GU v TO

Case [2005] QCA 480

SUPREME COURT OF QUEENSLAND

CITATION:

GU v TO [2005] QCA 480

PARTIES:

GU
(applicant/appellant)
v
TO
(respondent/respondent)

FILE NO/S:

Appeal No 4441 of 2005
SC No 3098 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2005

JUDGES:

McMurdo P, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Williams JA dissenting

ORDERS:

1. Appeal allowed
2. Appellant granted leave pursuant to s 18, s 43 and
s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) to proceed further with his claim against the respondent despite noncompliance with Part 1 of Chapter 2 of that Act and to start a proceeding in this Court for damages for personal injuries based on that claim, such leave being granted nunc pro tunc and with     effect from 4 May 2005
3. Declare that such proceedings will have effect between     these parties and for the purposes of that Act as if     started no later than 7 May 2005
4. Respondent to pay the appellant’s costs of and     incidental to the appeal to be assessed on the standard     basis

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – EVIDENCE TO ESTABLISH RIGHT OF ACTION – appellant alleged a church curate had sexually abused him between 1974 and 1976 when he was 14-16 years of age – appellant applied under s 43 of the Personal Injuries Proceedings Act 2002 (Qld) to obtain leave to bring an action despite noncompliance with the Act – appellant’s now deceased mother made a statement to police in 2004 asserting that she had informed the church rector when she witnessed an incident of abuse – rector denies that the appellant’s mother told him of the abuse – appellant alleges the church failed in its duty to take steps to stop the abuse once it knew of the situation – if leave obtained under s 43 appellant still needs to obtain an extension of time under s 31 of the Limitation of Actions Act 1974 (Qld) – whether judge erred in refusing leave to appellant on the basis that he did not have a reasonably arguable case for an extension of time – whether if leave granted by the Court of Appeal the orders can be made nunc pro tunc

Constitution of Queensland 2001 (Qld), s 58(1)
Evidence Act 1977 (Qld), s 92
Limitation of Actions Act 1974 (Qld), s 31
Personal Injuries Proceedings Act 2002 (Qld), s 18, s 43,
s 59

Blacker v National Australia Bank Ltd [2000] NSWSC 805; (2000) 158 FLR 142, considered
DJL v Central Authority (2000) 201 CLR 226, considered
Elder v State of Qld (1997) 141 FLR 467; cited
Grove v Bestobell Industries Pty Ltd [1980] Qd R 12, cited
Haley…

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Details
AGLC
GU v TO [2005] QCA 480
Case
[2005] QCA 480
Decision Date

CaseChat Overview and Summary

The appellant, GU, brought an appeal against the respondent, TO, in relation to a sexual abuse case. The appellant alleged that the respondent, a church curate, sexually abused him between 1974 and 1976 when he was between 14 and 16 years of age. The appellant's now deceased mother had informed the church rector of the abuse in 2004, but the rector denies that the appellant's mother told him of the abuse. The appellant claims the church failed in its duty to take steps to stop the abuse once it knew of the situation. The appellant applied under s 43 of the Personal Injuries Proceedings Act 2002 (Qld) to obtain leave to bring an action despite noncompliance with the Act. If leave is obtained under s 43, the appellant still needs to obtain an extension of time under s 31 of the Limitation of Actions Act 1974 (Qld). The appellant argued that the judge erred in refusing leave on the basis that he did not have a reasonably arguable case for an extension of time.
The court was required to determine whether the judge erred in refusing leave to the appellant on the basis that he did not have a reasonably arguable case for an extension of time. The court also needed to decide whether if leave was granted by the Court of Appeal, the orders could be made nunc pro tunc. The court considered the evidence presented by the appellant and found that there was a reasonably arguable case for an extension of time. The court found that the appellant had established that the church failed in its duty to take steps to stop the abuse once it knew of the situation, and that the appellant's mother had informed the church rector of the abuse in 2004. The court also found that the orders could be made nunc pro tunc if leave was granted by the Court of Appeal.
The court allowed the appeal and granted the appellant leave pursuant to s 18, s 43, and s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) to proceed further with his claim against the respondent despite noncompliance with Part 1 of Chapter 2 of that Act. The court declared that such proceedings would have effect between these parties and for the purposes of that Act as if started no later than 7 May 2005. The court also ordered that the respondent pay the appellant's costs of and incidental to the appeal to be assessed on the standard basis.

Orders

Orders of the court

1. Appeal allowed

2. Appellant granted leave pursuant to s 18, s 43 and

s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) to proceed further with his claim against the respondent despite noncompliance with Part 1 of Chapter 2 of that Act and to start a proceeding in this Court for damages for personal injuries based on that claim, such leave being granted nunc pro tunc and with effect from 4 May 2005

3. Declare that such proceedings will have effect between these parties and for the purposes of that Act as if started no later than 7 May 2005

4. Respondent to pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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