Stingel v. Clark
(2006) 228 ALR 229[2006] HCA 37
(Judgment by: Kirby J)
Stingel v.
Clark
Judges:
Gleeson CJ
Gummow J
Kirby JJHayne JJ
Heydon JJ
Callinan JJ
Crennan JJ
Judgment date: 20 July 2006
Canberra
Judgment by:
Kirby J
79 This is an appeal from a judgment entered by the Court of Appeal of the Supreme Court of Victoria. [79] For the purposes of the proceedings, that court was exceptionally constituted by five judges. It was divided as to the outcome. [80]
80 This court too is divided over the meaning and application of the provisions of the Victorian statute applicable to the cause of action for which Ms Carol Stingel (the appellant) sued Mr Geoffrey Clark (the respondent) for damages. That statute is the Limitation of Actions Act 1958 (Vic) (the Act) as it stood in 2002, when the proceedings were commenced.
Section 5(1A): application and ambit
81 The application issue : The point of construction upon which this court has divided was not the subject of divided opinions in the Court of Appeal. This is because, upon that point, there was established authority of the Court of Appeal which determined the point in favour of the appellant. [81] The point was argued in the proceedings below. However, the Court of Appeal adhered to its earlier decision.
82 When the Court of Appeal decided the case adversely to the appellant on another point of construction arising under the Act, the appellant sought special leave to appeal to this court. In that application, the panel granting such leave indicated that if the matter were to be considered by this court, it would be preferable for the entire controversy to be submitted to examination. [82] So it has been. This appeal thus presents two issues arising under the Act. The first, in point of logic, is raised by the respondent's notice of contention. It concerns whether the provision upon which the appellant relied to bring her proceedings, s 5(1A) of the Act, 31 years after she was allegedly sexually assaulted by the respondent, applied to her case. Normally, by s 5(1) of the Act, actions founded on tort shall not be brought after the expiry of 6 years from the date on which the cause of action accrued. However, to this general provision, s 5(1A) provides an exception. [83] This presents the "application of the section" issue. It concerns whether s 5(1A) of the Act attached to the circumstances of the appellant's cause of action so as to extend the time within which the appellant could bring her proceedings, notwithstanding the delay.
83 The ambit issue: The point of law on which the Court of Appeal divided was different. It concerned the ambit of s 5(1A) of the Act, once it was decided that it attached to the appellant's claim. In effect, by reference to the statutory text, its alleged purposes and extrinsic materials, the respondent suggested that s 5(1A) was confined in its operation to causes of action founded on insidious diseases, such as mesothelioma or asbestosis, the initial acquisition of which was unknown to the person affected. Upon this view, the subsection was not available for late onset post-traumatic stress disorder such as the appellant alleges has arisen after 26 August 1996 as a consequence of the 1971 rapes and assault pleaded against the respondent.
84 This ambit issue is presented by the appellant's appeal. But logically, it came second because, if s 5(1A) of the Act has no application to a case where the action for damages arises from trespass to the person, no issue is presented for the extension of the limitation period for which s 5(1A) provides. Indeed, no other exceptional and discretionary provision could be invoked under s 23A of the Act to postpone the descent of the limitation bar. [84] This is because the formula which creates the suggested impediment for the appellant as to the application of s 5(1A) of the Act also appears in s 23A. [85]
85 In this court, the application issue is decided in favour of the appellant by Gleeson CJ, Callinan, Heydon and Crennan JJ (the joint reasons) [86] and by Hayne J. [87] It is decided adversely to her claim by Gummow J, [88] who does not, therefore, have to decide the ambit issue. The joint reasons also decide the ambit issue in favour of the appellant. [89] I must choose between the competing interpretations and explain why I prefer one over the other.
Two perfectly legitimate interpretations
86 Two final court decisions : The history of judicial consideration of the same, or similar, statutory language is described in the reasons of other members of this court. That history shows the division of judicial opinion on the application of the relevant provisions and an acknowledgment that each of the contesting interpretations is well supported and strongly argued by its respective supporters such that the competing arguments produce "two perfectly legitimate viewpoints". [90]
87 The position has now been reached that the two final national courts that have examined counterparts of the contested provisions (the House of Lords [91] and the Supreme Court of Ireland) [92] have concluded that the better view is that the statutory words do not extend to claims founded on intentional trespass. The holdings of these courts are not binding on this court. Each was aware of the conflicting opinions of other judges. Each referred to the relevant considerations in reaching its preferred conclusion. Each acknowledged the importance of avoiding an overly narrow and purely verbal approach to the problem. By reference to the applicable considerations, each concluded that the better interpretation was that the relevant provisions did not apply to a case such as the present.
