Hamilton v Dominican Province of the Assumption
[2021] VSC 261
•14 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 04192
| KATHRYN LOUISE HAMILTON | Plaintiff |
| v | |
| DOMINICAN PROVINCE OF THE ASSUMPTION | First Defendant |
| and | |
| JEREMY NICHOLAS SAIT | Second Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2021 |
DATE OF RULING: | 14 May 2021 |
CASE MAY BE CITED AS: | Hamilton v Dominican Province of the Assumption & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 261 |
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APPEAL — Limitation of Actions — Application by first defendant for limitation questions to be heard and determined separately before the trial of the proceeding — Whether limitation period is suspended because plaintiff was under a disability — Whether court should exercise its discretion to extend the limitation period — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.04 — Limitation Act 1969 (NSW), ss 14, 63, 52, 58, 60 — Civil Procedure Act 2010 (Vic) — Kotulski v Attard (1981) 1 NSWLR 115 — Guthrie v Spence (2009) 78 NSWLR 225 — Spandideas v Vellar [2008] VSC 198 — Fitzgerald v New South Wales [2017] NSWSC 1602 — New South Wales v Gillett [2012] NSWCA 83 — Baker-Morrison v New South Wales (2009) 74 NSWLR 454.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Ronald | Shine Lawyers |
| For the First Defendant | PG Cawthorn QC with C Morshead | Colin Biggers and Paisley |
| No appearance for the Second Defendant |
HIS HONOUR:
The plaintiff alleges that in or about June 1990, when she was a student at the University of New England, Armidale, New South Wales, and resided at St Albert’s College within the university (‘the College’), the second defendant entered her room without permission while she was asleep in bed and sexually assaulted her (‘the assault’). The plaintiff alleges that at the time the College was under the care, control and management of the first defendant which knew or ought to have known of the risk of the second defendant sexually assaulting female residents. The plaintiff brings this proceeding claiming damages alleging there was negligence by the first defendant which was a cause of the assault and the resulting injury suffered by her.
The first defendant has pleaded that the plaintiff’s claim against it is statute barred, and applied pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) for limitation questions to be heard and determined separately before the trial of the proceeding. The plaintiff opposed the first defendant’s application, arguing it is more appropriate that the limitation issues are heard and determined at trial. On 5 November 2020 Clayton JR dismissed the first defendant’s application. On 19 November 2020 the first defendant filed a notice of appeal from the determination of Clayton JR pursuant to r 84 of the Rules.
The second defendant did not appear at the hearing of the appeal.
History of proceeding
The proceeding was commenced by a writ and statement of claim filed by the plaintiff on 10 September 2019.
On 12 November 2019 the first defendant filed a defence in which it pleaded the claim against it was statute barred pursuant to the Limitation of Actions Act 1958 (Vic).
On 6 December 2019 Clayton JR made an order by consent fixing the trial of the proceeding on 22 February 2021, and setting out a timetable for interlocutory steps.
On 20 December 2019 the plaintiff filed a reply pleading that the Victorian Limitation Act did not apply to her claim. On 16 April 2020 the first defendant filed an amended defence, pursuant to leave granted by Clayton JR, in which it pleaded in the alternative that the plaintiff’s claim was statute barred pursuant to the provisions of the Limitation Act 1969 (NSW) (‘Limitation Act’).
The first defendant’s summons for preliminary determination of the limitation issues was filed on 30 September 2020, and was supported by an affidavit of Alicia Taylor, who is the solicitor with the care and conduct of the proceeding for the first defendant, affirmed the same day.
On 28 October 2020 the plaintiff filed a summons for orders extending the limitation period, supported by affidavits affirmed by her solicitor, Georgia Johnson, on 13 October 2020, 3 November 2020 and 4 November 2020.
The first defendant’s application was dismissed by Clayton JR on 5 November 2020.
