Courtney v Ray - [2019] VSC 175

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 175
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the matter of Courtney v Ray, the dispute involved the dismissal and subsequent reinstatement of proceedings in relation to an action for damages. The case was heard in the Supreme Court of Victoria. The primary contention was whether the court had the authority to reinstate the proceedings, which had been dismissed under a self-executing order, and whether this action aligned with the interests of justice and relevant statutory provisions.

The central legal issues revolved around the interpretation and application of the Supreme Court (General Civil Procedure) Rules 2015, specifically rules 24.05(b) and 24.06(a), concerning the dismissal and reinstatement of proceedings. Additionally, the court had to consider the broader implications of the Limitation of Actions Amendment (Child Abuse) Act 2015 and the Limitations of Actions Act 1958 in the context of the plaintiff's ability to seek justice. The court needed to determine whether the interests of justice warranted setting aside the self-executing order and reinstating the proceedings.

The court held that the interests of justice, in this instance, were significantly impacted by the plaintiff's ability to bring forward a claim that was previously barred by the limitation period. The court found that the dismissal of the proceedings, while procedurally correct, did not adequately address the substantive issues of justice and fairness. The court found that the statutory provisions, particularly the amendments introduced by the Limitation of Actions Amendment (Child Abuse) Act 2015, provided a compelling basis for exercising its discretion to reinstate the proceedings. The court considered the principles established in Jorgensen v Slater & Gordon Pty Ltd, ensuring that the decision balanced procedural fairness with substantive justice. The Supreme Court ultimately reinstated the proceedings, allowing the plaintiff to pursue the claim within the extended limitation period.

Orders