HWC v The Corporation of the Synod of the Diocese of Brisbane
[2008] QSC 212
•9 September 2008
SUPREME COURT OF QUEENSLAND
CITATION:
HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors [2008] QSC 212
PARTIES:
HWC
(plaintiff/applicant/respondent/not a party to the application)
v
THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE
(first defendant/respondent/not a party to the application/respondent)
and
THE MINISTER OF EDUCATION FOR THE STATE OF SOUTH AUSTRALIA
(second defendant/respondent/applicant/applicant)
and
THE STATE OF SOUTH AUSTRALIA
(third defendant/respondent/applicant/applicant)
and
DONALD J. HOPGOOD
(fourth defendant/respondent/not a party to the application/not a party to the application)FILE NO:
SC No 7453 of 2002
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
9 September 2008
DELIVERED AT:
Brisbane
HEARING DATE:
13, 14 May 2008
JUDGE:
Lyons J
ORDERS:
1. The period of limitation in respect of the applicant’s claim for damages against the first respondent be extended to 16 August 2002.
2. The period of limitation in respect to the applicant’s claim for damages against the second, third, and fourth respondents be extended to 18 December 2007.
3. As against each of the second, third, and fourth defendants’ Orders pursuant to s 18 of PIPA, that the plaintiff proceed with his claim despite the fact that he has not given a complying notice of claim.
4. The applications filed on 31 March 2008 by the second and third respondents to strike out or stay the plaintiff’s proceedings against them and the first defendant’s third party proceeding against them are refused.
CATCHWORDS:
LIMITATION OF ACTIONS – GENERAL – STATUTES OF LIMITATION – OTHER MATTERS – Knight was a teacher in the employ of the third respondent – Knight was found guilty of disgraceful and improper conduct by a delegate of the Director-General of Education who recommended to the second respondent that he dismiss Knight from the teaching service in South Australia – the fourth respondent who is also the second respondent, by letter, dismissed Knight – the second respondent later rescinded the dismissal – Knight resigned and this was accepted by the second respondent – Knight obtained a reference from the fourth respondent – Knight was registered as a teacher in Queensland – the first respondent employed Knight as a music teacher – the applicant was sexually abused by Knight while at school in Queensland – the applicant became aware 20 years later that the abuse had affected him – whether the time limitation had expired for the commencement of an action
Constitution of Australia, s 75
Judiciary Act 1903 (Cth), s 39, s 58, s 64, s 78, s 79, s 80
Trade Practices Act 1974 (Cth), s 82
Education Act 1972 (SA), s 65
Limitation of Actions Act 1974 (Qld), s 31
Personal Injuries Proceedings Act 2002 (Qld), s 43
Agar v Hyde (2000) 201 CLR 552, cited
Amaca Pty Ltd v Frost (2006) 67 NSWLR 635, applied
Batistatos v Roads & Traffic Authority (NSW) [2006] 80 ALJR 1100, applied
Dorothy JeanBeaver v State of Queensland[2000] QSC 40, cited
Blunden v The Commonwealth of Australia (2003) 218 CLR 330, cited
Breavington v Godleman & Ors (1987-1988) 169 CLR 41, cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited
British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, applied
Chief Executive of Customs v Labrador Liquor Wholesale Pty Ltd (2004) 216 CLR 161, applied
Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424, cited
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, applied
Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, applied
Dempsey v Dorber (1990) 1 Qd R 418, cited
Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474, applied
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, applied
Dwan v Farquhar (1988) 1 Qd R 234, cited
Gillam v State of Queensland& Ors[2003] QCA 566, cited
Graham Barclays Oysters P/L v Ryan (2002) 211 CLR 540, cited
Hegarty v Queensland Ambulance Service[2007] QCA 366, cited
Holt v Wynter (2000) 49 NSWLR 128, cited
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, applied
Lee v Wilson & Mackinnon (1934) 51 CLR 276, cited
Limpus v State of Queensland [2004] 2 Qd R 161, [2003] QCA 563, cited
Musgrave v The Commonwealth (1936-1937) 57 CLR 514, cited
Page v The Central Queensland University[2006] QCA 478, cited
Pizer v Ansett Australia Ltd [1998] QCA 298, cited
Pyrenees Shire Council v Day (1998) 192 CLR 330, applied
Spring v Guardian Assurance Plc [1995] 2 AC 296, cited
Stanton v DMK Forest Products Pty Ltd [2003] QDC 150, cited
State of Queensland v Stephenson (2006) 226 CLR 197, cited
Sullivan v Moody (2001) 207 CLR 562, cited
Tania Kirkland-Veenstra v David Stuart [2008] VSCA 32, cited
The Commonwealth v Mewett (1997) 191 CLR 471, cited
X v South Australia (No3) [2007] SASC 125, citedCOUNSEL:
R Douglas SC, with D de Jersey, for the plaintiff
R S Ashton for the first defendant
D North SC, with K Philipson, for the second and third defendants
R Green for the fourth defendantSOLICITORS:
Shine Lawyers for the plaintiff
Minter Ellison for the first defendant
Crown Law for the second and third defendants
Sciacca’s Lawyers for the fourth defendant
LYONS J:
The issue
HWC, the plaintiff, is now 40 years of age and from 1981 to 1985 he was a student at St Paul’s School, Bald Hills, Queensland. The school was conducted by the first defendant. From 1981 until 1983, the plaintiff was sexually abused by his music teacher, Gregory Robert Knight (“Knight”) who was convicted in 2005 of criminal offences in relation to those events.
The plaintiff wishes to bring a civil action for damages for personal injuries in relation to those events which occurred over 25 years ago.
The time limitation for commencement of such an action however expired on 20 June 1989.
