR FRASER: Yes, your Honour, and the person remains in employment for a long time with a beneficial employer or something like that.

KIRBY J: Sometimes in Crown employment there are very beneficial employment entitlements which mean that you do not have that extra factor of having the reason in your own interest to pursue a damages case.

MR FRASER: Yes, your Honour.

KIRBY J: Which 296 is referring to in the Law Reform report.

MR FRASER: But it goes beyond that. If one then goes to paragraph 297, this is the second illustration which the Law Reform Commission of New South Wales advance:

Then again, there may be personal reasons for not suing . . . An injured employee may, for example, reasonably take the view that an action against his employer may jeopardize the future course of his employment to an extent which outweighs the prospective damages - - -

HAYNE J: Which drives attention back in the present case to the identification of the relevant material facts, which I understand to be put alternatively and cumulatively as being, one, the fact of discharge from the service as medically unfit and, second, the subsequent improvement in health.

MR FRASER: Yes, your Honour.

HAYNE J: Now, those two are markedly different from material facts of the kind under consideration in 296 and 297, are they not?

MR FRASER: I suppose the response to that is that in the concluding sentence of paragraph 297 it is made plain that the section is wider than that because it puts “allow circumstances such as these to be taken into account”. I mean, this is not the statute of course that we have to interpret.

HAYNE J: No, I understand that.

MR FRASER: It is, as your Honour puts to me, the precursor to the statute. It is one of the drivers which led to it. Your Honours, I suppose I wanted to try to link up the notion of when a limitation period will be meritoriously pleaded by just looking at how the Act structures these things, because there are really three steps that can be seen in section 31. Step one is that the applicant has to demonstrate that something – let us call it something for a neutral expression – “was not within his means of knowledge” until after a particular date, and that is the critical date, and that demonstrates why he or she did not sue, indicating that it was not really due to his fault; step two – this is in section 31(2)(b) – is the applicant has to show that the applicant has a right of action; and step three, the prescription that the court may order the applicant has to show why the discretion should be exercised in the applicant’s favour.

So, if you demonstrate all those things, you demonstrate the injustice of being held out of the action because your behaviour is not blameworthy and what you want to do is not going to result in effectively injustice in the sense of an unfair trial to the defendant.

GUMMOW J: Is there some debate about the word “until” in (2)(a)?

MR FRASER: Yes, your Honour. We advance as a dictionary meaning – we say it means up to the point of. The State advances the proposition that “until” conveys that you then have to establish a fact. That is as we understand their position. So the word “until” is given a fairly heavy operation in the State’s approach.

GUMMOW J: Would the word “before” accommodate your situation?

MR FRASER: Yes, your Honour. In our primary submissions we have set out a dictionary definition which articulates these matters.

HAYNE J: Is the whole composite expression an elaborate way of fixing two years, two years after accrual?

MR FRASER: Yes, that first part of it is certainly, your Honour, yes. It just says in effect the date has to be after the commencement of the second year from the date your cause of action arose, but it can be any date is the point, I suppose, we rely on. Your Honours, in our submissions we have referred to a number of New South Wales authorities.

GUMMOW J: Do any of them bear on this particular controversy?

MR FRASER: Yes, your Honour. Can I take your Honours to the decision of Broken Hill Company Pty Ltd v Waugh (1988) 14 NSWLR 360. That is one of the cases in our list. If your Honours go to page 370 in the decision of Justice of Appeal Clarke, with whom your Honour Justice Kirby as President of the Court of Appeal agreed, and as well Justice of Appeal Hope agreed, addressed this very point. It is the same argument that the Crown raises here, we submit. It is just after point C:

In support of the first ground counsel argued that the evidentiary material was incapable of establishing the critical link. In so doing he was, in a sense, raising a false issue. What the plaintiff had to establish under s 58(2)(a) was that a relevant material fact was not within his means of knowledge at the relevant date. In a case –

Then your Honours can read down to point E. The proposition at the end of that paragraph –

and it would not be to the point for the defendant to argue, on this particular question, that the material fact was still not within his means of knowledge at the date of the hearing of the application -

indicates, we submit, in very strong terms that it is a negative test which has to be answered.

Your Honours, this same approach was taken up in another decision of the New South Wales Court of Appeal of Ditchburn v Seltsam (1989) 17 NSWLR 697. It is in the reasons of your Honour Justice Kirby as President of the Court of Appeal. Your Honour’s reasons start with a reference to the cris de coeur about amending the legislation at page 618, but the relevant passages appear at page 704.

GUMMOW J: When in your State they moved confidently to the section we are grappling with, did anyone read what the President said on page 698 that they were buying damaged goods?

MR FRASER: I think we had already bought the goods by that stage but I - - -

GUMMOW J: In 1989?

MR FRASER: Yes, I think the Act was 1974 and the Law Reform Commission Report I think was 1973. There is a reference in the Queensland Law Reform Commission Report to the UK Act not going far enough and there is a reference to a particular case.

KIRBY J: That all depends on your philosophy about finality?

MR FRASER: That is probably a good point for me to submit that the legislative philosophy was that finality was not the critical factor in looking at the extension.

KIRBY J: It was not enough.

MR FRASER: It was not enough, yes. I want to take your Honours to page 703.

KIRBY J: And, indeed, was overridden. It was overridden to the extent of the amending Act.

MR FRASER: Yes. Your Honours, at page 703 at the bottom there is a heading “Requirements of (and relief from) urgent action”:

When one takes account of the remedial nature –

and your Honour then at about point B onwards says:

But the Act ameliorates these injunctions to urgency of action by a number of other provisions. It is enough that “any” of the “material” facts of a “decisive character” relating to the cause of action should not be within his means of knowledge during the relevant period. All that he is required to do, if he does not know that fact, is to take “all reasonable steps to ascertain the fact” . . . Relevant to the present case . . . “personal injury” . . . Even once the “material facts” are known, it is necessary, in order to oblige the commencement of litigation, that they should be “of a decisive character”. The test, then, is not one of zealous vigilance to assert and protect legal rights by immediate resort to litigation . . .

Furthermore, in considering . . . practical questions must be asked.

Your Honour makes the point in the second-last sentence before the next heading:

And in judging the last question it is necessary to take the “circumstances” of the claimant into account.

Now, your Honour, when one actually goes to the section it is clear, if anything can be clear about this Act, that section 30(1)(b)((i) is an objective test but the second part, part (ii) introduces considerations personal to the individual, that is by referring to “the person’s circumstances” and “the person’s own interests”.

We make the point that if that attribute or that requirement is to be given effect to before a person can be said to be possessed of material facts of a decisive character that that involves consideration of the effect that bringing the proceeding might have upon the person because it is plain enough that there is an objective assessment of the worthwhileness of the action, the prospects and the damages, but the second part requires, well, what would bringing this action do to this person or what impact would it have on this person.