On 19 November 2020 the first defendant filed a notice of appeal from the orders of Clayton JR made 5 November. On 18 December 2020 Incerti J vacated the trial date and fixed the hearing of the first defendant’s appeal on 22 February 2021.
The appeal
The substantive orders sought by the first defendant on appeal are:
(b)The determination and the Order of the Court dated 5 November 2020 be set aside and, in lieu of it, the following orders be made:
(i)Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and/or s 49 of the Civil Procedure Act 2010 (Vic), the following questions, being issues raised by paragraph 29 of the Amended Defence dated April 2020, be heard and determined separately before the trial of the proceeding:
(A)Is the plaintiff’s claim, as pleaded in the Amended Writ and Statement of Claim dated August 2019, statute-barred under the Limitation Act 1969 (NSW) (Limitation Act), and in particular, section 14(1)(b)?
(B)Further, is the plaintiff’s cause of action against the first defendant extinguished under section 63 of the Limitation Act?
(C)Is the plaintiff therefore prevented from bringing the proceeding by virtue of the Limitation Act and, in particular, sections 14(1)(b) and/or 63?
(D)Whether the Plaintiff is entitled to an extension of the limitation period under section 58(2) or 60C of the Limitation Act.
(E)Whether the Plaintiff was under a disability for the purposes of section 50F of the Limitation Act.
(c)The Plaintiff’s summons dated 28 October 2020 be heard and determined in advance of the trial.
The Limitation Act
The parties agree the Limitation Act applies to the plaintiff’s claim.
Section 14 of the Limitation Act relevantly provides:
(1)An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:
…
(b)a cause of action founded on tort, including a cause of action for damages for breach of statutory duty…
For causes of action for damages for personal injury founded on negligence, where the action accrued on or after 1 September 1990, the limitation period was reduced to three years from the date of accrual.[1]
[1]Limitation Act 1969 (NSW) s 18A.
Pursuant to s 63 of the Limitation Act, a cause of action is extinguished if the proceeding is not commenced before the limitation period has expired.
Part 3 of the Limitation Act sets out circumstances in which the bar to bringing proceedings is postponed. Under s 52 the running of the limitation period is suspended for the duration of the claimant being under a disability.[2] Section 11(3) relevantly provides that a person is under a disability:
[2]Ibid s 52(1)(d).
(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 or her physical or mental condition,
In Kotulski v Attard,[3] Slattery J set out an approach to the disability provisions in the Limitation Act briefly summarised as follows:
·‘impede’ means to obstruct in progress, hinder or stand in the way of;
·‘substantially’ means neither trivial or minimal, nor total;
·‘mental condition’, which is not defined in the Act, covers the mind’s activities in all its aspects, including the ability to form a rational judgement, or to exercise willpower to act accordingly;
·a reasonable person without impairment would be able to reason normally about the matters relevant to a cause of action, understand and consider advice and give instructions.
In Guthrie v Spence,[4] the court concluded that, considered in the statutory context, an impediment caused by a mental condition must be such as to interfere with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period.[5] The fact that a claimant is able to maintain employment and other functions and activities is not decisive.[6] The test places particular weight on activities relating to a cause of action leading up to and ending with the institution of proceedings.[7]
[3](1981) 1 NSWLR 115, 117-8.
[4](2009) 78 NSWLR 225.
[5]Ibid 252 [152] (Campbell JA, Basten JA agreeing at 228 [1], Handley AJA agreeing at 264 [210]).
[6]Saunders v Jackson [2009] NSWCA 192, [48] (Hoeben J).
[7]Guthrie v Spence (n 4) 250 [143].
Subdivision 1 of div 3 of pt 3 of the Limitation Act, which is retained only for causes of action that accrued before 1 September 1990, contains s 58 which provides that a court may extend the limitation period where a material fact of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until after a relevant date:
(2)Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:
(a)any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action, and
(b)there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,
the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly.