On 15 August 2002, the plaintiff commenced proceedings by claim against the first defendant, the Corporation of the Synod of the Diocese of Brisbane, who conducted the St Paul’s School.
On 2 March 2007, Orders were made by Fryberg J that pursuant to s 16(2) of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) the defendant have leave to add the Minister of Education for the State of South Australia and Donald Jack Hopgood as contributors in the claim and that pursuant to s 43 the defendant had leave to file and serve a third party claim and statement of claim against the Minister of Education for the State of South Australia, the State of South Australia, and Donald Jack Hopgood.
On 9 March 2007, the first defendant issued third party notices to the first third party the Minister of Education for the State of South Australia, the second third party, the State of South Australia, and the third third party Donald Jack Hopgood.
On 28 November 2007, Orders were made by McMeekin J that the plaintiff was granted leave pursuant to s 43 of PIPA to commence proceedings for damages for personal injury, as alleged in the third party statement of claim, and for the second, third, and fourth defendants to be joined to the proceeding. Such orders were conditional upon the plaintiff bringing an application, pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) such that the liability of the third parties to the plaintiff expires no earlier than one day after their joinder as defendants in the proceedings and that as against the defendant an order that the period of limitation be extended such that it expires not earlier than one day after the date of filing of the proceeding.
An amended claim and a statement of claim were filed on 17 December 2007. By that claim, the plaintiff claims $3,765,800 for breach of contract, negligence, breach of fiduciary duty, and unconscionable conduct pursuant to s 82 of the Trade Practices Act 1974 (Cth).
The current applications
The current applications relate to preliminary issues and these applications do not involve a final determination of the claim itself. These applications essentially involve the question as to whether the applicant can obtain an extension of the limitation period in relation to his claims against the defendants and the future conduct of the proceedings should an extension be granted. For convenience, in these applications I will refer to the plaintiff as the applicant and the defendants as respondents.
By his application filed on 16 October 2007, the applicant in these proceedings seeks orders:
(i) that the period of limitation in respect to his claim for damages against the first respondent be extended such that it expires one day after the date of filing of this proceeding namely 16 August 2002;
(ii) that the period of limitation in respect of his claim for damages against the second, third and fourth respondents be extended to 18 December 2007; and
(iii) that as against each of the second, third and fourth defendants orders pursuant to s 18 of PIPA that the plaintiff proceed with his claim despite the fact that he has not given a complying notice of claim.
The respondents all oppose those applications.
By cross-applications filed on 31 March 2008, the second and third respondents seek to strike out or stay the plaintiff’s proceedings against them and the first defendant’s third party proceeding against them on the basis that the proceedings are an abuse of process.
The factual background
In 1977 Knight was a teacher in the employ of the State of South Australia, (“the third respondent”), at the Willunga High School. There were allegations of improper conduct against him whilst he was at the school and when these allegations were investigated by Dr Mayfield, a delegate of the Director-General of Education, he found him guilty of disgraceful and improper conduct and he recommended to the Minister of Education for the State of South Australia (“the second respondent”), that he dismiss Knight from the teaching service.
By letter dated 30 May 1978 the Minister of Education dismissed Knight. However, by a further letter dated 14 June 1978, the Minister advised that the dismissal was rescinded as Knight’s resignation had been accepted, effective from 31 May 1978. At the time Donald Hopgood (“the fourth respondent”) was the Minister of Education.
Knight subsequently obtained a reference from Mr Wilkinson a principal at the Mawson High School in South Australia on 6 November 1978, as he had taught at that high school between 1974 and 1976. On 13 December 1978, Knight also obtained a reference from the fourth respondent in his capacity as a member for Baudin of the South Australian Parliament and also in his capacity as President of the Noarlunga City Council Band. This reference was on South Australian Parliamentary letterhead and stated that the fourth respondent knew the applicant in the fourth respondent’s capacity as President of the Band.
In 1980 Knight taught at Brisbane Boys’ College (“BBC”) and during that year made a number of applications for registration as a teacher in Queensland and he obtained registration at the end of 1980. Knight was asked to leave BBC in October 1980 by the headmaster Mr Thomson because of complaints including that he was teaching boys how to arouse themselves. In December 1980 Knight sought employment at St Paul’s School stating that he was a registered teacher in South Australia. The Headmaster of St Paul’s School, Mr Case, consulted Mr Thomson asking the reason for his departure from BBC and he was told of Mr Thomson’s concerns. In 1981, Knight commenced employment at St Paul’s School and sexually abused the applicant during the period from 1981 to 1983.
The applicant left school in 1985 and commenced his medical studies in 1987 after working for a year. He had some periods of depression during his studies, he repeated third year, and took a year off from his university studies in 1991. He graduated as a doctor in 1994 at the age of 26. He then worked as a general practitioner with a particular expertise in anaesthetics and was married in 1995.
The applicant successfully ran a medical practice, which concentrated on anaesthetics, until December 2001 when there were a series of newspaper articles about sexual abuse at an Anglican school in Toowoomba. Those articles also raised the approach of the Church and its former Archbishop Peter Hollingworth to the allegations of abuse.
There were then further articles in early 2002 which mentioned the applicant’s former headmaster at St Paul’s, Mr Case, in relation to a different case. The applicant says he discussed his own abuse with a medical practitioner at the end of 2001 or early 2002.[1] The applicant states that this publicity caused him to reflect on his abuse and in the first week of March 2002 he went to the police and on 6 March 2002 he consulted lawyers. On 13 March 2002 he consulted a psychologist and he says it was around this time that he attributed his past difficulties to his years of abuse. He states it was at this time he first became aware of the extent of the injury caused to him by this abuse. In May 2002 he began to smoke heroin and marijuana and also consulted a psychiatrist, Dr Curtis Gray, who diagnosed him as suffering from depression and post-traumatic stress disorder.
