At v Mervyn Donald Lyons and Betty Ruth Lyons as Administrators of the Estate of the Late Paul John Lyons; BG v Mervyn Donald Lyons and Betty Ruth Lyons as Administrators of the Estate of the Late Paul John Lyons
[2005] ACTSC 135
AT v MERVYN DONALD LYONS and BETTY RUTH LYONS AS ADMINISTRATORS OF THE ESTATE OF THE LATE PAUL JOHN LYONS & Ors
BG v MERVYN DONALD LYONS and BETTY RUTH LYONS AS ADMINISTRATORS OF THE ESTATE OF THE LATE PAUL JOHN LYONS & Ors
[2005] ACTSC 135 (16 December 2005)
PRACTICE AND PROCEDURE – third party claim – whether brought within limitation period – whether cause of action disclosed.
PRACTICE AND PROCEDURE – limitation of actions – Limitation Act 1985, section 21, section 36 – effect of extension pursuant to section 36 upon limitation period fixed by section 21.
Limitation Act 1985, s21, 36
Limitation of Actions Act 1974 (Qld), s40
Civil Law (Wrongs) Act 2002, s21, s19
Poulton v The Commonwealth (1953) 89 CLR 540
Robins v Downs (1996) 24 MVR 180
Workers’ Compensation Board of Queensland v Seltsam Pty Ltd (1999) 2 Qd R 679
KM v HM (1992) 96 DLR (4th) 289
Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497
Paramasivam v Flynn (1998) 160 ALR 203
Breen v Williams (1996) 186 CLR 71
Astleyv Austrust Ltd (1999) 197 CLR 1
RP Balkin and JLR Davis, Law of Torts, 3rd ed, 2004
Annette Marfording, ‘Access to Justice for Survivors of Child Sexual Abuse’ (1997) 5 Torts Law Journal 1
No. SC 32 of 2001, SC 525 of 2002
Judge: Master Harper
Supreme Court of the ACT
Date: 16 December 2005
IN THE SUPREME COURT OF THE )
) No. SC 32 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AT
Plaintiff
AND:MERVYN DONALD LYONS and BETTY RUTH LYONS AS ADMINISTRATORS OF THE ESTATE OF THE LATE PAUL JOHN LYONS
First Defendant
AND:DARAMALAN COLLEGE LIMITED
Second Defendant
AND:RAY LYONS
Third Party
No. SC 525 of 2002
BETWEEN:BG
Plaintiff
AND:MERVYN DONALD LYONS and BETTY RUTH LYONS AS ADMINISTRATORS OF THE ESTATE OF THE LATE PAUL JOHN LYONS
First Defendant
AND:DARAMALAN COLLEGE LIMITED
Second Defendant
AND:RAY LYONS
Third Party
ORDER
Judge: Master Harper
Date: 16 December 2005
Place: Canberra
THE COURT ORDERS THAT:
The applications be stood over for further directions in the light of these reasons.
The third party in both of these actions has applied for summary judgment or, in the alternative, orders that the third party notices be struck out or dismissed. The applications originally came before me on 16 September 2005. After hearing submissions, I handed down preliminary reasons for decision on 21 October 2005, expressing my provisional views about a number of issues and inviting further submissions. The applications were further heard on 18 November. These reasons for decision should be read in conjunction with the reasons of 21 October in which I set out the nature and history of the actions and the third party claims.
In paragraph four of those reasons, I incorrectly gave the years when the alleged sexual assaults against the plaintiffs took place as 1998 and 1999: I should have said 1988 and 1989.
I also fell into error in relying upon bench sheets setting out orders made by consent by Ryan J in both actions on 19 September 2003. According to the bench sheets, his Honour on that date made orders in each action extending the time for commencing the action to the date of institution of proceedings. The bench sheets were incorrect in that regard, although they correctly set out other orders made by his Honour. It is now clear from the recording of the proceedings on that day that his Honour did not grant extensions of time, nor did he deal with the applications by the plaintiffs for extensions of time. Those applications have never been determined but remain alive.
A further matter which needs to be corrected relates to the settlement of the action by the plaintiff BG against the second defendant. As I said in my earlier reasons, the first defendant and the third party were not involved in the mediation, and the second defendant proposes to proceed with its claims against the third party. I incorrectly assumed that BG did not intend to pursue his action against the first defendant any further, and that he would take no further active part in the proceedings. I am now informed that as part of the settlement between the plaintiff and the second defendant, the plaintiff has agreed to assign his cause of action to the second defendant, which proposes to continue the action against the first defendant as well as pursuing its own claim against the third party. As counsel for the second defendant conceded, this would raise issues of some complexity as to legal representation of the plaintiff and the second defendant.