Definitions relevant to the operation of s 58 are contained in s 57B:
(1)For the purposes of this Subdivision:
(a) (Repealed)
(b)the material facts relating to a cause of action include the following:
(i)the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded,
(ii)the identity of the person against whom the cause of action lies,
(iii)the fact that the negligence nuisance or breach of duty causes personal injury,
(iv)the nature and extent of the personal injury so caused, and
(v)the extent to which the personal injury is caused by the negligence nuisance or breach of duty,
(c)material facts relating to a cause of action are of a decisive character if, but only if, a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing:
(i)that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action, and
(ii)that the person whose means of knowledge is in question ought, in the person’s own interests, and taking the person’s circumstances into account, to bring an action on the cause of action,
(d)appropriate advice, in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require,
(e)a fact is not within the means of knowledge of a person at a particular time if, but only if:
(i)the person does not, at that time, know the fact, and
(ii)in so far as the fact is capable of being ascertained by the person, the person has, before that time, taken all reasonable steps to ascertain the fact, and
(f)limitation period means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act.
Subdivision 2 of div 3 of pt 3 of the Limitation Act, which applies to causes of action that accrued on or after 1 September 1990, gives a court a discretion, on the grounds that it is just and reasonable, to extend the limitation period by not more than five years.[8] On an application for extension the court must have regard to all the circumstances of the case, including:
[8]Limitation Act 1969 (NSW) s 60C.
(a) the length of and reasons for the delay,
(b) 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,
(c) the time at which the injury became known to the plaintiff,
(d) the time at which the nature and extent of the injury became known to the plaintiff,
(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,
(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h) the extent of the plaintiff’s injury or loss.[9]
[9]Ibid s 60E(1).
Subdivision 3 of div 3 of pt 3 of the Limitation Act, which applies to causes of action accruing before and after 1 September 1990, gives a court a discretion to extend a limitation period where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time.[10] Matters to be considered by a court on such an application are set out in s 60I:
[10]Ibid s 60F.
(1)A court may not make an order under section 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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).
Application of the provisions of the Limitation Act remains to be determined in this proceeding. There may be other provisions of the Limitation Act which are applicable in the circumstances of this case.
Separate trial of a question
Rule 47.04 of the Rules provides:
The Court may order that—
(a)any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;
(b)different questions be tried at different times or places or by different modes of trial.
There is no dispute that r 47.04 gives the court discretion to order a separate trial of the questions set out by the first defendant in the notice of appeal, reproduced in paragraph 12 above. The issue between the parties is whether in the circumstances of this case that discretion should be exercised.
The discretion to order the separate trial of a question must be exercised with great caution and only in a clear case.[11] Personal injuries actions in which there are limitation issues have been identified by Victorian and New South Wales authorities as a class of cases in which it may be ‘particularly convenient and practical’ for the parties that limitation issues be heard and determined as preliminary questions prior to trial.[12] In Spandideas v Vellar,[13] which involved an application by the plaintiff for a declaration that her claim was not statute barred because of issues in relation to discoverability or, in the alternative, an order extending the period of limitation, Kaye J said:
The present proceeding was issued eleven years after the surgical procedure conducted by the defendant. It would only be necessary to extend the period of limitation applicable to the plaintiff’s cause of action, if it had already expired when the writ was issued. Both issues involve a common question, namely, when the plaintiff knew, or ought to have known, of the facts necessary for her cause of action. The determination of the questions whether the proceeding is statute barred, and whether the period of limitation should be extended, may significantly affect the disposition of the case. The procedure, which has been adopted by the parties, is not only well supported by authority, but is also sensible and practical. It enables the parties to resolve an important issue, which might determine the fate of the litigation, at an early stage. It is a procedure which has now been used in this Court for some time, and has proven to be workable. Accordingly, I consider that it is an appropriate procedure to adopt in the present case.[14]
[11]Vale v Daumeke [2015] VSC 342, [31].
[12]Donmez v Neissa [2012] VSC 73, [4].
[13][2008] VSC 198.