88 Material and immaterial conclusions : This is also the conclusion that I have ultimately reached. It leads me to concur in the orders that Gummow J favours. But first, out of respect for the contrary views, I will indicate the main considerations that lead me to this result. No judicial authority dictates the outcome. Chauvinistic considerations concerning the preponderance of Australian authority against it must be set aside. [93] Generalities about the remedial or reformative character of s 5(1A) do not resolve the controversy. [94] The question remains what precisely was the introduction of s 5(1A) into the Act intended to accomplish? To answer that question it is necessary to turn to the statutory language. That is where the search for the meaning of the legislation must always start. [95] Ultimately, it is where the solution will be found.
89 As I approach this appeal, four considerations are of assistance in guiding me to my conclusion. These are the text of the Act, the context in which s 5(1A) appears in the Act, the legislative history, and considerations relevant to deriving the legislative purpose and policy of the Act.
The provisions of s 5(1a) do not apply
90 The statutory problem : The problem presented by the terms of s 5(1A) of the Act can be simply stated. It is illustrated by the alleged facts that give rise to the appellant's proceedings and the operation of the Act upon those facts. The details are set out in other reasons. [96] No facts have yet been found. The case has proceeded on the assumption that, in a trial, the appellant could prove the facts that she has alleged in her pleadings.
91 For the first (application) issue, the question is whether the appellant's claim, as pleaded, answers to the description of "an action for damages for ... breach of duty" within s 5(1A) of the Act notwithstanding that it is an action based on the alleged acts of assault and rape that the appellant pleads against the respondent in her claim for civil damages.
92 Arguments for application : A number of arguments have been deployed to support the proposition that wrongs comprising intentional trespass involve a "breach of duty", in the sense in which that expression is used in s 5(1A). They are re-expressed in this appeal by the joint reasons. They include scrutiny of the possible purpose that parliament might have had to exclude intentional trespass from the remedies introduced by the enactment of s 5(1A); [97] the apparently anomalous and unjust consequences of that differentiation between particular cases; [98] that the construction propounded for the respondent would place victims of intentional torts in a less advantageous position than victims of negligence; [99] the added injustice of excluding the beneficial application of s 23A of the Act because of the use in that section of the same expression; [100] the difficulty of distinguishing trespass from negligence in particular cases; [101] and the capacity to dispel the suggested problem by the simple device of treating "breach of duty" as a phrase used in a non-technical sense. [102]
93 Thus, in the present case, the appellant argued that a person such as the respondent "owed a duty", in a moral, personal and societal sense, not to assault or rape a person such as her. Viewed in this way, and in the overall remedial context of the Act into which ss 5(1A) and 23A were introduced, the supposed problem then disappears. The phrase "breach of duty" is wide enough, on this view, to include cases of intentional trespass. Judicial conclusions to this effect remove what is regarded as an anomalous and harsh outcome for legislation that was generally intended to be remedial and reformatory.
94 I acknowledge the force of these arguments. All limitation statutes involve a compromise between interests favouring the finality of risks of liability and the enforcement of rights of action claimed by a person under the law, despite delay in doing so. [103] Often, in judging the application and ambit of a limitation provision, it is necessary to weigh the competing textual arguments against the background of the competing policy objectives inherent in such legislation. [104] The outcome may not be self-evident. The existence of competing arguments is inherent in the ambiguity of language and the conflicting statutory objectives. [105] The present is a typical instance of this problem.
95 The textual arguments : However, the text of s 5(1A) of the Act is strongly against the construction urged for the appellant. The words "breach of duty" are words of common legal use. A breach of duty is a familiar element of the tort of negligence. Similarly, a contract and a statute may create a duty. The word "duty" is a common legal expression used in the context of personal injury claims. That is the context in which s 5(1A) was introduced into the Act. In such circumstances, it is not self-evident that the phrase is used here in other than its ordinary meaning. This is: did the person against whom the action for damages is commenced owe a "duty" in law to the person commencing that action?
96 According to its long title, the statute which inserted s 5(1A) into the Act was "an Act to make provision for Extending the Period within which Actions for Damages in respect of Personal Injuries may be brought". [106] In such a context, there is no reason to introduce a different, alien, notion of "duty". The Act is addressing legal causes of action, as specified. Why should it be inferred that the parliament which enacted it intended for this subcategory of action alone to introduce a different, vaguer, social meaning to the word "duty"?