[1]Transcript of Proceedings, p 25.
The applicant commenced proceedings on 15 August 2002 and in that claim he sought compensation from the first respondent only.
His drug taking increased throughout 2002 and he became addicted to both illicit and prescription drugs. By April 2003 his opiate habit had made fulltime work untenable and he advised his psychiatrist and his wife of his narcotic addiction. This was reported to the New South Wales Medical Board in June 2003 as he was resident and practising in that State. On 17 October 2003 the New South Wales Medical Board imposed restrictions on his right to practise due to his opiate dependency and psychiatric condition. The Interview Report of the New South Wales Medical Board dated 13 January 2005, records that the applicant had suffered from severe depression since 2001 and since 2002 had abused narcotics, first in the form of smoking heroin and then injecting intravenous pethidine.
The committal proceedings for Knight commenced in September 2003 and the applicant spent three days giving evidence. On 6 October 2003 he took an overdose of morphine tablets. There was a further suicide attempt in late October 2003. His marriage ended in late 2005. The applicant has in recent years worked part-time as a medical practitioner and he has at times been subject to restrictions on his right to practise.
The preliminary issues relating to jurisdiction
When the matter came on for hearing on 14 March 2008, the second and third respondents raised an issue in relation to s 78(b) of the Judiciary Act 1903 (Cth) and whether notice of the cause needed to be given to the Attorneys-General for the States as there was a cause pending in a court which involved a matter arising under the Constitution of Australia or involving its interpretation. However, having considered the matter further, Counsel for the State of South Australia now submits that there is “…no matter of sufficient novelty or importance warranting the issue of notices pursuant to s.78B of the Judiciary Act...”[2] There are, however, a number of preliminary observations which need to be made and I note the helpful submission from Counsel for the second and third respondents in this regard.
[2]Submissions of the second and third respondents, p 2.
It is clear that this action relates to proceedings where the applicant was a resident of New South Wales at the time that proceedings were commenced against the second and third respondents. The applicant does not appear to have resided in Queensland since 1996. He also seeks to sue the Minister of Education for the State of South Australia who is the second respondent, as well as the State of South Australia who is the third respondent. There is authority to support the conclusion that the statutory corporation, the Minister of Education, is, for all present purposes, the State of South Australia.[3] Therefore, the action against both the second and third respondents is an action between a resident of the State of New South Wales and the State of South Australia. It follows that this is an action which falls within the original jurisdiction of the High Court of Australia[4] and consequently it is within “…federal jurisdiction.”
[3]Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, 36.
[4]Section 75 of the Constitution of Australia.
Section 39 of the Judiciary Act 1903 (Cth) invests the Supreme Court of Queensland with federal jurisdiction in the circumstances of this case.
Crown and executive immunity
In Blunden v The Commonwealth of Australia the High Court of Australia stated that:[5]
“[i]t is established by The Commonwealth v Mewett 31 that the liability of the Commonwealth in tort is created by the common law and that s 75(iii) of the Constitution denies any operation to doctrines of Crown or Executive immunity which otherwise might be pleaded in an action to recover damages in respect of a common law cause of action.”
[5]Blunden v The Commonwealth of Australia (2003) 218 CLR 330, 336.
Section 75(iv) of the Constitution of Australia deals with a claim or action between a State and a resident of another. Based on High Court obiter dicta, the second and third respondents posit that this section likewise abrogates the immunity of the State against suit.[6] It is clear that the State of South Australia is not immune from suit in this Court and the third respondent makes no submission to the contrary.
[6]British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, 57-58 (dicta of McHugh, Gummow and Hayne JJ).
The proper forum
Whilst it would seem that, pursuant to s 58 of the Judiciary Act, the applicant should commence proceedings in the Supreme Court of South Australia, the State can waive its rights to insist upon the resident of another State commencing an action in the proper forum.[7] At the hearing, Counsel for the third respondent did not contend that this Court was an inappropriate forum for the determination of the action brought by the applicant against it and accordingly indicated that the State of South Australia did not intend to raise any objection under s 58. The State of South Australia has therefore submitted to the jurisdiction of the Supreme Court of Queensland.
[7]Breavington v Godleman & Ors (1987-1988) 169 CLR 41.
Choice of law in federal jurisdiction
The next question that needs to be determined is the question of the choice of law rules that will apply. When an action is brought in tort, in the federal jurisdiction, where the resident of one State sues another State, the applicable choice of law rules will be in issue. A determination of this issue will have consequences on which State’s statutory law applies and will therefore affect issues such as limitation of actions, assessment of damages, evidence, and procedure.
The Judiciary Act becomes relevant. The High Court in The Commonwealth v Mewett[8] considered that s 64 and s 79 of the Act could operate in some circumstances to engage the relevant limitation legislation of the State in question. Further, a majority in the High Court in John Pfeiffer Pty Ltd v Rogerson[9] suggested that Musgrave v The Commonwealth[10] is authority for the proposition that, by virtue of either s 79 or s 80 of the Judiciary Act, “…the common law choice of law rules apply to an action in tort brought in federal jurisdiction.”[11] The majority went on to say that:[12]
“Because ss 79 and 80 of the Judiciary Act both require reference to the statute law of the State or Territory in which the court concerned is exercising federal jurisdiction so far as that statute law is applicable, it follows that, subject to some qualifications…the statute law of the State or Territory in which federal jurisdiction is exercised will be applied. And if the common law rules for choice of law in a case which has some interstate element are applicable and require reference to the laws of the forum, the law which will be applied will depend upon where the court is sitting.”
[8](1997) 191 CLR 471.
[9](2000) 203 CLR 503.
[10](1936-1937) 57 CLR 514.
[11]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 531.