[14]Ibid [22].
Similarly, in Fitzgerald v New South Wales (‘Fitzgerald’),[15] Johnson J said:
It has been said that the very nature of the issues raised by the Limitation Act 1969 involve considerations which are frequently best determined in advance of the final hearing of the substantive claim. As Adamson J observed in Wells v Commonwealth of Australia at [18], if the limitation issue is decided in favour of the Defendant, it obviates the need for a trial altogether. Her Honour observed that it is not uncommon that a limitation issue will be determined in advance of a hearing.[16]
Johnson J recognised that in an appropriate case a limitation issue would be left for determination at a trial,[17] and that difficulties can sometimes arise if a limitation issue is determined as a separate question.[18]
[15][2017] NSWSC 1602 (‘Fitzgerald’).
[16]Ibid [14] citing Wells v Commonwealth [2014] NSWSC 148, [18].
[17]Fitzgerald (n 15) [15] citing Fogg v Kane Constructions (NSW) Pty Ltd (No 5) [2015] NSWSC 648, [76]–[112].
[18]Fitzgerald (n 15) [15] citing New South Wales v Gillett [2012] NSWCA 83, [108] (‘Gillett’).
The two cases cited by Johnson J involved the discoverability provisions in div 6 of pt 2 of the Limitation Act, and required consideration of the date on which the plaintiff knew or ought to have known the ‘fact’ that the injury was caused by the fault of a defendant.[19] In the second of the cases to which Johnson J referred, New South Wales v Gillett,[20] the New South Wales Court of Appeal observed:
The respondent’s submission pointed out the difficulty of the course chosen by the State in having the limitation issue determined as a separate question. The courts have frequently warned of the undesirability of this process: see Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 533. Had the matter been left to trial, the evidence would have been before the court as to what the respondent knew, what he believed, and when he found certain things out.[21]
In both cases, the Court approved a construction of the provisions by Basten JA in Baker-Morrison v New South Wales[22] that the word ‘fact’ is being used to describe a ‘composite of inferences or the result of an evaluation’ of which the plaintiff must have knowledge.[23]
[19]Limitation Act 1969 (NSW) s 50D(1)(b).
[20]Gillett (n 18).
[21]Ibid [108].
[22](2009) 74 NSWLR 454.
[23]Ibid 461 [27]; Fogg v Kane Constructions (NSW) Pty Ltd (No 5) (n 17) [82].
In Wadley v Ron Finemore Bulk Haulage Pty Ltd,[24] J Forrest J, referring to a passage from the judgment of Brooking J in Jacobson v Ross,[25] and the overarching purpose and objects of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’), concluded it was relevant to consider whether it was in the interests of both justice and the efficient conduct of court business to determine a preliminary issue before trial.[26] Johnson J made similar comments in Fitzgerald, and noted:
If the Plaintiff’s application for an extension is heard separately and he succeeds, there will be a need for two hearings rather than one. However, if his application for extension is refused, there will be no trial.[27]
Whether the overarching purpose and objects of the Civil Procedure Act are advanced by determining limitations issues at a preliminary hearing will depend on all of the circumstances of the case.
[24][2013] VSC 5.
[25](1995) 1 VR 337.
[26]Wadley v Ron Finemore Bulk Haulage Pty Ltd (n 24) [26].
[27]Fitzgerald (n 15) [18] citing Wells v Commonwealth (n 16) [18]-[20].
In Fitzgerald, Johnson J observed that where limitation issues require consideration of s 58(2) of the Limitation Act, an applicant for extension of time is required by s 58(2)(b) to adduce ‘evidence to establish the cause of action’, which his Honour said was a powerful indication that Parliament contemplated that at least in some cases such applications would be determined in advance of trial.[28]
[28]Fitzgerald (n 15) [19].
Relevant background
The plaintiff was born in 1970, and resided at the College from 1990 to 1992.
