Ciantar v State of New South Wales

[2008] NSWSC 191

CITATION:	Ciantar v State of New South Wales [2008] NSWSC 191
HEARING DATE(S):	25 February 2008
JUDGMENT DATE :	7 March 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
DECISION:	Notice of motion dismissed
CATCHWORDS:	LIMITATION OF ACTION - Ultimate statutory bar of thirty years - Findings on claim for suspension by reason of disability if that bar inapplicable
LEGISLATION CITED:	Child Welfare Act 1939 Limitation Act 1969
CATEGORY:	Procedural and other rulings
CASES CITED:	New South Wales v Harlum [2007] NSWCA 120 Sorrenti v Crown Corning (1986) 7 NSWLR 77
PARTIES:	Maria Elizabeth Ciantar - Plaintiff State of New South Wales - Defendant
FILE NUMBER(S):	SC 20427/06
COUNSEL:	D Elliott (Plaintiff) P Saidi (Defendant)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff) State Crown Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 7 March 2008

20427/2006 MARIA ELIZABETH CIANTAR v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: On 26 October 2006 the plaintiff filed a Statement of Claim against the defendant asserting that she had suffered “personal injury, loss and damage” between 1962 and 1971 for which the defendant was liable to compensate her in damages.

2 The pleading of facts records the birth of the plaintiff on 5 November 1953 and her becoming what can in an abbreviated way be described as a State ward from about 15 February 1962 until her eighteenth birthday on 5 November 1971. The Defence as filed made a formal admission to this effect, however the wardship file which has been voluminously copied and put into evidence, shows a discharge from wardship with effect from 14 February 1967. Prior to that, from 18 December 1964 the plaintiff had been following, inter alia, representations by solicitors, restored to her father’s care, but not discharged from wardship. She was effectively returned to her former status on 5 July 1968 when she was found to be a neglected child and exposed to moral danger and, by order of the Children’s Court at Richmond, committed to an institution. On 9 August 1968 at Penrith Quarter Sessions, an appeal against the Children’s Court order was dismissed with a recommendation by the presiding judge that the plaintiff go to a specific institution (Ormond at Thornleigh) and that “when the Child Welfare Department thinks fit” she may be returned into the custody of her sister.

3 There is an express pleading that by reason of a disability, particularized as “post traumatic stress disorder and sequelae” the limitation period pursuant to the Limitation Act 1969 has been suspended.

4 In the originating document there follow descriptions of mental, physical and sexual abuse at the hands of a Mr Woodard (now deceased) who, with his wife, had the plaintiff for a time in their care. They also had the plaintiff’s sister Christine, also known as Belinda, in care. The Statement of Claim pleads that Christine absconded and made allegations of sexual abuse by Mr Woodard but that he directed the plaintiff to exculpate him by asserting to police that she had been the victim of that sort of abuse not by him but by her father, and goes on to assert that she did make such a complaint by reason of his direction. Following these events the Woodards notified the Department that they did not wish to continue with care of the plaintiff and her sister.

5 Evidence, placed before me by consent, included a statement by Mrs Woodard, now seventy eight years of age, that shortly after these events her own daughter received a telephone call from Christine (Belinda) followed by a letter of apology from Christine for making false allegations against Mr Woodard. A copy of the letter is among the tendered documents and the original is stated to have been given to an investigator engaged by the defendant. Mrs Woodard, to the extent of her personal knowledge, disputes the plaintiff’s allegations.

6 In relation to what has been pleaded as a false allegation against her father, the plaintiff’s statement to police of 9 December 1963 included:

“Since I have been staying with Daddy Woodard it is good and he is a kind man”.

7 The plaintiff’s evidence was that she also made this statement in compliance with a direction given by Mr Woodard. I did not understand it to be suggested that Mr Woodard was present whilst this statement was taken by the police.

8 The next series of events pleaded refers to the plaintiff being placed with a Mrs Fletcher and alleges that she suffered abuse at the hands of Mr Fletcher consisting of “regular and repeated full penetrative sex, forced fellatio and masturbation”.