[12]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 532.
What law then is the law to be applied?
Lex loci delicti or lex fori?
Little discussion is required in terms of whether the law of the forum (lex fori) or the law of the place of commission of the tort (lex loci delicti) is applicable, given the High Court in Pfeiffer stated that “…the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element.”[13]
[13]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 540.
Where is the lex loci delicti and where did the tort occur?
The applicant’s statement of claim against the second respondent makes determining the lex loci delicti relatively problematic. Authorities relating to products liability and defamation assist the Court to answer this question. In Dow Jones,[14] a defamation matter, the High Court said that, due to the difficulty in formulating a single rule of location to determine the place of commission of a tort, the question is:
“…‘where in substance did the cause of action arise’ (Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 4587 at 468; Voth (1990) 171 CLR 538 at 567)? In cases, like trespass or negligence, where some quality of the defendant’s conduct is critical, it will usually be very important to look where the defendant acted, not to where the consequences of the conduct were felt (Voth (1990) 171 CLR 538 at 567).”
[14]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 606.
First the relevant “act” of the defendant which gave rise to the cause of action must be identified.[15] The second and third respondents submit that the lex loci delicti is Queensland.
[15]Amaca Pty Ltd v Frost (2006) 67 NSWLR 635, per Santow and McColl JJA, [13].
The applicant was exposed to the risk of being sexually molested when he was put in the presence of Mr Knight in the context of their pupil/teacher relationship. The duty was owed to the applicant as a student in Queensland. The cause of action arose when the applicant was a student in Queensland because this is when the first, second, and third respondents’ conduct became significant. Therefore, the place of the tort was Queensland and so the law of Queensland applies.
In terms of the claim about the references given, those authorities where the tort was defamation indicate that the place of the tort is the place where the publication which results in the damage to reputation occurs.[16] It follows that the place the tort occurred in terms of the references was Queensland. The references were relied upon in Queensland.
[16]Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 287; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 606-607.
Substance and procedure
It seems clear that questions regarding the application of limitation periods, in this context, are regarded as issues relating to substance and not relating to procedure. The majority in John Pfeiffer Pty Ltd v Rogerson stated that:[17]
“…the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure…The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.”
[17]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 544.
Turning to procedural matters, s 79(1) of the Judiciary Act provides that:
“… the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory…”
Therefore, on the basis of Pfeiffer v Rogerson, the procedural law to be applied is the law of the forum where the action is brought. In the circumstances, the applicable law of evidence will be Queensland law, and this conclusion is supported by the reasons of their Honours Gummow and Hayne JJ in Chief Executive of Customs v Labrador Liquor Wholesale Pty Ltd.[18]
[18](2004) 216 CLR 161.
Accordingly, Queensland law governs issues in this case to do with matters of substance and procedure. So, all issues which arise with respect to the admissibility of evidence, the limitation law to be applied, and the law with respect to the assessment of damages, are to be governed by Queensland law.
These conclusions reflect the submissions of Counsel for the second and third respondents. No contrary submissions were made.
Third party proceedings
The third party proceedings against the State of South Australia as well as the Minister raise matters of federal law and come within federal jurisdiction.[19]
[19]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.
The third party proceedings brought by the first respondent involve a contention that “…the State of South Australia is a ‘tortfeasor who is…liable in respect of the same damage’ for which the Anglican Church may be liable to [the applicant].” So, the third party proceedings require the Supreme Court of Queensland to determine the liability of the State of South Australia to a suit brought against it by a resident of another State. Therefore, the same issue within federal jurisdiction that arises in the proceedings brought by the applicant against the State of South Australia arise in third party proceedings. It follows that the third party proceedings involve issues of federal law.
Turning then to the application for the extension of the limitation period.
Application for extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld)
The applicant needs to obtain an extension of time within which to commence his action for damages for personal injuries because the limitation period in fact expired in 1989. The circumstances in which such an application can be granted are set out in s 31 of the Limitation of Actions Act 1974 (Qld) which provides as follows:
“31 Ordinary actions
(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired—
(a)before the commencement of this Act; or
(b)before an application is made under this section in respect of the right of action.”
The applicant bears the onus in relation to three matters:
(1) First, that a material fact of a decisive character was not within his means of knowledge until a date after commencement of the year last preceding the expiration of the period of limitation for his claim for personal injuries.
(2) Secondly, that there is a prima facie case of causative liability in the defendants (apart from the defence of the expiration of the limitation period).
(3) Thirdly, that there is no prejudice to the defendants obtaining a fair trial, notwithstanding the expiration of the limitation period and that the discretion ought to be exercised in favour of an extension.
Accordingly, in relation to his claim against the first respondent the applicant must establish that a material fact of a decisive character was not within his means of knowledge at any time prior to 15 August 2001, being one year before the institution of proceedings against the first respondent.
Furthermore, in order to obtain the extension of the limitation period in relation to his claim against the second, third, and fourth respondents, the applicant must also establish that a material fact of a decisive character was not within his means of knowledge at any time prior to 17 December 2006, which was one year before proceedings were actually instituted against those respondents in December 2007.
Material facts are essentially “…those facts which must be proved in order to establish the negligent conduct upon which the cause of action in negligence is founded.”[20]
[20]Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 256.
Section 30 provides guidance as to the meaning of material facts:
“30 Interpretation
(1)For the purposes of this section and sections 31, 32, 33 and 34—
(a)the material facts relating to a right of action include the following—
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b)material facts relating to a right 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 right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right 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 right of action;
(c) 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 know the fact at that time; and
(ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
(2) In this section—
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.”
