Bek v Bel

Case [2024] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:  BEK v BEL [2024] QCA 154
PARTIES:  BEK
(appellant)
v
BEL
(respondent)
FILE NO/S:  Appeal No 13556 of 2023
DC No 123 of 2022
DIVISION:  Court of Appeal
PROCEEDING:  General Civil Appeal
ORIGINATING  District Court at Townsville – Unreported, 28 September
COURT:  2023 (Lynham DCJ)
DELIVERED ON:  27 August 2024
DELIVERED AT:  Brisbane
HEARING DATE:  5 April 2024
JUDGES:  Morrison and Dalton JJA and Brown J
ORDERS: 
1. The applicant have leave to file the notice of appeal,

which is exhibit AMP2 to the affidavit of Andrew Peel

filed herein on 25 October 2023.

2. The appeal be dismissed.

3.    The appellant pay the respondent’s costs of the appeal

to be assessed on the standard basis if not agreed.

CATCHWORDS: 

APPEAL AND NEW TRIAL – APPEAL – LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS –

EXTENSION OF TIME IN PERSONAL INJURIES

MATTERS – KNOWLEDGE OF MATERIALS FACTS OF DECISIVE CHARACTER – where the appellant and respondent were husband and wife, respectively – where the

appellant raped the respondent on three occasions in November 2001, while the respondent was being treated in

hospital – where the respondent reported the assaults in 2017, after separating from the appellant – where the respondent pleaded guilty to three counts of rape on 6 September 2021 –

where the respondent was granted an extension of time to bring civil proceedings against the appellant under s 31 of the

Limitation of Actions Act 1974 (Qld) – whether the trial judge
erred in granting the respondent’s application – whether the
appellant’s entering of pleas of guilty is a material fact of
a decisive character
Evidence Act 1977 (Qld), s 79
Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31
Personal Injuries Proceedings Act 2002 (Qld), s 43
AB v State of Queensland (2022) 11 QR 51; [2022] QCA 109,
considered
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938]
HCA 34, considered
Castlemaine Perkins Ltd v McPhee [1979] Qd R 469,
considered
Charlton v WorkCover Queensland [2007] 2 Qd R 421;
[2006] QCA 498, considered
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234;
[1984] HCA 17, considered
Greenhalgh v Bacas Training Ltd [2007] QCA 327,
considered
Moriarty v Sunbeam Corp Ltd [1988] 2 Qd R 325, considered
Pikrt v Hagemeyer Brands Australia Pty Ltd [2006]
QCA 112, considered
Queensland v Stephenson (2006) 226 CLR 197; [2006]
HCA 20, considered
Re Sihvola [1979] Qd R 458, considered
TRG v The Board of Trustees of the Brisbane Grammar

School (2020) 5 QR 440; [2020] QCA 190, considered Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51, considered

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993]
QCA 114, considered
COUNSEL:  L M Dawson for the appellant
B F Charrington KC, with W Evans, for the respondent

SOLICITORS: 

Purcell Taylor…

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AGLC
Bradbury v Bradbury [2024] QCA 154
Case
[2024] QCA 154
Decision Date

CaseChat Overview and Summary

In the case of Bek v Bel, the appellant sought an extension of time to commence a civil action for battery against the respondent, his former wife. The respondent had been the victim of non-consensual sexual intercourse by the appellant in 2001, which he later admitted to during a police interview. The respondent did not report the assaults until 2017, after she had separated from the appellant. The appellant was subsequently charged with three counts of rape in February 2020, and the respondent sought an extension of time to bring her action, relying on the appellant's plea of guilty as a material fact of a decisive character.

The primary issue before the court was whether the appellant's plea of guilty constituted a material fact of a decisive character that was not within the respondent's knowledge until a date no more than 12 months prior to the date to which the extension was granted. The court was required to determine whether the entering of guilty pleas by the appellant was a material fact of a decisive character for the purposes of section 31(2)(a) of the applicable statute. The respondent argued that the entering of guilty pleas was a material fact of a decisive character, and the court needed to consider whether this was sufficient to grant the extension of time.

