Fraser v Marsden

[2000] NSWSC 416

CITATION:	Fraser v Marsden [2000] NSWSC 416
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20504/97
HEARING DATE(S):	1 February 2000
JUDGMENT DATE:	22 May 2000
PARTIES :	Paul Michael Fraser (Plaintiff) John Marsden (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr R Lovas (Plaintiff) Mr B Walker SC (Defendant)
SOLICITORS:	Ms MacKenzie of McCabes (Plaintiff) Mr M Lee of Corrs Chambers Westgarth (Defendant)
CATCHWORDS:	Extension of time to commence proceedings - Ss 60G and 60I
LEGISLATION CITED:	Limitation Act 1969 (NSW)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA, unreported 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd (1983) 155 CLR 129 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ unreported 22 August 1995) Commonwealth of Australia McLean (1997) 14 NSWLR 389 Williams v The Minister, Aboriginal Land Rights Act & Anor (1994-95) 35 NSWLR 497
DECISION:	See para 44

19

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 22 MAY 2000

20504/97 - PAUL MICHAEL FRASER v JOHN MARSDEN
& 6 ORS

JUDGMENT (Extension of time to commence proceedings,

Ss 60G and 60I Limitation Act)

1 MASTER: The plaintiff by notice of motion filed 24 December 1997 seeks an extension of time within which to commence proceedings pursuant to s 60G of the Limitation Act 1969 (NSW) (the Act) against the first defendant only. The actions against the second to sixth defendants are to be discontinued. The plaintiff relied on his affidavits sworn 11 February 1998, 27 February 1998 and 15 February 1999 and the affidavit of Christine Anne MacKenzie sworn 21 April 1999. The first defendant relied on two affidavits of Grant Leon Galvin sworn 6 April 1998 and 26 June 1998.

2   By statement of claim filed 29 May 1997 the plaintiff alleges that when he was a student at St John’s College Campbelltown in the State of New South Wales between 1966 and 1969, the first defendant conducted football, swimming lessons and activities with the students of the school after school hours (para 3). The plaintiff alleges that the first defendant assaulted, battered and falsely imprisoned him and breached his fiduciary duty to the plaintiff (para 10).

3   The plaintiff referred to three incidents where the first defendant allegedly sexually abused him. The plaintiff alleges that the first assault took place at the pump house near the school in 1967 when he was eight years of age. The second incident allegedly took place in the first defendant’s car at a location outside of the school. The third incident allegedly took place outside the school near a toilet block in 1968 when the plaintiff was nine years old, after the plaintiff had played in the football grand final. As a result of the wrongful acts by the first defendant the plaintiff alleges that he was injured. He alleges causes of action in assault, battery, false imprisonment and breach of fiduciary duty (para 10). These injuries are particularised as being post traumatic stress disorder (PTSD), personality disorder, psychosexual dysfunction and depression (para 14).

4   For the purposes of this application I have taken the plaintiff’s case at its highest, so I have accepted the plaintiff’s version of events. However it is acknowledged that these facts will be disputed should there be a trial. The plaintiff was not called to give evidence. Hence I find the following facts.

(1) The plaintiff was born on 30 April 1958 and is now 41 years of age.

(2) In February 1966 the plaintiff commenced attending primary school at St John’s College Campbelltown.

(3) The plaintiff has always been aware that in 1967 and 1968 he was indecently assaulted by the first defendant while he was a pupil at St John’s College Campbelltown.

(4) After the third incident of sexual abuse (as described earlier in this judgment) the plaintiff told Sister Mary Kevin about what had happened. The next day he was taken to the police station but cannot recall why this occurred. Sister Kevin spoke to a policeman and then the plaintiff was taken back to school. The plaintiff overheard a conversation between Sister Kevin and Bishop McCabe and he heard the Bishop say “Well then he must be lying”. Sister Kevin threatened the plaintiff saying that he would be sent to Boys Town or become a ward of the State and not see his grandmother again.

(5) In 1967 the plaintiff began to suffer nightmares and have difficulty in sleeping. However during the nightmares he suffered overwhelming feelings of guilt, dirtiness and paranoia. The nightmares lessened in frequency but the sleeping disorder has never resolved.

