Ch v Bermingham

[2013] NSWSC 1218

Supreme Court

New South Wales

Medium Neutral Citation:

CH v Bermingham [2013] NSWSC 1218

Hearing dates:

21 March 2013

Decision date:

30 August 2013

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Notice of motion filed by the plaintiff on 7 December 2012 is dismissed.

(2) Notice of motion filed by the first defendant on 22 February 2013 is dismissed.

(3) Notice of motion filed by the second to sixth defendants on 20 March 2013 is dismissed.

(4) No order as to costs.

(5) The matter is listed at 9am on Friday 13 September 2013 in the Common Law Registrar's List.

Catchwords:

PRACTICE AND PROCEDURE - plaintiff pleaded she was under disability - whether limitation defence should be separately determined - whether any substantial factual overlap - credibility findings necessary - undesirability of inconsistent findings - whether damages should be separately determined - all issues to be determined in one hearing - motions dismissed

Legislation Cited:

Limitation Act 1969
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005

Cases Cited:

Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225
Thiering v Daly [2011] NSWSC 1345
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

Category:

Interlocutory applications

Parties:

CH (P)
Margaret Bermingham (D1)
The Trustees of the Roman Catholic Church for the Diocese of Lismore, Catholic Education Office (D2)
Sister Barbara Bolster and the Trustees of the Sisters of Mercy (D3)
Sister Margaret Hogan (D4)
Geoffrey Hylton Jarrett (D5)
John Steven Satterthwaite (D6)

Representation:

Counsel:
D S Weinberger (P)
J A Ringrose (D1)
G Bateman (D2-6)
Solicitors:
Karp O'Neill Solicitors & Barristers (P)
MBT Lawyers (D1)
Makinson & d'Apice Lawyers (D2-6)

File Number(s):

2011/411947

Judgment

1. Before the Court are three notices of motion seeking orders to the effect that certain issues be determined separately, pursuant to r 28.2 of the Uniform Civil Procedure Rules ("the Rules").

1. The plaintiff moves the Court for orders that the issue of quantum of damages be determined separately from the issues of limitation and liability. The first defendant moves for orders that there should first be a hearing to determine whether the proceedings are statute barred pursuant to the Limitation Act 1969, and thereafter, if necessary, a hearing with regard to liability and damages.

1. The second to sixth defendants adopt the position of the first defendant.

1. In light of the nature of the alleged incident that underpins the claim and the fact that this judgment will appear on the internet, I consider that the plaintiff should be referred to by a pseudonym.

Background

1. In order to understand how the present controversy arises, it is necessary to set out some of the pleadings and procedural background.

1. The proceedings were brought by way of a statement of claim that was amended on 1 August 2012. In it the plaintiff alleges that the first defendant was at the relevant times generally employed as a teacher by either the second, third, fourth, fifth or sixth defendants (for the purposes of the present application, the precise nature of the relationship between the first defendant and the other defendants need not be explored). The plaintiff alleges that the first defendant sexually assaulted her between 1977 and 1980, when she was a child.

1. The plaintiff claims damages from the first defendant in trespass upon the person of the plaintiff, and claims from the second to sixth defendants on the basis of vicarious liability for that tort, and also in negligence.

1. The first defendant filed a defence on 28 June 2012. She denied the material allegations of the plaintiff and also pleaded a limitation defence. The second to sixth defendants filed a defence in similar terms on 15 January 2013.

1. A reply was filed by the plaintiff on 22 February 2013. She pleaded in short that the limitation point was unmeritorious because the plaintiff was under a disability for the purposes of s 52 of the Limitation Act, and therefore any limitation period, if commenced, had been suspended. That disability was said to be a psychiatric condition that developed as a result of the tort committed by the first defendant.

The position of the parties

1. That brief summary of the procedural history of this matter shows that there is a real dispute between the parties as to whether the claim of the plaintiff is still maintainable or subject to being barred by the Limitation Act. It is upon that basis that the defendants move the Court to sever for separate determination whether the plaintiff's claim is indeed statute barred, and thereafter, if necessary, determine the matter to finality, including as to quantum of damages.