The court considered the relevant legal principles and authorities in determining whether the entering of guilty pleas by the appellant was a material fact of a decisive character. The court referred to the test outlined in section 30(1)(b) of the applicable statute, which required the applicant to show that without the newly learnt fact or facts, they would not have appreciated that they had a worthwhile action to pursue and should in their own interests pursue it. The court also considered the High Court's decision in Queensland v Stephenson, which held that a material fact must have a decisive character for circumstances to run against the making of a successful extension application. The court found that the entering of guilty pleas by the appellant was not a material fact of a decisive character, as the respondent had already known all of the material facts constituting a right of action in battery since the time of the acts in 2001.

The court dismissed the appeal and refused the application for an extension of time. The court held that the respondent had known all of the material facts constituting a right of action in battery since the time of the acts in 2001, and the entering of guilty pleas by the appellant did not constitute a material fact of a decisive character. The court found that the respondent's knowledge of the material facts did not coincide with the circumstance that a reasonable person with the respondent's knowledge would regard the facts as justifying and mandating that an action be brought in the respondent's own interests. The court concluded that the primary judge's decision was correct, and the appeal was dismissed.

Orders

Orders of the court

1.

The applicant have leave to file the notice of appeal,

Background

Background to the litigation

The respondent contends that the decision of the primary judge was correct both in his Honour’s characterisation of the plea of guilty as a material fact and his finding that it was a material fact of a decisive character. Relevant facts The factual basis of the allegations relevant to the application and to this appeal were generally not the subject of contest, either in the court below or before this Court. I will briefly outline the relevant facts. The appellant and the respondent were married. In November 2001, the respondent had been admitted to hospital to undergo further surgery following reconstructive surgery for a condition that she had suffered since birth. While the respondent was an inpatient, the appellant visited her on at least three occasions. On three of those occasions, he took her into the public toilet and engaged in non-consensual sexual intercourse (the sexual assaults). There were no witnesses to the assaults. The respondent did not report the assaults until 21 July 2017, which was after she had separated from the appellant. It is uncontentious that, given that the respondent was the victim of the sexual assaults by her husband, the appellant, she knew from November 2001 all of the material facts constituting a right of action in tort for battery. On advice of two people assisting her, the respondent made an application for financial assistance with Victims Assist Queensland under the Victims of Crime Assistance Act 2009 (Qld) in 2017 and 2018 for which she received some payments. The respondent provided a statement and several addendum statements to the police between 2017 and 2020. On 3 October 2019, the police arranged for the respondent to engage in a pretext call with the appellant, during which he is said to have made some admissions in relation to the sexual assaults (pretext call). However, the recording was inaudible in parts, such that the police informed the respondent that the recording had failed. Subsequently, the respondent attended the police station on 13 April 2020 and provided an addendum statement setting out her recollection of what was said during the phone call, which included apparent partial admissions including, when the respondent asked the appellant about the three times he raped her in hospital, that the appellant answered “Yes I know what I did and how long do I have to pay for this?” The respondent’s statement contained a number of gaps in On 18 February 2020, the appellant engaged in a police interview. According to the police, the appellant had also made various admissions to them, The appellant was charged on 20 February 2020 with three counts of rape arising from the sexual assaults. On 18 May 2021, the police told the respondent that they believed the appellant would plead guilty to the charges. In May or June 2021, according to an affidavit of the appellant filed in respect of the application in the District Court, the appellant’s lawyers told the court that the appellant intended to plead guilty on his instructions.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

While the respondent knew of the material facts that constituted the cause of action in battery, as a result of being the victim, from the time of the acts in 2001, the respondent contends that s 31(2) does not merely rely on knowledge of material facts. The test relevant to this appeal is whether, for the purposes of s 31(2)(a), the entering of guilty pleas was a material fact of a decisive character relating to the right of action. Consideration – material fact of a decisive character In order for the court to exercise its discretion to grant an extension of time an applicant must establish, amongst other things, that a material fact of a decisive character was not within his or her means of knowledge until a date no more than 12 months prior to the date to which the extension is granted. Section 30(1)(b) LAA outlines the test for when material facts relating to a right of action are of a decisive character. Macrossan J in Moriarty v Sunbeam Corp Ltd held:[66] [66] [1988] 2 Qd R 325 at 333. “In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreci- ated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s. 30(b) comes down to: Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J”. In Queensland v Stephenson, the High Court considered the question of what was required for a material fact to be of a decisive character. Gummow, Hayne and Crennan JJ stated:[67] [67] Queensland v Stephenson at 208 [29]-[30]. “For circumstances to run against the making of a successful extension application, the material fact must have “a decisive character”. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person “knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing” the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court. The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b))…”. (emphasis added).