(6) Between 1969 and 1975 the plaintiff attended St Joseph’s High College at Hunters Hill. In 1975 he completed his Higher School Certificate.

(7) From about 1968 the plaintiff has suffered from bouts of depression. He has suffered continual depression throughout his adult life. The plaintiff suffered a particularly bleak period of depression between 1989 and 1991. He characterised his depression at that time as “highs” and “lows”, mood swings, suicidal thoughts, intermittent agoraphobia, loss of self-esteem, despondency and feelings of abandonment by society in general.

(8) In mid 1989 the plaintiff was referred to a psychiatrist Dr Ann Stephenson. At that time the plaintiff became aware that he was withdrawing from people and relied on the companionship of his dogs.

(9) On 21 September 1992 the plaintiff raised the issue of Mr Marsden with Dr Stephenson. When the plaintiff spoke the defendant’s name he realised that Dr Stephenson recognised it. The plaintiff did not proceed any further with the disclosure of abuse perpetrated by the first defendant because he was concerned that Dr Stephenson may be a friend or acquaintance of the first defendant. The plaintiff felt that it was much easier to hide what had happened and he became convinced that Dr Stephenson was somehow on the first defendant’s side.

(10) In December 1992 the plaintiff visited St John’s College at Campbelltown. During this visit he discovered that the swimming pool was no longer there and felt a sense of relief that it no longer existed. He introduced himself to a nun as an “old boy” and the nun said that it was nice to meet him and that he must have enjoyed being at the school. The plaintiff replied no that he didn’t, and if she knew what at happened to him at the school she would understand why. The plaintiff said that it was at that moment that he was able to forgive those to whom he had disclosed the first defendant’s abuse and their treatment of him after that disclosure. For some weeks after his visit to St. John’s the plaintiff felt that he had began to recover some of his “old state of mind”, and was beginning to “get on top” of his feelings of distress, anxiety and depression.

(11) On 1 December 1994 Mrs Grusovin a member of State Parliament, named John Marsden in Parliament as a paedophile. The plaintiff felt huge relief when he heard this disclosure. A few days later the plaintiff called Parliament House intending to speak with Mrs Grusovin, but was told that Parliament was in recess. He wanted to tell her that he had been a victim of the first defendant during the 1960’s. While he was waiting to see Mrs Grusovin, the plaintiff decided that he would commit suicide.

(12) On 7 May 1996 the plaintiff saw a broadcast of the Witness program on Channel 7 concerning an interview and story about the first defendant and paedophilia. The plaintiff was aware that during the course of that interview the first defendant indicated that he had never knowingly interfered or molested anyone under the age of consent. After hearing this the plaintiff experienced a lot of emotions which he had buried for a long time. He felt angry, insignificant, betrayed and frustrated.

(13) On 15 May 1996 the plaintiff met with and was interviewed by Graham Davies of the Witness program for Channel 7. In that interview the plaintiff said that he had thought of suing the first defendant for 26 years but he thought that no-one would believe him.

(14) On 14 June 1996 the plaintiff met with representatives of the Police Royal Commission and spoke to an investigator Phillip Hudson and solicitor Richard Kenner. At that interview the plaintiff said that he had spoken to the psychiatrist Dr Anne Stephenson about the incidents. The plaintiff now says that he did not really discuss the incidents with her. His explanation was that he actually went to see Dr Stephenson for another reason, but he knew that something was there but just did not know how to handle it. The plaintiff admitted that he could not really recall when he told Dr Stephenson about the first defendant being responsible for the first incident. The plaintiff also spoke to David Marr and Greg Bearup from the Sydney Morning Herald in about September 1996.

(15) On 11 October 1996 the plaintiff finally met with Mrs Grusovin. He said that he told her of “the nature and extent of the abuse perpetrated upon him at Campbelltown” by the first defendant.

