Courtney v Ray
[2019] VSC 175
•15 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2001 07165
| TIMOTHY JOHN COURTNEY | Plaintiff |
| v | |
| DARREN VIVIENNE RAY | First Defendant |
| STATE OF VICTORIA | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 March 2019 |
DATE OF RULING: | 15 March 2019 |
CASE MAY BE CITED AS: | Courtney v Ray |
MEDIUM NEUTRAL CITATION: | [2019] VSC 175 |
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PRACTICE AND PROCEDURE – Dismissal of proceedings – Reinstatement of proceedings – Self-executing orders – Setting aside self-executing order dismissing proceedings – Supreme Court (General Civil Procedure) Rules 2015 rr 24.05(b), 24.06(a) – Requirements of interests of justice – Matters relevant to exercise of discretion – Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110 – Limitation of Actions Amendment (Child Abuse) Act 2015 – Limitations of Actions Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Ternes | Angela Sdrinis Legal |
| For the First Defendant | ||
| For the Second Defendant | Mr P Battye | HWL Ebsworth Lawyers |
HER HONOUR:
This ruling concerns an application by the plaintiff, Timothy Courtney, to reinstate a proceeding that was finalised over 15 years ago. The allegations in this proceeding are of institutional abuse. The application relies on the Limitation of Actions Amendment (Child Abuse) Act 2015 (‘LAACAA’).
The application to reinstate is made as against the second defendant, namely the State of Victoria. It neither consents to nor opposes the application.
For completeness, the first defendant, Darren Vivienne Ray, has not yet been served with the application to reinstate. The last correspondence on the court file from him is a letter dated 25 May 2002 from Ararat Prison.
I made ex tempore orders reinstating the proceeding as against the second defendant and indicated to the parties that my reasons would follow.
Background
Mr Courtney’s writ and statement of claim in this proceeding were filed on 15 August 2001. He says that during 1969 and 1975, he was a student at Beaumaris Primary School. Mr Courtney alleges that during that time Mr Ray was a teacher and operated the school library. He says that when he was 8 or 9 years old, he was frequently, systematically and repeatedly sexually abused and indecently assaulted by Mr Ray while in the library and attached office and storeroom. In his defence, Mr Ray denies the allegations of sexual abuse.
In paragraph 22 of his statement of claim, Mr Courtney says that Mr Ray pleaded guilty to a number of offences committed against him and other individuals and was sentenced on 15 February 2001 to a total effective sentence of 44 months imprisonment. In his defence, Mr Ray does not admit to this. In its defence, the State of Victoria does not plead to this on the basis it is not an allegation of fact against it.
In their respective defences, both Mr Ray and the State of Victoria pleaded s 5 of the Limitations of Actions Act 1958 (‘LAA’) as a bar to the proceeding.
Mr Courtney sought damages in the proceeding, claiming pain and suffering, psychiatric illness and other conditions. He sought special damages for psychological counselling and treatment. Mr Courtney also sought aggravated and exemplary damages.
The proceeding was not determined at trial. The Court file indicates that on 6 June 2002, Ms Jeanne Gorman, then Mr Courtney’s solicitor, wrote to the court stating that “the above matter has settled subject to Terms of Settlement being executed.” The letter stated that a notice of discontinuance was intended to be filed within 14 days and requested vacation of a directions hearing on 13 June 2002. The letter indicated that the solicitors for the State of Victoria had been informed of it.
The Court file indicates that there were discussions between an Associate to Master Bruce and the assistant of Ms Gorman between 27 June 2002 and 7 November 2002. It indicated that there was still some ‘loose ends’ for the matter to be resolved. Ultimately, on 7 November 2002, the Court was informed that the matter had taken longer to resolve than hoped. The notes of this discussion indicate the situation had changed and there were no instructions from Mr Courtney to discontinue, and that his solicitor thought she may know more in a month.
On 8 November 2002, Master Bruce made the following orders on the Court’s own motion (‘8 Nov 2002 orders’).
1.If, within a period of 6 months from the date of this Order, no further Order is made in this proceeding, the proceeding shall stand dismissed at the end of that period, without adjudication on its merits and without prejudice to the right of any party to apply to reinstate it if there are adequate grounds for doing so.