9 Both Mr and Mrs Fletcher are deceased.

10 It is expressly contended (Statement of Claim paragraph 17) that this abuse was reported to Blacktown Police Station and to a departmental officer (Mr Shepherd). There is no record of such a visit to Blacktown Police Station. It is accepted that, if such a record ever existed, it is possible that it was destroyed in accordance with archiving procedures which took place in the past. There is nothing to support the claim on the departmental file. Mr Shepherd has stated, having regard to practices and procedures which he followed in his employment and the complete absence of any notation on the entire file that he “can say with certainty” that no allegation of sexual abuse of the plaintiff by Mr Fletcher was made to him.

11 The next allegation asserts that, shortly before 18 December 1964, the plaintiff absconded from the Woodards’ home and, following a meeting with Mr Shepherd was restored to her father’s care on that date. The date coincides with the file correspondence but it is inconsistent with the pleading which records that on about 16 December 1963 the plaintiff was placed with Mrs Fletcher (paragraph 16). I regard it as likely that the nomination of the Woodards is an error and it should be a reference to the Fletchers.

12 The pleading continues with description of the restoration of the plaintiff to her father where she suffered further sexual abuse at the hands of his male friends, so-called “uncles”.

13 Then, when again taken out of her father’s care (in 1968) and sent to Ormond there is complaint that the plaintiff was “subjected to a strictly regimented regime and punished by solitary confinement in an isolation cell”.

14 Next is formulated a claim that the defendant is vicariously liable for mistreatment perpetrated by persons into whose care the plaintiff was placed. The particulars of assault refer to the persons to whom the defendant delegated the plaintiff’s care. This would not appear to be intended to comprehend her father but precisely the scope of what the plaintiff intends to assert in relation to this was not explored.

15 The pleading continues with an allegation of negligence against the defendant particularized in a series of omissions (each of eight particulars commences with the words “failure to”). No particular specifies that a claim is made for negligence in the act of restoring the plaintiff into the care of her father. There follows a statement that the plaintiff was assaulted and mistreated at Ormond which is particularized with a general assertion that the plaintiff was assaulted by “officers of the defendant”.

16 I mention the absence of pleading negligent conduct in restoration of the plaintiff to her father because it was raised by counsel in address and the absence observed. No application to amend was made but it was forecast that it could be made. It is necessary to deal with this motion on the pleadings and the current material. However, as will appear, the result would be no different even if an amendment were in place.

17 Finally there is a statement of facts which propose a cause of action based upon a denial of a fair hearing of the plaintiff’s complaints “of unlawful and/or criminal mistreatment and the protection afforded to her by the Act” (The Child Welfare Act 1939). I would take the latter expression to allege a failure to provide the protection available under the statute.

18 The motion before the Court seeks relief in these terms:

“That the Plaintiff be granted leave pursuant to 50C, 50D, 50E, 50F, 51, 52, 57A, 57B, 58, 60B, 60C, 60E, 60F and/or alternatively 60G of the Limitations (sic) Act 1969 (NSW) to continue proceedings Matter No 20427 of 2006 filed on 26 October 2006.”

19 I am not, of course, determining the truth or otherwise of the plaintiff’s assertions but I have engaged in the summary of the various factual allegations in the Statement of Claim to give some indication of what it is that the defendant is being called upon to meet.

20 At the commencement of the hearing, counsel for the plaintiff stated that “the complicated question of when she became aware of the matters in s60I for the purpose of s 60G should not trouble your Honour. We don’t abandon that but the thrust of the case is s 52”.

21 I shall deal first therefore with that issue. As I shall later determine, the plaintiff is met with a critical barrier created by s 51(1).

22 Unless otherwise stated, section references are, of course, to the Limitation Act 1969. As presently relevant, s 52 provides that the running of the limitation period is suspended during the period in which the intending claimant is “under a disability”. The relevant state of disability is defined in s 11 (3)(b):

“(3) For the purposes of this Act a person is under a disability:
…
(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(i) any disease or any impairment of his physical or mental condition;
… ”.

23 It is the plaintiff’s case as delineated in a written outline of submissions by counsel that she has been substantially impeded in the management of her affairs in relation to the cause of action for in “excess of twenty eight days, in fact since the occurrence of the mistreatment”.