(16) On 21 November 1996 the plaintiff was interviewed by Dr Quadrio. She subsequently wrote a report dated 29 November 1996 which the plaintiff saw sometime in mid or late 1997. The plaintiff said that until he read the report of Dr Quadrio he was not aware that he had been suffering from chronic PTSD, nor was he aware that he was suffering from avoidant personality disorder (or any other personality disorder). The plaintiff’s evidence was that he heard the term post traumatic stress disorder before that time but he did not know what it or the other condition meant. After reading Dr Quadrio’s report he examined a library copy of “Diagnostic and Statistical Manual of Mental Disorders” which helped explain the nature of the condition from which he was suffering. This according to the plaintiff was the first time he firstly, became aware that he was suffering from identifiable psychiatric injuries, and secondly, he became aware of the nature of those psychiatric injuries. It was only after reading Dr Quadrio’s opinion that he became aware of the extent of his psychiatric disorder and that he was suffering from permanently damaged self-esteem.

Until the plaintiff read the report of Dr Quadrio he was not aware of the connection between his sleeping disorder and the sexual abuse performed by the first defendant on him or that his psychosexual development had been affected by sexual abuse performed by the first defendant. Nor was he aware of the connection between his sexual inhibition or impaired sexual functioning and the sexual abuse performed by the first defendant on him, or that there was connection with his periods of low self-esteem and the sexual abuse performed by the first defendant on him. Until the plaintiff read the report he was not aware that he needed a weekly session of counselling.


(17) On 18 October 1996 the plaintiff consulted solicitors for the purposes of determining his legal rights.

(18) On 29 May 1997 the statement of claim was filed.

(19) On 4 August 1997 the first defendant’s statement of defence was filed.

(20) In September 1997 the plaintiff was asked to recall in detail each of the assaults perpetrated on him by the first defendant. In the course of doing so, he became aware that he must have been abused on more than the three occasions which he could actually remember. This was a revelation to him.

(21) On 24 December 1997 the notice of motion to extend the limitation period was filed.

(22) On 10 January 1999 at precisely 1.57 am when he woke up from a nightmare, the plaintiff fully accepted that he had permanently damaged self-esteem.

(24) According to Dr Stephenson in her report dated 23 March 1999, when she first saw the plaintiff he was aware that his periods of broken sleep and nightmares had commenced at St John’s College, but according to Dr Stephenson at that time he was not aware of the content of his nightmares. Dr Stephenson said that the plaintiff had always known what had happened, but had taken every opportunity to avoid remembering or talking about it because he wanted to believe that it had not. She said that it was easier for him to remember it never happened. He finally disclosed these events that followed in September 1997.

Dr Stephenson stated that the awareness of his biophysiological injuries was a gradual one and may still be incomplete. She believed there was a dawning of awareness of the connection between the plaintiff’s biophysiological injury and Mr Marsden’s assault during the first two years that she saw him. It did not reach full conscious awareness until the plaintiff saw the Witness program which took place in May 1996. She says that the plaintiff saw Dr Quadrio in November 1996 and read about the diagnosis applicable to him in late 1997 and at first he could not believe the report. Dr Stephenson stated that it was reasonable and understandable in the plaintiff's circumstances for him not to have full conscious awareness of these matters or their full effect on him at that time.


Dr Quadrio agrees with Dr Stephenson that the plaintiff was not fully aware of the nature of his psychiatric injuries until after his assessment by her (Dr Quadrio) in 1996. Before that time he had some limited awareness that he was deeply troubled by the experiences of sexual abuse but he was not fully aware of the extent to which he had been injured.
The Law

5 The plaintiff relies on s 60G and s 60I(1)(a)(i), (ii) and (iii) of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) and Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 in relation to s 60C and s 60E. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

6 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such a period as it determines”.

7 The relevant provisions of s 60I are as follows:

“(1) A court may not make an order under s 60G or 60H 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

8 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 30 April 1982 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 24 December 1994.

9 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 30 April 1982, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I (1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 24 December 1994); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b).

10 The plaintiff relied on s 60I(1) (a)(i), (ii) and (iii).

(i) Whether the plaintiff has proved that “he did not know that a personal injury had been suffered ”

11   The plaintiff is claiming damages for the psychiatric injury he has suffered. He has always been aware that he had been physically abused by the first defendant. He knew that he suffered from nightmares and depression shortly after the abuse occurred. By 1991 the plaintiff knew that the symptoms of his depression were mood swings, suicidal thoughts, intermittent agoraphobia, loss of self-esteem, despondency and feelings of abandonment. By 1992 he was aware that he had become socially withdrawn and now relied upon his dogs for companionship. However in 1992, he raised Mr Marsden’s name with Dr Stephenson but when he realised she knew the name he did not proceed any further with disclosing the abuse. In that year also he visited his old school where the abuse had taken place and spoke to a nun. According to Dr Stephenson, between 1992 and 1994 the plaintiff’s state of mind was described by her as “a dawning of awareness of the connection between the bio-psychological injury and Mr Marsden’s assault”.