The extension of the limitation period in respect of the first respondent
It is clear that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of the material facts coincides with the circumstances that a reasonable person with the applicant’s knowledge would regard those facts as justifying and indicating that an action be brought in his own interests. It is accepted that the legislation requires a “step by step” approach in order to ascertain whether the facts of which the applicant was unaware were material facts and then to ascertain if they were of a decisive character. If that is established then the next step is to ascertain if those facts were within the means of knowledge of the applicant before the specified date.[21] It is also clearly established that the phrase “material fact of a decisive character” is to be interpreted as a composite phrase.
[21]Dick v University of Queensland [2000] 2 Qd R 476.
In State of Queensland v Stephenson[22] it was held:
“The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have ‘a decisive character’. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in sub paras (i) and (ii) of s30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”
[22](2006) 226 CLR 197, 208.
A material fact will be of a decisive character if and only if a reasonable person knowing those facts and having taken appropriate advice on those facts would regard them as showing that an action would have a reasonable prospect of success and result in an award of damages sufficient to justify bringing the action on the right of action and that the person ought, in their own interest, bring the action on the right of action.[23] Further, there is no requirement to take advice or ask questions if, in all the circumstances, it would not be reasonable to expect a reasonable person in the situation of the applicant to do so.[24] Facts known to a solicitor are not necessarily imputed to an applicant depending on the circumstances and whether the applicant has failed to maintain contact with the solicitor or whether there has been some other omission.
[23]Dorothy JeanBeaver v State of Queensland [2000] QSC 40.
[24]Pizer v Ansett Australia Ltd (1998) QCA 298.
Turning then to the matters which must be established by the applicant. The applicant must show that the facts of which he was unaware were material facts and then he must establish that they were of a decisive character. If that is established then the next step is to ascertain if those facts were within the means of knowledge of the applicant before the specified date.[25]
[25]Dick v University of Queensland [2000] 2 Qd R 476.
With respect to the action against the first respondent the applicant is relying on two separate material facts:
(1) that he was not aware of the impact that the sexual abuse had on him until he read the newspaper articles in late 2001 and 2002 which made him realise the impact of the abuse on him;
and
(2) that it was March 2006 before he knew that the St Paul’s Headmaster, Mr Case, had been specifically warned about Knight by the BBC Headmaster, Mr Thomson.
In relation to the other respondents, namely the State of South Australia, the Minister of Education, and Mr Hopgood in his personal capacity, the applicant states that it was October 2007 before he discovered for the first time that Knight had actually been dismissed in May 1978 by the second respondent but that dismissal was subsequently rescinded by him and he was permitted to resign and then subsequently given a reference by Mr Hopgood, the fourth respondent, in his personal capacity.
The factual background to the submission that there is a “material fact of a decisive character”
An understanding of the impact of the abuse for the first time
The applicant submits that it was not until there was media coverage of sexual abuse and the Anglican Church in late 2001 that he turned his mind to the abuse he suffered from Knight at school and it was in March 2002 that he became aware for the first time of the extent and nature of the injury caused to him. In particular it would appear that the first article about sexual abuse at an Anglican school in Toowoomba appeared on 13 December 2001 and in February 2002 there was an editorial in The Courier-Mail regarding the Anglican Church and its handling of the abuse allegations with a reference to Mr Case. The applicant states that it was then that he began to feel “…on edge, anxious and nervous” and he reported his abuse to Police in March 2002. He also consulted his solicitors and he states:[26]
“I was aware from media reporting in February that Shine Lawyers were representing St Pauls students who had been abused by a different teacher at the school. The purpose of me attending upon Shine was to tell my story which I thought might in some way go to assist the other victims and prevent Knight from inflicting further abuse.
…I did not give instructions for a claim to be brought on my behalf, this was because I didn’t believe that I had a claim to bring. My attendance was merely to give a statement on the basis that it might somehow go to help the others.”
[26]Affidavit of HWC, filed 8 November 2007, pars 137-138.
On 7 May 2002 the applicant executed a retainer with his solicitors and in July attended to provide an account of the sexual abuse he had encountered at St Paul’s. His solicitor Mr Singh in his affidavit swears the following:[27]
“Although the Plaintiff professed to be suffering from an injury, which he attributed to past incidents of abuse, it was clear to me that any damages claim that he might have against the Defendant was very much ‘out of time’. Furthermore, there was an absence of evidence from the Plaintiff to prove that the Defendant, at a point in time prior to the Plaintiff’s own abuse, had reason to suspect that its students were at risk whilst in the company of Knight. Consequently I was aware that on the evidence as it currently stood the prospects of proving that the Defendant was vicariously liable for Knights acts or omissions were remote.”
The claim was then filed against the first respondent on 15 August 2002 and Mr Singh states that the proceedings were issued out of an abundance of caution to prevent further time from running against a possible claim.
[27]Affidavit of R Singh, filed 8 November 2007, par 10.
The applicant’s drug use increased throughout 2002 and by June 2003 he was unable to continue working. He submits, therefore, that he instituted a claim within 12 months of the impact of the abuse coming within his means of knowledge. That is within 12 months of the first manifestations in late 2001 or early 2002 of the psychological symptoms of the sexual abuse.
The applicant gave evidence at the hearing. The applicant’s evidence was that in second year medicine in 1988 during a psychology lecture they were told that psychological well-being could be affected by traumatic life events including sexual violence. After the lecture he had discussed with both his mother and his brother his relationship with Knight. He told them that he did not think that Knight’s abuse had affected him.