GUMMOW J: Should we look at Justice Mahoney in Ditchburn? Did he take a different attitude in any way that is material?

MR FRASER: I can indicate that at page 709 that Justice of Appeal Hope agreed with the orders and the reasons. Justice Mahoney agreed with the orders and qualified it at page 706 at F where he said “in a context such as the present” and, your Honour, that is, with respect, a key distinguishing feature. In a context like this where an applicant comes to Court and says, “I have learnt this material fact”, then it is perfectly appropriate to say, well, without that fact, could you and ought you have sued – that is, brought your action – beforehand, because if that question is answered in the affirmative, then finding out the new fact will not be enough, because the new fact that you point to will not demonstrate that there was an absence of material facts of a decisive character before the new fact came within your means of knowledge.

That is why, with respect, we can see in the Queensland jurisprudence a divergence, and it actually starts around about 1988, and I was going to submit to your Honours that it does not appear from the reported decisions that the Queensland Courts were taken to the extrinsic material, at least not in any detail, before delivering their reasons.

GUMMOW J: Is there extrinsic Queensland Law Reform material as well?

MR FRASER: Yes, your Honour. We have provided the Court with the Law Reform Commission Report which is No 14 and there are also some debates in Parliament that occurred when the legislation was introduced. Your Honour, in the Queensland Law Reform Commission Report – do your Honours have that?

GUMMOW J: Yes, thank you.

MR FRASER: The first reference is at page 3, about the third paragraph on the page which deals with “the adoption in substance of certain provisions” from the United Kingdom and New South Wales. There is a generalised description there. There are some paragraphs which deal with other reforms, and then if we go to page 6 of this section where this part of the Act is treated and paragraph 33 at the bottom of that page, your Honours.

GUMMOW J: Thank you. Did this reduce the period to three years?

MR FRASER: No, your Honour, I do not believe so.

GUMMOW J: It is later, is it not? This is 1971.

MR FRASER: This was 1972, I am sorry, yes. The limitation period I thought - - -

GUMMOW J: I have a reprint of the Act in 1994, actions in tort, and it seems to have the traditional period.

MR FRASER: Yes. The original Limitation Act of 1960 had the three-year limit, I believe, but again, as I said, I will check that for your Honours, and that appears at page 5. I am sorry, my apologies, Law Reform Limitation of Actions Act 1956.

GUMMOW J: Anyhow, I am holding you up. What do you get out of paragraph 33 on pages 6 and 7?

MR FRASER: Your Honour, I said earlier that there is a - - -

GUMMOW J: There is a reference to the Edmund Davies report, New South Wales, Jopling.

MR FRASER: And then Jopling and also in that second paragraph on page 7:

It is, however, the opinion of some that the reform in England did not go far enough and it must be conceded that the litigation which it has provided has been somewhat restrictive in application –

and there is a reference to a case which has been cited to your Honours. There are some passages in the judgments which indicate the limitations on the reform. Given the time constraints, I was not planning to take your Honours to those passages, but I do invite your Honours to read that case. About the middle paragraph, after identifying a threefold purpose of limitation periods, the paragraph beginning, “However,” which I would ask your Honours to read - - -

HAYNE J: Does not that paragraph and what appears around it point to what may be said to be an inversion that is presented by your case, namely, your case proceeds from the premise it was better for the plaintiffs to wait until they had been discharged from the service before they began action. Because it was better that fact, the fact that it was better, is the material fact going to whether they had an action. Is that an unfair - I am sure it is an unfair - but is it a wrong characterisation of the essence of the argument?

MR FRASER: It must be accepted that until they were terminated it was not in their interests to sue so, put in those terms and following the statute or the section, it is a way of looking at the plaintiff’s contentions here, that is, it was better for them to wait until it was in their interests to sue and only bring an action then because, firstly, they would not be prosecuted for offences under the Act and, secondly, they would not suffer an even more serious illness.

Your Honour, I said that the jurisprudence in Queensland took a different path - - -

HAYNE J: It has taken many paths.

GUMMOW J: Yes, that is right.

MR FRASER: What occurred was, and it really comes to that contextual matter that Justice Mahoney referred to, in a decision of Moriarty – I will not ask your Honours to take it up – in the leading judgment Justice McCrossan held:

“In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature or extent of his injury and would cause a - - -

GUMMOW J: What is the citation?

MR FRASER: I am sorry. Moriarty - - -

GUMMOW J: Just so it is on the transcript. [1988] 2 Qd R 325.

MR FRASER: Yes, your Honour, it is. That passage, which was qualified appropriate, that is in cases like the present – picking up that point I raised with your Honours before:

an applicant for extension discharges his onus not merely by showing that he has learned some new fact -

that passage was then effectively elevated, it seems, to a test in a later decision of the Court of Appeal, which is relied on by our learned friends, of Byers v Capricorn Coal Management Pty Ltd. Can I ask your Honours to go to that case, which sets out - - -

KIRBY J: Citation?

MR FRASER: I am sorry, my apologies, your Honour. It is at [1990] 2 Qd R 306. Your Honours, the case here involved a situation where a plaintiff had hurt himself in an accident and was told it was a muscle strain, and then some time later he was told by a specialist that he was not going to be able to continue to maintain his employment, and the chamber judge allowed his application for an extension. The Full Court dismissed the appeal. Justice Lee delivered the leading judgment. At page 307 at line 34 his Honour addressed a submission made for the appellant:

It was further submitted that not only must a new fact be shown, but also the respondent must demonstrate that he would not –

I will let your Honours read that. Then there is a reference to Moriarty v Sunbeam. Over the page, your Honours, there is a reference to the decision, New South Wales Court of Appeal in Royal North Shore Hospital, that:

it was not the policy of the law that a person should sue whenever he had the opportunity.

Then at page 309 his Honour discusses the approach of the chamber judge at line 11:

His Honour correctly applied the provisions . . . and was entitled to conclude as he did. The aforesaid reasons indicate that the respondent satisfied the test laid down by Macrossan J –

and then there is the passage that I was reading to your Honour before, which is then set out, “In cases like the present”.

So one can see that although in the New South Wales Court of Appeal – I think it was the same year in Broken Hill v Waugh, 1988, the court said, “That’s a false issue, that test of establishing a new fact”. In Queensland the court moved to this different direction. The cases where that is dealt with are referred to by Justice Holmes, who was the trial judge in the matter of Reeman at first instance, and that is in the appeal book volume 3 at page 987 in paragraph [33], where her Honour discusses, or at least refers to, these cases and says that the proposition advanced for the applicant in that case was inconsistent with the principles laid down in cases, including the cases I have mentioned, your Honours.

GUMMOW J: Thank you.