12   In mid 1996 the plaintiff was interviewed by Graham Davis for the Witness program and the investigator with the Wood Royal Commission.
In October 1996 he also spoke to Mrs Grusovin and had determined that he would commit suicide. Two psychiatrists support the plaintiff’s evidence that he only became aware that he had a diagnosable psychiatric injury in 1996/97.

13   On 29 November 1996 Dr Quadrio diagnosed the plaintiff as suffering from two diagnosable psychiatric conditions namely PTSD and personality disorder avoidant type. The plaintiff’s evidence is that until he read the report of Dr Quadrio in late 1997 he was not aware that he was suffering from chronic PTSD, nor was he aware that he was suffering from avoidant personality disorder (or any other personality disorder). The plaintiff said that he heard the term PTSD before that time but he did not know what it or the other condition meant. After reading Dr Quadrio’s report he examined a library copy of “Diagnostic and Statistical Manual of Mental Disorders” which helped explain the nature of the condition from which he was suffering. This was the first time he became aware that he was suffering from identifiable psychiatric injuries and became aware of the nature of those psychiatric injuries.

14   The first defendant submitted that the plaintiff already knew he suffered from these psychiatric injuries when he verified his statement of claim on 28 May 1997 and he may have acquired this knowledge prior to that date and as the plaintiff has not specified this date he had not discharged his onus. It was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important.

15   The plaintiff’s “dawning of awareness” that he had a psychiatric injury occurred between 1992 and 1994. Between 1992 and 1994 the plaintiff knew that he had psychological problems that may have been attributable to the assaults but he did not know that he had a diagnosable psychiatric illness.

16 The statement of claim was filed in May 1997. May 1997 is very close to mid 1997. It is my view that the plaintiff did not know that he suffered a personal injury until he read the report of Dr Quadrio which more likely than not occurred around May 1997. In any event, it was in 1996 that the plaintiff met with Ms Grusovin, the reporters for A Current Affair and the investigator for the Police Royal Commission. This falls within the period stipulated by s 60I(1)(b). The plaintiff has passed through this gateway.

(ii) Whether the plaintiff has proved that he was “unaware of the nature or extent of the personal injury suffered ”

17 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10).

18   The nature or extent of the injury which the plaintiff has sustained is to be determined as at the date of the hearing of the application (Harris at pp 13 and 14). A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature or extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury.

19   On the topic of awareness, the High Court referred to a passage from Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151, where it said that the meaning of the words “first becomes aware of” in a Queensland statute is equally applicable to the term “unaware” in s 60I(1)(a):

“[T]he very words ‘become aware’ strongly indicate that the statute is looking to the purchaser’s actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words ‘becomes aware of the failure’ in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a ‘failure’ to do something which the Act says should be done.”

20   The words “become aware” mean that the plaintiff must have knowledge and awareness of the fact that such a statement was given.

21   As previously stated the plaintiff has always been aware that he had been sexually abused by the first defendant. He knew that he suffered from nightmares and depression shortly after the abuse occurred. By 1991 the plaintiff knew that the symptoms of his depression were mood swings, suicidal thoughts, intermittent agoraphobia, loss of self-esteem, despondency and feelings of abandonment. By 1992 he knew that he had become socially withdrawn.

22   However he also stated in his affidavit (at para 33) that in October 1996 he told Mrs Grusovin of the nature and extent of the abuse perpetrated upon him by the first defendant. The plaintiff in this paragraph of his affidavit is referring to details of the sexual assaults rather than the psychological effect the assaults had upon him. Does this mean that the plaintiff had knowledge of the kind of consequences he could have expected? It is the plaintiff’s evidence that he was not aware of the nature or extent of his psychiatric injuries until after he read Dr Quadrio’s assessment in mid 1997. Dr Quadrio’s view is supported by Dr Stephenson who referred to “full conscious” awareness which is a higher degree of “awareness” than knowledge and awareness of the fact that such statement was given. The “dawning of awareness” occurred between 1992 and 1994.