97 Actions of intentional trespass are amongst the most ancient of the causes of action known to English law. [107] In the absence of strong arguments to the contrary, it is too late to attempt to re-express actions founded on trespass (or to distort their constituent elements) by holding that they include an element of "breach of duty". Section 5(1A), a remedial provision, uses the phrase "breach of duty", but it does not pretend to restate the components of actions of intentional trespass. "Breach of duty" is a notion alien to trespass.
98 The slightest familiarity with the ingredients of intentional trespass demonstrates that this is so. A number of authors have made this point [108] and, in doing so, have given the parliamentary language its ordinary legal meaning. The other identified wrongs on which the action for damages may be founded are apparently used in the Act in a conventional legal sense. The imposition on the phrase "breach of duty" of a looser, non-legal meaning, especially with respect to intentional torts, is therefore difficult to justify.
99 In his reasons, Hayne J resolves this issue by reference to the presumed intention of the Victorian Parliament to enact a law applying to all personal injury claims. [109] However, given the parliament's use of technical language, [110] the words contained in the legislation are inapt to apply to a claim in trespass.
100 Nor can it be suggested that such an interpretation is necessary to give the words "breach of duty", in the context of s 5(1A) of the Act, meaningful work to do. The phrase is by no means otiose. It has express application from the words that follow in parenthesis. The "duty" envisaged in s 5(1A) may exist by virtue of a contract or of a provision made by or under a statute. It may exist independently of a contract or a statutory provision. At common law, it may exist outside the identified cases of negligence where a duty is an element of the alleged tort.
101 It follows that the phrase "breach of duty" should be given its ordinary legal meaning. That meaning is not engaged by intentional torts, such as assault and battery. To suggest otherwise is to debase the notion of "breach of duty" and to reduce it to a meaningless expression such as "breaches of a duty owed generally to one's fellow subjects". [111] It seems unlikely that this would have been the purpose of parliament in enacting a limitation statute, a species of so-called "lawyers' law". [112]
102 The contextual arguments : The foregoing analysis is reinforced by the statutory context. Had it really been intended that s 5(1A) of the Act should apply to every case of "breach of duty" owed to others in a moral or societal sense, it would have been a simple matter to choose a phrase having that effect.
103 Thus, it would have been possible for the drafter to provide that s 5(1A) applies to "actions founded on ... contract or on tort and on statute". Indeed, such a phrase already had a history in limitations law. It appears in s 2 of the Limitation Act 1939 (UK). More to the point, when the Limitation of Actions Act 1955 (Vic) (the 1955 Act) was enacted, s 5(1) copied the United Kingdom statute in this respect. In the general provision for a 6-year limitation for specified actions, the United Kingdom provisions were also copied. They included a 6-year limitation for "actions founded on simple contract (including contracts implied in law) or founded on tort" (emphasis added). [113]
104 The fact that this expression appeared in an adjacent provision of the Act shows that, had parliament intended to adopt, in s 5(1A), a phrase of generality, there was a perfectly satisfactory precedent for it to follow. This would have involved no substantial modification of longstanding legal notions. Indeed, the phrase already appeared in the Act. Moreover, it had appeared in s 5 of the 1955 Act which included, in a later subsection, [114] a reference to the alternative formula "No action for damages for negligence nuisance or breach of duty ... shall be brought". [115] This legislative history therefore contradicts any suggestion that the contested phrase was a mistake or involved an oversight by the drafter.
105 The context in which s 5(1A) appears in the Act also includes s 23A. That was a provision adopted as a special addition to the general provisions in s 23 for the extension of limitation periods in cases of disability. Specifically, s 23A provided for the discretionary extension of limitation periods in specified actions for personal injuries where it appeared to the court that material facts relating to the cause of action were not known to the claimant, where there was evidence to establish the cause of action apart from the limitation defence and where, in the court's discretion, it should order an extension of the limitation period. This discretion, available where the interests of justice in the particular case suggested it, would be left with little work to do if s 5(1A) were given the generalised meaning urged for the appellant, applicable to virtually every cause of action for personal injury.
106 The legislative history : The foregoing conclusions are strongly reinforced when, additionally, the legislative history is taken into account. It is relevant to start by recognising the fact that attempts to reform the Victorian limitations statute began as early as 1947. In 1950, a report by the Victorian Statute Law Revision Committee on Limitation of Actions was presented to the Victorian Parliament. [116] Appended to the report was a draft Bill. That Bill was intended to give effect to the committee's recommendations. In cl 5(6) of that Bill, provision was made for the introduction of a 3-year limitation period for actions "for defamation of character ... physical injuries to the person or damage to property founded on tort or breach of a statutory duty". That Bill was not enacted. Yet it indicates that, before the troublesome phrase in issue in this appeal was introduced into the Act, those who drafted such legislation experienced no difficulty whatever in finding a universal formula (where that reflected their intention) to apply to actions "founded on tort" generally. This fact contradicts the need to twist the language in s 5(1A) to produce such a consequence.