More fundamentally, it seems to me at first blush that the plaintiff’s cause of action is not assignable: see RP Balkin and JLR Davis, Law of Torts (3rd ed) at para [29.22], p880; Poulton v Commonwealth (1953) 89 CLR 540 at 602. Balkin and Davis cite the general rule that a right to sue in tort is not assignable and set out three exceptions to the rule, none of which, it seems to me, is applicable in the present cases. If I am correct about this, the second defendant would appear to be limited to any right to contribution from or indemnity by the first defendant and contribution from the third party. There would seem no reason why the second defendant could not call, in such proceedings, the same evidence as would have been called on behalf of the plaintiff had his claim not been settled.
Had I been correctly informed as to the orders made by Ryan J on 19 September 2003, I would not have expressed the provisional view that in the case of BG the third party notice had been issued within the limitation period. It is now clear that both actions and both third party notices were issued out of time, and could be saved only by orders for extension of time.
Counsel for the second defendant has sought at considerable length and by reference to a range of authority, to persuade me that the relief sought by the third party should not be granted. I have some sympathy for the argument that there are before the Court applications by both plaintiffs for extensions of time which have not been dealt with, and that the present application should not be determined on the assumption either that those applications have not been made or that they will inevitably fail. The issues which they raise should, it seems to me, be dealt with on the hearing of those applications rather than on the present applications by the third party which do not directly involve the plaintiffs.
Although there is no local authority directly on the point, I am satisfied that section 21 of the Limitation Act 1985, which fixes the limitation period for contribution claims between tortfeasors, should be interpreted so that the limitation period is calculated by reference to the limitation period for the principal cause of the action as extended by any order of the Court, for example under section 36 in respect of personal injury claims. The observations of Hayne JA, as his Honour then was, in Robins v Downs (1996) 24 MVR 180, although obiter, are compelling towards that interpretation. I note that his Honour’s approach was approved and followed by the Queensland Court of Appeal (McMurdo P, Byrne and Cullinane JJ) in Workers’ Compensation Board of Queensland v Seltsam Pty Limited (1999) 2 Qd R 679. Both cases were concerned with section 40 of the Queensland Limitation of Actions Act 1974, which is in similar terms to section 21 of the Limitation Act 1985 of this Territory.
Counsel for the second defendant draws attention to a claim by each of the plaintiffs framed, in addition to trespass to the person and negligence, in breach of fiduciary duty giving rise to equitable damages. He argues that section 21 is limited to claims for contribution in respect of damage caused by a wrong, defined effectively as a tort or a breach of contract which is concurrent and coextensive with a duty of care in tort. He argues that a claim for equitable damages for breach of fiduciary duty is not covered by section 21, and that the limitation period for such a claim would be, under section 11, six years from when the claim arises. This would not be until judgment in or settlement of the principal action. If this is correct, the third party claims in respect of the alleged breaches of fiduciary duty are within time.
I would not wish to decide this point without providing the plaintiffs with an opportunity to be heard, but having regard to the submissions to date I am far from persuaded that an action lies in Australia for damages for breach of fiduciary duty by a student against a school or schoolteacher. It is possible that the law may move over time to this position: the Supreme Court of Canada has recognised incest perpetrated on a young girl by her father as a breach of fiduciary duty: KM v HM (1992) 96 DLR (4th) 289. Academic commentators in Australia have urged courts to develop the law in this direction: for example, ‘Access to Justice for Survivors of Child Sexual Abuse’, an article by Annette Marfording, a senior lecturer in law at the University of New South Wales, published at (1997) 5 Torts Law Journal 1. Kirby P, as his Honour then was, has expressed a similar view in obiter comments in Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497. In the same case, Priestley JA (at 516) displayed an open mind about “questions of arguability of legal propositions which may be novel but which require careful consideration in the light of changing social circumstances”.
However, the issue was considered by the Federal Court of Australia (Miles, Lehane and Weinberg JJ) in Paramasivam v Flynn (1998) 160 ALR 203, on appeal from a single judge of this Court. After referring to KM v HM and to Williams, their Honours noted that in Breen v Williams (1996) 186 CLR 71, the High Court had made clear its disagreement with Canadian approaches to the development of the law in relation to fiduciaries. The claim in Paramasivam was by a plaintiff who alleged that as a boy of eleven he had been sexually abused by his guardian. Their Honours concluded:
All those considerations lead us firmly to the conclusion that a fiduciary claim, such as that made by the plaintiff in this case, is most unlikely to be upheld by Australian courts. Equity, through the principles it has developed about fiduciary duty, protects particular interests which differ from those protected by the law of contract and tort, and protects those interests from a standpoint which is peculiar to those principles. The truth of that is not at all undermined by the undoubted fact that fiduciary duties may arise within a relationship governed by contract or that liability in equity may coexist with liability in tort. To say, truly, that categories are not closed does not justify so radical a departure from underlying principle. Those propositions, in our view, lie at the heart of the High Court authorities to which we have referred, particularly, perhaps, Breen. It follows that Gallop J was justified in concluding that he was not persuaded that the appellant’s claim based on breaches of fiduciary duty made by the respondent to the appellant had real prospects of success.