MR FRASER: Now, your Honours, in the course of the litigation which your Honours are now seized of, the Court of Appeal has, it seems, moved from the position which was reached in Moriarty and Byers and has now come back, as it were, or arrived at the position which is described in BHP v Waugh because the majority in the decision of Wrightson accept that the test involves a negative proposition, that is, that the applicant does not have to demonstrate that there was some new material fact. So, we have traced the evolution of the difference but it is now, as it were, disappeared at appellate level in Queensland, subject of course to what this Court decides about the point. Our submission is that - - -

GUMMOW J: Nevertheless, you lost in Reeman.

MR FRASER: We lost in Reeman because at that stage, if I can call his Honour Justice of Appeal Williams the swinging judge - - -

GUMMOW J: You are saying that the Queensland Court of Appeal in Stephenson and Wrightson seems to have got back on track, you would say?

MR FRASER: Only in Wrightson, because in Stephenson there were three separate approaches. Justice of Appeal Davies endorsed the approach that we are advocating for your Honours. Justice of Appeal Williams said that you still need a - - -

HEYDON J: If we can just get one thing straight – Justice Williams. Not Justice of Appeal.

MR FRASER: Justice Williams. My apologies, your Honour. Justice Williams indicated that a new material fact still had to be discovered and Justice Chesterman concluded that there had to be a decisive quality about the new material fact and so there were three different judgments. Justice Williams in Reeman found against the plaintiff although finding for the plaintiff in Stephenson, because his Honour concluded that Mr Reeman, on the findings of fact, knew that he was going to lose his employment and that accordingly there was not a new material fact. That seems to be the distinction, whereas in Stephenson, his Honour took the view that Mr Stephenson did not know, effectively till he was terminated, that there was a new material fact or that he was going to be terminated.

So that explains the difference and that is why the question in Reeman about whether or not the approach is to prove a negative proposition or whether it is to identify new material fact is important, but our submission is that the reasoning of Justice Williams in Reeman is flawed because his Honour mistakenly relied upon the trial judge’s incorrect characterisation of termination and we have given your Honours references to some of the cases about termination of employment as amounting to a new material fact.

Your Honours, we do submit, and given the time I will not take your Honours to the passages, that the original approach contemplated by the United Kingdom legislation which is discussed in Smith v Central Asbestos Company, [1973] AC 518, and I will just give your Honours the references. Lord Morris at page 530 - - -

GUMMOW J: They very religiously in that case said they had not looked at the Edmund Davies report - - -

MR FRASER: Yes. They said they did not - - -

GUMMOW J: - - - for fear of what they might see.

MR FRASER: Yes. The references, your Honour, are at page 536 - - -

GUMMOW J: Not even to find out what the mischief was?

MR FRASER: Well, I think they probably took the view they knew what the mischief was - - -

GUMMOW J: You look at page 529.

KIRBY J: That was a big theory in some judicial minds at that time. There was the big debate.

MR FRASER: Yes.

GUMMOW J: Lord Reid at 529.

KIRBY J: They were trying to hold back the flood of all this extrinsic material.

MR FRASER: I think that fight has been fought and lost.

GUMMOW J: That is right, but it just may colour the whole decision. That is all I am saying.

MR FRASER: It may, your Honour, but we submit that either way it supports our approach because Lord Morris at page 536E referred to the inquiry as being, if I can summarise this, to a negative proposition, as does Lord Pearson at page 545H. The words used in the sections are somewhat different – and we have provided your Honours with the sections – and it was somewhat more elaborate but it was still the same premise and the word “until” was present in the legislation.

Your Honours, in our submissions we referred to the elaborate way in which the concept of material facts relating to a cause of action of a decisive character have been developed in sections 30 and 31. There is one feature of section 30 that I should refer your Honours to.

GUMMOW J: How much longer do you think you will need?

MR FRASER: I am just about to move to the question of the termination and the findings about that. Probably about 20 or 25 minutes, your Honour.

GUMMOW J: You do not need to immerse us too much in the particular facts of these particular cases.

MR FRASER: No, your Honour, I was not planning to.

GUMMOW J: We will have to do that for ourselves, I am afraid, if need be.

MR FRASER: The point I was going to take your Honours to is that, although section 30(1) is expressed to provide, “for the purposes of this section and sections 31, 32, 33 and 34”, when you actually look at subsections (a), (b), (c) and then (ii), your Honours will see that each of those matters is actually linked to the requirement in section 31(2)(a).

GUMMOW J: I think you made this point in your written submissions. It is not all that easy to see how it links up with those other sections.

MR FRASER: With anything else, yes, but I suppose the other provisions which I have set out there, also 32, “Surviving actions”, 32(2)(a) contains the same concept for surviving actions and section 33 does not really seem to have any particular function.

GUMMOW J: What comes out of this curiosity?

MR FRASER: The curiosity is that it is a prescription which is designed to an end, that is to establish that the term in section 31(2)(a) is a composite term. “that a material fact of a decisive character relating to the right of action”, that is a composite term which must qualify in the way in which section 30(1)(b) defines it. It is as simple as that. It is no function of the court to try to dissect the composite notion which is involved there. That is really the point that Justice Davies made in his reasons, that the expression in section 31(2) “was” qualifies all that precedes it. So it is “a material fact of a decisive character relating to the right of action” rather than “a material fact was”, which was the approach taken by the trial judge in Reeman.

I have taken your Honours to the Law Reform Commission reports and the parliamentary debates. The case which is most strongly held against us by the State is Do Carmo v Ford Excavations [1984] HCA 17; (1984) 154 CLR 234.

GUMMOW J: Yes, that is a case on the New South Wales Act, but it is a different sort of material fact, is it not?

MR FRASER: Yes, your Honour, it is.

GUMMOW J: We have mentioned this earlier this morning. It is a safe system of work.

MR FRASER: Yes, your Honour, but the case is important because it was the first time of the - - -

GUMMOW J: It was not dealing with the sort of problem you are throwing up to us.

MR FRASER: No, but I suppose I am addressing the case because our opponents say that it resolves matters against us.

GUMMOW J: I understand that. Justice Dawson is probably the leading judgment when one works out what the majority and the minority were.

MR FRASER: Yes. At page 256 Justice Dawson refers to the step-by-step approach. We make the point that of course this case was dealing with a situation where an applicant did advance discovery of a new fact as the basis, and in the middle paragraph on that page – I will let your Honours read that.

GUMMOW J: How do you fit all that in with what Justice Hayne was putting to you as the particular material fact here, which is personal position, really, as to timing? It is better to sit by and wait for the moment because things are going to turn out better – other things, collateral things, are going to turn out better. For example, a threat of prosecution was - - -

MR FRASER: Yes, it does involve, I suppose, to that extent, a step-by-step approach because you have to focus upon the position of an applicant at any given time and you say at that time what did the applicant need to know, if we take the first step, and - - -

GUMMOW J: Need to know to what, though?