1. The plaintiff's position is that there should be some form of separation of issues, but only as to liability and quantum of damages. In other words, she submits that limitation and liability should be determined together and first. To be clear, the defendants did not agree to the severance of issues as between liability and damages.

Submissions

1. The plaintiff relied upon four grounds in support of her motion to separately determine damages only, and in opposition to the course sought by the defendants.

1. First, it would be an unnecessary waste of court time and resources to embark on two separate hearings with regard to limitation and then liability combined with damages, with the attendant extra costs to the parties.

1. Secondly, as the issue of credibility looms large with regard to both the limitation issue and the liability issue, the highly undesirable possibility of different judges making inconsistent findings as to credibility and delivering inconsistent verdicts is a real one.

1. Thirdly, the plaintiff would almost certainly be required to give evidence twice about a traumatic child sexual assault alleged to have occurred many years ago. The undesirability of that result does not require further elaboration.

1. Fourthly, and finally, it was submitted in support of the plaintiff's preferred course of separately determining liability and damages that that course would best facilitate the parties resolving the issue of quantum (on the assumption that the Court had found in favour of the plaintiff with regard to limitation and liability), without the need for the Court to conduct a further hearing on damages.

1. The defendants made the following submissions in support of their position that the preferred course is to split the determination of the limitation defence from the determination of liability and damages.

1. First, it is the frequent practice of this Court for questions related to limitation periods to be determined separately from questions of liability. It was not, however, submitted that that was an ironclad rule to be applied mechanistically.

1. Secondly, it was submitted that, because the determination of the preliminary question of limitation could finally determine the whole of the proceeding (in that if the defendants were successful with regard to the limitation point they would be successful overall), the costs implications for the defendants if the matter were not severed could be quite substantial. Furthermore, it was submitted that, because there is a good chance that should the plaintiff be unsuccessful the defendants will not be able to recover their costs fully, a separate hearing with regard to limitation would protect the defendants from being exposed to the risk of being unable to enforce a costs order, in the event that their argument about limitation succeeds.

1. Thirdly, it was submitted that the overlap between the preliminary limitation issue and liability is not that significant. Indeed, it was submitted that even though the plaintiff would be subject to cross-examination twice, the subject matter of any cross-examination in the two hearings would be quite different, and could be the subject of judicial control with regard to any inappropriate questioning.

1. In the same vein, because the subject matter of the cross-examination would not be identical, it was submitted that there would not be the opportunity for the defendants to achieve any inappropriate forensic advantage in being able to cross-examine the plaintiff twice.

1. Fourthly and finally, in answer to the motion of the plaintiff, the defendants submitted that this would not be an appropriate matter for damages to be determined separately from liability, for the reason that there would be some, perhaps substantial, overlap between the determination of the two issues. It was also submitted that the prospects of settlement may not be as high as the plaintiff submitted, and would not be enhanced by separate determination.

1. The second to sixth defendants also advanced the following submission independently of the first defendant. As between the plaintiff and each of them, the degree of factual overlap with regard to limitation and liability would be significantly less than that as between the plaintiff and first defendant. In particular, it was said that the mental health of the plaintiff bears very little upon the liability of the second to sixth defendants. It was therefore submitted that the concerns raised by the plaintiff that militate against the separate determination of limitation and liability in the proceedings against the first defendant cannot be applied with equal force to the second to sixth defendants.

Determination

1. It is useful briefly to set out some fundamental principles with regard to the question. Garling J summarised them more fulsomely than I will in the recent judgment of Thiering v Daly [2011] NSWSC 1345. I have taken the principles summarised by his Honour into account in determining these motions.

1. First, the usual position is that all issues be determined in the one trial. It is incumbent upon the party seeking to have matters dealt with separately to demonstrate that that should occur. The rule under consideration makes that clear. I would need to reach a position of affirmative satisfaction that the severing of issues is appropriate, especially in the context of the well-known mandate contained in s 56 of the Civil Procedure Act 2005.

1. Secondly, in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533, the High Court emphasised that limitation questions should not be decided in interlocutory proceedings, "except in the clearest of cases". Although the cause of action and subject matter in that case were markedly different from those here, the principle is one of general application.

Applying those principles to this controversy

1. It is convenient to turn first to the motions of the first defendant and the other defendants, which are relevantly identical.

