Star Aged Living Limited v Lee

This case considered the recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 in the context of an appeal from a decision to extend a limitation period under s 31(2) Limitation of Actions Act 1974. Whilst the appeal was ultimately successful on other grounds, the Court of Appeal made a number of helpful observations about the standard for appellate intervention and the notion of a fair trial when determining an application to extend a limitation period. Chief Justice Bowskill (with whom Bond and Flanagan JJA agreed) considered that the threshold for appellate intervention is an error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499, rather than the “correctness standard” considered in GLJ.

Bowskill CJ and Bond and Flanagan JJA

25 January 2024

Background

An aged care employee (the “respondent”) alleged that she injured her back when she was at work on 19 December 2015 and that the injury was caused by the negligence of her employer (the “appellant”). [1]. She did not consult a lawyer until after the limitation period had expired. [1]. The lawyer urgently lodged a notice of claim, and a civil proceeding was commenced in September 2020. [1]. The respondent applied for an extension of the limitation period under s 31 sub-s (2) Limitation of Actions Act 1974. [1]. The basis for the application was that there were said to be material facts of a decisive character relating to her right of action which were not within her means of knowledge until the limitation period had expired. [1]. She was successful: see Lee v Star Aged Living Ltd [2023] QSC 49. [1]. The appellant challenged the primary judge’s application of the Limitation of Actions Act 1974 s 31 sub-s (2). [20].

Whether the “correctness standard” applies as a threshold for appellate intervention

A number of the grounds of appeal sought to challenge the exercise of the primary judge’s discretion in making findings about the prejudice which was said to be consequent upon the delay by the respondent in bringing the action. [63]. While the appellant was ultimately successful on other grounds of appeal, the Court considered the question of the applicable standard of appellate review for decision-making under s 31 Limitation of Actions Act 1974 in light of the recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (“GLJ”). [64]. It was held in GLJ that the applicable standard was the “correctness standard” identified in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 and that an error of principle of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 was not necessary to establish. [65].

The appellant submitted that the reasoning in GLJ did not apply to the final element of the decision in s 31(2) because it involves the exercise of discretion “in the true sense of an evaluative decision upon which minds might differ”. [68]. The respondent submitted that the “correctness standard” applied. [69]. Chief Justice Bowskill (with whom Bond and Flanagan JJA agreed) considered that the reasoning in GLJ could be distinguished in this case on the basis that GLJ concerned an application for a permanent stay, rather than a decision to extend a limitation period. [70]. The High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 authoritatively held that s 31(2) confers a discretion on a court to extend time. [70]. GLJ did not consider the correctness of this case and “as a matter of principle, the analysis in GLJ of the nature of the decision to be made, on an application for a permanent stay, is distinguishable from the decision to be made under s 31”. [70]. The appellant was required to show a House v The King error. [71], [95].

Another point of principle considered was the notion of a fair trial as discussed in GLJ. [85]. Chief Justice Bowskill (with whom Bond and Flanagan JJA agreed) considered that it was not correct to suggest that the “‘notion of ‘presumptive prejudice by delay’ is now [as a consequence of GLJ] a creature of the past’”. [85]. The “notion remains just as relevant as it ever was, in the context of actions in respect of which there remains a limitation period”. [85]. However, the High Court’s dicta in relation to the concept of a fair trial was still relevant to the determination of this case: see [86]–[88]. The purported prejudice to a fair trial in this case was the inability to identify a co-worker who was working with the respondent on 19 December 2015. [93]. Whilst it was doubted that this amounted to significant prejudice making a fair trial unlikely, in any event, as “the nature of the decision to be made under s 31(2), once the qualifying prerequisites have been established, is a discretionary one, to justify appellate intervention the appellant must establish an error in the exercise of the discretion.” Here the appellant failed to establish a House v The King error. [89]–[97].

Disposition

In the result, the appeal was allowed, the orders of the primary judge were set aside, and in lieu thereof, the application to extend time was dismissed. [99]–[101].

D Kerr