107 In fact, as other reasons show, [117] the troublesome phrase derives immediately from the report of the English Committee on the Limitation of Actions [118] of July 1949, chaired by Lord Justice Tucker (known as the "Tucker Committee").
108 That report was principally addressed to consolidating and simplifying limitations law in the United Kingdom and replacing various particular limitation provisions applicable to actions for personal injuries against public authorities in that country. However, the price extracted for assimilating the liability of public authorities in "personal accident cases" was to restrict their application and to reduce the period of limitation that had hitherto applied in the general law from 6 years to 3 [119] in actions for damages "for negligence, nuisance or breach of duty". The Tucker Committee's recommendations in this respect were given effect by the Law Reform (Limitation of Actions, & c) Act 1954 (UK). [120]
109 The phrase "negligence, nuisance or breach of duty" was deliberately copied in Victoria. The Attorney-General urged adoption of the United Kingdom limitation scheme, stating (in the manner of those times) that "the Government considers that in this matter it is taking constructive action to bring the Victorian law into line with that which operates in England". [121] Beyond this explanation, neither discussion nor elaboration upon the words chosen was advanced either in the Statute Law Revision Committee or in parliament. It was a simple case of borrowing on English precedent. Where this happens, there would normally be good reasons for accepting the authoritative interpretation of the borrowed phrase adopted by the final court of the jurisdiction from which the provision was borrowed. Although earlier reasoning of trial and intermediate courts in England reflected the debates that this court has witnessed in this appeal, [122] the authoritative, and unanimous, opinion of the House of Lords in Stubbings [123] puts the controversy to rest, so far as the United Kingdom is concerned. That opinion was followed in Ireland, both by the High Court [124] and by the Supreme Court. [125]
110 To the question, asked by the joint reasons, [126] why parliament would have made such a distinction in the case of intentional torts, the answer, as was noted in Stubbings, [127] is provided by the Tucker Committee's report. Lord Griffiths explained:
The intention was to give effect to the Tucker recommendation that the limitation period in respect of trespass to the person was not to be reduced to 3 years but should remain at 6 years. The language of section 2(1) of the Act of 1954 is in my view apt to give effect to that intention, and cases of deliberate assault such as we are concerned with in this case are not actions for breach of duty within the meaning of section 2(1) of the Act of 1954.
111 Because of the compromise that was hammered out in the Tucker Committee, a distinction was consciously drawn between accidents and deliberate conduct. This distinction was expressed by use of the discrimen "breach of duty". As a matter of policy, it may have been an imperfect or disputable distinction. In retrospect, we may see injustices in its application. This is always a risk where lines are drawn in the law. But there can be no doubt that the distinction was deliberate. For the Tucker Committee, the 3-year period was to apply to a number of causes of action loosely described as "personal accident cases". Where the cause of action arose out of deliberate conduct, it fell outside the scope of the intended reforms.
112 Thus, damages for trespass to the person, false imprisonment, malicious prosecution or defamation were intended by the Tucker Committee to remain within the pre-existing limitations regime. [128] They would enjoy a longer initial period for the commencement of proceedings. However, once that period had expired, there would be no opportunity for postponement of the bar. The thinking behind this was that, in the case of deliberate wrongs, the person injured would ordinarily be well aware that a wrong had occurred to them and that they had suffered some damage, thereby enlivening consideration of the commencement of proceedings, whereas, in cases of breach of duty, the breach and any damage it may have caused might not be immediately known or appreciated. [129] The consequences might only be discovered years or decades later. That this was the reasoning behind the legal change can be seen in Lord Griffiths' exclamation in Stubbings : [130]
I have the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury.
113 The appellant complained, with some justification, that psychological reactions to deliberate wrongs, such as rape and assault, could, in exceptional cases, be delayed years or decades, just as for "personal accidents". Contemporary scientific evidence might be capable of proving this. However, this was not the hypothesis upon which the equivalent provisions were enacted in the United Kingdom. Because those provisions were copied in Victoria, the law applicable to this case must be taken to reflect the same thinking. It is subject to the same limitations. It would be completely a historical to attempt now to impose on the chosen words a different meaning when language, context and history combine to show that the intention was that the chosen words (breach of duty) would apply only to some causes of action.