In a detailed statement, which has been exchanged in this proceeding, the plaintiff described incidents in which the second defendant entered her room at the College at night without permission, and on one of those occasions violently raped her. The plaintiff alleged she reported the assault to a floor tutor, that there were many other incidents involving the second defendant, and that his behaviour was well known within the College body.
The plaintiff stated that in 1992 she suffered a breakdown, which she describes as a ‘brain snap’ when ‘all of [her] emotions came out’.
The plaintiff stated she completed her Bachelor of Arts at the university at the end of 1992, started work in personnel management in 1993, and progressed well with her career until 1996 when feelings of fear were brought back to her by running into some former male students from the College, as a result of which she moved to Melbourne. The plaintiff stated that she continued work but was not in control of her emotions, suffered eating issues, was confused at times, cried a lot, and had nightmares almost every night. She stated that several employers suggested she get counselling, and that in 2010 she was unable to continue work, reduced her hours to part-time but this did not help, and started working from home. The plaintiff stated that in late 2011 she was offered a redundancy package, and in 2012 commenced her own business, in which she is now only able to work two to three months out of a year.
The plaintiff stated she commenced counselling and psychiatric treatment in 2010, has felt suicidal and has contacted Lifeline many times, takes various prescription medications, suffers panic attacks, and required a two-week period of inpatient treatment at The Melbourne Clinic in 2018.
The plaintiff stated that in 2017 she reacted to a report into sexual assaults at universities, and that she first contacted her lawyers in October 2017, and first received legal advice around the same time.
The plaintiff’s lawyers obtained a medico-legal report from psychiatrist Dr Adlard in February 2018. Dr Adlard diagnosed post-traumatic stress disorder and recurrent major depressive disorder in partial remission, which he said had been persistent since the events of 1990–1992. Dr Adlard noted avoidance of sexual contact, the plaintiff never having had a successful relationship with a male, and a work history marred by anxiety, breaking down at work and longstanding difficulty coping.
The first defendant obtained a medico-legal report from psychiatrist Dr Neill in July 2020. Dr Neill diagnosed anxiety disorder with agoraphobia, panic attacks and traumatic features, persistent depressive disorder and recurrent major depressive disorder, both in remission, and an eating disorder.
The plaintiff is now treated by psychiatrist Dr Tang. In a report to the plaintiff’s solicitors in November 2020 Dr Tang stated:
3In my opinion, Ms. Hamilton suffers from a mixed anxiety/depressive disorder as well as comorbid post-traumatic stress disorder.
4(a) Yes, I believe that giving evidence during the litigation process will have an impact on Ms. Hamilton’s mental health. It is likely to heighten her anxiety levels by triggering her memories of past trauma.
(b)Yes, I consider that giving evidence on more than one occasion will cause further harm to Ms. Hamilton’s mental health.
Submissions
First defendant
The approach taken by courts in New South Wales and in Victoria is to hear and to determine limitation issues, when they arise in a proceeding, at a preliminary hearing. The judgment of the High Court in Prince Alfred College Inc v ADC (‘Prince Alfred College’)[29] shows why such a practice is appropriate. In Prince Alfred College the plurality observed that limitation issues were necessarily antecedent to determination of liability, that it was essential to consider and determine limitation issues first, especially where there had been a long delay, and if an extension were not granted it was inappropriate for the court to proceed to determine liability.
[29](2016) 258 CLR 134.
The limitation issues will require evidence of a different character to the principal case. An application to extend the limitation period depends on evidence of the plaintiff’s knowledge at a point in time of facts which are material to her cause of action. By contrast a full trial requires evidence going to all the strengths and weaknesses of the plaintiff’s case.
It is unlikely that the plaintiff will establish she is a person under a disability, and that as a consequence the limitation period has been suspended and has not expired.