There is some evidence, therefore, that the applicant had turned his mind to the issue of sexual abuse and its impact on him during the year 1988. There is also evidence that by the end of that year his life had become troubled and he broke up with his long-term girlfriend in late 1988. In 1989 he began to smoke marijuana and to fail exams and course work. He subsequently failed all of third year medicine in 1989 but successfully repeated third year in 1990. There is evidence that he had a psychotic episode in 1990 as he heard voices, had bizarre beliefs, and believed he had magical powers.[28] Dr Danesi’s report of 7 July 2003 indicates that, “…[a]t the age of 22 he had a depressive episode for a year.”[29] In his report dated 26 September 2005, Dr Steinberg also stated that he considered that the applicant “…has had symptoms of posttraumatic stress disorder at least since he left school approximately 1988. I believe the symptoms of posttraumatic stress disorder were evident at that time.”[30]
[28]Transcript of Proceedings, p 22, l 46.
[29]Exhibit “CW14” at “P” to the affidavit of HWC, filed 8 November 2007.
[30]Exhibit “RS27” to the affidavit of R Singh, filed 8 February 2007.
The question is whether these facts were material facts of a decisive character at that time or whether they only assumed this character in 2001-2002. The first respondent submits that these material facts were of a decisive character and were in fact known to the applicant by 1988.
Subsection 30(1)(b)(i) provides that material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken appropriate advice would regard those facts as showing that a right of action would have a reasonable prospect of success and result in an award of damages sufficient to justify the action. Subsection 30(1)(b)(ii) then provides that the person ought, in their own interest and taking their circumstances into account, bring an action. As was stated in State of Queensland v Stephenson:[31]
“The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests...”
[31]State of Queensland v Stephenson (2006) 226 CLR 197, 208.
The applicant’s argument is that it was not until 2001 or 2002 that he realised the extent to which the sexual abuse had affected him. The realisation that the sexual abuse is having a psychological effect or is having a greater effect than one previously realised is of course a material fact within the provisions of s 30(1)(a). The question is whether it is a material fact of a decisive character pursuant to s 30(1)(b). It will assume this character if a reasonable person knowing those facts and having taken appropriate advice would regard those facts as showing that a cause of action would have a reasonable prospect of success and that the person ought in their own interests and taking their circumstances into account, bring an action. Clearly, this knowledge of psychological impact is a material fact of a decisive character within the meaning of the section because such knowledge means that you have an injury and this was caused by the actions of another person. The next question is whether this was not within the applicant’s means of knowledge until 2001 or 2002.
A material fact of a decisive character will not be within a person’s means of knowledge at a particular time if but only if the person does not know the fact at that time and as far as the fact is able to be found out by the person the person has taken all reasonable steps to find out the fact before that time. The question is essentially whether it was within his means of knowledge before 2001 or 2002 that the sexual abuse was causing him psychological consequences such that he had a cause of action. As was explained by Keane JA in NF v State of Queensland:[32]
“Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.”
[32][2005] QCA 110 at [29].
In the present case there were some facts in evidence by 1989 or early 1990, when he repeated third year, that the applicant was experiencing some psychological symptoms. There was evidence of depression, exam failure, relationship breakdown, and drug use. He knew he had been sexually abused and he knew by third year that his life was disintegrating and he needed to take a break. He knew therefore that his psychological well being was in fact being affected. The question is whether it was actually within his means of knowledge that the sexual abuse at the hands of Knight was the cause.
As was stated in Pizer v Ansett Australia Ltd,[33] the question of whether a person has taken all reasonable steps to ascertain the nature and extent of the injury depends on the nature of the warning signs of the injury and the extent to which other facts call for a prudent enquiry to protect one’s own health and legal rights. In the applicant’s case there were some warning signs. He was experiencing some symptoms within 12 months of his psychology lecture and he not only failed third year but subsequently took a year off in 1991. Should these factors have made him aware of the impact the abuse was going to have on his life such that he should have instituted action at that point in time? Failing a year, experiencing a relationship breakdown, and experimenting with drugs are not uncommon events in a student’s life. I consider that it was understandable that the applicant did not necessarily attribute these events to his sexual abuse.
[33](1998) QCA 298.
Even if he did wonder if the abuse was the cause of these difficulties there was nothing at that point in time to indicate that he would suffer any long-term effects from the abuse. I do not consider that at that point in time he knew that the abuse would have long term effects because he managed to get his condition under control around 1991.
Furthermore, even if a reasonable person in his position at that time would have suspected that abuse was the cause, a reasonable person would also have understood that by commencing an action then they would have to re-live the abuse over a period of time while the action was on foot. They would also be subject to the stress associated with potential litigation, and with potential adverse consequences on their health at the time. In 1991 he appeared to be recovering. The very thing which occurred in 2002-2003 shows why, in about 1991, it was not in the applicant’s own interest, and taking into account his personal circumstances, to bring a cause of action. Instead, at that time he chose to try to manage his condition and establish himself in a career for life which he did with some success.
The question of whether a person has taken all reasonable steps is to be determined from the point of view of a reasonable person, with the knowledge and experience of the applicant. At the time the warning signs began to manifest, the applicant was a medical student with knowledge of the consequences of sexual abuse but he had turned his mind to the question and considered he had not been significantly affected. In fact, he successfully got on with his life. He graduated, had a successful marriage, and a medical practice which was financially successful.
I accept the evidence of the applicant that it was not until the media articles in late 2001 and early 2002 that his abuse at the hands of Knight began to weigh on his mind and trouble him in a significant way. It was at that time he mentioned these matters to a medical practitioner and he sought counselling and then treatment from a psychiatrist. I accept that it was really not until 2002-2003 that he was diagnosed with a psychiatric condition and that he knew his condition was having significant affects on his relationship with his wife and his ability to work.
I do not consider that these material facts of a decisive character were within his means of knowledge before 2002 or that was within his means of knowledge that there was a worthwhile cause of action prior to that time.
As was stated in Brisbane South Regional Health Authority v Taylor:[34]
“But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to 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 that extension.”
[34](1996) 186 CLR 541, 553.
