Briggs v Sewell - [2002] NSWCA 182

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CITATION: BRIGGS v SEWELL [2002] NSWCA 182

FILE NUMBER(S): CA 40936/01

HEARING DATE(S): 14/06/02

JUDGMENT DATE:
2 July 2002

PARTIES :

Darrel Albert BRIGGS v Loueen Kylie SEWELL

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Foster AJA at 3-55

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 102/00

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: D. Campbell - Claimant
S. Bliim - Opponent

SOLICITORS: Hancock Alldis - Claimant
Marsdens - Opponent

CATCHWORDS: Application for leave to appeal from a decision where granted leave to commence proceedings although out of time.

LEGISLATION CITED: Limitation Act (NSW) 1969

CASES CITED:
Wickstead v Browne (1992) 30 NSWLR 1
Drayton Coal Pty Ltd v Drain (CA 40418/95)

DECISION: 1. Grant leave to appeal.; 2. Appeal upheld with costs.; 3. Orders below set aside.; 4. Application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first applicationa be determined by the judge hearing the remitted application.; 5. Respondent to have certificate under Suitors Fund Act if otherwise entitled.

CA 40936/01
DC 102/00

SHELLER JA
HODGSON JA
FOSTER AJA
TUESDAY, 2 JULY, 2002

Darrel Albert BRIGGS v Loueen Kylie SEWELL

Judgment

1 SHELLER JA: I agree with Foster AJA.

2 HODGSON JA: I agree with Foster AJA.

3 FOSTER AJA: This is an application for leave to appeal from an interlocutory decision of his Honour Delaney DCJ given on 29 October 2001 in the District Court of New South Wales at Parramatta. His Honour granted the opponent leave to commence proceedings against the claimant, although out of time. By consent, if leave be granted, the Court is to proceed to a determination of the appeal.

4 His Honour had before him an application by the present opponent Loueen Kylie Sewell (Ms Sewell) for an order extending the time within which to commence proceedings against the claimant, Darrel Albert Briggs (Mr Briggs). Ms Sewell had, in fact, commenced proceedings against Mr Briggs by ordinary Statement of Claim dated 1 November 2000 to which Mr Briggs had filed a defence on 18 December 2000, by which he pleaded, inter alia, “that the Plaintiff’s alleged causes of action did not arise within six (6) years before the commencement of this action and are therefore barred by s 14 of the Limitation Act (NSW) 1969.

5 It was to overcome the effect of that defence that the application was brought before his Honour. Before considering the questions raised in this application, it is convenient to set out some matters by way of background.

6 By her Statement of Claim the plaintiff pleaded her cause of action as follows:-

“1. At all material times the defendant was the plaintiff’s step-father. The defendant was married to the plaintiff’s mother, Beverley Kay Noble (formerly Beverley Kay Briggs).

2. During the period 1980 to 1983, the defendant sexually, emotionally and physically assaulted and battered the plaintiff on a frequent basis.

3. As a result of the physical, sexual and emotional assault and battery suffered by the plaintiff, the plaintiff has suffered damage and loss.

Particulars of Injuries

(i) Chronic post traumatic stress disorder.

(ii) Anxiety.

(iii) Stress.

(iv) Depression.

Particulars of Disabilities

(i) Requirement of medication including anti-depressants.

(ii) Jumpiness.

(iii) Irritability.

(iv) Aggravation of asthma condition.

(v) Flashbacks.

(vi) Requirement of psycho therapy treatment.

(vii) Suppression of memories.

(viii) Amnesia.

(ix) Anxiety.

(x) Nightmares and sleep disturbance.

(xi) Avoidance of social situations.

(xii) Inability to make new friends.

(xiii) Poor concentration.

(xiv) Difficulty forming and maintaining sexual relationships.

(xv) Lack of energy.

(xvi) Lack of enjoyment of sexual intercourse.

(xvii) Deterioration of relationship with mother and family.

(xviii) Abnormally protective of children.