Whilst I recognise that the common law and the principles of equity are not immutable, my provisional view is that I am bound to treat Paramasivam as setting out the present law for this Court. As I have said, this is a question on which the plaintiffs have not been heard, but it may be helpful to set out my present thinking about it.
Counsel for the second defendant next submitted that the plaintiffs had pleaded causes of action in contract as well as tort. Section 21 of the Limitation Act applies only to claims for contribution under section 21 of the Civil Law (Wrongs) Act 2002. That section establishes a right to recovery of contribution by a party “who is liable for damage caused by a wrong … from someone else … who is also liable for the same damage.” “Wrong” is defined as follows, in section 19 of the same Act:
“wrong” means an act or omission (whether or not an offence) –
(a) that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law; or
(b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.
The definition needs to be seen in the context of the decision of the High Court in Astleyv Austrust Ltd (1999) 197 CLR 1 in which it was held that contributory negligence was not a defence to an action for damages for breach of contract. Following that decision, prudent solicitors acting for plaintiffs in suits against employers framed their claims in contract as well as tort, so that any contributory negligence by the plaintiff would not reduce the damages for breach of contract. The definition was framed to overcome that practice, and is generally accepted as having achieved its purpose. In the typical injury claim by employee against employer, the contractual duty of care is concurrent and coextensive with the employer’s duty of care in tort.
Notwithstanding the authorities to which I have been taken by counsel, it seems to me that the same observation must apply in the present circumstances. Any liability of the school to each plaintiff in contract must be concurrent and coextensive with the liability of the school in tort. In these circumstances section 21 of the Civil Law (Wrongs) Act applies, so that the school is entitled to claim contribution from a contributory. However, any such claim is subject to the time limit imposed by section 21 of the Limitation Act.
Counsel for the second defendant points to a separate cause of action, or perhaps a component of an existing cause of action, deriving from the circumstances of a meeting between the plaintiff BG and the third party following the death of his brother. He relies on an affidavit sworn by the plaintiff on 12 August 2003, to which were annexed reports by Dr Kenneth Byrne, clinical and forensic psychologist, dated 8 June 2001, and Dr William Knox, consultant psychiatrist, dated 12 December 2002. Dr Byrne recorded a history taken from BG of a meeting between BG and the third party. The relevant portion of the report is as follows:
7.6 A week later (BG) learned that Lyons had committed suicide.
7.7 He subsequently got a phone message to ring a Mr Peter Lyons, who was apparently very upset, but (BG) did not return the call. Two days later he received a phone call from Ray Lyons who wanted to talk to him. Mr Lyons suggested meeting at the school car park, which they did, and (BG) then suggested they talk at his flat which is on the family property.
7.8 During the conversation Ray Lyons said to him “Why did you do it? And he told me that his whole family hated me. Mr Lyons had said that he had read the Police Statement given by (BG), so he knew what I said and his family knew. He also said that he listened to the tape of the police record of interview, but denied that his brother could have done anything like this.” He quoted Mr Lyons as saying “my brother committed suicide because you went to the Police and made a silly complaint”.
7.9 He also showed him his brother’s suicide note, which he recalls as being about three or four paragraphs. In three of the paragraphs the deceased mentioned (BG). Apparently he said made statements (sic) along the lines that (BG) should not feel guilty, that he meant no harm and he was sorry for interfering in his life.
7.10 My Lyons also told him that he was disappointed in (BG) that he didn’t go to the funeral and that during the conversation he just “burned it into me that I killed his brother”. On inquiry he said that Ray Lyons seemed to want the discussion for “closure” but “all it did was open me up – if I didn’t have respect for him as a teacher I would’ve asked him to leave”. During the conversation Mr Lyons also said that he had “counselled his brother about his sexuality” and knew that he was taking boys home from school.
7.11 Asked how he felt after the visit (BG) said “I feel gutted – angry, how dare he come in here and say this – he was the Year Co-ordinator and he just let his brother do that”.