I consider that a reasonable person in the applicant’s position would not have made enquiries to protect his health and legal rights by 1991 when he had some manifestation of the warning signs. As Macrossan J, as he then was, said in Moriarty v Sunbeam Corporation Limited:[35]
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.
He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] Qd.R. 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.”
[35][1988] 2 Qd R 325, 333.
I do not consider, therefore, that this material fact of a decisive character was within the applicant’s means of knowledge before August 2001.
The discovery of the warning by the Headmaster of BBC to the Headmaster of St Paul’s
Turning then to the other material fact which the applicant relies upon which is discovery in March 2006 of the warning from one headmaster to the other. The solicitor for the applicant states that, whilst a claim was filed in 2002, this was done as a matter of routine and there was no real evidence to support the claim against the first respondent until 11 August 2005, when he learned, as a result of press reports, that Knight had been the subject of previous complaints. After investigations, he took a statement in March 2006 from the Headmaster of BBC, the school which had previously employed Knight and learned that the Headmaster of St Paul’s had been warned prior to employing Knight that he had been the subject of complaints at BBC. In August 2006, the solicitor then received, during the course of disclosure from the first defendant, a copy of a statement from the Headmaster of BBC that he had been contacted prior to Knight’s appointment. Further disclosure in February 2007 revealed a statement from the BBC headmaster made in 2002 indicating that he warned the St Paul’s headmaster at the time of the dangers of employing Knight at the time he was engaged. This statement provides:
“15. Mr Case said that Knight had applied for a position at St Paul’s. He asked if I could give him the background of why he had left BBC.
16. There was a code of conduct between headmasters which required that we should be honest with each other in giving references about employees.
17. At the time of that telephone conversation the details of the allegations against Knight were clear in my mind. I made it clear to Mr Case that Knight had been discharged from BBC on the grounds of irregular conduct in his attitude towards the boys.
18. I definitely gave Mr Case reasons for Knight’s discharge. The reasons were probably given in more general terms than in particular detail.
19. I told Mr Case that Knight had made no attempt to defend himself.
20. I heard later that St Paul’s had appointed Knight. I recall that I was surprised at Mr Case’s decision.”
The principal allegations against the first respondent are that the Diocese negligently hired Knight, failed to carry out proper supervision of Knight, failed to take proper care in selecting music teachers to teach the applicant, as well as permitting the applicant to undergo tuition when it ought to have known that such action was likely to result in injury.
The real question is whether it was within the applicant’s means of knowledge that he had a worthwhile cause of action against the school as opposed to the perpetrator of the abuse prior to the filing of the claim. The question is whether it was within his means of knowledge that the school could in any way be held responsible for the actions of the teacher prior to 2006. The applicant says he did not have a good case against the school for vicarious liability until he knew of the warning by the BBC headmaster to the St Paul’s headmaster which did not become fully revealed until August 2006 when a copy of the 2002 statement was obtained. The applicant submits that it was only at that point that he, or a reasonable person in his position, would be able to believe that he had a cause of action worth putting on the basis that it could succeed. The applicant submits that before this information became available he did not have satisfactory evidence that anyone knew of Knight’s conduct.
Accordingly, the applicant submits that the material facts of a decisive character were not within his means of knowledge until his solicitors conducted their investigations and received disclosure of the following facts:
1. That the first defendant, by the St Paul’s headmaster, had been informed that complaints had been previously made about Knight whilst he was employed at another school;
2. The identity of the other school from which the complaints emerged, namely BBC; and
3. That the St Paul’s headmaster confirmed he had been contacted by the BBC headmaster about Knight before he decided to employ him.
It is clear that Knight conducted tuition alone, for long periods, in soundproof rooms without supervision. The allegations against the first respondent are that it failed to take proper care in selecting persons to carry out music tuition, that it failed to properly supervise Knight, and that it permitted the applicant to undergo music tuition when it knew, or ought to have known, that such action would be likely to result in injury to the applicant. There is some evidence that both employees and students of the school had made derogatory comments indicating sexual activity between the applicant and Knight. The applicant also gave evidence that he had told the headmaster of the abuse by Knight but that he had been rebuked by the headmaster and told that his scholarship and that of his brother could be in jeopardy. There is also evidence that in January 2005 the applicant told the Medical Board that he believed his claim would settle out of court. I do not think that such a statement however indicates that he in fact considered that he actually had a viable cause of action against the school.
I do not consider that these facts would have acquired a decisive character prior to March 2006 because a reasonable person knowing those facts and having taken appropriate advice would not have considered that he had a right of action against the school with reasonable prospects of success before March 2006.
I consider that until the facts were known of the nature of the conversation between the two headmasters and knowledge was obtained of the specific warning given to Mr Case the prospects of success in proving that the first respondent was liable, directly or vicariously, for Knight’s actions were not strong. It is clear that these material facts were only discovered through the work of the applicant’s solicitors and, therefore, were not within his means of knowledge.
I consider that because these facts go to the issue of negligence or a breach of duty, as well as the question of the identity of the person against whom the action lies, it is a material fact of a decisive character within the meaning of the section.
Whilst the applicant commenced his action before material facts of a decisive character were within his means of knowledge, this is not significant as the statute is not expressed in such a way as to exclude such a case from relief.[36] In State of Queensland v Stephenson,[37] it was expressly stated that, whilst on the face of it s 31 was concerned with an extension before the institution of an action, the section may also be utilised where an action has already been instituted. I consider that Mr Singh’s affidavit explains why the proceedings were instituted before March 2006 but in the circumstances I consider that a material fact of a decisive character was not within his means of knowledge prior to that time.
[36]Opacic v Patane [1997] 1 Qd R 84.
[37](2006) 226 CLR 197, 203.