(xix) Loss of enjoyment of life.”

7 Ms Sewell claimed for past and future out-of-pocket expenses and economic loss, as well as general damages.

8 Apart from the limitation defence set out above Mr Briggs denied the alleged assaults and batterings as well as the plaintiff’s claim for damages.

9 It may be noted that Mr Briggs’ defence is not a sworn document. Nor did Mr Briggs tender any evidence in the Application, his Honour being advised that a police enquiry was on foot in relation to Ms Sewell’s allegations. His denials remain unsupported by any sworn evidence from himself or from his solicitor, on information and belief. Although it seems probable, in light of his defence, that Mr Briggs would deny at a hearing the allegations which have now been made in more detailed form in Ms Sewell’s affidavit in support of the application, it must be observed that his Honour and this Court have not had the benefit of affidavit evidence to that effect.

10 An application has been made, however, to introduce further evidence on behalf of Mr Briggs in the form of an affidavit by a psychiatrist, Dr Yolande Lucire who interviewed Ms Sewell on 25 September 2001. Her affidavit could lead to submissions that Ms Sewell’s alleged recollection of past events involving Mr Briggs should be treated with considerable reserve as they could be the product of suggestion from other sources, oral and written. I shall consider this application later in these reasons. This material was, of course, not before his Honour. As the application was interlocutory in nature, it is not necessary for the opponent to establish special grounds for the introduction of this fresh evidence (Wickstead v Browne (1992) 30 NSWLR 1).

11 The hearing at first instance:

12 Ms Sewell’s affidavit sought an extension of time to commence the proceedings to 7 November 2000. It referred to “the circumstances of the allegations, the subject of the claim”, as being set out in statements made at Tweed Heads Police Station on 17 and 24 July 2000, together with a further statement made on 5 July 2000.

13 These statements provide, in some detail, allegations of sexual assault by Mr Briggs on Ms Sewell from 1980 to 1983, whilst she was a schoolgirl and ending when she was about age fifteen, at which time she was able, effectively, to resist him. The assaults were alleged to have taken place in the home when her mother was absent and she was in the care of her step-father, Mr Briggs. Ms Sewell further alleges that on Father’s Day in 1987 she visited her mother in hospital, she having, at that stage, left home. Mr Briggs was present. There was an altercation in which she invited him to tell her mother of what had taken place between them. She alleges that, a few days after her mother came out of hospital, Mr Briggs confessed to her that he had molested Ms Sewell in the past. Ms Sewell was upset that her mother continued to reside with Mr Briggs after receiving this information, with the result that she, her mother, Mr Briggs and her brother all sought counselling from a priest of the Catholic Church. She said in her statement that “the counselling was to do with Darrel abusing me”.

14 The statement indicates that thereafter her mother and Mr Briggs sought counselling from a psychiatrist, Dr Terry Cook. Her mother took her to see this doctor. She says that she discussed her step-father’s abuse of her with him and started to consult the doctor regularly until she moved to Brisbane in 1990. Before that she had made a complaint about her step-father, on 25 May 1989 to the Child Mistreatment Unit, Parramatta Police. She provided a statement to an interviewing detective, the contents of which appear in her statement of 17 July 2000. The statement is a brief one but refers, in detail, to at least one allegation which is repeated in her later statement. In this statement of 25 May 1989 she indicates that she was not prepared to go to Court.

15 Her statement continues by indicating that since moving to Brisbane in 1990 she had had “counselling about the sexual abuse that Darrel gave me” from three named doctors in Queensland. She also states that on 16 June 1992 she wrote to a solicitor in Sydney, who was then acting for a woman who had become Mr Brigg’s defacto wife, there having been a prior divorce from Ms Sewell’s mother. It appears that there were proceedings in the Family Court to which this information could be relevant. The information was later contained in an affidavit which was part of the evidence placed before his Honour. It refers to the physical and sexual assaults allegedly made upon Ms Sewell by Mr Briggs, indicating that, although she was still suffering the effects of this abuse, she had not been prepared to take the matter to Court.