MR FRASER: In order to make it in his interests to sue, if we talk about it in terms of a requirement of a material fact, and he would need to know that he was freed of the constraints of his actions pleaded in any claim being reported to the Criminal Justice Commission.

GUMMOW J: Is there any discussion in these cases as to what this phrase “own interests” mean in paragraph (ii) put in there by the New South Wales Law Reform and following the New South Wales report we know?

MR FRASER: I cannot bring to mind any detailed discussion of “own interests”. It seems to be fairly self-explanatory in the sense that you look at the individual and you try to ascertain whether or not it would be in that person’s interests to institute proceedings but, as I said earlier, there is no attack upon that conclusion by the State.

To take up the step-by-step analysis in response to what Justice Hayne has put to me, if he knows that he has been terminated, then that may be of a decisive character because he can get on with the litigation free of that constraint. In these cases, because of the findings as to the impact of litigation upon the mental health of the plaintiffs, he would also need to be in the position where he by litigating and, as it were, revisiting the – all the circumstances would have to be pleaded as material facts, he did not further damage his health in each case.

HAYNE J: But that, again, may cast light on the concept of material fact. The fact presently under consideration was discharged from the force on medical grounds. That fact had not occurred.

MR FRASER: That is correct, your Honour.

HAYNE J: That then has to be related to “material fact of a decisive character relating to the right of action which was not within the means of knowledge”. It had not occurred, it was not within the means of knowledge is the step you would have us take.

MR FRASER: Yes, your Honour.

HAYNE J: But does the occurrence of a subsequent fact making litigation advantageous to the plaintiff fall within the description of material facts relating to a right of action?

MR FRASER: It can, your Honour. The instance of termination we put forward as being one of those very examples, because it will set the meter running for the economic loss. It will mean that the plaintiff there can say, “Well, my employer resolved that I was too unwell to continue in that employment”. That is something that is established by determination. “My economic loss commenced from that date. It is advantageous for me in another context, but by that context, because it affects my interests, it is in my interests in those new circumstances to sue.”

HAYNE J: Thus the motor accident victim whose working life is shortened by the accident can wait until the termination of work before commencing action.

MR FRASER: It would have to be a slightly different scenario, your Honour, because ordinarily it would be in the interests of a plaintiff to sue once there is a worthwhile cause of action. It will only be in those circumstances where an applicant says, “Well, that is so. It is in my interests so far as the quality of my cause of action is concerned but there are these specific features of my circumstances which render it not in my interests to sue”, and at that point he can establish a negative criteria, if he needs to say, “What do you point to which makes it in your interests?” and he says, “The point of termination has a characterisation of two different kinds, that is, it releases me from that restriction and it is relevant to the assessment of my damages.”

GUMMOW J: Is there anything else you want to get out of Do Carmo?

MR FRASER: I was going to take your Honours to the passages where his Honour referred to the negative test. If your Honours go to what his Honour said at page 255, about point 9, about what the appellant says he did not know, his Honour there is, we submit, moving in the right direction. Then his Honour goes further. At page 258 about point 5 he asks the question:

Was the lack of knowledge of an alternative safe system of work –

and he puts it as “the lack of knowledge” –

a material fact - - -

GUMMOW J: It is really I think the fourth sentence:

Whatever else may be said of this paragraph of the section, it is clear to my mind that it characterizes as decisive at least each of those facts which must be proved in order to establish a cause of action.

MR FRASER: Yes, and then his Honour poses the question:

The question is whether a reasonable man, having received appropriate advice, would regard at least that concatenation of facts as showing “a reasonable prospect of success”.

Of course, in the circumstances of the case, his Honour does not have to refer to the damages because the new fact is not referable to damages and neither does his Honour have to refer to the “own interests” aspect.

GUMMOW J: That is right. It was not a problem. It was not perceived in the arguments as an issue.

MR FRASER: Although perhaps his Honour displayed some prescience in the earlier remark your Honour read out to us.

GUMMOW J: Yes.

MR FRASER: But the point that we make is, in this case his Honour then answers the question:

In this case the appellant would not have been advised that that prospect of success was shown if the fact of an alternative safe system of work was omitted from the facts –

So his Honour answers the question effectively saying, “You can show that you would not have been advised that you should have brought the action at that stage”, and then proceeds to find for the plaintiff and, in those circumstances, we submit that that actually supports the view that it is a negative test. While your Honours have the case - - -

GUMMOW J: We have to get on, Mr Fraser.

MR FRASER: Yes, your Honour. Perhaps I will just give references to Acting Chief Justice Murphy at 239 point 2, Justice Wilson at 243 point 7, Justice Deane at 250 point 1 and 251 point 3 we submit set out statements to the same effect focusing on the negative test.

Your Honours, we have relied upon the decision of this Court in Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628. There is a passage from that decision which is cited with approval in a decision of the Federal Court of Fersch v Power and Water Authority (1990) 101 FLR 78. Can I ask your Honours to take that decision up.

KIRBY J: You say Sola is cited with approval?

MR FRASER: Yes, your Honour, in this case there is a - - -

KIRBY J: That is very nice of them.

GUMMOW J: That is not quite the way it goes.

MR FRASER: In fact, it is cited as binding the court to find that termination - - -

GUMMOW J: They were construing a different section, a different statute in a different State. This is a Northern Territory appeal.

MR FRASER: Sorry, it was the Court of Appeal in the Northern Territory, I said the Full Federal Court.

GUMMOW J: What do you want to get out of it?

MR FRASER: Only this, your Honour, that in the judgment of Justice Angel, with whom Justice Rice agreed, his Honour said at page 87 at about point 6, after referring to what the learned judge held, about six lines down:

Irrespective of the cause of the termination of employment, and in particular whether such termination (in contrast to his inability to work thereafter) was caused or contributed to by the appellant’s alleged impaired working capacity, and irrespective of whether the appellant’s alleged loss is to be adjudged, if at all, at the date of the tort or the date of the hearing and irrespective of whether the appellant’s alleged pre-trial loss is to be characterised as loss of earning or loss of earning capacity, I am of the view that what the appellant earned between the date of the accident and the date of the hearing, necessarily ascertained by reference to, inter alia, when his employment was terminated, is material to any assessment of the appellant’s damages.

That is the proposition, I think, that your Honour Justice Hayne was raising with me earlier, that you cannot know that you have been terminated until it actually occurs, particularly in this case where that termination only occurs after the exercise of a statutory discretion invested in the Commissioner of Police.

His Honour then goes on to deal with Sola Optical. The passage, which I will not take your Honours to, from the judgment of Chief Justice Asche is at page 82, and his Honour discusses the decision of Sola Optical in the middle of that page.

GUMMOW J: I think we will get what we can out of Fersch. Where do we go now?