BG gave a similar history to Dr Knox, recorded as follows:
(BG) was shortly afterwards contacted by Mr Lyons’ brother, Ray Lyons, also a teacher at the Daramalan College. Ray Lyons told (BG) how his mother “hated” (BG) for having played a part in her son’s death. (BG) was shown Paul Lyons’ suicide letter which made a number of references to (BG), reportedly that he should not feel concerned about having reported his behaviour. Despite the contents of the letter (BG) was very disquieted by the suicide letter and its significant references to him.
Ray Lyons was reportedly critical of your client for having reported his brother to police, triggering the suicide.
(BG) was concerned that although Ray Lyons had counselled his brother over his behaviour with boys, he had not acted more determinedly to prevent what Paul Lyons had been doing.
In the statement of claim attached to the Originating Application, particulars of the second defendant’s negligence were set out including paragraph 2(j) which I quote verbatim:
Failure to prevent the Ray Lyons from contacting and speaking to the Plaintiff in the manner which he did resulting in the further damage, loss and injury to the Plaintiff.
In paragraph 4 of the statement of claim, the plaintiff’s solicitors set out particulars of injuries and disabilities said to be “a consequence of the actions of the Deceased and Ray Lyons”.
The third party claim was filed and served at a time when the statement of claim was in that form. In November 2003, the solicitors for the plaintiff filed and served an amended statement of claim which deleted the paragraphs in which the name of Ray Lyons had been mentioned. The third party claim has not been amended since the statement of claim was amended, though counsel for the second defendant concedes that amendments to accord with the way in which the plaintiff’s claim is now pleaded will be necessary. The third party claim expressly relies on paragraph 2(j) of the original statement of claim as part of the second defendant’s claim against the third party.
Counsel for the second defendant now makes the point that the meeting must have taken place in June 2000 at earliest. He submits that the plaintiff BG would still be in time to bring action against the third party in respect of the events of that meeting, so that the second defendant must be still within time to claim contribution from the third party in respect of any liability on its part arising from those events.
Counsel for the third party responds that by 2000, BG was no longer a pupil at the school, and it was not possible for any conduct by the third party at that time to amount to a breach of his contract of employment by the school. Additionally, the events of that day were not capable of giving rise to a separate cause of action by the plaintiff against the school, notwithstanding that the third party was still employed by the school at the time of the conversation. At most, all the conversation could have done was to heighten the plaintiff’s distress.
It appears to me that on a proper analysis of the pleadings, the plaintiff BG no longer relies on the events of the meeting between the plaintiff and the third party in June or July 2000 on the question of liability. He may well have intended to rely on those events in relation to quantum of damages but I accept the submission of the third party that those events did not give rise to any separate cause of action. The date of the meeting is hence of no relevance to the present application.
This being so, the third party claims must fail as out of time unless time is extended for the bringing of the principal actions. As I have said, I am not persuaded that the Court should dismiss the third party claims at this point, before the applications for extension in the principal actions have been determined.
At the same time, as I said in my earlier reasons, it is unfortunate that the third party, who denies any liability and is advised that he has a complete defence to the claims against him, has been affected by the delay occasioned by the settlement negotiations between the plaintiffs and the second defendant. Whilst I recognise the desirability of agreement between the parties which resolves their dispute entirely, and even an agreement which limits the range of issues to be determined by the Court, the third party is entitled to some finality. I accordingly propose to fix a timetable for the further prosecution of both actions, and in particular for the determination of the applications for extension of time. I see no reason in principle why the second defendant in the settled BG action should not be permitted to take over the conduct of the application for extension, the plaintiff no longer having any motivation for pursuing it. There seems no reason why the plaintiff AT should not pursue his own application for extension of time. It seems to me desirable that the extension applications be heard together. The third party is potentially affected by the outcome of those applications and is entitled to be heard in opposition to them.
Again, I propose to make no orders at the time of publication of these reasons, but to re-list the matters for mention, to provide the solicitors and counsel for the parties an opportunity to reach agreement on a timetable for the next steps to be taken. It seems to me desirable that the applications for extensions of time for the plaintiffs to bring the proceedings should be dealt with first: if they are unsuccessful, the incurring of further expense by way of preparation will become unnecessary.
I certify that the preceding twenty-five (25) numbered paragraphs are
a true copy of the Reasons for Judgment herein of the Master.Associate:
Date: 16 December 2005
Counsel for the plaintiffs: Mr JD Parkinson
Solicitors for the plaintiffs: Porters Lawyers
Counsel for the second defendant: Mr RP Clynes
Solicitors for the second defendant: Phillips Fox
Counsel for the third party: Mr WW Arthur
Solicitors for the third party: Bates Collett & Wilson
Date of hearing: 18 November 2005
Date of judgment: 16 December 2005
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