23 It is my view that the plaintiff knew that at the expiration of the limitation period that he suffered from depression and nightmares. He had suicidal thoughts which became more definite in 1996. Although he knew some of the symptoms of PTSD, he did not have the knowledge and was not aware that he suffered from a diagnosable psychiatric disorder until May 1997. He was not aware that this disorder would be permanent and ongoing. In May 1997 he became aware that he would require counselling for the rest of his life. The plaintiff has passed through the s 60I(1)(a)(ii) gateway.

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

24 Section 60I (1)(a)(iii) is concerned with ignorance of the existence of acts and omission rather than legal conclusions. The acts or omissions referred to in s 60I (1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff’s particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995).

25   The plaintiff submitted that he was unaware of the connection between the personal injury and the defendant’s acts or omissions until mid 1996 at the earliest. The plaintiff’s evidence is that it was not until May 1997 when he read the report of Dr Quadrio that he became aware of the connection between his sleeping disorder and the sexual abuse performed by the first defendant on him. Nor was he aware that his psychosexual development had been affected by sexual abuse performed by the first defendant nor was he aware of any connection between his sexual inhibition or impaired sexual functioning and the sexual abuse performed by the first defendant on him, nor was he aware of the connection of his periods of low self-esteem and the sexual abuse performed by the first defendant on him.

26   It is difficult to accept that the plaintiff would not have made the connection between the alleged sexual assaults which he says played on his mind and his impaired psychosexual development until May 1997. On the balance of probabilities I am not satisfied that the plaintiff was aware of the connection between the sexual assaults and his impaired psychosexual development prior to 24 December 1994. The plaintiff has failed to pass through this gateway.

27 As the plaintiff has passed through the s 60I(1)(a)(i) and (ii) gateways, I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable

28   The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and Commonwealth of Australia v McLean (1997) 14 NSWLR at 389.

29   The defendant did not contend that the plaintiff had no real case to advance. It is my view that the plaintiff has a real case to advance.

30   I turn now to the issue of delay. The alleged sexual assaults took place a very long time ago, over 31 years ago. In Taylor there was no claim for breach of fiduciary duty pleaded. So Taylor has to be considered in the context that in this case there will be a trial on the same issues in any event. Taylor was decided after Williams v The Minister, Aboriginal Land Rights Act & Anor (1994-95) 35 NSWLR 497. In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

and ;
“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.
In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”

and;

The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires an extension."

31   Dawson J, in Taylor said at page 2:

“The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

and ;

"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."

32   In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. Section 60E (1)(b) specifically refers to “the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available”. By majority) Mason P and Powell JA) held in Zegarac that the trial judge erred by weighing up competing interest of the plaintiff and defendant which meant that the plaintiff was ultimately relieved of the persuasive burden which is placed on the plaintiff.

33   Mason P analysed the views of the Judges of the High Court in Taylor’s case. The President quoted the passage by McHugh J which begins “Legislatures enact” and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh JA appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour.

34   Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

35   Mason P perceived that there may be a distinction between the notion of “significant prejudice” and the notion that delay makes “the chances of a fair trial unlikely” but concluded that the views of the judges in Taylor represented a clear indication that mere proof of actual prejudice will not dictate a rejection of an application to extend time. Mason P then expressed respectful approval and agreement with the following statement of Kirby J in Taylor.

“Although attempts have been made to spell out the criteria to be taken into account in judging whether or not an order extending time should be made, care must be taken in the use of such criteria because of the different expression of the relevant provisions of limitation statutes. Furthermore, the factual circumstances of cases are infinitely various. The discretion conferred by s 31(2) of the [Queensland] Act is controlled only by the terms of the Act and the achievement of its purposes, as elaborated above.”

