Dunstan v Higham

[2016] ACTCA 20

ACT Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Postponement of limitation period
3. › Fraud and concealment
4. › Deliberate concealment of fact relevant to cause of action
5. › Whether internal document was evidence of a decision
6. › Whether fact deliberately concealed
7. › Actual concealment or deliberate omission
8. › Motivation to conceal
9. › Limitation Act 1985 (ACT), s 33(1)(b)
1. Administrative Law
2. › Statutory decisions
3. › Whether decision made under statute
4. › Whether objective or subjective test applies to determine if decision-maker reached a conclusion
5. › Evidence of decision-maker's intention
6. › Public Service Act 1922 (Cth), s 61(2)
1. Appeal
2. › Standard of appellate review
3. › Appeal by way of rehearing
4. › Findings of fact based on credibility of witnesses
5. › Circumstances in which appellate court will disturb credibility findings
6. › Supreme Court Act 1933 (ACT), s 37E

Quick Take

Whether a statutory decision has been made under a provision like s 61(2) of the Public Service Act 1922 (Cth) involves inquiry into the decision-maker's state of mind, and the decision-maker's evidence as to whether they reached a conclusion is admissible. A purely objective test is not required. Deliberate concealment under s 33(1)(b) of the Limitation Act 1985 (ACT) requires proof not only that a relevant fact was concealed but that the respondent intended to conceal it, which ordinarily requires evidence of motivation to conceal.