MR FRASER: Again, there is another decision that we have referred the Court to of Reid v AGCO Australia Ltd [2000] VSC 363. The relevant passages are at paragraphs 17 to 21. We will not take your Honours to them. They simply indicate that even if you might anticipate termination, then you do not know termination has occurred until it actually takes place. We have already submitted to your Honours that in this case, absent proof of the date of termination, there would be an awful lot of economic loss, past economic loss, which would not be recoverable.

GUMMOW J: Yes.

MR FRASER: Your Honours, we have referred to a number of statutory provisions. They are in part annexed to the State’s argument. They are sections 8.3 of the Police Service Administration Act and section 5.1 of the Regulation. They indicate that a serving police officer can retire by giving three months’ notice or the - - -

GUMMOW J: This is in your written submission, is it not?

MR FRASER: Yes, your Honour.

GUMMOW J: Well, why are we going over it?

MR FRASER: To be complete I suppose.

GUMMOW J: We do read them quite closely.

MR FRASER: Thank you, your Honour. Dealing with the trial judge’s findings in Reeman – and I can deal with this shortly – it is at appeal book volume 3, page 979. Her Honour found that Mr Reeman’s position was that he would not initiate retirement. The references in the evidence to that are at appeal book volume 2, page 698 in paragraphs 127 and 132, which appears on page 699. Her Honour concludes, we submit wrongly, that it was not a new material fact because the economic consequences of his loss were already known, that is that he would be losing his well-paid employment. We submit that is not the point. The point is can it qualify. Your Honours, we have referred to the improvement in health. We can identify from the chronologies the relevant passages. We have given your Honours some reference in the outline.

In the matter of Stephenson, your Honours, the references start on page 5, the second-last entry, 16 February 2001 – do your Honours just want me to read this into the record rather than – and at page 6, the first two entries on that page. In the matter of Reeman, the references are at page 7, the date 25 July 2001 and 10 August 2001, on page 8 for the date 14 May
2002 and late 2002. In the matter of Wrightson, your Honours will find the references at page 5 for the dates 22 February 2001, 9 March 2001, May 2001 on the bottom of page 5 and going over to page 6. Your Honours, those are the factual matters that I need to refer your Honours to, and those are my submissions.

GUMMOW J: Thank you, Mr Fraser. Yes, Mr North.

MR NORTH: Can I take up one matter that your Honour Justice Gummow has raised in argument with our learned friend. The Queensland Act was passed in 1974. We have copies of the Act as passed for the Court. I have five copies here. I can provide more copies if we need to.

GUMMOW J: Yes, we need a full complement.

MR NORTH: My instructing solicitor has more.

GUMMOW J: That can be done over lunchtime.

MR NORTH: I have them here. Your Honours will see that section 11 provided the limitation period in respect of actions for personal injury where they are arising in “negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of contract”, and it was three years. Our understanding is, but we will have to check this, that the repealed Limitation Acts such as the 1960 Act had always provided three years and three years had been a longstanding provision in Queensland.

KIRBY J: Now, 5 Eliz 2 would be 1957 and 9 Eliz 2 would be 1960. What was the 1957 Act?

MR NORTH: I will have to check that, your Honour. It is a circumstance that somewhere in the back of my mind that that had been a long Queensland issue, but the Act came as a package with a three-year limitation period and with the extension provisions. While your Honours are with that 1974 Act, section 30 was amended in 1996. If your Honours have an opportunity to compare them, you will see that in the Act as passed there was a subparagraph (c) to section 30 that referred to the definition of “appropriate advice”. In 1996 that was amended to move that paragraph effectively into subsection (2) of section 30 and so what had been (d) became (c). Now, it does not materially alter, as we read it, the Act and the Act as bear upon issues that concern the Court, but in case your Honours in your travails through the jurisprudence in Queensland come across - - -

GUMMOW J: You mean the case law?

MR NORTH: - - - yes, your Honour – as urged by our learned friends, see a slightly differently worded section 30, that is the explanation. Your Honours; the only change to section 31 from the Act as passed to the current Act was by Act No 87 of 1981 which added in words at the end of subsection 1 “or damages in respect of injury resulting from the death of any person”. It seems that when the Act was passed they had overlooked that it had not covered Lord Campbell’s claims. Similar words were in fact added into section 29(2)(b) and also in section 11, the limitation provision section.

Your Honours, also arising out of the interests in Queensland’s three-year limitation period, we attempted to extract in annexure 5 to our submissions a schedule that compared the relevant limitation periods for Australia and, of course, as luck would have it, we did not cover ourselves with glory in proofreading the provisions. We drew upon a publication by Mr Handford that will be referred to in our outlines, The Law of Limitations, that was published last year in this country.

GUMMOW J: This is Professor Handford’s book?

MR NORTH: Yes. We acknowledge this, but we drew upon his schedule. What we failed to do was correctly put in the New South Wales provisions. The other States are accurate. Can I hand copies of the relevant pages of Professor Handford’s book? There are three year provisions in the Northern Territory, Queensland, South Australia, Tasmania and a rather complicated six and three year provisions in New South Wales and Victoria and the Australian Capital Territory, it would seem. So all we seek to draw from that is that the notion of a three-year limitation period with respect to personal injury claims is neither new nor startling.

Your Honour the presiding Judge has indicated your Honours will have to go through the facts. Can I just assist you? In each of the cases the trial judges held that before the commencement of the year preceding when the actions were commenced each of the plaintiffs knew that they were permanently incapacitated for police work. Your Honours, that arises because that date is important. There are two important dates. The first is – that is in section 31(2) – the date that “until”, or if you read “until” as “before”, refers to, that is that the material facts so characterised must not have been “within the means of knowledge” before the first two years of the limitation period expired. So it must come to the knowledge some time from when the third year starts to run, but the extent of the discretion for the exercise of the extension is for one year after the date that the knowledge came to the attention, and that is found from the concluding clauses in subsection (2).

So, if you are dealing with rather lengthy delay and where plaintiffs have finally commenced proceedings, usually the courts then go back a year from the date when the action was commenced and say, “Was there a relevantly described material fact that was new within the knowledge of the plaintiff?” In the cases here, as has been said in the outlines, the crucial dates were for Messrs Stephen and Wrightson who commenced their actions on the same day, that is 20 December 2001, the critical date, as it has been called in the outlines and since the start of these trials, was therefore 20 December 2000. Mr Reeman commenced his proceedings on 22 July 2002. Consequently, the critical date for Mr Reeman was 22 July 2001.

All cases were tried on the basis that, as outlined by our learned friends, relevantly, the findings that were made by the trial judges can be found in the records in Stephenson by Justice McMurdo at paragraph [12] of his reasons at volume 1 of that joint record at page 414 and repeated at paragraph [31] at page 416. Essentially, his Honour concluded that what was known by Mr Stephenson about his capacity to continue in the police service come what may, in respect of this question of retirement, relevantly he was aware of all the material facts, as his Honour understood them, as defined under section 30(1)(a) and in particular (iv).