36   In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendant would suffer “significant prejudice”.

37   The plaintiff submitted that as the assaults took place at times when there were no eye witnesses present, the trial will be decided on the assessment of credibility of the plaintiff’s and defendant’s evidence. By the nature of the assaults it would not be expected that there would be any witnesses to the events. The first defendant has not denied that he conducted football and swimming lessons and activities with students of St John’s College outside school hours. The first defendant denies that the sexual assaults occurred. However there is no sworn evidence by the defendant denying that these events occurred. The first defendant agreed that the credibility of the plaintiff and defendant will be an important issue in the case. According to the defendant, the lapse of 30 plus years means that he will not be able to obtain a fair trial. The first defendant referred to some of the plaintiff’s evidence where the plaintiff conceded that he could not recall certain details. Sister Mary Kevin is still alive and contactable. The plaintiff allegedly reported the sexual assaults to her. However, it is not known what evidence she would give nor whether she has any recall of these events. It is not known whether Bishop McCabe is still alive. It is true that at trial, the case will be won or lost depending on the extent of each party’s recollections and credibility. However as McHugh J said in Taylor “what has been forgotten can rarely be shown” and after the passing of 30 years, the whole quality of justice deteriorates. The plaintiff appears to have a good recollection of the events that occurred many years ago.

38   The plaintiff submitted that as there is a claim for breach of fiduciary duty that there will be a trial on the same facts and circumstances in any event. In Williams Kirby P (at 509) held that it was a mistake in law to assume that an equitable claim based on an equitable cause of action, not for damages but for equitable compensation is to be dealt with under s 60G of the Act. The first defendant submitted that the claim for fiduciary duty may not be established on the pleadings. It is true that the statement of claim does not plead a loco parentis relationship such as that of coach and student, only that the first defendant conducted football and swimming lessons and other activities. This allegation has not been denied by the first defendants. Whether it gives rise to a breach of fiduciary duty depends on the facts. As the pleadings currently stand, there will be a trial on the claim for breach of fiduciary duty in any event.

39   In Williams, the Court of Appeal considered whether s 60G and s 60I of the Act applies to a claim for breach of fiduciary duty. The facts in Williams are that Ms Williams, a woman of Aboriginal descent, born in 1942, was placed at birth in a home for Aboriginal children by the Aborigines Welfare Board. A few years later she was moved by the Board to a home for “white” children because she was fair-skinned. She claimed that it was not until 1991 that she came to realise her borderline personality disorder was the result of her childhood experiences. She therefore sought an order for an extension of time under the Act in order to proceed against the relevant authorities for negligence, breach of duty and wrongful detention. The motion to extend the limitation period was dismissed at first instance and the plaintiff appealed this decision.

40   In Williams Kirby P stated at 510 that:

“The fact that the claim for equitable compensation for breach of fiduciary duty could not be disposed of but would (peremptory relief apart) be required to proceed to trial, would itself be a consideration relevant to the determination of what it was “just and reasonable” to do in respect of the causes of action in tort. The evidence relevant to the claim for breach of fiduciary duty would be substantially the same as the evidence relevant to the claim for damages for the torts of negligence and wrongful detention. If a court concluded that a claim for breach of fiduciary duty was bound to be tried, it would seem strongly arguable that the alternative causes of action upon which the same plaintiff relied at common law, should be heard at the same time. At the least, that would be a matter relevant to the exercise of the discretion under s 60G(2).”

41   In Williams, the evidence action in tort will depend on evidence largely common to the claim for equitable compensation for breach of fiduciary duty.

42   The first defendant also submitted that there has been a long delay between the commencement of these proceedings and the hearing of this motion. According to the defendant, the plaintiff had a long nursed sense of grievance and desire to sue but had a natural reluctance to litigate and it was only when he became aware of the publicity that he had the confidence and willingness to embark on litigation and these reasons are not attributable to his pathological condition. The plaintiff’s explanation for the delay is that it took some time to answer lengthy particulars, and he applied for legal aid which was subsequently granted and he obtained medical reports to support his claim. The delay from October 1999 to the date of the hearing of this motion is not attributable to either party. As previously stated, there will be a trial in any event covering the same facts and circumstances as the torts requiring an extension of time.

43   I have found this a difficult and borderline case. After much careful consideration, and taking into account that there will be a trial on the same facts in any event, it is my view that the plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period. As the parties have not had an opportunity to make submissions on costs, costs are reserved.

44   The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of assaults which occurred in 1968 and 1969 up to and including 29 May 1997.

(2) Costs of the motion are reserved.
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Last Modified: 09/25/2000