There will be substantial and unnecessary costs incurred, and delay experienced, if the limitation issues are determined at trial and the defendant succeeds. A preliminary hearing of the limitation issues may avoid significant costs in preparing for trial in relation to steps such as expert reports, forensic accounting evidence, subpoenas to the plaintiff’s past employers, and historical investigation of the plaintiff’s cause of action which is likely to be difficult and expensive. Further, a preliminary hearing avoids the defendant facing the prejudice necessarily associated with a trial on all issues so long after the occurrence of the events on which the cause of action is based.
The psychiatric evidence on which the plaintiff relies in support of a contention that she would be prejudiced by having to give evidence twice is so general in nature that it should carry no weight. At a preliminary hearing the plaintiff may need to give evidence about her knowledge at different points in time of facts material to her cause of action, and possibly about her alleged disability. By contrast, evidence of the plaintiff at a full trial would focus on the assault, and for that reason is likely to result in far greater anxiety, which may be avoided by a preliminary hearing of the limitation issues.
Plaintiff
The limitation issues under consideration in this proceeding are complex. Because the plaintiff’s cause of action may have accrued before or after 1 September 1990, it is uncertain which statutory regime will apply. Accordingly it will be necessary to consider the plaintiff’s case under ss 57 and 58 of the Limitation Act in relation to material facts of a decisive character, ss 60G and 60I in relation to the plaintiff’s knowledge of the fact, nature, extent or cause of her injury or impairment, or ss 60C and 60E if it is concluded the cause of action did not accrue before 1 September 1990. There is substantial material to support a contention that the plaintiff has been under a disability, so that the limitation period has not expired. There is evidence of the plaintiff suffering ‘brain snaps’ in 1992, and psychological impairment in relation to the assault in the period since. Therefore more significant and substantial evidence, and a deeper factual investigation, will be required in preparation for and determination of the limitation issues. It is difficult to conceive of a more complex set of circumstances requiring determination of whether the limitation period has expired and an extension should be granted.
The overlap between evidence relevant to the limitation issues and evidence going to the plaintiff’s cause of action is considerable and more extensive than would usually be the case. The disability issue will require a detailed examination of the injury caused to the plaintiff by the assault, and of the consequences and her functional capacity since 1990. The very same matters would require investigation and evidence at trial. Further, the extension provisions will require investigation and consideration of the plaintiff’s cause of action and any prejudice to the first defendant alleged to arise from delay.
The plaintiff will need to revisit in her evidence periods and events which she will find distressing. The evidence of Dr Tang, as to the harm to the plaintiff caused by giving evidence, is to be understood in that context.
The first defendant has already conducted a significant investigation into the assault, including reviewing College records, and interviewing relevant witnesses. Those investigations are relevant both to the limitation issues, if the defendant seeks to establish specific prejudice, and to the plaintiff’s cause of action.
The New South Wales Civil Trials Bench Book recognises that where there are serious limitation issues a question arises whether they should be determined separately. Where little other evidence will be adduced at trial, where there are questions of credibility in relation to the same witness or witnesses and the potential for inconsistent findings, or where it will be unduly burdensome or unfairly prejudicial for the plaintiff and other witnesses to be examined more than once about the same issues, the Bench Book instructs that it may be preferable to stand the application over to be heard in conjunction with the cause.
Analysis
For the following reasons I conclude the limitation issues should be heard and determined at the trial of this proceeding. First, the limitation issues are factually complex. Quite extensive affidavit material exhibiting numerous documents has already been filed in relation to the application to have the limitation issues determined at a preliminary hearing. It is likely there will be substantial further material upon which the parties will seek to rely in relation to the limitation issues given the range of issues raised by the facts and circumstances of this case. It will be necessary that the material address issues including the plaintiff’s cause of action against the first defendant, whether the plaintiff was relevantly under a disability, the plaintiff’s knowledge of facts relevant to her cause of action and prejudice to the defendant. Given the relevance of prejudice to the defendant, a comprehensive investigation of available evidence about liability will be necessary before the limitation issues are determined. It is evident from decisions such as Kotulski v Attard[30] and Guthrie v Spence[31] in relation to the question of disability, and Baker-Morrison v New South Wales[32] and New South Wales v Gillett[33] in relation to knowledge, that evaluation of these issues is unlikely to be straightforward and is likely to require relatively comprehensive evidence of the facts and circumstances relevant to the plaintiff’s cause of action. Evidence as to issues of disability, knowledge and prejudice will need to span the decades since 1990, when the plaintiff alleges she was sexually assaulted by the second defendant.