Also, he had knowledge sufficient to answer affirmatively to the test in section 30(1)(b)(i) that by that time he knew that an action would have reasonable prospects of success and resulting in an award of damages sufficient to justify the action. That is because he knew his career was over. Relevantly he applied to be retired from the service by an application that was hand-dated by him of 26 October 2000 but I think the evidence might have been that it was not formally submitted until a date in November. That is why your Honours might find, in reading Justice McMurdo’s judgment, reference to November as the date by the time by which.

GUMMOW J: So we had got down to paragraph (b)(i).

MR NORTH: Yes. Similar findings were made by Justice Holmes in Reeman. Can I refer your Honours to her reasons at paragraph [12], volume 3 of the joint record at page 980 and elaborated upon at paragraphs [20] and [36] of her Honour’s reasons at respectively pages 983 and 987. The evidence in Mr Reeman’s case was that for some months in early 2001, remembering that the crucial date is that date of 22 July 2001, he had been talking with officers of the police service about retiring. The findings were that he told the police service, “I won’t apply but if you initiate the process, I won’t oppose it”. In early 2001 the police service wrote and initiated the process. It did not crystallise into finality until within the 12-month period we talk about – and that is the case in each case with these men – but it had been initiated beforehand.

In Wrightson for the purposes of just the evidence, your Honours will see the judgment of Justice Helman at paragraphs [8] and [9] in the application record at page 271 and crucially his Honour held in paragraph [8] that he accepted that the requirements of section 30(1)(b)(i) had been satisfied by early October 2000. It was 4 October that Mr Wrightson submitted his application. The evidence was his treating psychiatrist had since April been advising him that it was in his medical interests and the interests of his health to retire from the police service. He accepted that in October, had initiated the process, hoping to achieve an advantageous superannuation separation without having to contemplate just resignation.

His Honour observed in paragraph [9] that if that was all to the case then that would be enough to dismiss his application for the extension of time. The question in Mr Wrightson’s issue was whether it was then in his interest because of his health to commence proceedings or not.

Your Honours, there is evidence scattered through the records about this retirement process. Can I just read into the transcript some references to help your Honours? There is an affidavit by Mr Dennis Sidney Sycz in the Wrightson record at page 247. Mr Sycz was a union official from the Police Union. He said in paragraph 7, which is on page 248, that in practice, an application for retirement could be commenced by either the police service or by a serving police officer.

We draw attention to that because Justice Gerard in his judgment in Wrightson in the Court of Appeal at paragraph 50, which is at page 293, placed great emphasis upon the direction to retire. It may be said that section 8.3 of the Police Service Administration Act 1990 when it talks about retirement on medical grounds talks in terms of a direction, it might be inferred that it is in those terms so that the police service can require somebody to separate who the police service considers is medically unfit, but in practice either could apply and proceed.

Your Honours will see that from the forms that were submitted by the gentlemen. In Mr Wrightson’s case, those forms will be seen at pages 253 to 259 of the appeal record. Your Honours will see at page 253 Mr Wrightson signed it at the foot and he is the applicant. The subsequent pages contain endorsements from co-workers and others as to whether they support the application. At page 257 was a medical assessment form completed by Dr Unwin, the treating psychiatrist, and at page 259 there was attached to this form “INFORMATION FOR APPLICANTS” and your Honours will see, for example, references to not only it being an application by a police officer but that that paragraph 3 encouraged them to quote their superannuation benefits and others, so it was clearly within the contemplation of the gentlemen that superannuation had important consequences in this context.

KIRBY J: Do you understand that any of these facts that you are telling us are in contest?

MR NORTH: No, your Honour.

KIRBY J: Why did we not get a succinct statement in each case that would have saved us having to plough through all the material, including the transcripts, to - - -

MR NORTH: It might be my fault, your Honour. We read the applicants’ outline and saw very little that we sought to contest by way of the facts that they put in issue. We have added some - - -

KIRBY J: They mainly focus on the legal arguments and assume that we know a lot about the facts.

MR NORTH: I know, your Honour, and I will take responsibility for that. In retrospect, the essay should have been longer with more facts.

GUMMOW J: Anyhow, I am not sure it should have been longer.

KIRBY J: I am just grumbling. It is that time of the year.

MR NORTH: I can understand.

GUMMOW J: Anyhow, are there any more matters that you need us to note?

MR NORTH: No, your Honour. Identical forms were submitted by Stephenson, and your Honours will see those in the appeal book volume 1 at pages 377 to 385, correspondingly because the police service, at Mr Reeman’s request, initiated the procedure the initiating document was a letter from the Queensland Police Service to Mr Reeman, and your Honours will see that in the appeal book at volume 2, page 744 to 745 dated 10 May 2001.

Your Honours, there was evidence in the matter of Wrightson that about 92 per cent of these applications at about the relevant time were successful. There is an affidavit of a Mr Bailey in the Wrightson record at pages 249 to 250. It showed that in the period stated from October 1997 to October 2000 there were 182 applications, of which 167 were successful, and some of those that were unsuccessful were merely withdrawn; they were not rejected. My calculations this morning with the calculator has it at 92 per cent.

HEYDON J: Are you talking about exhibit SFHB1?

MR NORTH: I apologise, your Honour.

HEYDON J: It is not in the affidavit. Is it in that exhibit?

MR NORTH: I am talking about Mr Stephen Frank Herbert Bailey’s affidavit at page 249 of the Wrightson record to 250.

HEYDON J: You said 251.

MR NORTH: I apologise, I did give you 249 to 250. Those facts reveal 92 per cent.

GUMMOW J: Now, can we get to the heart of the matter?

MR NORTH: Yes, your Honour. Your Honour, these gentlemen knew that their career in the police service was over. They relevantly knew, therefore, as was found in Reeman and Stephenson, that whatever the outcome of the application for retirement, which had very advantageous superannuation consequences for them, they knew they had no career left in the police service. Consequently, as the findings by those two judges demonstrate, and Justice Helman’s findings demonstrate, what was within their knowledge was that they had a viable cause of action for substantial damages and that they were going to suffer within the immediate future, be it by resignation or retirement, a considerable diminution in their capacity to earn income because they were going to have to separate from their permanent employment and seek work in an open labour market as very ill men. That was known to them, as the findings were.

GUMMOW J: How do you then translate that into the section?

MR NORTH: We translate that in this way, that at the time that the findings relate to they knew the nature and extent of the personal injury so caused within section 30(1)(a)(iv). Consistent with the observations in this Court in Harris that we refer to in our outline, Harris v Commercial Minerals [1996] HCA 49; (1996) 186 CLR 1 at 12 in the judgment of the Court. It concerned the New South Wales Act but it concerned the phrase “nature and extent of the injury” so caused, and there it was observed by the Court that:

although the applicant knew that he had a disc lesion, he was unaware of “the extent” of his injury because “he did not know it would or could lead to a surgical fusion or unfitness for work”.