24 Her primary evidence is to be found in an affidavit sworn on 21 June 2007 which was put before the Court, without objection, as an exhibit to another affidavit by Mr Thurn, her solicitor. The plaintiff’s affidavit commences with some detail about the matters upon which are founded the allegations in the statement of claim. About eighteen months before her eighteenth birthday the plaintiff mentions seeing a general practitioner Dr Dougherty and, inter alia, having suicidal thoughts. She was referred “for psychiatric help”. There was no material put before the Court to elaborate upon this.

25 The affidavit continues to state that the plaintiff has had “several psychiatrists over the years” (in oral evidence she said, two) and she has been seeing a Dr Teoh, it is said, for the last ten to twelve years. Dr Teoh’s report of 22 August 2006 stated that the plaintiff first consulted him in 2001. He noted that she had consulted a psychiatrist for many years but stopped when that psychiatrist ceased practising. This would appear to be a reference to Dr Stella Montenegro, whom the plaintiff agreed she was seeing from about 1993 until 1997. I have no documentation nor any report from Dr Montenegro nor was I referred to anything in the bundle of documents which might reveal whether she was or was not now available to supply any information concerning the plaintiff.

26 Dr Clark provided a report dated 16 December 2005. He diagnosed a post traumatic stress disorder which is congruent with Dr Teoh’s diagnosis of a “chronic complex post traumatic stress disorder”. Dr Clark recited a checklist of symptoms from the standard text which he indicated should be used in conjunction with the history related to him by the plaintiff. That history included the allegations against two sets of foster parents and against the friends of her father who molested her.

27 Some aspects of the history recorded by Dr Clark appear to be confused. He did not give oral evidence and his report was placed in evidence by consent. Inter alia, he recounted:

“She says ‘Mum’ left and Dad used to hit her, that is, Maria. She says he forced her into sex and then she took off ”.

28 In her oral evidence the plaintiff denied that her father had molested her.

29 Later Dr Clark also recorded:

“Her first marriage was to a Mormon and at this time she told police that her father had molested her”.

30 The plaintiff said that this was an error by Dr Clark and that he had amended this. She was never married to a Mormon. Counsel did not draw attention to any amended document produced by Dr Clark.

31 As above noted, the evidence was that the plaintiff had made a statement to police on 9 December 1963 when she was aged about ten years. That statement contained allegations of sexual abuse by her father but she testified that those allegations were false and had been given in obedience to a direction by Mr Woodard to tell such lies.

32 Dr Clark noted a second marriage to “Maltese Joe”. The concluding paragraph of the plaintiff’s affidavit read:

“I stayed in a very unhappy marriage for fear that, if I left, my children would have ended up in a situation like my childhood. My marriage is good now, but that only came about after I started getting psychiatric help”.

33 The plaintiff’s evidence is that she has been getting psychiatric help for many years and had, as above observed, been referred to a psychiatrist even before she ceased wardship on her eighteenth birthday.

34 It is not necessary for the plaintiff to adduce evidence in express terms of being substantially impeded in the management of her affairs in relation to the cause of action: New South Wales v Harlum [2007] NSWCA 120 but it is noteworthy that neither Dr Teoh nor Dr Clark appear to direct specific attention to this aspect of effect of the diagnosed condition upon the plaintiff. Dr Teoh observed that the plaintiff is working at her normal duties but has “periodic anxiety symptoms and recollection of her past abuse”. Dr Clark noted that the plaintiff had worked as a typesetter for thirty years. I do not overlook that the plaintiff herself claimed in her affidavit that she had been absent from work for substantial periods because of symptoms but on her own estimate (that she had lost about one quarter of her wages) she has been able to engage in normal employment over a very long period of time. Dr Clark wrote “she is a woman who likes to be in control and cannot stand change. If disturbed, she panics”.

35 The plaintiff’s own testimony focussed upon her claim that she had on one occasion reported the abuse to a policeman at Blacktown and to a departmental officer, a Mr Shepherd. Although I have noted the absence of corroborative documentation and the denial of receiving such a report by Mr Shepherd, for present purposes it can be assumed that the plaintiff’s claim is accepted. It amounts to a single occasion of complaint in response to abuse now said to have occurred in three separate contexts, first, by Mr and Mrs Woodard, second, by Mr Fletcher and third by the plaintiff’s father’s friends. It was the recurrent theme of the plaintiff’s evidence that, although she was conscious of the wrong that was being done to her, she refrained from further bringing the matter to attention because on this one occasion she had not been believed and therefore she expected that she would not be believed in the future.