16 Her statement ends with an assertion that, because of the continuing effect upon her of Mr Briggs’ actions, she believed it was time to make him “face up to what he did”.

17 In her affidavit Ms Sewell speaks of her consultations with Dr Terry Cook from 1988 until 1994, after which she did not see him again until 22 August 2000 at which time she says that she “finally realised the full extent of the implications and consequences that the abuse and sexual assaults” had had upon her.

18 She then speaks of counselling she had received in Queensland from 1998 with Relationships Australia and also Dr Mariette Keane of Stafford City Medical Centre “over a ten year period”. She states that “after a couple of months of intense counselling treatment with Robin Knowles from Relationships Australia she began to realise that all her problems were because of the abuse and sexual assaults” and that it was not until around April/May 1998 that she “realised the connection between my terrible mental state and the abuse and sexual assaults by the respondent/defendant.” On 19 July 2000 she consulted Mrs Elyse White, her solicitor, in relation to the assaults. She had not discussed these matters with a solicitor before and, on this occasion, was advised of the limitation period of which she had previously been unaware. It may be noted that she made her statements to the police at this time. She further says that:

“On 23 July 2000 I spent 8 hours putting together a Chronology and a set of circumstances outlining my experiences and feelings as a result of the abuse and sexual assaults by the Respondent/Defendant. It was only at the conclusion of the long period of time in front of the computer analysing my circumstances that I fully realised the precise implications to me and to my life as a result of the humiliation that the Respondent/Defendant subjected me to.”

19 She asserts that when she attended the Tweed Heads Police Station on 17 and 24 July 2000 she then realised:

“that the sexual assault had impacted on my life to such an extent that I was having difficulty in the following areas:

(i) nightmares;

(ii) relationships – difficulty forming and maintaining sexual relationships.

(iii) chronic post traumatic stress disorder;

(iv) anxiety;

(v) stress;

(vi) depression;

(vii) irritability;

(viii) flashbacks;

(ix) suppression of memories;

(x) avoidance of social situations;

(xi) poor concentration;

(xii) lack of enjoyment of sexual intercourse;

(xiii) deterioration of relationships with family, particularly my mother;

(xiv) abnormal protection of children;

(xv) loss of enjoyment of life;

(xvi) amnesia;

(xvii) requirement for medication, including anti-depressants;

(xviii) requirement of psycho-therapy treatment.”

20 Her solicitor, Ms White made an affidavit which indicated that she had been consulted by Ms Sewell on 11 July 2000 in relation to the bringing of proceedings against Mr Briggs, and had advised her that those proceedings were statute-barred unless she were successful in having the limitation period extended by order of a Court. She annexed to her affidavit reports from Dr McClure, Consultant Psychiatrist, Dr Marriette Keane, Dr Terry Cook and Relationships Australia which set out the dates of consultations with Robin Knowles between 11 August 1998 and 2 August 2000.

21 Dr McClure diagnosed Ms Sewell as suffering from “Chronic Post Traumatic Stress Disorder”, directly causally related to the assaults by Mr Briggs. She said:

“It has been my experience that persons suffering from early-onset Post Traumatic Stress Disorder frequently remain silent about their experiences and often avoid – for 10 years, or more – reporting these experiences to the appropriate authorities. This is clearly occurring in your client’s case.”

22 Dr Keane, whose report was dated 4 February 2001, indicated that Ms Sewell had been her patient for over ten years and “had in excess of 30 consultations relating to her psychological state” in which she had disclosed a history of sexual abuse by her step-father which had taken place over a period of several years. She had referred Ms Sewell to a consultant psychiatrist for counselling.

23 Dr Cook’s report is dated 30 August 2000. It relates that he first saw Ms Sewell on 26 October 1988 at her mother’s request. He says:

“Ms Sewell was distressed because her mother was remaining in a relationship with a man who had allegedly sexually abused her from the ages of 12 to 14 years. Ms Sewell presented with a mixed anxiety/depressive state with irritability that she related to ongoing anger as a result of the abuse. Ms Sewell felt that her ongoing symptoms had affected her relationships with others.”