Here, these men knew that their illness had caused them to be unfit for work. That being so, the State submits in each case that the requirements of section 30(1)(b)(i) were clearly satisfied and therefore it follows that the applicants or the plaintiffs are unable to demonstrate that there was a material fact so categorised as decisive relating to a right of action not within the means of knowledge within the relevant timeframe. The arguments that we address in our outline concerning the approach of Justice Davies that known facts can subsequently categorise themselves - - -

GUMMOW J: Could you just explain again what your submission is about (b)(i) and (b)(ii).

MR NORTH: The findings that were made by Justices Helman, Holmes and McMurdo in each case were that at the time in the institution of proceedings, that is when this critical date was – and at the time of the applications for retirement, that instituting proceedings would be contrary to the interests of their health. In other words, that it might make them more ill. Justice Helman held that consequently the known material fact was not decisive at that time because it was not in the interests because of health reasons. In other words, his Honour held that, although all material facts relating to the right of action were known, because of the personal circumstances relating to health, it was not in the interests of these proceedings; therefore the section had not been the jurisdictional provision.

HAYNE J: Can we treat separately for the moment and perhaps join later this question of the plaintiffs knowing that they were permanently incapacitated for police work at the times you have identified from the question about improvement in health. The plaintiffs put two material facts against you. One, the fact of discharge from the service as medically unfit. I understand the answer you make to that is that, knowing that you are permanently incapacitated for police work, the subsequent fact of discharge from the service is not a material fact.

MR NORTH: Yes, your Honour.

HAYNE J: But for the moment I do not understand the submission you make about the second and alternative material fact advanced against you, namely improvement in health is the relevant material fact.

MR NORTH: We have difficulty understanding what our learned friend’s submission is on this point. The arguments at trial certainly were that to commence proceedings were not in the interests of the health, and there were clear findings in, for example, Wrightson. In Reeman an attempt was made to argue before Justice Holmes that there was evidence that Mr Reeman’s health improved after the critical date. Her Honour rejected that submission and held that the evidence did not demonstrate that and that is found in paragraph 38 of her Honour’s reasons at volume 3, page 988. So far as we can determine, there was no appeal against that conclusion.

There was no appeal or submission, that I can recall, that in Stephenson or Wrightson their health relevantly improved after their retirement after the critical dates, that there was a change in their health for the better. In any event, your Honours, we do not see that changes in health that go only to circumstances are material facts because where you have a psychiatric condition that has been long ago diagnosed with a history of fluctuations over the years, occasional fluctuations cannot be categorised as material facts but merely just episodes of the disease. It would be a bit like the person with the bad back or with a bad leg saying that they had good days and bad days or good weeks and bad weeks. So what? That is just because, from time to time, with an injury or an illness there will be variations in the symptomatology. That does not go to the fact of an illness; that just goes to the history of the illness.

In short, we submit that this issue about fluctuation in health, whether the health was bad at the time decisions had been made should have been made or the health might have improved later on, does not lead anywhere because, we submit, it is not a material fact relating to a right of action and we say a lot about that in our outline, or, as in the New South Wales Act, relating to a cause of action. It is not a material fact that goes to the heart of the cause of action you must prove in order to succeed.

Can I put it this way, the division in Do Carmo between the majority and the minority, the minority judges talked about secondary factors and they categorised the piece of evidence, and if I can use it neutrally as a piece of evidence, that is the knowledge there were alternative systems. The majority characterised that as a material fact going to the heart of the cause of action. The minority did not gainsay that that piece of evidence could be very important given the case because there might be issues about whether there were alternatives. What was in the minority view was that the part of that material fact was that there were no precautions taken and that the question of what precautions might have been taken was secondary to what they saw as the more fundamental point that was material was that there were no precautions.

Now, we do not ask the Court to reconsider Do Carmo on that point but questions about illness and degree of injury are secondary matters, by and large, unless there is a new and dramatic change that occurs that uncovers a new injury or a much worse injury than was previously understood in the context of what was adverted to in this Court in Harris. For example, our learned friends rely upon dicta and passages from the judgments in Royal North Shore Hospital.

As we point out in our outline what is of crucial interest in Royal North Shore Hospital is that only a few months before the action was commenced a doctor diagnosed Mr Henderson of suffering from a previously unknown and very grave disease that had complications including possible spasticity and/or tetra or quadriplegia and that it had been caused, in his opinion, by the treatment that had been meted out in 1972.

In that case all the discussion by the judges about what was reasonable in the circumstances flows from – and the discussion of what was decisive – flows from the fundamental fact that it was only in 1983, some months before the action was commenced, that this diagnosis occurred. In other words, there was a massively new material fact. That can be seen in that – if I can give the references very briefly.

GUMMOW J: It is (1986) 7 NSWLR 283.

MR NORTH: Thank you. I am indebted to your Honour. Your Honours will see that in the judgment, for example, of Justice Samuels at page 288 at about point F. Your Honour can note in the judgment of Justice Hope at page 285D he refers to the “grave” new disease that was newly discovered. The fact was that it had only been diagnosed a few months before the action was commenced.

That was the only injury for which Mr Henderson sought an extension of time, that newly discovered injury. He was still prepared to forgo all the old injuries he had always known about years before. When read in that light we do not see anything particularly startling in Royal North Shore Hospital that affects our client’s position. Equally, where our learned friends press the dicta of Justice Clarke in BHP v Waugh at 370 can we just observe that - - -

HEYDON J: In 14 NSWLR 360.

MR NORTH: I apologise, your Honour.

GUMMOW J: At 370?

MR NORTH: At page 370 our learned friends refer to the passage at about point C down to point E.

GUMMOW J: Yes, we were taken to that.

MR NORTH: You have been taken to that. In that context his Honour is referring to – the argument was put up by the defendant that Mr Waugh might have been able to find out about all of this if he had been a bit more diligent. That is why this dicta, that is the fact that he did not know it and was not within his means of knowledge, is important. What is interesting in BHP v Waugh is – and your Honours will pick this up if your Honours read pages 368 to 369 – that the finding that was made in the Court of Appeal was that it was not until 14 December 1984 that Mr Waugh came to know that what he was suffering from was an asbestos-related disease. Until then he had had some hint from his doctor perhaps in October that that might be a suspicion but it was not until December that some tests had been performed and the tests had clarified that position. He commenced proceedings within 12 months of finding out that date.

The same can be said of the single justice decision of Tiernan our learned friends have referred to in the footnote in their outline. It is a Queensland decision unreported. It is Tiernan v Tiernan [1993] QSC 110, a decision of Justice Byrne. Can we only observe that in that case also where there is a lot said about decisive circumstances and considerations concerning what Ms Tiernan ought to have done, his Honour makes it clear in the judgment that there was a new fact that came to her attention within 12 months before she commenced proceedings. That was that she learnt as a result of conversations with friends and from what she was told by her treating doctor that there was a connection between the psychiatric and psychological symptoms that she suffered from and the abuse that she had suffered as a young woman many years ago.