[30]Kotulski v Attard (n 3).
[31]Guthrie v Spence (n 4).
[32]Baker-Morrison v New South Wales (n 22).
[33]Gillett (n 18).
Second, it is likely there will be significant factual disputes between the parties at least in relation to the issues of disability and knowledge which will result in the need for viva voce evidence to be given by the plaintiff, possibly other lay witnesses, and probably at least some of the medical experts. As a consequence the limitation issues will take some time to hear and determine. If the plaintiff succeeds on the limitation issues, she and other witnesses will have to give evidence more than once.
Third, it is unlikely the limitation issues can be determined without detailed and complex findings of fact being made. The plaintiff will be cross-examined about events from 1990 to date in relation to the issues of disability and knowledge. The plaintiff’s reliability and credibility may well be put in issue. The potential for inconsistent findings of fact arises if there are two separate trials.
Fourth, I accept, for the purposes of this application, that attending court to give evidence and be cross-examined is likely to cause the plaintiff psychological distress and harm, and that it would be unduly burdensome and prejudicial for the plaintiff to have to do so on more than one occasion. Dr Adlard noted that on mental state examination the plaintiff was intermittently tearful and that she broke down in significant distress on occasions during the interview, her mood was predominantly anxious, and her thought stream included themes of significant ongoing high levels of anxiety and concomitant avoidance. Dr Adlard concluded the plaintiff described a high level of ongoing psychiatric symptoms which appeared to significantly distress her and impair her everyday function. I have set out at paragraph 34 above Dr Neill’s diagnosis, and at paragraph 35 the opinion of Dr Tang, to the extent it is relevant. The burden on the plaintiff of facing the need to give evidence at two hearings is significantly greater because of the breadth of inquiry which is likely in relation to the limitation issues. Any adverse impact on the plaintiff resulting from a trial and giving evidence is likely to be minimised by conducting one trial of all matters, rather than her having to give evidence at two separate trials.
Fifth, there will necessarily be a significant overlap between the evidence called in relation to the limitation issues, and on the issues at trial of the cause of action. A careful examination of disability from the period of 1990 to date will cover very similar ground to evidence in relation to injury, loss and damage. Evidence as to the plaintiff’s knowledge is likely to be relevant to some extent to issues of breach and causation.
Sixth, for the reasons already stated, I am not satisfied the overarching purpose and objects of the Civil Procedure Act will be advanced by preliminary determination of the limitation issues. Success for the defendant on the limitation issues would obviate the need for a trial. However, if the limitation issues were determined at a preliminary hearing, and the plaintiff succeeded, the result would be the need for two significant hearings rather than one, and a likely delay in disposal of the proceedings. The potential for inefficiency and delay outweighs the possible savings.
Seventh, the decision of the High Court in Prince Alfred College supports the principle that when a court determines that an application by a plaintiff for extension of the time to bring proceedings should be denied for reasons which include prejudice to the defendant caused by the significant lapse of time and loss of evidence, the court should not proceed to determine the issue of liability. However, the decision of the High Court does not establish a rule or prima facie position that whenever limitation issues arise they should be determined at a preliminary hearing. Whether or not a preliminary hearing should occur will depend on the circumstances of the case and the limitations issues which arise.
Conclusion
The first defendant’s application for a preliminary hearing to determine limitation issues is refused. The parties should provide a minute of proposed orders dealing with a timetable to trial, costs, and any other resulting matters.