24 He saw Ms Sewell again on 16 March 1991. She presented with depression. She was experiencing relationship difficulties with her partner and “expressed continuing concerns relating to the experiences she had with her mother’s former partner”. She and her partner had sought marital therapy in Queensland “as a result of her difficulties.”

25 From November 1992 until May 1999 Ms Sewell had seen the doctor on eight occasions. He says that over this period she had sought counselling over “relationship issues, ambivalence about relationship choices, sexual difficulties, direction in life, and so on.” No medication was prescribed as these difficulties did not represent any major mental illness. Dr Cook concluded his report as follows:-

“My involvement with Ms Sewell has been of a supportive nature only as it was believed that she would return to Queensland to involve herself in more involved counselling which would have involved addressing the sexual abuse issues from her past.

My most recent contact with Ms Sewell was for a review on the 22nd August 2000. At this time she expressed a wish to resolve the residual anger which she had towards her mother’s ex-partner by having him charged for the offences reportedly committed against her.”

26 The letter from Relationships Australia, annexed to this affidavit, indicates that between August 1998 and August 2000 Ms Sewell sought counselling in Queensland, on a regular basis, on twenty-four occasions.

27 As already indicated, Mr Briggs placed no material before his Honour. However, Ms Sewell was cross-examined by counsel on his behalf. It is necessary now, to make brief reference to the course of the proceedings before his Honour.

28 At the outset of the hearing his Honour enquired as to the section of the Act under which the Notice of Motion was brought. He was told by counsel that it was the 1969 Limitation Act. It appears sufficiently from the course of the hearing that the specific sections involved were ss 60G and 60I. It was accepted that, although the assaults relied upon occurred before 1 September 1990 the operation of Schedule 5 to the Act bought the case within the potential scope of s 60G. I shall refer to these sections later. As the plaintiff was born on 7 July 1968 and turned eighteen on 7 July 1986, the limitation period expired on 7 July 1992. Her Statement of Claim, dated 2 November 2000 was, therefore significantly out of time.

29 In her oral evidence Ms Sewell, in chief, gave the following answers to the following questions:-

30 This assertion was challenged in cross-examination. It was put to Ms Sewell that it was, in fact, untrue. It was put to her that as early as 1988, she had gone to psychological counsellors and made complaints in relation to her former step-father’s actions. She agreed with this but maintained that it was not until she had actually made her statement that she had “ever discussed fully with any counsellor, lawyer or police the full depth of what had occurred” with her. She agreed however, that in 1988 she had, as a result of some assaults, ended up with some psychological symptoms for which she required counselling.

31 A large part of the cross-examination is, quite clearly, directed to an attack upon her ability to recollect and also upon her veracity. Faulty recollection of dates was a feature of this attack.

32 Also, cross-examination was directed to consultations with Dr Cook and other medical practitioners in the 1990’s and her provision of information in the affidavit in the Family Court Proceedings involving Mr Briggs. This cross-examination was fairly general in its terms and would appear not to have been based upon any medical records available to the cross-examiner.

33 In re-examination, Ms Sewell stated that prior to seeing the psychiatrist, Dr McClure in August 2000, she had never been diagnosed as suffering from Post Traumatic Stress Disorder relating to Mr Briggs’ alleged assaults upon her.

34 There is no record of counsels’ addresses to his Honour but, as a result of questioning from the bench in the present application, it appears that those addresses covered all issues that could be raised under ss 60G and 60I of the Limitation Act 1969.

35 Before turning to his Honour’s judgment, it is convenient to set out these sections together with some discussion as to their meaning and effect.

36 The Legislation

“If any application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

37 Section 60I, so far as relevant, provides as follows:-

Matters to be considered by court

(1) A court may not make an order under section 60G …unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i) – (iii).

(2) ………..”