114 Principle and policy : I am conscious that the outcome which I favour involves anomalies and could sometimes work an injustice on persons who claim late onset conditions causing damage years or decades after the initial intentional infliction of injury. I fully accept the purposive approach to the interpretation of legislation. [131] I also accept that legislation is not forever trapped in its history or in the intentions of the parliamentarians (in this case, originally, in Britain) who enacted the template statute against the background of the knowledge and objectives that were then known. [132] I do not approach this appeal on the basis that, because the House of Lords has interpreted the critical provisions one way, we are bound to follow. If, whatever the original intentions of the drafters, the words of s 5(1A) of the Act could fairly be read to respond to the type of claim brought by the appellant, I would do so. I realise that a number of judges in the past have so concluded. But I have endeavoured to show why I regard their conclusions as unpersuasive and wrong.
115 It is true that the provisions of s 5(1A) (and of s 23A which uses the same language) were intended to be beneficial and protective. However, the question remains - how beneficial; and protective for whom? Ultimately, those questions are only answered by addressing the statutory text, read in context and against the background of the admissible materials relied on in this case.
116 Although s 5(1A) of the Act is beneficial, its context is important for ascertaining its meaning. Unlike s 23A of the Act, s 5(1A) does not enliven a discretion to extend time, according to the justice of the circumstances of the particular case. It has a direct application, providing an entitlement to the extension if the preconditions are established. In this respect, it derogates, without any intermediate evaluation of competing justice considerations, from the ordinary entitlement of persons (perhaps very many years or decades later) to be free from the expense, worry and dislocation of claims that ordinarily would have long since been statute-barred. For every plaintiff's benefit that is involved in such an extension of the limitation period, a considerable burden is cast on a defendant and the finality of legal rights and obligations generally is undermined.
117 Consistency in statutory interpretation : Upon this first issue (the application of the subsection) I would, therefore, apply precisely the same reasoning as the joint reasons have done in resolving the second issue (the ambit of the subsection). In correcting the majority of the Court of Appeal on that issue, [133] the joint reasons observe that: "It is the text of s 5(1A) which is to be applied". [134] They insist that "the task of a court is to construe the language of the statute". [135] They state that extrinsic materials may be useful as an aid but ultimately the duty of a court is to give effect to the meaning of the words that parliament has chosen to use. [136] They say that, if those words have an operation different from that which was "originally contemplated, then parliament may reconsider the language ... but the courts must apply that language". [137] I agree with each and every one of these observations.
118 It is necessary to apply these criteria to the first, and not just to the second, issue in this appeal. One cannot pick and choose in the application of basic principles of statutory construction. [138] Consistency in approaches to statutory interpretation is a judicial obligation so as to reduce subjective elements. It is thus an attribute of the rule of law. When the same criteria are applied consistently to the first issue, they produce an outcome adverse to the appellant on that issue.
119 I accept that interpretation of contested legal texts often presents difficult problems and evokes an art, not a mechanical science. [139] The interpretations of others are not to be criticised simply because, in a particular case, the decision-maker reaches a different conclusion. [140] It is precisely because the process of interpretation involves intuition [141] and broader policy considerations that I have taken the trouble in these reasons to explain why I ultimately reach the same conclusion as Gummow J. It would have been easy for the Victorian Parliament to have provided that s 5(1A) applies to actions founded on tort generally. This is what the appellant seeks to make out of the words used in s 5(1A). But it is not what those words say.
Conclusions, interveners and orders
120 This conclusion relieves me of the necessity to consider the second issue, concerned with the ambit of s 5(1A). The joint reasons decide that issue favourably to the appellant. [142] Because that conclusion is founded on the "language of the statute ... according to its terms ... and not by reference to an assumption as to the kind of case in which it would be most likely to be invoked", [143] it accords with the approach to statutory interpretation that I favour. Had that issue been presented for my decision, I tend to agree in the conclusion on it that the joint reasons have expressed.
121 As explained in those reasons, this court permitted the parties in a pending application for special leave to appeal against a decision of the Victorian Court of Appeal, Wright v Commonwealth , [144] to be heard in argument in the present appeal as to the meaning of s 5(1A) of the Act. The submissions of those parties were addressed to the second (ambit) issue. In any event, there are differences in the facts that make it undesirable to decide the interveners' case without the benefit of full submissions, based now on the reasoning that sustains the outcome of this appeal.
122 I agree in the orders proposed by Gummow J.