KIRBY J: I see that the foster parents were called overly religious and unloving people.

MR NORTH: Yes, your Honour, it is a very unhappy case, evidently, and in very tragic circumstances, and his Honour made the interesting observations about what might have been the advice given in the 1980s with no knowledge then by lawyers and what might have been given in the 1990s with more knowledge, but all his Honour’s observations about that go to the circumstance that there was a new material fact, this causal connection.

Your Honours, our learned friends have also attempted obliquely in argument to submit that because the date of retirement is relevant to a calculation of past economic loss that becomes a material fact. In our submission, that elevates that particular date which has evidentiary value in a calculation far beyond its significance. It does not have the significance, if it only has a relevance for a precise calculation as opposed to approximate calculation leading to an award of a material fact.

HEYDON J: The damage was the loss of capacity?

MR NORTH: Yes, your Honour.

HEYDON J: It is measured by the loss of earnings in the future which you depict the date of dismissal as the way to start calculating the money, and your point is that the damage occurred when the stress or stressors became present in the officer’s life.

MR NORTH: And they came to know that they should retire or resign, yes, your Honour. Your Honours, our learned friends make much of the negative test. Your Honours, we do not see that that issue is decisive, that issue of the negative test is decisive. The findings were that all facts that could possibly be characterised as material were known or ought to have been known.

Questions of illness, health and questions of negotiating or manipulating or facilitating the best superannuation payout may well go to issues of what is in somebody’s interest in the circumstances as they may subjectively concern, but the test in that (ii) is still essentially objective but taking somebody’s interests and circumstances into account.

GUMMOW J: “Ought”.

MR NORTH: Ought, your Honour, yes. In one case that I can give your Honours a citation to because it was referred to by Justice Holmes in her judgment - we have not put it on our list, and I will merely give a citation – I will come back to it.

It has been long established in Queensland that this is essentially an objective test for taking personal circumstances into account, so with a slight subjective overlay but at the heart it is objective because of the question of “ought”.

GUMMOW J: Yes, (b) is governed by “a reasonable person”. So you must be right in that sense. The opening words of paragraph (b) postulate “a reasonable person”.

MR NORTH: Yes, your Honour.

GUMMOW J: It is true that (ii) looks to the individual, but it is through the spectacles of this “reasonable person”, so it seems.

MR NORTH: Yes, your Honour. Your Honour, as to the approach, can we refer the Court to Sugden v Crawford, [1989] 1 Qd R 683 in the judgment of Justice Connolly in the Full Court. We will give your Honours just the page references. From page 685, at about point 45:

Implicit in the legislation is a negative proposition –

and his Honour’s judgment down to about halfway down, page 686 at about point 30.

His Honour addresses, essentially, two circumstances that may be material. The first is a newly discovered fact that may affect damages and that is (iv) of section 30 - - -

HEYDON J: Subsection(1)(a).

MR NORTH: And that what you have to establish is that there is newly discovered material that greatly changes the likely award of damages from one where it was, objectively speaking, a case that you might not have considered worth following, chasing up, as Henderson v Royal North Shore had obviously decided. He suffered burns and scarring. That would have led to an award of damages worthwhile of a District Court case maybe but he was being treated by those doctors, but the time for it - - -

KIRBY J: Is the point that the material fact must go beyond signs and symptoms and so on and must have a legal content like Ms Tiernan going into the household with students who happened to be at James Cook University studying whose discussions with her empowered her and made her realise the significance of things that had happened to her?

MR NORTH: Yes, your Honour.

KIRBY J: Is that the idea that you are suggesting?

MR NORTH: Yes, your Honour.

KIRBY J: It is not enough to know facts of a general character. It has to have something that propels the person towards doing something about it.

MR NORTH: Yes, your Honour, because - - -

KIRBY J: I am just trying to understand your theory of the statute.

MR NORTH: Certainly in terms of the first limb of what is decisive under section 30(1)(b), that plays an important role. The notion of the material fact relating to a right of action or relating to a cause of action, if your Honours look at the inclusive – I know it is an inclusive definition but the provisions in those five subheadings, and understand the nature and extent of the injury, as has been held by this Court and other courts, it goes very close to the elements of the cause of action that must be pleaded and
proved. Certainly the requirement of (b)(i) incorporates something of the notion your Honour is talking to because it involves a person who ought in their interest take advice and would consider based on that advice that there was an action worth pursuing. So we commend the observations of Justice Connolly there about both issues relating to damages and then, at page 686, issues relating to points with respect to negligence.

Your Honours, in our submission, the plaintiffs’ case comes down to an attempt to elevate personal circumstances and interests and changes in personal circumstances and interests to the category of material facts relating to a right of action. That is personal circumstances or interests of the nature that we are talking about here. Because the sorts of matters that the plaintiffs contended for properly understood in light of the Act and in light of the leading cases here and elsewhere that we have referred to, they do not satisfy the jurisdictional test that your Honour the presiding Judge raised at the outset today. That is what we attempted to do in our outline, was to highlight that.

The reference to that point I was making, your Honour, about it being an objective test but with a subjective – a decision of Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 at 471 and it is again a judgment of Justice Connolly. There have been subsequent cases that have made similar pronouncements and - - -

GUMMOW J: Justice Connolly will do. Is that on the list? It is not at the moment, is it?

MR NORTH: It is not and I apologise for that. That is why I had to have it dug out. Unless I can assist your Honours with - - -

GUMMOW J: Yes, thank you very much, Mr North. Yes, Mr Fraser.

MR FRASER: Your Honours, it was said that there was no challenge to the finding made by Justice Holmes that there was no improvement in health. With respect, that is not a correct proposition. At the joint appeal book, volume 3, page 992, ground 2(d) squarely puts that matter in issue and there was a challenge to that. We have given the Court references to the evidence in our primary submissions and our reply submissions but there is another passage I should have mentioned in the affidavit of Mr Reeman at page 701 of volume 2 of the appeal record at paragraph 142.

HEYDON J: Can you give me that first reference again ?

MR FRASER: Paragraph 142, which is on page 701 of the appeal record at volume 2, but otherwise I think we have given your Honours all the references.

HAYNE J: Now, is the argument about the health ground as the second of the material facts articulated at paragraphs 103 and following of your principal submissions and paragraphs 23 and following of your reply submissions, is that it?

MR NORTH: I think so, your Honour. From recollection that is right, without wasting the Court’s time going to it. Thank you, your Honours. There is really nothing else that I need to respond.

GUMMOW J: Yes, thank you very much, Mr Fraser. We will consider our decision in these first two appeals and the special leave application. We will adjourn until 2.15.

AT 12.44 PM THE MATTERS WERE ADJOURNED