38 The present case raised a clear dispute as to whether Ms Sewell had brought herself within the provisions of s 60I;both as to whether she had failed to achieve the appropriate degree of awareness before the expiration of the limitation period on 7 July 1992 and as to whether, that degree of awareness having been achieved only at a later date, she had failed to apply for an extension of time to sue within three years of that date. If she failed in either respect, then the question, pursuant to s 60G(2), whether it was just and reasonable to extend the limitation period could not arise. The decision in Drayton Coal Pty Limited v Drain (CA 40418/95) provides guidance in the interpretation of this section. In that case Gleeson CJ said:-

Dedousis

3. Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff’s awareness of that legal complexion, is not what matters for the purpose of s 60I(1).”

39 In the same case, Gleeson CJ said that in resolving problems under the section it might be necessary for a Court to consider questions of degree. His Honour said:-

Dedousis

40 In my opinion, a question of degree also arises where a plaintiff, although fully aware of the defendant’s acts or omissions at the relevant time and of their connection with some personal injury to him or her is, nevertheless not aware of the full nature or extent of his or her personal injury connected with those acts or omissions. The benefit of the section will be available, provided that before the expiration of the relevant period, he or she had not become aware of additional matters of personal injury connected with the defendant’s acts or omissions which, together with the aspects of injury already known, served to make up the full “nature or extent of personal injury suffered”. Where this situation obtains, the three year limitation period stipulated in s 60I(1)(b) does not commence to run until the potential plaintiff becomes aware (or ought to become aware) of all the significant elements of his or her personal injury and of the connection of each of those elements with the relevant acts or omissions of the defendant.

41 Accordingly, in my view, the first question in the present case would be whether Ms Sewell had, before 7 July 1992, become aware, or ought to have become aware, of the full nature and extent of her personal injury and its connection, in all significant respects, with Mr Briggs’ alleged assaults upon her in the years 1980 to 1983. This, necessarily, would be a difficult question, because the alleged injuries were psychological and psychiatric in nature with impact on many areas of her life.

42 If not, the next question would be whether, pursuant to s 60(1)(b), she had made her application for extension of time within three years of achieving the degree of awareness referred to. The answer to this question would require a finding as to the date by which that degree of awareness had been achieved or ought to have been achieved.

43 The judgment of the trial judge

“The applicant was strenuously cross-examined about various aspects of history. As a consequence on that cross-examination, it could not be said other than that the applicant was vague and inconclusive about some aspects of that history as disclosed not only in her evidence but also in a statement which was made to the Police Department of recent times.”

44 His Honour then referred to the plaintiff’s having made first contact with Dr Cook around 26 October 1988 and that she had seen him from time to time thereafter. He does not refer to the gap in her consultations with Dr Cook resulting from her moving to Queensland. However, his Honour specifically refers to the following paragraph in Ms Sewell’s affidavit:

“I did not see Dr Cook again 22 August 2000 which was the time that I finally realised the full extent of the implications and consequences that the abuse and sexual assaults by the respondent/defendant had had on me.”

45 His Honour then made reference to Ms Sewell’s evidence as to her counselling from 1998 by Relationships Australia in Queensland as a result of which the applicant had said “I began to realise that all my problems were because of the abuse and sexual assaults I had been subjected to by the respondent.”

46 His Honour then stated:

“The applicant said and maintained under strenuous cross-examination that it was not until at least May 1998 that she realised the connection between her mental state and the abuse and sexual assaults by the respondent.”

47 His Honour then made reference to the applicant’s consulting Mrs White on 19 July 2000, of her then being advised of the limitation period and the placing in train, thereafter, of the proceedings to extend time. With reference to her attendance at the Tweed Heads Police Station at this time his Honour said:

“She gave a statement about the nature and extent of her problems. She said and I accept that it was only at the time that she divulged her history to the police that she realised the sexual assault had impacted upon her life and caused her psychological and psychiatric problems.”