1. It seems to me that there are a number of sound reasons why the question of limitation should not be dealt with separately from the questions of liability and damages. They are as follows.

1. First, because they are both founded very much on the psychiatric condition of the plaintiff over an extended period, there will be a substantial evidentiary overlap between the question of disability (which underpins the question of limitation) and the question of damages.

1. Secondly, to the extent that the case for the first defendant is that the child sexual assault did not occur (and therefore could not have caused any psychiatric injury), I consider that there will be some overlap between the question of limitation and the question of liability as well.

1. Thirdly, it can hardly be desirable for a plaintiff who is an alleged victim of child sexual assault to be called upon to give evidence and be cross-examined (presumably by two counsel) twice. I note that, for many years, the criminal law of this state has very markedly limited the circumstances in which that can occur.

1. Fourthly, I consider that all defendants would receive an inappropriate forensic advantage were the plaintiff to be cross-examined twice in these proceedings.

1. Fifthly, it is true that there may be savings in costs and time if the question of limitation were severed and dealt with first. But that is not undoubtedly the case; separate determination of that issue could lead to the expenditure of more time, at least in the sense of final resolution of the matter being more delayed, and perhaps more costs as well.

1. Sixthly, severing the question of limitation could lead to the highly undesirable phenomenon of inconsistent verdicts, founded upon different assessments of credibility by different judicial officers.

1. Seventhly, there is force in the submission of the second to sixth defendants that liability on their part when the plaintiff was at school may have little to do with questions of her subsequent emotional and mental health. But I do not consider, in all of the circumstances, that acceptance of that proposition is determinative of the question.

1. Eighthly, whilst it is true that there are many examples of proceedings in which questions of limitation had been dealt with separately, each case must turn on its own facts. Here, as I have indicated, the allegation that founds the claim of the plaintiff is child sexual assault, and it seems to me that the issues of disability, damages and (to a lesser extent) liability are inextricably linked.

1. It is true that Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225, is an example of a case in which the New South Wales Court of Appeal found that it would have been appropriate to sever the question of liability in a claim founded on child sexual assault. However, that was said in the context of an appeal from the District Court to the Court of Appeal where there was a real issue as to whether there was a judgment or order from which to appeal, and the power conferred by r 28.1 of the Uniform Civil Procedure Rules was used as a mechanism to regularise the appeal. The circumstances in Guthrie v Spence do not arise here.

1. In short, in the particular circumstances of this case, I am not affirmatively satisfied that I should exercise my discretion pursuant to the rule to order that the question of limitation should be determined separately and prior to the question of liability and damages. It follows that the motions of all defendants will be dismissed.

1. Turning to the motion of the plaintiff, I consider that questions of credibility, relating not only to the plaintiff herself but also to the experts who have treated her and examined her, will be relevant to both liability and damages. Indeed, it will almost certainly be submitted by at least the first defendant that a psychiatrically troubled witness (as evidenced by the claim for damages) should not be readily accepted with regard to whether an incident actually occurred (with regard to liability).

1. Secondly, despite the optimism of counsel for the plaintiff, it is not clear to me that one can have confidence that, if liability is determined in favour of the plaintiff, the question of damages will thereafter be truncated or settled entirely.

1. In short, I am not affirmatively satisfied that it is expedient for the two questions to be resolved separately. I consider that the motion of the plaintiff should be dismissed as well.

1. The ultimate result, therefore, is that the matter will simply proceed in the usual way; that is, with all evidence with regard to all issues being called, ruled upon, and assessed in the one proceeding.

1. As for costs, all motions were dealt with simultaneously and with commendable brevity. In light of the fact that each party has failed, I consider that there should be no order for costs arising from the hearing of these motions.

Orders

(1)   Notice of motion filed by the plaintiff on 7 December 2012 is dismissed.

(2)   Notice of motion filed by the first defendant on 22 February 2013 is dismissed.

(3)   Notice of motion filed by the second to sixth defendants on 20 March 2013 is dismissed.

(4)   No order as to costs.

(5)   The matter is listed at 9am on Friday 13 September 2013 in the Common Law Registrar's List.

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Decision last updated: 30 August 2013