A v B

[2000] NSWCA 220

CITATION:	A v B [2000] NSWCA 220
FILE NUMBER(S):	CA 40359/99
HEARING DATE(S):	19 July 2000
JUDGMENT DATE:	19 July 2000
PARTIES :	A v B
JUDGMENT OF:	Mason P at 1; Sheller JA at 16; Foster AJA at 17

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 20839/97
LOWER COURT JUDICIAL OFFICER :	Adams J

COUNSEL:	Appellant: C A Evatt; M K Rollinson Respondent: P LeG Brereton SC
SOLICITORS:	Appellant: Carters, The Law Firm Respondent: McDonell Milne & Toltz
CATCHWORDS:	Appeal - application to extend time - new hearing ordered in appeal from Master to single judge - fresh evidence - whether appropriate to direct that matter be determined by different Master. ND
DECISION:	Appeal dismissed with costs

THE SUPREME COURT OF
NEW SOUTH WALES
COURT OF APPEAL

CA 40359/99



MASON P
SHELLER JA
FOSTER AJA

Wednesday 19 July 2000



A v B

JUDGMENT

1    MASON P: On 11 September 1997 the appellant filed in the Supreme Court a statement of claim, claiming damages for sexual assault by the respondent, her father. The alleged events occurred between 1974 and 1988. The claim was obviously statute-barred unless an order were made extending time.

2    Accompanying the statement of claim was a notice of motion seeking the extension of time. It was supported by affidavits of the appellant and a medical practitioner (not Dr Stanley).

3 The notice of motion was heard by Master Harrison in late 1997. There was cross-examination and a robust challenge to the appellant's credibility. On 24 February 1998 the Master held that the appellant had established that she was unaware of the nature or extent of personal injury she had suffered within s60I(1)(a)(ii) of the Limitation Act 1969. The Master was also satisfied on the facts that it was just and reasonable to extend the limitation period. These conclusions turned upon detailed findings touching the appellant's credibility as to the circumstances in which she knew of the matters alleged and their psychiatric impact upon her.

4    The respondent appealed. The appeal, which was by way of rehearing was heard by Adams J. His Honour held that no appealable error had been demonstrated in the reasons of the learned Master.

5    Fresh evidence was tendered in the appeal before Adams J. It included evidence as to consultations between the appellant and a psychiatrist, Dr Stanley, since 1990 and evidence given by the appellant in committal proceedings in April 1998, ie after the proceedings before the Master. This new and/or fresh evidence was said to be capable of showing that the appellant knew the extent of her psychological damage before 1995.

6    In ex tempore reasons given after hearing argument on 6 May 1999, Adams J said (in par 19) that amongst the material considerations was whether the further evidence was available on reasonable enquiry by the defendant or those acting on his behalf at the hearing before the Master. He said that he was satisfied that whilst in some…