48 Later, after a discussion of the requirements of s 60I(1)(a)(i), (ii) & (iii), his Honour said:

“In this case the evidence which I accept from the plaintiff is that as I have previously mentioned she was at the date of expiration of the time limit unaware of the connection between the personal injury and the defendant’s act or omission. And I am also satisfied that the application has been made within three years of her becoming aware of it.”

49 His Honour expanded upon this statement in the following paragraph:

“It was suggested that the evidence which related to attendance on various medical practitioners in 1988 and counsellors subsequently, was evidence that more likely than not the applicant was aware of the connection between the personal injury and the defendant’s act or omission; however I accept the evidence of the applicant that it was not until around about April or May that she realised the connection between her mental state and abuse and was not indeed until 19 July 2001 that she had discussed these matters with her solicitor and was aware of any limitation periods; therefore I am satisfied that the date upon which she became aware for the purposes of s 60G(3) was 19 July 2000.”

50 It is accepted that the reference to “April or May” in this paragraph is a reference to those months in 1998. If his Honour was intending to convey that in those months Ms Sewell had achieved the state of awareness contemplated in s 60I(1), then the three year period in s 60I(b) had expired before she made application for the extension of time under s 60G, and she had lost the benefit of the section. It is also accepted by the parties that his Honour’s reference to s 60G(3) was an error, in that his Honour intended to refer to s 60I(1)(a)(iii).

51 It appears that this passage represents his Honour’s ultimate finding on the question of the applicant’s entitlement to the benefit of s 60I. It, undoubtedly creates difficulties. It appears from it that his Honour has selected the 19 July 2000 as the commencing date for the running of the limitation period, on the basis that it was on that date that she received legal advice as to the existence of the limitation period and instructed her solicitor to take the subject proceedings. If this be so, then an inappropriate basis has been selected for the commencement of the period. The relevant date under s 60I is the date of awareness of the matters referred to in subsections (a), (b) and (c) and not of the existence of the limitation period referred to in the legislation.

52 It is, of course, possible, having regard to the other passages in the judgment which I have set out, that his Honour merely made a slip in this paragraph and, in fact, intended to refer to the other events around that date in July which may have stimulated the applicant’s level of awareness. However, in a matter which is as critical as this is to the application, I have come, with some regret, to the conclusion that it would be inappropriate to seek to reconstruct his Honour’s finding. Furthermore, a finding in Ms Sewell’s favour would require reasons explaining why her level of awareness in May 1998 of the nature and extent of her injuries and their connection with the conduct complained of was not such as to defeat her application.

53 I consider that this is a matter of sufficient significance to warrant the granting of leave to appeal. I would propose that leave be granted and I would also propose that the appeal be upheld with costs and that the judgment and orders in the Court below be set aside.

54 The result

55 Accordingly, I propose the following additional orders:

That this application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first application be determined by the judge hearing the remitted application.

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Citations

Briggs v Sewell [2002] NSWCA 182

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CITATION:	BRIGGS v SEWELL [2002] NSWCA 182
FILE NUMBER(S):	CA 40936/01
HEARING DATE(S):	14/06/02
JUDGMENT DATE:	2 July 2002
PARTIES :	Darrel Albert BRIGGS v Loueen Kylie SEWELL
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Foster AJA at 3-55

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 102/00
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	D. Campbell - Claimant S. Bliim - Opponent
SOLICITORS:	Hancock Alldis - Claimant Marsdens - Opponent
CATCHWORDS:	Application for leave to appeal from a decision where granted leave to commence proceedings although out of time.
LEGISLATION CITED:	Limitation Act (NSW) 1969
CASES CITED:	Wickstead v Browne (1992) 30 NSWLR 1 Drayton Coal Pty Ltd v Drain (CA 40418/95)
DECISION:	1. Grant leave to appeal.; 2. Appeal upheld with costs.; 3. Orders below set aside.; 4. Application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first applicationa be determined by the judge hearing the remitted application.; 5. Respondent to have certificate under Suitors Fund Act if otherwise entitled.