Accordingly, I consider that the applicant has established that a material fact of a decisive character was not within his means of knowledge until March 2006.
As Macrossan CJ said in Wood v Glaxo Australia Pty Ltd:[38]
“The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time.”
[38][1994] 2 Qd R 431, 437.
I would therefore grant an extension of the limitation period pursuant to s 31 in respect of the first respondent.
Turning then to the extension of the limitation period in respect of the second, third and fourth respondents.
The extension issues in relation to the second, third, and fourth respondents
The applicant’s case against the second respondent is that the Minister of Education for the State of South Australia had power to appoint and dismiss teachers and was agent for the third respondent, the State of South Australia. The applicant also submits that the fourth respondent, Mr Hopgood, was also an agent or servant of the State of South Australia. The case against these respondents, therefore, is that there was sufficient cause for disciplinary action against Knight and he was dismissed by the fourth respondent acting on behalf of the second and third respondents, effective from 31 May 1978. On 14 June 1978, this Notice of Dismissal was rescinded and, instead, Knight’s resignation was accepted from 31 May 1978.
On 13 December 1978, the fourth respondent wrote a reference for Knight on a South Australian Parliamentary letterhead recommending him for music conducting and tuition. The letter stated:[39]
“…Mr. Gregory Knight has been Music Director of the Noarlunga City Concert Band for a little over 12 months. During most of that time I have occupied the position of President of the Band. I can, therefore, testify to his ability, enthusiasm and qualities of leadership.
The Band is composed of players who are amateurs and who are involved in a recreational sense. There is a considerably large range from teenagers to septuagenarians and also varying expectations as to the nature of the music which should be played, how competitive the Band should become and the sort of ‘jobs’ that it should undertake. Welding such a divers collection of musical and semi-musical humanity into any sort of a competent aggregation, is therefore, no mean feat and this Mr. Knight has been able to achieve…”
[39]Exhibit “RS9” to the affidavit of R Singh, filed 8 November 2007.
This reference, together with a reference from a headmaster at a school in South Australia at which Knight had previously taught, were in the possession of the headmaster at St Paul’s at the time Knight was employed. When Knight applied for registration as a teacher in Queensland he supplied his South Australian registration issued in December 1978.
It is alleged that the second and third respondents breached their duty by rescinding Knight’s dismissal and failing to ensure his dismissal was endorsed on his record, and that the circumstances of his dismissal were known to principals where he was engaged. It is alleged that this duty was breached in circumstances where the respondents knew that, by rescinding his dismissal, he would be able to seek employment elsewhere as a teacher by relying on his South Australian registration and that he might obtain references from principals with whom he had worked and who were unaware of the circumstances of his dismissal.
“One thing seems to be clear; that is that the term [fair trial] is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect in evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.”
[69](2000) 49 NSWLR 128, 142.
Accordingly, I consider that the circumstances in this case are such that there should be no prejudice to the second, third, and fourth respondents in obtaining a fair trial and that the discretion should be exercised in favour of an extension. I consider that despite the fact some 30 years have gone by the claim can still be fairly litigated given the number of witnesses still available and the extent of the documentary evidence available not only in relation to the events in South Australia in 1977 but subsequent events.
Application for an order pursuant to s 18 PIPA
Section 18 provides:
“18 Claimant’s failure to give part 1 of a notice of a claim
(1)A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless—
(a)the respondent to whom part 1 of a notice of a claim was purportedly given—
(i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or
(ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or
(b)the respondent has waived compliance with the requirement; or
(c)the court, on application by the claimant—
(i) declares that the claimant has remedied the noncompliance; or
(ii) authorises the claimant to proceed further with the claim despite the noncompliance.
(2)An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement.”
It is clear that in this regard the applicant is seeking an indulgence and has an obligation to demonstrate to the court that he should be allowed to proceed with his claim. The real question is whether there is a good reason for making the order.[70] The issues which need to be explored are the extent of the applicant’s delay in giving the notice, the adequacy of the explanation for the delay, and the likelihood of prejudice.
[70]See Dempsey v Dorber (1990) 1 Qd R 418; Stanton v DMK Forest Products Pty Ltd [2003] QDC 150.
As Jerrard JA stated in Gillam v State of Queensland & Ors:[71]
“Where there has been delay, and where at the time an application under s 18 is heard a reasonable excuse for that delay exists, then whether that excuse has been provided as required by s 9(5) or not, its existence will be relevant to the exercise of the s 18(1)(c)(ii) discretion in a claimant’s favour; but demonstrating that one exists is not mandated by the section.”
[71][2003] QCA 566 at [29].
I consider that, given that the material fact of a decisive character with respect to his claim against the second, third, and fourth respondents were not within the applicant’s means of knowledge until they were brought to his attention in late 2007, there is an adequate explanation for the delay. I do not consider that the prejudice is such that leave should not be granted.
The application for a stay of the plaintiff’s claim or for the claim to be dismissed as an abuse of process pursuant to r 171(1) (e) of the UCPR
This application centres on the issues of prejudice already determined and I do not consider that prejudice has been shown such that this application should be granted.
This application is therefore refused.
I will hear from Counsel as to costs and as to the precise formulation of the Orders.
Orders
(i) The period of limitation in respect of the applicant’s claim for damages against the first respondent be extended to 16 August 2002.
(ii) The period of limitation in respect to the applicant’s claim for damages against the second, third, and fourth respondents be extended to 18 December 2007.
(iii) As against each of the second, third, and fourth defendants’ Orders pursuant to s 18 of PIPA, that the plaintiff proceed with his claim despite the fact that he has not given a complying notice of claim.
(iv) The applications filed on 31 March 2008 by the second and third respondents to strike out or stay the plaintiff’s proceedings against them and the first defendant’s third party proceeding against them are refused.
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