36 In her oral evidence in chief this was said:

“Q. What has prevented you doing something about it in the 30-odd years--
A. I never thought I would be believed, I wasn’t believed at the time and I thought I wasn’t, I wasn’t strong enough but I didn’t think I would be believed.
Q. What was it that you noticed about yourself that made you think you weren’t strong enough?
A. I have a very poor self-esteem and I just didn’t think I could say something and be believed”.

37 Her testimony acknowledged some experience with legal processes although in the criminal sphere, concerning sexual abuse of children. Her affidavit referred to the conviction of her brother of major crime and also for molesting her own daughters and this latter provides pertinent material for assessing her statement that she did not think she was capable of doing anything about what had happened to her.

38 The following emerged in cross examination:

“Q. If I understood your position correctly, the reason why you didn’t come forward before was your belief that you, in your mind at least, would not be believed about the allegations?
A. That’s right.
Q. Was that the primary reason why you didn’t come forward earlier?
A. Yes.
Q. Was that the only reason why you didn’t come forward earlier?
A. No, I was always of the belief that I wasn’t good enough, I just didn’t think I was important enough or capable enough of doing anything about it.
Q. When you say you weren’t capable of doing anything about it, of course you had to go through a period when you yourself were involved in court proceedings involving your two daughters?
A. Yes.
Q. That arose as a result of an incident in the eighties, around about the mid eighties?
A. Yes.
Q. And you yourself became heavily involved in those court proceedings?
A. Yes.
Q. From about 1990 to 1992 or thereabouts?
A. Yes.
Q. You were able to experience the court process for yourself?
A. Yes.
Q. That is from your own experience?
A. Yes.
Q. And you were able to see how the court process worked in relation to your daughters?
A. Yes.
Q. Indeed, in relation to your daughters I think you put yourself forward as a support person?
A. Yes.
Q. As a mother no doubt to those children as they were going through the court process, correct?
A. Yes”.

39 The theme of feared disbelief was again raised in re-examination:

“Q. Why did you not tell anybody at the department that you were suffering sexual assaults at the hands of your father’s friends and your so called uncles?
A. No one believed me when I spoke up to the police and to the welfare so I didn’t think they would believe me.”

40 The proposition that the plaintiff did not think that she would be believed conveyed an implication that she was aware that there were avenues for redress if she spoke up and, if she was believed. There were, as she conceded, many opportunities spread over years for her to raise these matters in the absence of those who were abusing her and that she elected not to do so, not because she was unaware that remedy was available, but because she thought that any claim by her would fail.

41 Paradoxically, she apparently expected to be believed and claimed that she had been believed, for example when she told Sergeant Styles that she was happy with and anxious to return to the care of the Woodards, although this was, she asserted, a falsehood being told by her at the inspiration of Mr Woodard.

42 The detail of the plaintiff’s parentage, the absence of normal care and affection, her movement from one foster home to another and through an institution cannot, even setting to one side the claims of abuse, fail to engender sympathy for the plaintiff. However, my task on this issue is to determine whether the evidence demonstrates substantial impediment in her capacity to manage her affairs in relation to the cause of action. Making every allowance for the asserted lack of self esteem, a belief that the plaintiff would not be believed rather suggests an anticipation that any action taken by her will fail, rather than an inhibition upon seeking to have any action instituted on her behalf.

43 I am not satisfied in terms of the statute that the plaintiff suffered from a relevant disability.

44 As I earlier observed, the plaintiff did not abandon seeking relief other than pursuant to s 52 although, except in reply, no express submissions were made. The respective arguments advanced by the parties travelled on different lines. Counsel for the defendant made an initial submission that the plaintiff was subject to an ultimate bar by reason of s 51 (1) which provides:

“51 Ultimate bar
(1) Notwithstanding the provisions of this Part, an action on a cause of action for which a limitation period is fixed by or under Part 2 is not maintainable if brought after the expiration of a limitation period of thirty years running from the date from which the limitation period for that cause of action fixed by or under Part 2 runs.”