2.The costs of these directions are costs in the proceeding.
3.Each party to this proceeding has leave to apply to amend or add to these directions upon at least 24 hours’ written notice to other affected parties.
No further steps were taken on the Court file and the proceeding was dismissed pursuant to the self-executing order 1 above. Then, on 18 January 2019, the current solicitor of Mr Courtney, namely Ms Angela Sdrinis, filed a summons on his behalf. The summons seeks to reinstate the proceeding. The summons was supported by the affidavit of Ms Sdrinis, sworn on 21 January 2019 (‘the Sdrinis affidavit’). Ms Sdrinis deposes as follows:
I am informed by the Plaintiff and verily believe that the proceeding was allowed to be dismissed because he had received advice that his claim was unlikely to succeed as the relevant limitation period had expired.
The Plaintiff now wishes to reinstate the claim following the passage of the [LAACAA].
The Court file indicates it was searched by Mr Courtney on 30 November 2016 and Angela Sdrinis Legal on 1 November 2017. The Sdrinis affidavit does not address the issue of settlement. During the course of the hearing, I asked counsel representing Mr Courtney and also the solicitor representing the State of Victoria as to whether either of them had instructions that settlement had occurred. Neither had sought or obtained those instructions.
Mr Courtney’s application
Mr Courtney says the 8 Nov 2002 orders envisage reinstatement. He seeks to have the proceeding reinstated on the basis that the LAACAA is an adequate ground (within the meaning of the orders made by Master Bruce) to reinstate the proceeding.
Mr Courtney says that the applicable principles are to be found in Jorgensen v Slater & Gordon Pty Ltd[1] (‘Jorgensen’). Addressing the factors there, he says that it is in the interests of justice that the proceeding be reinstated. Further, there is likely to be considerable prejudice to Mr Courtney if the proceeding is not reinstated. Mr Courtney says there is possible prejudice to the State of Victoria. It does not object to the reinstatement.
[1] [2008] VSCA 110.
Applicable Principles
The applicable rule for setting aside or varying a self-executing order dismissing a proceeding is Supreme Court (General Civil Procedure) Rules 2015 r 24.06(a) with reference, in this case, to r 24.05(b).
24.06 Setting aside judgment
The Court may set aside or vary—
(a) an order under this Order or an order referred to in Rule 24.05;
(b) a judgment entered or given upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step.
24.05 Inherent jurisdiction
Nothing in this Order affects the inherent power of the Court—
…
(b) to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly.
Sections 1 and 4 of the LAACAA include:
1.The purpose of this Act is to amend the Limitation of Actions Act 1958 to remove limitation periods that apply to actions in respect of causes of action that relate to death or personal injury resulting from child abuse.
4.After Division 4 of Part IIA of the Limitation of Actions Act 1958 insert—
"Division 5—Actions for personal injury resulting from child abuse
27O Application of Division
(1) This Division applies to an action if the action—
(a)is in respect of a cause of action to which this Part applies or extends; and
(b) is founded on the death or personal injury of a person resulting from—
(i)an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and
(ii)psychological abuse (if any) that arises out of that act or omission.
(2)Divisions 2 and 3 do not apply to an action of a kind referred to in section 27P.
(3)Division 2 (other than section 27F) does not apply to an action of a kind referred to in section 27Q.
(4)Division 3 applies to an action of a kind referred to in section 27Q as if a reference in section 27K(1) to a cause of action under Division 2 were a reference to a cause of action of a kind referred to in section 27Q.
…
27P No limitation period for certain actions
(1) An action to which this Division applies that is not an action that arises under Part III of the Wrongs Act 1958 may be brought at any time after the date on which the act or omission alleged to have resulted in the death or personal injury has occurred.
(2) Subsection (1) applies whether the act or omission alleged to have resulted in the death or personal injury occurs before, on or after the commencement of section 4 of the Limitation of Actions Amendment (Child Abuse) Act 2015.
…
27R Interaction with other powers of court
Nothing in this Division limits—
(a) in the case of the Supreme Court, the court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b) in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or
(c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
…
The LAACAA came into effect on 1 July 2015.[2]
[2]Victoria, Government Gazette, No S 183, 30 June 2015, 1.
