Express law No. 40

23 June 2006

Responding to applications to extend limitation periods

All government agencies may find themselves as respondents
to an application to extend time. The judgment in Blunden
illustrates a number of the key principles any agency
opposing such an application should consider.

Blunden v the Commonwealth

[2006] ACTSC 58 (9 June 2006)

The plaintiff, a former sailor on HMAS Melbourne,
had sought an order under s 36 of the Limitation Act
1985 (ACT) extending the period within which he could
bring an action against the Department of Defence for post
traumatic stress disorder and other injuries he claimed
to have suffered as a result of witnessing the collision
between HMAS Melbourne and HMAS Voyager in
February 1964. Crispin J dismissed the application on the
grounds that he was not satisfied that it would be 'just
and reasonable' to extend the limitation period as
sought. The plaintiff has lodged an appeal to the ACT Court
of Appeal.

Applications to extend limitation periods

Each Australian jurisdiction has legislation limiting
the time period in which an action can be brought. These
limits reflect the view that, as the High Court observed
in Brisbane South Regional Health Authority v Taylor (1986)
186 CLR 541, the quality of justice deteriorates with the
passage of time, and people should be free to arrange their
affairs on the assumption that they are not going to be
sued after the relevant period has elapsed.

Courts in all jurisdictions have a statutory discretion
to extend the limitation period. The legislative provisions
governing the exercise of the Court's discretion
vary from one jurisdiction to another, but typically require
the plaintiff to demonstrate it would be 'just and
reasonable' to extend the period, having regard to
the factors set out in the particular legislative regime.
As Crispin J pointed out in Blunden, it is not sufficient
for a plaintiff to show he or she has an apparently good
claim, and a good explanation for not pursuing it earlier.

Key principles for opposing applications

The Legal Services Directions require all government agencies
subject to the Financial Management and Accountability
Act 1997 to plead the expiry of an applicable limitation
period, and to oppose any application to extend time, unless
the Attorney-General (or his or her delegate) gives approval
to do otherwise. Approval to consent to an application
for an extension of time will only be given in exceptional
circumstances or where it is expected that the application
will succeed.

Although any agency opposing an application to extend
time will need to have close regard to the provisions of
the particular legislative regime, the decision in Blunden illustrates
some key general principles for opposing applications.

A defendant should be able to demonstrate the prejudice
it would suffer if the plaintiff obtains an extension of
time

Courts readily accept that long delays have the potential
to cause defendants to suffer prejudice. But to rely on
prejudice to defeat an application for an extension of
time, a defendant should be able to demonstrate the actual prejudice
it would suffer at trial. In Blunden, the defendant
submitted it would suffer prejudice in disputing two key
issues, namely the plaintiff's claim that his psychological
conditions were caused by witnessing the sinking of HMAS Voyager,
and the extent of the plaintiff's disabilities. In
support of this submission the defendant filed affidavits
carefully describing its solicitors' extensive efforts
to gather evidence. These efforts included attempting to
locate the plaintiff's fellow sailors, colleagues,
doctors and friends, and issuing notices for non-party
production to organisations that may have held relevant
documents, such as former employers and treating doctors.

A defendant's prejudice is exacerbated by a plaintiff
who is shown to be an unreliable witness

Crispin J held that in circumstances where the plaintiff
is shown to be an unreliable witness it becomes even more
important that the defendant have access to material to
test the plaintiff's claim (see also Commonwealth
v Diston (unreported) 2003 NSWCA 51 at [51]). In Blunden,
the defendant pointed to numerous inconsistencies within
the plaintiff's own testimony, as well as to inconsistencies
between that testimony and those documents that could be
found. This type of submission can be made without having
to demonstrate that the plaintiff is dishonest; in Blunden,
Crispin J found that plaintiff's unreliability may
have been the result of his long term alcohol dependency,
psychological illness or perhaps a subconscious attempt
to reconstruct his life history.

The evidential burden of proof favours the plaintiff
where there is missing evidence

It has been suggested that given that the plaintiff bears
the ultimate legal burden in any trial, it is in fact the
plaintiff – not the defendant – who is disadvantaged
by an absence of records (e.g. Shaw v Commonwealth of
Australia [2005] NSWSC 1027 at [53]). However, Crispin
J's judgment recognises that in practice a plaintiff's
oral evidence in support of his or her claim is likely
to be accepted unless the defendant can point to contradictory
evidence. In these circumstances, it is clearly the defendant
who is prejudiced by the absence of documents (see also Chappel
v Hart (1998) 195 CLR 232 at [93] and Cavenett v
Commonwealth of Australia [2005] VSC 333).

A defendant should consider all factors in preparing
its case

In many cases, a defendant's opposition to an extension
of time will turn on the question of prejudice. However,
it is also important to consider the other factors identified
by the relevant limitation period legislation – in
the ACT, these included whether the plaintiff acted promptly
once he or she knew the defendant's act or omission might
give rise to an action, and the duration of the plaintiff's
disability. Consideration of these factors may generate
new lines of investigation and submission, but even when
it does not, it may be necessary – depending on the
wording of the legislation – to ensure that the court
explicitly considers each factor in deciding whether it
is just and reasonable to extend the limitation period.

For the full text of the decision, go to: http://www.courts.act.gov.au/supreme/judgments/blunden.htm

For further information please contact:

Declan Roche
Senior Lawyer
T 02 6253 7450 F 02 6253 7384
declan.roche@ags.gov.au

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