45 There can be no doubt that the limitation period fixed by the statute was suspended by reason of the disability (as defined) during the minority of the plaintiff until she attained her eighteenth birthday: s 11 (3)(a). If, as at that date (5 November 1971) a limitation period of six years (which I will assume in favour of the plaintiff rather than three years which was postulated as a possibility) commenced to run then, as I understood his submission, counsel for the plaintiff contended that the period of thirty years to ultimate bar should be calculated from the expiry of that limitation period, that is 4 November 1977 and therefore this action having been commenced on 26 October 2006 was within the thirty year span.

46 Neither counsel directed attention to any authority on the construction of s 51 (1). It does not appear to have arisen as an issue with any frequency. In Sorrenti v Crown Corning (1986) 7 NSWLR 77 there was discussion of the futility of the granting of an extension, if it was conceded that the thirty year limitation had expired, but I could find nothing there or elsewhere to support the plaintiff’s contention that the thirty years should be measured from the expiry of the statutory limitation period otherwise fixed as distinct from its point of commencement. The language of the section does not support the plaintiff’s contention. There is an obvious distinction in the language used and the concept to be conveyed between the expression “after the expiration of the limitation period” (of thirty years) on the one hand and “the date from which the limitation period (fixed under the statute) runs” on the other. Had the Parliament intended the latter to be measured from expiration, an identity of language could be expected. I cannot construe language which expresses a date “from” which something “runs” as meaning “from expiry”. In short, the date from which a set period runs does not mean the date from which that period runs out. In this case therefore the ultimate bar of thirty years ran from 5 November 1971. These proceedings were instituted nearly five years after the end point of the thirty year bar and are, for that reason, unsustainable.

47 Section 52, relating to suspension on account of disability, upon which the plaintiff principally relies, is contained in Part 3 of the Act and the provisions of s 51 apply, notwithstanding the availability (irrespective of my finding in the negative) of suspension of the bar as contemplated by s 52.

48 Finally, if I am wrong about construction of s 51, power to extend the limitation period is vested by s 60G. The making of any such order by use of that power is restrained by s 60I. In the terms of the restraint there legislated, it is plain from the plaintiff’s evidence that she was in fact aware of the injury that she suffered at the time she suffered each of the claimed injuries and was obviously aware of the connection between such injury and the acts of the persons for whose action the defendant is sought to be held vicariously liable. I recognize that at any such time, the plaintiff would be aware of the physical nature of assault rather than any long term psychiatric effects.

49 Nevertheless, as was the subject of earlier reference, the plaintiff had an extensive history of psychiatric consultation, some of which apparently commenced prior to the attainment of her eighteenth birthday. On the evidence she was seeing at least Dr Stella Montenegro for psychiatric treatment fifteen years ago. I note that the only reports tendered which are from Dr Teoh and Dr Clark are of relatively recent origin. I am not satisfied that the plaintiff was unaware of the nature and the extent of the injuries suffered in the broad sense of her knowledge of the consequences of the alleged abuse.

50 The motion for extension of time must be dismissed. In summary, I find proceedings are barred by the thirty year proscription, alternatively s 60G relief is not available because none of the threshold tests in s 60I is fulfilled and, in further alternative, the plaintiff was not under a disability as statutorily defined.

51 Each party tendered to the Court voluminous bundles of documents, significantly copying the entirety of the plaintiff’s wardship file. Much of the material which was tendered is illegible photocopy. I do not doubt that careful preparation of the respective cases involved the examination of this multitude of documents but it is a basic requirement of the exercise of legal professional skill that a party should prepare and put before the Court evidence which is relevant to the issues to be determined. A minute fraction of the mountain of paper put before the Court was the subject of any reference. That the tenders of these documents were made by consent does nothing to reduce the unsatisfactory conduct of the proceedings.

52 Any recovery of the costs in the light of these manifest extravagances, particularly in photocopy, should not have the appearance of any endorsement by the Court. To that end I expressly decline to order costs of the proceedings inter partes. As between the parties and their respective clients, resolution of any dispute about matters of costs lies outside the parameters of my present task.

53 The notice of motion filed on 29 March 2007 is dismissed.

54 I expressly decline to make any order in respect of the costs relating to that motion.

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