The guiding principle in determining whether the reinstatement of a proceeding is to be ordered after its dismissal pursuant to a self-executing order, ‘as in every aspect of practice and procedure, is what justice requires’.[3] The Court’s discretion in determining the question is broad, but it must weigh all the circumstances even-handedly as between the parties.[4] The Court of Appeal in Jorgensen adopted the following considerations in determining whether to reinstate a proceeding after dismissal by operation of a self-executing order.
(a) the circumstances in which the self-executing order was made;
(b) the reasons for non-compliance with it;
(c) the prejudice to the defaulting party if relief were not granted; and
(d) the prejudice to the innocent party if relief were granted.[5]
[3]Jorgensen (n 1) [9].
[4]Ibid.
[5]Ibid citing MTQ Holdings Pty Ltd v Lynch [2007] WASC 49, [55].
The case of Equuscorp Pty Ltd v Percival[6] concerned an application to reinstate a proceeding after it was dismissed by order made ‘with a right of reinstatement’.[7] In ascertaining the prejudice to the innocent party, the Court considered the delay of the defaulting party. It then asked whether the delay occasioned prejudice to the innocent party such that ‘it will not be possible to have a fair trial of the proceeding’.[8] The consequences of the passing of time (e.g., in respect of the ability of witnesses to recollect events) was a relevant consideration.[9] Further, the Court considered that ‘no person should remain at risk in litigation for such an unconscionable period without good cause being shown for lengthy periods of delay in the prosecution of it.’[10]
[6][2008] VSC 116.
[7]Ibid [1].
[8]Ibid [29].
[9]Ibid [31].
[10]Ibid [34].
I adopt the above principles in the following analysis. Tailoring the factors in Jorgensen to current circumstances, one asks not what the reasons were for non-compliance with the orders, but rather what the reasons were for Mr Courtney not taking steps within the six months allowed in the orders to prevent the self-executing dismissal from taking effect.
Analysis
I reinstate the proceeding for the following reasons.
The circumstances in which the 8 Nov 2002 orders were made weigh in favour of reinstatement. The orders anticipate the possibility of reinstatement on ‘adequate grounds’. There is an adequate ground. This proceeding falls within the amendments to the LAA effected by the LAACAA. It is a personal injury proceeding founded on allegations of acts of sexual abuse of Mr Courtney as a minor and psychological abuse arising from those acts. Section 27P of the LAA dispenses with the limitation period that applied to the action brought by Mr Courtney when the self-executing orders were made.
The reason Mr Courtney did not take steps within the six months provided in the 8 November 2002 orders to prevent self-executing dismissal of the proceeding taking effect is relevant. On the material before me, including the defences which plead the limitation period, the evidence in the Sdrinis affidavit that advice concerning limitations was the reason that Mr Courtney allowed the proceeding to be dismissed[11] and in the absence of any evidence as to any settlement monies being paid or indeed any operable settlement agreement, I am satisfied for the purposes of this application that the reason Mr Courtney did not take any steps to prevent dismissal of the proceeding was the advice he received concerning the limitation period.
[11]Sdrinis affidavit, [4].
For completeness, I will address the references on the Court file to a settlement in principle. As discussed above, the Court file indicates that there was a point in time at which Mr Courtney’s solicitor was seeking his instructions to discontinue the proceeding on the basis there was a settlement in principle. There is no indication on the Court file that those instructions were ever obtained. The matter was not discontinued. Rather, on the Court’s own motion, it was dismissed without prejudice to any right to apply for reinstatement.
Mr Courtney will be prejudiced if the proceeding is not reinstated. There has been no adjudication of his claims.
Relevantly, the State of Victoria is not opposed to the application. Whilst there will be general prejudice due to the lapse of time, it did not identify any specific prejudice.
Weighing the factors above, together with the nature of this claim, it is in the interests of justice that the proceeding be reinstated as between Mr Courtney and the State of Victoria.
For completeness, this ruling and the ancillary orders do not preclude Mr Courtney pursuing the application to reinstate as against Mr Ray if he is located.
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